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.

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 Context

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.

Jurisdictional Disputes and Indigenous Health: The Emergence of Jordan’s Principle

Contributed by: Maya Gunnarsson

Introduction

In 2005, Jordan River Anderson, a child from Norway House Cree Nation, died at the age of five without ever having lived at home.  Jordan was born with a rare muscular disorder that required him to be placed in a hospital in Winnipeg, approximately 800 km away from his home.  After two years of care in the hospital, Jordan’s doctors cleared him to be discharged to a specialized foster home to receive at-home care.  Unfortunately, Jordan never made it to the foster home.  The provincial and federal governments disputed who should pay for Jordan’s homecare for over two years, until Jordan’s death.

Neither the provincial nor the federal governments were willing to pay for Jordan’s home care, due to the jurisdictional ambiguities in the Constitution’s division of powers.  Sec 92(7) of the Constitution Act, 1867 assigns exclusive powers over hospitals to the provinces, while sec 91(24) assigns legislative authority over Indians to the federal government.  The legal term Indians has traditionally referred to First Nations people, with the federal government’s fiduciary duty only extending to “status Indians”.  In 2016, the Supreme Court of Canada expanded this definition, declaring that non-status Indians and Métis were to be considered “Indians” under sec 91(24).  As this expanded definition is relatively new, and many of the decisions referenced in this post used the previously accepted definition, the term “First Nations people” will be used in this post when referring to “Indians”.

The Manitoba government argued that the federal government had a fiduciary duty to First Nations people both on and off reserve and therefore Health Canada should be financially responsible.  The federal government argued that the provincial healthcare system was responsible for Jordan’s care.  As the two levels of government disputed who should foot the bill, Jordan was denied the service and remained in the hospital.

6872410817_eabeba8c24_o Hospital Bed || (Source: Flickr // Aaron Noble )

Jordan’s situation was not isolated.  Hundreds of First Nations children were being denied or delayed receipt of public services available to non-Indigenous children each year.

Jordan’s Principle is a response to this situation.  It states that when there is a jurisdictional dispute between different levels of government, or governmental departments over services for First Nations children, the government of first contact must pay for the service, and resolve the dispute over payment afterwards.  It is intended to ensure all children have equitable access to governmental services, such as healthcare.

Legislative History

From 2005-2008, following what happened to Jordan, Manitoba MLA Jon Gerrard unsuccessfully tried to pass Jordan’s Principle into law in the provincial legislature multiple times.  While these attempts failed in the Manitoba legislature, the House of Commons unanimously passed Private Member’s Motion 296 in 2007.  The motion stated, “the government should immediately adopt a child first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nations children.”

This was seen as an important step in ensuring equitable access to governmental services such as healthcare for First Nations children. However, it was not a binding motion.  Further, it did not specify any implementation measures or outline how jurisdictional disputes would be resolved.  Over the following four years, the federal government reached bilateral and tri-partite agreements with a number of provinces, territories, and First Nations to implement jurisdictional dispute resolution processes.  However, commentators have criticized the majority of these agreements for being inadequate in implementing Jordan’s Principle.

Implementation

Following the adoption of these agreements, primarily through dialogue with the courts, the federal government’s interpretation of Jordan’s principle has been evolving.  The biggest criticism of the government’s initial approach was their narrow interpretation of eligibility for Jordan’s Principle.  Specifically, the federal government’s operational definition of Jordan’s Principle did not align with the definition that had been adopted by the House of Commons.  Jordan’s Principle had been approved in the House of Commons as a motion, not a law; the subsequent agreements that came into place to operationalize the motion took a much narrower view of who could benefit from the respective agreements.  In 2013, Aboriginal Affairs and Northern Development Canada (AANDC) described Jordan’s Principle as only applying when: (1) the child lived on reserve; (2) the child had multiple disabilities requiring services from multiple service providers; and (3) there was a jurisdictional dispute between the provincial and federal governments. The narrow scope of this definition effectively denied redress to many First Nations children who may have faced delays or denials of services.

This interpretation of Jordan’s Principle was first challenged in Pictou Landing Band Council v Canada (Attorney General) (2013), specifically in relation to the definition of a jurisdictional dispute as only arising when there was a declaration of a formal payment dispute.  The Pictou Landing Band Council (PLBC) provided the homecare support necessary to care for Jeremy Meawasige, a teenager with multiple disabilities and high care needs. PLBC applied for funding relief under Jordan’s Principle. However, this was denied as AANDC reasoned that there was no jurisdictional dispute, since both the province and the federal government agreed that the requested funding was above what could be provided.  The provincial health plan had a maximum allotment for patients requiring at-home care.  The cost of Jeremy’s care exceeded this limit.  Had Jeremy lived off reserve, he would have been eligible for exceptional funding, but both levels of government ignored this when assessing his application. The federal government concluded that the funding PLBC was requesting was above what the province would provide for a non-Indigenous child, so they would not provide it either. This narrow definition of a jurisdictional dispute meant that Jeremy would be denied the care that he would have otherwise received had he lived off-reserve.  The federal court rejected this definition, stating that Jordan’s Principle should not be narrowly interpreted, and ordered the federal government to reimburse PLBC.

In 2015, the Truth and Reconciliation Commission’s final report came out.  The third Call to Action was for Jordan’s Principle to be fully implemented by all levels of government. The federal government, however, continued to interpret the principle as having a very narrow scope.

In 2016, the Canadian Human Rights Tribunal (CHRT) ordered Indigenous and Northern Affairs Canada (INAC), AANDC’s successor, to expand their definition of Jordan’s Principle. The CHRT found that whereas the motion that had been passed by the House of Commons was broadly framed, INAC’s interpretation to only apply the principle to inter-governmental disputes and to children with multiple disabilities, excluded a wide number of cases that the principle was intended to cover.  Further, it found that the process INAC had mandated to Jordan’s Principle applications inherently resulted in delays to services. The decision stated that INAC’s narrow interpretation of Jordan’s Principle resulted in service gaps, delays or denials and overall, adverse impacts on First Nations children – the very problems the principle was intended to address.   They concluded that it “ignores a large number of disputes that can arise and need to be addressed under this Principle.” The court ordered INAC to “cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan’s principle.”

Three months after this ruling, the CHRT issued a non-compliance order, clarifying that starting discussions to review the INAC’s definition did not meet the standard required for immediate implementation. Five months later the CHRT issued another order, stating that INAC misinterpreted the original decision as indicating that Jordan’s Principle should only apply to First Nations children on reserve. They ordered INAC to immediately apply the principle to all First Nations children.  The CHRT issued another non-compliance ruling in 2017, ordering the federal government to “cease relying upon and perpetuating definitions of Jordan’s Principle that are not in compliance with the Panel’s orders in 2016 CHRT 2, 2016 CHRT 10, 2016 CHRT 16 and in this ruling.”

The Situation Today

The federal government has stated it is taking a renewed approach to Jordan’s Principle, in order to comply with the CHRT rulings. It remains to be seen if this approach will be viewed as sufficient at achieving the aims of the principle by courts.  If successful, it may be seen as a template for future agreements between the provinces, the federal government, and First Nations regarding services for Indigenous people.

As a child-first policy, Jordan’s Principle only applies to government services for First Nations children.  There is still a large gap in health outcomes for Indigenous peoples as compared to non-Indigenous Canadians, part of which can be attributed to a lack of access to services due to jurisdictional disputes.  The TRC’s twentieth Call to Action specifically highlights this and calls on the federal government to address it.  Working under its expanded definition, Jordan’s Principle and the ensuing agreements between various levels of government regarding implementation could be viewed as an example on how to deal with these types jurisdictional disputes moving forward.

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.