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LITIGATING THE HUMAN RIGHT TO HEALTH AND THE AIDS PANDEMIC: 2003 University of Alberta Sheldon Chumir Memorial Essay Prize Winner The HIV/AIDS pandemic is one of the defining issues of the 21st century.1 Twenty million people have already died from AIDS and sixty-five million will face death over the next twenty years. The majority of these live in the developing world, amoung the world’s poor, powerless, and marginalized. Despite the increased focus on the global AIDS pandemic since the XIII International AIDS Conference in Durban, South Africa, in July 2000, and despite some very significant developments since that time, the vast majority of people living with HIV/AIDS still lack access to affordable and effective treatment programs and medications.2 One method that human rights activists can use to ensure access to treatment for people living with HIV/AIDS is litigation that relies on the international and domestic recognition of the human right to health.3 1 Justice Edwin Cameron, “Opening Commentary” (Remarks presented to the XIV International AIDS Conference, Barcelona, Spain, July 2002), Putting Third First: Vaccines, Access to Treatment & the Law (Toronto: Canadian HIV/AIDS Legal Network, 2002) 6, online: Canadian HIV/AIDS Legal Network <www.aidslaw.ca/ >. The human immunodeficiency virus (HIV) is made up of genetic material called RNA- hence it is a retro-virus. Many people with HIV may have few or no signs or symptoms of the disease for up to 10 years. As time passes, the HIV infection damages the person’s immune system. At this point, a person may develop AIDS or acquired immune deficiency syndrome. An official diagnosis of AIDS in Canada is given when a person with HIV develops one or more opportunistic infections or certain cancers that are rare in the general population and characteristic of people infected with HIV. Lark Lands, Treatment Information Exchange, A Practical Guide to HAART (Highly Active Anti-Retroviral Therapy) (Toronto: CATIE, 2002), online: CATIE <http://www.catie.ca/pdf/Practical_Guide_to_HAART_EN.pdf> [hereinafter A Practical Guide to HAART]. 2 Richard Elliott, Sharan Parmar, Vivek Divan & Jonathan Berger, “Global Treatment Access: Legal Developments and Challenges” (Paper presented to the XIV International AIDS Conference, Barcelona, Spain, July 2002), Putting Third First: Vaccines, Access to Treatment & the Law (Toronto: Canadian HIV/AIDS Legal Network, 2002) 19, online: Canadian HIV/AIDS Legal Network <www.aidslaw.ca/>. 3 Ibid. at 22; Jonathan Michael Berger, “The Case of South Africa’s Treatment Action Campaign” (2002) 20 Wis. Int’l L.J. 595 (Lexis) [hereinafter “The Case of South Africa’s Treatment Action Campaign”]; Jonathan Michael Berger, “Litigation Strategies to Gain Access to Treatment for HIV/AIDS: The Case of South Africa’s Treatment Action Campaign” (Paper presented to the XIV International AIDS Conference, Barcelona, Spain, July 2002), Putting Third First: Vaccines, Access to Treatment & the Law (Toronto: Canadian HIV/AIDS Legal Network, 2002) 19, online: Canadian HIV/AIDS Legal Network <www.aidslaw.ca/> [hereinafter “Litigation Strategies”]. In this paper, I discuss the use of the human right to health as a litigation strategy in South Africa and Canada for ensuring access to treatment and medications for people currently living with HIV/AIDS and potential preventative HIV vaccines. The focus is on the human right to health in National Constitutions and International Treaties and not on patent law, which is an equally important but distinct issue. I first compare the extent of the HIV/ADS crisis in South Africa and Canada and the response of the health care systems in these jurisdictions. I then discuss the human right to health recognized in international law and the extent to which it has been recognized in the domestic law of the two countries. Finally, I compare litigation of the right to health in two jurisdictions, South Africa where the right to health has been explicitly incorporated in the state constitution4 and Canada where it has not.5 Background to the HIV/AIDS Crisis and Treatment Options
South Africa has more people living with HIV than any other country. Approximately 11.4% of the total population is living with HIV/AIDS,6 and the epidemic continues to grow at a rapid rate. UNAIDS estimates that in 2000, 19.9% of adults were infected, up from 12.9 % in 1998. The majority of AIDS related deaths will be amoung young, economically active adults, thereby increasing the likelihood of serious negative 4The Constitution of the Republic of South Africa, Act 108 of 1996, s. 27 [hereinafter South African 5 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.). 1982, c. 11 [hereinafter Charter]. 6 UNAIDS. The Report on the Global HIV/AIDS Epidemic, (Geneva: UNAIDS, 2002), online: UNAIDS <http://www.unaids.org/barcelona/presskit/report.html>. economic and social consequences.7 It is estimated that AIDS accounted for about 25% of all deaths in the year 2000 and has become the single biggest cause of death. Without treatment to prevent AIDS, the number of AIDS deaths is expected to more than double the number of deaths due to all other causes, resulting in 5 to 7 million cumulative AIDS deaths in South Africa by 2010.8 This situation may be ameliorated by access to antiretroviral drugs (ARVs) that enable people with HIV/AIDS to live longer and with Unfortunately, the South African government has been slow to respond to the HIV/AIDS crisis. It was not until 17 April 2002 that the South African cabinet released a statement “that HIV causes AIDS.”10 The statement recognized that ARVs “could help improve the conditions of [people living with HIV/AIDS] if administered at certain stages of the progression of the condition, in accordance with international standards” and expressed a commitment to work to lowering the cost of these drugs.11 However the government went on to acknowledge that ARVs “are not generally available through the public health 7 Ibid. According to the Medical Research Council of South Africa, The Impact of HIV/AIDS on Adult Mortality in South Africa (Tygerberg: Medical Research Council of South Africa, 1999), online: Medical Research Council of South Africa < www.mrc.ac.za/bod/>, about 40% of deaths in the 15-49 years age group in 2000 were due to HIV/AIDS, and about 20% of all adult deaths in that year were due to AIDS. 8 Medical Research Council of South Africa, Ibid. 9 Jennifer Joni, “Access to Treatment for HIV/AIDS: A Human Rights Issue in the Developing World” (2002) 17 Conn. J. Int’l L. 273 (Lexis). Note that antiretroviral drugs (ARVs) target the HIV infection itself and not the opportunistic infections associated with HIV/AIDS. The highly effective combination of anti-retroviral drugs used to treat persons living with HIV/AIDS in the developing world is called highly active anti-retroviral therapy. There are at least 16 antiretroviral drugs (19 including the various combinations and formulations) available in A Practical Guide to HAART, supra note 1. 10 South African Cabinet, Summary of Government's position following Cabinet's discussion, 17 April 2002, online: Government Communication and Information System <http://www.gov.za/issues/hiv/hivgovposition02.htm> [hereinafter Summary of Government's position following Cabinet's discussion, 17 April 2002]. 11 South African Cabinet, Cabinet Statement on HIV/AIDS, 17 April 2002, online: Government Communication and Information System <http://www.gov.za/speeches/cabinetaids02.htm>. sector.”12 Thus the majority of people living with HIV/AIDS in South Africa have no Canada’s Medicare System and Access to Pharmaceuticals Close to 50,000 Canadians currently live with HIV/AIDS and 12,000 have died of AIDS. The Government of Canada responded to the AIDS crisis by launching the National AIDS Strategy in 1990 with an annual budget of $37.3 million, increased to $42.2 million in 1994, followed by the Canadian Strategy on HIV/AIDS in 1998.13 Federal money is primarily spent on research and Aboriginal health. The provinces and territories have also committed significant amounts to HIV/AIDS related efforts through their Medicare, drug, pharmacare, and community support programs, and, in four provinces, through their own HIV/AIDS strategies. For example, in British Columbia in 1997/98, the Ministry of Health spent $60 million on HIV/AIDS- related services and programs, including health promotion and prevention. This total includes $25 million on ARVs and more than $20.3 million in acute and continuing care services.14 Similarly the Government of Ontario currently spends about $50 million on its HIV/AIDS strategy in addition to the costs associated with treatment and care.15 12 Summary of Government's position following Cabinet's discussion, 17 April 2002, supra note 10. 13 Martin Spigelman Research Associates and The Project Group, Taking Stock: Assessing the Adequacy of the Government of Canada Investment in the Canadian Strategy on HIV/AIDS (Ottawa: Ministerial Council on HIV/AIDS, 2001) ) at 4, online: Health Canada < http://www.hc-sc.gc.ca/hppb/hiv_aids/can_strat/pdf/pdf/ministerial/spigelmanreport-final.pdf>. 14 British Columbia, Ministry of Health and Ministry Responsible for Seniors, British Columbia’s Framework for Action on HIV/AIDS (Victoria: Ministry of Health and Ministry Responsible for Seniors, 1998) at 25, online: Ministry of Health Services <http://www.hlth.gov.bc.ca/hiv/framework.pdf> 15 Spigelman, supra note 13 at 4. Treatment for HIV/AIDS in Canada is provided by ten provincial and three territorial publicly funded health insurance schemes that are linked through the need to comply with national standards set out in the Canada Health Act in order to obtain federal funding.16 This structure is a direct result of the division of powers between federal and provincial governments under the Constitution Act, 1867. 17 The purpose of the Canada Health Act is to “establish criteria and conditions in respect of insured health services and extended health care services provided under provincial law that must be met before a full cash contribution may be made” by the Federal government to the provinces.18 Each provincial insurance plan must comply with five criteria in order to receive the full cash contribution, namely, comprehensiveness, accessibility, universality, portability, and public administration. “Insured health services” are defined in the Act to include all “medically necessary” hospital services and “medically required” physician services.19 However, “medically necessary” and “medically required” have not been defined in the Canada Health Act, nor in any provincial acts.20 Thus the full range of services to be provided by a province is open to negotiation between the two levels of government. 16 R.S.C. 1985, c. C-6. 17 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5. The provincial governments have jurisdiction over the provision of health services by virtue of their jurisdiction over hospitals (s. 92(7)), property and civil rights(s. 92(13)), and “matters of a merely local or private nature”(s. 92(16)). The federal government has jurisdiction by virtue of its specific jurisdiction over “Quarantine and the Establishment and Maintenance of Marine Hospitals” (s. 91(11)); and its criminal law power (s. 91(27)), spending power (s. 91(3), s. 91(1A), s. 106), power relating to peace order and good government (s. 91), power to regulate patents (s. 91(22)), and First Nations People (s. 91(24)). 18 Canada Health Act, supra note 16, s. 4. 19 Canada Health Act, supra note 16, s. 2. 20 Timothy A. Caulfield, “Wishful Thinking: Defining “Medically Necessary” in Canada” (1996) 4 Health L.J. 63 (Lexis); Colleen M. Flood, “The Anatomy of Medicare” in Jocelyn Downie, Timothy Caulfield & Colleen Flood, eds., Canadian Health Law and Policy (Markham, Ont.: Butterworths, 2002) 1 at 22. The problems within Canada’s Medicare system are generally characterized as relating to cost and access.21 In the current climate of health care reform by provincial governments the lack of definition of “medically necessary” has allowed for the de-listing of services as a cost saving measure. Provincial governments are certainly motivated to curb expenditure on pharmaceuticals. This has been the fastest growing component of total health care spending, increasing approximately 10 percent annually.22 In 1998, drug expenditures as a proportion of total health care expenditures were 15.6 percent, up from 9.9 percent in 1982. The statistics reflect the increased use of drugs as preventative treatment and as a cost-effective alternative to hospitalization and surgery. The increase also reflects an aging population and a shift from the management of acute to chronic The lifetime care and treatment costs for each person living with HIV/AIDS are estimated to be at least $150,000 while the indirect cost of their lost productivity and premature death may be as much as $600,000.23 Use of the new anti-retroviral therapies may add $60 million annually to health care costs in Canada and this estimate does not include prophylaxes for opportunistic infections and medications to deal with side 21 Flood, ibid. at 2 22 S.G. Morgan, “Issues for Canadian Pharmaceutical Policy” in National Forum on Health “Striking a Balance: Health Care Systems in Canada and Elsewhere” Vol. 4 (Ottawa: Editions MultiMondes, 1997) 677 at 685; Å. Blomqvist & J. Xu, “Pharmacare in Canada: Issues and Options” Health Policy Working Paper Series 01-01 (Health Canada, Ottawa: 2001), online: <http://www.hc-sc.gc.ca/iacb-dgiac/nhrdp/index.html>. 23 Spigelman, supra note 13 at 4. 24 Glen Brown, Making Treatments Accessible: A Policy Paper on Determining Appropriate Pricing for Brand-name Pharmaceutical Treatments for HIV/AIDS in Canada (Canadian Treatment Advocates Council, 2001) at 16, online: Canadian Treatment Advocates Council <http://www.ctac.ca/english/pdf/paper_drug_pricing.pdf>. Despite the growing use of pharmaceuticals, Canada is without a National Pharmacare Programme and at present there is no intention to implement one. The National Forum on Health recommended a national pharmacare policy in Canada in 1997.25 This was followed by a conference on pharmacare in 1998 that also advocated a national policy on pharmacare.26 There was, however, no consensus as to whether a sustainable and effective National Pharmacare Programme should be implemented incrementally or whether wholesale reforms should be introduced more quickly. The Commission on the Future of Health Care headed by Roy Romanow, whose report and recommendations on restructuring Canada’s Medicare system are due shortly, will also likely recommend the implementation of a National Pharmacare Programme.27 At present, pharmaceuticals are fully covered when used in hospitals as required by the Canada Health Act.28 However the comprehensive coverage of medically necessary treatment mandated by the Canada Health Act does not extend to outpatient use of pharmaceuticals.29 Public pharmaceutical plans cover only about 44 percent of Canadians. Private plans are purchased for or by a further 44 percent and the remaining 25 National Forum on Health, “Directions for a Pharmaceutical Policy in Canada” Canada Health Action: Building on the Legacy: Synthesis Reports and Issues Papers- Final Report Vol. 2 (1997), online: Health Canada <http://wwwnfh.hc-sc.gc.ca/publicat/finvol2/pharm/>. 26 (Conference on National Approaches to Pharmacare, Saskatoon, January 18-20 1998) (1998) Health Canada Publications, online: <http://www.hc-sc.gc.ca/datapcb/htf-fass> [hereinafter “National Approaches to Pharmacare”]. 27 Commission on the Future of Health Care, online: < http://www.healthcarecommission.ca>. 28 R.S.C. 1985, c. C-6. 29 National Forum on Health, supra note 25; Flood, supra note 20. 12 percent are without any drug insurance coverage and must pay full prescription costs Most provinces have plans that cover outpatient pharmaceutical purchases for seniors and those receiving social assistance.31 In the Western provinces, Ontario, and Quebec, at least some type of coverage is available to all citizens, albeit with high deductibles, or some type of co-payment or co-insurance provisions. It is likely that further negotiations between the federal and provincial governments on a national pharmacare policy will continue to incorporate some type of co-insurance provisions32 because of fiscal pressures and a general ideological shift towards a reduced role for government.33 The coverage of treatment for people living with HIV/AIDS varies between Provinces. Some provinces have publicly funded drug plans for people living with HIV/AIDS. For example, the British Columbia Centre for Excellence in HIV/AIDS provides any resident of British Columbia who is infected with HIV the opportunity to enter its drug distribution programme.34 As a participant, individuals receive those medications distributed by the Centre free of charge. In return, patients must consent to the collection of a patient profile so the epidemic can be tracked. By the end of the 1994-1995 fiscal year, 2,265 individuals and 584 physicians had participated in the Centre's drug treatment programme: over 1,024 individuals were actively on therapy. However, there is a 30 National Forum on Health, ibid. citing statistics from the Canadian Pharmaceutical Association. 31 Blomqvist & Xu, supra note 22. 32 Ibid. 33 Flood, supra note 20 at 8. 34 B.C. Centre for Excellence in HIV/AIDS, The Therapeutic Guidelines for the Treatment of HIV/AIDS and Related Conditions , Section 8: The Drug Program, online: B.C. Centre for Excellence in HIV/AIDS <http://cfeweb.hivnet.ubc.ca/>. regional bias as the majority of the participants and physicians live in the Greater In Alberta, Disease Control and Prevention provides prescription drugs for the treatment of sexually transmitted disease such as HIV/AIDS at no direct cost to the patient.35 ARVs are only dispensed through two locations, Edmonton and Calgary on an outpatient bases, again indicating a bias in favour of residents of large urban centers for access to medication. The cost of these drugs takes up almost 10 percent of the total budget for highly specialized Province Wide Services such as organ transplants and major heart However, not all people living with HIV/AIDS have access to publicly funded ARVs. The high cost of HIV antiretroviral regimens ($20,000/annum and higher) has forced some individuals to leave workplaces without drug plans, in order to access provincial drug formularies through social assistance programs. Pre-existing condition clauses in private insurance policies often exclude people living with HIV/AIDS from drug coverage. Such policies prevent people living with HIV/AIDS from leaving specific employers for the risk of losing private insurance36 At first brush, it might appear that the comparatively high level of public health care funding available in Canada does not and will not warrant the use of litigation as a strategy to guarantee access to treatment for the increasing number of people living with HIV/AIDS. However, in the current political climate of fiscal restraint and health care 35 Alberta Health and Wellness, Health Care Coverage and Services, online: Health and Wellness <www.health.gov.ab.ca/coverage/benefits/prov-services.html>. 36 This situation is known as “job lock”. Brown, supra note 24 at 16. reform, with the potential for an increased role for private insurers, the level of support for and access to costly medications and other treatment will likely decline.37 The issue of accessibility to HIV/AIDS treatment and medications must be seen as part of the broader issue of resource allocation issue that is confronting Canada’s Medicare system as it faces pressure from aging baby-boomers and the development of more sophisticated and The best long-term hope for controlling HIV/AIDS is the development and widespread distribution of a safe, effective, and affordable vaccine. Researchers are currently focusing efforts on prevention in addition to treatment through the development of vaccines.39 Several potential vaccines are already in clinical test in Thailand and North America, including Vancouver.40 The results of the first of these Phase III clinical trials on a vaccine developed by VaxGen will be available at the end of 2002.41 Merck is currently completing Phase I trials of two different vaccine candidates.42 37 Cynthia Ramsay, Discussion Paper No. 16: A Framework for Determining the Extent of Public Financing of Programs and Services (Ottawa: Commission on the Future of Health Care in Canada, 2002) at 3, online: Commission on the Future of Health Care in Canada <www.healthcarecommission.ca/>. 38 Steve Morgan & Jeremiah Hurley, Discussion Paper No. 14: Influences on the “Health Care Technology Cost-Driver” (Ottawa: Commission on the Future of Health Care in Canada, 2002), online: Commission on the Future of Health Care in Canada <www.healthcarecommission.ca/>. 39 Sam Avrett & Chris Collins, “HIV Vaccines: Current Challenges and Future Directions” (2002) 7 Can. HIV/AIDS Pol’y & L. Rev. (QL); Sam Avrett, “HIV Vaccines for Developing Countries: Advancing Research and Access” (Paper presented to the XIV International AIDS Conference, Barcelona, Spain, July 2002), Putting Third First: Vaccines, Access to Treatment & the Law (Toronto: Canadian HIV/AIDS Legal Network, 2002) 11, online: Canadian HIV/AIDS Legal Network <www.aidslaw.ca/>. 40 Carol Ezzell, “Hope in a Vial” (2002) 286 Scientific American 38. 41 VaxGen, online: <http://www.vaxgen.com/index.html>. 42 Carol Ezzell, supra note 40. Research into vaccines is in accord with the Declaration of Commitment on HIV/AIDS, signed in June 2001 by 189 member states of the United Nations. The declaration recognized the need for a strong global response to the AIDS epidemic and, as part of that response, the need for HIV vaccine research, development, and access. The “[e]ncourage increased investment in HIV/AIDS-related research, nationally, regionally and internationally, in particular for the development of sustainable and affordable prevention technologies, such as vaccines and microbicides, and encourage the proactive preparation of financial and logistic plans to facilitate rapid access to vaccines when they become available”.43 Canada announced at the XIVth International AIDS Conference, held in Barcelona in 2002, that it will develop a Canadian HIV/AIDS vaccine plan that will “focus on vaccine production and equitable distribution…this plan will support the global vaccine effort and will contribute to a better understanding of the complex legal, ethical and human rights issues involved in addressing access to vaccines and treatments for people living with HIV/AIDS, nationally and globally.”44 In addition, Canada is in the process of developing a social justice framework “that will have at its core a rights-based, integrated approach involving the major determinants of health; and that will recognize every person’s right to affordable and accessible health care and long-term good health.”45 43 A/RES/S-26/2, UNGA, 2001 at para. 89. 44 Paul Gully, “Address” (Remarks presented to the XIV International AIDS Conference, Barcelona, Spain, July 2002), Putting Third First: Vaccines, Access to Treatment & the Law (Toronto: Canadian HIV/AIDS Legal Network, 2002) 1, online: Canadian HIV/AIDS Legal Network <www.aidslaw.ca/ >. The announcement was partly in response to a call for an action plan by the Canadian HIV/AIDS Legal Network.46 The Network has prepared a comprehensive report on the the legal and ethical issues surrounding HIV vaccines and their use in Canada during three stages of development and implementation: the preparatory phase of vaccine research (investment in research and trials), clinical trials (issues of recruitment in high risk communities, informed consent for participants, and the standard of care), and vaccine delivery. Here, I will discuss this last issue because cost and accessibility will likely be two factors that affect the implementation of a vaccine delivery system in It is likely that at first, vaccines will be in limited supply given the global market. They will also be expensive while the biopharmaceutical companies recoup their research and development costs during the lifetime of their respective patents. When a limited supply of vaccine is available, its distribution may involve determining the proportion of the various population groups that must be vaccinated in order to make a perceptible dent in HIV transmission rates. Limited vaccine supply may also impose an ethically difficult choice concerning which communities should be prioritized for vaccination. For instance should the vaccine be first delivered in communities where there are relatively few services available for people infected with HIV or amoung the groups at highest risk of contracting HIV? The Legal Network report sets out the most likely scenario: 46 David Thompson, HIV Vaccines in Canada: Legal and Ethical Issues A Backgrounder (Montreal: Canadian HIV/AIDS Legal Network, 2001), online: Canadian HIV/AIDS Legal Network <www.aidslaw.ca/ >. Vaccination will likely commence by targeting young adults and then progress slowly through a transition towards a more general public vaccination campaign - most likely among young children. The timing of this transition will also pose an interesting dilemma for public health managers. In part, the decision will await post marketing surveillance data indicating high levels of vaccine safety and longevity of vaccine-generated immunity. But in the context of finite health budgets the decision to move from targeted to public vaccination will not merely depend upon vaccine supply but also upon the availability of other potentially scarce resources (eg,- human resources). In this situation, the decision will be a function of the relative benefits to be achieved by each marginal allocation of further resources in highly vulnerable communities, versus equivalent expenditure in a more generalized vaccination campaign. These decisions will require close evaluation based upon objective scientific data concerning, vaccine safety, efficacy and HIV epidemiology. 47 The Human Right to Health
The right to health has been recognized as “one of the fundamental rights of every human being” since 1946 when the right was incorporated in the preamble of the Constitution of the World Health Organization.49 More recently, the “enjoyment of the highest attainable standard of health” has been recognized in Article 12 of the International Covenant on Economic, Social and Cultural Rights.50 Two other Conventions specifically recognize the rights of women51 and children52 to access health care services. 47 Ibid. at 228. 48 For a comprehensive analysis of the human right to health recognized in International Law see: Brigit C.A. Toebes, The Right to Health as a Human Right in International Law (Antwerpen: Intersentia, 1999). 49 (14 U.N.T.S., pp. 186, Basic Documents WHO, 32d ed. Geneva, 1981), 22 July 1946, entry into force: 7 Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition….Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures. 50 16 December 1966, 993 U.N.T.S. 3; Can. T.S. 1976 No. 46 [hereinafter ICESCR]. Article 12 provides: 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. Other international and regional human rights instruments that enumerate a right to health are the Universal Declaration of Human Rights that states “everyone has a right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services.”53 While the International Covenant on Civil and Political Rights54 does not include a right to health, it has provisions to protect the right to life, security of the person, and freedom to seek, receive, and impart information, all of which impact on the right to health. 55 Further, States that are parties to the International Convention on the Elimination of All Forms of Racial Discrimination undertake to prohibit and eliminate racial discrimination 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth rate and of infant mortality and for the (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other (d) The creation of conditions which would assure to all medical service and medical 51 Convention on the Elimination of All Forms of Discrimination against Women, 18 February 1979, 1249 U.N.T.S. 13; Can T.S. 1982 No. 31, Article 12 provides that states party to the convention are to “eliminate discrimination against women in the filed of health care in order to ensure, on a basis of equality between men and women, access to health care services” and in particular to ensure access to appropriate services in connection with pregnancy. 52 Convention on the Rights of the Child, GA Res. 25 (XLIV), UN GAOR, 44 th Sess. Supp. No. 49, UN Doc. A/Res/44/25, 1989, reprinted in 28 ILM 1448, 1989; Can T.S. 1992 No. 3, Article 24 requires states that are signatories to the Convention to recognize “the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health,” to “ensure that no child is deprived of his or her right of access to such health care services” and to take appropriate measure to “ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care.” 53 GA Res. 217 A (III), UN GAOR, 3d Sess., UN Doc. A/810, 1948. 54 GA Res. 2200A, UN GAOR, 21st Sess., Supp. No. 16, Art 47, UN Doc. A/6316, Articles 6, 7, 9, and 10. 55 Audrey R. Chapman, “Violations of the Right to Health” in The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights- SIM Special No. 20 (Utrecht: SIM, 1998) at 89, online: Netherlands Insitute of Human Rights (SIM) < http://www.law.uu.nl/english/sim/specials/simsp20.asp>. including a guarantee of the right to public health and medical care, without distinction based on race, colour, and national or ethnic origin.56 To be able to enforce a right to health, one has to first determine its content. The most detailed articulation of the content of the right to health in international law is found in General Comment 14 of the UN committee on Economic, Social and Cultural Rights.57 The Committee states that the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services, and conditions necessary for the realization of the “highest attainable” standard of health that takes into account both individual variation and the availability of resources.58 The right to health does not oblige governments to guarantee that individuals will be healthy, a condition that may have more to do with genetic and environmental factors and life style choices. The Committee identifies four interrelated and essential elements of the right to health: availability, accessibility (including affordability), acceptability, and quality.59 Other documents that assist in the interpretation of the scope of the right incorporate general principles of interpretation of international human rights law. In particular, the Limburg Principles on the nature and scope of the obligations of states that are parties to the ICESCR define a violation as a failure by a State Party to comply with an obligation 56 GAOR, 2100A (XX) of 21st December 1965, 660 UNTS 195 (entered into force 4 January 1969), Article 57 Committee on Economic, Social and Cultural Rights, CESCR General Comment 14: The Right to the Highest Attainable Standard of Health, 22d Sess., UN Doc. E/C. 12/2000/4 (2000), ), online: United Nations High Commissioner for Human Rights <www.unhchr.ch> [hereinafter General Comment 14]. 58 Ibid.; Toebes, supra note 48. 59 General Comment 14, ibid. at para. 12. articulated therein through acts of commission or omission.60 The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights identify four categories of violations that pertain to the right to health: violations of commission; violations of omission, particularly the failure to fulfill the minimum core obligation of the right to health; the failure to provide sufficient health protection; and violations related to gender Other provisions in the ICESCR may also assist in delimiting a state’s obligations with respect to the right to health.62 In general, State Parties are expected to take steps immediately towards the progressive realization of the full rights under the ICESCR.63 These steps should include, but are not limited to, legislative measures and the provision of judicial remedies with respect to the rights in the ICESCR. It is recognized that the ability of State Parties may be limited by the scarcity of resources; nevertheless, State Parties should take steps “to the maximum of available resources.” State Parties must not only devote sufficient resources but they must also use those resources effectively and equitably.64 For each right there are core obligations that must 60 The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/CN.4/1987/17; 9 Human Rights Quarterly 122 at paras. 70-73 [hereinafter The Limburg Principles]. 61 (1997) 15 Netherlands Quarterly of Human Rights, 244, online: University of Minnesota Human Rights Library < http://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html>. 62 Barbara von Tigerstrom, “Human Rights and Health Care Reform: A Canadian Perspective” in Timothy A. Caulfield & Barbara von Tigerstrom, eds., Health Care Reform and the Law in Canada: Meeting the Challenge (Edmonton: University of Alberta Press, 2002) 157 at 159: Article 2(1) of the ICESCR, supra note 50 requires each State Party to “take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” 63 The Limburg Principles, supra note 60 at paras. 16, 21. 64 Ibid. at paras. 27-28. be fulfilled regardless of resource considerations.65 The rights in the ICESCR must be guaranteed to all without discrimination (Article 2(2)) and without discrimination based on gender (Article 3). This requirement of nondiscrimination takes effect immediately and extends beyond state discrimination to taking steps to end discrimination by private More recently, there have been developments concerning access to medicines as a component of a right to health, generally, and to the HIV/AIDS pandemic, specifically. In 1998 and revised in 2002, the HIV/AIDS and Human Rights International Guidelines were adopted by the UN Office of the High Commissioner of Human Rights and the Joint United Nations Programme on HIV/AIDS (UNAIDS).67 The revised Guideline 6 States should enact legislation to provide for the regulation of HIV-related goods, services and information, so as to ensure widespread availability of qualitative prevention measures and services, adequate HIV prevention and care information, and safe and effective medication at an affordable price. The UN Commission on Human Rights has now adopted, at successive sessions, two resolutions declaring that “access to medication in the context of pandemics such as HIV/AIDS is one fundamental element” for realizing the right to health.68 The resolutions 65 Ibid. at para. 25. 66 Ibid. at paras. 35, 38, 40. States must “eliminate de jure discrimination by abolishing without delay any discriminatory laws, regulations and practices (including acts of omission as well as commission) affecting the enjoyment of economic, social and cultural rights.” 67 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, HIV/AIDS and Human Rights International Guidelines, Third International Consultation on HIV/AIDS and Human Rights, HR/PUB/2002/1. 68 United Nations High Commissioner for Human Rights, Access to medication in the context of pandemics such as HIV/AIDS, Commission on Human Rights resolution E/CN.4/2001/33, online: United Nations High Commissioner for Human Rights <www.unhchr.ch> [hereinafter resolution further call upon States to pursue policies that would promote the availability and affordability of medicines and medical technologies, and “to ensure that …the application of international agreements is supportive of public health policies which promote broad access to safe, effective and affordable preventive, curative or palliative pharmaceuticals Although national and international patent laws are not the focus of this paper, it is important to note that in November 2001, the 4th Ministerial Conference of the World Trade Organization (WTO) adopted the “Doha Declaration.”70 That Declaration states that the WTOs agreement on patents, the Agreement on Trade-Related Aspects of Intellectual Property Rights71 (the TRIPS Agreement) does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all.72 Advancing the right to health as a notionally binding norm in international law has E/CN.4/2001/33]; United Nations High Commissioner for Human Rights, The Protection of human rights in the context of human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS), E/CN,4/RES/2001/51. 69 resolution E/CN.4/2001/33, ibid. 70 World Trade Organization, Declaration on the TRIPS agreement and public health, WT/MIN(01)/DEC/2, Adopted on 14 November 2001, online: World Trade Organization, <www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm> [hereinafter WT/MIN(01)/DEC/2]. 71 World Trade Organization, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) ZZ007EN, online: World Intellectual Property Organization < www.wipo.int/>. 72 WT/MIN(01)/DEC/2, supra note 70 at para. 4. can only go a limited distance in achieving the desired objectives of social justice…[I]t will only be through increasing the incorporation of international norms within national legal structures, coupled with the amplification of efforts towards expanding the justiciability and enforcement of socio-economic standards at the local level that violations of these rights can be effectively combated.73 The challenge in the face of the HIV/AIDS pandemic is to collectively identify opportunities and strategies for advancing the recognition and enforcement of the human right to health at a national and more local level. The highest purchase that the right to health can enjoy on a national level is to be incorporated into a national constitution. I next compare the extent to which the right to health has been recognized in the national constitutions of South Africa and Canada and the effect that this has had on the litigation experiences in these to countries that seek to enforce access to medicines as a human 73 Scott Leckie, “Violations of Economic, Social and Cultural Rights” in The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights- SIM Special No. 20 (Utrecht: SIM, 1998) at 83, online: Netherlands Institute of Human Rights (SIM) <http://www.law.uu.nl/english/sim/specials/simsp20.asp>. South Africa has a new Constitution that was drafted in 1996 to redress some of the negative impacts and inequities of the Apartheid era. In South Africa, the human right to health has been expressly recognized as a positive right in its Constitution.74 Section 27 of the South African Constitution ensures protection for a range of socio-economic rights (1) Everyone has the right to have access to health care services, including reproductive health care, sufficient food and water, and social security, including, if they are unable to support themselves and their dependents, appropriate social assistance. (2) The state must take reasonable legislative and other measure, within its available resources, to achieve the progressive realization of each of these rights. (3) No one may be refused emergency medical treatment. Developing jurisprudence in South Africa has begun to set the limits around the justiciability of the positive socio-economic rights contained in the Constitution.76 In certifying the Constitution, the South African Constitutional Court resolved the question, stating that the rights “are, at least to some extent, justiciable.”77 In a subsequent decision on the right to shelter under Sections 26 and 28 of the Consitution,78 the Constitutional Court has, in the view of one commentator, adopted “an administrative law model of 74 Kate Kempton & Malcolm McLaren, “The Protection of Human Rights in South Africa: A Conversation with Justice Arthur Chaskalson, President of the Constitutional Court of South Africa” (1998) 56 U.T. Fac. L. Rev. 161. 75 South African Constitution, supra note 4. 76 Cass R. Sunstien, “Social and Economic Rights? Lessons from South Africa” (2000/2001) 11 Const. Forum Const. 124; Joni, supra note 9. 77 Ex parte Chairperson of the Constitutional Assembly, Re Certification of the Constitution of the Republic of South Africa 1996 (10) BCLR 1253 (CC) at para. 78. 78 Government of the Republic of South Africa v. Grootbroom 2000 (11) BCLR 1169 (CC) [hereinafter socio-economic rights.”79 The Court has interpreted socio-economic rights contained in the Constitution to impose a judicially enforceable duty on government and that what is required is reasonableness. Individuals have a right, not to an absolute right regardless of financial constraints, but to legislative and other measures designed to achieve the “progressive realization” of that right. In other words, the Court has “called for some sort of reasonable plan, designed to ensure that relief will be forthcoming to a significant However, when socio-economic rights are violated, the problem is usually one of government inaction, a failure to implement a programme to ameliorate conditions that detrimentally affect a socio-economic right. In such cases, it is accepted that government agencies face resource constraints and that any reasonable priority-setting will be held to be valid and may even be free from judicial review. “At the same time, there should be a duty of reasonableness in priority-setting, and an agency decision that rejects a statutory judgment, of that does not take statutory goals sufficiently seriously, should be held to be invalid.”81 This is the method of analysis adopted by the Constitutional Court in relation 79 Sunstien, supra note 76 at 131. 80 Ibid. 81 Ibid. 82 Grootbroom, supra note 78. Canada is amoung the majority of common law countries that do not explicitly recognize the right to health in their constitutions.83 In fact, socio-economic rights that impose positive duties on Canadian governments are not recognized in any Canadian constitutional document. However, several sections of the Charter are relevant to health and have been used as the basis for claims in this context.84 The Charter applies only to the actions of government, including legislation and extending to other official government actions. Thus in the framework of the delivery of health care, it does not apply in all circumstances, but where a hospital or other actor in the health care system is implementing a specific government policy or programme, rather than merely providing services, the Charter will apply. For example in Eldridge v. British Columbia (Attorney General), it was held that hospitals carry out a specific government objective in providing medically necessary services under the Hospital Insurance Act and conduct related to this will therefore be subject to the Charter. Further, Canada as a party to the ICESCR and the other treaties referred to above must act in accordance with its obligations under these treaties. Treaty obligations are not directly enforceable in Canadian domestic law unless they are implemented in legislation.85 However, unimplemented provisions of international law may have a profound, although 83 Richard Elliott, “Access to Treatment and the Human Right to Health: Recent Developments and Future Strategies” (Paper presented to the XIV International AIDS Conference, Barcelona, Spain, July 2002), Putting Third First: Vaccines, Access to Treatment & the Law (Toronto: Canadian HIV/AIDS Legal Network, 2002) 19 at 29, online: Canadian HIV/AIDS Legal Network <www.aidslaw.ca/>. 84 Charter, supra note 5. 85 Baker v. Canada (Minister f Citizenship and Immigration), [1999] 2 S.C.R. 817; Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978 2 S.C.R. 141; Francis v. The Queen, [1956] S.C.R. 618. indirect, impact on Canadian law because they may be used by the courts in interpreting the Charter and other legislation.86 The relevant sections of the Charter for an analysis of the right to health, specifically the right to affordable and accessible treatment for HIV/AIDS, are sections 7 and 15. Section 15(1) requires that individuals be guaranteed equality before and under the law and the equal protection and benefit of the law. The enumerated grounds for discrimination include race, gender, and mental and physical disability, while sexual orientation is an Canadian jurisprudence has developed a sophisticated, purposive and effects based analysis of discrimination that began in Andrews87 and reached its current zenith in the expanded test in Law.88 In Law, Iacobucci J. delivered a succinct, unanimous judgment that stressed that section 15(1) analysis was to be purposive and contextual. In effect, the court restated the two-step approach of Andrews and incorporated a third step rooted in Does the impugned law impose differential treatment between the claimant and others by drawing a formal distinction or failing to take into account the claimant’s disadvantaged position in society? Is this treatment based on an enumerated or analogous ground? 86 Baker, ibid. at para. 70. The majority found that it was permissible to refer to unimplemented obligations in international law, specifically the Convention on the Rights of the Child, supra note 52, to interpret the Immigration Act. 87 Law Society British Columbia v. Andrews, [1989] 1 S.C.R. 143 (QL) [hereinafter Andrews]. 88 Law v. Canada, [1999] 1 S.C.R. 497(QL) [hereinafter Law]. Does the differential treatment disadvantage the claimant in a manner which reflects the stereotypical application of presumed group characteristics or promote the view that the claimant is less worthy of equal recognition or respect as a human being or member of society?89 Three key areas need to be considered in this third step: a. pre-existing disadvantage, stereotyping, or vulnerability to the claimant; b. correspondence between the claim and the actual need or circumstances of c. the ameliorative purpose or effect of the impugned law on other groups in d. the nature and scope of the interest of the law. Thus, the test outlined in Law is not a strict test or formula but summarizes the central issues to be addressed. The third component of the test requires that the differential treatment is discriminatory in a substantive sense, which means that it violates the fundamental purpose of section 15(1). This purpose is To prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.90 Even where a violation of a right protected by the Charter is established, it is open to the government to attempt to justify the violation under section 1, which 89 Ibid. at para. 88. 90 Ibid. at para. 51. provides that the rights and freedoms in the Charter are guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a In R. v. Oakes, Dickson C.J., for a Court that was unanimous on this issue, laid down the criteria that must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society.92 There are two central criteria. First, the objective of the impugned legislation must be of sufficient importance to justify limiting a Charter right. Second, the party invoking section 1 must show that the means chosen are reasonable and demonstrably justified. The latter criterion involves a form of proportionality test with three components: 1. The law must be rationally connected to the objective. 2. The means should impair the right no more than is necessary to accomplish the 3. There must be a proportionality not only between the deleterious effects of the measures which are responsible for limiting the rights of freedoms in question and the objective, but also between the deleterious and salutary effects of the Section 7 of the Charter guarantees to everyone “the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with fundamental justice.” The analysis of section 7 involves a two-step test. It must first be 91 Charter, supra note 5 92 [1986] 1 S.C.R. 103 (QL). determined whether there has been an infringement of life, liberty or security of the person and second, if there is an infringement, whether the infringement is contrary to the principles of fundamental justice.93 If there is an infringement, the analysis will move to a section1 test for justification. However, as the second part of the section 7 test already involves a consideration of the balance between state and individual interests,94 it is unlikely that a government action that is found to be contrary to the principles of fundamental justice will pass a section 1 analysis. Litigation
South Africa’s Treatment Action Campaign (TAC) was launched on 10 December 1998 with a mandate to campaign for the development, adoption, and implementation of a comprehensive national treatment plan for people with HIV/AIDS.95 TAC is best known for its involvement in the international campaign to assure a sustainable supply of affordable ARVs in South Africa, specifically, and the developing world, generally.96 This campaign has been moderately successful and culminated in the Doha Declaration and a cessation of legal action by multinational pharmaceutical companies against the South African government’s attempts to circumvent international patent law and reduce the price of ARVs. This campaign, however, is not the focus of this paper. 93 Cunningham v. Canada, [1993] 2 S.C.R.143. 94 Ibid. 95 “The Case of South Africa’s Treatment Action Campaign”, supra note 3. 96 Mr Justice Edwin Cameron & Alok Gupta, “Global Access to Treatment: Achievements and Challenges” (2002) 7 Can. HIV/AIDS Pol’y & L. Rev. (QL). More recently, TAC has been involved in a campaign to ensure that the public health sector lives up to its constitutional and international treaty obligations in providing a comprehensive treatment to the majority of the South African population who do not have or unable to afford private medical insurance and are therefore reliant on the state. TACs position is that “the public health care system can, should and is constitutionally obliged to develop and implement a comprehensive national treatment plan, which includes the use of ARVs where medically indicated.”97 Such a national treatment programme is dependant on government making resources available for the strengthening and development of health care infrastructure. Unfortunately, not only has there been a glaring lack of political will to implement a treatment plan, but until fairly recently national government has embarked on what seemed to be a deliberate strategy consciously designed to misrepresent the issues and thereby create confusion, what one political commentator characterized as a commitment ‘to a comprehensive rollout of obfuscation.’ In addition, the state had sought to vilify civil society and generally to present every challenge as an insurmountable obstacle.98 As part of its broader campaign for the development, adoption, and implementation of a public sector national HIV/AIDS treatment plan, TAC has focused on three areas of litigation that target the major obstacles to treatment, the brand-name pharmaceutical industry, health care insurance, and government. 99 The issues are the excessive pricing of ARVs discussed briefly above, a constitutional challenge to the limited coverage for people with HIV/AIDS by the country’s largest private health care insurer, and the prevention of mother-to-child transmission of HIV (PMTCT) case, respectively. The 97 “The Case of South Africa’s Treatment Action Campaign”, supra note 3 at 597. 98 Ibid. at 596. 99 Ibid. at 600. latter pertains directly to access and comprehensiveness of treatment for HIV/AIDS and In April 2001, the Medicines Control Council, the statutory body responsible for registering medicines in South Africa, registered nevirapine100 for reducing the risk of HIV transmission during labour and delivery.101 The Department of Health decided that it would not make nevirapine universally available in the public sector (where the majority of poor women receive treatment), but would confine its use to two pilot sites in each province in order to assess safety and efficacy.102 At the project hospitals and satellite clinics, a full package for the treatment of mother-to-child transmission was to be available. This included testing, counseling, nevirapine if medically indicated, the provision of formula feed as a substitute for breastfeeding, aftercare including the provision of vitamins and antibiotics, and monitoring of the progress of the children. At all other public hospitals and clinics, nevirapine would not be available, thereby depriving the vast majority of women and children of access to potentially life-saving medicines. At the same time, clinical trials had shown nevirapine to prevent mother-to- child transmission and to be safe so that it was being widely used for this purpose in the private sector. The government, however, continued to stress that it did not have sufficient information about the safety and efficacy of the drug and that it would not 100 Nevirapine is a fast-acting and potent antiretroviral drug long since used worldwide in the treatment of HIV/AIDS and registered in South Africa since 1998. In January 2001 it was approved by the World Health Organization for use against intrapartum mother-to-child transmission of HIV, i.e. transmission of the virus from mother to child at birth. It was also approved for such use in South Africa. 101 Liesl Gernholtz, “Preventing Mother-to-Child Transmission: Landmark Decision by South African Court” (2002) 6 Can. HIV/AIDS Pol’y & L. Rev. (QL). 102 Treatment Action Campaign v. South Africa (Minister of Health), [2002] S.A.J. No. 48 ((S. Afr. Const. extend the pilot projects in the immediate future, nor would it make nevirapine available Faced with government intransigence, TAC elected to take the issue to court arguing, amoung other things, that the failure of the government to provide nevirapine to pregnant women with HIV or to set out reasonable implementation plan for a PMTCT programme constituted a violation of the constitution right to health care.104 The government argued that it had taken all reasonable steps, within its available resources, to achieve the progressive realization of health care.105 It further argued, relying on the decision of the Constitutional Court in Soobramoney v. Minister of Health, KwaZulu-Natal that the courts should be “slow to interfere with rational decisions taken in good faith by political organs and medical authorities whose responsibility it is to deal with such matters” because it is “undesirable for a court to make an order as to how scarce medical resources However, the High Court of South Africa in its decision, relied on the analysis laid out in Grootbroom.107 It ruled that by prohibiting the use of nevirapine for PMTCT outside designated pilot sites, and the absence of a comprehensive and coordinated plan for rolling out a PMTCT programme, the government was in breach of its constitutional duty to progressively realize the right to health care as an ongoing obligation.108 The court 103 Gernholtz, supra note 101. 104 South African Constitution, supra note 4, s. 27. 105 Gernholtz, supra note 101. 106 [1998] 1 S.A. 765 (S. Afr. Const. Ct.) at paras 29-30. 107 Grootbroom, supra note 78. 108 Treatment Action Campaign et al. v. Minister of Health et al., Case no. 21182.2001, 14 December 2001, High Ct S. Afr. (Trans. Prov. Div.), Botha J., online: Treatment Action Campaign <www.tac.org.za>. ordered the government to make nevirapine available to pregnant women with HIV who give birth using public health sector services and to their babies, where clinically indicated and appropriate testing and counseling is available. In addition, the court ordered the national and provincial governments to plan an effective comprehensive national programme to prevent or reduce the mother-to-child transmission of HIV, including the provision of voluntary counseling and testing, and where appropriate, Nevirapine or other appropriate medicine, and formula milk for feeding, which programme must provide for its progressive implementation to the whole of the Republic, and to implement it in a reasonable manner.109 Finally, the court ordered the governments to deliver a report by the end of March 2002 setting out, under oath, what steps had been and will be taken regarding a national The government appealed the case to the Constitutional Court arguing that the courts had impermissibly entered the jurisdiction of the executive in determining national policy. At the end of January 2002, the TAC applied for an interim order that the government be compelled to comply with the ruling to make nevirapine available to pregnant women in the public sector, pending the outcome of the appeal. On 11 March 2002, the High Court By the time the appeal was heard in the Constitutional Court, the situation had changed in some influential provinces. Three provinces, including KwaZulu-Natal, had decided to supply ARVs to pregnant mothers who were HIV-positive and had decided to implement 109 Ibid. at Order 3. 110 Treatment Action Campaign et al. v. Minister of Health et al., MECS - 11 March 2002, High Ct S. Afr. (Trans. Prov. Div.), Botha J., online: Treatment Action Campaign <www.tac.org.za>. a province-wide PMTCT programme with a concomitant increase in resource allocation.111 But more importantly, the national government had made substantial additional funds available for the treatment of HIV, including the reduction of mother-to- child transmission.112 The total budget to be spent mainly through the departments of Health, Social Development and Education was R350 million in 2001/2. It has been increased to R1 billion in 2002/3 and will go up to R1.8 billion in 2004/5. This meant that the budgetary constraints referred to in the affidavits were no longer an impediment. With the additional funds that are now to be available, it should be possible to address any problems of financial incapacity that might previously have existed. However, the Constitutional Court still identified aspects of government policy that were The decision not to make nevirapine available at hospitals and clinics other than the research and training sites is central to the entire policy. Once that restriction is removed, government will be able to devise and implement a more comprehensive policy that will give access to health care services to HIV-positive mothers and their newborn children, and will include the administration of nevirapine where that is appropriate. The policy as reformulated must meet the constitutional requirement of providing reasonable measures within available resources for the progressive realisation of the rights of such women and newborn children. This may also require, where that is necessary, that counsellors at places other than at the research and training sites be trained in counselling for the use of nevirapine. We will formulate a declaration to address these issues.113 Thus, in effect, to the extent that was still considered necessary, the South African Constitutional Court upheld the High Court decision and recognized a positive right to 111 “The Case of South Africa’s Treatment Action Campaign”, supra note 3; “Litigation Strategies”, supra 112 Treatment Action Campaign v. South Africa (Minister of Health), [2002] S.A.J. No. 48 ((S. Afr. Const. health in the Constitution and the duty of the government to act reasonably in assuring access to ARVs for poor pregnant women infected with HIV and in providing a publicly funded and comprehensive PMTCT programme. In Canada, there has been an increasing number of Charter and administrative law challenges of government decision-making on the delivery of health care. 114 The focus in this paper, however, is on challenges by patients who want government to pay for more services than those currently covered by the medical insurance plan. Such cases may have serious budgetary implications for Canada’s Medicare system because they seek the expansion of the principles of universality and accessibility.115 Overall, these cases have been few in number (33) and the success rate has been about 33% percent.116 Moreover, in the few cases in which the plaintiffs have shown that their Charter rights have been violated, the government has demonstrated that the violation is a reasonable limit under section 1. Thus courts have been cautious about finding that the actions of government in setting health care priorities and limits have been unreasonable. Challenges under section 15 have been the more successful at expanding the scope of insured services than challenges under section7. Even so, successful cases number only two, Eldridge117 and Auton118. The leading case is Eldridge. A group of deaf patients 114 Flood, supra note 20. 115 Donna Greschner, Discussion Paper No. 20: How Will the Charter of Rights and Freedoms and Evolving Jurisprudence Affect Health Care Costs? (Ottawa: Commission on the Future of Health Care in Canada, 2002) at 4, online: Commission on the Future of Health Care in Canada <www.healthcarecommission.ca/>. 116 Ibid. 117 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 [hereinafter Eldridge]. argued that the British Columbia government’s decision not to fund sign language interpreters for them when they received medical treatment violated their right to equality The court applied the test expounded in Law. The plaintiffs easily satisfied the first two parts of the test because they suffered from a physical disability. This part of the test is not difficult to satisfy because most plaintiffs challenging the health care system will suffer from some form of mental or physical disability. The third criterion presents more problems because not every distinction in health treatment between groups of patients is discriminatory; plaintiffs must also convince a court that the distinction offends their The Court found that the failure to provide sign language interpreters constituted adverse effects discrimination on the basis of physical disability because the inability to communicate effectively with medical personnel denied deaf patients the equal benefit of the provincial Medicare programme and could not be justified under section 1. The Court directed the government to provide sign language interpreters where necessary for Even thought the ruling imposes a positive obligation on government to provide a service, the Supreme Court stressed that the case was about access to already insured 118 Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2002] B.C.J. 2258 (C.A.) (QL) 119 Law, supra note 88 at para. 88. health care services and not the expansion of services into areas that the government had In Auton, however, the Court of Appeal upheld a lower court decision ordering the Government of British Columbia to provide a treatment for autism that was not funded for anyone.120 The province funded some treatment for autistic children, but not the Lovaas treatment preferred by the plaintiffs, who were parents of autistic children. The issue was not that the medicare legislation was discriminatory or defective but that the Crown had interpreted it in an overly narrow fashion.121 In concluding that the equality rights of children with autism had been violated, the Court of Appeal stated: The failure of the health care administrators of the Province to consider the individual needs of the infant complainants by funding treatment is a statement that their mental disability is less worthy of assistance than the transitory medical problems of others. It is to say that the community was less interested in their plight than the plight of other children needing medical care and adults needing mental health therapy. This is a socially constructed handicap within the oversight, in my view, of s. 15 of the Charter.122 The Court then turned to the question of whether the government’s decision not to fund the treatment programme was saved by section 1. It concluded that there was enough evidence that early and intensive interventionist treatment for autistic children saved them from a lifetime of isolation and disability and, by improving their outcomes to participate more fully in society, on balance, had the potential to result in lower treatment costs over the life of the individual. The lack of treatment would result in higher costs to government for institutionalization and or home care. This cost-benefit analysis carried 120 Auton, supra note 118. 121 Ibid. at para 28. 122 Ibid. at para 51. out by the court tipped the balance in favour of the plaintiffs and resulted in the Court imposing what appears to be a positive duty on a provincial government to provide a The one case on access to treatment for people living with HIV/Aids is Brown. The plaintiff challenged the British Columbia government’s decision to place AZT under the provincial Pharmacare Plan, so that all persons living with HIV/AIDS, except those on social assistance or in long-term care facilities, would have to pay part of the cost of the very expensive drug. The first two parts of the test under section 15 was easily met because the plaintiffs were HIV positive. In addition, the disease disproportionately affected an identifiable group, homosexual men. Thus the section 15 claim was based on both disability (an enumerated ground) and sexual orientation (an analogous ground).123 The most difficult part of the test in Brown was the third part that required the plaintiffs to establish that the differential treatment on the basis of disability and sexual orientation constituted discrimination. The Court states [I]t is true that the funding policy affects an identifiable group. That can be said, for example, of those taking insulin, drugs for tuberculosis, or cystic fibrosis. But can it be said that the specific funding programs for cancer and transplant patients (and not those drugs or AZT) constitutes an inequality which is discriminatory, for that is what s. 15 of the Charter prevents.124 The court found that there was no discrimination because, on an objective assessment, the differential treatment imposed by the legislation did not demean the plaintiff’s dignity. 123 Brown v. British Columbia (Minister of Health) (1990), 66 D.L.R. (4th) 444 (B.C.S.C.) [hereinafter The trial judge dismissed the claim by stating somewhat harshly that “if plaintiffs have suffered stigma, loss of esteem and perception of discrimination” because of the decision to fund cancer and transplant drugs and not AZT, “they have suffered unreasonably.”125 An example where a section 15 challenge has failed to provide plaintiffs with a treatment programme is Cameron.126 In this case the province of Nova Scotia funded some hospital services for infertility, but not in vitro fertilization (IVF) or intra-cytomplasmic sperm injection (ICSI). The Nova Scotia Court of Appeal was divided on whether the non- insurability of IVF and ICSI impinged upon the plaintiff’s essential human dignity. A majority of the Court concluded that the exclusion did violate dignity because of historical stereotyping of infertile persons, especially women, and the stigma associated with infertility. By contrast, a minority opinion ruled that the exclusion of some infertility services did not offend dignity, stating that it was “an inevitable consequence of the administration of health care.”127 However, the dissenting judge commented that if the government refused to fund any medical treatments for infertility, such a policy would likely offend essential human dignity.128 The justices that found a section 15 violation, however, found that the government was justified in denying the infertility treatment because it was expensive and had a low success rate. Thus it seems that exclusions justified by cost, risk, safety, and low effectiveness will not violate human dignity.129 125 Ibid. at 463-464. 126 Cameron v. Nova Scotia (Attorney General) (1999), 177 D.L.R. (4th) 611 (N.S.C.A.) (QL), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 531 [hereinafter Cameron]. 127 Ibid. at 682 128 Ibid. at 683-684. 129 Barbara von Tigerstrom, “Equality Rights and the Allocation of Scare Resources in Health Care: A Comment on Cameron v. Nova Scotia”, Case Comment (1999) 11 Const. Forum Const. 30 [hereinafter “Comment on Cameron v. Nova Scotia”]. Many commentators have discussed the utility of section 7 in recognizing socio- economic rights, including the right to health, under the Charter.130 The courts, however, have not cooperated in interpreting section 7 in a manner broad enough to encompass a general right to health. The right to liberty encompasses only freedom from physical restraint, and not economic liberty.131 The right to security, on the other hand, includes the right of access to health care in very narrow circumstances,132 and the individual right to refuse medical treatment.133 In one case that relates directly to accessibility of treatment for HIV/AIDS, the British Columbia Supreme Court ruled that security does not include the right to have health care of one’s choice provided at public expense, such as public funding of prescriptions for ARVs.134 In Cameron, the section 7 claim for public funding of fertility treatments and treatment for autistic children was not pursued on appeal;135 and in Auton the Court of Appeal, having upheld the violation of section 15, did not consider it necessary to consider the further application under section 7.136 Even if plaintiffs could prove a deprivation of liberty or security, they would have to show that the deprivation contravened the principles of fundamental justice. The Supreme 130 Tamara Friesen, “The Right to Health Care” (2001) 9 Health L.J. 205 (Lexis); Greschner, supra note 115; Stanley H. Hartt & Patrick J. Monahan, “The Charter and Health Care: Guaranteeing Timely Access to Health Care for Canadians” (Toronto: C.D. Howe Institute, 2002), online: C.D. Howe Institute <www.cdhowe.org>; Martha Jackman, “Discussion Paper No. 31: The Implications of Section 7 of the Charter for Health Care Spending in Canada” (Ottawa: Commission on the Future of Health Care in Canada, 2002), online: Commission on the Future of Health Care in Canada <www.healthcarecommission.ca/>; Christopher P. Manfredi & Antonia Maioni, “Courts and Health policy: Judicial Policy Making and Publicly Funded Health Care in Canada” (2002) 27 J. Health Pol. 213; von Tigerstrom, supra note 62. 131 Greschner, Ibid. at 9. 132 R. v. Morgentaler, [1988] 1 S.C.R. 30 133 Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. 134 Brown, supra note 123. 135 “Comment on Cameron v. Nova Scotia”, supra note 129. 136 Auton, supra note 118 at para. 110. Court has interpreted the phrase “principles of fundamental justice” to mean basic tenets of the legal system, such as the presumption of innocence.137 In addition, the Court has suggested that section 7 is restricted to situations where the infringements to liberty or security are “a result of an individual’s interaction with the justice system and its In general, the health care system is administrative and not criminal and so it is unlikely that section 7 could be found to apply to challenges over governmental decisions about “medically necessary services” or other funding provisions. The only cases that have been successful in the health care context are unusual in that there was an overlap between the criminal law process and the health care system. In Morgentaler, at issue were provisions that made abortion a criminal offence, punishable by criminal sanction, unless the abortion was approved by a cumbersome hospital committee structure. In this context, the Supreme Court held that a woman’s right to security of the person included the right to access health care services without threat of criminal sanction, and that the convoluted and often elusive committee structure violated the principles of fundamental justice. Similarly, in Parker, the Ontario Court of Appeal struck down the criminal prohibition against possession of marijuana for people who use the drug for medicinal An example of the difficulty faced by plaintiffs in a section 7 application on the violation of the right to treatment is Brown. The section 7 argument was rejected, in part, because 137 Reference Re Motor Vehicle Act of British Columbia, [1988] 2 S.C.R. 486. 138 New Brunswick (Minister of Health and Social Services) v. G.(J), [1999] 3 S.C.R. 46 at para. 65 (QL). 139 R. v. Parker, [2000] O.J. 2787 (Ont. C.A.) (QL). the impact of the law itself was merely the economic hardship and reduction in the standard of living that would be suffered by those who had to pay for AZT, which was not within the purview of section 7. Thus any deprivation of life, liberty or security of the person was caused by the disease itself and not the law. In conclusion, it appears that the courts are reluctant to open section 7 to a host of economic claims, including the provision of health services. One caveat is that the Supreme Court has left open the question of whether section 7 could protect economic interests that are integrally connected to material well-being.140 For example, if people living with HIV/AIDS were denied access to life-saving treatments or high-risk groups were denied access to effective prevention such as vaccines because they could not pay for them, their claim of a section 7 violation could receive a sympathetic judicial hearing. The Supreme Court recently heard an appeal from a Quebec case that raised the issue of whether inadequate social assistance payments violate security of the person.141 Its decision may foreshadow the Court’s direction on analogous cases in health care. Given that Medicare is viewed as a fundamental plank of Canadian society and it is facing extreme pressure that may affect the accessibility and universality of treatment programs, judges may, in the future, be more willing to overcome their usual reluctance to evaluate 140 Irwin Toy v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 1003-1004. 141 Gosselin c. Québec (Procureur general), [1999] J.Q. 1365 (Cour d’appel du Québec) (QL). Conclusion
The human right to health, enshrined in international law, has found its way directly and indirectly into national constitutions. In South Africa, the right has been explicitly recognized in its Constitution; in Canada, it has not but may serve as a guide to interpreting rights under the Charter. In the face of the global HIV/AIDS pandemic, the right to health has become of paramount importance. It serves as a tool to force the hand of politically intransigent governments in dealing with the crisis. Its rhetorical force has been translated into a justiciable right in South Africa where TAC has been highly successful in litigating the constitutional right to health in the context of access to treatment to prevent mother-to- child transmission of HIV/AIDS. However, litigation may also be used to place issues on the agenda, not only before a judge, but also in the court of public opinion, thereby forcing political action by a democratically elected government. Given the right configuration of political will, public opinion and judicial resolve, the right to health can be legally enforced and thus generate real benefits for people. The strategy rests on the assumption that any decision maker who is aware in advance of the risk of being required to justify a decision will always consider it more closely than if there were no risk. The knowledge that any government programme could be summoned into court for searching scrutiny will force its authors to articulate their reasons for dismissing the objections and the alternatives to the programme, and to present evidence linking their premises and decision making to implementation or lack thereof. With the genesis of precedents in the context of the extent of the right and the mode of analysis, in future, it may not be necessary to litigate and the government will engage in a constructive dialogue with all stakeholders from those living with HIV/AIDS to health In contrast, Canada has seen a small number of successful cases on the constitutional right to access and universality of health care services given that Charter rights have been recognized for more than ten years longer than socio-economic rights in South Africa. One reason may be the relative universality, accessibility and comprehensiveness of Canada’s existing Medicare system. Anyone in need of medical treatment to preserve life or health is usually entitled to receive it.142 Thus it is not surprising that Charter cases to date have involved expensive uninsured services, such as drug prescriptions in Brown and fertility treatments in Cameron. As further government cutbacks strike the health care sector resulting in de-listing of services, courts may face an increase in Charter claims from individuals using the Charter as a shield to preserve the current system. However, there is some indication that the courts are willing to entertain challenges, at least in the context of the equality provisions in the Charter, that result in the imposition on government of a duty to provide 142 Jackman, supra note 130; von Tigerstrom, supra note 62. 143 Auton, supra note 118. In the context of the HIV/AIDS epidemic, the Charter may be used as a sword to obtain more insured services, such as pharmaceutical products. With escalating drug costs and increasing reliance on life-saving drugs, it is surprising that major exclusions from Medicare, such as most prescription drugs and home care, have not been subject to more Charter challenges. Further, the new Canadian HIV vaccine plan will need to be implemented in a manner that is consistent with non-discriminatory Charter principles that also consider liberty and security interests if it is not to face serious challenges upon In the end, litigation can only go so far in ensuring the right to affordable, accessible and universal treatment for HIV/AIDS, whether such a right is constitutionally recognized or not. Most important is community activism and political pressure to ensure government accountability in the provision of equitable access to treatment and prevention BIBLIOGRAPHY
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