This article is written by Abhineeth Saravanan, pursuing BA. LLB from the School of Excellence in Law. The article has been edited by Tanmaya Sharma (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho) and Indrasish (Intern at LawSikho).

Introduction

The conception of healthcare and access to health care as a human right stems from Article 25 of the UDHR which mentions that as a part of the right to a decent quality of living, health is a fundamental aspect of it. Article 12 of the 1966 International Covenant of Economic, Social, and Cultural Rights reaffirms this, stating that every human being has an inherent right to the highest degree of bodily and mental health possible. The wide interpretation of the Article shows us that health is an inclusive right, which covers in its ambit the right of access to hygienic drinking water, health-related education, and sexual and reproductive health. Access to health care, therefore, falls squarely within the extent of the right to health vested in humans as it is near impossible to maintain good health without healthcare systems in place to protect and safeguard the lives of the affected and sick. The primary objective of the present article lays down the importance of access to healthcare and why the same is as fundamental as the human right it derives itself from. The author endeavours to view healthcare through the lens of India, a developing country with a slow-growing economic and financial situation to analyze how such a country perceives Health and access to health care as a fundamental human right.

Fundamental aspects of the right to health and access to health care

The right to health is the main vestige of human rights as it is severally inter-connected to various other primary rights. To keep the Universal Declaration of Human Rights (UDHR) short and concise, the right to health was not given a separate article of its own and was added along Article 25, and as a result, it has been codified as part of the right to an adequate quality of life, which includes food, clothes, shelter, medical care, and other necessary social services. Article 12 of the ICESCR recognized the right to health separately, with a binding effect in International (Treaty) Law. This brings us to the obligation of the State Parties in upholding the right to health and access to health care as the primary responsibility for the realization of human rights lies with the States. The States Parties’ extraterritorial responsibilities imply that they must respect, protect, and fulfil the human rights of those under their authority.

• The obligation to respect requires States to withhold from intervening in any way with the right to health.
• The obligation to protect requires States to halt third parties from intervening with the right to health.
• The obligation to fulfill requires states to fully achieve the right to health, by adopting appropriate legislative, administrative, budgetary, judicial, promotional, and other measures.

The allowance of this importance given to healthcare has also been extended to access to healthcare services. According to the UN Committee for ESC Rights – similar to other social human rights – the categories availability, accessibility, acceptability, and quality are required to substantiate the right to health.

In keeping with the nature of human rights, this right is also intended for everyone. People all over the world are expected to be able to access medical facilities and receive treatment as per the World Health Organisation (WHO) standards in the following respects: 

• Without discrimination of race, gender, sex, age, identity, religion, or culture.
• Physically – meaning to be easy to reach and accessible, primarily to women, children, older people, and people with chronic disabilities.
• Economically – meaning for it to be affordable to the general populous and the poorer and weaker sections of society. 
• Informed – Article 12 of the ICESCR also requires for all humans to be provided access to health-related education and training. Ailments like AIDS, Polio, and Tuberculosis are easily avoidable with proper education on the communicability of diseases.

Minority Communities often fail to receive basic healthcare. Further challenging is the organization of healthcare LGBTQIA+ persons who cannot seek medical assistance due to fear of criminal sanctions, as might be the case in many countries. The only solution to this problem is widespread social acceptance of the communities. The overarching importance of health cannot be instated in a community fearful of their lives. This is also often the case with refugees, migrants, irregulars, and prisoners. It is hence necessary for countries to re-evaluate and re-examine whether pre-existing laws, regulations or just the regular practices of the general public health facilities prohibit or obstruct open access to any particular population groups or individuals, thereby focusing on a non-discriminatory approach to enable open access to healthcare. 

Affordable healthcare

The affordability of healthcare is an overlooked aspect of Human Rights. Although there is no explicit implication of affordability of medical services in the UDHR or the ICESCR, it is the primary determinant on whether or not patients opt for healthcare. Unaffordable rates might hinder the population from receiving the required health care education and vaccinations. Such is a sad example of the USA, where a sizeable chunk of the population fears vaccines and wearing masks, especially in the middle of a pandemic where the same could save the lives of countless peoples.

Affordable health care and proper health education could help cure the deleterious tendencies of such people from taking effectively hazardous decisions with regards to themselves and their families, endangering both others and their children. Effective regulation of the pharmaceutical industry by the government and better funding in the health industry are necessary to cure the big-picture problems of overpriced medicine and other treatments. The right to health is not one that is meant to be a long-term goal of the State parties but rather to ensure rapid healthcare to persons injured and sick. Emergency services are the cornerstone of society and it is required for all State parties to ensure their citizens have access to affordable healthcare at the earliest. In the simplest of terms – affordable health care is accessible health care. 

The case in India

India is a party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The Supreme Court has often referred to international human rights standards when dealing with human rights issues in the country. Article 21 of the Constitution of India, or the right to life and liberty, about HR, is meant to be read in conformity with international law. The Indian judicial system has broadened the scope of the right to life and liberty. The ambit of Article 21 is extremely vast and over time, courts have implemented legality to even the Directive Principles of State Policy of the Constitution by reading it with Article 21.

The right to timely medical assistance is also covered under Article 21. In medico-legal issues, the Supreme Court has stressed the need of providing immediate medical help to injured people in order to preserve life as well as the responsibilities of the State and its doctors in that regard. Similarly, the Court has affirmed that maintaining health services is not only a right established in Article 21 but also a constitutional obligation imposed on the state to provide this under both Article 21 and Article 47 of the Constitution. Improving public health is hence the primary responsibility of the State.

In Vincent Panikulangara vs UOI, the Supreme Court held: 

“Maintenance and improvement of public health have to rank high as these are indispensable to the very physical betterment of these depends on the building of the society of which the Constitution makers envisages. Attending public health, in our opinion, therefore, is of high priority – perhaps the one at the top.”

With regards to the recent COVID-19 pandemic that swept the world, the Indian Supreme Court has advanced the interpretation of accessible health services by upholding that cheap and affordable treatment is a requirement of the Right to Health while noting the financial constraints that the poorer sections of society might face with regards to medical costs and basic resources. The Court held that:

“The Right to health is a fundamental right guaranteed under Article 21 of the Constitution of India. Right to health includes affordable treatment. Therefore, it is the duty of the State to make provisions for affordable treatment and more and more provisions in the hospitals to be run by the State and/or local administration are made. It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished. Therefore, either more and more provisions are to be made by the State Government and the local administration or there shall be a cap on the fees charged by the private hospitals, which can be in the exercise of the powers under the Disaster Management Act.”

This blanket interpretation on the fundamental human right to life enabled India to somehow sustain, manage, and produce health resources at semi-affordable rates to the extent it could, giving leeway to the fact that it is the 2^nd most populous country on earth, making it no small feat.

Conclusion

As per WHO reports, over half of the world’s population cannot get access to essential health services. The primary cause of this, as noted by the World Bank, which co-authored the report, is a large number of households are pushed into poverty because of having to pay for health care out of their own pockets. Affordability of health services is the preliminary facet to the fundamental human right of access to health, to have one without the other is absurd and senseless. There are still many gaps in India and other countries, developed and undeveloped, on the availability of basic health care services. This is primarily due to inflation in prices of health care services, discrimination, and gross misinformation. Refugees and other minorities fail to receive health care services due to their ethnicity; poorer people are bankrupted through expensive treatments and medication and misinformation spread like wildfire in the era of global connectivity. It is the obligation of States to manage and coordinate their resources effectively. 

It must remain the immediate goal of all States to build a solid health financing framework that protects each vulnerable person from financial hardship while also assisting in the development of health care facilities and the growth of a workforce to deliver vital health services to people where they live. Accountability at the regional level is the most effective way to protect the right to health and other health-related rights. There is still a long way to go till every human can enjoy the highest achievable standard of physical and mental health but it is with complete confidence that the author can conclude that it is not impossible and an attainable standard. With proper co-operation at both the International and Regional levels, it is possible to guarantee every human Universal Health Coverage and is not limited by their financial or physical situation and can access the health services they need.

References

• Coomans/Künnemann (2012); de Schutter et al. (2012); Krennerich (2013), 124–128
•  E/C.12/2000/4, 11th August 2000, ¶ 12.
• General Comment No. 14 on the highest attainable standard of health (2000), The Committee on Economic, Social and Cultural Rights, E/C.12/2000/4. 
• In Re: vs. The proper treatment of COVID-19 Patients and dignified handling of dead bodies in the Hospitals etc., (2021) 2 SCC 519.
• Tracking universal health coverage: 2017 global monitoring report. World Health Organization and International Bank for Reconstruction and Development / The World Bank; 2017. License: CC BY-NC-SA 3.0 IGO.

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