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Ruling for access: An analysis of 20 court cases in 7 developing countries

Ruling for access: An analysis of 20 court cases in 7 developing countries. Hans V. Hogerzeil, MD, PhD, FRCP Edin Director Medicines Policy and Standards. TBS 2005. Overview of the presentation. Access to essential medicines as part of the fulfilment of the Right to Health (summary)

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Ruling for access: An analysis of 20 court cases in 7 developing countries

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  1. Ruling for access: An analysis of 20 court casesin 7 developing countries Hans V. Hogerzeil, MD, PhD, FRCP Edin Director Medicines Policy and Standards TBS 2005

  2. Overview of the presentation • Access to essential medicines as part of the fulfilment of the Right to Health (summary) • What does it mean in practice? WHO perspective • Analysis of 20 successful litigation cases • Objective • Limitations of the study • Main observations • Possible success factors • Conclusion • Practical recommendations

  3. First expression of the right to health:The WHO Constitution (1946) “The States parties to this Constitution declare, in conformity with the Charter of the United Nations, that the following principles are basic to the happiness, harmonious relations and security of all peoples. Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition (...)”

  4. International Covenant on Economics, Social and Cultural Rights (151 countries) Article 12 recognizes the • “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” Article 12.2 illustrates a number of • steps to be taken by States parties to achieve: • a. maternal, child and reproductive health • b. healthy natural and workplace environments • c. prevention, treatment and control of disease • d. health facilities, goods and services

  5. Committee on Economic, Social and Cultural RightsGeneral Comment nr.14 (May 2000) Art.12.2.c: Right to prevention, treatment and control of diseases includes creation of a system of urgent medical care in case of accidents, epidemics; and disaster relief and humanitarian assistance Art 12.2.d: Right to health facilities, goods and services includes appropriate treatment of prevalent diseases, preferably at community level; and the provision of essential drugs as defined by the WHO Action Programme on Essential Drugs

  6. Committee on Economic, Social and Cultural RightsGeneral Comment nr.14 (May 2000)Violations • Adoption of retrogressive measures, repeal, suspension • Failure to take all steps to ensure the right to health; e.g. • failure to adopt or implement a national health policy designed to ensure the right to health for anyone • insufficient expenditure or misallocation of public resources • failure to monitor realization of the right to health in the country • failure to take measures to reduce inequitable distribution of health facilities, goods and services Important: distinguish inability from unwillingness of the State

  7. Access to essential medicines as a Human Right:What does it mean in practice? 1. Rights-based approach incorporated in medicines programmes 2. Definition of minimum needs of essential medicines 3. Verification of state obligations under HR treaties as part of 5-yearly country reports to HR Commission (WHO access indicators) 4. Support individuals and NGOs in claiming their rights • List of State Parties, for public pressure • Promote List of Essential Medicines to define State obligations • Promote simple monitoring tools for access and pricing • Publish successful litigation cases

  8. Ruling for Accesswith: Melanie Samson, Jaume Vidal Casanova (WHO/EDM interns) Objective To identify and analyze court cases from developing countries, in which individuals/groups have sued Governmental institutions, claiming access to essential medicines on the basis of human right treaties signed by the State, and have won their case. Results Twenty cases • 7 supported by NGOs • 13 refer to HIV/AIDS • others to leukemia, renal transplant medicines, multiple sclerosis, diabetes

  9. Successful litigation on access to essential medicines, as part of the fulfilment of the Right to Health Country cases over time

  10. Limitations of the study • Limited focus on justiciability of human rights • Litigation should be the last resort • Conclusions are only applicable to countries with an enabling constitutional and legal framework • Statistics of the study may create a false sense of probability that similar arguments may work in the future • All future cases will be individual and different • No efforts were made to identify and analyze unsuccessful cases

  11. Main findings in 20 successful cases (1) • Most rulings concerned life-saving medicines (17) • 13 HIV/AIDS, 3 leukemia, 1 renal transplant • International treaties create State obligations towards the individual (8 cases in 5 countries) • Treaties usually mentioned as supportive arguments to Constitution • Direct role of international treaties: Argentina, S.Salvador • Individual cases can create collective rights (7) • State has special obligations towards the poor and disadvantaged (2)

  12. Main findings in 20 successful cases (2) • Right to Health not restricted by limits in social security (6) • Time-limited coverage, or contributions not paid • Medicines not (yet) included on the reimbursement list • Medicines specifically excluded from the reimbursement list • Government policies can be challenged in court (2) • Argentina: case led to availability of ARVs to 15,000 people • S.Africa: case led to nation-wide expansion of MTCT programme • Freedom from discrimination is not often used (2) • Venezuela: ARVs for officers but not for soldiers • S.Africa: mothers included in pilot MTCT programme

  13. Possible success factors in 20 cases • Constitutional provisions: International treaties enjoy constitutional rank (7/7), Right to Health mentioned (6/7) • Right to Health linked to Right to Life (13/20) • Legal, financial and moral support byNGOs (8/20) • Reference to acquired rights, non-interruption of treatment when social security rights are time-limited or exhausted (4/20)

  14. General conclusion • Skilful litigation can provide an additional mechanism towards ensuring that governments fulfil their constitutional and international treaty obligations. Success is possible and this should encourage others. • Health policy makers and the public health community should be aware of the increasing trend towards litigation. Rather than the judiciary deciding over who should have access to which medicines, policy makers should ensure that human rights standards guide their health policies and plans from the start.

  15. Practical recommendations Govt’s: Ensure constitutional provisions on the Right to Health, Right to Life, constitutional rank for international treaties UN: Use constitutional provisions as indicator for Government commitment when reporting on the Right to Health WHO: Make detailed analysis of national constitutions; disseminate information on successful litigation; empower NGOs NGOs: Campaign for constitutional provisions; plan and support targeted litigation cases

  16. World Health Organization Department of Medicines Policy and Standards 1211 Geneva, Switzerland Fax 41-22-7914167 Web Site: http://www.who.medicines/ Documentation Centre: darec@who.int WHO

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