Richard Smith on the right to health

Richard Smith On first acquaintance the concept of a right to health can seem ridiculous. Why not a right to happiness, beauty, high intelligence, and Arsenal winning the cup every year? The right to health has been questioned legally and on grounds of feasibility and policy, but the Nobel prize winner Amartya Sen answers these questions convincingly in this week’s Lancet, which carries many articles on the right to health.(1)

The Lancet has also made major strides in “operationalising the right” and held a conference last Friday to develop a plan to bring the human rights approach to the heart of global health.
Jeremy Bentham described the French declaration of the rights of man as “nonsense on stilts.”

A right, he argued, had meaning only if enshrined in law, but Sen points out that there is a long tradition of thinking of rights in terms of social ethics — and the right to health is a call to action like the 18th century right to freedom.(1) Nor can lack of feasibility be a reason for dismissing the right to health because few if any rights are fulfilled 100% and a right can be aspirational. Those who question the right on policy grounds argue that the right to health services would be easier to enact, but everybody—and certainly readers of the BMJ—know that health depends on much more than health services.

The right to the highest standard of attainable health is now enshrined in law — in the International Covenant on Economic, Social, and Cultural Rights (1966)(2) and the Convention on the Rights of the Child (1989).(3) Very importantly the United Nations in 2000 defined what was meant by the right to health in a statement called General Comment 14 (a comment on article 12 of the International Covenant of Economic, Social, and Cultural Rights).(4) Most states have signed the international covenant and all but two (Somalia and the United States, an interesting pairing) have signed the convention. These documents are legally binding on those countries that have signed them, and cases can be taken against countries that flout them.

In the jargon of those trying to implement the right to health the right covers “triple AQ”–availability (of functioning public-health facilities, goods, services, and programmes), accessibility (physically and financially), acceptability (gender sensitive, culturally appropriate, and respectful of confidentiality), and high quality. And the right is anchored in the principles of equality and non-discrimination.

Despite the right to health having been around for a while it would be fair to say that progress has been slow — for two main reasons, the difficulty of operationalising the right and the lack of involvement of health workers. The Lancet is attempting to address both issues.

In an attempt to operationalise the right to health Gunilla Backman, Paul Hunt (former UN special rapporteur on the right to health), and others defined 72 indicators and tried to measure them for 194 countries.(5) The indicators include having a national health plan, registering births and deaths, providing clean water and access to essential medicines, financing health care to at least a minimum level, and promoting awareness of the right to health. Many of the indicators reflect commitments that are in the various international codes.

The results are given for each country in a 10 page table (perhaps the longest ever in the Lancet), and one important finding was that many countries don’t have data on many of the indicators, a severe deficiency in itself. Eighty eight countries, for example, do not collect data on maternal deaths, and 18 of the indicators were not available globally for any of the countries. Generally—and unsurprisingly—the results show huge problems in many countries, but the mapping of the deficiencies is a huge achievement and shows a clear route forward.

People in Britain might think that the right to health is adequately met in our tiny island, but Richard Horton, editor of the Lancet, showed clearly how it isn’t in an important article marking the 60th birthday of the NHS.(6) Availability of mental health services is severely restricted, particularly for adolescents, and public attitudes towards the mentally ill are stigmatising and discriminatory.

A young terminally ill Ghanian woman was denied access to the NHS because her visa had expired. Acceptability of health services is limited, argued Horton, by political imposition of reforms, and quality is at best highly variable.

Thinking in terms of the right to health can be a useful tool, although far from a panacea, in developing health globally and in Britain. Yet so far thinking in terms of rights has so far been mainly the province of lawyers rather than health workers. Indeed, health workers can be scornful of the rights movement.

At the recent conference to launch his very important report for WHO on the socioeconomic determinants of health, Michael Marmot was asked about the place of the right of health. He put the questioner down, which was surely a mistake. Thinking about health in terms of rights is not competition to public health thinking but a marvellous complement that highlights many of the same issues but also draws attention to others — for example, discrimination — that otherwise might be neglected.

The time has come for health workers to join the right to health movement, and the Lancet special issue and conference are important landmarks. There is, however, still a long way to go — both with involving health workers and with achieving the tight to health.

1 Sen A. Why and how is health a human right? Lancet 2008: 372: 2010.doi:10.1016/S0140-6736(08)61784-5

2 UN. International Covenant on Economic, Social and Cultural Rights (ICESCR). New York: United Nations, 1966.

3. UN. Convention on the Rights of the Child (CRC). New York: United Nations, 1989.

4. Committee on Economic, Social and Cultural Rights. The right to the highest attainable standard of health: 11/08/2000. E/C.12/2000/4, CESCR General Comment 14. Twenty-second session Geneva, 25 April—12 May 2000 Agenda item 3. (accessed Dec 13, 2008).

5 Backman G, Hunt P, Khosla R, et al. Health systems and the right to health: an assessment of 194 countries. Lancet 2008; 372: 2047-85. doi:10.1016/S0140-6736(08)61781-X

6 Horton R. What does a national health service mean in the 21st century?. Lancet 2008; 371: 2213-8. doi:10.1016/S0140-6736(08)60956-3

Competing interests: I attended the morning session of the Lancet conference and publicly interviewed Paul Hunt, the main speaker, but I wasn’t paid.

  • Dear Richard,

    I have problems with the argument that health is a ‘right’. Many unfortunates, for genetic or other unknown (or known) reasons, are born without health or are predisposed to ill-health. How can they have a ‘right’ to health? From whom can they claim that ‘right’?

    If the ‘right’ is to ‘health care’, I see a further difficulty. I agree that no one, in a civil society, should be denied the health care available to their fellows.

    However, to argue that we have a ‘right’ to the services of another person diminishes that person’s civil rights.

    We cannot demand service from a fire-fighter, ambulance driver, teacher, policeman, nurse or doctor. If the service is available, each has as much ‘right’ to it as anyone else. None should be denied.

    The ‘demand’ for services, as in the UN Declaration (still honoured more in the breach than in the observation), is more appropriately handled through political and electoral processes.

    The danger in turning such demands into ‘rights’ is that we lose sight of the fundamental importance of rights: since Magna Carta, they protect us from the State’s exercise of arbitrary power. Achievement of that world-wide (regrettably still a long way off) is the basis from which demands could then reasonably be made.