Right to health

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to health?

The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health.

The UN Committee on Economic Social and Cultural Rights has stated that health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.

Where does the right to health come from?

Australia is a party to seven core international human rights treaties. The right to health is contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR).

See also article 5(iv) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , articles 10(h), 11(1)(f) , 12, 14(2)(b) and 16(1)(e) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), articles 24 and 25 of the Convention on the Rights of the Child (CRC) and articles 23(1)(c) and 25 of the Convention on the Rights of Persons with Disabilities (CRPD).

CEDAW requires measures to be taken in the field of health to eliminate discrimination against women. They include protecting health and safety in working conditions, including the safeguarding of women's function of reproduction. CEDAW also requires access to adequate health care facilities, including information, counselling and services in family planning and appropriate services in connection with pregnancy, confinement and the post-natal period.

The CRC requires that appropriate measures be taken to diminish infant and child mortality.

The CRPD requires that effective and appropriate measures be taken so that people with disability, including children, retain their fertility on an equal basis with others. CRPD also requires that people with disability be provided with the same free or affordable health care and programs as are provided to other persons, including in the area of sexual and reproductive health. The CRPD requires countries to prohibit discrimination against people with disability in the provision of health insurance and life insurance.

When do I need to consider the right to health?

You will need to consider the right to health if you are working on legislation, a policy or a program that:

  • relates to access to information on the health and well-being of families, including information and advice on family planning
  • relates to training for health personnel
  • relates to access to health facilities, goods, including essential medications and services, especially for vulnerable or marginalised groups
  • relates to health services for particular groups, including Indigenous Australians, women and children
  • relates to the provision of aged care services, including in nursing homes
  • provides services for people with disability
  • provides for payments for medical benefits and hospital services, such as Medicare
  • relates to sterilisation of persons
  • provides for reproductive, maternal (pre-natal and post-natal) and child health care
  • relates to access to essential foods which are nutritionally adequate and safe
  • relates to access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water
  • provides immunisation against infectious diseases
  • relates to the prevention, treatment and control of epidemic and endemic diseases, including HIV/AIDS
  • relates to eligibility for health insurance or life insurance
  • regulates access to private health insurance, and /or
  • collects and provides information and statistics on health-related issues.

This list should not be regarded as exhaustive.

What is the scope of the right to health?

While ICESCR contains no definition of health, the UN Committee on Economic Social and Cultural Rights has stated that the right to health is not to be understood as a right to be healthy. According to the Committee, the right contains both freedoms and entitlements. The freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

The Committee has stated that the notion of 'the highest attainable standard of health' takes into account both the conditions of the individual and the country's available resources. The Committee recognises that good health cannot be ensured by a country, nor can countries provide protection against every possible cause of human ill health, such as genetic factors, individual susceptibility to ill health and the adoption of unhealthy or risky lifestyles. Consequently, the right must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the individual to realise his or her highest attainable standard of health.

The Committee has stated that the right to health embraces 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 potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment. This entails a right of access to a variety of public health and health care facilities, goods, services, programs and conditions necessary for the realisation of the highest attainable standard of health. The precise nature of the facilities, goods and services will vary depending on numerous factors, including the country's developmental level. In this regard, developed countries such as Australia will be held to higher standards than developing countries.

The services must be within safe physical reach for all sections of the population, especially vulnerable or marginalised groups, such as ethnic minorities and Indigenous populations, women, children, adolescents, older persons, people with disability and persons with HIV/AIDS. The services must be affordable for all. Payment for health care services, as well as services related to the underlying determinants of health, must be based on the principle that the services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups.

The Committee has stated that it considers that Indigenous peoples have the right to specific measures to improve their access to health services and care. These health services should be culturally appropriate, taking into account traditional preventive care, healing practices and medicines.

Article 12(2) of ICESCR provides that the steps to be taken by countries to achieve the full realisation of the right to health shall include those necessary for:

  • The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
  • The improvement of all aspects of environmental and industrial hygiene;
  • The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
  • The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

The Committee has stated that this non-exhaustive catalogue of examples provides guidance in defining the action to be taken by countries. The catalogue gives generic examples of measures arising from the broad definition of the right to health contained in article 12(1). Article 12(2)(a) may be understood as requiring measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care and emergency obstetric services. The term 'industrial hygiene' in article 12(2)(b) refers to the minimisation, so far as is reasonably practicable, of the causes of health hazards inherent in the working environment. Article 12(2)(b) also embraces adequate housing and safe and hygienic working conditions, an adequate supply of food and proper nutrition, and discourages the abuse of alcohol, and the use of tobacco, drugs and other harmful substances.

Declaration on the Rights of Indigenous Peoples

The Declaration on the Rights of Indigenous Peoples contains provisions relevant to the right of Indigenous peoples to health. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous peoples.

What is the obligation under ICESCR?

Obligations of progressive realisation

Under article 2(1) of ICESCR, a country is obliged to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realisation' of the rights recognised in ICESCR. The UN Committee on Economic Social and Cultural Rights has stated that this provision is 'a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights'. However, the Committee has also stated that 'the phrase must be read in the light of the overall objective of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question', and that 'it thus imposes an obligation to move as expeditiously and effectively as possible towards that goal'.

Obligations of immediate effect

The Committee has stated that, notwithstanding the progressive realisation provision, there are two obligations that are of immediate effect. They are the guarantee in article 2(2) of ICESCR that the rights under the Covenant will be exercised without discrimination of any kind and the obligation under article 2(1) to 'take steps'. This means that steps towards realisation of the rights under the Covenant must be taken within a reasonably short time after the country becomes party to the Covenant and that the steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations under the Covenant.

Can the right to health be limited?

Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review. Measures that are retrogressive to the realisation of economic, social and cultural rights must also be properly justified. A retrogressive measure is one that reduces the extent to which an economic, social and cultural right is guaranteed.

Which domestic laws relate to the right to health?

There is no Commonwealth legislation explicitly enshrining the right to the enjoyment of the highest attainable standard of physical and mental health. A number of Commonwealth laws, including the following, deal with subjects relevant to the right to health.

The Health Insurance Act 1973 underpins the Medicare scheme by providing for payments by way of medical benefits and for hospital services.

The National Health Act 1953 makes provision for pharmaceutical, sickness and hospital benefits, and of medical and dental services. It contains extensive provisions about the operation of nursing homes.

The Aged Care Act 1997 is designed to promote a high quality of care and accommodation for the recipients of aged care services and to protect the health and well-being of the recipients of aged care services.

The Disability Services Act 1986 is intended to assist people with disability to receive services necessary to enable them to work towards full participation as members of the community, to promote services provided to people with disability that assist them to integrate in the community and to assist people with disability to achieve positive outcomes, such as increased independence and employment opportunities.

The Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 make provision for the treatment (for example in hospital and the medical and allied health industries) for eligible veterans, serving and former members of the Australian Defence Force and their dependants.

The Australian Institute of Health and Welfare Act 1987 establishes the Australian Institute of Health and Welfare, whose functions are to collect and provide information and statistics on Australia's health and welfare. The aim of the Institute is to improve the health and wellbeing of Australians through better health and welfare information and statistics.

What other rights and freedoms relate to the right to health?

The right to health may also be relevant to:

  • the right to an adequate standard of living, including adequate food, clothing and housing in article 11 of ICESCR
  • the rights of people with disability in the CRPD
  • the prohibition on torture and ill-treatment in article 7 of the International Covenant on Civil and Political Rights and in the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.

The UN Committee on Economic Social and Cultural Rights has stated that the right to health is also closely related to and dependent upon the realisation of a number of other human rights, including the rights to work, education, human dignity, life, non-discrimination, equality, privacy, access to information, and the freedoms of association, assembly and movement.

Articles from relevant Conventions

International Covenant on Economic, Social and Cultural Rights

Article 12(1)

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

See also: CERD article 5(iv); CEDAW articles 10(h), 11(1)(f), 12, 14(2)(b); CRC articles 24, 25; CRPD articles 23(1)(c), 25, 26.

Where can I read more about the right to health?

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