May 12, 2011

V. The Human Rights Analysis

National Law

Ukraine's constitution guarantees health care free of charge in state institutions.[202] Ukraine's economic struggles since it gained independence in 1991 and the resulting decline in state income have led to a significant decline in state health care expenditures. Budget shortfalls, in turn, have led government healthcare facilities to levy official fees for public healthcare services, sometimes disguised as “donations” or “voluntary cost recovery.” It is not unusual for state health care providers to also demand “informal user fees” as a condition of receiving services.[203]

In 2002 Ukraine's Constitutional Court ruled that health care in state and community facilities should be provided “without preliminary, current or subsequent payments,” but stipulated that fees could be sought for health services considered beyond the limits of health care. Certain populations considered socially vulnerable (such as people with disabilities, children under six, and retired persons receiving minimum pension) are exempt from user charges or are eligible for free or reduced cost medication or other services.[204]

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.”[205] 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 many cases, will constitute a violation of the right to health.

However, the Committee on Economic, Social and Cultural Rights has held that certain core obligations 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 medicines, as compiled by the World Health Organization.
  • 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.[206]

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.” [207] 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.
  • 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.”[208] 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.[209] Applied to palliative care, this obligation means that states should ensure that their drug control regulations do not unnecessarily, and therefore arbitrarily, impede the availability and accessibility of essential palliative care medications such as morphine and other opioid analgesics. A balance must be struck between preventing misuse and ensuring accessibility and availability of medicines for licit health purposes.

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.”[210] When applied to palliative care, this means that states should take reasonable steps in each of the three areas the WHO has identified as essential to the development of palliative care.[211] As noted in Chapter V, 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.[212]

Ensuring Integration of Palliative Care into Health Services

The right to health requires that states take the steps necessary for the “creation of conditions which would assure to all medical service and medical attention in the event of sickness.”[213] 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.”[214]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.”[215]

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.[216] 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.[217]

As part of this positive obligation, states have to take steps to protect people from unnecessary pain related to a health condition. As former 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.[218]

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.”[219]

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 may 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 is offered.
  • The state has no reasonable justification for the lack of availability and accessibility of evidence-based pain treatment.

In such cases, states may be liable for failing to protect a person from cruel, inhuman, or degrading treatment. The failure of the Ukrainian government to take steps to ensure that the healthcare system can provide evidence-based pain treatment meets these criteria.

[202] Constitution of Ukraine, art. 49 ("The State creates conditions for effective medical service accessible to all citizens. State and communal health protection institutions provide medical care free of charge; the existing network of such institutions shall not be reduced.").

[203] Valeria Lekhan et al., Health Care Systems in Transition. Ukraine, p. 41. See also: USAID, “Corruption Assessment: Ukraine Final Report,” February 10, 2006, http://ukraine.usaid.gov/lib/evaluations/AntiCorruption.pdf (accessed March 14, 2011); Markovska, Anna, Isaeva, Anna, “Public Sector Corruption: Lessons to be learned from the Ukrainian Experience,” Crime Prevention and Community Safety, 2007, http://www.palgrave-journals.com/cpcs/journal/v9/n2/full/8150036a.html (accessed March 14, 2011); and Gorodnichenko, Yuriy, Sabirianova Peter, Klara, “Public Sector Pay and Corruption: measuring Bribery from Micro Data,” Journal of Public Economics, June 2007, vol. 91(5-6), pages 963-991.

[204] Valeria Lekhan et al., Health Care Systems in Transition. Ukraine, p. 34-40.

[205]ICESCR, art. 12.

[206] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14.

[207] Ibid., para 25. While the committee included this reference in a paragraph on the right to health for older persons, the wording clearly indicates that it applies to all chronically and terminally ill persons.

[208]Ibid., para. 33.

[209]Ibid., para. 33.

[210] Ibid.,para. 37.

[211] WHO, Cancer Pain Relief Second Edition, With a Guide to Opioid Availability (Geneva: WHO Press, 1996), p. 3.

[212] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14, para 47.

[213]ICESCR, art. 12 (2).

[214] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14, para 8.

[215] Ibid., para. 25.

[216]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Article 7 provides, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” See also Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, entered into force February 28, 1987; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT), signed November 26, 1987, E.T.S. 126, entered into force February 1, 1989; African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986.

[217]UN Human Rights Committee, General Comment 20, para. 8, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969c12563ed004c8ae5?Opendocument (accessed August 29, 2009). See also the judgment of the European Court of Human Rights in Z v United Kingdom (2001) 34 EHHR 97.

[218] Joint letter by the UN special rapporteur on the prevention of torture and cruel, inhuman or degrading treatment or punishment, Manfred Nowak, and the UN special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, to the Commission on Narcotic Drugs, December 2008. A copy of the letter is available at http://www.ihra.net/Assets/1384/1/SpecialRapporteursLettertoCND012009.pdf (accessed January 16, 2009).

[219]Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, A/HRC/10/44, January 14, 2009, http://daccessdds.un.org/doc/UNDOC/GEN/G09/103/12/PDF/G0910312.pdf?OpenElement (accessed August 4, 2009), para. 72.