The Human Rights Analysis

National Law

The Indian constitution does not recognize a right to health per se but there is a growing body of jurisprudence from the constitutional courts of India (Supreme Court and High Courts) that recognizes the right to health as a fundamental right, albeit derivatively, under the right to life.[153]

The Supreme Court has held that the right to life imposes a positive obligation on the part of the state to safeguard the life of every person, stating that the “preservation of human life [is] of utmost importance” and that

[t]he Constitution envisages the establishment of a welfare state ... Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the government in this respect [and it] discharges this obligation by running hospitals and health centres.[154]

Many economic and social rights are included in the Directive Principles of State Policy section of India’s constitution. Article 47, which comes under this section, stipulates improvement of public health as among the state’s primary duties. According to article 37 of the constitution, the directive principles “shall not be enforceable by any court, but ... are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.”[155] In fact, the Supreme Court has used article 47 to strengthen its jurisprudence on the right to health.

While these rulings refer to curative rather than palliative care, in a groundbreaking case in 1998 the Delhi High Court held that patients suffering from moderate and severe pain have a right to adequate medications, including morphine. The case concerned a woman who required morphine for severe cancer-related pain but was not able to obtain any because of complex narcotics regulations. In his petition, the woman’s son asked the court to direct concerned government agencies to adopt rational narcotics regulations that ensure availability of morphine for medical purposes. The court expressed dismay at the delays and obstacles the plaintiff’s mother had faced in accessing morphine, stating that “any official standing in the way will be viewed very seriously by the court.”[156] The court directed government agencies to adopt “rational” rules and ensure availability of morphine. As the government has failed to adequately implement the ruling, the plaintiff has since filed a similar case with India’s Supreme Court.[157]

The Right to Health

Health is a fundamental human right enshrined in numerous international human rights instruments. The International Covenant on Economic, Social and Cultural Rights specifies that everyone has a right “to the enjoyment of the highest attainable standard of physical and mental health.”[158] 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 healthcare 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 any country will be expected to take concrete and reasonable steps toward increased services, and regression, in most cases, will constitute a violation of the right to health.

However, the Committee on Economic, Social and Cultural Rights has 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 with respect to 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; and

·         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.[159]

As noted in the previous chapter, the Committee lists the obligation to provide appropriate training for health personnel as an “obligation of comparable priority.”

Palliative Care and the Right to Health

Given that palliative care is an essential part of healthcare, the right to health requires that countries take steps to the maximum of their available resources to ensure that it is available. Indeed, the Committee on Economic, Social and Cultural Rights has called for “attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity.”[160]A number of different state obligations flow from this:

·         A negative obligation to refrain from enacting policies or undertaking actions that arbitrarily interfere with the provision or development of palliative care;

·         A positive obligation to take reasonable steps to facilitate the development of palliative care; and

·         A positive obligation to take reasonable steps to ensure the integration of palliative care into existing health services, both public and private, through the use of regulatory and other powers as well as funding streams.

 

 

No interference with palliative care

The Committee on Economic, Social, and Cultural Rights has stipulated that the right to health requires states to “refrain from interfering directly or indirectly with the enjoyment of the right to health.”[161] States may not deny or limit equal access for all persons, enforce discriminatory health policies, arbitrarily impede existing health services, or limit access to information about health.[162]Applied to palliative care, this obligation means that states may not put in place drug control regulations that unnecessarily impede the availability and accessibility of essential palliative care medications such as morphine and other opioid analgesics.

Facilitating the development of palliative care

The right to health also includes an obligation to take positive measures that “enable and assist individuals and communities to enjoy the right to health.”[163] Applied to palliative care, this means that states must take reasonable steps in each of the three areas the World Health Organization has identified as essential to the development of palliative care.[164] As noted in chapter IV, the three prongs of the WHO recommendation on palliative care development correspond closely with several of the core obligations under the right to health. This means that states cannot claim insufficient resources as justification for failing to take steps in each of these three areas.[165]

Ensuring integration of palliative care into health services

The right to health requires states to take the steps necessary for the “creation of conditions which would assure to all medical service and medical attention in the event of sickness” (emphasis added).[166] The Committee on Economic, Social and Cultural Rights has held that people are entitled to a “system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.”[167]In other words, health services should be available for all health conditions, including chronic or terminal illness, on an equitable basis.

The Committee has called for an integrated approach to the provision of different types of health services that includes elements of “preventive, curative and rehabilitative health treatment.”[168] It has also held that

investments should not disproportionately favour expensive curative health services which are often accessible only to a small, privileged fraction of the population, rather than primary and preventive health care benefiting a far larger part of the population.[169]

While the Committee does not explicitly say so, the same principle applies to palliative care services.

Given the large percentage of cancer patients who require palliative care services, particularly in low- and middle-income countries, considerable urgency needs to be given to developing palliative care services for cancer patients.

Considering WHO’s recommendation that low- and middle-income countries focus on developing community-based palliative care services because they are inexpensive, such countries should take active steps to ensure their development.

The Prohibition of Cruel, Inhuman, and Degrading Treatment

The right to be free of cruel, inhuman, and degrading treatment is a fundamental human right that is recognized in numerous international and regional human rights instruments.[170] Apart from prohibiting the use of torture and other cruel, inhuman, or degrading treatment or punishment, the right also creates a positive obligation for states to protect persons in their jurisdiction from such treatment.[171]

As part of this positive obligation, states have to take steps to protect people from unnecessary pain related to a health condition. As UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Manfred Nowak wrote in a joint letter with UN Special Rapporteur on the Right to Health Anand Grover 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.[172]

In a report to the Human Rights Council, Nowak later specified that, in his expert opinion, “the de facto denial of access to pain relief, if it causes severe pain and suffering, constitutes cruel, inhuman or degrading treatment or punishment.”[173]

Not every case where a person suffers from severe pain but has no access to appropriate treatment will constitute cruel, inhuman, or degrading treatment or punishment. Human Rights Watch believes that this will only be the case when the following conditions are met:

• The suffering is severe and meets the minimum threshold required under the prohibition against torture and cruel, inhuman, or degrading treatment or punishment;
• The state is, or should be, aware of the level and extent of the suffering;
• Treatment is available to remove or lessen the suffering but no appropriate treatment was offered; and
• The state has no reasonable justification for the lack of availability and accessibility of pain treatment.

In such cases, states will be liable for failing to protect a person from cruel, inhuman, or degrading treatment.

Failure to ensure pain treatment at India’s regional cancer centers—A form of cruel, inhuman and degrading treatment

The majority of patients at India’s regional cancer centers requires palliative care and suffers from moderate to severe pain. Human Rights Watch believes that the India government, while investing considerable funds into regional cancer centers, has failed to take reasonable measures to address their lack of palliative care availability. The government has at its disposal various ways to ensure that regional cancer centers offer palliative care and pain treatment—it could have specifically earmarked funds for palliative care or made the designation of “regional cancer center” conditional on the development of palliative care—but it has chosen not to use them. As of July 2009, more than half of India’s regional cancer centers did not have such services.

As demonstrated in chapter III, the failure to ensure availability of such treatment leaves many patients to needlessly suffer excruciating pain, which may persist over extended periods of time, often without any respite at any time of the day. The kind of suffering these patients endure is so serious that it meets the minimum threshold for government liability under the prohibition of cruel, inhuman and degrading treatment.