The NHS holds a special place in the hearts of most Britons to the extent that it was featured in the opening ceremony of the London Olympics and according to Lord Ashcroft’s poll published in the Guardian was cited as one of the main reasons for how they voted by 36 % of No voters and 54 % of Yes voters in the Scottish Referendum.

With party conference season upon us we can again expect the future of the NHS to be constantly in the news often illustrated with storhealth-cloudies of apparently unfair denial of a treatment to one patient freely granted another only a few miles away.  How do we ensure the system is “fair” and indeed should we go further and enshrine the right to health as a human right?

Article 25 of the United Nations’ Universal Declaration of Human Rights 1948 states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”  The European Convention on Human Rights however does not include health care perhaps because unlike the broad aspirations of the UN declaration the European Convention grants individuals enforceable legal rights. 

This is the rub then – most people are likely to support a general aspiration to broad access to healthcare and to support the idea that healthcare should be delivered in a non-discrimatory way but as science advances and financial resources are always limited some limitation on medical treatment is inevitable.  How then can this be reconciled with the growing demands for healthcare to be treated as an enforceable human right?  This was the topic at a recent International Bar Association Conference in Edinburgh that brought together legal scholars and social scientists from around the world.

Probably the worst situation is that which has developed in Brazil where access to healthcare is guaranteed by the constitution.  This has resulted in those denied treatment under general policies seeking redress in the courts.  The courts of course have only to consider the situation of that individual before them and the strict wording of the law and not the overall consequences for health policy should the treatment they order provided to that individual be rolled out to everyone in a similar situation.  Claudia Osorio, a Senior Researcher at the Sergio Arouca National School of Public Health in Brasil outlined a situation where litigation was growing exponentially and where around 95% of actions seeking redress were successful.

Another approach can be to have constitutional clauses that cannot be enforced in court such as in Nigeria where the constitution calls on government to develop policies to ensure the adequate provision of health facilities but does not give the citizen any right to seek redress in the court if the government fails in its eyes to take appropriate action.  While this may avoid the Brazilian problem it does raise questions as to the point of the constitutional provision.

The South African constitution has probably the most detailed clauses on the right to healthcare which attempt to balance individual rights with broader national priorities and South Africa’s obligations under international treaties.  Citizens do have enforceable rights under the constitution but the courts have generally upheld government’s rights to set national priorities even where that means denying particular treatment to certain individuals.

Again we have to consider whether trying to handle this sort of matter through a constitution guarantees any wider or fairer allocation of healthcare than the more administrative approach within healthcare providing organisations in say parts of Europe.  The IBA conference failed to reach any conclusions as to whether legal redress offered a practical way forward and if so in what circumstances.  Of course the best solution would be cheap effective treatments that allowed more people to be treated for less money and for social changes to lead to more disease being prevented but that is a much bigger topic.

By Patricia Barclay