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The rule of law as a social determinant of health (Part 2)

KEY DINGAKE
Gaborone High Court. PIC. MORERI SEJAKGOMO
Universal health coverage (UHC) is a target under the SDGs, but also serves as a platform that brings together diverse programmes and actions for health and development.

The realisation of UHC and the SDGs require collaborative partnerships across sectors of government, diverse stakeholders and communities to address the many seemingly intractable health and development challenges.

Appropriate legal frameworks are an essential tool in tackling these challenges and underpin efforts to advance health in the SDGs.

The rule of law affects health in many ways. It is fundamental to how policy-makers organise and manage health systems. Laws codify and allocate responsibilities, set standards, and authorise and constrain action. They are extremely important as a tool of cooperation and coordination. In an era when markets influence health behaviour and access to services, law can be used to regulate markets, banning dangerous products to mandating government procurement practices that give incentives to producers to make healthier products. Passing a law can also be a good way to convey information, to alert people to health risks, and influence social norms about behaviour.

 

Strengthening Legal Frameworks

States must pay attention to reviewing their laws from time to time so that they keep pace with social development or contemporary challenges. Countries vary greatly in terms of health needs and priorities, as well as legal systems and political, economic, social, cultural and historical circumstances.

This variation is reflected in how countries use law to advance health. Legal frameworks and strengthening efforts, therefore, must be developed to be appropriate to context. While specific priorities vary across countries, there are certain core areas of public health in which modern legal frameworks are needed to advance health in the SDGs.

 

Legal Frameworks are needed to address core areas of Public Health

To realise the right to health, we need laws that are consistent with international human rights law to ensure access to affordable, safe and quality health services; to prevent and manage public health risk; and to promote action on social determinants of health. In many countries, however, laws are not in place or are not consistent with contemporary understanding and evidence.

Protection of rights within public health legislation has generally not been prioritised as much as flexibility and alignment in responding to new and emerging public health risks. Far too many countries have ratified international human rights instruments but have not domesticated same or operationalised them in any manner.

At the international level it would seem that States prefer guidelines, resolutions or declarations, otherwise called soft law, than treaties because these are less rigid and are easier to amend, and States do not feel obligated to carry out the declarations as compared to treaties.

 

Effective legal frameworks need sound processes

In order to be effective laws must involve communities and key stakeholders. No law intended to benefit a particular sector or constituency should be done without their input. In many countries, legislation may be drafted without adequate definition of policy goals, generation and use of evidence, or stakeholder consultation. It is all too common to come across instances of foreign legal transplants that have no relevance to local circumstances.

There is nothing wrong with borrowing good provision from other jurisdictions as long as such provisions are necessary, relevant and adaptable to local situations. Further, the immediate rollout of legal frameworks and the ongoing administration of law are often not well planned and resourced.

The rule of law is increasingly understood as a foundational determinant of health; one which underlies other socioeconomic, political, and cultural factors associated with health outcomes.   Under the rule of law, no individual, entity, or government is above the law. All players in the public sector space and beyond are obligated to respect the law and are accountable to the law that is enforced by an independent and impartial judiciary. Indeed SDG16 links the rule of law to development, and without the rule of law, there can be no development or better health outcomes.

The law and justice sector plays a critical, though often unacknowledged, role in every health challenge. Universal health coverage (UHC) systems can only be established, financed, and monitored through processes and structures established by law. Good health governance systems also require civil society participation, and government transparency and accountability.

Enabling legal environments are essential to reduce the burden of communicable and non-communicable diseases, as well as injuries, and to provide care, treatment, and support to people affected. States need legal powers and the human resource capacity to regulate production, marketing, and sales of tobacco and other unhealthy products, and to resist spurious legal challenges in national and international courts and tribunals.

A functioning criminal justice sector is essential to stem the flood of falsified and substandard medicines, especially in Africa and other developing countries. It is also critical that the legal sector understands the international legal obligations to protect intellectual property, in order to ensure access to affordable medicines. Legal capacity to understand trade and investment treaties is vital for national regulations of the importation of unhealthy foods and beverages.

Public health law capacity – broadly understood – is critical to achieving 21st century health goals. The scope and depth of public health law capacity needed to achieve these goals is still poorly understood. Few law school graduates have the multidisciplinary perspective and capacity to support government action to achieve these goals.

Expanded legal education and partnerships between faculties of law, medicine, economics, governance, business and other sectors are urgently needed to support resilient systems for sustainable health. Civil society networks, including advocates for civil and political rights, must be engaged to ensure robust public debates on the allocation of resources for health. Long-term capacity building plans are needed, as well as urgent short-term assistance. Enabling legal environments and public health law capacity must be acknowledged as building blocks of efficient health systems.

Access to justice, whether to courts, alternative dispute resolution mechanisms, or traditional justice systems can improve access to health services for girls and women and other vulnerable and marginalised populations.

Court action can challenge overly broad legislation on constitutional grounds, such as inappropriate public health measures to address infectious diseases. Court action may also advance group health rights, such as for HIV-positive pregnant women who need medication to prevent HIV transmission to their infants at birth. Conversely, competent and affordable legal advice and representation may help vulnerable groups fight discrimination. Key populations most at risk of HIV infection are one such group.

As court action often goes hand in hand with social mobilisation, respect for civil rights is imperative. The global revolution in drug pricing and access to generic medication began in 2000 in South Africa, and was defended by civil society organisations of patients, communities, and legal activists. When global pharmaceutical corporations challenged the government policy, the court permitted civil society organisations to join the action in support of the government policy.

Mass social mobilisation resulted in intense global media coverage, and the pharmaceutical corporations dropped the case. As a result, millions of people across Africa and around the world now have access to more affordable essential medicines for HIV and other diseases.

Effective laws and an enabling legal environment are as critical to a healthy society as clean water. Every public health challenge – from infectious and non-communicable diseases to injuries, from mental illness to universal health coverage – has a legal component. Despite this, in many countries, legislation, policies, and practise are antiquated, contrary to human rights obligations, and hostile to public health goals, threatening the achievements of SDG health targets in those countries and regions.

 

What are the social determinants of health?

According to the World Health Organization (WHO), the social determinants of health are the conditions in

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which people are born, grow, live, work and age. These circumstances are shaped by the distribution of money, power, and resources at global, national, and local levels. Social determinants arguably play the largest role in determining the public’s health.

Our public health is determined by the policies and practices in place in our homes, schools, workplaces, and communities. Many of these determinants are difficult, if not altogether impossible, to control, such as economic standing, genetic predispositions, and the customs, traditions, norms, and attitudes of the community in which we are raised.

By developing policies that have a wide-reaching impact and improve both social and economic aspects of communities, social determinants of the public’s health can have a positive impact, as well.

There is a great deal of research on the social determinants of health. Most of it points to three overarching factors:

Income inequality. Once a country has reached the point of development where most deaths come not from infectious diseases (tuberculosis, cholera, malaria, flu, pneumonia, etc.), but from chronic diseases (heart disease, diabetes, cancer) the economic and social equality within the society is a greater determinant of death rates and average lifespan than the country’s position with regard to others. The United States, for instance, lags behind Japan, Sweden, Canada, and many other less affluent countries in the life expectancy of its citizens. The difference seems to be the size of the gap between the most and least affluent segments of the society.

Social connectedness. Many studies indicate the sense of “belonging” – whether to a large extended family, a network of friends, a social or volunteer organisation, or a faith community – is related to longer life and better health, as well as to community participation.

Sense of personal or collective efficacy. This refers to people’s sense of control over their lives. People with a higher sense or stronger personal sense of efficacy tend to live longer, maintain better health, and participate more vigorously in civic life.

Other examples of social determinants of health include armed conflict, employment, environment, finance, human rights, poverty, sanitation, social policies, trade, and water supply.

 

Structural determinants

Structural determinants are the root causes of health inequities, because they shape the quality of the social determinants of health that people experience in their neighbourhoods and communities. Structural determinants include the governing process, economic and social policies that affect pay, working conditions, housing, and education.  The structural determinants affect whether the resources necessary for health are distributed equally in society, or whether they are unjustly distributed according to race, gender, social class, geography, sexual identity, or other socially defined group of people.

 

Good governance and health

Good governance and policy coherence is a prerequisite of good quality health care to contribute to policy coherence across government in order to address the social determinants of health equity, the health sector needs to understand the imperatives of other sectors and form common understanding of health, its determinants, and broader societal well-being or quality of life. This requires political will, as well as innovative solutions and structures that build channels for dialogue and decision-making across the entire system of government.

 

In practice, this means engaging in several actions including:

• Supporting and implementing workshops for improving the skills of government policy-makers, program leaders, and health provider groups to ensure coherence across sectors in policies, services, and programs responding to disadvantaged groups’ needs; and

• Supporting dissemination of information on intersectoral governance for determinants of health equity.

 

The law can be determinative of health in a number of ways including the following:

The law can be used to design and perpetuate social conditions that can have terrible physical, mental, and emotional effects on individuals and populations. One obvious example in this category is the “separate but equal” constitutional doctrine that allowed racial segregation in housing, health care, education, employment, transportation, and more, in apartheid South Africa.

Laws can be determinative of health through their under-enforcement. For example, a perfectly good set of housing laws or policies aimed at keeping housing units safe, clean, and quiet are of little value to individual and group health if there is neither the will nor the resources to enforce them. Substandard housing conditions, including the presence of rodents, exposed wires, and insufficient heat all of which are common among low-income housing units-can cause or exacerbate asthma, skin rashes, fires and common illnesses. While their consequences can be treated medically, the causes require robust enforcement of existing laws.

The Limits of the Law

Much as the law is an essential tool to engender better health outcomes we should be careful not to exaggerate its importance. Laws can be a force for good or bad. For instance in Africa, with respect to HIV we have an epidemic of bad laws, such as laws that discriminate on the basis of sexual orientation.

 

Conclusion

There can be no doubt that law has the capacity to facilitate quality in health care, in multi faceted settings. However, it needs to be emphasised that while the law may provide a framework and facilitate quality in health care, guide practice and set boundaries, the expectations made of the law must not be unrealistic. Self-evidently, it is impossible to legislate comprehensively for all health related situations. Most people would agree that there are matters which are not amenable to straightforward guidance nor to straightforward solutions because they give rise to acute moral and ethical dilemmas.

In summary it is fair to say different countries will find their own pathway to realising the right to health having regard to their own circumstances. It is therefore logical to assume that priorities for law reform may not be uniform and would emerge incrementally as countries identify particular problems relating to their legal frameworks and how it impacts on better health outcomes. In my considered opinion, drawing on my experience, law reform is a complicated matter as it requires good governance practices, political will by policy makers and resilient and capable health systems. In countries, with weak governance systems and therefore fragile and weak institutions, a common feature of many developing countries; law reform can be very complicated and frustrating. I have seen it in Southern Africa where decades after drafting the model law on HIV/AIDS many countries that in principle support the laws have yet to implement it. Research can inform law reform, but only if there is closer dialogue between researches and policy makers. I am of the considered view that dialogue between researchers and policy markers, on sustainable basis, may result in better targeted research with better chance of practical application.

Having regard to all that I have said above, it seems to me that they may well be research opportunities for Universities such JCU to pursue. I would conclude by encouraging JCU to engage in the scientific study of the intersection of law and health and make its contribution to the global effort to address the theme of the rule of law as a social determinant for health by empirically studying the ways in which law interacts with social conditions and how best we could use law to advance better health outcomes. I am certain that not only would Australia benefit from this academic pursuit but the rest of the Pacific countries, including PNG, would similarly benefit.

*Dingake is Judge of the Supreme & National Courts of Papua New Guinea, co-chair of the African Think-Tank of HIV, Health and Social Justice and President of the Africa Judges Forum of HIV, Human Rights, and the Law



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