Mars Group Blog

THE RIGHT TO HEALTH

An Analysis by Professor Japheth Mati, MB, ChB, MD, FRCOG

The Concept of Health as a Human Right

Health is a basic need for human existence and survival and as such, it is a right that must be respected, promoted and protected by government and society. The Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for health and well-being of himself and his family”. The concept of health as human right is stated in the Preamble of the World Health Organization’s Charter (1946), and also in the International Covenant on Economic, Social and Cultural Rights (1966). Art. 12 states of health as a human right: “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. The Declaration of Alma Ata (WHO, 1978) stated: “Health, which is the state of complete physical and social well-being, and not merely the absence of infirmity, is a fundamental human right…. the attainment of the highest possible level of health is a most important worldwide social goal.” The right to health is fundamental to the physical and mental well-being of all individuals and is a necessary condition for the exercise of other human rights including the pursuit of an adequate standard of living. Indeed health is fundamental to enjoyment of the right to life, and the right to a healthy life is fundamental to all other constitutional guarantees.

The concept of reproductive rights as fundamental human rights was endorsed at the 1994 International Conference of Population and Development in Cairo, Egypt. The constellation of rights, embracing fundamental human rights established by earlier treaties, was reaffirmed at the 1995 Fourth World Conference on Women in Beijing, China, and in various international and regional agreements since, as well as in many national laws. They include the right to decide the number, timing and spacing of children, the right to voluntarily marry and establish a family, and the right to the highest attainable standard of health, among others.

That reproductive rights are central to meeting international development goals was recognized by the UN World Summit of September 2005, which also endorsed the goal of universal access to reproductive health. Reproductive rights are recognized as valuable ends in themselves, and essential to the enjoyment of other fundamental rights. Attaining the goals of sustainable, equitable development requires that individuals are able to exercise control over their sexual and reproductive lives.

Right to Health as a Constitutional Issue

The South African Constitution[i] is one of the most progressive in Africa. It provides for right to health care services in three sections, namely: access to health care services including reproductive health and emergency services; basic health care for children; and medical services for detained persons and prisoners. In Kenya, The (“pre-Naivasha”) Harmonised Draft Constitution of Kenya has included health in the Bill of Rights; Art.62 states (1) “Every person has the right to health, which includes the right to health care services, including reproductive health care”, and (2) “No person may be refused emergency medical treatment”. In Art.30 (2) the state is obligated to “take legislative, policy and other measures to achieve the progressive realization of the rights” as guaranteed in the Constitution including the right to health. The right to health implies universal access to health care services. Since states have the primary duty to secure the welfare of the people, it follows that ensuring equitable access to health care for the people ought to be an essential part of government’s constitutional obligations. The Right to Equality encompasses within itself the right of a poor patient to get adequate treatment and medicines from the State irrespective of their costs. The citizens have a right to quality health care, treatment and medication regardless of their ability to pay.

Lack of Equity in Access to Health Care

Both equity and human rights’ principles dictate the necessity to strive for equal opportunity for health for groups of people who have suffered marginalization or discrimination[ii]. Unfortunately, the reality in most African countries, Kenya included, is that lack of or inadequate access to health care services remain the most prominent factors behind the persistently and unacceptably high levels of mortality and morbidity, especially among the poor and marginalized populations. Most governments, including Kenya, have declared that their citizens should enjoy universal and equitable access to good quality health care. However, the achievement of this goal has remained illusive. Kenya’s Vision 2030 states government’s commitment to reduce health inequalities and to provide access to those excluded from health care by financial reasons[iii]. Among the flagship projects proposed for 2012 are two which address health care for the poor, i.e. creation of a National Health Insurance Scheme “in order to promote equity in Kenya’s health care financing”, and the “scale up of the output-based approach system to enable disadvantaged groups (e.g. the poor, orphans) to access health care from preferred institutions”.

Big disparities exist between the poor and the better off with respect to access to health care services and health status; for example, there are wide gaps in child mortality not only between rich and poor countries, but also between the wealthy and the poor in most countries. Poor children are not only more likely than their better off peers to be exposed to health risks and to have less resistance to disease, they also have less access to preventive and curative interventions. Generally, the poor lack access to health care in terms of: availability, affordability, and acceptability. Poor people are denied access to health care: (a) where public health facilities lack essential drugs, supplies and commodities; (b) where people have to travel long distances to reach health facilities, especially where public transport is scarce; (c) when fees charged for services (cost-sharing) are unaffordable, and even if there is official exemption (e.g. for pregnant women and children under five) or waiver of fees, people still end up paying on top, for drugs and transport (out-of-pocket expenditure); and (d) where people lack confidence in the services provided at local public health facilities and decide not to utilise them (e.g. poor quality services or negative provider attitudes).

The Kenya Demographic and Health Survey (KDHS) of 2008[iv] shows that whereas there has been some decline in levels of childhood deaths compared to the rates observed in previous surveys of 2003 and 1998 (from 77 deaths per 1,000 live births in 2003 to 52 deaths per 1,000 live births in 2008), the situation is such that at least 1 in every 14 children born in Kenya during the period between 2003 and 2008 died before reaching their fifth birthday.

Whereas slightly under a half of currently married women (46 percent) are cur­rently using some method of contraception, wide regional disparities exist; the rates range from 67 percent in Central Province, 55 percent in Nairobi (55 percent), 52 percent in Eastern Province, to as low as  4 percent in North Eastern Province. The percentage of children age 12-23 months who had received all immunizations was 47 percent in North Eastern compared with 81 percent in Central Province. Overall, the percentage of Kenyan pregnant women who had access at delivery to a trained health professional was 44, and only 43 percent were delivered within a health facility. The corresponding figures for North Eastern Province were 32 and 17 percent compared with 89 and 73 percent for Nairobi and Central Province, respectively.

According to the same KDHS (2008) findings, 35 percent of Kenyan children are stunted, 14 percent being severely stunted. Stunting levels are slightly higher for rural children than for urban children. The prevalence of stunting varies by province from 29 percent in Nairobi to 42 percent in Eastern Province.

Need for improved and sustained health financing

Achievement of universal (equitable) access to health services (i.e. enjoyment of Right to Health) will require improved and sustained health financing. Kenya is one of the African countries whose leaders committed themselves at Abuja[v] in 2001 to allocate 15% of the national budget (or spend $34 per capita[vi]) for the improvement of the health sector. Currently, Kenya’s allocation to the health sector is way below this figure.  According to recent study findings, out-of-pocket health expenditures in sub-Saharan African countries during 2002–2003, ranged from 6% in Namibia to 62% in Chad; it being nearly 45% for Kenyans[vii]. Clearly this justifies the conclusion that ill health contributes to, and perpetuates, poverty because health costs deplete people’s meagre resources. It is known that in Kenya, sick persons seek help not only in conventional health facilities or private clinics, but also in local dukas and pharmacies, as well as from healers representing a wide array of traditional medical practices. But irrespective of where sick people seek treatment, this depends to a large extent on their access to cash or assets of the household to meet the out-of-pocket health expenditures. The figure below depicts data from the FY 2001/2002 National Health Accounts (NHA) estimation in Kenya which shows that households were financing over half of all health expenditures[viii].

Public spending on health mostly benefits the well to do.

Disappointedly, there is considerable evidence to suggest that by and large public spending on health tends to benefit the better off more than the poor. Quite often it is the better off who get the most from public health services, especially hospital care. In other words, government’s investment in health services, far from promoting equity, works against it[ix]. Even the simplest interventions offered through government facilities (e.g. family planning services) are frequently utilised more by the better-off than by the neediest. For more complicated and expensive interventions to which most government health service resources are dedicated (e.g. tertiary level care), coverage inequalities favouring the better-off are much larger. Clearly, what this means is that unless serious effort is made to target the poor and marginalized groups with health services, as well as promoting measures to boost acquisition of basic livelihood assets that encourage proactive health seeking behaviours, hope of achieving national and international targets, including health-related MDGs, will continue to dwindle, and the slogan of universal and equitable access to health care will remain an illusion.

Related Link: The Poor: Who Cares for their Health? (Nov 7, 2009) http://blog.marsgroupkenya.org/?p=1472)

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[i] www.righttohealthcare.org/Intl/SAfr.htm

[ii] Braveman P, Gruskin S. Bull World Health Organ 2003;81(7):539-45. Epub 2003 Sep 3

[iii] Republic of Kenya: Kenya Vision 2030 Brochure, July – August, 2007

[iv] Central Bureau of Statistics (CBS) (Kenya), National AIDS Control Council (NACC), National AIDS/STD Control Programme (NASCOP), the National Public Health Laboratory Services (NPHLS), the Kenya Medical Research Institute (KEMRI), National Coordinating Agency for Population and Development (NCAPD) and ORC Macro. 2009. Kenya Demographic and Health Survey 2008-09. Calverton, Maryland: CBS, NCAPD, and ORC Macro.

[v] http://www.un.org/ecosocdev/geninfo/afrec/vol15no1/151aids5.htm

[vi] Commission on Macroeconomics and Health’s (CMH) recommended target for spending on health was $34 per capita. Economic Viewpoint – August 2006 http://go.worldbank.org/RYOQ50AYL0

[vii] Adam Leive, Ke Xu. Coping with out-of-pocket health payments: empirical evidence from 15 African countries. Bulletin of the World Health Organization Volume 86, Number 11, November 2008, 849-856

[viii] www.healthsystems2020.org › Impact

[ix] Davidson R. Gwatkin (2003) Free Government Health Services: Are They the Best Way to Reach the Poor?

http://siteresources.worldbank.org/INTPAH/Resources/Publications/Recent-Papers/13999_gwatkin0303.pdf; Maina TM. (2006) Financing and delivery of health care in Kenya: Do the poor really benefit from public health spending? Discussion Paper Institute of Policy Analysis and Research (IPAR), Nairobi. http://www.biomedcentral.com/content/download/xml/1478-4505-5-3.xml

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