By Rossella De Falco
Strong, well-coordinated and resilient public health care services play a vital role in preventing and responding to public health crises. Under international human rights law, States have a positive, primary obligation to ensure that such health care services are of the highest possible quality and accessible to everyone, everywhere, and without discrimination.
States maintain these obligations even when non-State actors are involved in health care financing, provision, and governance, albeit further normative development in this area is still urgently needed. The Guiding Principles on Business and Human Rights, unanimously endorsed by the United Nations (UN) Human Rights Council in 2011, were one of the first steps in this direction, as they recognize States’ duty to protect against human rights abuses by third parties as well as corporate responsibility to respect human rights.
A range of UN Human Rights Treaty Bodies have further contributed to interpret the human rights implications of private actors’ involvement in health care. As shown in an analysis of their concluding observations over 2006-2020, UN Treaty Bodies have called on States to strictly monitor and regulate private health care actors; to ensure that any private sector involvement do not result in discrimination in accessing health care services; and to assess public-private partnerships in light of the duty to use their maximum available resources (Art. 3 ICESCR) for the full realization of the right to health.
What are, however, the specific legal and ethical implications of involving private actors in health care vis-à-vis public health emergencies? The recent Principles and Guidelines on Human Rights and Public Health Emergencies (the Principles) provide a first answer to this pressing question. The Principles emphasize that States, as part of their duty to prevent, respond to, and remedy public health emergencies: “must ensure that non-State actors do not, whether by their acts or omissions, impair the enjoyment of human rights”; and “must regulate and monitor engaged non-State actors to prevent them from impairing the enjoyment of human rights and provide for redress and accountability” (para. 5.1). This applies in the case of private actors operating both nationally and cross-nationally (para 5.2). Importantly, the Principles emphasize that non-State actors of particular relevance to this discourse are: “corporate entities such as private healthcare providers and insurers, and manufacturers of health goods, facilities and technologies” (p. 4, Introduction).
Further, non-State actors also have a responsibility to respect human rights (5.4.b), as well as to “contribute to the fulfilment of human rights’”(5.3. b) and “to refrain from impeding international solidarity efforts” (2.4.) in the context of public health emergencies. The Principles thus respond to the urgent need to foreground human rights in prevention and responses to public health emergencies, particularly at a time when corporations exercise ever-growing influence in both global health and domestic health systems. In fact, government-backed involvement of commercial actors in health care often acts as a catalyst for discrimination and inequality in accessing health care services, which are magnified at times of disease outbreak.
In low- and middle-income countries like Kenya and Nigeria, individuals living in urban informal settlements tend to use low-cost private health care services, especially when public health care services are unavailable. These private facilities are often unsafe, unlicensed, and offer sub-standard medical care, including by using expired drugs, misdiagnosing, overcharging, employing untrained staff or detaining patients over unpaid bills. Relatively higher quality, registered private health care services, by contrast, serve higher income groups in well-off areas.
Reports by the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) and partners showed that this situation was a breeding ground for discrimination and inequality in accessing health care services during COVID-19. People living in poverty in marginalized urban areas experienced socioeconomic, information, and geographical barriers to accessing health care amid the health emergency. GI-ESCR’s investigations further highlight how women, the elderly, and the chronically ill suffered the most. Given the gravity of this situation and mounting civil society pressure, the UN Committee on Economic, Social and Cultural Rights recently asked Kenya to report on measures taken to monitor private actors’ involvement in health care.
Notably, the Principles underline that States must take effective measures to protect the right to health when third parties are involved before, during, and in the recovery from public health emergencies (para 5.2). This is especially instructive in cases where overreliance on private health care providers infiltrates health system governance, with consequences on the health system’s resilience to public health emergencies. In Lombardy, Italy, for instance, one of the richest areas in Europe, decades of market-based health reforms were accompanied by underinvestment in general practice, urgent care, and prevention – all of which are fundamental in responding to disease outbreaks. As showed in a policy-brief by GI-ESCR, this situation might amount to a violation of the right to health under domestic constitutional and international law.
Read together with the World Health Organization’s International Health Regulation (IHR) and the 1984 Siracusa Principles on the Limitations and Derogations Provisions in the International Covenant for Civil and Political Rights (Siracusa Principles), the Principles are a fundamental piece in the normative puzzle regarding human rights and private health care actors’ in the context of public health emergencies. Thanks to their special emphasis on non-State actors, their overarching pro homine approach as well as the meaningfully participatory process through which they were developed, the Principles represent a genuinely progressive effort to advance human rights norms and standards against the new challenges of a changing global health landscape.
Rossella De Falco, Ph.D., LL.M. is Programme Officer on the Right to Health at the Global Initiative for Economic, Social and Cultural Rights.