Health is a fundamental aspect of everyone’s life. Today is World Health Day, a global day for health awareness celebrated annually under the sponsorship of the World Health Organisation (WHO). In this post, we explain what human rights do to protect and promote health.
Is there a right to health?
The right to health is internationally recognised as a fundamental human right. In 1946, the WHO stated in its constitution that “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.” This right was also included in the 1948 Universal Declaration of Human Rights and in the 1966 International Covenant on Economic, Social and Cultural Rights.
The UK is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR). This means the UK is bound, in international law, to protect the right to health. (See below for how health is also protected through domestic human rights legislation.)
Under the ICESCR, the right to health is subject to ‘progressive realisation’, which means the UK must take steps towards achieving this right to the maximum of its available resources, but recognising that realisation can be hampered by a limited resources and may only be achievable over a period of time.
The (progressively realisable) right to health under the ICESCR can be compared with the rights contained in the European Convention on Human Rights which are immediately realisable, such as the right to be free from torture and inhuman and degrading treatment.
What does the right to health mean?
The UN Factsheet on the Right to Health states that the progressively realisable right includes basic things like access to healthcare and hospitals, as well as underlying factors necessary for a healthy life, such as safe drinking water and sanitation, food and adequate housing.
The right to health contains the freedom to say no to medical treatment. It entitles people to a system of health protection, including the prevention, treatment and control of diseases and access to essential medicines.
The right to health means that functioning public health care facilities, goods and services must be available and accessible, equally, to all. States must do everything they can, within their available resources, to provide all these things.
What the right to health is not
The right to health is not a right to be healthy – that would be impossible for a state to achieve, as it cannot control its citizens’ biological make-up or socio-economic conditions (although it can influence these).
How do human rights protect health in the UK?
In many countries, the right to health is recognised in their constitution as well as the state’s obligations under international treaties. The right to health is not specifically protected under domestic law in the UK. But we do have the Human Rights Act 1998, which obliges all public authorities, including National Health Service (NHS) organisations, to respect the human rights in the European Convention on Human Rights. This means we have an increasingly rights-based approach to providing healthcare, which emphasises the importance of protecting human dignity, vulnerable groups, equality and the right to seek, receive and impart information and ideas concerning health.
Because of human rights:
- Elderly and vulnerable patients who were badly mistreated in an NHS hospital were given justice (and some compensation) after a public inquiry found there was a failure of the NHS system at every level;
- Patients have the right to determine what is in their best interests;
- Medical staff can’t ignore parents’ objections to the treatment of their children;
- Hospitals must protect vulnerable patients at risk of suicide; and
- People detained because of their mental health have legally enforceable rights.
Healthcare sometimes involves some tough decisions…
In a European Court of Human Rights case (D v UK) a man from St. Kitts, referred to as D, entered the UK and was arrested. In prison he was diagnosed as suffering from AIDS. Once he served his sentence, he was to be deported to St. Kitts but he asked to stay in the UK, as his removal would deprive him of the medical treatment he was receiving and drastically shorten his life. His request to remain was refused.
D was in the advanced stages of a terminal illness and would face extremely poor conditions if returned to St Kitts. The Court decided that removing D from the UK would amount to inhuman treatment in violation of Article 3 of the European Convention on Human Rights. The Court emphasised that this case was very exceptional: people subject to expulsion from the UK cannot in principle claim any entitlement to remain and benefit from medical assistance.
This exceptionality was confirmed in another European Court of Human Rights case, N v UK. N applied for asylum in the UK. She had HIV and, with hospital treatment, her condition was stabilising. But she was refused asylum and was to be deported to Uganda. The Court accepted that N’s quality of life and life expectancy would be affected if she were returned to Uganda, but her case was not exceptional in the same way as D’s and the Court said that deporting her would not violate her rights.
The UK Court of Appeal recently re-affirmed that, except in the most exceptional circumstances, deporting foreign nationals suffering from very serious medical conditions (such as end-stage kidney disease and HIV) – even if they are likely to die soon after treatment stops – would not breach their human rights.
Cases involving health and human rights can be very difficult, with judges having to make some very tough calls.
… But human rights are vital to protecting health and life with dignity
The WHO and the UN High Commissioner on Human Rights have stated that:
The right to health is a fundamental part of our human rights and of our understanding of a life in dignity.
We are proud to promote greater awareness of what human rights can do to protect health. For more information, take a look at our ‘What Human Rights Do For Health’ infographic and see our other health resources here.
