Healthcare is not a human right

Friday, January 08, 2010

LogoThe level of private involvement in a country’s health system should be decided by the local electorate. But the “right to health” makes it a legal requirement for governments everywhere to prioritise public provision, riding roughshod over any local democratic preferences.

COPENHAGEN — New health legislation making its way through the US Congress will see far greater government involvement in healthcare. This has been justified by President Obama who has claimed that all Americans have a “right” to healthcare and, by corollary, the government has a duty to provide it.

The idea that healthcare is a “human right” is controversial in the US, but is commonplace elsewhere. It is enshrined in major international human rights treaties, in national constitutions from Brazil to Belgium, and is a principle of nearly every aid agency and humanitarian NGO.

But not only is it impracticable in its definition, treating health as an enforceable human right creates serious legal and democratic problems – and neither does it improve healthcare.

Traditional human rights as free speech, property and personal liberty have helped secure freedom for millions and to shame authoritarian governments all over the world. These rights require governments to refrain from perpetrating abuses, and therefore can be enjoyed by everyone, equally. These are called negative rights.

Since the Second World War, however, international human rights treaties have added “positive” rights such as health, food and housing to these traditional human rights. These rights require government supply and are therefore dependent on money and a country’s level of development.

This is legally complex as any government’s resources are finite. Courts will therefore have to make rulings about the allocation of resources, which will necessarily pit interests (housing or health, for example) against each other.

Positive rights such as health have therefore been drafted in international human rights treaties as political aspirations rather than enforceable obligations. This was understood by those who originally drafted the Universal Declaration of Human Rights in 1948, including chairperson Eleanor Roosevelt.

However, subsequent revisionist interpretations of the UN’s International Covenant on Economic Social and Cultural Rights by unelected human rights experts have made signatory governments legally obliged to uphold the right to health for everyone. According to these experts, states violate “the right to health” if they fail to take “all necessary steps to ensure the realisation of the right to health” which includes “insufficient expenditure or misallocation of public resources”.

Absurdly, this means governments are theoretically liable for everything from providing water to food and medicine.

Sinisterly, this new interpretation of the right to health is being used to drive out private healthcare, even where private provision is more effective. Ideologues now insist that human rights risk being infringed whenever healthcare is provided through the insurance market or other private means.

So Canada’s 2005 Supreme Court decision to overturn Quebec’s ban on private health insurance has been ludicrously criticised by UN experts claiming it interferes with the right to health. The health systems of Korea and Switzerland have similarly been criticised on human rights grounds for having too much private involvement, despite delivering high quality services.

In the end, the level of private involvement in a country’s health system should be decided by the local electorate. But the “right to health” makes it a legal requirement for governments everywhere to prioritise public provision, riding roughshod over any local democratic preferences.

Making health a human right creates headaches even for governments who aspire to provide universal, collectively-funded healthcare. Brazil’s constitution explicitly grants a “right to health” but many patients who call upon the state to fulfill this obligation are met with shortages in state pharmacies. Many patients have therefore – quite reasonably – sued the government. This has led to an explosion of judicial challenges, with more than 1,200 cases of judicial review sought in the Rio Grande do Sul region alone each month.

Especially in developing countries, this creates an intolerable burden on the judicial system and creates a two-tier system, benefiting those who can afford judicial review but making little difference to everybody else.

Unsurprisingly, research shows that declaring the right to health makes no difference to a population’s health. Countries such as France, Singapore and Switzerland do not recognise an individually enforceable right to health in their constitutions but provide high quality, equitable care –by taking advantage of competition and choice provided by the private sector.

Instead of pursuing the blind alley of the right to health, those who care about health should promote the traditional rights which underpin the personal and economic freedom necessary to pay for good healthcare. These tried and tested principles – still denied to millions — include the right to own and exchange property without harassment by the state.

These are the rights that will let people lift themselves out of poverty, giving them the resources to afford clean drinking water, adequate shelter, good nutrition and the decent healthcare systems necessary to achieve good health. These are the rights that matter most and that are therefore truly worthy of the term.

Jacob Mchangama is the author of “Health as a human right”, first published by International Policy Network.