Toebes, May 2010 Human rights, health sector commercialisation and corruption Dr Brigit Toebes, The University of Aberdeen School of Law [email protected]

Toebes, May 2010Toebes, May 2010

Human rights,Human rights,health sectorhealth sector

commercialisationcommercialisationand and corruptioncorruption

Dr Brigit Toebes,Dr Brigit Toebes,

The University of Aberdeen The University of Aberdeen

School of LawSchool of Law

[email protected]@abdn.ac.uk


Framework for discussion:Framework for discussion:

UN General Comment 14 on the Right to UN General Comment 14 on the Right to the Highest Attainable Standard of the Highest Attainable Standard of

HealthHealth

www.ohchr.orgwww.ohchr.org


Right to healthRight to health

Not a ‘right to be healthy’Not a ‘right to be healthy’

Two dimensions:Two dimensions: Access to health careAccess to health care Access to underlying conditions for healthAccess to underlying conditions for health


Right to healthRight to health

Three tools:Three tools: ‘‘AAAQ-AP’AAAQ-AP’ Obligations to ‘respect, protect and fulfil’Obligations to ‘respect, protect and fulfil’ Minimum core obligationsMinimum core obligations


AAAQ-APAAAQ-AP

AvailabilityAvailability AccessibilityAccessibilityNon-discriminationNon-discrimination

Physical accessibilityPhysical accessibility

AffordabilityAffordability

Information accessibilityInformation accessibility AcceptabilityAcceptability QualityQuality

AccountabilityAccountability ParticipationParticipation


Tri-partite typology of Tri-partite typology of State ObligationsState Obligations

Obligations to respectObligations to respect Obligations to protectObligations to protect Obligations to fulfilObligations to fulfil


Minimum core obligationsMinimum core obligations

A ‘minimum package’ of health servicesA ‘minimum package’ of health services Programme of Action ICPDProgramme of Action ICPD Primary Health Care WHOPrimary Health Care WHO Millennium Development GoalsMillennium Development Goals

Photo: Global Corruption Report 2006, Photo: Global Corruption Report 2006, Transparency InternationalTransparency International

Health care Health care commercialisationcommercialisation


TerminologyTerminology

Privatisation?Privatisation? Commercialisation?Commercialisation?


Why privatise? Why privatise? Reduce rising costs caused byReduce rising costs caused by

Developed countriesDeveloped countries Inefficiency Inefficiency Ageing of the populationAgeing of the population Improvements of medical Improvements of medical

techniquestechniques Rising expectationsRising expectations Over-consumption?Over-consumption?

Developing countriesDeveloping countries InefficiencyInefficiency General poverty on the General poverty on the

part of the governmentpart of the government Pressure from IFI’s and Pressure from IFI’s and

TNC’sTNC’s


The promise:The promise:

Enhance the consumer’s range of Enhance the consumer’s range of choicechoice


TrendsTrends

health insurance health insurance health care provisionhealth care provision multinational expansionmultinational expansion

out-of-pocket expenditureout-of-pocket expenditure


British Medical Association British Medical Association 20062006

‘‘There should be no further involvement of the There should be no further involvement of the commercial private sector in providing NHS commercial private sector in providing NHS care. The BMA will campaign to restore an care. The BMA will campaign to restore an

integrated publicly provided health service in integrated publicly provided health service in England.’England.’


The public health perspectiveThe public health perspective

Mackintosh and Koivusalo:Mackintosh and Koivusalo:

Better health careBetter health care at birth when more of GDP at birth when more of GDP spent by government or social insurance funds on spent by government or social insurance funds on health carehealth care

Greater exclusion of childrenGreater exclusion of children from treatment from treatment when ill when higher primary care when ill when higher primary care commercialisationcommercialisation


Their conclusion:Their conclusion:

‘‘Health systems are part of the public policy Health systems are part of the public policy sphere’sphere’

‘‘Policies towards commercialization within health Policies towards commercialization within health

systems should and can be within national and systems should and can be within national and local democratic control’local democratic control’


The human rights The human rights perspectiveperspective

Neutral, yetNeutral, yetSerious human rights consequencesSerious human rights consequences


Relevant human rightsRelevant human rights

Rights to information and political participationRights to information and political participation Right to healthRight to health Right to a remedyRight to a remedy Right to privacyRight to privacy


AAAQ-APAAAQ-AP







State obligations to respect, State obligations to respect, protect and fulfilprotect and fulfil

Emphasis on State obligations to protect:Emphasis on State obligations to protect: RegulateRegulate MonitorMonitor Provide redressProvide redress


The human rights impact The human rights impact assessmentassessment

AvailabilityAvailability more efficiency?more efficiency?

AccessibilityAccessibility cost of health care?cost of health care? Patients accepted?Patients accepted?

AcceptabilityAcceptability Medical data protected?Medical data protected?

QualityQuality Effects on the adequacy of the services?Effects on the adequacy of the services?

AccountabilityAccountability Regulatory mechanisms in place?Regulatory mechanisms in place? Means of redress?Means of redress?

ParticipationParticipation Public informed and consulted?Public informed and consulted?

Photo: Global corruption report Transparency Photo: Global corruption report Transparency International, 2006International, 2006

Health Sector Corruption Health Sector Corruption


Health sector corruptionHealth sector corruption

Transparency InternationalTransparency International::

Global Corruption Report 2006 –Global Corruption Report 2006 –

Corruption and HealthCorruption and Health


Actors in the health sectorActors in the health sector

State actor:State actor: Governments and all their agentsGovernments and all their agents

Non-state actors:Non-state actors: Healthcare providers (hospitals, health workers)Healthcare providers (hospitals, health workers) Health insurersHealth insurers Consumers / patientsConsumers / patients Suppliers (pharmaceutical industry)Suppliers (pharmaceutical industry) Health researchers and educatorsHealth researchers and educators


Why is the health sector prone to Why is the health sector prone to corruption?corruption?

UncertaintyUncertainty Asymmetric informationAsymmetric information Large numbers of actorsLarge numbers of actors


Does it matter how a health sector Does it matter how a health sector is organised?is organised?

Tax basedTax based Insurance basedInsurance based

public health care provisionpublic health care provision private healthcare provisionprivate healthcare provision

DecentralisationDecentralisation


A definition of corruptionA definition of corruption

The misuse of entrusted The misuse of entrusted power for private gainpower for private gain


UN Convention on Corruption - 2003UN Convention on Corruption - 2003

Bribery of national and foreign public officialsBribery of national and foreign public officials Bribery in the private sectorBribery in the private sector Embezzlement of property by a public officialEmbezzlement of property by a public official Trading in influenceTrading in influence Abuse of functionsAbuse of functions Illicit enrichmentIllicit enrichment


‘‘HEALTH SECTOR HEALTH SECTOR CORRUPTION CAN AMOUNT CORRUPTION CAN AMOUNT

TO VIOLATIONS OF THE TO VIOLATIONS OF THE RIGHT TO HEALTH’RIGHT TO HEALTH’


Human rights and health sector Human rights and health sector corruptioncorruption

Right to healthRight to health Right to lifeRight to life Non-discriminationNon-discrimination Rights to information and political participationRights to information and political participation Right to a remedyRight to a remedy


‘‘Regulators’: Regulators’: the State and all its agentsthe State and all its agents

‘‘AAAQ-AP’AAAQ-AP’ Obligations to respect, protect and to fulfilObligations to respect, protect and to fulfil


AAAQ-APAAAQ-AP







State obligation to respectState obligation to respect

Refrain from:Refrain from: Bribery of officials in relation to health sectorBribery of officials in relation to health sector Illicit enrichmentIllicit enrichment Misappropriation of fundsMisappropriation of funds Trading in influence in the health sectorTrading in influence in the health sector Abuse of function Abuse of function Diverting drugs destined for country back to international Diverting drugs destined for country back to international

drug marketdrug market


Obligation to protectObligation to protect

RegulateRegulate the behaviour of: the behaviour of: State / regional and local governmentsState / regional and local governments Health insurersHealth insurers HospitalsHospitals Health workersHealth workers Pharmaceutical industry Pharmaceutical industry Consumers / patientsConsumers / patients


State obligation to fulfilState obligation to fulfil

Adopt a coherent national policy to Adopt a coherent national policy to minimise the risk of corruption minimise the risk of corruption

throughout the entire health system.throughout the entire health system.


Non-state actorsNon-state actors

Hospitals, health insurers, pharmaceutical Hospitals, health insurers, pharmaceutical companiescompanies

‘‘AAAQ-AP’AAAQ-AP’ Respect, protect, fulfilRespect, protect, fulfil


Human rights violations?Human rights violations?

StatesStatesNon-state actorsNon-state actors


StatesStates

embezzlement and stealing money from the health budget

misappropriation of funds that had been allocated to the health sector

accepting a bribe in exchange for the

construction permit for a hospital


HospitalsHospitals

Theft from hospital budgetTheft from hospital budget Unnecessary medical interventionsUnnecessary medical interventions Preferential treatmentPreferential treatment

Photo: Global corruption report Transparency Photo: Global corruption report Transparency International, 2006International, 2006

Health workersHealth workersInformal payments?Informal payments?


Health InsurersHealth Insurers

Adverse selection practicesAdverse selection practices Refusal of patients on the basis of their health Refusal of patients on the basis of their health

status, age, etc.status, age, etc. Illegal billing of health care providersIllegal billing of health care providers


Pharmaceutical IndustryPharmaceutical Industry

Influencing health care providersInfluencing health care providers Excessive promotion of drugsExcessive promotion of drugs Exerting pressure on drug selection processExerting pressure on drug selection process


Thank youThank you

Documents

Toebes, May 2010 Human rights, health sector commercialisation and corruption Dr Brigit Toebes, The University of Aberdeen School of Law [email protected]