Research over the past few decades has established that law helps structure, shape and influence social conditions that we describe as "social determinants" and acts as a mechanism to realise the right to health. Social determinants, as we shall discuss in due course refers to broad socio-economic, cultural and environmental conditions such as living and working conditions.
Whilst it is readily conceded that the social production of health is a complex phenomenon and is not susceptible to casual inferences, it cannot be disputed that health is often a function of how law interacts with social conditions – and that social arrangements account for a significant portion of population health.
In this paper I offer my thoughts on the rule of law as a social determinant for health. I start from the premise that health is a fundamental human right. In international law, the right to health is understood as a “state of complete physical, mental and social well being and not merely the absence of disease or infirmity” . The right to health provides an overarching standard to guide the actions of governments as they use law to improve their health systems. At the heart of the right to health are fundamental principles, such as: availability, acceptability and quality.
Laws are an essential part of public health. By law I mean the Constitution, statutes, regulations that express public policy as well as the institutions set up to implement those laws. Properly thought out and crafted laws can help in building resilient and effective health systems, ensure safe workplaces, safe drinking water, nutritious foods, effective drugs and vaccines and dedicated health professionals.
On the contrary bad laws that are poorly conceived and crafted can promote prejudice, harm marginalized groups and entrench stigma and discrimination. Studies have shown that law can be a very important tool to promote better health outcomes, provided these are laws that are inspired by fundamental human rights. However, experience and history has taught us that laws can be out-of-date, developed with limited regard to relevant evidence and knowledge, not coherent with each other, or ineffectively implemented or enforced. Laws can also be unjust in the sense that they may be oppressive, irrational, unreasonable, unfair and in defiance of fundamental human rights, by expression or in effect
Laws that are in defiance of human rights or are out of date may lead to situations in which the law does not respond appropriately to contemporary public health challenges and risks, resulting in inconsistencies between domestic laws and international commitments. Legal frameworks usually consist of multiple layers, such as legislation, regulation, decrees and implementing instructions that are not properly aligned or harmonized. Quite often there is a problem of implementation. It cannot be contested that good laws are of no use if not implemented.
In some jurisdictions we have an epidemic of bad laws. An example of bad laws includes laws that, in an over board manner, criminalizes HIV transmission; laws that do not adequately protect health professionals who expose poor standards in their work spaces. In the UK, in 1990s, there was a heated debate regarding whistleblowing in the NHS following the case of Grahame Pink, a nurse who blew the whistle on what she regarded as poor standards of care of elderly patients in a Stockport hospital. Today the Public Interest Disclosure Act 1998 provides certain legislative safeguards for those who blow the whistle upon poor standards of care.
The courts are part of a number of institutions that are entrusted with enforcement of laws. The legal enforcement of public health laws can take multiple forms, ranging from orders to provide specific medicine or treatment to an individual or group, to broad structural decisions declaring a particular state of affairs unconstitutional as it happened in the case of Gift Mwale and the Minister of Health cases, in Botswana and South Africa respectively. In 1991, Colombia enacted a new Constitution followed by a series of reforms intended to extend health insurance to all citizens. The 1991 Constitution enshrined economic and social rights, establishing a Constitutional Court, to oversee the new constitutional jurisdiction. This gave individuals the right, when economic and civil rights were not being met, to take the government to court. This constitutional dispensation gave citizens an avenue to ensure that the government actively provides for their constitutional rights, including rights to health care.
Human Rights Framework
States are legally obliged by international law to respect, protect and fulfil the right to health. The obligation to respect the right to health requires States, inter alia: to refrain from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and irregular immigrants, to preventive, curative and palliative health services; to abstain from enforcing discriminatory practices as State policy; and to abstain from imposing discriminatory practices relating to people’s health status and needs.
The obligation to protect includes, inter alia, the duties of States to adopt legislation or to take other measures ensuring equal access to health care and health-related services provided by third parties. States should also ensure that third parties do not limit people’s access to health-related information and services.
The obligation to fulfil requires States, inter alia, to give sufficient recognition to the right to health in national legal systems, preferably by way of legislative implementation, and to adopt a national health policy with a detailed plan for realizing the right to health. This obligation also requires the State to implement positive measures, including allocation of budgets and financial resources, that enable and assist
The right to health is both dependent on and essential for the attainment of other human rights. The rights to human dignity, information, work, food, education and shelter; the right to physical and mental integrity; the right to live free from violence: each of these also plays a determinative role in the realization of the right to health and thus in building an enabling environment for health.
The right to health includes both freedoms and entitlements. Freedoms include the right to control bodily integrity, including the right to be free from non-consensual medical treatment and experimentation. Entitlements include the right to a system of health protection that provides equality of opportunity for people to enjoy the highest attainable standard of health, as well as more specific entitlements such as the rights to maternal, child and reproductive health; treatment and control of diseases, including access to essential medicines; and access to safe and potable water.
A human rights-based approach to health is critical. It must, in order to be effective, be people-centred. A human rights based approach requires that the root causes of ill health and the impediments to enjoyment of health and well-being be remedied, for example, by an inclusive education, access to information and gender equality, among others. A human rights-based approach also requires delivery of health care through efficient systems, and in a manner, compatible with the norms and standards of human rights. It also requires attention to gender-and age-sensitive participation in health decision-making, including at the community level.
It seems plain from the above that it is impossible to improve health if fundamental human rights are dishonoured. A human rights based approach is necessary to realise the right to health for a number of reasons namely:
It helps States meet their obligations under international human rights law.
It offers a principled basis for universal access to health services, emphasizing that interventions must be non-discriminatory, transparent and participatory, and founded on strong public accountability.
It requires focus on both the empowerment of rights-holders and the responsibilities of duty-bearers (States, policy-makers, health-care provides, etc.).
It aims to enhance the capacity of duty-bearers at local, district and national levels to carry out their obligations to respect, protect and fulfil human rights in transparent, effective and accountable ways.
It requires full and informed participation by all those affected by any action or policy.
It builds true sustainability into health systems and towards improving health outcomes by requiring that the underlying determinants of health be tackled, including through the realization of health-enabling rights.
Recent events demonstrate how law may be used to control the spread of diseases. For example, the 2005 International Health Regulations (IHR) is the governing instrument for providing a global public health with respect to international spread of diseases. On 8th of August, 2014, WHO’s Director General declared the West Africa Ebola epidemic a public health emergency of International concern and issued temporary recommendations for actions to reduce the international spread of Ebola and avoid unnecessary interference with international traffic. At the same time different countries exercised their legal powers, for good or bad including quarantines and travel restrictions.
The inspiration for human rights is usually traceable to the Universal Declaration of Human Rights. In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights, enshrining the human rights and fundamental freedoms of all individuals which serve as “the foundation of freedom, justice and peace in the world”. This was followed by national, regional and international health-related human rights declarations, some of which are listed below.
In 1966, the Internal Covenant of Economic, and Social and Cultural Rights confirmed the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. In 1979, the Convention on the Elimination of all Forms of Discrimination against Women was adopted, followed in 1990 by the Convention on the Rights of Child.
In 1981, the African Charter on Human and People’s Rights stated that “Every individual shall have the right to enjoy the best attainable state of physical and mental health”.
In 1994, International Conference on Population and Development Programme of Action and the 1995 Beijing Declaration and Platform of Action both recognized the centrality of women’s rights, empowerment and sexual and reproductive health as central to international development and population policies.
In 2000, the UN Committee on Economic, Social and Cultural Rights elaborated on the obligations of States Parties concerning the right to the highest attainable international standards of health.
In 2015, the Committee on Rights of the Child provided an authoritative interpretation of the right to health of the child and, in 2016, similarly on the rights of adolescents.
As indicated earlier, Law can take many forms. It can also be in a form of an treaty, a Protocol or Declaration.
*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