ArticlesIs access to essential medicines as part of the fulfilment of the right to health enforceable through the courts?
Introduction
Issues of human rights affect the relations between the State and the individual; they generate State obligations and individual entitlements. The promotion of human rights is one of the main purposes of the UN. For example, the WHO Constitution of 1946 says that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” Article 25.1 of the Universal Declaration of Human Rights (1948) says 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 right to health is also recognised in many other international1, 2, 3 and regional4, 5, 6 treaties, especially the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, an international treaty that is binding on States parties (States that have acceded to, signed, or ratified an international treaty) and provides the foundation for legal obligations under the right to health. In the ICESCR, States parties “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. In Article 12.2, the treaty lists several steps to be taken by States parties to achieve the full realisation of this right, including the right to: maternal, child, and reproductive health; healthy natural and workplace environments; prevention, treatment, and control of disease; and “the creation of conditions which would assure to all medical service and medical attention in the event of sickness”. Article 12 thus constitutes an important standard against which to assess the laws, policies, and practices of States parties.
The implementation of the ICESCR is monitored by the Committee on Economic, Social and Cultural Rights, which regularly issues authoritative but non-binding General Comments, which are adopted to assist States in their interpretation of the ICESCR. In General Comment 3, the Committee confirms that States parties have a core obligation to ensure the satisfaction of minimum essential levels of each of the rights outlined in the ICESCR, including essential primary care as described in the Alma-Ata Declaration, which includes the provision of essential medicines.
General Comment 14 of May, 2000, is particularly relevant to access to essential medicines. Here the Committee states that the right to medical services in Article 12.2 (d) of the ICESCR includes the provision of essential drugs “as defined by the WHO Action Programme on Essential Drugs”.7 According to the latest WHO definition, essential medicines are: “those that satisfy the priority health care needs of the population. Essential medicines are selected with due regard to disease prevalence, evidence on efficacy and safety, and comparative cost-effectiveness. Essential medicines are intended to be available within the context of functioning health systems at all times, in adequate amounts, in the appropriate dosage forms, with assured quality, and at a price the individual and the community can afford. The implementation of the concept of essential medicines is intended to be flexible and adaptable to many different situations; exactly which medicines are regarded as essential remains a national responsibility”.8
Although the ICESCR acknowledges the limits of available resources and provides for progressive (as opposed to immediate) realisation of the right to medical services, States parties have an immediate obligation to take deliberate and concrete steps towards the full realisation of Article 12, and to guarantee that the right to health will be exercised without discrimination of any kind.
Most countries in the world have acceded to or ratified at least one worldwide or regional covenant or treaty confirming the right to health. For example, more than 150 countries have become State parties to the ICESCR, and 83 have signed regional treaties.9 More than 100 countries have incorporated the right to health in their national constitution.
Some might argue that social, cultural, and economic rights are not enforceable through the courts, and some national courts have indeed been reluctant to intervene in resource allocation decisions of governments. Yet accountability and the possibility of redress are essential components of the rights-based approach. Being a State party to a human rights treaty that is internationally binding creates certain State obligations to its people. Do governments live up to these binding obligations in practice? If not, do individuals manage to obtain their rights? And if they do, which factors have contributed to their success?
This study analyses the question of whether access to essential medicines as part of the fulfilment of the right to health can be enforced through national courts (is justiciable) in low-income and middle-income countries. The study is part of a general attempt by WHO to integrate the promotion and protection of human rights into national policies and to support further mainstreaming of human rights throughout the UN.
Section snippets
Methods
A systematic search was done to identify completed court cases in low-income and middle-income countries in which individuals or groups had claimed access to essential medicines with reference to the right to health in general, or to specific human rights treaties ratified by the government. Six different search methods were used. A general boolean search of the internet was done with variations in the keywords that were linked together (such as human rights, essential drugs, access to
Results
The systematic search identified 73 cases from 12 low-income and middle-income countries. In five cases, only a brief summary of the judgment was available. In three of these cases, information was still sufficient to include them in the analysis. The full analysis is therefore based on 71 cases, of which 59 were won and 12 were lost (table 1). Of the cases included in the analysis, 14 successful and two unsuccessful cases specifically referred to one or more international human rights treaties
Discussion
This study has shown that access to essential medicines as part of the fulfilment of the right to health could indeed be enforced through the courts in several low-income and middle-income countries, with most of the experience to date coming from Central and Latin America. The most important success factor has been that certain rights are enshrined in the national constitution. Key constitutional provisions seem to be those on the right to health and on defined State obligations with regard to
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The selection and use of essential medicines
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2020, Social Science and MedicineCitation Excerpt :Courts have been involved in decisions about the provision of healthcare in many jurisdictions (Yamin and Gloppen, 2011; Landau, 2012; Norheim and Wilson, 2014; Flood and Chen, 2010; Flood and Gross, 2014; Syrett, 2011; Gauri and Brinks, 2008; Exeter and Buijsen, 2012; Ettelt, 2018). This involvement is largely due to the recognition of legal rights to receive healthcare in several jurisdictions (Hogerzeil et al., 2006; Backman et al., 2008; Heymann et all, 2013); to the increasing review powers of courts to cover policy issues that were previously left to the complete discretion of politicians and government officials (Tate and Vallinder, 1997; Wang, 2017); and to the mismatch between patients’ expectations and health systems capacity to meet them, driven especially by the cost of new technologies (OECD, 2006; Sorenson and Chalkidou, 2012). Legal entitlements and judicial accountability have been described as fundamental for countries to achieve universal health coverage, which is a target of the United Nations Sustainable Development Goals (Yamin and Frisancho, 2015; Cotlear et al., 2015; Chapman, 2016).
Governing access to emergency care in Africa
2020, African Journal of Emergency MedicineCitation Excerpt :With respect to health systems, constitutional laws are a powerful mandate to respect, protect and promote the right to the highest attainable standard of health [22]. For example, the incorporation of a right to access essential medications into the national constitution has been shown to have an effect - via favorable court rulings - on national implementation [21]. At least seven African countries - Egypt, Kenya, Somalia, South Africa, South Sudan, Sudan, and Zimbabwe - have constitutional guarantees of access to emergency care [23–28].