Access to essential medicines
as part of the fulfilment of the Right to Health
Hans V. Hogerzeil, MD, PhD, FRCP Edin
Director, Medicines Policy and Standards
World Health Organization
Overview of the presentation
n Principles of human rights
n Access to Essential Medicines: Human Rights instruments
n Rights-based approach in medicine programmes:
Five practical points to check
1. Which essential medicines are covered by the right to health?
2. Have all beneficiaries of the medicine programme be consulted?
3. Are there mechanisms for transparency and accountability?
4. Do all vulnerable groups have equal access to essential medicines? How do
you know?
5. Are there safeguards and redress mechanisms in case human rights are
violated
n Conclusion and recommendations
2
Human Rights
n Human rights concern the relation the between state and the
individual;
n They lead to state obligations and individual entitlements
n All human rights are interdependent and interrelated. Health is a
fundamental human right, indispensable for the exercise of other
human rights
n Freedom from discrimination underpins all human rights
n Promotion of human rights is a principle purpose of the UN
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First expression of the right to health:
The WHO Constitution (1946)
“The States parties to this Constitution declare, in conformity with the
Charter of the United Nations, that the following principles are basic to the
happiness, harmonious relations and security of all peoples.
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 without distinction of race,
religion, political belief, economic or social condition (...)”
4
Universal Declaration of Human Rights (1948)
Art.25.1
“Everyone has the right to a standard of living
adequate for the health of himself and of his
family, including food, clothing, housing and
medical care and necessary social services”
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The right to health is also recognized
in numerous other instruments
1961 European Social Charter
1966 International Covenant on Economics, Social and
Cultural Rights (most detailed; Article 12.1 and 12.2)
1978 Declaration of Alma Ata
1981 African Charter on Human and People’s Rights
1988 Additional Protocol to the American Convention on HRs in
the Area of Economic, Social and Cultural Rights
1989 Convention on the Rights of the Child
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International Covenant on Economics, Social and
Cultural Rights (ratified by 147 countries)
Article 12 recognizes the
n “right of everyone to the enjoyment of the highest
attainable standard of physical and mental health”
Article 12.2 illustrates a number of
n steps to be taken by States parties to achieve:
ä a. maternal, child and reproductive health
ä b. healthy natural and workplace environments
ä c. prevention, treatment and control of disease
ä d. health facilities, goods and services
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Committee on Economic, Social and Cultural Rights
General Comment nr.14 (May 2000)
Art.12.2.c:
Right to prevention, treatment and control of diseases includes
creation of a system of urgent medical care in case of accidents,
epidemics; and disaster relief and humanitarian assistance
Art 12.2.d:
Right to health facilities, goods and services includes appropriate
treatment of prevalent diseases, preferably at community level;
and the provision of essential drugs as defined by the WHO
Action Programme on Essential Drugs
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Committee on Economic, Social and Cultural Rights
General Comment nr.14 (May 2000)
Violations
n Adoption of retrogressive measures, repeal, suspension
n Failure to take all steps to ensure the right to health; e.g.
ä failure to adopt or implement a national health policy designed to
ensure the right to health for anyone
ä insufficient expenditure or misallocation of public resources
ä failure to monitor realization of the right to health in the country
ä failure to take measures to reduce inequitable distribution of health
facilities, goods and services
Important: distinguish inability
from unwillingness of the State
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National recognition of a Right to Health:
All governments have signed at least one
international human right instrument
200 193
150 142
109
100 83 Nr.of countries
50
0
All ICESCR Regional Const.
Source: Eleanor D. Kinney: The International Human Right to Health: What does
this mean for our nation and world? Indiana Law Review, 200; 34: 1465. Quoted in:
25 Questions and answers on health and human rights, WHO, 2002
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Access to essential drugs as a Human Right:
Where are we now?
n Health is a human right (Universal Declaration of Human Rights).
n The right to health care includes the right to emergency care
and health facilities, goods and services (Covenant)
n The right to facilities, good and services includes the
provision of essential drugs as defined by WHO (GCom.14)
n State parties are under immediate obligation to guarantee that
the right to health care is exercised without discrimination,
and that concrete steps are taken towards full realization,
with emphasis on vulnerable and marginal groups
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So what?
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Rights-based approach:
Justice as a right, not as charity
A rights-based approach to development describes
situations not simply in terms of human needs, or of
developmental requirements, but in terms of society's
obligations to respond to the inalienable rights of
individuals; empowers people to demand justice as a
right, not as charity; and gives communities a moral
basis from which to claim international assistance when
needed.
Kofi Anan, United Nations Secretary-General
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Rights-based approach in medicines: What makes it
better than a good essential medicines programme?
General recommendations:
n Human rights should define the framework for development in the
medicines area. The attainment of the highest attainable standard of
health must be the stated aim of the national medicine policy
n The human rights implications of any medicine policy, legislation or
programme must be assessed in advance
n The right-based approach must be the basis for the design,
implementation, monitoring and evaluation of national medicine
programmes (see next slide)
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Rights-based approach in medicine programmes:
Five practical points to check
1. Which essential medicines are covered by the right to health?
2. Have all beneficiaries of the medicine programme be consulted?
3. Are there mechanisms for transparency and accountability?
4. Do all vulnerable groups have equal access to essential
medicines? How do you know?
5. Are there safeguards and redress mechanisms in case human
rights are violated?
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1: Which medicines are covered by the right to health?
What are essential drugs? (Exp.Cee, April 2002)
Definition: Essential medicines are those that satisfy the priority
health care needs of the population
Selection criteria: Essential medicines are selected with due
regard to disease prevalence, evidence on efficacy and safety,
and comparative cost-effectiveness
Purpose: Essential medicines are intended to be available within
the context of functioning health systems at all times, in adequate
amounts, in the appropriate dosage forms, with assured quality,
and at a price the individual and the community can afford.
Implementation: The implementation of the concept of essential
medicines is intended to be flexible and adaptable to many
different situations; exactly which medicines are regarded as
essential remains a national responsibility.
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1: Which medicines are covered by the right to health?
Practical implications
n Does the constitution guarantee the right of everyone to
the enjoyment of the highest attainable standard of health?
n Do national laws/regulations further define the Right to
Health, social security, services and medicines covered?
n Has the national list of essential medicines been updated
in the last two years?
n Outside scope of national governments (refugee camps,
ships): WHO/UN lists apply
Discussion question:
National List or Moral Minimum?
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2: Have all beneficiaries of the medicine programme
been consulted?
n In developing a national medicine policy and
implementation plan, the usual partners are the Ministry of
Health, government departments, missions, academia,
industry, professional associations
n What about:
ä Rural communities, local governments
ä Public interest NGOs
ä Patient and consumer groups
ä Representatives of vulnerable groups, ethnic minorities?
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3. Are there mechanisms for transparency and
accountability?
n Transparent statement on government obligations, in line
with international treaties
n National medicine policy with clear identification of roles
and responsibilities of government departments and other
stakeholders
n Indicators, baseline date and targets identified and used to
monitor progressive realization of access to essential
medicines
n Mechanisms to hold stakeholders responsible
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Good example of constitution and action plan:
South Africa
Constitution (1994)
n Everyone has the right to have access to health-care services and
social security (section 27)
n The State must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realization of each
of these rights
National action plan for the protection and promotion of
human rights (1998)
n Recognition of the fact that the realization of socioeconomic rights
requires public expenditure to meet basic needs, develop
infrastructure, promote growth and stimulate job creation.
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4. Do all vulnerable groups have equal access to
essential medicines? How do you know?
n Vulnerable groups: children (girls), women, people living in
poverty, rural communities, indigenous populations,
national (ethnic, religious, linguistic) minorities, internally
displaced persons, elderly, disabled, prisoners
n First step: collect disaggregated statistics on access
ä Awareness among policy makers
ä Identify vulnerable groups which need special attention
ä Monitor progress towards universal access
n Absolute minimum: gender-disaggregated statistics and
incidental surveys aimed at specific vulnerable groups
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5. Are there safeguards and redress mechanisms in
case human rights are violated?
n Access to essential medicines is best achieved and
guaranteed by the rights-based approach in national
medicines policies and programmes
n In case of slow progress, regression, discrimination:
redress and appeal mechanisms are needed as last resort
n Careful litigation has been helpful to encourage
governments to fulfil their constitutional and international
obligations (WHO study in 12 developing countries)
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Is access to essential medicines as part of the Right to
Health enforceable through the courts?
Hogerzeil HV, Samson M, Vidal Casanova J, Rahmani L (Lancet 2006)
Objective
To identify and analyze court cases from low- and middle income
countries, in which individuals/groups have claimed access to essential
medicines on the basis of human right treaties signed by the State
Results
71 cases from 12 countries • 59 won, 12 lost • half deal with HIV/AIDS;
others with leukemia, diabetes, renal dialysis • 38% public interest cases
• 20% supported by NGOs • 93% of successful cases from Latin America
(rest from India, S.Africa, Nigeria)
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Main findings in 59 successful cases
(Argentina, Bolivia, Brazil, Colombia, C.Rica, Ecuador, India,
S.Salvador, S.Africa, Venezuela)
n 66% of successful rulings concern life-saving medicines
n Success often linked to:
ä Constitutional provisions supported by human rights treaties
ä Link between right to health and right to life
ä Legal, financial and advocacy support by public interest NGOs
n Individual cases have generated group rights
n Right to health is not restricted by limits in social security
ä Acquired rights, time restrictions in coverage
ä Essential medicines not (yet) included in social security
n Government policies can successfully be challenged in court
ä Discrimination, lack of progress
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Lessons from 12 unsuccessful cases
(Argentina, Colombia, C.Rica, Nigeria, Panama, S.Salvador, S.Africa)
Life-saving medicines (6 cases)
n National medicine list upheld: no need for this medicine (Argentina,
Colombia, Panama, S.Africa)
n Medicine claimed was wrong choice, lack of evidence on efficacy, no need
(C.Rica 2x, S.Salvador)
n Medicine had been supplied in the mean time (Colombia, C.Rica)
n Dismissed on technical grounds (Panama)
n Plaintiff not heard because of risk of transmitting HIV (Nigeria)
Non life-saving medicines (6 cases)
Question: Does Right to Health include quality of life?
* Court engaged in medical review
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Practical recommendations to governments
n Ensure constitutional endorsement of the right to health, the
right to life and the right to non-discrimination;
n Specify government obligations in social welfare, provision of
health care services and access to essential medicines, with
emphasis on vulnerable groups
n Incorporate rights-based approach in national medicine
policies
n Collect disaggregated statistics, monitor access by gender and
vulnerable groups
n Create legal instruments for enforcement and redress
n Report regularly on progressive realization of right to health
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Recommendations to other organizations
UN: Use constitutional provisions (1) and availability of redress
mechanism as indicator for Government commitment when
reporting on Right to Health
WHO: Promote and support the rights-based approach in national
medicine policies; disseminate country information on
treaties and constitutional rights; disseminate information
on successful litigation; empower NGOs
NGOs: Campaign for constitutional provisions and national redress
mechanisms; support targeted litigation cases
(1) Also introduced as SO-12 indicator in WHO Medium Term Strategic Plan for 2008-2013
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Conclusion
n Many governments have made international and/or constitutional
obligations on the right to health. Skilful litigation can provide an
additional mechanism towards ensuring that these obligations or
fulfilled. Success is possible and this should encourage others.
n Health policy makers and the public health community should be
aware of the increasing trend towards litigation. Rather than the
judiciary deciding over who should have access to which
medicines, policy makers should ensure that human rights
standards guide their health policies and plans from the start.
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Saving lives
with the right (to) medicines
www.who.int / medicines
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