The right to health
- The WHO Constitution enshrines the highest attainable standard of health as a fundamental right of every human being.
- The right to health includes access to timely, acceptable, and affordable health care of appropriate quality.
- Yet, about 150 million people globally suffer financial catastrophe annually, and 100 million are pushed below the poverty line as a result of health care expenditure.
- The right to health means that States must generate conditions in which everyone can be as healthy as possible. It does not mean the right to be healthy.
- Vulnerable and marginalized groups in societies tend to bear an undue proportion of health problems.
"The world needs a global health guardian, a custodian of values, a protector and defender of health, including the right to health."
- Dr Margaret Chan, Director-General, WHO
The right to health means that governments must generate conditions in which everyone can be as healthy as possible. Such conditions range from ensuring availability of health services, healthy and safe working conditions, adequate housing and nutritious food. The right to health does not mean the right to be healthy.
The right to health has been enshrined in international and regional human rights treaties as well as national constitutions all over the world.
Examples of UN human rights treaties:
- International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966;
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979;
- Convention on the Rights of the Child (CRC), 1989.
Examples of regional human rights treaties:
- European Social Charter, 1961;
- African Charter on Human and Peoples’ Rights, 1981; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (the Protocol of San Salvador), 1988.
The International Covenant on Economic, Social and Cultural Rights (1966) in Article 12 states that steps for the realization of the right to health include those that:
- reduce infant mortality and ensure the healthy development of the child;
- improve environmental and industrial hygiene;
- prevent, treat and control epidemic, endemic, occupational and other diseases; and
- create conditions to ensure access to health care for all.
General Comment on the Right to Health
To clarify and operationalize the above provisions, the UN Committee on Economic, Social and Cultural Rights, which monitors compliance with the ICESCR, adopted a General Comment on the Right to Health in 2000.
The General Comment states that the right to health extends not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.
According to the General Comment, the right to health contains four elements:
- Availability: A sufficient quantity of functioning public health and health care facilities, goods and services, as well as programmes.
- Accessibility: Health facilities, goods and services accessible to everyone. Accessibility has four overlapping dimensions:
- physical accessibility
- economical accessibility (affordability)
- information accessibility.
- Acceptability: All health facilities, goods and services must be respectful of medical ethics and culturally appropriate as well as sensitive to gender and life-cycle requirements.
- Quality: Health facilities, goods and services must be scientifically and medically appropriate and of good quality.
The right to health, like all human rights, imposes on States Parties three types of obligations.
- Respect: This means simply not to interfere with the enjoyment of the right to health ("do no harm").
- Protect: This means ensuring that third parties (non-state actors) do not infringe upon the enjoyment of the right to health (e.g. by regulating non-state actors).
- Fulfil: This means taking positive steps to realize the right to health (e.g. by adopting appropriate legislation, policies or budgetary measures).
According to the General Comment, the right to health also has a "core content" referring to the minimum essential level of the right. Although this level cannot be determined in abstract, as it is a national task, key elements are set out to guide the priority setting process.
Included in the core content are:
- essential primary health care
- minimum essential and nutritious food
- safe and potable water
- essential drugs.
Another core obligation is the adoption and implementation of a national public health strategy and plan of action. This must address the health concerns of the whole population; be devised, and periodically reviewed, on the basis of a participatory and transparent process; contain indicators and benchmarks by which progress can be closely monitored; and give particular attention to all vulnerable or marginalized groups.
State Parties must move forward in line with the principle of progressive realization. This means that State Parties should take deliberate, concrete and targeted steps forward, using the maximum available resources. These resources include those within a State as well as resources available through international assistance and co-operation. In this context, it is important to distinguish the inability from the unwillingness of a State Party to comply with its right to health obligations.
As part of the current reform process, WHO has launched a new approach to promote and facilitate the mainstreaming of gender, equity and human rights, building upon the progress that has already been made on these areas at all three levels of the Organization. WHO has been actively strengthening its role in providing technical, intellectual and political leadership on the right to health. Overall, this entails:
- strengthening the capacity of WHO and its Member States to integrate a human rights-based approach to health;
- advancing the right to health in international law and international development processes;
- advocating for health-related human rights, including the right to health.