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The Right to Health during the COVID-19 pandemic

The Right to Health is an important legal concept. But does it actually make a difference when the time comes?
The Right to Health during the COVID-19 pandemic

The idea of a universal right to health has formally been around in international circles since the publication of the World Health Organisation's (WHO) Constitution in 1946. The "enjoyment of the highest attainable standard of health" was declared a "fundamental right" in that document and has since also been recognised in various international health treaties. Modern Liberal thinkers also contend that the right to health is a prerequisite for enjoying all other rights (perhaps apart from the right to life itself). Most OECD countries have state-sponsored healthcare or insurance schemes which cover the entire population. The developing world is also starting to move in that direction.

This begs the question: does having the right to health spelled out in the constitution make any difference to the provision of healthcare on the ground? After all, the mere presence of a law on the books does not mean that it is being followed in spirit.

The COVID-19 pandemic provides a fairly natural experiment to test this out. In order to check whether the Right to Health makes any difference to the number of infections per million and the number of deaths per million, I graphed the average number of infections per million in countries with an explicit right to health enshrined in the constitution and those without.

A time series of average daily infections per million in countries with and without a constitutional right to health

The result is definitely surprising. Far from doing better than countries without the right to health, the average country did worse! Does this get better when we look at deaths per million?

A time series of average daily infections per million in countries with and without a constitutional right to health

It really doesn't. Countries with an explicit right to health were worse when it comes to preventing both infections and deaths.

But that's a counterintuitive result. There is some evidence to show that countries with a guaranteed right to health tend to perform better than countries without one (which I explore further in this post), but if it didn't matter during an actual emergency, there's definitely something wrong. But what?

Defining the Right to Health

Before we go in that direction, it might be a good idea to define the right to health exactly. The "right to health" is somewhat strange terminology. Superficially, it seems to mean that countries and governments ought to work towards preserving and enhancing a person's state of well-being. But not only is this definition too broad, it is difficult to interpret in a legal context. While many such phrases tend to be used in international law, it requires time for their meanings to become properly defined. For example, the right to property, if implemented, does not mean that a person has the right to seize any property they desire. What it does mean is that they cannot be deprived of property they already own. The term's meaning has developed through long usage and application in legal systems.

One interpretation of the right to health is that it guarantees a citizen the right to healthcare. However, there is a marked difference between the right to health and the right to healthcare. One implies the right to a certain sense of well-being, while the other implies the right to access a certain standard of care in case one's sense of well-being were to diminish for any reason. While narrower, even the second definition has incurred disapproval in certain sections of the intelligentsia. Philosophers and policymakers have expressed concern about the coercive nature of redistribution which is implied by the right to healthcare.

Thank you to Owen Beard on Unsplash

Why might this be? One reason may be because a typical definition of the right to healthcare often includes things which go beyond medical care. The rights to "protective environmental services, prevention and health promotion and therapeutic services as well as related actions in sanitation, environmental engineering, housing and social welfare" are also typically included in the right to healthcare by many philosophers and public health officials. In other words, the right to health as understood by many professionals may be better defined as the right to health protection and the right to healthy conditions.

However, despite these problems, almost all countries have ratified at least one international treaty which includes the right to health. Many countries also explicitly include a right to health in their constitutions. Among the international treaties and declarations, the most well-known which contain a RTH include the Charter of Fundamental Rights of the European Union (Art.35, 2016), the International Covenant on Economic, Social, and Cultural Rights (Art.12, ICESCR, 1966), the Convention on the Rights of the Child (Art.24(1),1989), the Convention on the Elimination of All Forms of Discrimination against Women (UN, Art.12, 1979), the International Convention on the Elimination of All Forms of Racial Discrimination (UN, Art.5, 1966)), and the WHO Constitution.

Does the right to health actually have any effect on health outcomes?

International law recognises the right to health must be implemented progressively. A country must gradually move towards offering better healthcare to its citizens, and in the absence of such movement, it is expected that such a country will attempt to justify the reasons for which it has sacrificed its pursuit of better healthcare. The presence of greater resources in developed countries means they are further along the path towards the implementation of a comprehensive right to health. However, certain basic steps have to be taken by every country for its implementation. One of those steps is the right to non-discrimination, and another is the presence of a basic national plan towards realising comprehensive national healthcare.

The Alma-Ata declaration of 1978 gave us a clear idea of how a country can apply the right to health. The principle themes identified were:

  • The importance of equity
  • The need for community participation
  • The need for a multi-sectoral approach to health problems
  • The need for effective planning
  • The importance of integrated referral systems
  • An emphasis on health-promotional activities
  • The crucial role of suitably trained human resources
  • The importance of international cooperation

Some essential health interventions proposed in that document were:

  • Education concerning prevailing health problems
  • Promotion of food supply and proper nutrition
  • Adequate supply of safe water and basic sanitation
  • Maternal and child health care, including family planning
  • Immunisation against major infectious diseases
  • Prevention and control of locally endemic diseases
  • Appropriate treatment of common diseases and injuries
  • Provision of essential drugs

A number of indicators can be checked to see whether the right to health has informed a country's healthcare plan or not. Backman et. al. (2008) identify 72 indicators for the same.

But one of the best, most unbiased methods to understand the effect of a country's healthcare policies on its populace is to look at under-five mortality. The under-five mortality rate is, as the name suggests, the risk of a child dying before it reaches five years of age. Another, similar metric which may be used is infant mortality. However, under-five mortality is recognised as a superior measure of a health system because it measures five years of potential intervention. The illnesses which cause this are usually preventable, treatable, or both, and most common in low-income settings. Since the right to health encompasses both the right to medical care as well as the right to a healthy setting, the measure which we have chosen ought to reflect the effect of both. The most common cause of under-five mortality tends to be malnutrition, which is easily preventable by providing an adequate food supply to the entire population. Other common causes include acute respiratory infections, diarrhoea, malaria, and birth complications. If a child dies due to any of these conditions, it reflects systemic failures in the health system in both prevention and cure. Since children under five are young enough to not be affected by other factors (such as unemployment, or alcoholism, or anything else affecting an adult's well-being) their deaths can be blamed more squarely on health institutions than others.

Photo by National Cancer Institute on Unsplash

Unfortunately it is clear that being a signatory of an international treaty which emphasises the right to health is not associated with improved social or health outcomes. Encouragingly, though, multiple studies have noted that the presence of an explicit right to health in the constitution of a country has been associated with a significant decrease in under-five mortality. As Kavanagh (2017) points out, Botswana has many ingredients for "better health than its neighbor: higher GDP, stronger economic growth, lower economic and gender inequality, fewer ethnic divisions and electoral democracy that is both longer-standing and by several measures, as strong, if not stronger." Yet, South Africa's under-five mortality rate is 10% lower.

This does not imply that an explicit guarantee to health in the constitution can compensate for other issues within a country. Typically, a wealthy country will always have better healthcare than a poorer country. Countries with greater state capacity will almost always have the advantage in deploying healthcare resources. Other factors which affect mortality, and under-five mortality in particular, include female education, inequality, ethnic fractionalisation, urbanisation, political conflicts and violence, and population density.

However, the effect of having such a constitutional right is not small. It is the equivalent of going from a polity like Iran or Belarus to one like Switzerland or Costa Rica, or moving from the ethnic fractionalisation of Malawi to that of the Netherlands. This relationship seems to point towards an institutional effect.

In fact the effect is not just limited to under five mortality. It has also been seen that countries with a constitutional right to health have low inequities between boys and girls. In other words, a constitutional right to health significantly reduces the disparity between male and female under-five mortality rates in a country. The effect is roughly similar to the difference between Zimbabwe and Zambia, or that between the United States and an average high income country. Another interesting observation is that countries with a constitutional right to health do not invest more in healthcare, they just invest better. They tend to have more targeted programmes and more focused healthcare systems. It seems that the right to health manifests itself in a firmer social commitment towards providing better healthcare, possibly in the arena of governance, rather than increased funding.

What happened during COVID-19?

Ideally, if the right to health has actually made a measurable difference in the institutions of the country, then the effect ought to be felt in its response to the coronavirus. But as we've already seen, that's not the case.

Nonetheless, let have a look at some more data. Worldometers has a very nice table which lets us see the number of infections, deaths etc. per country. Sorting them by number of deaths, we see that the first ten countries are evenly split between those which have the right to health in their constitutions and those which do not. The United States, India, France, Germany and the United Kingdom do not have the right to health, and Brazil, Mexico, Italy, Russia and Spain do. Sorting by number of cases reported changes the rankings slightly and  Mexico gets replaced with Turkey. Turkey does not have the right to health either.

Sorting by the number of deaths per million yields a radically different set of countries. Yet even in this bunch, we see that Hungary, Czechia, North Macedonia, Montenegro and Belgium have constitutionally defined rights to health, and Gibraltar, Bosnia and Herzegovina, Bulgaria, San Marino and Slovakia do not.

Sorting by the number of cases per million gives us a slightly different set of countries. Among these, Andorra, Montenegro, Czechia and Slovenia have the right to health, while San Marino, Gibraltar, Bahrain, Luxembourg, Sweden and the United States do not.

This, being an admittedly poor way of looking at these results, tells us very little. Most countries do not have a constitutionally defined right to health, so there being approximately equal numbers in the top 10 of these tables may mean nothing.

But we've already had a look at the average country with and without the right to health in its constitution. Just to give some more context, here is a graph of the standard deviation for each day of daily infections per million which measures intra-group differences. A high standard deviation points to there being radical differences in the number of infected persons per million within a group of countries (in this analysis those with the right to health and those without). Conversely, a low standard deviation means that the number of infected people per million were similar within a group.

The standard deviation for daily infections per million. Countries with a defined right to health have diverged quite a bit from each other during the latter days of the pandemic.

Similarly, here is a graph of the standard deviations of the number of deaths per million.

There graphs here are fairly similar, which means that the distributions of deaths were shaped similarly within both groups.

This naive look at standard deviations tells us as compared to countries with a constitutional right to health, countries which do not have a right to health saw more uniformity in the number of people getting infected (even as the average number of people per million getting infected in these countries stayed lower than those with a right to health), and both groups showed similar uniformity in the number of deaths per million (though the average country without the right to health managed it better than the average country with the right to health).

At first blush, it seems that having a constitutionally defined right to health may be detrimental to actually being healthy. If this analysis is correct, that would mean that the areas of the health system which these countries focus on might not be the ones which actually matter in an emergency. It could be that the social obligation towards providing healthcare to the entire population leads to excessive focus on governance aspects, while neglecting other parts of the system, such as healthcare workers, funding, or supply chains.

However, a more mundane reason might be that countries without the right to health include many developed countries with very good health systems. Japan, South Korea, Singapore, Australia and New Zealand all have no provision for such a right in their constitutions. Most Western European countries also recognise no such legal right. While I have not done this analysis, it would not surprise me to know that most countries with a guaranteed right to health tend to have weak health systems and low budgets for healthcare. These countries also tend to be in historically poorer parts of the world: there are very few countries with the right to health in Western Europe and North America. Surprisingly, even China does not have the right to health enshrined in its constitution (or did not in 2008 which is the year my dataset on the right to health dates back to).

Another reason may be that countries with a clearly defined right to health are more transparent about the number of infections and deaths within their borders. This presupposes a clearly malicious intent on part of the political executive in countries without the right to health to make sure they are not caught with their pants down.

At the end of the day, more nuanced research needs to be performed on this topic. It might be interesting to see whether these results change by region, or when controlled for GDP. Maybe we will see that the legal right to health is very good for normal, mundane health issues, but it isn't very good when applied to epidemics or emergencies of this type. Or maybe this demonstrates the need for more inclusive metrics when analysing health systems.


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