Listen to the people! Include health as a fundamental right in new constitution 

by Professor Saroj Jayasinghe-October 11, 2016, 8:18 pm

MBBS, MD (Col), MRCP (UK), MD (Bristol), PhD (Col)

FRCP (Lond), FCCP.

In its most simple form, health means to be well or contented in the key dimensions of life (i.e. physical, mental and social dimensions). In other words, all our struggles, investments and conflicts are ultimately aimed at living a good quality life to a maximum. These are the fundamental goals of human existence from a secular point of view. It is therefore essential that such a basic dimension of existence should be included and enshrined as a fundamental human right in our constitution. The public consultations done by the government overwhelmingly supported this line of thinking.

The next few paragraphs outline the proposal in further detail.

Proposal

The new Constitution should include a clear statement on the right to health. This includes a right to reasonable healthcare, but extended to other determinants of health. The latter is essential because, people fall sick BEFORE they come to healthcare (i.e. visit a clinic, pharmacy or hospital). For example, if the state ignores taking any action on air pollution, we will all choke to death or suffer from diseases such as asthma. Though the precise wording can be improved, examples of such statements include:

"The Constitution guarantees the progressive realization of rights that will enable everyone to enjoy the highest attainable standard of physical, mental and social dimensions of health"

Or

"Every citizen has the right to a reasonable standard of living, adequate for the health and well-being of himself or herself and of his or her family, including the access to medical care, preventive services, basic amenities and social services".

We need such an explicit statement because the current Constitution does not explicitly include health as a fundamental right, and has only an indirect statement (Article 27 2 (c): "the realization by all citizens of an adequate standard of living for themselves and their families, including adequate food, clothing and housing, the continuous improvement of living conditions and the full enjoyment of leisure and social and cultural opportunities").

Common misconceptions

There are four common misconceptions that are used to oppose the inclusion of health as a fundamental right.

1. "Countries cannot afford the right to health". This is absolutely wrong. The level of implementation of any fundamental human right in a constitution is governed by the availability of resources at that time. 

While the detailed steps depend on the context, the state should show progressive movement towards meeting its obligations to respect the right to health. It cannot use the argument of inability to afford, to delay their obligations indefinitely. This is clearly stated in the document The Right to Health: Fact Sheet 31 by the Office of the United Nations High Commissioner for Human Rights and WHO, available freely in the internet.

2. "The right to health is the same as the right to be healthy". A right to health does not mean that the state guarantees that everyone is in perfect good health. Good health is influenced by several factors that are outside the direct control of the state (e.g. individual’s genes, biological make-up and socio-economic conditions) and partly the personal responsibility of the individual.

3. "The ‘right to health’ is the same as the ‘right to healthcare’ ". The right to health is over and above healthcare. It includes healthcare and other determinants of health. As described previously, an example of ‘other determinants’ is air pollution. Interpreting a right to health in this context does not mean that there should be no air pollution. Instead, it means that the state should demonstrate that reasonable and affordable actions have been taken to control rising levels of air pollution.

4. "A ‘right to health’ would permit the judiciary to overstep their role". Judicial interpretations exist in many countries with Common law systems, including our own, contributed to developing ideas on human rights and strengthening their implementation. In fact, the role of the judiciary in this process will promote a change in the political culture, an avowed goal of the current government.

What are the global trends?

There are several other countries and UN organizations that have included or supported health as a fundamental right in their constitutions:

I. The Universal Declaration on Human Rights (UDHR) in Article 25(1) states that "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 necessary social services...

II. The World Health Organization states the following in its constitution: "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".

III. The UN’s International Covenant on Economic, Social and Cultural Rights (ICESCR) describes the right to health in article 12.1 as "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."

IV. The trend is for countries to recognize health as a fundamental right in their constitutions. A study done on 191 countries in 2011 showed that almost 70 countries guarantee the rights to overall health or medical care. (Refer to paper available on-line in Global Public Health 2013; 8:639-653). A few examples are given below:

a) Constitution of South Africa (1996):

Chapter II, Section 27: Health care, food, water and social security:

"(1) Everyone has the right to have access to a. healthcare services, including reproductive health care; b. Sufficient food and water; […]

(2) The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.

(3) No one may be refused emergency medical treatment."

b) Constitution of India (1950):

Part IV, art. 47, articulates a duty of the State to raise the level of nutrition and the standard of living and to improve public health: "The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties…"

c) Constitution of Ecuador (1998):

Chapter IV: Economic, Social and Cultural Rights, art. 42: "The State guarantees the right to health, its promotion and protection, through the development of food security, the provision of drinking water and basic sanitation, the promotion of a healthy family, work and community environment, and the possibility of permanent and uninterrupted access to health services, in conformity with the principles of equity, universality, solidarity, quality and efficiency."

v. Finally, Sri Lanka has endorsed the 17 Sustainable Development Goals of which Goal 3 is explicitly on health ("Ensure healthy lives and promote well-being for all at all ages" is articulated through 9 targets for implementation). As such, inclusion of Health as a Fundamental Right in the new Constitution will give effect to this goal in a concrete manner.