19 November 2019
Defining a right to health
Source: By K Srinath Reddy: The Financial Express
The law is a wonder drug. Laws themselves can save countless lives and improve the health of nations”. This strong affirmation, of the role of law in advancing health, was made in London on October 28, 2019, by Baroness Hale of Richmond. She is the president of the Supreme Court of the United Kingdom. She was in the news headlines a few weeks ago, for delivering the judgement that declared Prime Minister Boris Johnson’s decision to prorogue Parliament unlawful. Her espousal of law as a potent instrument for shaping health was made at a meeting on the Legal Determinants of Health, convened at Chatham House, the leading British think tank.
Quite by coincidence, a well-attended conclave on ‘Right To Health’ was convened at Bhopal on November 1-2, by the government of Madhya Pradesh. In a bold move, first of its kind in India, the state government has decided to enact a legislation to confer and codify the right at the state level. Invoking the constitutional duty cast upon the state by Article 47 of the Indian Constitution, the government resolved to enact an “all-encompassing legislation as ‘Right To Health Act’ for the people of the state.”
The resolution, moved by health minister Tulsiram Silawat and seconded by health secretary Pallavi Jain Govil, reflected a commitment not only to improve healthcare delivery to all sections of the population but also an intent to stream synergies between other sectors that impact health. The role of education, nutrition, sanitation and hygiene, clean water and environment, food safety, and panchayati raj institutions and urban bodies was invoked to indicate that multi-sectoral convergence is needed to promote and protect health in all dimensions. A high level ministerial roundtable, representing all of these sectors, endorsed this common commitment.
While this cohesive approach to promote health in all policies was warmly welcomed by the delegates, debates arose on how the ‘Right To Health’ would be defined and codified. Would it just reflect the right of an individual to obtain healthcare services, or would it extend to the several determinants of health that lie outside the conventional health sector? Would the proposed legislation be a standalone law, or would it replace or subsume other health related laws that already exist? How justiciable would such a right be in a court of law? Would it spawn a load of litigation that would overwhelm the resources of the state?
The International Covenant on Economic, Social and Cultural Rights recognises “the right of everyone to the enjoyment of the highest standard of physical and mental health”. The constitutions of South Africa and Ecuador explicitly include the right to health. Article 47 of the Indian Constitution states, “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties”.
From the provisions included in each of these constitutions, it is clear that the right to health is not defined as merely providing medical services for illness-care for sick individuals. Indeed, each of the above documents emphasises public health as the principal channel for delivering this right. Public health identifies and influences the multiple determinants of health at the population level, to impact upon and improve health at the individual level. It does this through policies, systems, services, and community engagement. Even the equity and efficiency dimensions of medical services that provide illness-care to individuals are system architecture functions determined by public health.
Viewed from this perspective, it is clear that the Right To Health is not merely an individual right but has a population dimension. It applies to groups of people, and indeed, to an entire population. The right of people to safe drinking water, unpolluted air, and unadulterated food are as much the right of a whole population as its right of access to primary health care services, and access to essential medicines. Therefore, the right should be seen as one conferred by the collective consensus of the whole of society on all of the individuals comprising it.
While the right to health is absolute, the entitlements under it will evolve over time, based on the society’s collective resources and priorities. The realisation of the right is, therefore, progressive and incremental. The Right to Health lights up the road to a healthy society, even if the journey proceeds in stages. By engaging the community directly, and through its representatives at various levels, the pathways for priority setting of the entitlements help to democratise the health system. As in Brazil and Thailand, local Health Councils, and state- and national-level Health Assemblies can engage multiple stakeholders in periodically reviewing the delivery of entitlements under this right, and revising the list as needed.
Legal enactment to confer this right should not be viewed as an all-encompassing law that subsumes all existing health related laws. Each of the existing laws deals in detail with specific, but varied, issues, such as tobacco control, food adulteration, notification of infectious diseases, mental health, disabilities, prenatal testing, termination of pregnancy, and sexual violence.
Their specificity should not be diluted under a generic legislation on the Right to Health. On the other hand, the Right to Health law should be constructed as an enabling legislation that can establish new regulatory bodies, or initiate new regulatory measures, as and when needed. The fear of stoking litigation should not be a deterrent. The law can certainly be invoked by aggrieved individuals or groups to protest or litigate, but the extent of periodically defined entitlements limits the scope of the litigation. The moral power of the law in guiding policies which impact health will extend far beyond the specific entitlements that are listed at any time.
By keeping the law simple, and the scope broad, the need for frequent amendments can be avoided. With many commercial products emerging as new threats to health (for example, vaping or harmful food additives), prompt regulatory action would be needed. Instead of fresh laws directed against each of these, the Right To Health Law can be invoked to create regulatory instruments for the elimination of these new threats.
As Sridhar Venkatapuram eloquently states in his book, Health Justice, “A well ordered society would ensure that all individuals have the capability to be healthy and at a level that is commensurate with human dignity in the modern world, which is their right”. The rest of India would do well to emulate Madhya Pradesh in this regard.