Protection of the health-related rights in international law

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Protection of the health-related rights in international law

Maryna Medvedieva, Dr. hab. in Law, Professor of the Institute of International Relations of Taras Shevchenko National University of Kyiv*

Резюме

Медведєва М.О. Захист прав у сфері охорони здоров'я в міжнародному праві.

У статті проаналізовано механізм міжнародно-правового захисту права на здоров'я, яке належить до «позитивного» зобов'язання та обов'язку «належної обачності» держав. Окрему увагу приділено аналізу прав пацієнтів та принципу вільної та поінформованої згоди в міжнародному праві. Автор розглядає відповідні міжнародні договори, рекомендаційні документи, практику міжнародних судових та квазі-судових органів з означених питань. Зроблено висновок щодо зв'язку між правом на охорону здоров'я, правами пацієнтів та принципом вільної та поінформованої згоди на медичне втручання. Крім того, автор висвітлює деякі проблемні питання розробки п'ятого додаткового протоколу до Конвенції Ов'єдо стосовно примусового утримання та лікування.

Ключові слова: право на здоров'я, права пацієнтів, вільна та поінформована згода, міжнародне право, міжнародний договір, міжнародні суди. international legal protection law

Резюме

Медведева М.А. Защита прав в сфере здравоохранения в международном праве.

В статье проанализирован механизм международно-правовой защиты права на здоровье, которое относится к «позитивному» обязательству и обязательству «должной осмотрительности» государств. Особое внимание уделено анализу прав пациентов и принципа свободного и информированного согласия в международном праве. Автор рассматривает соответствующие международные договоры, рекомендательные документы, практику международных судебных и квази-судебных органов по указанным вопросам. Сделан вывод о связи между правом на охрану здоровья, правами пациентов и принципом свободного и информированного согласия на медицинское вмешательство. Кроме того, автор освещает некоторые проблемные вопросы разработки пятого дополнительного протокола к Конвенции Овьедо относительно принудительного содержания и лечения.

Ключевые слова: право на здоровье, права пациентов, свободное и информированное согласие, международное право, международный договор, международные суды.

Summary

Maryna Medvedieva. Protection of the health-related rights in international law.

The right to health which contains a number of freedoms and entitlements belongs to one of the fundamental human rights. It was defined for the first time in the WHO Constitution and further developed in international universal and regional agreements, case- law of international courts and jurisprudence of treaty bodies. As a `positive' obligation and obligation of `due diligence', the right to health envisages that states must take all necessary measures and make every possible effort to respect, protect and fulfill this right by public as well as private actors within their borders. They must respond to all human rights violations as a result of any activity under their jurisdiction or control which is conducted by governmental (public) as well as by non-state (private) actors. States cannot justify a failure to respect their obligations concerning the right to health because of hard economic situation or lack of necessary resources. International law gives states the possibilities to implement the right to health gradually depending on the resources available. The article analyzes the core minimum obligations of states in relation to the right of health.

A separate category is the rights of patients which are based on health-related individual as well as collective rights. Although modern international law lacks universal treaty on the protection of the patients' rights, a regional Oviedo Convention alongside with its additional protocols comprises the modern code of the patients' rights in `hard' international law. Some relevant non-binding international documents, including the European Charter of Patients' Rights, are also considered.

The central element of the patients' rights is the free and informed consent to any medical treatment or research which is also rooted in modern international law. The principle of free and informed consent to medical treatment which is one of the international health law principles, may be derived from the right to health and patients' rights but it has also its roots in some other fundamental human rights such as the right to be free from torture or to cruel, inhuman or degrading treatment or punishment. The free and informed consent became the cornerstone for new draft additional protocol to the Oviedo Convention with regard to involuntary placement and involuntary treatment.

Key words: the right to health, patients' rights, free and informed consent, international law, international treaty, international courts.

Problem setting

COVID-19 proved to be a real test for societies, governments, communities and individuals¹. The pandemic caused by the spread of SARS-CoV-2 coronavirus highlighted the need to ensure human rights in an emergency, the importance of proper justification of the established restrictions on these rights, as well as the irreversibility of state responsibility for their violation. COVID-19 became a litmus test for the proper implementation of the right to health at international and national levels. During the COVID-19 pandemic, states resorted to restrictions of some human rights and derogations from their obligations under relevant treaties. International courts and tribunals will assess the proportionality, legality and necessity of measures restricting freedom of movement, right to privacy, freedom of expression, right to education or property, which were imposed in connection with the spread of the coronavirus. These rights are closely connected with the right to health which belongs to the `positive' and `due diligence' obligations of states. Such obligations must be fulfilled in everyday life as well as during emergencies.

Recent literature review

The issue of the protection of the human right to health in international law has been duly elaborated in academic literature. The works of some foreign authors (Da Silva M., Yamin A.E., Chirwa D.M., Hunt P., Castleberry C.A., Dittrich R., Cubillos L., Gostin L., Chalkidou K. and Li R.) may be appraised for the thorough analysis of international legal documents and judicial practice in this regard. Scientific papers of such foreign authors as Obidimma E. and Poklaski A. are referred to in this article within the context of the patients' rights. Nevertheless, these scholars do not pay enough attention to the health-related case-law of international courts on human rights. Furthermore, they do not make correlations between the human right to health, patients' rights and the principle of free and informed consent to medical treatment.

The purpose of the article

The purpose of the article is to provide a detailed analysis of the international legal protection of the human right to health, in general, and patients' rights including the free and informed consent principle, in particular.

Main research results

The scope and nature of the right to health is contested in academic literature and among legal experts, but the existence of the right as a matter of positive international human rights law is not². Yamin A.E. is of the view that the human right to health has evolved rapidly under international law, and will be further developed and clarified over time in response to shifts in social, economic and medical factors³. Chirwa D.M. observes that two developments provided the impetus for the recognition of the right to health in the 20th century: the first was the great depression of the 1930s, which fueled calls for social welfare programs aimed at providing social security to citizens, and the second was the Second World War and the horrors of the holocaust⁴.

The right to health was defined for the first time by the World Health Organization in its Constitution (1946) which provides 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', meanwhile, health is defined there as `a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity'⁵. Later, that right was repeated in the Universal Declaration of Human Rights (1948): `Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including ... medical care ..., and the right to security in the event of ... sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control'<sup>6</sup>. The International Covenant on Economic, Social and Cultural Rights (1966) expanded the right of everyone to the enjoyment of the highest attainable standard of health: its definition embraces physical as well as mental health of a human being (Article 12)<sup>7</sup>. It is important to note that the right to health is considered to be a component of the right to a standard of living under the Declaration, meanwhile, it is considered a separate right under the Covenant<sup>8</sup>. In its General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000) the UN Committee on Economic, Social and Cultural Rights defined the right to health by a wide range of socio-economic factors that promote conditions in which people can lead a healthy life and recognized that the right `extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy envi- ronment'⁹. The UN Sustainable Development Goal 3 is dedicated to the implementation of the right to health by ensuring healthy lives and promoting well-being for all at all ages.

The right to health contains freedoms and entitlements. The freedoms include the right to be free from medical treatment without prior informed consent as well as from any interference to one's own body and health, such as medical experiments, forced sterilization or abortion; it also embraces the right to be free from torture and other cruel, inhuman or degrading treatment or punishment. The entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health, including the right to prevention, treatment and control of infectious and non-communicable diseases; access to essential medicines and health services; access to maternal, child and reproductive health facilities; the right to safe environment, industrial hygiene and occupational health; the provision of health-related education and information; participation of the population in health-related decision-making, etc.¹⁰.

Health services, goods and facilities must be provided to all without any discrimination and must be available, accessible, acceptable and of good quality¹¹. The states are obliged to take certain steps in order to achieve the full realization of the right to health. States cannot justify a failure to respect their obligations concerning the right to health because of hard economic situation or lack of necessary resources. Article 2 of the International Covenant on Economic, Social and Cultural Rights stipulates that each State Party has to undertake steps to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures¹². This obligation is the obligation of due diligence which envisages that states must take all necessary measures and make every possible effort to respect, protect and fulfill human rights within their borders. They must respond to all human rights violations as a result of any activity under their jurisdiction or control which is conducted by governmental (public) as well as by non-state (private) actors. The wording of the obligation of `progressive realization' of economic, social and cultural rights stipulated in that Covenant is distinct from the wording of the states' obligations stipulated in the International Covenant on Civil and Political Rights (1966). The later provides in Article 2 that `Each State Party ... undertakes to respect and to ensure ... the rights recognized in the present Covenant'¹³. Thus, states must implement its provisions immediately, while the former document has a focus on `progression toward a goal'<sup>14</sup> and gives its parties the possibilities to implement its provisions gradually depending on the resources available. As Castleberry C. argues, the reason for this difference is that `while civil and political rights are characterized as predominantly “negative rights” with which signatory states must not interfere, economic, social and cultural rights are characterized as “positive rights” that require signatory states to expend resources to fulfill them'¹⁵. Furthermore, while the International Covenant on Economic, Social and Cultural Rights does not provide the derogation provisions, the International Covenant on Civil and Political Rights envisages such a possibility in times of epidemics (Article 4). Furthermore, the latter stipulates that public health may become the ground for restrictions of some civil and political rights and freedoms (Articles 12, 18, 19, 21, 22).

The core minimum obligations of states in relation to the right of health are to ensure: the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups; access to the minimum essential food which is nutritionally adequate and safe; access to shelter, housing and sanitation and an adequate supply of safe drinking water; the provision of essential drugs; equitable distribution of all health facilities, goods and services¹⁶. These obligations may be grouped into three categories: (1) the obligation to respect requires states to refrain from interfering directly or indirectly with the right to health (e.g., refrain from discrimination in health care provision); (2) the obligation to protect requires states to prevent third parties from interfering with the right to health (e.g., control the marketing of medicines); (3) the obligation to fulfil requires states to adopt appropriate legislative, administrative, budgetary, judicial and other measures to fully realize the right to health (e.g., adopt relevant health policy and provide sanctions for violations)¹⁷.

The right to health is enshrined in a number of universal treaties, such as International Convention on the Elimination of All Forms of Racial Discrimination 1965 (Article 5), Convention on the Elimination of All Forms of Discrimination against Women 1979 (Articles 11, 12 and 14), Convention on the Rights of the Child 1989 (Article 24), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (Articles 28, 43 and 45), Convention on the Rights of Persons with Disabilities 2006 (Article 25). The right to health is explicitly mentioned in regional instruments: African Charter on Human and Peoples' Rights 1981 (Article 16), Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights 1988 (Article 10), European Social Charter (revised) 1996 (Articles 3 and 11), Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa 2003 (Article 14), Charter of Fundamental Rights of the European Union (Article 35), Arab Charter on Human Rights 2004 (Article 39), the Association of South East Asian Nations Human Rights Declaration 2012 (Article 29). Furthermore, over 100 constitutions of different states recognize the right to health¹⁸. Thus, we can draw to the conclusion that the right to health is firmly rooted into treaty and constitutional law.

Besides, international courts have a vast case-law concerning the implementation of that right in different states. The right to health is not provided directly in the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, but due to the evolutionary interpretation of the Convention by the European Court of Human Rights it became possible to protect it through other rights, such as the right to life, the prohibition of torture, the right to liberty and security, the right to a fair trial, respect for private and family life, etc. The European Court of Human Rights considered a number of health-related cases which concerned such issues as medical negligence in pregnancy and birth, medically assisted procreation, surrogacy, abortion, prenatal testing, end-of-life situations, informed consent, health of detainees and migrants, healthy environment, health at the workplace, protection of medical data, etc.¹⁹. For example, compulsory medical treatment and protection of mental health was the subject matter of the case of Gorshkov v. Ukraine; protection of health from infectious diseases in prison - case of Khokhlich v. Ukraine; medical care in the context of long-term illness - case of Salakhov and Islyamova v. Ukraine.

The Inter-American Court of Human Rights determined in the case of Cuscul Piraval et al v. Guatemala that the inaction of the state to extend healthcare services to people with HIV/AIDS violated the right to health pursuant to Article 26 of the American Convention; the state was responsible for the violation of the prohibition of discrimination in relation to the obligation to ensure the right to health and the principle of progressivity²⁰.

African Commission on Human Rights dealt with the health issues of detained persons in the case of International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) v. Nigeria. The case arose out of the unlawful activities of Shell and Nigerian government in the Ogoniland and paved the way to another case (Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria) which concerned the harmful consequences of those activities for the environment and health of the Ogoni people²¹.

Right to health may be compared to an umbrella which embraces rights to health enjoined by different categories, like women, children, elderly, persons with disabilities, prisoners, migrants, ethnic and racial groups, refugees, etc. All these vulnerable groups are protected under international law and have a specific regulation of their right to health by `hard' and `soft' law instruments. Besides, international law has a separate set of legal rules related to the protection of patients' rights, which may be regarded as one of the institutes of international health law. As Obidimma E. argues, a patient's right to determine his or her treatment is fundamental and reflects the respect for the autonomy of the individual²². The rights of patients depend upon individual rights, including the fundamental right to health, as well as collective rights of a special social group - patients. Individual freedom and self-determination of a person, on the one side, and public health concerns, on the other, paved the way to the recognition of patients' rights in different states and international law²³. Nowadays, individual and collective dimensions of the patients' rights are complemented by cross-border aspect - the `medical tourism' phenomenon, when patients travel from a home country to a foreign destination to receive medical treatment<sup>24</sup>. `Medical tourists' receive many benefits but at the same time they face additional risks which demand the protection of their patients' rights in a transboundary context.

Modern international law lacks universal treaty on the protection of the rights of patients which would address all possible risks and challenges. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine 1997 (Oviedo Convention) was adopted within the framework of the Council of Europe. Alongside with its additional protocols it comprises the modern code of the patients' rights in `hard' international law, though regional one. The Convention provides such rights as equitable access to health care, intervention in the health field according to professional standards, free and informed consent to any medical treatment, the right to respect for private life, right to health-related information, non-discrimination on grounds of genetic heritage, etc.²⁵. Protocols concerning the transplantation of organs and tissues of human origin 2002, biomedical research 2004, genetic testing for health purposes 2008 expand the scope of the Convention concerning the protection of certain categories of patients.

There is a non-binding European Charter of Patients' Rights 2002 which proclaims fourteen rights of the patient: right to preventive measures, right of access to health services, right to health-related information, right to consent to any medical treatment, right to free choice among treatment procedures, right to privacy and confidentiality, right to respect of patients' time, right to the observance of quality standards, right to safety, right to innovation, right to avoid unnecessary suffering and pain, right to personalized treatment, right to complain and right to compensation²⁶. Furthermore, there are some other `soft law' instruments dealing with the patients' rights such as the World Medical Association Declaration of Lisbon on the Rights of the Patient 1981, the Declaration on the Promotion of Patients' Rights in Europe 1994, the Ljubljana Charter on Reforming Health Care 1996, the Jakarta Declaration on Health Promotion 1997, etc.

The central element of the patients' rights is the free and informed consent to any medical treatment or research. The informed consent to medical treatment may be defined as voluntary acceptance by a patient of the proposed treatment, which is based on the receipt of objective and comprehensive information about this treatment, all possible complications and alternative options. The principle of free and informed consent to medical treatment which is one of the international health law principles, may be derived from the right to health and patients' rights but it has also its roots in some other fundamental human rights such as the right to be free from torture or to cruel, inhuman or degrading treatment or punishment (e.g., Article 7 of the International Covenant on Civil and Political Rights).

For the first time, the obligation to obtain the consent of a patient was enshrined in the Nuremberg Code 1947, which defined the conditions for ethical and humane research on humans. Now, the principle of informed free consent is enshrined in Articles 5-9 of the Oviedo Convention, Article 14 of the Additional Protocol on Biomedical Research to the Oviedo Convention, Article 13 and 17 of the Additional Protocol on Transplantation of Human Organs and Tissues to the Oviedo Convention, Article 9 of the Additional Protocol on Genetic Testing for Health to the Oviedo Convention, Article 5 of the UNESCO Universal Declaration on the Human Genome and Human Rights, Article 6 of the UNESCO General Declaration on Bioethics and Human Rights. The principle of informed free consent to medical interventions also provides for the appropriate protection of persons who are unable to give such a consent.

The free and informed consent became the cornerstone for new draft additional protocol to the Oviedo Convention with regard to involuntary placement and involuntary treatment. The draft protocol was elaborated by the Committee on Bioethics of the Council of Europe and put for public consultations in 2015. Some organizations submitted their observations stating that the draft used stigmatizing language in reference to persons with psychosocial disabilities; breached the principle of non-discrimination; legitimized the use of force and arbitrary deprivation of liberty; conflicted with the human rights standards set by the United Nations Convention on the Rights of Person with Disabilities²⁷. The Committee on Bioethics was reminded of the obligations of the state parties to the Convention on the Rights of Persons with Disabilities not to deprive such persons of the right to make and pursue their own decisions under the principle of free and informed consent. The draft was revised according to the expressed objections and now is available on the Council of Europe site. The document stipulates that its aim is to protect the dignity and identity of persons with mental disorder and guarantee, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to involuntary placement and involuntary treatment²⁸.

Conclusions

Thus, the right to health which contains a number of freedoms and entitlements belongs to one of the fundamental human rights. It was defined for the first time in the WHO Constitution and further developed in international agreements, case-law of international courts and jurisprudence of treaty bodies. As a `positive' obligation and obligation of due diligence, the right to health envisages that states must take all necessary measures and make every possible effort to respect, protect and fulfill this right by public as well as private actors within their borders. A separate category is the rights of patients which are based on health-related individual as well as collective rights. Although modern international law lacks universal treaty on the protection of the patients' rights, a regional Oviedo Convention alongside with its additional protocols comprises the modern code of the patients' rights in `hard' international law. The central element of the patients' rights is the free and informed consent to any medical treatment or research which is also rooted in modern international law. The principle of free and informed consent to medical treatment may be derived from the right to health and patients' rights but it has also its roots in some other fundamental human rights such as the right to be free from torture or to cruel, inhuman or degrading treatment or punishment.

Література

The Office of the UN High Commisioner for Human Rights. COVID-19 Guidance. 13 May 2020. URL: https://www.ohchr. org/EN/NewsEvents/Pages/COVID19Guidance.aspx.

² Da Silva M. The International Right to Health Care: A Legal and Moral Defense. Michigan Journal of International Law. 2018. Vol. 39, Iss. 3. P. 343-384.

³ Yamin A.E. The Right to Health Under International Law and Its Relevance to the United States. American Journal of Public Health. 2005. Vol. 95, No. 7. P. 1156-1161.

⁴ Chirwa D.M. The Right to Health in International Law: Its Implications for the Obligations of State and Non-State Actors in Ensuring Access to Essential Medicine. South African Journal on Human Rights. 2003. Vol. 19. P. 541-566.

⁵ Constitution of the World Health Organization, 22 July 1946. URL: https://www.who.mt/govemance/eb/who_constitution_en.pdf

⁶ Universal Declaration of Human Rights, 10 December 1948. URL: https://www.un.org/en/about-us/universal-declaration-of- human-rights.

⁷ International Covenant on Economic, Social and Cultural Rights, 16 December 1966. URL: https://www.ohchr.org/en/profes- sionalinterest/pages/cescr.aspx

⁸ Chirwa D.P. 546.

⁹ Committee on Economic, Social and Cultural Rights. General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), 2000. URL: https://www.refworld.org/pdfid/4538838d0.pdf

¹⁰ Office of the United Nations High Commissioner for Human Rights and World Health Organization. The Right to Health. Fact Sheet No. 31. URL: https://www.ohchr.org/documents/publications/factsheet31.pdf

¹¹ Committee on Economic, Social and Cultural Rights. General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), 2000. URL: https://www.refworld.org/pdfid/4538838d0.pdf

¹² International Covenant on Economic, Social and Cultural Rights, 16 December 1966. URL: https://www.ohchr.org/en/profes sionalinterest/pages/cescr.aspx

¹³ International Covenant on Civil and Political Rights, 16 December 1966. URL: https://www.ohchr.org/documents/professio nalinterest/ccpr.pdf

¹⁴ Hunt P. Interpreting the International Right to Health in a Human Rights-Based Approach to Health. Health and Human Rights Journal. 2016. URL: https://www.hhrjournal.org/2016/12/interpreting-the-international-right-to-health-in-a-human-rights-based- approach-to-health/

¹⁵ Castleberry C.A. Human Right to Health: Is There One and, if so, What Does it Mean? International Human Rights Law Review. 2015. Vol. 10. P. 189-232.

¹⁶ Office of the United Nations High Commissioner for Human Rights and World Health Organization. The Right to Health. Fact Sheet No. 31. URL: https://www.ohchr.org/documents/publications/factsheet31.pdf

¹⁷ Office of the United Nations High Commissioner for Human Rights and World Health Organization. The Right to Health. Fact Sheet No. 31. URL: https://www.ohchr.org/documents/publications/factsheet31.pdf

¹⁸ Dittrich R., Cubillos L., Gostin L., Chalkidou K. and Li R. The International Right to Health: What Does It Mean in Legal Practice and How Can It Affect Priority Setting for Universal Health Coverage? Health Systems and Reform. 2016. Vol. 2, No. 1. P. 23-31.

¹⁹ ECHR. Bioethics and case-law of the Court: Research Report. 2016. URL: https://www.echr.coe.int/Documents/Research_ report_bioethics_ENG.pdf

²⁰ Inter-American Court of Human Rights. The judgment in the case of Cuscul Piraval et al v. Guatemala. 23 August 2018. URL: https://www.corteidh.or.cr/docs/casos/articulos/seriec_359_ing.pdf

²¹ Compendium of documents and cases on the right to health under the African human rights system. 2013. URL: https://dulla homarinstitute.org.za/news/003.pdf

²² Obidimma E. and Obidimma A. Right of a Patient to Refuse Medical Treatment: Justification for Judicial Intrusion. Nnamdi Azikiwe University Journal of International Law and Jurisprudence. 2014. Vol. 5. P. 150-162.

²³ Hermans H. Patients' Rights in the European Union: Cross-Border Case as an example of the righ to health care. European Journal of Public Health. 1997. Vol. 7, No. 3. P. 11-13.

²⁴ Poklaski A. Toward an International Constitution of Patient Rights. Indiana Journal of Global Legal Studies. 2016. Vol. 23, Iss. 2. P. 893-924.

²⁵ Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, 4 April 1997. URL: https://rm.coe.int/168007cf98.

²⁶ European Charter of Patients' Rights, November 2002. URL: https://ec.europa.eu/health/ph_overview/co_operation/mobility/ docs/health_services_co 108_en.pdf

²⁷ Joint Communication from Special Procedures. 2017. URL: https://rm.coe.int/letter-un-bodies-to-sg/16808e5e28

²⁸ Draft additional protocol to the Oviedo Convention with regard to involuntary placement and involuntary treatment. URL: https://rm.coe.int/inf-2018-7-psy-draft-prot-e/16808c58a3

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