Human Rights Entitlement to Health:
What Does It Mean in
Practice and How Can It Affect
Priority Setting for UHC?
Parallel
Session
1.4
The “right to health” is enshrined in the WHO Constitution. It is required under
international law, notably in the International Covenant of Social, Economic, and
Cultural Rights (ICSECR). And the right to health is found in the constitutions
of many states, notably in India, Asia, Africa and Latin America, where it is also
justiciable (subject to protection by the judiciary). As a result, in a growing number of
cases, individual patients denied access to high-cost medicines and technologies
under UHC have challenged this through courts of law, which have often, but not
always, ruled in favor of those patients. In many other situations, citizens resort to
courts to request access for medicines, services, technologies already included
in the benefit basket of their country. The former cases speak to challenges to
priority setting processes whereas the latter to shortfalls on the service delivery
mechanisms.
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Background
Objectives
The session will aim to discuss country experiences and examples of litigation over
access to treatments in countries like India, Brazil, Mexico, Colombia, Uganda, South
Africa, and the United Kingdom, with a view to reflecting on potential implications for
emerging economies looking to introduce entitlements to services such as the Indian
National Health Assurance Mission.
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Moderator I Speakers I Panelists
Moderator
Siri Gloppen
Research Director, CMR Michelsen Institute, Norway
Speakers
Leonardo Cubillos
Physician and Researcher, Dartmouth College, USA
Kola Odeku
Ford Foundation Scholar, University of Limpopo, South Africa
Mulumba Moses
Executive Director, Center for Health,
Human Rights and Development (CEHURD), Uganda Christian University, Uganda
Anand Grover
Senior Advocate, Supreme Court of India
Director, Lawyer’s Collective, India
Panelists
Ruth Faden
Executive Director, Johns Hopkins Berman Institute, USA
Lawrence Gostin
Founding O’Neill Chair in Global Health Law, Georgetown University, USA
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Moderator
Siri Gloppen
Research Director
CMR Michelsen Institute
Norway
Siri Gloppen is Director of the Centre on Law & Social Transformation; Professor of Comparative Politics at the
University of Bergen in Norway and Senior Researcher at the Chr. Michelsen Institute. In her research, at the
intersection between law and politics she explores the use of law as an instrument of social change. Particular
focus is on the role of law, courts and legal mobilization based on the right to health and sexual and reproductive
rights. She has led several cross-regional research projects comparing the social and political role of courts in
Africa, Latin America, and India. Her current research projects include: “Operationalizing the Right to Health in
Service Delivery” (2013-2016); “Sexual and Reproductive Rights Lawfare “ (2014-18); “Political determinants of
sexual and reproductive health: Criminalisation, health impacts and game changers” (2015-2020) and “Land
Rights and Inclusive Sustainable Development in India” (2013 - 2016) Recent (collaborative) books include
Litigating Health Rights: Can Courts Bring More Justice to Health (Harvard 2011); Climate Change Discourses,
Rights and the Poor (Juta 2013); Juridification and Social Citizenship (E.Elgar, 2014).
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1.4
Lawrence Gostin
Founding O’Neill Chair in Global Health Law
Georgetown University
USA
Lawrence O. Gostin is University Professor, Georgetown University’s highest academic rank conferred by the
University President. Prof. Gostin directs the O’Neill Institute for National and Global Health Law and is the
Founding O’Neill Chair in Global Health Law. He served as Associate Dean for Research at Georgetown Law
from 2004 to 2008. He is Professor of Medicine at Georgetown University and Professor of Public Health at the
Johns Hopkins University.
Prof. Gostin is the Director of the World Health Organization Collaborating Center on Public Health Law &
Human Rights. The WHO Director-General has appointed Prof. Gostin to high-level positions, including the
International Health Regulations (IHR) Roster of Experts and the Expert Advisory Panel on Mental Health. He
served on the Director-General’s Advisory Committee on Reforming the World Health Organization, as well as
numerous WHO expert advisory committees on the Pandemic Influenza Preparedness Framework, smallpox,
and genomic sequencing data. He is a member of the WHO/Global Fund Blue Ribbon Expert Panel entitled,
The Equitable Access Initiative to develop a global health equity framework.
Professor Gostin serves on two global commissions to report on the lessons learned from the 2015 West Africa
Ebola epidemic: Commission on a Global Health Risk Framework (National Academy of Sciences, supported
by WHO, World Bank, Gates Foundation, and Rockefeller Foundation) and the Independent Panel on the Global
Response to Ebola (Harvard University/London School of Hygiene and Tropical Medicine).
Prof. Gostin holds a number of international academic professorial appointments: Visiting Professor (Faculty
of Medical Sciences) and Research Fellow (Centre for Socio-Legal Studies) at the University of Oxford, United
Kingdom; the Claude Leon Foundation Distinguished Scholar and Visiting Professor at the University of
Witwatersrand, Johannesburg, South Africa; and the Miegunyah Distinguished Visiting Fellow and Founding
Fellow of the Centre for Advanced Studies (Trinity College), University of Melbourne. Prof. Gostin served as
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Moderator I Speakers I Panelists
Secretary and a member of the Governing Board of Directors of the Consortium of Universities for Global Health.
Prof. Gostin holds numerous editorial appointments in leading academic journals throughout the world. His
principal position is the Health Law and Ethics Editor, Contributing Writer, and Columnist for the Journal of the
American Medical Association. He is also Founding Editor-in-Chief of Laws (an international open access law
journal). He was formally the Editor-in-Chief of the Journal of Law, Medicine & Ethics.
Prof. Gostin holds four honorary degrees. In 1994, the Chancellor of the State University of New York conferred
an Honorary Doctor of Laws Degree. In 2006, Her Majesty Queen Elizabeth II and the Vice Chancellor awarded
Cardiff University’s (Wales) highest honor, an Honorary Fellow. In 2007, the Royal Institute of Public Health
(United Kingdom) designated Prof. Gostin as a Fellow of the Royal Society of Public Health (FRSPH). In 2012,
the Chancellor of the University of Sydney – on the nomination of the Deans of the Law and Medical Schools –
conferred a Doctor of Laws (honoris causa) in the presence of two Justices of Australia’s highest court—Justices
Kirby and Haydon.
Prof. Gostin is an elected lifetime Member of the National Academy of Medicine (formerly Institute of Medicine),
National Academy of Sciences. He has served on the National Academy’s Board on Health Sciences Policy, the
Board on Population Health and Public Health Practice, the Human Subjects Review Board, and the Committee
on Science, Technology, and Law. He chaired the National Academy’s Committee on Global Solutions to
Falsified, Substandard, and Counterfeit Medicines. He has chaired National Academy Committees on national
preparedness for mass disasters, health informational privacy, public health genomics, and human subject
research on prisoners.
The National Academy of Medicine awarded Prof. Gostin the Adam Yarmolinsky Medal for distinguished service to
further its mission of science and health. He received the Public Health Law Association’s Distinguished Lifetime
Achievement Award “in recognition of a career devoted to using law to improve the public’s health” presented at
the CDC. The New York Public Health Law Association conferred the Distinguished Lifetime Achievement Award
for extraordinary service to improve the public’s health.
Prof. Gostin is also a lifetime elected Member of the Council of Foreign Relations (providing independent advice
to governments on foreign policy) and a Fellow of the Hastings Center (for bioethics and public policy).
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Internationally, Prof. Gostin received the Rosemary Delbridge Memorial Award from the National Consumer
Council (United Kingdom) for the person “who has most influenced Parliament and government to act for the
welfare of society.” He also received the Key to Tohoko University (Japan) for distinguished service for human
rights in mental health.
Prof. Gostin has led major law reform initiatives in the U.S., including the drafting of the Model Emergency Health
Powers Act (MEHPA) to combat bioterrorism and the “Turning Point” Model State Public Health Act. He is also
leading a drafting team for the World Health Organization and International Development Law Organization,
Advancing the Right to Health Through Public Health Law.
Prof. Gostin’s proposal for a Framework Convention on Global Health – an international treaty ensuring the right
to health – is now part of a global campaign, endorsed by the UN Secretary-General and Director of UNAIDS.
In the United Kingdom, Lawrence Gostin was the Legal Director of the National Association for Mental Health,
Director of the National Council of Civil Liberties (the UK equivalent of the ACLU), and a Fellow at Oxford University.
He strongly influenced the current Mental Health Act (England and Wales) and brought several landmark cases
before the European Court of Human Rights.
Prof. Gostin’s latest books are: Global Health Law (Harvard University Press, 2014; Chinese Translation Due in
2016)); Public Health Law: Power, Duty, Restraint (University of California Press, 3rd ed. Forthcoming 2016);
Public Health Law and Ethics: A Reader (University of California Press, 2nd ed., 2010); Law and the Health
System (Foundation Press, 2014); Principles of Mental Health Law & Practice (Oxford University Press, 2010).
Paul Farmer, Partners in Health, says of his latest book: Global Health Law is “more than the definitive book on a
dynamic field. Gostin harnesses the power of international law and human rights as tools to close unconscionable
health inequities — the injustices that burden marginalized populations throughout the world. Gostin presents a
forceful vision, one that deserves a wide embrace.”
In a 2012 systematic empirical analysis of legal scholarship, independent researchers ranked Prof. Gostin 1st in
the nation in productivity among all law professors, and 11th in in impact and influence.
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Anand Grover
Senior Advocate, Supreme Court of India
Director, Lawyer’s Collective
India
Anand Grover, is a designa ted Senior Advocate, practicing in the Supreme Court of India and the Director of the
Lawyer’s Collective (India), having offices in Mumbai, Delhi and Bangalore. He was the UN Special Rapporteur
on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Right
to Health) by the UN Human Rights Council from 1 August 2008 to 31 July 2014. Anand Grover is a well-known
long-time advocate and activist on HIV and human rights.
He has argued many cases relating to the rights of people living with HIV, including the first HIV case in India
relating to employment law, on sexual diversity, including the case which decriminalized same sex in the Delhi
High Court, and the Supreme Court, (the Naz Foundation case) now pending decision, (the NALSA case relating
to recognition of transgender identity), cases relating to women in respect of employment, sexual harassment
at the workplace etc., patent cases to make medicines accessible in India, and the developing countries,
including the Novartis (relating to patentability criteria and the cancer drug Gleevec) and the Natco case (relating
to compulsory license of the cancer drug, Nexavar) cases relating rights of sex workers and persons who use
drugs, on tobacco use and information relating to the same, death penalty for drug users.
He has recently been appointed as the Special Public Prosecutor to conduct the prosecution in the 2G case,
one of the biggest anti corruption cases in India.
He has spoken and at the national, regional international conferences. He presented the Jonathan Memorial
Lecture at Toronto Conference on HIV/AIDS.
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Moderator I Speakers I Panelists
Mr. Grover has worked closely with UNAIDS on HIV-related rights and law issues for many years and has been
a valuable resource for it. In this regard, he has served on the UNAIDS Reference Group on HIV and Human
Rights which advises UNAIDS Executive Director, Michele Sidibe, on how it can strengthen the commitment
and capacity of governments, civil society and the private sector to protect and promote human rights in
relation to HIV. At the request of the Government of India, Anand Grover and the Lawyers Collective drafted the
HIV Bill, which is pending with the Government.
He was the member of the drafting group of the International Guidelines on Human Rights & HIV/AIDS and a
member, National Board, AVAHAN, the India AIDS Initiative, Gates Foundation, Board Member of International
AIDS Vaccine Initiative, the Reference Group on Human Rights to the Executive Director, UNAIDS, National
Advisory a member of the World Care Council, a member of the Core Group of NGOs representatives in the
National Human Rights Commission of India and the member of the National Advisory Board on HIV and AIDS
set up the Prime Minister of India.
He is presently a member of Global Commission on Drug Policy and member of the Lancet-University of Oslo
Panel on Global Governance of Health.
In August 2008, Mr. Grover took over from Paul Hunt, as the UN Special Rapporteur on the Right to Health
for a period of six years. He has submitted eleven reports to the UN Human Rights Council (HRC) and the
UN General Assembly on i) TRIPS, Patents, FTAs and the Right to Health; ii) Informed Consent and the Right
to Health, iii) Criminalization of HIV transmission, same sex relations and sex work and the Right to Health iv)
Criminalization of Drug use and the Right to Health; v) Development and Right to Health; vi) Elderly Persons and
the Right to Health; vii) Right to Sexual and Reproductive Health and Criminalization; viii) Access to Medicines
and the Right to Health; ix) Occupation Health; x) Health Financing and xi) Migration and Health; xii) Conflict
and Health; xiii) Promotion of Unhealthy food and health and xiv) Evaluating the Right to Health. He has
also undertaken nine countries missions, to Poland, Australia, Guatemala, Syria, Ghana, Vietnam, Azerbaijan,
Tajikistan and Japan and submitted reports of his missions to the HRC.
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SHORT
PAPER
1.4
PS 1.4
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SHORT PAPER
1.4
The International Right to Health: What does it mean in practice and how can it
affect priority setting for Universal Health Coverage?
Leonardo Cubillos, Lawrence Gostin, Kalipso Cubillos, Ryan Li
Health Systems & Reform supplement for PMAC2016: Abstract
The international human right to health is enshrined in the World Health Organization
Constitution. It is required under international law, notably in the International Covenant
of Social, Economic, and Cultural Rights (ICSECR). The right to health is also found in
the constitutions of many states, notably in India, Asia, Africa and Latin America. In
many countries, the right to health (or to a safe environment or to life, which are also in
national constitutions) is justiciable, meaning that national courts can interpret its
provisions. As a result, in a growing number of cases, individual patients denied access to
high-cost medicines and technologies under Universal Health Coverage (UHC) systems
have challenged the denial of access. Often, but not always, the courts of law have ruled
in favor of those patients. In many other situations, citizens resort to courts to request
access for medicines, services, technologies already included in the benefit basket of their
country. The former cases speak to challenges to priority setting processes whereas the
latter to shortfalls on the service delivery mechanisms.
This article will examine judicial decisions that require access to products not currently
on a government’s list of essential medicines. It will explore the tension between an
individual’s claims to high-cost drugs as a human right against society’s attempts to serve
the whole population. Should the right to health be construed as an individual entitlement
or a collective good? Under what circumstances should courts uphold the right of access
to medical products and using what criteria? These questions highlight the challenges
associated with growing demand for medical services and the finite budgets allocated for
for UHC.
Many states have sought to introduce explicit and evidence-informed mechanisms
of priority-setting such as health technology assessment. Should these evidence-based
population-based tools supplant litigation over the right to health or can the two co-exist,
and why? What is their potential going forward? Can a rights-based approach inform and
potentially strengthen prioritization? Finally, what lessons can be offered to countries
navigating these difficult waters of political economy and ethics, where health, finance
and social security policymakers, courts of law, and interest groups (including the
pharmaceutical industry as well as patient advocacy groups) intersect?
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