The right to enjoy the highest attainable standard of health (right to health) is universally recognised. It is a vital pre-requisite for human wellbeing, life in dignity and sustainable development. According to the UN Secretary-General’s 2020 policy paper on COVID-19 and human rights, a health crisis of this magnitude has a critical adverse impact on economic development, political and social life, and, consequently, affects the whole range of human rights and freedoms, especially of the most vulnerable such as the elderly, women, LGBTI minorities, migrants and refugees.
The role of business in ensuring the right to health is significant, both in providing healthcare directly through privatised services and in the products and services necessary to ensure a functioning public system. In addition to businesses working directly with health, the role of all businesses in protecting employees from harms to their health has come under increased spotlight during the COVID-19 pandemic.
International human rights law (IHRL) addresses human health primarily through the right to health. Article 12 of the International Covenant on Economic, Social and Cultural Rights (CESCR) recognises that everyone has the right to “the enjoyment of the highest attainable standard of physical and mental health” and provides a non-exhaustive list of areas of special importance such as maternal, child and reproductive health; healthy natural and workplace environments; prevention, treatment and control of diseases; and health facilities, goods and services. CESCR General Comment No. 14 on the Right to Health interprets the normative content of the right to health broadly and distinguishes the freedoms, such as the right to control one’s health and body, sexual and reproductive health, and right to be free from interference, and entitlements, such as the “the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.” (para. 8). The General Comment elaborates that the scope of the right to health is broad and includes health care system as well as “the underlying determinants of health” connected to water, food, housing, occupational and natural environment, health-related education and entails the participation of the public in health-related decision-making (para. 11).+ Read more
Although states are the primary duty bearers vis-a-vis health-related human rights, under the UN Guiding Principles on Business and Human Rights (UNGPs) business enterprises bear the duty to respect human rights and, hence, can be responsible for human rights abuses. In the pharmaceutical sector such abuses can be seen with overly high prices for essential medicaments, or producing and promoting medicaments with adverse side effects or addictive qualities. In the health care sector, private facilities have been seen to discriminate against their patients or create barriers for accessing sexual and reproductive health care services, for example.
To operationalise the right to health, the Availability, Accessibility, Acceptability and Quality (AAAQ) framework was adopted as the standard of implementation by the World Health Organization (WHO) and the UN High Commissioner for Human Rights (OHCHR). The framework provides benchmarks and indicators that can be used as guidance to ensure that the right to health is protected, respected and fulfilled. These benchmarks examine, among others, whether there are sufficient health care facilities and services for the population; whether they are accessible for the most vulnerable; whether they cater for the specific needs of different groups; and, finally, whether these services meet the standard of quality. In the course of its AAAQ Toolbox project, the Danish Institute for Human Rights published a paper on the AAAQ Framework and Sexual and Reproductive Health and Rights (SRHR). The paper maps out SRHR services and develops the AAAQ indicators specific to different SRH service areas.
Socially and economically disadvantaged groups are more susceptible to the issues with the determinants of health which include, among others, quality of food and water, living and workplace environment. Moreover, vulnerable groups face barriers vis-à-vis accessing health care services and medicaments. As a result, these groups are more susceptible to contract diseases or experience health issues, and, in the aftermath, more likely to be excluded from proper treatment. APM Research Lab has estimated that the fatality rates caused by the COVID-19 pandemic are 3-4 times higher in the communities of colour than that of their white counterparts in the United States. Moreover, health-status discrimination is frequent in public or private employment, provision of services and other sectors. UNAIDS’ 2017 publication Confronting Discrimination reported that in many countries considerable number of persons living with AIDS/HIV had been refused treatment or had avoided going to the local clinic due to stigma and discrimination based on their health status.
To address specific health-related needs of vulnerable groups and individuals, international instruments guaranteeing their human rights include provisions related to health. For instance, Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) obligates member states to eliminate discrimination in the area of health care and guarantee health care services specific to women’s needs, such as those in connection with pregnancy. Similar emphasis has been applied to children (e.g. Article 24 of the Convention on the Rights of the Child) and to persons with disabilities (e.g. Article 25(b) of the CRPD emphasises the inclusion of children and older persons in provision of health care services specific to needs of persons with disabilities).
Social care or assistance for persons with physical or mental disabilities, or other health-related issues is part of the right to the highest attainable standard of physical and mental health. In the General Comment No. 5 on persons with disabilities, the Committee on Economic, Social and Cultural Rights indicated that Article 12 of the CESCR “the right to have access to, and to benefit from, those medical and social services … which enable persons with disabilities to become independent, prevent further disabilities and support their social integration,” including rehabilitation services. This principle is also supported by other provisions of the Convention, such as Article 9 on social security and Article 11 on the right to an adequate standard of living. The CRPD also refers to the provision of necessary social protection, assistance and support to help persons with disabilities and their families fully realize their rights to accessibility, independent living, employment, an adequate standard of living.
In the face of increasing privatisation of health care services, production of medical supplies and business activities’ impact on environmental, social and economic determinants of health, the role of the private sector is crucial in preventing threats and ensuring progress of the global health situation. Crucial interpretative documents, such as CESCR General Comments No. 14 (the right to health), No. 22 (the right to sexual and reproductive health), CEDAW General Recommendation No. 24 (women and health), CRC General comment No. 15 (the right of the child to health), clarify that states have human rights obligations not only in the public health sector, but they have to guarantee the right to health within the private sector as well. This implies that states must guarantee access to affordable and dignified health and social care services and medicaments, insurance, sexual and reproductive health services, non-discrimination, etc. To achieve this, states should monitor, regulate and supervise private health sector, require business entities to assess their human rights impacts and conduct human rights due diligence, and hold business entities accountable in case of abuses of human rights.
Private healthcare is a rapidly growing industry and is projected to reach US$7.4 trillion by 2027. Whereas business enterprises are leading actors in producing pharmaceutical supplies and medical equipment, they are also competing with public actors in the provision of healthcare services and facilities and medical insurance markets. According to the WHO, the growth of private health industry can be explained by the solutions private actors offer for the challenges of health systems, such as health fiscal space constraints, increases in disease burden, particularly in relation to noncommunicable diseases, demographic shifts including ageing, population displacement and political and economic instability.
All major healthcare models involve private actors in financing, provision, or supply of healthcare. However, state systems vary in terms of the proportions of public-private mix. According to the OECD’s Health at a Glance 2019, average public spending of OECD countries on health was 71% of total health expenditure, with Norway leading by 85% and Switzerland at 30%. According to a 2019 Report by the World Health Organization, almost 13% of the world population were spending 10% of their household budget as out-of-pocket funds on healthcare in 2015, and the percentage of population impoverished by out-of-pocket spending was 2.5% in the same year. At the same time, private provision or financing of healthcare does not necessarily entail improved efficiency, accountability, or medical effectivity, according to a 2012 article.
Privatisation of different public services and functions related to healthcare has been a global trend. According to the OECD data, the number of for-profit private hospitals in the US increased to 1650 by 2017 from 1068 in 2007, whereas the number of publicly owned hospitals declined by more than 150 in the same period. The UK government has been accused of using the COVID-19 pandemic to push privatisation of UK’s public National Health System. A 2016 article explains the privatisation trends in Europe and claims that many states have been pushing to create competitive healthcare market through a “purchaser-provider split,” which implies that the state purchases service from public and private sources alike, based on the quality and price offered.
As provided by the CESCR General Comment No. 24, privatisation is not prohibited by the international human rights law even in areas of essential public service, including healthcare. However, states cannot delegate their human rights obligations, and they are accountable for human rights impacts of privatisation. International human rights bodies have emphasised as problematic the lack of regulations and oversight of private actors in the sector, high costs and fees, increased disparities and inequalities, access to essential medicines in the countries over the globe. The COVID-19 pandemic has made these issues more pressing and extreme. Based on the preliminary data from Asian countries, a 2020 article claims that countries with more privatised health care systems have had more COVID-19 cases and mortalities, whereas countries with universal healthcare coverage or public healthcare fared better.
Apart from the direct link as actors in healthcare, private entities have indirect impact on the right to health of various stakeholders through business activities. Business impacts on environment can affect determinants of health of local communities and employees. An example of such an impact is the case of DuPont and severe negative health effects of its chemical products on communities in the US. Companies can also have adverse impact on the human right to health through insufficient health and safety standards and practices. According to a 2017 Report from the Human Rights Watch, migrant workers in Qatar worked in extreme heat and humidity which endangered their health and life. Under extraordinary circumstances, such as the COVID-19 pandemic, business activities might have adverse impact on the right to health without being hazardous or violating OSH standards. For instance, according to the International Labour Organization’s sectoral brief on COVID-19 and food retail, food retail workers have emerged as essential service and are under higher risk of infection during the pandemic. A 2020 article revealed that essential workers in private sector, such as food retail, experienced the lack of necessary personal protective equipment during the pandemic. COVID-19 pandemic also brought a spotlight to the links between the technology in healthcare and human rights. According to Human Rights Watch, applications that track and trace the virus through geolocation and data access represent a threat to human rights, such as the right to private life, freedom of movement, expression, and association. Amnesty International names Bahrain, Kuwait and Norway as the states with the most invasive applications for virus tracing.
Health is one of the key topics of the 2030 Agenda for Sustainable Development and global efforts for development and progress. SDG 3 contains specific health-related targets that aim for preventing diseases, solving the issues with the determinants of health, and ensuring access to affordable health care, especially in developing countries. Other SDGs also target the global issues with health-determinants or health of particular groups. Examples of the former are SDG target 2.2 on child malnutrition, SDG target 6.1 on sanitation and hygiene, SDG target 5.1 on universal access to sexual and reproductive health for women and girls. World Health Statistics Report of 2019 reported that although there was general progress with more than 50% of the health-related SDG indicators, several indicators, such as road traffic mortality, children overweight, malaria incidence, alcohol consumption, water sector ODA, remain stagnant or show trend in the wrong direction.
The Agenda 2030 also promotes Universal Healthcare Coverage (UHC) for all as a crucial aspect of sustainable development (SDG target 3.8). According to the WHO, UHC entails that all individuals and communities receive the health services they need without suffering financial hardship. A 2016 OECD Report found that UHC is linked with better health outcomes and is affordable for a large number of middle-income countries. Beyond the Agenda 2030, global initiatives are pushing for UHC. For instance, Global Conference on Primary Healthcare adopted the Astana Declaration in 2018 which envisions that strengthening primary health care to be a cornerstone for the UHC. UHC 2030 is a global multi-stakeholder platform to strengthen health systems for universal health coverage through advocating for increased political commitment to UHC and facilitate accountability and knowledge sharing. According to a 2019 WHO publication, cooperation with and engagement of the private sector is critical for achieving UHC.