State human rights obligations regarding the distribution of scarce health resources

Harrington, John ORCID: https://orcid.org/0000-0003-0957-3334 and Chatzinikola, Asteropi 2022. State human rights obligations regarding the distribution of scarce health resources. [Project Report]. Open Society Justice Initiative. Available at: https://www.justiceinitiative.org/uploads/81147322...

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Abstract

This report offers a comprehensive overview of case law concerning the rights to life, health, and non-discrimination in international, regional, and national systems. The focus is on States’ positive obligations to protect the rights to life, health, and non-discrimination in the context of access to health care, denial of treatment, protection and prioritization of vulnerable populations, and allocation of scarce health and other resources. International bodies and regional commissions have been generally more generous in the interpretation of the rights to life and health than the European Court of Human Rights. In the ECtHR jurisprudence, the limits to a successful claim are often determined by the scope of the State’s positive obligations, the margin of appreciation allowed to States, the knowledge by the authorities of the circumstances that lead to violations of Article 2 ECHR, and the limitations on Court intervention in areas of State policy, including national health and resource allocation. Establishing a claim, in this context, based on the systemic dysfunctioning of the health care system is more likely under Article 2 than under other relevant heads, such as Article 8 ECHR. Health considerations in some form permeate most of the cases examined. Of specific interest are jurisdictions that have an autonomous right to health within their constitutional or other fundamental rights framework, and those where the right to health enjoys derivative protection as an inherent, if implicit part of the right to life. The issue of inconsistent or uneven access to medicines and mismanagement has often triggered claims based on the rights to life, health, and non-discrimination, which are discussed in the wider context of persistent failure of health care systems for which the State is responsible. Access to health-related information is also identified as a further means for States to build a relationship of trust with the public. Lack of trust has thwarted the implementation of state-wide immunization programs, such as vaccinations, even when these are implemented equitably. The interdependence of the three pillars – rights to health, life and freedom from discrimination - was evident throughout the research. Our findings suggest that a claim is more likely to be persuasive when it has considered the interrelation and combined application of these rights with reference to the specific factual scenario.

Item Type:	Monograph (Project Report)
Date Type:	Publication
Status:	Published
Schools:	Law Cardiff Law & Politics
Publisher:	Open Society Justice Initiative
Funders:	Open Society Foundations
Date of First Compliant Deposit:	26 November 2023
Date of Acceptance:	1 October 2023
Last Modified:	04 Dec 2023 11:35
URI:	https://orca.cardiff.ac.uk/id/eprint/164377

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