MODULE 14 (continued)

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Primary health care-an element of the states’ obligations

The Maastricht Guideline No. 6 (See Module 3) affirms that "the failure of States to provide primary health care to those in need may amount to a violation" of the obligation of implementation.  Consistent with the obligation to guarantee minimum levels of subsistence to the population (CESCR General Comment 3), WHO also argues that "there is a health baseline below which no individuals in any country should find themselves."27 The Declaration of Alma-Ata identifies primary health care (PHC) as the key to fulfilling such an obligation, as it is essential for the attainment of a "level of health that will permit [all people] to lead a socially and economically productive life" (para. 5).  PHC "constitutes the first element of a continuing health care process" and is described as "the central function and main focus" of the country’s health system and an integral part of "the overall social and economic development of the community" (para. 6).  The declaration calls on all governments to formulate national policies, strategies and plans of action to guarantee PHC for all (para. 8).  According to PAHO, even if PHC cannot be the basis of a human right that can be demanded individually, "it may be the foundation for outlining the content of the government’s obligation."28 The Declaration of Alma-Ata describes PHC as including at least:

Education concerning prevailing health problems and the methods of preventing and controlling them; promotion of food supply and proper nutrition; an adequate supply of safe water and basic sanitation; maternal and child health care, including family planning; immunization against the major infectious diseases; prevention and control of locally endemic diseases; appropriate treatment of common diseases and injuries; and provision of essential drugs. (para. 8[3])

The legal authority for considering that primary health care is an element of state obligations can be found in article 24(2)(b) of the CRC; article 10(2)(a) of the Protocol of San Salvador; ILO Convention No. 169 on Indigenous Peoples, articles 25(2) and 25(3); and the Declaration of Alma-Ata.29 As seen above, the Declaration establishes the major lines of a health-care system based on primary health care.  In addition, primary health care is among the commitments in the Program of Action from the Cairo International Conference on Population and Development, and the Declaration and Program of Action of the World Summit on Social Development.  In addition, under article 12, the ICESCR has implicitly recognized primary health care as an expression of state obligation.  In guideline 2 for the submission of reports, states parties are asked to state whether primary health care is part of the country’s health policy, and if so, to specify the measures taken in this respect.

The Right to Emergency Medical Care
A South African Case

A case decided by the Constitutional Court of South Africa in November 1997 (Soobramoney v. Minister of Health [Kwazulu-Natal]) dealt with the interpretation of the rights to emergency health care and to life contained in the South African Constitution. Soobramoney, who was suffering from chronic renal failure, sought dialysis treatment from a state hospital in Durban. The hospital had been forced to adopt a set of guidelines for dialysis treatment because of its limited facilities. Only those who could be treated through dialysis had automatic access to the treatment. The patient was suffering from chronic renal failure and his condition was irreversible; his life could be prolonged by regular dialysis, but his condition could not be treated or remedied. In addition, patients who were suffering from chronic renal failure and who were eligible for a kidney transplant also had limited access to the dialysis facilities. However, Soobramoney was not eligible for a transplant because of a heart condition. Thus, he did not come within the hospital's guidelines, and due to the hospital's limited resources his request for treatment was turned down.

Soobramoney based his legal challenge on two provisions of the Constitution: section 27(3), which says "no one may be refused emergency medical treatment," and section 11, which guarantees that "everyone has the right to life." The Constitutional Court had to decide: Did the right to emergency medical care include a claim to ongoing treatment of chronic illnesses that would prolong life? The court found that the right to emergency medical care did not apply in this particular situation. The plaintiff's situation was not an emergency which called for immediate remedial treatment, and thus it did not come within the scope of the constitutional provision, observed the court. As Justice Sachs noted, the right to emergency care provided reassurance to the public that accident and emergency departments would be available to deal with unforeseeable catastrophes that could befall any person, at any place and at any time.

There were many more patients who were suffering from chronic renal failure than there were dialysis machines to treat them. In this context, the court said, it was legitimate to adopt guidelines to determine who should receive treatment. It agreed that by using the dialysis machines in accordance with the guidelines, more patients were benefited than would be the case if they were used to keep persons with chronic renal failure alive. The outcome of the treatment would also be more beneficial, because it was being directed at curing patients and not simply at maintaining them in a chronically ill condition. Even in the most advanced countries access to life-prolonging treatment is rationed. Providing all persons with chronic renal failure with dialysis treatment would make substantial inroads into the health budget. The provincial administration had to make difficult choices with regard to the resources that should be spent on health care and how they should be spent. Where the decision was rational and taken in good faith the Court would not intervene. Agonizing decisions have sometimes to be made on how a limited budget could be stretched to benefit the maximum number of patients, the court said.

Health-care rights by their very nature have to be approached from a framework that is based on human interdependence. Where rights are shared, an appropriate balance needs to be struck between equally valid entitlements and competing rights bearers. (Soobramoney died soon after the judgment of the Constitutional Court was issued.)

Other elements of states’ obligations under the right to health

In addition to the fundamental principle of nondiscrimination, other important elements of state obligation under the right to health are:

Accessibility: The ICESCR argues, with respect to specific groups, that the right to physical and mental health "also implies the right to have access to, and to benefit from, those medical and social services . . . which enable persons with disabilities to become independent, prevent further disabilities and support their social integration."30 Accessibility suggests several areas of intervention to guarantee enjoyment of the right-financial, geographic and cultural.

Participation: According to the Declaration of Alma-Ata, persons have the right and duty to participate individually and collectively in the planning and implementation of their own health care.31 At the same time, the preamble to the WHO Constitution accords fundamental importance to attaining health.  Primary health care not only requires, but promotes, through education in health, the participation of the community and individuals in "the planning, organization, operation, and monitoring"32 of the system.

Basic health care services free of charge: The principle of free public health care is a subject of debate.  While there is no legal rule that makes free services compulsory (as is the case with the right to education), there are grounds for considering that it forms part of states’ obligations.  The Declaration on Social Progress and Development establishes that one of the goals for attaining the objectives of the declaration is "the provision of free health services to the whole population."  CEDAW provides that free maternal and child health services shall be available as needed (art. 12[2]).33

War, Conflicts and Health

"According to the UN Department for Disarmament Affairs, there have been around 150 armed conflicts in the third world since 1945. Twenty million people died and at least three times as many were injured. UNHCR recorded 2.5 million war refugees in 1970, 8.3 million in 1980, and in 1997 about 15 million. If the internally displaced are included, the total doubles. Mortality rates during the acute rate of displacement are up to 60 times the expected rates.

"Over the past two or three decades, researchers and clinicians have summarised what they saw and heard in survivors of extreme trauma under titles like concentration-camp-syndrome, war neurosis, combat exhaustion syndrome, survivor syndrome and currently post-traumatic stress disorder (PTSD).

"War victims endure multiple traumas: physical privation, injury, torture, incarceration, witnessing torture or massacres and the death of close family members. There are also background factors, not least the infectious diseases which flourish in the conditions created by war and are particularly lethal for children. In Uganda, the AIDS virus has behaved like a terrorising army in its own right, and war-related social breakdown is hastening its spread.

"War or civil conflict can be devastating for cultural and social forms. In Uganda and Mozambique huge numbers of destitute and terrorised peoples are haunted by the memories of the relatives they left unburied, and the supernatural sanctions which will follow these lapses of mourning and burial rituals." 35

Implementation Mechanisms

International mechanisms

Mechanisms derived from human rights treaties

The UN system has several established forums for monitoring the right to health:

  • CESCR:  States parties have the obligation to submit a report once every five years on the measures taken to implement the right to health.  The CESCR makes reference to four main aspects to be taken into account: the health situation, accessibility of services and health measures, the situation of specific sectors, and the progressive nature of the measures and effects.  The CESCR’s reporting guidelines34 refer specifically to preparation of reports related to the right to health.  In addition to the information on general principles, some of the most important considerations articulated by the CESCR refer to the ratio of public services/private sectors; situation of the rural population; situation of women; situation of HIV/AIDS and preventive policies; health in prisons; drug use and abuse; and effects of traditional health practices (with special attention to the possible violation of cultural rights).

States’ attitudes towards and methodologies for submission of the reports vary widely.  A broad range of issues must be addressed, and because the CESCR did not require a stricter methodology, reports vary in quality and approach.  In addition, the use of statistical indicators in reports poses two problems: one relates to reliability, the other to the fact that the failure to contextualize indicators means it is difficult to identify causes of possible stagnation.  Scant attention is given in reports to issues as important as mental health.  Furthermore, more reliable and "standardized" mechanisms of design are needed to evaluate progress over time (with respect to both the health situation and the adoption of measures).  One important factor in the work to date of the committee is the limited (though increasing) willingness of WHO to participate actively before the CESCR; to date it has submitted two reports at its own initiative.

  • International Convention on the Elimination of All Forms of Racial Discrimination: Article 9 establishes the obligation to submit, every two years, reports on the measures adopted to eliminate and/or prevent racial discrimination in the enjoyment of the rights set forth in the ICERD, including the right to health.
  • CEDAW:  There is an obligation to submit a report every four years (art. 18).  Some of the areas addressed are: the health conditions of women; reproductive health and maternal and child care; traditional practices; information on abortion (legal status, practices, effects of illegality); and the status of women with respect to HIV/AIDS.
  • CRC:  Submission of a report is required once every five years (art. 44).

Other mechanisms

In addition, WHO has its own mechanisms for requiring submission of reports, as do its regional offices.  There is a certain reciprocity between the WHO and UN systems for submitting reports, considering the consultative status of WHO before the UN system and the fact that WHO has undertaken to monitor the provisions of treaties that set forth the right to health.  According to the WHO Constitution, states parties are to submit an annual report on the measures taken to ensure certain levels of health to the entire population (art. 61); an annual report on the measures adopted to implement the WHO recommendations, and on the application of the provisions of the instruments that protect the right to health that have been ratified (art. 62); the submission of all health-related statutes, regulations, and statistical information, especially regarding health-related measures (art. 63); the submission of statistical and epidemiological reports (art. 64); and the forwarding of any additional information to the executive committee of WHO (art. 65).

Strategies for Furthering the Right to Health
A Case Study from Venezuela

Acción Ciudadana Contra el SIDA (ACCSI), an organization addressing issues of HIV/AIDS and human rights in Venezuela, has been developing a legal strategy to make the state adopt a policy regarding the provision of anti-viral drugs and comprehensive drugs to HIV/AIDS patients.40 To this end, three writ petitions41 have been brought against the Ministry of Health before the Supreme Court of Justice (CSJ). These petitions allege violations of the rights to life, health, personal liberty and security and nondiscrimination, and of the right to benefit from science and technology, all stemming from the systematic failure to provide the persons bringing the action with health care.

Some of the grounds articulated were that the distribution of essential drugs is one of the obligations of the state in relation to the right to health. Access to antiviral treatment is of vital importance, as is the supply of medicines to combat opportunistic diseases. The right to life is a fundamental right, linked to the right to health. The lack of access to treatment violates the right to benefit from scientific progress. Social assistance programs, consistent with the Constitution, should cover those who are outside the social security system.

The first judgment of the CSJ accorded legal recognition to the connection between the rights to life and access to the scientific advances and the right to health.42 It declared that writ (amparo action) admissible in part, affirming the violation of the rights to the protection of health, to life, and to scientific advances by the entity against which the action was filed. In addition, the right to health (by now partly developed) is conceptualized based on positive obligations of the state beyond prevention and assistance. It is not sufficient to attend to the opportunistic disease, but the virus must be treated, drawing on available advances, until a cure is found. Following this line of argument, the court ordered the Ministry of Health to provide drugs on a regular and periodic basis, to perform or cover the costs of the specialized exams, to supply drugs to treat the opportunistic diseases, and to develop a policy of providing information, treatment, and comprehensive medical care.

Committees of persons filing the writ petition (amparo claims) were formed to follow up on these judicial decisions and have led the constitutional courts to make a pronouncement on the same issues. Through political pressure, these committees have succeeded in having the judgments implemented swiftly. In addition, they monitor the purchases and deliveries of the drugs, and give workshops to empower persons who may bring such actions in the future.

The persons affected on an individual basis must file the writ petition (amparo action). Where necessary their names can be kept confidential. The ten persons who filed the first petition remained anonymous. Recently, the strategy has been refined so as to file regional writ petitions (amparo actions), to distribute the budgetary burden and have patients obtain their services and drugs in their localities.

Finally, in an unprecedented decision, the CSJ recognized the complaint on behalf of diffuse interests. It would benefit the entire class of persons affected by HIV/AIDS who do not have the means to obtain treatment. It represents an important step towards the justiciability of ESC rights in the Venezuelan legal order.

Domestic mechanisms

The possibility of implementing the right to health through domestic judicial systems, either by invoking international instruments or by making reference to the constitution, has been explored in a relatively large number of countries.36  In general, the courts tend to find ways not to base their decisions on the right to health.  There have been some positive decisions regarding justiciability based on the constitutional recognition of the right.  In 1993, the Supreme Court of the Philippines required that logging permits be revoked by invoking constitutional principles 15 and 16, which set forth the rights to health and to a healthy environment, underscoring that ESC rights are accorded the same priority as civil and political rights.37 The Supreme Court of India established as "an essential part of the obligations" of the state to provide adequate medical services, drawing a link between the lack of adequate emergency treatment and guaranteeing the right to life.38  The Constitutional Court of South Africa made reference to this same judgment, but decided it did not apply to the case before it, as the plaintiff suffered from a chronic disease, and so apparently would not apply the constitutional provision referring to the obligation to provide emergency assistance.39

Furthermore, the progressive nature of the right to health requires that one explore the mechanisms of administrative law, whose effectiveness and methodology will depend on the specific characteristics of the domestic order of each state.  The existence of a tiered health system and an identifiable administrative order are favorable to success in implementing these mechanisms.

Finally, the broad scope of protection offered by the recurso de amparo (a special remedy to seek an injunction of imminent state action alleged to violate one’s constitutional rights), recognized by a large number of countries, is a means by which the programmatic concept of the right is giving way to a directly enforceable right, subjective in nature (see case study above).

Challenges and Strategies for Furthering the Right to Health

The following are suggestions for initiatives activists can pursue to promote the right to health:

  • Intervene with supervisory organs: Take advantage of the gradual opening of supervisory organs (e.g., the ICESCR) to the participation of nongovernmental actors so as to make use of space available through existing channels.
  • Define the content of the right: Work towards a more precise definition of the contents of the right (see Module 8).
  • Work with WHO: Explore possible channels for furthering the involvement of WHO with a view to its (a) effective participation in the system of international supervision; (b) involvement in monitoring of local public policies that affect observance of the right to health; and (c) nonparticipation in reform programs that sponsor the dismantling of the public health structure.
  • Pursue legislative recognition of the right to health: Efforts along these lines should be focused not only on constitutional recognition, but on all levels of regulation of health matters, from an overall perspective as well as with respect to protection for specific groups (see case study, below).
  • Pursue litigation: Develop national and international strategies and explore the possibili­ties of litigating in the regional systems.
  • Challenge reduction of the role of the state: In the context of economic globalization and the "opening of markets," there is major pressure to reduce the scope of authority of the state and thus its obligations.  These trends are to be found in both the legislative and ex­ecutive branches, and especially affect social protection policies.
  • Encourage systematic implementation of the right to health: The right to health requires the various branches of government to adopt measures for the systematic and program­matic implementation of the structure of protection.

Author: The author of this module is Enrique González



27. Ibid., 31.

28. The Right to Health in the Americas, 548, note 11 above.

29.  "[E]xpressions such as ‘the countries shall’ or ‘the countries shall collaborate in . . .’"  This verb tense reflects the commitment voluntarily contracted by the countries to attain the goal of health for all by the year 2000 based on primary health care, as spelled out in the Declaration of Alma-Ata.  In no way should this be interpreted as imposing certain actions on the countries by a supranational body" (WHO, Global Strategy for Health for All by the Year 2000, Geneva, 1981), 18

30. CESCR, General Comment 5, para. 34.

31. Declaration of Alma-Ata, Section 6, para. 7.

32. Ibid., para. 7(4); see also CESCR, Reporting Guidelines, Guiding Principle No. 7, Annual Report of the CESCR on its fifth Session, UN Doc. E/1991/23, Annex IV (1991) (regarding submission of reports and requesting information on the measures taken to maximize community participation in primary health care).

33. Referring to the accessibility of basic health services, the UNDP affirms that "the free supply of basic services offers greater equality of opportunity and addresses the responsibility of all governments to ensure the basic human rights of their respective citizens." (UNDP, Human Development Report 1991 (Oxford University Press, 1991).  At the same time, PAHO, when referring to the responsibility of the state for attaining health goals, notes that "the state should provide free of charge the services that benefit the country in general" (PAHO, Apoyo económico a las estrategias nacionales de salud para todos [Washington, D.C., 1989], 81-82).

34.  See note 23 above.

35. Derek Summerfield, "The Psychosocial Effects of Conflicts in the Third World," in Development for Health, note 1 above.

36. For a more extensive discussion, see Toebes, op. cit., 190-231.

37. "For they are assumed to exist from the inception of humankind." Case of Oposa v. DENR, cited in Toebes, op. cit., 220.

38. Case of Pashim Banga Khet Mazdoor Samity v. State of West Bengal, cited in Toebes, op. cit., 214.

39. Toebes, op. cit., 229.  The Constitution of South Africa establishes that the courts "must" take account of international law and "may" take account of foreign law; article 39(1)(b) and (c) of the Bill of Rights.

40. The first actions were focused on the Seguro Social agency, leading to amparo actions to win recognition of the right to social security benefits.  After several favorable judicial decisions, Seguro Social made a commitment to guarantee access to treatment for all persons covered by the Seguro Social who have HIV/AIDS.

41.  The first amparo was brought in 1998, and the second in January 1999, with a total of 138 moving parties.  The judgment in the third amparo, which covers 172 persons, was recently the subject of a hearing of the Constitutional Court.

42Amparo action against the Ministry of Health, Supreme Court of Justice, Republic of Venezuela, June 9, 1998.  See:

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