The objectives of this topic are to (1) to survey the scope and content of both the right to health and the patent rights, (2) to examine the impact of patent right on the right to health and (3) to present the full text of the judgment – Intellectual Property Bill (2003) with an outline of its importance to the country.
The relationship between human rights and Intellectual Rights Property Rights (IPR) has been a topic of many debates in the recent past. At one extreme, IPR activists see IPR as a human right of the investor worthy of recognition on equal footing with any other human rights. This argument is strengthened by Article 27 of the Universal Declaration of Human Rights (UDHR which states that, “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literally or artistic production of which he/she is the author.”
Further down to the same axis lies the argument that IPR is very much a private property right fully owned by the proprietor and the protection of a patent is a part of the social contract in a liberal democratic society. Human rights Activists, on the other hand recognise IPR subject to the protection of certain basic human rights. Hence, the right to health, it is argued, cannot be compromised through the enforcement of patent rights. The same is said about such rights as food, education and development. In the Supreme Court Determination on the Intellectual Property Bill, the impact of IPR on the right to health was recognised and the Court stressed that the peoples’ right to health must be accorded primacy.
The right to health international perspective
Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity. The realisation of the right to health may be pursued through numerous, complementary approaches such as the formulation of health policies or the implementation of health programs developed by the World Health Organization (WHO), or the adoption of the specific legal instruments.
The human right to health is recognised in numerous international instruments. Article 25.1 of the UDHR affirms: “Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, houses and medical care and necessary social services”.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) provides the most comprehensive Article on the right to health in international human rights law. In accordance with Article 12.1 of the Covenant, States parties recognise ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’, while Article 12.2 enumerates, by way of illustration, a number of ‘steps to be taken by the States parties to achieve the full realisation of this right.’.
The right to health is recognised, inter alia, in Article 5 ( c) (iv) of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 in Articles 11.1 (f) and 12 of the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 and in Article 24 of the Convention on the Rights of the Child of 1989.
Several regional human rights instruments also recognised the right to health such as the European Social Charter of 1961 and revised (Article 11), the African Charter on Human and Peoples’ Rights of 1981 (Article 16) and additional protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights of 1988 (Article 10). Similarly, the right to health has been proclaimed by the Commission on Human Rights (In its resolution 1989/11) as well as in the Vienna Declaration and Programme of Action of 1993 and other international instruments.
The right to health is closely related to and dependent upon the realisation of other human rights, as contained in the International Bill of Rights, including the rights to food, houses, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information and the freedoms of association, assembly and movement.
With a view to assisting States parties’ implementation of the Covenant and the fulfillment of their reporting obligations, the General Comment No. 14 focuses on the normative content of Article 12 (Part I), States Parties’ obligations (Part II), violations (Part III), and implementation at the national level (Part IV), while the obligations of actors other than State Parties’ are addressed in Part V.
The right to health should not be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.
The ICESCR provides the most comprehensive Article on the right to health in international human rights law.
Article 12.1 provides a definition of the right to health, while article 12.2 enumerates illustrative, non-exhaustive examples of States parties’ obligations.
The Committee set up under the ICESCR has produced General Comments on aspects of ESC rights. Accordingly, General Comment No. 14 adopted by Committee in May 2002 is titled ‘The Right to the Highest Attainable Standard of Health (Article 12 of the ICESCR).
The notion of ‘the highest attainable standard of health’ in Article 12.1 takes into account both the individual’s biological and socio economic preconditions and a State’s available resources. There are a number of aspects which cannot be addressed solely within the relationship between States and individuals; in particular, good health cannot be ensured by a State, nor can States provide protection against every possible cause of human ill health. Thus, generic factors, individual susceptibility to ill health and the adoption of unhealthy or risky lifestyles may play an important role with respect to an individual’s health.
Consequently, the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realisation of the highest attainable standard of health.
Since the adoption of the two International Covenants in 1966 (ICCPR and ICESCR), the world health situation has changed dramatically and the notion of health has undergone substantial changes and has also widened in scope. More determinants of health are being taken into consideration, such as resource distribution and gender differences.
A wider definition of health also takes into account such socially-related concerns as violence and armed conflict. Moreover, formally unknown diseases, such as Human Immuno deficiency Virus and Acquired Immuno deficiency Syndrome (HIV/AIDS), and others that have become more widespread, such as cancer as well as the rapid growth of world population have created new obstacles for the realisation of the right to health which need to be taken into account when interpreting Article 12.
The Committee on ESC Rights (No: 14) interprets the right to health, as defined in Article 12.1 as an inclusive right extending 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, and adequate supply of safe food, nutrition and houses, healthy occupational and environmental conditions and access to health related to education and information, including on sexual and reproductive health.
Definition
Paragraph 12 of the General Comment No. 14 describes the essential and interrelated elements of the right to health:
* Availability – Public health care facilities must exist in sufficient quantity. Though this definition will vary according to the level of development, adequate facilities must include the following: (i) safe drinking water, (ii) adequate sanitation, (iii) hospitals, (iv) clinics, (v) trained medical personnel receiving domestically competitive salaries, and (vi) essential drugs (as defined by the WHO Action Programme on Essential Drugs).
(b). Accessibility – This includes the sub elements of (i) non-discrimination, (ii) physical accessibility, (iii) economic accessibility (iv) information accessibility.
(c). Acceptability – All health facilities must be respectful of medical ethics and culturally appropriate.
(d) Quality – Health facilities, goods and services must be scientifically and medically appropriate and of good quality. Among other things, this requires skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe water and adequate nutrition (within medical facilities).
As these are the core elements of the right to health, they represent the primary entitlement the State must ensure to its people.
General obligations
While the definition of the essential elements of the right to health is spelled out above, the nature of the government’s obligations to respect, protect and fulfill those elements is discussed below: It is important to recall that determining a violation of the right to health requires showing (1) that a person or group is not enjoying one of the essential elements of the right to health and (2) that there is something the Government ought to be doing to respect, protect or provide that element (obligations).
In General Comment No. 14, the Committee divides governmental obligations into two categories: general and specific. General Comment No. 14 makes extensive use of three categories namely, Respect, Protect and Fulfill for the analysis of governmental obligations. In General Comment No.12 and 13, the Committee clarifies that the obligation to fulfill includes two sub-components: to obligation to facilitate and the obligation to provide. The Committee steps forward in General Comment No. 14 to add a third sub component, namely the obligation to promote the health of its people. The Committee explains the addition as being justified in light of critical importance of health promotion in the work of the World Health Organization (WHO).
The most general obligation arising from the Covenant is to implement progressively, to the maximum of available resources, the enjoyment of the highest standard of physical and mental health. Here it is necessary to consider Article 2(1) of the Covenant. This is a high and general standard of achievement and is usually broken down into various components for the sake of specificity.
During times of server resources constrain, the State must protect the most vulnerable members of society through the adoption of relatively low-costs targeted programs. (General Comment No. 14 para 30). An example of a low costs targeted program would be the establishment of a women’s health station in a conflict zone, or an immunisation program for particularly vulnerable children during times of outbreaks. The Committee gives specific attention to the issues of women’s right to health (para 21), children and youth, (para 22- 23), older persons (para 25), persons with disabilities (para 26) and indigenous peoples (para 27).
The Committee makes a long list of specific obligations to respect, protects and fulfill at paragraphs 34-37. These lists indicate the measures required to comply with the obligations under the Covenants, but are far too long to reproduce here.
Core obligations
In General Comment No.3 of the Committee on ESC Rights established that, “A minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent on State party. (General Comment No. 3 para 10). This means that, over and above the progressive obligation to provide the essential and interrelated elements of the right to health, there are certain things the Government must do as a matter of priority. The obligation to ensure these ‘core elements’ is much stricter on the Government. In General Comment No.14, the Committee sets out what obligations the minimum essential levels of the right to health entail (para 43);
* To ensure the right of access to health facilities on a non-discriminatory basis, specially for vulnerable groups;
* To ensure access to minimum essential food;
* To ensure access to basic shelter, sanitation and adequate supply of potable (drinkable) water;
* To provide essential drugs, as defined by the WHO;
* To ensure equitable distribution of all health facilities (this probably refers to both regional disparity and disparity between social class);
* To adopt an extensive public health strategy and plan of action.
Violations
In paragraph 46, the Committee explains that “When the normative content of the Article 12 (Part I) is applied to the obligations of States parties (Part II), a dynamic process is set in motion which facilitates the identification of violations of right to health. A number of violations was mentioned over the course of paragraphs 46-49:
* The adoption of retrogressive measures incompatible with the core obligations under the right to health, as outlined in paragraph 43.
* The failure to take steps towards the full realisation of the rights (para 49);
* The failure to have a national policy on occupational safety and health, and the failure to enforce relevant laws.
The Comment Lists examples of specific violations of the obligations to respect, protect and fulfill the Covenant rights. These are straightforward lists of what the Committee takes to be violations, and are by no means exhaustive or exclusive.
National implementation
The Committee states that State parties have the obligation to take steps towards implementation of the right to health, and that this requires the adoption of a national strategy. Such a strategy would include the following elements:
* Be based on human rights principles which define the objectives of the strategy;
* Formulate policies and corresponding ‘right to health’ indicators and benchmarks;
* Identify the resources available to obtain the defined objectives; and
* Identify the most cost-effective way of using those resources.
The Committee recommends the adoption of a framework law to implement the national strategy. The recommended law would include the following elements:
Provisions on the targets to be achieved; and the time-frame for their achievement;
* The means by which benchmarks could be achieved.
* The intended collaboration with civil society, including health experts, private sector and international organisations;
* Institutional responsibility for the implementation (i.e, who bears the responsibility for what parts); and
* Recourse procedures for failures of implementation.
Remedies and accountability
The Committee has become increasingly concerned with access to remedies at the national level. Remedies are some form of recognition or compensation for the wrong caused by a government act or omission. The Committee states that, “All victims of violations (of the right to health) should be entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition. (Reproduced selectively from General Comments No.14 – The Article to the Highest Attainable Standard of Health (Article 12 of the ICESCR).
According to some reports, the government expenditure on health is less than 2 percent of GDP. This is insufficient, according to health experts, and the allocation needs to be increased. While academics have been clamouring for a minimum allocation of 6 percent of GDP for education, a gradual increase in that direction for the health sector too has to be canvassed.
If adequate resources by way of an increase in the number of medical personnel and medical equipment are not provided by the Government, the loadable objectives of the public health system will not be served. At the present level of functioning, the margin of error in the treatment of patients is great. Since there are no health audits in State hospitals, the inadequacies in the system remain hidden and can escape the eye of administrators and concerned citizens. The need of the hour is, therefore, to place the health sector high on the priority list, notwithstanding the demands of the economy.
While Sri Lanka currently has the best health indicators in the region and has controlled communicable diseases, unhealthy lifestyle changes are on the rise. Thanks to the longer lifespans, Sri Lanka’s elderly population is increasing leading to a higher number of chronic diseases such as heart disease, cancer and diabetes.
At present, the Government treats diseases when they arise, but we need to screen people with hypertension and diabetes early to start treatment and recommend lifestyle changes to avoid complications. The goal of the new reforms is for primary health care centres to function as community centres engaged in preventive health care.
The Constitution and Health Rights
Article 25 of the UDHR states that, “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing, houses and medical care.” However, the 1978 Constitution of Sri Lanka does not accept health as a fundamental right for all its citizen. Nevertheless, as a signatory to the ICESCR, the Government is obliged to recognise “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Article 12(1)).
Draft Constitutions on Human Rights
Articles 25(1) (a), (b) and (c) of our Draft Constitution of October 1997 included the right to health for citizens. It states, “Every citizen has the right to have access to health care services including emergency medical treatment, sufficient food and water and appropriate social treatment.” If these proposals were adopted, it would be a significant development as it would elevate the right to health care services to the status of a fundamental right.
The 2000 Draft Constitution
Chapter III of the 2000 Draft Constitution deals with ‘Fundamental Rights and Freedoms’. The 2000 Draft is most explicit and includes a number of areas which are not found recognised in the 1978 Constitution as constituting ‘Rights and Freedoms’. Among the rights included in the Draft 2000 are ‘special rights of children’, protection from forced labour’ and ‘special rights’. The Special Rights have been specified in Article 25 as:
‘25(1) Every citizen has the right to have access to – (a) health care services including emergency medical treatment (b) sufficient food and water; and (c) appropriate social assistance;
(2) The State shall take reasonable legislative and other measures within its available resources with a view to achieving the progressive realisation of the rights guaranteed by paragraph (1);
(3) A person shall not be evicted from the person’s home or have the home demoralised, except or permitted by law’.
The final draft of the 2000 Constitution was presented to Parliament on August 3, 2000. It was intended to replace the 1978 Constitution. But after many days of debate, Parliament did not adopt the draft presented to that body by the President on behalf of the People’s Alliance (PA) Government.
To be continued next week
