A Global Village
Issue 5 » The Right to Health

The Right to Health in Practice

Joseph Fitchett, Imperial College London

In the current era of globalisation, the world is diversifying as never before. Inequalities in economic, social, spiritual, political and civil matters characterise daily life. Estimates suggest that 80% of global disease burden lies in developing or low-income countries, based on crude calculations by disability-adjusted life years (DALYs)1. And measures do not seem to be in place to redress these inequalities. For instance, the Commission on Health Research Development estimated, albeit several years ago, that 90% of all global research and development expenditure is dedicated to 10% of the world’s disease burden, primarily concentrated in wealthier countries.

Today, there may be a new climate of awareness maturing. Governments representing developed or high-income countries often discuss the urgent need to help the world’s poorest or rescue the bottom billion from devastating illness. However this optimistic rhetoric is not always matched by foreign policy and international trade agreements, for example consider TRIPS, the World Trade Organisation’s Trade-Related Aspects of International Property Rights Agreement consolidating strict patent rules worldwide with significant impact on access to essential medicines.

The following provides a comprehensive overview of the right to health and proposes a human rights-based approach to health as a sustainable framework that transcends borders for justice in healthcare.

Rights are moral and legal entitlements. Human rights have foundations in the theory of natural law and by definition human rights ‘belong justifiably’ to all persons2. Several core notions play essential roles in the realisation of human rights, namely the concept of a right, a duty, an entitlement and an obligation. For descriptive purposes, rights are classified as negative rights and positive rights. Negative rights imply freedoms, for instance the right to be free from forced medical experimentation or the right to be free from torture and ill treatment. Positive rights imply entitlements, for instance the right to access essential medicines and vaccines.

Every State in the world
has ratified at least one
international human
rights treaty upholding
the right to health 

The philosophical basis for human rights is not restricted to the 20th Century and the United Nations Universal Declaration of Human Rights. Core principles shape several religious and ancient legal texts, such as the Babylonian Code of Hammurabi, the Hindu Laws of Manu, and the Analects of Confucius. The origins of the modern human rights movement arguably stems from the end of the 18th Century at a time where the relationship between government and the governed was evolving rapidly and redefining itself, highlighted by treatises in political philosophy on the Social Contract. However it is the genocidal atrocities and medical experimentation of an unparalleled evil committed by the Nazis, directed primarily at millions of Jews throughout Europe, from which the Universal Declaration of Human Rights (UDHR) was born. The inhumanity of the Nazi regime and gross disregard for human rights of all human beings left people and their leaders questioning the morality of the human race.

In the present day, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) are legally binding instruments in international human rights law upholding, enshrining and protecting universal human rights. They are part of what is referred to as the Bill of Human Rights, which is composed of the ICESCR, ICCPR and UDHR. These instruments are vital in ensuring that governments are held accountable for their action, or inaction, for the sustained improvement of health among their society.

Health as a Human Right
Human rights are undeniably interdependent, indivisible and interrelated3. This concept is significant when referring to health. The World Health Organisation (WHO) definition of health is considerably cited and defines health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease’4. Both the underlying determinants of health and a functioning health system accessible to all without discrimination are fundamental to the realisation of the right to the highest attainable standard of physical and mental health. The right to health however is not about a right to be healthy as many aspects, including genetic predisposition for instance, are outside the direct control of States.

Beyond the WHO Constitution and article 25 of the Universal Declaration of Human Rights, the right to health is articulated in the 1978 Declaration of Alma-Ata, regional treaties, article 12 of the ICESCR and further clarified in ‘General Comment No.14: The Right to the Highest Attainable Standard of Health’. Every State in the world has ratified at least one international human rights treaty upholding the right to health and over 115 national constitutions recognise the right to health, therefore governments and affiliated institutions have committed themselves to respecting, protecting and realising this right in national law and domestic policy.

Health systems and services
operating with a human
rights-based approach
must be appropriately
available, accessible,
acceptable and of good

In practice, health systems and services operating with a human rights-based approach must be appropriately available, accessible, acceptable and of good quality. The principles of participation, non-discrimination, transparency and accountability on all levels and equality are paramount. The United Nations Human Rights Council monitors States and their legal obligations to ensure the case-appropriate measures are in place to realise the right to health.

Morals, Ethics and Values
Healthcare workers have unique access to individuals at times of greatest need and are in a prime position to report injustices and violations as they happen. The fundamental principles of human rights provide a practical framework to guide healthcare practitioners and public health professionals to realise of the inextricable right to the highest attainable standard of physical and mental health for all.

There is a moral imperative and obligation for the State to address injustices with concerted action and healthcare professionals have a responsibility to act when appropriate. Just actions based on respective duties and obligations must ensure that progressive realisation of the right to health and fair distribution of limited resources occurs without delay. Ethical principles have the compelling power to influence action. The following principles are central to realising the right to health and guiding day-to-day practice by healthcare professionals:

Due regard, civility and non-discrimination for all women, men, boys and girls regardless of background or ethnicity.

A sense of egalitarianism, sympathy and empathy. An appreciation of the injustices in situations others may be confronted with.

Honouring the values and individuality of all persons.

Respecting the freedom of competent human beings. Empowering the individuals who carry the resultant outcomes.

The opportunity, by men and women, to be involved in the process and discuss subjective issues on both sides in an effort to understand, not presume, the optimal way forward.

Facilitating accountability for unfair processes and unfair outcomes.

These principles are not novel. In fact these principles complement the traditional principles of medical ethics and the Hippocratic Oath. First do no harm is a fundamental moral concept that relies on an underlying respect between healthcare professionals and their autonomous patients, equality in treatment based on need, and fairness. However the principles presented above are inconsistently applied at present to resource allocation for health, which favour instead utilitarian and consequentialist models. The universality of human rights act as a reminder that individuals are born into unequal circumstances with a tremendous influence on the rest of their lives and may remain trapped, vulnerable and destined to fight hard for social justice.

Redistributing societal benefits and burdens for the benefit of the marginalised is not uncommon in many states worldwide, as observed with social security policies. Translation of this principle beyond national borders is rare. A right to health approach moves beyond the mere cost-effectiveness analysis. Naturally, in the words of Paul Hunt, past-UN Special Rapporteur on the Right to Health, human rights cannot answer all the difficult practical problems a health system faces on a daily basis, any more than ethics or health economics can. However they provide a morally assertive and legally binding approach, ensuring an environment of universal respect, egalitarianism and accountability for unfair violations and participatory discussion to improve justice for all.

Values, although complex to
define, difficult to quantify
and judged culturally
relative, must be taken
into consideration
concurrently in all
healthcare-related decisions

Furthermore, a landmark study5 was recently published in The Lancet assessing health systems and the right to health in 194 countries, identifying key features of the right to health and proposing 72 indicators to monitor and analyse health systems worldwide. These indicators are essential to manage the progressive realisation of the right to health, which is not merely efficient management or good in a humanitarian sense, but an obligation under international law. Facts and figures are important, however not exclusively. Values, although complex to define, difficult to quantify and judged culturally relative, must be taken into consideration concurrently in all healthcare-related decisions.

People Driving Health
Methods to strengthen and improve the reporting system at the United Nations are urgently required to uphold universal human rights. The WHO alone cannot efficiently redress the inequalities in health and resources across the globe. A variety of players in a globalised world have direct and indirect impacts on health and resource availability for fair distribution. Institutions require clear communication and a bridge to connect with individuals they serve. Conflicting policies and priorities, such as the TRIPS agreement and access to essential medicines, restrict improvement in conditions for millions worldwide. To realise human rights and the right to health, the moral principles underlying these legal obligations must be applied as a framework for practical issues in daily life. Healthcare professionals must lead the way. Without this translation from theory to practice, conflict between what we say and what we do will remain.

“Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others.”
John Rawls6

In the spirit of John Rawls, this principle must be applied to health to ensure the loss of health by some does not justify or make right the greater health of others. Health is global. For social justice on a global level, consistency in applying the human rights framework is urgently required for the realisation of the right to health and redressing injustices worldwide.

Joseph Fitchett is a fifth year Medical Student at Imperial College London.

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[2] Chan L. et al. (2010) China’s Engagement with Global Health Diplomacy: Was SARS a Watershed? PLoS Medicine. 7(4).
[3] Leslie M. (2006) Fear and Coughing in Toronto: SARS and the Uses of Risk. Canadian Journal of Communication. 31(2).
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[3] United Nations (1993) The Vienna Declaration and Programme of Action. The World Conference on Human Rights. New York: UN.
[4] World Health Organization (1946) Preamble to the Constitution of the World Health Organization. New York: WHO.
[5] Backman G. et al. (2008) Health Systems and the Right to Health: An Assessment of 194 Countries. The Lancet. 372: 2047-85.
[6] Rawls J. (1971) A Theory of Justice. Cambridge: Harvard University Press.