The Role and Responsibility of Health Professionals
The Role and Responsibility of Health Professionals with regard to the Right to the
Highest Attainable Standard of Health: a Medical Perspective of Article 12 of the
International Covenant on Economic Social and Cultural Rights (ICESCR) and General
Comment 14
Dr Peter Hall MBBS, MRCPI, DGM
Honorary Senior Lecturer, University College London
Bernard F. Hamilton MA, LLM, Dip. Int.
Honorary Senior Lecturer, University College London
17 April 2004
1.
Introduction
This paper argues that health professionals, as exemplified by doctors, by virtue
of their special area of expertise and international obligations, have a particular
responsibility to understand, endorse and apply the right to the highest attainable
standard of health.
2.
The Importance of the Right to Health for Doctors
The importance of the right to the highest attainable standard of health to medical
practice lies in its foundation in law, its universality, its conceptual practicality, its
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aspirational appeal, the immediacy of its requirement on States both not to
discriminate1 and to take steps to achieve full realization2, its comprehensiveness, and,
above all, its ownership by ordinary people. The enjoyment of the highest attainable
standard of health was identified as “one of the fundamental rights of every human
being without distinction of race, religion, political belief, economic or social
condition” in the Preamble to the Constitution of the World Health Organization3. The
Universal Declaration of Human Rights recognizes this right in both its broad sense of
underlying determinants of the highest attainable standard of health and its narrow
sense of health care4. Every country in the world is party to at least one human rights
treaty containing key provisions on health, 75% have ratified the International
Covenant on Economic, Social and Cultural Rights and 109 States recognize a right to
health in their constitutions5. Now is a propitious time for doctors world-wide to
apprehend and openly endorse human rights principles pertaining to health and to unite
around General Comment 14 on the Right to Health of the UN Committee on
Economic, Social and Cultural Rights, as a universal code of practice.
3.
The Responsibility of Doctors
Paragraph 42 of General Comment 14 observes that all members of society [...]
including health professionals [...] have responsibilities regarding the realization of the
Right to Health6. The international medical community is uniquely privileged as the
holder of a vast range of health expertise. As such, it is morally obliged to cooperate
1
ICESCR (1966) Art. 2.2 and Art. 3.
ICESCR (1966) Art. 2.1.
3
WHO Constitution (1946) Preamble.
4
UDHR (1948) Art. 22. and Art. 25.
5
Eleanor D. Kinney, The International Human Right to Health: What Does This Mean For Our Nation And
World? Indiana Law Review, Vol. 34, 1465 (2001).
6
E/C. 12/200/4, CESCR General Comment 14, 4 July 2000 Para. 42.
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over advancing the highest attainable standard of health at home and abroad for two
reasons. The first is because the principle of nondiscrimination means that everyone has
the same right to the highest attainable standard of health. The second is because of
international responsibilities enumerated within General Comment 14. Furthermore,
given that the UN Commission on Human Security has established that good health is
both essential and instrumental in achieving human security7; doctors’ particular
expertise is required in order to uphold the purposes and principles of the international
community, including contributing to measures for the solution of health problems8.
Although medical ethical codes have always provided a moral framework that
guides medical practice, they are inherently flawed through inflexibility
and susceptibility to cultural disparities both between nations and over time. Doctors
should accept the pre-eminence of human rights values because of their universality,
their focus on people as rights holders rather than patients, and because human rights
values remain immutable and provide a continuously reliable guide for contemporary
practice. To do so, doctors will need to do take three steps. Firstly, they should
understand the Right to Health. Secondly, they should endorse the Right to Health.
Thirdly, they should apply the Right to Health.
4.
Understanding the Right to Health
Health professionals, like many others, have traditionally viewed human rights as
something that is needed by people overseas. Some medical students assume that
volunteering for human rights involves working in another continent. The idea that a
young registrar needs to stop and think about the human rights of the people she or he is
7
8
UN Commission on Human Security, Human Security Now, 96 (2003).
UN Charter (1945) Art. 1.1., Art. 55.b.
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dealing with in their day-to-day work, when they are highly pressured, under-resourced,
exhausted, trying to identify the symptoms that will produce an accurate diagnosis and
rapidly relieve the suffering of the human who is dependent upon them, is not one that
readily springs into the average doctor’s mind. There is a need for human rights
education within an already crowded medical curriculum that currently tends to equate
legal rights with medical malpractice and higher professional insurance premiums.
An immediate problem when talking to doctors about the Right to Health
is the meaning of the term health. According to the Collins Dictionary, health is
a “state of being [...] free from disease”9. This is a distinctly narrower definition
than that of the World Health Organization, which regards health as a “state of
complete physical, mental and social well-being and not merely the absence of
disease or infirmity”10. However, doctors’ pragmatically derived understanding
of the word health is a state whereby (all) the organs of the body function at a
normal level11. Such an understanding will need to be broadened for the full
meaning of the Right to Health to be appreciated.
Regarding the Right to Health, it will be recognized that most doctors
have not been exposed to the reasoning of the UN Committee on Economic,
Social and Cultural Rights, and so they will gain a greater understanding from
the term ‘the right to the highest attainable standard of health’. A further
advantage of using that term is that it at one denotes the right as being
9
Collins English Dictionary, 5th Edition, Glasgsow; Harper Collins, (2000).
WHO Constitution (1946) Preamble.
11
Normal levels are assessed by comparative measurements on large populations. Less than normal
functioning is consistent with a satisfactory existence if organ function is adequate to the level required thus ageing is not considered, of itself, an unhealthy state - until, that is, one or more organs can no longer
sustain a normal existence.
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achievable rather than essentially aspirational, while at the same time implying
an obligation to strive to the maximum in order to realize more, whether as a
rights holder or their representative or a duty holder. This is not to ignore the
dialogue that has engaged such experts as Chapman12, Leary13 and Toebes14, but
to recall that it is a dialogue to which the medical community must become
privy if it is to share the human rights community’s understanding of the Right
to Health.
The doctor will need to understand that the Right to Health is closely related to
and dependent upon the realization of other human rights. These rights include such
Economic, Social and Cultural Rights as the right to food, housing, work or education,
and such Civil and Political Rights as the right to life, the prohibition against torture,
and freedom of association, of assembly and of movement. Also, the Right to Health
must be understood as a right to the enjoyment of a variety of facilities, goods, services
and conditions necessary for the realization of the highest attainable standard of health.
Doctors must appreciate that the right to the highest attainable standard of health, as
defined in the International Covenant on Economic, Social and Cultural Rights Article
12.1, is an inclusive right, extending not only to timely and appropriate health care, but
also to the underlying determinants of health, such as access to safe and potable water,
adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy
occupational and environmental conditions, and access to health-related education and
Audrey Chapman, A “violations approach” for monitoring the International Covenant on Economic,
Social and Cultural Rights, Human Rights Quarterly, Vol. 18. 29-36 (1996).
13
Virginia Leary, The Right to Health in International Human Rights Law, Health and Human Rights,
Vol. 1, 25 (1994).
14
Brigit C.A. Toebes, The Right to Health as a Human Right in International Law, 17 – 19, Oxford; Hart
(1999)
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information, including on sexual and reproductive health. Another understanding that
doctors need to take on board is that the Right to Health requires the health of people
living in other countries to be taken into account when formulating or acceding to
international agreements and during emergencies.
A further critical aspect for doctors, is the participation of the population in all
health related decision-making at the community, national and international levels. A
crucially important tenet of General Comment 14 with regard to the patient doctor
relationship is that it dignifies people as rights holders rather than passive recipients of
standards defined by others. Thus the traditional doctor patient relationship changes in
favour of a healthier relationship between frequently vulnerable groups and powerful
health professionals. This is significant; because research consistently shows that some
health professionals discriminate against and therefore stigmatize some patient
groups15.
5.
Endorsing and Practising the Right to Health
As indicated above, doctor’ responsibilities determine a role that includes
endorsing and practicing the Right to Health. The involvement of the medical
profession in human rights can be viewed chronologically in three stages - historical,
current, and future.
5.1
Historical Practice
An interpretation of the Hippocratic Oath that takes account of scientific and
social advances over nearly two and a half millennia, bears comparison with the
contemporary right to health care as defined in international human rights law. Thus
Physicians for Human Rights-UK, Response to the UK Government’s Fourth Report under the International
Covenant on Economic, Social and Cultural Rights, Article 12 - the Right to Health, 7 – 8, St. Albans; PHR-UK
(2002) (April 17, 2004) <http://phall.members.gn.apc.org/PHR-UK_April_2002_Report.doc>
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practicing doctors who adhere to the Oath would be expected to be properly trained; to
practice only within their area of expertise; to observe the rule “first do no harm”; to
maintain confidentiality; to respect cultural differences; to maintain high standards of
medical practice; to practice without discrimination; and not to violate the trust of their
patients16. Non-adherence to these ancient medical standards risks violating human
rights.
5.2
Contemporary Practice
Since World War II, a number of non binding documents have contributed to the
definition of ethical medical practice. Most of these emanate from the World Medical
Association (WMA) or the United Nations, and doctors have frequently been involved
in their drafting, often through professional associations or human rights groups.
Examples of these are the 1981 WMA Declaration on the Rights of the Patient17, which
states that every person is entitled without discrimination to appropriate medical care;
the 1949 International Code of Medical Ethics18; the 1975 Declaration of Tokyo
dealing with medical participation in torture19; and the 1982 UN Principles of Medical
Ethics that deal with doctors’ responsibilities towards detainees20.
An example of a doctors’ association that has an important advisory role on
ethical practice through its ethical committee and department of ethics, and is
increasingly involved in human rights, is the British Medical Association. An
association of doctors concerned with the widespread violations of the Right to Health
16
Peter Hall, Human Rights in the Hippocratic Oath, presented at The International Federation of Health
and Human Rights Organisations’ annual conference, Amersfoort, (2002).
17
<http://www.wma.net/e/policy/l4.htm>
18
<http://www.wma.net/e/policy/c8.htm>
19
<http://www.wma.net/e/policy/c18.htm>
20
<http://www.unhchr.ch/html/menu3/b/h_comp40.htm>
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caused during armed conflict21 was involved in the request by the World Health
Organization to the International Court of Justice for an Advisory Opinion on whether
the “use of nuclear weapons by a State in war or other armed conflict would be a breach
of its obligations under international law including the WHO Constitution”22. Doctors’
bodies have concerned themselves with advising and defending doctors at risk of being
coerced into involvement in torture, in the death penalty or in breaches of medical
confidentiality or neutrality during armed conflict. However, such engagement is not
always seen in terms of the Right to Health.
5.3
Future Practice
Tomorrow’s doctors, our present day medical students, are increasingly
reminding us that preventative care responsibilities cover both the underlying
determinants of health as well as those rights upon which the right to the highest
standard of health is dependent, such as the rights to food, housing, work, and
education. A renowned precedent which directly relates to the right to potable water as
an underlying determinant, is Dr. John Snow’s prevention of cholera transmission by
removing the pump handle from an infected London well in 185423. Medical
campaigning to ban smoking in public is a contemporaneous example of work to
support the right to a healthy environment24.
Given the importance of violations of all human rights as factors interfering with
the highest attainable standard of health, tomorrow’s doctors should campaign no less
21
1985 Nobel Peace winners International Physicians for the Prevention of Nuclear War. It was the Nobel
Committee's opinion that this organization performed a considerable service to humankind by spreading
authoritative information and by creating an awareness of the catastrophic consequences of atomic warfare.
22
World Health Assembly Resolution WHA46.40, Para. 1., adopted 14 May 1993.
23
John Snow, Snow on Cholera, New York; The Commonwealth Fund, London: Oxford University Press
(1936).
24
<http://www.bma.org.uk/ap.nsf/Content/bma+policy++smoking?OpenDocument&Highlight=2,smoking}>
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vigorously for respect for civil and political rights than for economic, social and
cultural rights. Consider, for example, how violations of the rights of women to sexual
and reproductive autonomy, to education and economic standing, and to freedom from
violence render them prey to high risk sexual behavior25. It has been speculated that
were all women's human rights respected, AIDS might be a controllable disease rather
than an epidemic26.
Doctors, as the main repository of knowledge and day-to-day concern with health
have a moral responsibility to remind governments of their obligations to respect the
right to the highest attainable standard of health, to educate tomorrow’s doctors about
the Right to Health and, perhaps more importantly, to use their newfound knowledge to
advise patients of their rights to the highest attainable standard of health. In this way,
the day may yet come when patients and doctors see themselves as partners, working
together to ensure the enjoyment of the Right to Health whether through opportunities
afforded by policy, legislation or international cooperation.
25
UNAIDS, What makes women so vulnerable to HIV infection? Women
and AIDS, 3-4, UNAIDS; Geneva, (1997).
26
Urdang S, Remarks made at conference - Human Rights Framework for the AIDS in Africa Crisis, Carr
Center for Human Rights Policy, Kennedy School of Government, Harvard University, (May 21, 2001).
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