1 Health, Human Rights and Global Justice Dr Phillip Cole Social Ethics Research Group University of Wales, Newport Introduction: In December 2007 it was revealed that the British government is considering the exclusion of certain groups of migrants -- those considered to be present „illegally‟ -- from primary health care provided by the National Health Service. At present, practitioners have discretion to accept any individual for NHS treatment regardless of their status. A joint Home Office and Department of Health review is examining this access for foreign nationals, and the likely outcome is the restriction of access to irregular migrants, which would, according to the Institute of Public Policy Research, affect around 390,000 people. In 2004 such groups were excluded from NHS secondary care, most controversially from treatment for HIV, and so the present proposal would bar them from all but emergency health treatment.  The 2004 legislation was justified in terms of tackling the problem of „health tourism‟, where people allegedly visit the United Kingdom expressly for free treatment. In arguing for the restrictions in 2003, the then Health Secretary John Reid said: “If there are bona fide tourists dropping ill in the streets, of course we will do what we have to, but we are not mugs. There is a difference between being civilized and being taken for a ride.” Failed asylum seekers, for example, were “effectively stealing treatment from the people of this country.” He concluded: “I am not talking about emergency treatment, matters of life and death. I am talking about routine treatment that causes the people of this country, who are legally and morally entitled to it, to have to wait longer.”  Prior to the change in the regulations, irregular migrants were legally entitled to treatment. The supposition has to be that they were not morally entitled to it, and that the legislation brought law and morality into line.  This kind of restriction, in fact, is not new. The relevant regulations were clarified in 1989 when NHS hospital services were obliged to establish whether a patient was an 2 overseas visitor, and, if so, charge them for treatment. There were exceptions: where a person was exempt from charges, so were their spouse and children; people on legitimate business trips and their family were exempt; and, most crucially, anybody who had spent the previous 12 months in the United Kingdom was exempt. However, one of the amendments to the regulations in 2004 changed this last rule so that only people living in the United Kingdom legally for the past 12 months were exempt, and as a result illegal immigrants, failed asylum seekers, visa overstayers and others living in the country without proper authority, were no longer eligible and were liable to pay for treatment.  There are still exemptions in these cases: they will not be charged (i) if they have a serious communicable disease which is exempt on public health grounds, including TB and all sexually transmitted diseases apart from HIV; (ii) if they seek treatment in an Accident and Emergency Department; and (iii) if they require compulsory mental health treatment.  Other changes state that where treatment is judged to be immediately necessary to save life or prevent a condition from becoming life-threatening, that treatment must be given prior to determining whether the patient is chargeable; but this must be determined subsequently and the patient advised as soon as possible, and all costs must be recovered.  The 2004 changes were heavily criticised. The House of Commons Select Committee on Health, in its Third Report, published in March 2005, focussed on the exclusion of failed asylum seekers with HIV. After hearing evidence from government ministers, medical experts and other groups, they stated: “It is very important that the UK does not become a magnet for HIV+ individuals seeking to emigrate to this country solely to access free healthcare. However, neither the Department nor any other interested parties have been able to present us with any evidence suggesting that this is currently the case, or that the introduction of these restrictions on free treatment will actively discourage people from entering or remaining in this country illegally. What little evidence exists in this area in fact seems to suggest that HIV tourism is not taking place. It suggests that HIV+ migrants do not access NHS services until their disease is very advanced, usually many months or even years after their arrival in the UK, which would not be the expected behaviour of a cynical „health tourist‟ who had come to this country 3 solely to access free services”.  One of the main reasons for restricting access to health services must be to save financial costs, but the committee discovered that the government could not give any estimate of how much money would be saved – no cost-benefit analysis of the financial impact of the changes had been made.  A central concern for the committee was the cost of not treating HIV+ patients in terms of onward transmission: “…the Department‟s own estimates suggest that preventing a single onward transmission of HIV saves between £500,000 and £1 million in terms of individual health benefits and treatment costs.”  Although government ministers dismissed the concern that people would be discouraged from coming forward for treatment until the illness reached a very late stage, the committee commented: “…we are unable to share the Minister‟s optimistic view that the introduction of charges will have no impact on the numbers of people coming forward for HIV testing.”  The committee recommended that free treatment be given to all HIV+ patients regardless of immigration status, and that HIV should be reclassified as a Sexually Transmitted Infection, which would make treatment free automatically.  If the outcome of the present Government review is the parallel restriction of access to primary case, this, argues the National Aids Trust, will have a further negative impact on the treatment of HIV. In their evidence to the Select Committee they observed: “GPs remain a vital first port of call for those concerned about their health. GPs can often diagnose serious conditions on the basis of apparently minor symptoms, or at least identify the need for further investigation and tests. Early symptoms of HIV may well remain undetected if people are denied access to an assessment in primary care, resulting in delays in diagnosis with the attendant harm both to the individual and quite possibly to others.”  This further exclusion would be “extremely harmful to the fight against HIV in the UK.”  The Human Right to Health: Do these measures violate the human right to health of irregular migrants, and, if so, is this a decisive argument against them? There are five questions we can ask about such a right: (1) is there a right to health in international law?; (2) if so, what is its content?; (3) 4 who is covered by it?; (4) does it place any legal obligations upon the states that have ratified it?; and (5) is it justiciable? International Law According to Article 25 (1) of the Universal Declaration on Human Rights: “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care.”  Article 12 of the International Covenant on Economic, Social and Cultural Rights states that: “The States Parties to the Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. Signatories commit to the “creation of conditions which would assure to all medical service and medical attention in the event of sickness.”  The Convention on the Rights of the Child includes the right to health for children under 18. The Content of the Right to Health: The general understanding of the right to health embodied in these international instruments is that it is the right to the highest available standard of health. This itself was expanded upon and interpreted by the Committee on Economic, Social and Cultural Rights, when it adopted General Comment 14 in 2000. General Comment 14 itself is not binding, and remains an interpretation of the right to health embodied in international law. However, it has shaped the work of the United Nations and the UN‟s Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt. According to General Comment 14, health is a fundamental human right, and includes certain components which are legally enforceable (paragraph 1). It is not to be understood as a right to be healthy, but as a right to health care: “a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health” (paragraph 9). But it is not confined to the right to health care. It also includes the right to “a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and 5 potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment” (paragraph 4). The committee identified four essential elements to the right to health (paragraph 12). (1) Availability: public health and healthcare facilities, goods, services and programmes have to be available in sufficient quantity. The precise content of what is available may depend on the level of development of a particular state, but it has to include the underlying determinants of health such as safe drinking water, hospitals, clinics, and trained medical staff. (2) Accessibility: services have to be accessible to all. Access has to be free of discrimination; these services have to be physically accessible; and they must be affordable. (3) Acceptability: services have to be respectful of medical ethics and respectful to the culture of individuals, minorities and communities, and have to be sensitive to gender and age. (4) Quality: services have to be scientifically and medically appropriate and of good quality. This requires, amongst other things, skilled medical personnel, scientifically approved and unexpired drugs and equipment, safe water and adequate sanitation. The Covenant allows for progressive realization of the right to health (paragraph 30), but at the same time it imposes obligations which have immediate effect. Immediate obligations include non-discrimination of any kind, and the obligation to take steps towards the full realization of Article 12. “Such steps must be deliberate, concrete and targeted towards the full realization of the right to health.” Even where progressive realization is allowed, states have a legal obligation to “move as expeditiously and effectively as possible towards full realization...” (paragraph 31). Who is covered by the right to health: In practice nation states – the main agencies through which the UN rights regime is delivered – have a tendency to interpret these rights and protections as owed by them to their citizens. This would mean that they have discretion over whether they are owed to non-citizens within their territory. In our present case, the UK is considering to withdraw these rights from non-citizens. However, the United Nations regards its charter of human 6 rights and its other conventions as applying to all people regardless of their status, and therefore takes the view that a national government has an equal obligation to respect, deliver and enforce those rights to all people within its territory. The UN Special Rapporteur for the Commission on Human Rights, Gabriela Rodriguez-Pizarro, made this clear in her report on the human rights of migrants, submitted to the General Assembly in August 2002. “The purpose of the provisions of the Declaration and the international instruments is to protect, without distinction, every person without exception within the jurisdiction of a state.”  The Commission on Human Rights resolution 2000/48 directly addressed this question, affirming that: “every State party to the International Covenant on Economic, Social and Cultural Rights must undertake to guarantee that the rights enunciated in that Covenant will be exercised without discrimination of any kind…”  General Comment 14 makes clear that this interpretation of the human right to health is the correct one. The Covenant explicitly proscribes any discrimination in access to health care and the underlying determinants of health (paragraph 18). The obligation upon states to respect the right to health means “refraining from denying or limiting equal access for all persons, including … illegal immigrants, to preventative, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy” (paragraph 34). Legal Obligations: According to General Comment 14, certain aspects of the right to health impose legal obligations upon states. Three types of general legal obligation fall upon states: to 7 respect, protect and fulfill the right to health (paragraph 33). The obligation to respect requires states to refrain from interfering directly or indirectly with the enjoyment of the right to health; the obligation to protect requires states to prevent third parties from interfering with the right; and the obligation to fulfill requires states to take appropriate measures towards the full realization of the right. The duty not to discriminate outlined in paragraph 18 is itself a legal obligation which should be nationally enforceable. There is, therefore, a human right to health embodied in international law, and that right must be respected, protected and fulfilled without discrimination by the states that have signed and ratified the treaties that embody the right. The United Kingdom has signed and ratified the ICESCR; the United States has signed but not ratified it. This means that the measures taken by the United Kingdom government to exclude certain migrants from access to health care provided by the National Health Service, and the proposals to exclude them further, are a breach of the government‟s obligations under international law. General Comment 14 is clear that: “Any person or group victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations should be entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition” (paragraph 59). 1. Justiciability: The final question is whether the right to health is justiciable . The fact is that unless the right to health is incorporated into national constitutions, the scope of accountability is extremely limited. In the absence of such incorporation, General Comment 14 can only 8 recommend much weaker strategies: “National ombudsmen, human rights commissions, consumer forums, patients‟ rights associations or similar institutions should address violations of the right to health” (paragraph 59). What emerges from addressing the question of justiciability – whether international human rights are enforceable through national courts – is that, when it comes to the right to health migrants and citizens are in the same boat: if it is not embodied in a constitution, neither have a legally enforceable human right to health. Tamara Friesen commenting on the situation in Canada, observes that “a human right to health, even one supported by international law, is not a legal right – it is not justiciable, and this cannot be used as a tool by Canadian citizens who want to be proactive in improving and maintaining the quality of their public health care.”  Rather, “it is Canadian health law jurisprudence that will ultimately furnish human rights activists with the tools they seek.”  Canadian health law consists of the Canada Health Act of 1985 which undertakes to provide universal and free health care to Canadians, and the relevant sections of the Canadian Charter of Rights and Freedoms. However, the Canada Health Act is not constitutionally entrenched, and so it is vulnerable to legislative erosion.  Legal scholars have looked to the Charter of Rights and Freedoms, and have argued that a fundamental right to health care arises from section 7, which guarantees the life, liberty and security of the person, in that basic and medically necessary health care must be an aspect of a person‟s life, liberty and security.  However, after surveying various cases and court rulings, Friesen concludes that it is unlikely that section 7 can provide a legal right to health care. She suggests that section 15 of the Charter is more helpful. It states that: “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without 9 discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Cases brought against government health care allocations have been successfully challenged under this section.  In one such case, the Canadian Supreme Court concluded that: “once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner… In many circumstances this will require governments to take positive action, for example by extending the scope of a benefit to a previously excluded class of persons.”  However, governments can infringe section 15 on economic grounds, which is allowed in section 1 of the Charter.  Friesen concludes that the question whether a human right to health care exists in Canada has no clear legal answer. She observes: “it may be argued that in Canada, at least, the intellectual battle over the existence of a right to health care is less important than the legal battle to influence health care allocation decisions. The right to health, while it may be a human right recognized in international documents, has not been recognized, and most likely will not be recognized, as a justiciable right enshrined in the Charter.”  2. Reflections and Conclusion: The problem of justiciability reveals the limitations of the human rights approach. The lesson from Canada is that campaigners need to look elsewhere than to international instruments embodying the right to health for legal remedy or protection. The Platform for Cooperation on Undocumented Migrants observes that any legal protection for irregular migrants “requires an innovative application of the European Convention 10 clauses against cruel and inhuman treatment and respect for family life in the national courts.”  Apart from legal remedies, another form of resistance to the exclusions may come from medical professionals who, from an ethical point of view, oppose them and refuse to strictly enforce them: they may choose to simply not ask the required questions. There is anecdotal evidence that this is taking place, but, because it is subversive, there is no direct evidence. More explicitly, medical campaigners may establish alternative access to health care for undocumented migrants. Medecins du Monde set up a clinic in London in 2006, which provides walk-in information, support and advocacy, and helps undocumented migrants with accessing specialist health services, including sexual health clinics, and provides treatment for most infections and acute conditions.  Finally, Friesen‟s discussion of the situation in Canada revealed that when it comes to a legally enforceable human right to health, undocumented migrants and citizens are in the same boat in most, if not all, developed nations. Citizens only have access to the human right to health where the international instruments embodying it have been, as General Comment 14 recommends, entrenched in the national constitution, as, for instance, is the case in South Africa. At the same time, we have to understand that such legal measures against irregular migrants do not necessarily need to exclude them from goods and services to be effective, but rather their aim is to symbolically „demonize‟ them as a threat to national welfare, so that a democratic electorate will support a government that takes a tough stance against them.  Resistance through national courts will do little to address this symbolic power.It is here that the discourse of human rights may have a more effective role to play. Friesen 11 observes that if the goal in Canada is “to enable public enforcement of egalitarian principles using constitutional tools,” then section 15 of the Charter “can be used to enforce positive obligations on the government to provide adequate health care to all its citizens.”  The definition of what counts as adequate health care is where the battle will take place, and Friesen suggests this is where the international instruments that Canada has ratified have a role to play. More broadly, the discourse of human rights could be effectively employed against the symbolic power governments mobilize against migrant populations.For this to work, we need a theory of the human good to underpin the legal discourse of human rights. In the first place, the legal discourse is, by itself, not pragmatically persuasive: people, including High Court judges, want a moral justification for a right, not a legal one. In the second place, the legal discourse is not theoretically persuasive: it needs the foundation of a theory of the human good to connect it with the world of experience. And if the legal language of human rights is a global discourse – as it claims to be – then the theory underpinning it must be global in scope. There are, of course, many challenges in developing a global theory of the human good that has anything but the thinnest content, but the area of health and health care may be the most fruitful place to start. And so we come full circle, because the international instruments and the reports that accompany them, for example by the United Nations Special Rapporteur on the human right to health, Paul Hunt, provide rich resources with which we can begin to build a global theory of the human good. Endnotes:  Failed asylum seekers in Wales and Scotland do not fall under this exclusion, and the situation in England is unclear at the time of writing, after a High Court ruling that regulations banning failed asylum seekers from free NHS treatment were unlawful. The 12 government is in the process of appealing against the ruling. All other irregular/undocumented migrants are excluded throughout the United Kingdom.  BBC News. ‟Health Tourism‟ rules unveiled, published 30/12/2003, http://news.bbc.co.uk/1/hi/health/3355751.stm, accessed 10 July 2008.  Cole P. Human Rights and the National Interest: Migrants, Health Care and Social Justice. Journal of Medical Ethics 2007;33(5):269-272.  Select Committee on Health Third report paragraph 94. www.publications.parliament.uk/pa/cm200405/cmselect/cmhealth/252/25202.htm, accessed 10 July 2008.  See note 4, paragraph 95.  See note 4, paragraph 96-97.  See note 4, paragraph 111.  See note 4, paragraph 128.  See note 4, paragraph 139.  See note 4, paragraph 151.  See note 4, paragraph 177.  National Aids Trust‟s report to the Health Committee, paragraph 7.2, http://www.nat.org.uk/document/74, accessed 10 July 2008.  See note 12, paragraph 7.1.  United Nations. Universal Declaration of Human Rights. www.un.org/Overview/rights.html, accessed 10 July 2008.  For the full version of the International Covenant on Economic, Social and Cultural Rights, see www.unhchr.ch/html/menu3/b/a_cescr.htm, accessed 10 July 2008. For other international codes in this area see International Organization for Migration. World Migration 2005: Costs and Benefits of International Migration, Volume 3 -- IOM Migration Report Series; 2005:330.  United Nations. Human Rights of Migrants. United Nations document A/57/292, p. 12 (available at www.unhchr.ch/Huridocda/Huridoca.nsf/0/ee8cd3573f96c740c1256c4d0038539a/$FILE/ N0251832.pdf, accessed July 14, 2008), p. 7. 13  United Nations. Human Rights of Migrants. www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.2000.48.En?Opendocume nt, accessed 10 July 2008.  I am interpreting „justiciability‟ here to mean that “only a court of law … is competent to review complaints about violations of a right and to give redress.” Toebes BCA. The Right to Health as a Human Right in International Law. Antwerp: Intersentia- Hart; 1999:168. Toebes in fact thinks this is too narrow an interpretation.  Friesen T. The Right to Health Care. Health Law Journal 2001;9:205-222; p. 205.  See note 19. Friesen 2001:206.  See note 19. Friesen 2001:213.  See note 19. Friesen 2001:213.  See note 19. Friesen 2001:218.  See note 19. Friesen 2001:218.  See note 19. Friesen 2001:219.  See note 19. Friesen 2001:220.  Platform for International Cooperation on Undocumented Migrants. Access to Health Care for Undocumented Migrants in Europe. PICUM 2007:97.  See note 28. Platform for International Cooperation on Undocumented Migrants 2008:104.  See Cole P. La valla estadounidense. La teoria politica liberal y la inmoralidad de la pertenencia. Revista Internacional de Filosofía Política 2006;27:101-115.  See note 19. Friesen 2001:221-222.