Condensed: States must ensure that health facilities, goods and services such as hospitals, clinics and other health-related buildings, trained medical and professional personnel, equipment and essential drugs for the diagnosis, treatment, care and prevention of diseases, as well as underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities are (a) available in sufficient quantity; (b) physically and economically accessible without discrimination; and (c) acceptable in the sense that it is respectful of medical ethics and customs; and (d) of good quality and scientifically appropriate. Comprehensive: Article 12(1) of the ICESCR provides for the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ The steps that States must take to realize the right to health includes ‘the creation of conditions which would assure to all medical services and medical attention in the event of sickness’.[1] Access to medical facilities, services and treatment is critical to enjoyment of the right to health. According to the Committee on Economic, Social and Cultural Rights, the fulfilment of this obligation requires States to provide and ensure that health facilities, goods and services are (a) available in sufficient quantity; (b) accessible without discrimination; (c) acceptable; and (d) of good quality and scientifically appropriate.[2] Availability refers to:[3] Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party. The precise nature of the facilities, goods and services will vary depending on numerous factors, including the State party's developmental level. They will include, however, the underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel receiving domestically competitive salaries, and essential drugs, as defined by the WHO Action Programme on Essential Drugs. Healthcare facilities, goods and services must also be physically accessible in law and in fact. This means that hospitals, clinics and other health-related buildings must not only be located within safe physical reach for all sections of the population, but also appropriately built so that even the vulnerable sections of the population, such as children, the elderly and the disabled, can have adequate access to such buildings. When healthcare facilities, goods and services are provided, the state must ensure they are equitably distributed between the urban and rural areas of the country. Furthermore, economic accessibility implies that available healthcare facilities, goods and services, including essential drugs and medical care must also be economically affordable whether publicly or privately provided. According to the Committee on Economic, Social and Cultural Rights, equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.[4]Thus, equal access to affordable healthcare can be achieved through the provision of universal health insurance, regular immunization against the major infectious diseases, and the promotion of primary and preventive healthcare and education.[5] Thus, if a health centre charges user fees and those in need cannot pay the fee, or if the critically ill or injured are denied emergency treatment because of lack of health insurance or non-payment of treatment fees, then the hospital or health centre is not only economically inaccessible, it will be denying or excluding the affected persons the right to healthcare.[6] The UN Commission on Human Rights emphasised that non-discrimination in the field of health applies to all people in all circumstances.[7]This means that health facilities, goods and services must be available and accessible to all sections of the population, especially for the most vulnerable groups, such as ethnic minorities, migrants, indigenous peoples, women, children, adolescents, older persons, and persons with disabilities. Thus a law or practice that denies entitlement to medical assistance to foreign nationals, within the territory of another country, even if they are there illegally, was considered discriminatory.[8] Acceptability of the right to health relates to health facilities, goods and services being respectful of medical ethics and being culturally acceptable. Accordingly, States must ensure that available health facilities, goods and services conform to medical ethics, be culturally appropriate and sensitive to gender and life cycle requirements, as well as designed to respect confidentiality and improve the health status of those concerned.[9] For instance, with regards to the right to health of women and adolescents, acceptable services are those that are delivered in such ways that ensure that they give their full informed consent, respect their dignity, guarantee their confidentiality and are sensitive to their needs and perspectives.[10] Consequently, denying or limiting access to contraceptives, sterilising women without their informed consent,[11] applying coercive medical treatments, and prohibiting beneficial traditional health practices and medicine are violations of the right to health. (See *forced pregnancy, forced abortion, forced sterilisation*). Health facilities of good quality and scientifically appropriate require amongst other things the presence of ‘skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation’.[12] [1] Article 12(2)(d) of ICESCR; UDHR art 25(1); CRC art 24; CERD art 5(e)(iv); CEDAW arts 11(1)(f) & 12; ESC rev 1961 art 11; ACHPR art 16; African Children Charter art 14; Protocol of San Salvador art 10.
[6] In Paschim banga Khet Samity v State of West Bengal,[6] the Indian Supreme Court concluded that failure of a government hospital to provide timely medical treatment to a person in need of such treatment is a violation of his right to life guaranteed under the constitution.
[7] Resolution 1989/11, Non-discrimination in the field of health (1989).
[8]InternationalFederation of Human Rights Leagues (FIDH) v France application 14/2003 (ECSR 2004) paras 33-37.
States must ensure that health facilities, goods and services such as hospitals, clinics and other health-related buildings, trained medical and professional personnel, equipment and essential drugs for the diagnosis, treatment, care and prevention of diseases, as well as underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities are (a) available in sufficient quantity; (b) physically and economically accessible without discrimination; and (c) acceptable in the sense that it is respectful of medical ethics and customs; and (d) of good quality and scientifically appropriate.
Comprehensive:
Article 12(1) of the ICESCR provides for the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ The steps that States must take to realize the right to health includes ‘the creation of conditions which would assure to all medical services and medical attention in the event of sickness’.[1] Access to medical facilities, services and treatment is critical to enjoyment of the right to health. According to the Committee on Economic, Social and Cultural Rights, the fulfilment of this obligation requires States to provide and ensure that health facilities, goods and services are
(a) available in sufficient quantity;
(b) accessible without discrimination;
(c) acceptable; and
(d) of good quality and scientifically appropriate.[2]
Availability refers to: [3]
Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party. The precise nature of the facilities, goods and services will vary depending on numerous factors, including the State party's developmental level. They will include, however, the underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel receiving domestically competitive salaries, and essential drugs, as defined by the WHO Action Programme on Essential Drugs.
Healthcare facilities, goods and services must also be physically accessible in law and in fact. This means that hospitals, clinics and other health-related buildings must not only be located within safe physical reach for all sections of the population, but also appropriately built so that even the vulnerable sections of the population, such as children, the elderly and the disabled, can have adequate access to such buildings. When healthcare facilities, goods and services are provided, the state must ensure they are equitably distributed between the urban and rural areas of the country.
Furthermore, economic accessibility implies that available healthcare facilities, goods and services, including essential drugs and medical care must also be economically affordable whether publicly or privately provided. According to the Committee on Economic, Social and Cultural Rights, equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.[4]Thus, equal access to affordable healthcare can be achieved through the provision of universal health insurance, regular immunization against the major infectious diseases, and the promotion of primary and preventive healthcare and education.[5] Thus, if a health centre charges user fees and those in need cannot pay the fee, or if the critically ill or injured are denied emergency treatment because of lack of health insurance or non-payment of treatment fees, then the hospital or health centre is not only economically inaccessible, it will be denying or excluding the affected persons the right to healthcare.[6]
The UN Commission on Human Rights emphasised that non-discrimination in the field of health applies to all people in all circumstances.[7]This means that health facilities, goods and services must be available and accessible to all sections of the population, especially for the most vulnerable groups, such as ethnic minorities, migrants, indigenous peoples, women, children, adolescents, older persons, and persons with disabilities. Thus a law or practice that denies entitlement to medical assistance to foreign nationals, within the territory of another country, even if they are there illegally, was considered discriminatory.[8]
Acceptability of the right to health relates to health facilities, goods and services being respectful of medical ethics and being culturally acceptable. Accordingly, States must ensure that available health facilities, goods and services conform to medical ethics, be culturally appropriate and sensitive to gender and life cycle requirements, as well as designed to respect confidentiality and improve the health status of those concerned.[9] For instance, with regards to the right to health of women and adolescents, acceptable services are those that are delivered in such ways that ensure that they give their full informed consent, respect their dignity, guarantee their confidentiality and are sensitive to their needs and perspectives.[10] Consequently, denying or limiting access to contraceptives, sterilising women without their informed consent,[11] applying coercive medical treatments, and prohibiting beneficial traditional health practices and medicine are violations of the right to health. (See *forced pregnancy, forced abortion, forced sterilisation*).
Health facilities of good quality and scientifically appropriate require amongst other things the presence of ‘skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation’.[12]
[1] Article 12(2)(d) of ICESCR; UDHR art 25(1); CRC art 24; CERD art 5(e)(iv); CEDAW arts 11(1)(f) & 12; ESC rev 1961 art 11; ACHPR art 16; African Children Charter art 14; Protocol of San Salvador art 10.
[2]CESCR General Comment 14 para 12
[3]General Comment 14 para 12.
[4]CESCR General Comment 14 para 19.
[5]CESCR General Comment 14 para 19
[6] In Paschim banga Khet Samity v State of West Bengal,[6] the Indian Supreme Court concluded that failure of a government hospital to provide timely medical treatment to a person in need of such treatment is a violation of his right to life guaranteed under the constitution.
[7] Resolution 1989/11, Non-discrimination in the field of health (1989).
[8] International Federation of Human Rights Leagues (FIDH) v France application 14/2003 (ECSR 2004) paras 33-37.
[9]CESCR General Comment 14 para 12(c).
[10] CEDAW General Recommendation 24 para 22; CRC General Comment 4 para 39(c).
[11] Szijarto v Hungary communication 4/2004 (CEDAW 2006).
[12] CESCR General Comment 14 para 12.