Evolution of the Right to Healthby Thomas A. Gionis, MD JD MBA MHA FICS FRCS United States Fulbright Scholar in Law Chairman, American Board of Healthcare

Evolution of the “Right to Health”

byby

Thomas A. Gionis, MD JD MBA MHA FICS FRCSThomas A. Gionis, MD JD MBA MHA FICS FRCS

United States Fulbright Scholar in LawUnited States Fulbright Scholar in Law

Chairman, American Board of Healthcare Law and MedicineChairman, American Board of Healthcare Law and Medicine

Adjunct Professor of Law, St. Thomas University School of Adjunct Professor of Law, St. Thomas University School of

LawLaw

Evolution of the Right to Health

The International Bill of Human Rights

Universal Declaration of Human Rights

International Covenant on Economic, Social and Cultural Rights

International Covenant on Civil and Political Rights

Optional Protocol to the International Covenant on Civil and Political Rights

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty


The International Bill of Human Rights

Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Civil and

Political Rights Second Optional Protocol to the International Covenant on Civil

and Political Rights, aiming at the abolition of the death penalty

WHO

World Health Organization


International Bill of Human Rights WHO

Health services ↔↔ Social goodsSocial goodsGreeks:Greeks:

Health one of the Highest GoodsHealth one of the Highest Goods(Greeks – physical)(Greeks – physical)

Importance of Health ↔↔ Individual Well-beingIndividual Well-being↔↔ Individual DignityIndividual Dignity↔↔ International SecurityInternational Security↔↔ International Human Right ?International Human Right ?


World – International - HealthWorld – International - Health: : Scope of the ProblemScope of the Problem..

To what extent can sovereign States be held To what extent can sovereign States be held responsible for health threats?responsible for health threats?

To what extent is one’s lack of health unjust?To what extent is one’s lack of health unjust?

To what extent can States be held accountable for To what extent can States be held accountable for one’s lack of health, disease or disabilityone’s lack of health, disease or disability??



What is the justiciability of this right to health?What is the justiciability of this right to health?




What precisely do individuals have a right to, either under

an expressed or implicit right to health under international

law ?


Justiciability International Right to Health

Problem regarding justiciability = Meaning of the term “Health.”

(1). Highly subjective

(2). Individualistic; varies from person to person

(3). Variability of measures of objective standards

(4). Variability in how subjectively experienced

(5). Objectively may depend on geographic conditions(State variations)

(6). Subjectively may depend on geographic conditions(State variations)

(7). Variable constituencies


Justiciability International Right to Health(7). Variable constituencies

Does it include just physical health?

Aristotle:

“In the case of the body, excellence is health in the form of making use of the body without illness…. for many are healthy in the way said of Herodicus,

whom no one would envy for his health since [to keep it] he had to refrain from all, or nearly all, human

enjoyments.” Aristotle, On Rhetoric, New York/Oxford, 1991

(G.A. Kennedy Transaltion).



Aristotle

Health – aristocratic, not particularly democratic

Aimed at improving the health of a few [aristocratic] individuals, not an entire society as in the promotion

of public health.

Later changed as Greco-Roman empire influences.



Is the term of “International Right to Health” too vague to be justiciable?

Is the term of “International Right to Health” too broad to be justiciable?

Professor Leonard Kass, Regarding the End of Medicine and the Pursuit and Health, 40 The Public Interest 39 (1975):

Does the Right to Health include areas beyond the scope of Health?



Is an International Right to Health related to – or does it include – a component of social-well being?

Does the existence of an International Right to Health Does depend – vary – upon the development state of a sovereign?



Right to Health

Right to Health Care

Right to Health Protection

Right to Health Security

Right to Health Maintenance

Right to Adequate Standard of Health




What precisely do individuals have a right to, either under

an expressed or implicit right to health under international

law ?



Underlying Preconditions – Underpinnings

Does an International Right to Health include:

Prevention, treatment and control of epidemic, endemic and other diseases

Reduction Stillbirth-Rate

Reduction Maternal death rate

Reduction of Infant mortality





Reduction of Malnutrition

Child development

Environmental Health & Hygiene

Occupational Diseases:Labor safety measures, industrial accidents, occupational diseases





Family Planning Services

Harmful Traditional Practices

Medical Experimentation

Health of children – Immunization

Protection of Physical integrity





Right of public health

Medical care – free basic medical care / emergency medical care

Mental health

Adequate Sanitation

Women’s Health





Post-natal care / Abortion / HIV-AIDS

Preventive child care programs

Proper nutrition and maternal care programs

Reduction of incidence of violence against women

Sexual violence





Maltreatment and rape of women

Abortion

Physical accessibility v. Economic accessibility

Control of food and pharmaceutical products

Assistance to mentally defective children





Re-education of maladjusted children;

Satisfaction of the health needs of the highest risk groups

Protection against radioactive radiation transportation and dumping of nuclear waste.

Moral and Social Well-Being





Social security and social services

Access of health facilities at work

Health insurance, and maternity protection

Nutrition, housing, sanitation, health education

Access to basic public health services





Prison Health

Facilities for the treatment of illness and rehabilitation of health

Adequate nutritious foods and clean drinking-water


Economic, Social, and Cultural Human RightsEconomic, Social, and Cultural Human Rights

v. v.

Civil and Political RightsCivil and Political Rights

International Covenant on Economic, Social and Cultural International Covenant on Economic, Social and Cultural RightsRights

v.v.

International Covenant on Civil and Political RightsInternational Covenant on Civil and Political Rights



v. v.


DistinguishableDistinguishable

InterdependentInterdependent

InterrelatedInterrelated

Equal importanceEqual importance



Invoked in national judicial proceedingsInvoked in national judicial proceedings

Federal law / statutory law / common lawFederal law / statutory law / common law

Recognized national procedural remedies for complaints / Recognized national procedural remedies for complaints / protectionsprotections

Recognized international procedural remedies for complaints / Recognized international procedural remedies for complaints / protectionsprotections

““justiciablejusticiable””



Notwithstanding their acknowledgement in Notwithstanding their acknowledgement in constitutions / treaties, often found to be constitutions / treaties, often found to be non-non-justiciablejusticiable at domestic level. at domestic level.

Often, no recognized international procedural remedies Often, no recognized international procedural remedies for complaints.for complaints.

Reason for disparate treatment:Reason for disparate treatment:Ill-defined rightsIll-defined rightsCharacterized by vaguenessCharacterized by vaguenessContain a programmatic characterContain a programmatic character

(require (require positivepositive, , activeactive, , progressiveprogressive measures measures by States for by States for implementation)implementation)



Right to FoodRight to Food Right to EducationRight to Education Right to Adequate HousingRight to Adequate Housing Right to HealthRight to Health


Start of the Evolution of the Right to HealthStart of the Evolution of the Right to Health::the Public’s Healththe Public’s Health

Health, as a human right, has its foundation Health, as a human right, has its foundation within the public health movement.within the public health movement.

State’s recognition / obligation for necessity of:State’s recognition / obligation for necessity of:SanitationSanitationHygieneHygieneWater supply constructionWater supply construction


Start of the Evolution of the Right to HealthStart of the Evolution of the Right to Health::the Public’s Healththe Public’s Health

Pre-19th Century Pre-19th Century

Draining systems of Egypt, India, the Cretan-Mycenaean Draining systems of Egypt, India, the Cretan-Mycenaean culture, Troy, Inca societyculture, Troy, Inca society

Middle ages of Europe (disease prevention/sanitary Middle ages of Europe (disease prevention/sanitary protections of the community)protections of the community)


Documents

Evolution of the Right to Healthby Thomas A. Gionis, MD JD MBA MHA FICS FRCS United States Fulbright Scholar in Law Chairman, American Board of Healthcare