Pain Treatment, Palliative Care and Human Rights

Health as a Human Right

Health is a fundamental human right enshrined in numerous international human rights instruments.[55] The International Covenant on Economic Social and Cultural Rights (ICESCR) specifies that everyone has a right "to the enjoyment of the highest attainable standard of physical and mental health." The Committee on Economic, Social and Cultural Rights, the body charged with monitoring compliance with the ICESCR, has held that states must make available in sufficient quantity "functioning public health and health-care facilities, goods and services, as well as programmes" and that these services must be accessible.

Because states have different levels of resources, international law does not mandate the kind of health care to be provided. The right to health is considered a right of "progressive realization." By becoming party to the international agreements, a state agrees "to take steps… to the maximum of its available resources" to achieve the full realization of the right to health. In other words, high income countries will generally have to provide healthcare services at a higher level than those with limited resources. But all countries will be expected to take concrete steps towards increased services, and regression in the provision of health services will, in most cases, constitute a violation of the right to health.

But the Committee on Economic, Social and Cultural Rights has also held that there are certain core obligations that are so fundamental that states must fulfill them. While resource constraints may justify only partial fulfillment of some aspects of the right to health, the Committee has observed vis-à-vis the core obligations that "a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations…, which are non-derogable." The Committee has identified, among others, the following core obligations:

·To ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups;

·To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs;

·To ensure equitable distribution of all health facilities, goods and services;

·To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population.[56]

Pain Treatment and the Right to Health

As morphine and codeine are on the WHO List of Essential Medicines, countries have to provide these medications as part of their core obligations under the right to health, regardless of whether they have been included on their domestic essential medicines lists.[57] They must make sure that they are both available in adequate quantities and physically and financially accessible for those who need them.

In order to ensure availability and accessibility, states have, among others, the following obligations:

·Since manufacturing and distribution of controlled medicines like morphine and codeine are completely in government hands, states must put in place an effective procurement and distribution system and create a legal and regulatory framework that enables healthcare providers in both the public and private sector to obtain, prescribe and dispense these medications. Any regulations that arbitrarily impede the procurement and dispensing of these medications will violate the right to health.

·States must adopt and implement a strategy and plan of action for the roll out of pain treatment and palliative care services. Such strategy and plan of action should identify obstacles to improved services as well as steps to eliminate them.

·States should regularly measure progress made in ensuring availability and accessibility of pain relief medications.

·The requirement of physical accessibility means that these medications must be "within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as…persons with HIV/AIDS."[58] This means that states must ensure that a sufficient number of healthcare providers or pharmacies stock and dispense morphine and codeine, and that an adequate number of healthcare workers are trained and authorized to prescribe these medications.

·Financial accessibility means that, while the right to health does not require states to offer medications free of charge, they must be "affordable for all."[59] In the words of the Committee:

Payment for health-care services…has to be based on the principle of equity, ensuing that these services, whether privately or publicly provided, are affordable to all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.[60]

Countries also have an obligation to progressively implement palliative care services, which, according to WHO, must have "priority status within public health and disease control programmes."[61] Countries must ensure an adequate policy and regulatory framework, develop a plan for implementation of these services, and take all steps that are reasonable within available resources to execute the plan. Failure to attach adequate priority to developing palliative care services within healthcare services will violate the right to health.

Pain Treatment and the Right to Be Free from Cruel, Inhuman and Degrading Treatment

The right to be free from torture, cruel, inhuman and degrading treatment or punishment is a fundamental human right that is recognized in numerous international human rights instruments.[62] Apart from prohibiting the use of torture, cruel, inhuman, and degrading treatment or punishment, the right also creates a positive obligation for states to protect persons in their jurisdiction from such treatment.[63]

As part of this positive obligation, states have to take steps to protect people from unnecessary pain related to a health condition. As the UN Special Rapporteur on Torture, Cruel, Inhuman and Degrading Treatment and Punishment wrote in a joint letter with the UN Special Rapporteur on the Right to Health to the Commission on Narcotic Drugs in December 2008,

Governments also have an obligation to take measures to protect people under their jurisdiction from inhuman and degrading treatment. Failure of governments to take reasonable measures to ensure accessibility of pain treatment, which leaves millions of people to suffer needlessly from severe and often prolonged pain, raises questions whether they have adequately discharged this obligation.[64]