Contributed by: Maya Gunnarsson
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.
Beyond international obligations, over half of all constitutions globally recognize a right to health today. As the concept of health as a human right has been entrenched around the world, and as countries have adopted legislation to protect this right, the question of what constitutes health arises. Does a right to health simply mean a right to access healthcare? Or is a more holistic view that addresses the various social determinants of health necessary?
The debate over what is encompassed by ‘health’ is central to the discussions on the constitutionalization of the right to health. When the right to health is offered constitutional protections, if framed as a positive right, this can mean that the government has an obligation to ensure everyone has access to the services, programs, and treatments that they require to maintain their health. If a government fails to provide access to these things, the courts can step in and order the government to do so. This is in contrast to negative rights, which protect individuals from disparate effects of governmental legislation, but do not entitle individuals to any benefits from the State.
The debate over what is encompassed by ‘health’ is central to the discussions on the constitutionalization of the right to health.
With a more limited conceptualization of health, this right could compel governments to ensure all of their citizens have access to adequate healthcare services. A more expansive understanding of health, however, could require governments to ensure that individuals have access to things such as affordable housing, drinking water safe for consumption, and/or food security. Constitutionalizing the right to health imposes burdens upon governments. Without clearly delineating what those burdens are, the interpretation of them is left to the judiciary.
The impact of constitutionalizing the right to health
Advocates of constitutionalizing the right to health argue that when the right to health is afforded constitutional protection, individuals will have better health outcomes, and that courts can be used to protect the health outcomes of the most vulnerable individuals in society. In effect, they believe that the constitutional protection of health rights will lead to better and more equitable health outcomes for society.
Opponents of the constitutionalization of the right to health, however, point to examples of countries such as Brazil, where the constitutionalization of the right to health has actually had a negative impact on the country’s overall health. They claim that providing constitutional protections to health rights leads to middle-class and wealthy individuals using the courts to ensure access to costly, non-critical treatments, which takes money away from providing care to the most vulnerable in society.
Various studies have been performed on the effectiveness of constitutionalizing the right to health in terms of increasing health outcomes, and the results have been mixed. One study, which looked at data from 144 countries over 40 years, found that the right to health has positive effects for the overall health of a population, as it ensures access to more and better health services, including medicines. Another study, which looked at 195 countries over 15 years, found that the right to health led to increased public expenditures on healthcare, but mixed results on health outcomes.
Among countries that have the right to health entrenched in their constitutions, one study identified two main ways in which this right has impacted public health. In the first method, judicial enforcement occurs primarily through individual lawsuits, resulting in specific orders for the individuals involved to receive certain treatments from the government. By contrast, the second method involves the judiciary ordering broader changes to national health policies.
Lessons from Abroad
The individualistic approach is the one that garners the most criticisms. This is because it can often lead to the reallocation of limited healthcare resources away from programs that benefit a large percentage of the population, towards the few individuals who are able to make claims through the courts. Opponents say that policy makers are in the best position to allocate healthcare funding to maximize the benefit throughout society as a whole. The judiciary in countries such as Brazil and Costa Rica have been criticized for their lack of cost-benefit ratio assessments in their judgements. The approach of Brazil’s courts has been described as “applying the right to health as a trump against rationing decisions.” Further, due to their lack of medical knowledge, judges are not always in the best position to determine if a specific treatment is necessary, high-priority, or cost-effective. Essentially, healthcare policy is complex and multi-faceted; judgements that only consider individual rights can have far-reaching unintended consequences for the wider system.
The judicial approach to the constitutionalization of the right to health in countries such as South Africa has favoured rulings directed at broader health policy, rather than individual cases. Though not without its critics, this approach has been praised for the positive impact judicial intervention has played on health policy and health outcomes. For example, the South African government’s response to the HIV/AIDS crisis in the late 1990s and early 2000s was seen by many as inadequate. In 2002, Treatment Action Campaign (TAC), a South African activist organization, brought a constitutional challenge against the government for their unreasonable response to the crisis. The court ruled in TAC’s favour, leading to healthcare policy reforms and an updated strategy to address HIV/AIDS in the country.
Indian courts have taken a similar approach to South Africa, in ordering changes to broader healthcare policies. For example, in 1996, in Paschim Banga Khet Mazdoor Samity v State of West Bengal, the complaint of a man who had been turned away by six hospitals due to a lack of beds in the state of West Bengal reached the Supreme Court. They ruled that the denial of timely medical care constituted a violation of his constitutional right, and that “the State cannot avoid its constitutional obligation […] on account of financial constraints.” This decision outlined what the government must do to ensure that proper medical facilities were available to deal with emergencies, in order to meet their constitutional obligations. Notably, India’s constitution does not make direct reference to a right to health; rather, provisions on the right to life, personal liberty, and welfare have been interpreted to include the right to health.
Canadian courts have been reluctant to interpret section 7 of the Canadian Charter of Rights and Freedoms as including a right to health, as was the case in India with similarly worded constitutional provisions. The Supreme Court of Canada, through cases such as Chaoulli and Carter, has favoured an interpretation of sec. 7 that views the right to life in a strictly literal sense, meaning it is only engaged when there is a risk of death. Many proponents of offering constitutional protections to the right to health in Canada believe that broadening the interpretation of sec. 7 would be a far simpler route to constitutionalizing the right to health than amending the constitution. The question remains however, whether such constitutional protections would actually improve health outcomes in Canada. If the Canadian judiciary were to open its doors to this type of protection in the future, they may look to their foreign counterparts for lessons on how to enforce this right in an equitable way, without creating the same barriers to health that currently exist for accessing justice in Canada.
Maya Gunnarsson is a Junior Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./ LL.B. student at McGill University’s Faculty of Law. Maya holds a M.A. in Canadian Studies and Indigenous Studies from Trent University where she focused her research on the role of the media in the ongoing crisis of violence against Indigenous women and girls. She also holds a B.A. in Political Science from McGill University. Maya has worked as a researcher at the Higher Education Quality Council of Ontario and interned at the Office of the UN High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section.