New health legislation in the US will see far greater involvement of its government in healthcare. This has been justified by President Obama’s claim that all Americans have a ‘right’ to healthcare and, by corollary, that the government has a duty to provide it.
The idea that healthcare is a human right is controversial in the US but commonplace elsewhere. It is enshrined in international human rights treaties and in national constitutions from Brazil to Belgium, and it is a principle of nearly every aid agency and humanitarian NGO.
But not only is it impracticable in its definition, treating health as an enforceable human right also creates serious legal and democratic problems – and does not improve healthcare.
Traditional human rights – including free speech, property and personal liberty – have helped secure freedom for millions and shame authoritarian governments all over the world. These rights require governments to refrain from perpetrating abuses, and can therefore be enjoyed by everyone, equally. They are called ‘negative’ rights.
Since the Second World War, however, international human rights treaties have added ‘positive’ rights such as health, food and housing to the list of human rights. These positive rights require government supply and are therefore dependent on a country’s level of development and available resources – which makes them legally complex.
Positive rights such as health have been drafted in international human rights treaties as political aspirations rather than enforceable obligations. This was understood by those who originally drafted the Universal Declaration of Human Rights in 1948, including then Chairperson Eleanor Roosevelt.
However, subsequent revisionist interpretations of the UN’s International Covenant on Economic Social and Cultural Rights by unelected human rights experts have made signatory governments legally obliged to uphold the ‘right to health’ for everyone. According to them, states violate this right if they fail to take ‘all necessary steps to ensure the realisation of the right to health’, for example through ‘insufficient expenditure or misallocation of public resources.’
Absurdly, this means governments are theoretically liable for everything from providing water to food and medicine.
The sinister twist is that this new interpretation of the right to health is being used to drive out private healthcare even where it is more effective. Ideologues now insist that human rights risk being infringed wherever healthcare is provided through the insurance market or by other private means.
Thus the Canadian Supreme Court’s 2005 decision to overturn Quebec’s ban on private health insurance has, ludicrously, been criticised by UN experts for interfering with the right to health. The health systems of Korea and Switzerland have similarly been criticised on human rights grounds for having too much private involvement, despite delivering high quality services.
In the end, the level of private involvement in a country’s healthcare system should be decided by the local electorate. But enshrining the right to health makes it a legal requirement for governments everywhere to prioritise public provision, riding roughshod over any local democratic preferences.
Making health a human right creates headaches even for governments who aspire to provide universal, collectively-funded healthcare. Brazil’s constitution explicitly grants a ‘right to health’, but patients who call upon the state to fulfill this obligation are frequently met with shortages in state pharmacies; many patients have therefore, and quite reasonably, sued the government. This has led to an explosion of judicial challenges, with more than 1,200 cases of judicial review sought in the Rio Grande do Sul region alone each month.
Especially in developing countries, the right to health creates an intolerable burden on the judicial system and creates a two-tier system which benefits those who can afford judicial review but makes little difference to everybody else.
Unsurprisingly, research shows that declaring health to be a right makes no difference to a population’s health. Countries such as France, Singapore and Switzerland do not recognise an individually enforceable right to health in their constitutions but nonetheless provide high quality, equitable care by taking advantage of competition among the private sector.
Instead of pursuing the blind alley of the right to health, those who care about health should promote the traditional rights which underpin the personal and economic freedom necessary to pay for good healthcare. These tried-and-tested principles, still denied to millions worldwide, include the right to own and exchange property without harassment by the state.
These are the rights that will lift people out of poverty, giving them the resources to afford clean drinking water, adequate shelter, good nutrition and the decent healthcare systems necessary to achieve good health. These are ‘rights’ that are truly worthy of the term.