June 2, 2011

VIII. International Human Rights Obligations and Pain Treatment

Health as a Human Right

The right to the highest attainable standard of health is a fundamental human right enshrined in numerous international instruments.[121] 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.”[122] The Committee on Economic, Social and Cultural Rights (CESCR), 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.[123]

Because states have different levels of resources, international law does not mandate the standard of health care to be provided. Rather, 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. The CESCR has held that states have a “specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization” of the right to health and must “refrain from interfering directly or indirectly with [its] enjoyment.”[124]

The CESCR has called for an integrated approach to the provision of “preventive, curative and rehabilitative health treatment,” [125] which “should not disproportionately favour expensive curative health services which are often accessible only to a small, privileged fraction of the population.” [126] The committee has specifically called for “attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity.” [127] States must refrain from actions that interfere with access to palliative care and take reasonable steps to facilitate its development and its integration into the health care system as a whole.

But the CESCR 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.”[128] 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.[129]

Relevant obligations of “comparable priority” include: ensuring child health care; taking measures to treat and control epidemic and endemic diseases; providing education and access to information for important health problems; and providing appropriate training for health personnel.[130] The CESCR has also stressed the “obligation of all States parties to take steps, individually and through international assistance and cooperation … towards the full realization of the rights recognized in the Covenant, such as the right to health.”[131]

Pain Treatment and the Right to the Highest Attainable Standard of Health

As morphine and codeine are on the WHO Model List of Essential Medicines, countries must 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.[132] They must make sure that they are both available in adequate quantities and physically and financially accessible for those who need them.

Because the manufacturing and distribution of controlled medicines including morphine and codeine are entirely within government control, states need to put in place an effective procurement and distribution system and create a legal and regulatory framework that enables health care 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 need to 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 pain medications must be “within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as … persons with HIV/AIDS.”[133] This means that states should ensure that a sufficient number of health care 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.”[134] In the words of the CESCR:

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.[135]

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.” [136] Countries need to 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 health care services will likely 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.[137] 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.[138]

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.[139]

In a report to the Human Rights Council, Manfred Nowak, then-special rapporteur on torture, cruel, inhuman and degrading treatment and punishment, specified that “the de facto denial of access to pain relief, if it causes severe pain and suffering, constitutes cruel, inhuman or degrading treatment or punishment” and that “all measures should be taken to … overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.” [140]

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 of torture and cruel, inhuman, or degrading treatment;
  • 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; 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.

[121]International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 11; See also Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2 1990, art. 24.

[122]International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 12.

[123]The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, E/C.12/2000/4. (General Comments), 11 August 2000, I.12.(a).

[124]UN Committee on Economic, Social and Cultural Rights, “Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights,” General Comment No. 14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000),http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument (accessed November 4, 2010), [hereinafter Substantive Issues Arising in the Implementation of the ICESCR, General Comment No. 14], paras. 30 and 33.

[125] Ibid., para. 25.

[126] Ibid., para. 19.

[127] 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.

[128] The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, E/C.12/2000/4. (General Comments), 11 August 2000, III.47.

[129] Ibid., para. 43.

[130] Ibid., para. 44.

[131] Ibid., para. 38.

[132] World Health Organization, “Model List of Essential Medicines - 16th List,” March 2009, http://www.who.int/selection_medicines/committees/expert/17/sixteenth_adult_list_en.pdf (accessed 6 August 2010), includes the following opioid analgesics: Codeine Tablet: 30 mg (phosphate); Morphine Injection: 10 mg (morphine hydrochloride or morphine sulfate) in 1ml ampoule; Oral liquid: 10 mg (morphine hydrochloride or morphine sulfate)/5 ml., Tablet: 10 mg (morphine sulfate); Tablet (prolonged release): 10 mg; 30 mg; 60 mg (morphine sulfate).

[133]Substantive Issues Arising in the Implementation of the ICESCR, General Comment No. 14, para. 12.

[134] Ibid.

[135] Ibid.

[136] World Health Organization, “National Cancer Control Programs: Policies and Managerial Guidelines,” 2002, http://www.who.int/cancer/media/en/408.pdf (accessed August 6, 2010) pp. 86.

[137] 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, art. 7 provides, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”; 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, article 16 provides that “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”; 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.

[138] See for example the judgment of the European Court of Rights in Z v United Kingdom (2001) 34 EHRR 97.

[139]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 April 27, 2010).

[140]Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, U.N. Doc. A/HRC/10/44, January 14, 2009, paras. 72 and 74(e).