H UMAN R IGHT TO H EALTH IN WHO
OF S CARCE R ESOURCES
I will now discuss three necessary restrictions to unquestioned advocacy of the right to health from a PHC perspective, starting each time from personal experiences or involvements and concerning different levels of decision-making. Two of the examples started years before GC No. 14, one even af-ter. The background to this perspective is formed by philosophical and the-ological healthcare ethics, medical work and responsibility for a health dis-trict in Rwanda in the 1990s, field research in medical anthropology in East Africa in the 2000s as well as teaching and research on global health since 2009. A medical and empirical perspective of this kind is certainly different
21 Res. WHA30.43, 19 May 1977.
22 WHO (2013), 2.
23 Forman et al. (2013).
from that of human rights work in legal or political action. It has the inten-tion of informing the latter since the empirical dimension needs to be re-spected in normative approaches more than has been the case to date.
5.1 The Privileged Urban Elite vs. the Rural Poor:
The Responsibility of National Governments
The following example illustrates how a right to healthcare accessible only to a privileged few might even infringe on the health of many others. I re-member a young patient in our hospital in Rwanda in 1995 who had a heart condition that required life-saving open heart surgery. This could not be done in the country, and I inquired into chances for surgery abroad. I was told by the Rwandese hospital staff that there was a passage in the law guaranteeing the right to all necessary medical care even abroad – but that only politicians and higher civil servants had so far got this opportunity for expensive treatment in Nairobi or South Africa paid by the Ministry of Health. Thus the right to maximum care, in this case at the price of several ten thousand dollars, clearly drew on resources that were urgently needed for quite basic healthcare for the rural population, where people died every day because some cents for transport, medicines or vaccines were lacking.
This is a major reason why public health experts and PHC protagonists before GC No. 14 refrained from always unambiguously emphasizing the right to medical care or health. They wanted it to be applied for the benefit of as many disadvantaged people as possible, not as a further possible privi-lege for those already better off. And as my story shows, this risk was and remains very real. GC No. 14 therefore needed to emphasize non-discrim-ination.24
This risk is especially great in highly centralized states with low civil society control of the government and with weak legal systems. Thus, con-trary to the former Soviet claim at and after the conference of Alma-Ata that only a tightly state controlled system could guarantee the right to health,25 it seems to be clear that decentralization and the strengthening of civil society are preconditions for the implementation of rather than the misuse of an (individual) right to health. The declaration of Alma-Ata had
24 E/C.12/2000/4, 11 August 2000, paras. 12, 18 and 19.
25 Venediktov (1998).
acknowledged this in its principles of community participation. And GC No. 14 therefore also made this requirement explicit when it mentioned »in particular, participation in political decisions relating to the right to health taken at both the community and national levels«.26 Legislation and juris-diction alone are not sufficient to safeguard the right to health against mis-uses. The importance of monitoring is paramount. Several civil and politi-cal rights must be implemented as well, otherwise justifying a particular treatment by referring to the right to health could diminish health equity in-stead of promoting it.
5.2 The Bread Earners vs. the »Unproductive«:
Options for International Donors
The second, somehow similar conflict of interests that I personally ob-served arose in the late 1990s in the context of the availability of anti-retroviral therapy (ART) against HIV/AIDS. Initially in sub-Saharan Afri-ca, the men who were affected above average by AIDS were those who had money, who could afford more women than others: the rich, those in public service like teachers, and thus the more articulate and powerful. Their mass dying, their loss was rightly regarded as a threat to the socioeconomic de-velopment achieved up to that point, and this prompted economically moti-vated international concern. Later, the even higher burden for women and the poor became obvious. Withholding possible ART for AIDS patients was then seen as a violating the human right to health.27 Therefore there was a widespread fear among PHC adherents that a massive diversion of funds from established and urgently needed programs such as mother and child health or vaccination services in favour of fighting and treating AIDS would deprive the most vulnerable of already achieved standards of healthcare.
The only solution to this threat was that all the resources for AIDS pro-grammes had to come from additional, new sources, and should not be tak-en from existing PHC programmes. This did not seem likely to many, as the consistent message of the neoliberal approaches since the 1980s with their enormous cuts in health budget by the Structural Adjustment
26 E/C.12/2000/4, 11 August 2000, para. 17.
27 Stemple (2008).
grams (SAPs) had been that more funding for health was out of the ques-tion.28 Two unexpected developments prevented the AIDS programmes from squeezing out other health programs: the production and use of ART medicines without license (especially through the courage of South Africa as a major user and India as a producer) and the enormous external funding for these drugs. We do not know what would have happened without the astonishing, unprecedented extra donations by governments and »philan-thropocapitalists« like Bill Gates, which were certainly facilitated by the new economic approach to health in the World Bank and WHO reports.
The condition that resources for countering such new »violations« of the right to health must be additional to existing PHC funding should be the consequence of this example. This corresponds with the concept of the min-imum core obligations which demands some basic health services in any case and with General Comment No. 3 of 1990 (GC No. 3) which already stated that »even in times of severe resource constraints […] the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.«29
5.3 Lifestyle vs. Living Conditions:
NCDs vs. Communicable Diseases in Current UN Programmes
The third example showing necessary precautions against the unwanted ef-fects of an isolated implementation of the right to health concerns the recent shift of international attention to non-communicable diseases (NCDs), i.e.
cardiovascular and respiratory diseases, diabetes and cancer. This new ini-tiative is located at UN level as well as at the WHO and is contained in the Sustainable Development Goals (SDGs) as 3.4: »By 2030 reduce by one-third premature mortality from non-communicable diseases (NCDs) through prevention and treatment […]«. The hitherto common combination of prevention and best therapy in WHO programmes, e.g. for malaria (bed-nets and the medication co-artem), HIV/AIDS (safe sex and ART) and worms (sanitation and pharmaceutical de-worming), would be disastrous
28 Turshen (1999).
29 E/1991/23, 14 December 1990, para. 12, referred to also in E/C.12/2000/4, 11 August 2000, para. 18.
for the resources of most healthcare systems in the case of NCDs. The as-sessment of the increasing problem is certainly correct. The rise of these diseases, which are often or mostly life-style related – caused by too much sugar, fat, salt or harmful substances like tobacco and alcohol, low intake of fibres or vitamins and lack of physical exercise – and a decrease in several infectious diseases caused by poor living conditions has been almost uni-versally observed, notably more in MICs than in LICs. Yet again, if the right to health and its therapeutic requirements were applied to NCDs with-out any conditionality, a further threat to health equity could arise. I vividly remember the question posed by an expert in international health when the NCDs concept was presented: »Does it mean that Siemens [the German manufacturer of radiography equipment] can now approach the BMZ [German Ministry for Economic Cooperation and Development] demand-ing that equipment for heart catheterization has to be supplied all over the world?« The question, of course, was polemical, and the NCDs programme was clearly aimed at prevention, as increasing treatment of NCDs was pre-cisely seen as overburdening most healthcare systems. But the fear and the danger are obvious: Treating all common life-saving therapies alike as would be required by an undifferentiated human right to medical care would be the end of PHC and the striving for more health equity. Consider-ations of comparative costs and equity cannot be excluded. The prioritiza-tion of cheap or cost-effective measures is an indispensable constituent of PHC. This is reflected in the warning in GC No. 14:
»investments should not disproportionately favour expensive curative health ser-vices which are often accessible only to a small, privileged fraction of the popula-tion, rather than primary and preventive health care benefiting a far larger part of the population.«30
Nevertheless, it has to be admitted that some cost-effective preventive and curative measures, especially those requiring access to biomedical services, might still benefit the better-off more than the already marginalized and thus further increase health inequity.31
30 E/C.12/2000/4, 11 August 2000, para. 19.
31 Schmidt/Barnhill (2015).