Realising the right to health

How can a rights-based approach to health enable us to improve access to health services and medicines? This was one of the questions put to delegates at a five-day seminar I attended in Salzburg last week.

Although often treated with a degree of scepticism, the human right to health is recognised in numerous international instruments. For example, article 25.1 of the Universal Declaration of Human Rights affirms that ‘everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services’.

The International Covenant on Economic, Social and Cultural Rights also states the right of everyone ‘to the enjoyment of the highest attainable standard of physical and mental health’.

The seminar was a fascinating opportunity to explore how this right is realised in different countries and across different health care systems, with attendees from over 23 countries, including Costa Rica, Brazil, Uganda, Norway, Estonia, South Africa and South Korea.

One inspiring story was the work currently being done in Rwanda to improve the provision of health care. Over a video-link, Health Minister Agnes Binagwaho explained how recent reforms to Rwanda’s health care system have now brought health insurance to 85 percent of the population.

Indeed, such has been the success of these reforms that for the first time attention has started to shift from infectious diseases to non-communicable diseases and long-term conditions. Central to all of this, Health Minister Binagwaho explained, had been an insistence on the human right to health – as she put it, ‘when you don’t provide health care to people who need it, it is against their human rights’.

Colombia and Brazil, by contrast, offered a more cautionary tale. Both these countries have seen a dramatic rise in right-to-health litigation, with claimants pressing their ‘right to health’ as a way of claiming access to treatment.

For example, in Colombia there has been an astonishing growth in the number of health tutelas (a mechanism enabling people to file cases before any local court, without a lawyer, and receive a quick decision), with 142,957 cases in 2008 alone (Yamin et al, 2011).

As delegates heard, using litigation such as this as a way of enforcing one’s right to health cuts both ways. On the one hand, it can be an important means for enforcing one’s rights under a given health plan. In Colombia, for example, most of the health tutelas were to enforce the provision of treatments and services that the insurance companies should have been covering (Yamin et al, 2011).

However, at the same time, such litigation can often mean that judges become the de facto allocators of scarce health care resources, judges who are usually duty-bound to consider only the legitimacy of the claim in front of them, irrespective of the needs of the population as a whole.

And, of course, this is to say nothing of the cost involved in having the courts decide whether treatment is warranted in any particular case, or the fact that, when left to the law courts, access to health is often restricted to those that can afford the best lawyers.

For me, therefore, the seminar was a stark reminder of the benefits and costs to formulating health policy around the right to health.

At a time when the NHS Future Forum is calling for the NHS Constitution to be clearer about people’s rights – and what they can do when the NHS falls short of our expectations – the need to pay heed to the lessons from abroad seems all the more important.