Right to health

 What is the right to health?

 Key aspects of the right to health

1. The right to health is an inclusive right:

We frequently associate the right to health with access to health care
and the building of hospitals. It includes a wide range of factors that can help
us lead a healthy life.
The Committee on Economic, Social and Cultural Rights. They include:
 Safe drinking water and adequate sanitation;
 Safe food;
 Adequate nutrition and housing;
 Healthy working and environmental conditions;
 Health-related education and information;
 Gender equality.

2. The right to health contains freedoms:

These freedoms include
 the right to be free from non-consensual medical treatment, such as
medical experiments and research or forced sterilization, and
 to be free from torture and other cruel, inhuman or degrading treatment or
punishment.
3. The right to health contains entitlements:
These entitlements include:
 The right to a system of health protection providing equality of
opportunity for everyone to enjoy the highest attainable level of health;
 The right to prevention, treatment and control of diseases;
 Access to essential medicines;
 Maternal, child and reproductive health;
 Equal and timely access to basic health services;
 The provision of health-related education and information;
 Participation of the population in health-related decision- making at the
national and community levels.

4. Health services, goods and facilities must be provided to all without any
discrimination:
Non-discrimination is a key principle in human rights and is crucial to the
enjoyment of the right to the highest attainable standard of health.
5. All services, goods and facilities must be available, accessible, acceptable
and of good quality:
 Functioning public health and health-care facilities, goods and services must
be available in sufficient quantity within a State.
 They must be accessible physically as well as financially and on the basis of
non-discrimination.
 They should be medically and culturally acceptable.
 They must be scientifically and medically appropriate and of good quality.
This requires, in particular, trained health professionals, scientifically
approved and unexpired drugs and hospital equipment, adequate
sanitation and safe drinking water.
 Common misconceptions about the right to health

1. The right to health is NOT the same as the right to be healthy:

The right to health refers to the right to the enjoyment of a wide range
of goods, facilities, services and conditions necessary for its realization.
It is not an unconditional right to be healthy, but rather to attain the
highest attainable standard of physical and mental health.
2. The right to health is NOT only a programmatic goal to be attained in the
long term:
States must make every possible effort, within available resources, to
realize the right to health and to take steps in that direction without delay.
States also have to ensure a minimum level of access to the essential
material components of this right, such as the provision of essential drugs and
maternal and child health services.
3. A country’s difficult financial situation does NOT absolve it from having to
take action to realize the right to health:
No State can justify a failure to respect its obligations because of a lack
of resources.
States must guarantee the right to health to the maximum of their
available resources, even if these are tight. While steps may depend on the
specific context, all States must move towards meeting their obligations.
 The link between the right to health and other human rights

The importance given to the "underlying determinants of health" shows

that the right to health is dependent on, and contributes to, the realization of
many other human rights.
These include the rights to food, to water, to an adequate standard of
living, to adequate housing, to freedom from discrimination and to privacy.

 Links between the right to health and the right to water

Ill Health is associated with the ingestion of or contact with unsafe
water. Most diarrheal disease in the world is attributable to unsafe water,
sanitation and hygiene. In 2002, diarrhea attributable to these three factors
caused approximately 2.7 per cent of deaths (1.5 million) worldwide.

For people living in poverty, their health may be the only asset on which
they can draw for the exercise of other economic and social rights.
Conversely, individuals' right to health cannot be realized without
realizing their other rights, such as the rights to work, food, housing and
education.

 How does the principle of non-discrimination apply to the right to health?

Discrimination is linked to the marginalization of specific population groups

and is at the root of fundamental structural inequalities in society. This, in turn,
may make these groups more vulnerable to poverty and ill health.
Ethnic minority groups and indigenous peoples in some parts of the world are
more likely to suffer from a wide range of social and economic discrimination,
as well as physical and sexual violence. The impact of discrimination is
compounded when an individual suffers double or multiple discrimination,
such as discrimination on the basis of sex and race or national origin or age.
Non-discrimination and equality are fundamental human rights principles and
critical components of the right to health.
The International Covenant on Economic, Social and Cultural Rights (art. 2 (2))
and the Convention on the Rights of the Child (art. 2 (1)) identify the following
non-exhaustive grounds of discrimination:
 Race, color, sex, language, religion, political or other opinion, national or
social origin, property, disability, birth or other status.
States have an obligation to prohibit and eliminate discrimination on all
grounds and ensure equality in relation to access to health care.
Non-discrimination and equality imply that States must provide for the needs
of groups that generally face particular health challenges, such as higher
mortality rates or vulnerability to specific diseases. The obligation to ensure
non-discrimination requires specific health standards to be applied to women,
children and persons with disabilities.

 Neglected diseases: a right-to-health issue with many faces

Neglected diseases are those seriously disabling or life-threatening diseases for

which treatment options are inadequate or non-existent. They include
leishmaniosis (kala-azar), onchocerciasis (river blindness) and leprosy
(bilharzia).
There are clear links between neglected diseases and human rights:
 Neglected diseases almost exclusively affect poor and marginalized
populations in low-income countries, particularly in rural areas.

Guaranteeing the underlying determinants of the right to health is

therefore key to reducing the incidence of neglected diseases.

 Discrimination is both a cause and a consequence of neglected diseases.

For example, discrimination may prevent persons affected by neglected

diseases from seeking help and treatment in the first place.

 Essential drugs against neglected diseases are often unavailable or

inadequate.
 Health interventions and research and development have long been
inadequate and underfunded (although the picture has changed in recent
years, with more drug development projects under way).

The obligation is on States to promote the development of new drugs,

vaccines and diagnostic tools through research and development and
through international cooperation.

 The right to health in international Human rights law

The right to the highest attainable standard of health is a human right

recognized in international human rights law.
The International Covenant on Economic, Social and Cultural Rights is widely
considered as the central instrument of protection for the right to health. It
gives both mental health and physical health equal consideration.

 International Covenant on Economic, Social and Cultural Rights, art. 12

1. The States Parties to the present Covenant acknowledge that everyone has
the right to enjoy the best possible physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for:
 The provision for the reduction of the stillbirth rate and of infant
mortality and for the healthy development of the child;
 The improvement of all aspects of environmental and industrial hygiene;
 The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;
 The creation of conditions which would assure to all medical service and
medical attention in the event of sickness.
 International human rights treaties recognizing the right to health

 The 1965 International Convention on the Elimination of All Forms of Racial

Discrimination: art. 5 (e) (iv)
 The 1966 International Covenant on Economic, Social and Cultural Rights:
art. 12
 The 1979 Convention on the Elimination of All Forms of Discrimination
against Women: arts. 11 (1) (f), 12 and 14 (2) (b)
 The 1989 Convention on the Rights of the Child: art. 24
 The 1990 International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families: arts. 28, 43 (e) and 45 (c)
 The 2006 Convention on the Rights of Persons with Disabilities: art. 25.

The right to health is part of the international community's understanding of

human rights, including but not limited to the International Covenant on
Economic, Social and Cultural Rights (ICECR) and the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW).

 Declaration of Alma-Ata, 1978

The Declaration affirms the crucial role of primary health care, which addresses
the main health problems in the community, providing promotive, preventive,
curative and rehabilitative services accordingly (art. VII). It stresses that access
to primary health care is the key to attaining a level of health that will permit
all individuals to lead a socially and economically productive life (art. V) and to
contributing to the realization of the highest attainable standard of health.

The right to health is recognized in several international human rights

instruments, such as the African Charter on Human and Peoples' Rights (1981)
and the American Convention on Human Rights (1969).
Finally, the right to health or the right to health care is recognized in at least
115 constitutions. At least six other constitutions set out duties in relation to
health, such as the duty on the State to develop health services or to allocate a
specific budget to them.
 The right to health and health duties in selected national constitutions

1. Constitution of South Africa (1996):

Chapter II, Section 27: Health care, food, water and social security:
(a) Everyone has the right to have access to
 health-care services, including reproductive health care;

 sufficient food and water;

(b) The State must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realization of each of these
rights.
(c) No one may be refused emergency medical treatment.”

2. Constitution of India (1950):

Part IV, art. 47, articulates a duty of the State to raise the level of
nutrition and the standard of living and to improve public health:
“The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among
its primary duties.”
3. Constitution of Ecuador (1998):
Chapter IV: Economic, Social and Cultural Rights, art. 42:
“The State guarantees the right to health, its promotion and protection,
through the development of food security, the provision of drinking water and
basic sanitation, the promotion of a healthy family, work and community
environment, and the possibility of permanent and uninterrupted access to
health services, in conformity with the principles of equity, universality,
solidarity, quality and efficiency.”
 How does the right to health apply to specific groups?

Some groups or individuals face specific hurdles in relation to the right

to health. These can result from biological or socio-economic factors,
discrimination and stigma.
States should adopt positive measures to ensure that specific individuals
and groups are not discriminated against.
For instance, they should tailor their health laws and policies to those
most in need of assistance.
To illustrate what the standards related to the right to health mean in
practice, this chapter focuses on the following groups:
Women, children and adolescents, persons with disabilities, migrants
and persons living with HIV/AIDS.

 Women

 Convention on the Elimination of All Forms of Discrimination against

Women, art. 12

The UN (World Health Organization) and States Parties agree that

women should have equal access to health-care services, including those
related to family planning.
States Parties shall ensure to women appropriate services in connection
with pregnancy, confinement and the post-natal period, granting free services
where necessary, as well as adequate nutrition during pregnancy and lactation.
 International Covenant on Economic, Social and Cultural Rights, art. 10 (2)

Special protection should be accorded to mothers during a reasonable

period before and after childbirth. During such period working mothers should
be accorded paid leave or leave with adequate social security benefits.
Women are affected by many of the same health conditions as men, but
women experience them differently. Some groups, including women living with
HIV/AIDS, face multiple forms of discrimination, barriers and marginalization.

Both the International Covenant on Economic, Social and Cultural Rights

and the Convention on the Elimination of All Forms of Discrimination against
Women require the elimination of discrimination against women in health
care. Redressing discrimination in all its forms, including in the provision of
health care, are fundamental objectives of treating health as a human right.
The Committee on the Elimination of Discrimination against Women
requires States parties to ensure women have access to appropriate services in
connection with pregnancy, childbirth and the post-natal period.
The right of men and women to be informed and to have access to safe,
effective, affordable and acceptable methods of family planning of their choice
is part of the UN's Programme of Action on Population and Development.
Sexual and reproductive health is also a key aspect of women's right to health.

 Violence against women: a women’s rights and right-to-health issue

Violence against women is a widespread cause of physical and

psychological harm or suffering among women, as well as a violation of their
right to health. The Committee on the Elimination of Discrimination against
Women requires States to enact and enforce laws and policies that protect
women and girls from violence and abuse.

 Children and adolescents

 Children are especially vulnerable to malnutrition and infectious
diseases, and to sexual, reproductive and mental health problems. The
Convention on the Rights of the Child directs States to ensure access to
essential health services for children and their families. States should pay
particular attention to the needs and rights of children belonging to minorities
or indigenous communities.
The Convention on the Rights of the Child (art. 39) stresses the
responsibility of the State for promoting children's physical and psychological
recovery and social reintegration.
Adolescents are, moreover, particularly vulnerable to sexually
transmitted diseases, including HIV/AIDS. Effective prevention programs
should address sexual health and ensure equal access to HIV-related
information.

 Convention on the Rights of the Child, art. 24

1. States Parties recognize the right of the child to the enjoyment of the
highest attainable standard of health and to facilities for the treatment of
illness and rehabilitation of health.
States Parties shall strive to ensure that no child is deprived of his or her right
of access to such health-care services.
2. States Parties shall pursue full implementation of this right and, in particular,
shall take appropriate measures:
a. To diminish infant and child mortality;
b. To ensure the provision of necessary medical assistance and health care to
all children with emphasis on the development of primary health care;
c. To ensure appropriate prenatal and post-natal health care for mothers;
d. To ensure that all members of society, particularly parents and children, are
aware, have access to education, and are assisted in the application of
fundamental information about child health and nutrition, the benefits of
breastfeeding, cleanliness and environmental sanitation, and accident
prevention.;
e. To develop preventive health care, guidance for parents and family planning
education and services.
f. States Parties shall take all effective and appropriate measures with a view to
abolishing traditional practices prejudicial to the health of children.
g. States Parties undertake to promote and encourage international
cooperation with a view to achieving progressively the full realization of the
right recognized in the present article. In this regard, particular account shall
be taken of the needs of developing countries.

 Persons with disabilities

More than 650 million people worldwide have a disability of one form or
another. Most have long been neglected and marginalized by the State and
society.
The right to health of persons with disabilities cannot be achieved in
isolation. It is closely linked to non-discrimination and other principles of
individual autonomy, participation and social inclusion.
Persons with disabilities face various challenges to the enjoyment of
their right to health. Medical practitioners sometimes treat persons with
disabilities as objects of treatment rather than rights-holders. They are victims
of physical, sexual, psychological and emotional abuse, neglect, and financial
exploitation. Women with disabilities are particularly exposed to forced
sterilization and sexual violence.
The rights of persons with psychosocial or intellectual disabilities should
not be violated without their consent, as they are treated without their free
and informed consent. They are, moreover, often locked up in institutions
simply on the basis of disability, which can have serious repercussions for their
enjoyment of these rights.
Article 25 of the Convention on the Rights of Persons with Disabilities
provides "right to the enjoyment of the highest attainable standard of health
without discrimination" for persons with disabilities. States should promote,
protect and ensure the full and equal enjoyment of all human rights and
fundamental freedoms by people with disabilities (Art. 1).
The Convention on the Rights of the Child (art. 23) recognizes the right
of children with disabilities to special care and access to health-care and
rehabilitation services. States must require health professionals to provide care
of the same quality to persons with disabilities as to others, including on the
basis of free and informed consent.

 Migrants

Nearly 200 million international migrants worldwide, 90 million of them

are migrant workers. Their enjoyment of the right to health is often limited
merely because they are migrants. States have defined their health obligations
towards non-citizens in terms of "essential care" or "emergency care" only.

 Major difficulties faced by migrants—particularly undocumented migrants

—with respect to their right to health:

 Migrant sex workers and undocumented migrants in particular have little

access to health and social services;
 Migrants have difficulties accessing information on health matters and
available services. Often the information is not provided adequately by the
State;
 Undocumented migrants dare not access health care for fear that health
providers may denounce them to immigration authorities;
 Female domestic workers are particularly vulnerable to sexual abuse and
violence;
 Migrant workers often work in unsafe and unhealthy conditions;
 Migrant workers may be more prone to risky sexual behavior owing to their
vulnerable situation, far away from their families and their exclusion from
major prevention and care programs on sexually transmitted diseases and
HIV/AIDS. Their situation is therefore conducive to the rapid spread of these
diseases;
 Conditions in the centers where undocumented migrants are detained may
also be conducive to the spread of diseases;
 Trafficked persons are subject to physical violence and abuse, and face
formidable hurdles related to their right to reproductive health (sexually
transmitted diseases, including infection with HIV/AIDS, unwanted
pregnancies, unsafe abortions).

The International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families (art. 28) stipulates that all
migrant workers and their families have the right to emergency medical care.
Such care should be provided regardless of any irregularity in their stay or
employment.
Migrants' right to health is closely related to and dependent on their
working and living conditions and legal status. States should take steps to
realize their rights to, among other things, an adequate standard of living,
food, information, liberty and security of person, due process and freedom
from slavery and compulsory labor.

 Persons living with HIV/AIDS

HIV/AIDS is one of the most destructive pandemics in recent times. Since

emerging as a major health emergency, the epidemic has had a devastating
effect on human rights. Many human rights are relevant to HIV/AIDS, such as
the right to freedom from discrimination and equality before the law.
HIV/AIDS pandemic linked to poverty, stigma and discrimination.
Incidence and spread of HIV/AIDS are disproportionately high among certain
populations. Sex workers, refugees and internally displaced people are
particularly vulnerable to HIV infection. Fear of being identified with HIV may
stop them from seeking treatment.
States should prohibit discrimination on the grounds of health status,
including actual or presumed HIV/AIDS status, and protect persons living with
HIV from discrimination. State legislation, policies and programs should
address factors that hinder access of these vulnerable populations to
prevention, treatment and care, such as their economic status.
The right to health is an important component of the right to life for
persons living with HIV/AIDS. It is important to ensure the availability of
medicines and strengthen HIV prevention by providing condoms and HIV-
related information and education, and preventing mother-to-child
transmission.

 Women and HIV/AIDS

States should put in place laws and policies that challenge gender inequality
and social norms that contribute to HIV/AIDS expansion. They should also
provide equal access to HIV-related information, education, means of
prevention and health services. Significantly, they should ensure women's
sexual and reproductive rights.

 Obligations on states and responsibilities of others towards the right to

health

States have the primary obligation to protect and promote human rights.
Human rights obligations are defined and guaranteed by international
customary law and international human rights treaties, creating binding
obligations on the States that have ratified them to give effect to these rights.

 General obligations

 International Covenant on Economic, Social and Cultural Rights, art. 2

1. Each State Party to the present Covenant undertakes to take steps,

individually and through international assistance and cooperation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption
of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, color, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.

 Progressive realization
 States have the obligation to progressively achieve the full realization of
the rights under the Covenant. This is an implicit recognition that States have
resource constraints and that it necessarily takes time. Some components of
the Covenant, including the right to health, are deemed subject to progressive
realization.
International assistance is not a substitute for domestic obligations, but
comes into play if a State is unable to give effect to economic, social and
cultural rights on its own. States should provide economic and technical
assistance to enable other States to meet their obligations in relation to the
right to health.
The International Covenant on Human Rights (ICHR) provides for the
obligation of States to take concrete steps towards the realization of rights,
which should be concrete, deliberate and targeted. Retrogressive measures
are not permissible, unless a State can demonstrate that it has made every
effort to use all resources at its disposal to meet its obligations.

 Taking steps to realize the right to health

Taking steps to realize the right to health requires a variety of measures.

International Covenant on Economic, Social and Cultural Rights do not offer set
prescriptions. Adoption of legislative measures is one of the most likely ways to
achieve the full scope of the rights contained in the treaty.
The Committee on Economic, Social and Cultural Rights has underlined that
States should adopt a national strategy to ensure to all the enjoyment of the
right to health. Setting indicators and benchmarks will be decisive in the
formulation and implementation of such a strategy. OHCHR has been
developing a conceptual and methodological framework for such indicators.

 A proposed framework for indicators

 Indicators that illustrate the right to the highest attainable standard of
health are, for instance, the proportion of births attended by skilled health
personnel and maternal mortality ratio. It is also crucial that indicators be
disaggregated by relevant population group and possible ground of
discrimination.