Constitutionalization of the Right to Health: a Pathway to Improved Health Outcomes?

Contributed by: Maya Gunnarsson

Introduction

This February, the McGill Journal of Law and Health hosted a conference on Access to Care and the Constitutionalization of the Right to Health.  One panel featured two experts on the right to health and the Canadian constitution.  The general argument for the constitutionalization of health is that it will lead to better health outcomes within a society.  The panellists, however, questioned this assumption.  This article will highlight some of the challenges associated with the constitutionalization of the right to health, as well as explore how this process has played out in other countries.

What is the right to health?

The concept of health being linked to human rights first emerged internationally in the middle of the 20th century, along with the rise of international organizations such as the United Nations  and it’s related agencies. The preamble of the World Health Organization’s constitution, which came into force in 1948, declares:

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being […].

Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.

Article 25 of the Universal Declaration of Human Rights (1948) states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family.”  Since then, this right has been reinforced internationally through various international treaties and declarations, such as the International Covenant on Economic, Social, and Cultural Rights. Continue reading “Constitutionalization of the Right to Health: a Pathway to Improved Health Outcomes?”

Omni May Not Include All: Case Comment on Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC

Contributed by Loïc Welch

Introduction

“The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively” (para 96)

The Charter of Rights and Freedoms guarantees that every Canadian has a fundamental right to life, liberty, and security. Moreover, as stated by Dr. Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization, “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

In Canada, the Crown has recognized and affirmed Indigenous rights, and has a duty to consult whenever governmental action may adversely affect these rights. However, what triggers this duty is being hotly disputed in the courts, as many cases have made their way to the Supreme Court of Canada in recent years. Continue reading “Omni May Not Include All: Case Comment on Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC”