International Health Law. Access to Health Care

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International Health Law. Access to Health Care

• André den Exter
• denexter_at_bmg.eur.nl

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International Health Law The Right to Health Care

• Definition
• Conceptual framework
• Nature and Content
• Justiciability
• Conclusions

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Defining the scope

• Right to Health or Health Care?

4
Conceptual framework

• Human Rights Treaties and documents
• Article 25 Universal Declaration and article
  12(1) International Covenant on Economic, Social
  and Cultural Rights (ICESCR) 'highest attainable
  standard of physical and mental health'
• Constitution World Health Organization (WHO) 'a
  state of complete physical, mental and social
  well-being and not merely the absence of disease
  or infirmity'
• Regional documents
• the American Convention on Human Rights
• the African Charter on Human Rights
• the Biomedicine Convention
• International trade law
• International Labour Organization (ILO) Social
  security Conventions World Trade Organization
  (GATT, GATS, TRIPS)

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Nature and Content of a right to health care
International law

• Social right
• Article 12(2) ICESCR steps to be taken to
  achieve 'the full realisation of this right', in
  particular in the following areas
• infant mortality and child development
• environmental hygiene
• prevention, treatment and control of epidemic,
  endemic, and other diseases, and
• medical care.
• General Comment No. 14 on Health (14.7.2000)
• Minimum core obligations'
• Typology of obligations (respect, protect and
  fulfil)
• AAAQ
• Progressive realization Non-retrogression
• Consequences Non-State parties

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Content of a Right to Health Care National law
and Global Trends

• Constitutional/statutory Right
• Explicit/implicit
• Constitutional commitments
• Part of monitoring/review system (accountability)

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Justiciability of the right to health care

• ECrtHR
• Karara v. Finland (29 May 1998), prohibition of
  torture and inhuman and degrading treatment,
  article 3 ECHR
• deportation HIV infected person subject to
  inhuman and degrading treatment?
• African Commission on Peoples and Human Rights
• Purohit and Moore v. The Gambia, violation right
  to health article 16 ACHR (241/2001)
• Right to health includes access to health
  facilities, goods services
• Inter-American HR Court
• Yakye Axa Indigenous Community v. Paraguay (June
  15, 2005) failure adopting positive measures
  (health, education)

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Justiciability (2) Progressive jurisprudence in
national law

• Mariela Viceconte v MoH Agentina Case No 31777/96
  (1998)
• State obligation production vaccin political
  implications
• TAC case South Africa (2002) 5 SA 721 CC
• Failure provide anti-retroviral drugs
• Paschim v. State of West Bengal (India) (1996) 4
  SCC 37 SC
• Emergency care core component right to health
• Central Board of Appeal (NL) 8 September 2006
  direct effect Social Security Code (Part IV)
• User charges violate European Code

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Conclusions

• International treaties and national law accept
  the right to health care as a fundamental human
  right
• Content AAAQ
• International HRL classified in (binding)
  obligations
• Right to health not inherently enforceable?
• Generally, courts unwilling to accept the binding
  effect of international social right to health
  care
• Operationalized by statutory law it may entail
  individual enforceable entitlements
• ECrtHR has followed a different strategy linking
  individual-social rights
• Progressive realization and cost containment
  reforms
• (cost sharing, delisting services health plans).

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Examples
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Case study Healthcare behind bars

• ECrtHR McGlinchey v UK
• Asthmatic drug addict
• Examined by prison doctor
• In critical condition to hospital
• Complaint failure to diagnose her condition and
  given inadequate medical treatment and care.

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Claiming ALS treatment

• In 1976 the applicant was diagnosed with
  amyotrophic lateral sclerosis (ALS) also known as
  Lou Gehrigs disease. In June 1999 the applicant
  was prescribed Rilutek, a drug used to treat ALS.
  On 14 June 1999 the applicant asked the Polish
  Health Insurance Fund to refund him the cost of
  the medicine. He pointed out that he was a
  pensioner and that the price of a prescribed
  monthly intake of the drug exceeded his means.
• The HIF is willing to refund 70 of the costs.
• The applicant respond that he could not afford to
  pay for the medicine and that he had no children
  to help him.
• The applicant complained under the Convention
  that the refusal to refund the full price of a
  life-saving drug violated his fundamental rights.