1 Access to essential medicines in 187 constitutions

Session outline

Moderator: Dr Hans V. Hogerzeil Rapporteurs: Dr Claudia Garcia Osorio de-Castro and Dr Aarti Patel

07.50 Access to Essential Medicines as Part of the Right to Health in National Constitutions of 186 Countries (Hans V.

Hogerzeil)08.05 Invited comments on new developments:

1) The right to health in the light of the Arab Spring(Mohammed Bin Shahna, Mohamed Ramzy)

2) Human rights approach to improve access to Ems:

Useful mechanism for the poor? (Mércia Pandolfo Provin) Abuse of the judicial system? (Vera Lucia Edais Pepe)

08.40 Conclusions and recommendations

Access to essential medicines

as part of the right to health

in 186 constitutions

S.K. PerehudoffR.O. Laing

H.V. Hogerzeil

ICIUM 2011

3 Access to essential medicines in 187 constitutions

Access to essential drugs as a Human Right:Where are we now?

Health is a human right (WHO 1946, Univ. Decl. Human Rights 1948). The right to health care includes the right to emergency care

and health facilities, goods and services (Intern.Covenant, 1966)

The right to facilities, good and services includes the provision of essential drugs as defined by WHO (GCom.14, 2000)

State parties are under immediate obligation to guarantee that the right to health care is exercised without discrimination, and that concrete steps are taken towards full realization, with emphasis on vulnerable and marginal groups

4 Access to essential medicines in 187 constitutions

Problem statement

One important success factor for the legal enforcement of access to essential medicines is incorporation of right to health principles into national constitutions

Constitutional and legal recognition of the right to access to medical products has become an official WHO country progress indicator; is also one of 11 access indicators

We present a baseline study for this indicator and a first analysis of all health-related texts in national constitutions

5 Access to essential medicines in 187 constitutions

Methods

Comprehensive inventory of constitutional texts, using “Constitutions of Countries of the World” and the Constitution Finder Database

Tree Diagram of the Right to Health, reflecting the core components of the right to health as described in international law such as the International Covenant on Economic, Social and Cultural Rights (1966) and General Comment Nr. 14 (2000).

Full data for all countries are available (www.who.int/medicines)

6 Access to essential medicines in 187 constitutions

Components of the Right to Health in a national constitution: Panama

7 Access to essential medicines in 187 constitutions

Results:

Legal indicators for national commitment

4 Include (essential) medicines

89 Mention health facilities, goods and services

193 Constitutions, 187 can be accessed

135 Include the Right to Health

PanamaPhilippinesSyriaMexico

8 Access to essential medicines in 187 constitutions

Four constitutions specifically mention access to essential medicines / medical products

Panama: The State is primarily obligated to (...) supply medicines to all the people.

Philippines: The State shall... endeavour to make essential goods, health and other social services available to all people at affordable cost...

Syria: The State protects the citizens’ health and provides them with the means of protection, treatment, and medication.

Mexico: (Women) are entitled to medical and obstetrical attention, medicines, nursing aid and infant care services. Members of a worker's family shall be entitled to medical attention and medicines, in the cases and in the proportions specified by law.

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Other examples of constitutional text (2):General goods and services, for all people

Nicaragua: The services of education, health, and social security are irrenouncable duties of the State, which is obligated to provide them without exclusions, to improve and broaden them.

Cuba: The state consecrates the right achieved by the Revolution that all citizens, regardless of race, skin colour, sex, religious belief, national origin and any situation that may be harmful to human dignity (...) be given health care in all medical institutions.

10 Access to essential medicines in 187 constitutions

Good example of Constitution and Action Plan:South Africa

Constitution (1994, amended 2003)

1. Everyone has the right to have access to health-care services, including reproductive health care, sufficient food and water and social security, including, if they are unable to support themselves and their dependants, appropriate social assistance

2. The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights

3. No one may be refused emergency treatment

National action plan for the protection and promotion of human rights (1998) Recognition of the fact that the realization of socioeconomic rights

requires public expenditure to meet basic needs, develop infrastructure, promote growth and stimulate job creation.

11 Access to essential medicines in 187 constitutions

Other examples of constitutional text (3): Equity and/or focus on vulnerable groups

Ecuador: The State guarantees the right to health through the... possibility of permanent and uninterrupted access to health services, in conformity with the principles of equity, universality, solidarity, quality and efficiency.

Philippines: The State shall endeavour to provide free medical care to paupers (...) There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children.

Nicaragua: Free health care is guaranteed for the vulnerable sectors of the population, given priority to the completion of programs benefiting mothers and children

Viet Nam: Priority is given to the program of health care for highlanders and various ethnic minority groups

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Other examples of constitutional text (4):National (medicine) policies, participation

Ecuador: The State shall create a national health policy and shall oversee its applications; (...) it shall recognize, respect, and promote the development of traditional and alternative medicines, the use of which shall be regulated by law [;]

Panama: The State shall envelop a national policy regarding medical products that promotes the production, availability; obtain ability, quality, and control thereof throughout the country. (...)

Panama: Communities have the duty and the right to participate in the planning and execution and evaluation of different health programs.

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Practical implications

Political opportunities to update the constitution occur from time to time, e.g. in South Africa in 1994

The new constitution should then consider key human rights principles, and specifically the right to health as detailed in General Comment 14 and equitable access to essential medical goods and services

Examples of clear constitutional text identified in this study may serve as a model for activists, policy makers and legislators when the political opportunity exists

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www.who.int / medicines

Saving lives with the right (to) medicines