In their introduction to Realizing the Right to Health, Andrew Clapham and Mary Robinson provide the following anecdote.
The run up to the 2008 election in the United States focused at one point on the nature of health care in America. During the second presidential debate, the candidates were asked the following question: “Is health care in America a privilege, a right, or a responsibility?” Senator Obama (as he then was) replied as follows:“Well, I think it should be a right for every American. In a country as wealthy as ours, for us to have people who are going bankrupt because they can’t pay their medical bills – for my mother to die of cancer at the age of 53 and have to spend the last months of her life in the hospital room arguing with insurance companies because they’re saying that this may be a pre-existing condition and they don’t have to pay her treatment, there’s something fundamentally wrong about that.”
Five years after Obama passionately talked about health as a “right for every American”, KEI has been informed that the United States is seeking to call for a vote on resolution tabled by Brazil and co-sponsored by the African Group, India, Indonesia and Thailand on “Access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. The resolution is expected to be adopted by the Human Rights Council on Thursday, 13 June 2013. The US’s decision to put the resolution to a vote, thus guaranteeing it will not receive consensus support, has been perceived in the Human Rights Committee as a slap in the face of the countries backing the proposal.
According to informed sources, “the draft resolution on access to medicines will be adopted tomorrow morning at the current session of the Human Rights Council… The EU is willing to join consensus over the text. But the US has indicated that it will call for a vote…The US joined consensus on the same topic in 2011 and 2009 at the Human Rights Council. The language is basically the same. It is difficult to understand their position”.
This draft resolution comes on the heels of the publication of the report (A/HRC/23/42) by the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Anand Grover) on access to medicines (1 May 2013).
Five years after Obama spoke movingly about the right to health in the context of “people who are going bankrupt because they can’t pay their medical bills” and providing the poignant example of his mother arguing with insurance companies at the end of her life, it is puzzling that his administration would seek to block the consensus passage of this resolution when they supported this in 2009 and 2011.
Here is the operative section of the resolution which is directed at governments. This section contains language on de-linkage (5n), local production (5b), the full use of public health safeguards contained in the TRIPS Agreement (5h), technology transfer (5l) and the promotion of universal health coverage (5p).
5. Urges States, as appropriate:
(a) To implement or, where they do not exist, to establish national health frameworks that ensure access for all, without discrimination, to medicines that are affordable, safe, efficacious and of quality;
(b) To develop a policy framework on medicines, including where appropriate local production of medicines with the aim of ensuring long-term accessibility and affordability of medicines;
(c) To adopt regulation measures with a view to providing access of the population, and particularly individuals in vulnerable situations, to affordable medicines;
(d) To raise awareness about the responsible use of medicines, including through the wide dissemination of information in that regard, taking into account the potential risks to health;
(e) To promote the informed participation of relevant stakeholders, as appropriate, in formulating national medicines policies and programmes, while safeguarding public health from undue influence by any form of real, perceived or potential conflict of interest;
(f) To strengthen or, where they do not exist, to establish national monitoring and accountability mechanisms for policies relating to access to medicines;
(g) To ensure that procurement practices and procedures for medicines are transparent, fair, competitive and non-discriminatory;
(h) To promote access to medicines for all, including through the use, to the full, of the provisions of the TRIPS Agreement which provide flexibility for that purpose, recognizing that the protection of intellectual property is important for the development of new medicines as well as the concerns about its effects on prices;
(i) To foster the development of technology and the voluntary transfer of technology to developing countries, on mutually agreed terms aligned with national priorities, bearing in mind the specific needs of least-developed countries in this regard;
(j) To apply measures and procedures for enforcing intellectual property rights in such a manner as to avoid creating barriers to the legitimate trade of affordable, safe, efficacious and quality medicines, and to provide for safeguards against the abuse of such measures and procedures;
(k) To strengthen or, where they do not exist, to establish national health regulatory systems that ensure the quality, safety and efficacy of medicines;
(l) To promote the improvement of health infrastructures necessary for access to affordable, safe, efficacious and quality medicines, such as storage and distribution systems;
(m) To ensure that investment, industrial or other policies promote development and access to medicines, in particular their affordability;
(n) To explore and promote a range of incentive schemes for research and development including addressing where appropriate the de-linkage of the costs of research and development and the price of health products, in accordance with the Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property;
(o) To improve domestic management capacities in order to improve delivery and access to quality, safe, efficacious and affordable medicines;
(p) To promote universal health coverage in national systems as one of the efficacious means to promote access to medicines for all;
The text of the entire draft resolution is reproduced below.
draft 13, 11.6.13HUMAN RIGHTS COUNCIL
Twenty third session
Agenda item 3Draft Resolution
Access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
The Human Rights Council,
PP1 Reaffirming the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights,
PP2 Reaffirming that the right of everyone to the enjoyment of the highest attainable standard of physical and mental health is a human right that derives from the inherent dignity of the human person,
PP3 Recalling Human Rights Council resolution 17/14 of 17 June 2011 and all previous resolutions and decisions on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health adopted by the Council, the General Assembly and the Commission on Human Rights, as well as General Assembly resolution 67/81 on global health and foreign policy,
PP4 Recalling also the Declaration on the Right to Development, which, inter alia, establishes that States should take, at the national level, all measures necessary for the realization of the right to development and should ensure, inter alia, equality of opportunity for all in their access to basic resources, such as health services,
PP5 Noting with concern that, for millions of people throughout the world, the full enjoyment of the right to the highest attainable standard of physical and mental health remains a distant goal and that, in many cases, especially for those living in poverty, this goal is becoming increasingly remote,
PP6 Recognizing the need for States, in cooperation with international organizations and civil society, including non-governmental organizations and the private sector to create favorable conditions at the national, regional and international levels to ensure the full and effective enjoyment of the right of everyone to the highest attainable standard of physical and mental health,
PP7 Recalling that the Doha Ministerial Declaration on the Agreement on Trade-Related Aspects of Intellectual Property Rights and Public Health confirms that the Agreement does not and should not prevent members of the World Trade Organization from taking measures to protect public health and that the Declaration, accordingly, while reiterating the commitment to the Agreement, affirms that it can and should be interpreted and implemented in a manner supportive of the rights of members of the World Trade Organization to protect public health and, in particular, to promote access to medicines for all; and further recognizes, in this connection, the right of members of the World Trade Organization to use, to the full, the provisions of the above-mentioned Agreement, which provide flexibility for this purpose,
PP8 Regretting the high number of people still without access to affordable, safe, efficacious and quality medicines, and underscoring that improving such access could save millions of lives every year, and noting with deep concern that more than 1 billion people still do not have access to essential medicines,
PP9 Concerned about the interrelatedness between poverty and the realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, in particular the fact that ill health can be both a cause and a consequence of poverty,
PP10 Concerned also that the increasing incidence of non-communicable diseases constitutes a heavy burden on society, with serious social and economic consequences, which represent a leading threat to human health and development, and recognizing the urgent need for greater measures at global, regional and national levels to prevent and control non-communicable diseases in order to contribute to the full realization of the right of everyone to the highest attainable standard of physical and mental health,
PP11 Recalling General Assembly resolution 60/251 of 15 March 2006 and Human Rights Council resolutions 5/1 and 5/2 of 18 June 2007,
1. Takes note with appreciation of the study of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on existing challenges with regard to access to medicines in the context of such right, ways to overcome them and good practices;
2. Recognizes that access to medicines is one of the fundamental elements in achieving progressively the full realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health;
3. Stresses the responsibility of States to ensure the highest attainable level of health for all including through access, without discrimination, to medicines, in particular essential medicines, that are affordable, safe, efficacious and of quality,
4. Emphasizes the central roles of prevention, promotion of healthy lifestyles and strengthening of health systems,
5. Urges States, as appropriate:
(a) To implement or, where they do not exist, to establish national health frameworks that ensure access for all, without discrimination, to medicines that are affordable, safe, efficacious and of quality;
(b) To develop a policy framework on medicines, including where appropriate local production of medicines with the aim of ensuring long-term accessibility and affordability of medicines;
(c) To adopt regulation measures with a view to providing access of the population, and particularly individuals in vulnerable situations, to affordable medicines;
(d) To raise awareness about the responsible use of medicines, including through the wide dissemination of information in that regard, taking into account the potential risks to health;
(e) To promote the informed participation of relevant stakeholders, as appropriate, in formulating national medicines policies and programmes, while safeguarding public health from undue influence by any form of real, perceived or potential conflict of interest;
(f) To strengthen or, where they do not exist, to establish national monitoring and accountability mechanisms for policies relating to access to medicines;
(g) To ensure that procurement practices and procedures for medicines are transparent, fair, competitive and non-discriminatory;
(h) To promote access to medicines for all, including through the use, to the full, of the provisions of the TRIPS Agreement which provide flexibility for that purpose, recognizing that the protection of intellectual property is important for the development of new medicines as well as the concerns about its effects on prices;
(i) To foster the development of technology and the voluntary transfer of technology to developing countries, on mutually agreed terms aligned with national priorities, bearing in mind the specific needs of least-developed countries in this regard;
(j) To apply measures and procedures for enforcing intellectual property rights in such a manner as to avoid creating barriers to the legitimate trade of affordable, safe, efficacious and quality medicines, and to provide for safeguards against the abuse of such measures and procedures;
(k) To strengthen or, where they do not exist, to establish national health regulatory systems that ensure the quality, safety and efficacy of medicines;
(l) To promote the improvement of health infrastructures necessary for access to affordable, safe, efficacious and quality medicines, such as storage and distribution systems;
(m) To ensure that investment, industrial or other policies promote development and access to medicines, in particular their affordability;
(n) To explore and promote a range of incentive schemes for research and development including addressing where appropriate the de-linkage of the costs of research and development and the price of health products, in accordance with the Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property;
(o) To improve domestic management capacities in order to improve delivery and access to quality, safe, efficacious and affordable medicines;
(p) To promote universal health coverage in national systems as one of the efficacious means to promote access to medicines for all;6. Calls upon the international community to continue to assist developing countries in promoting the full realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, including through access to medicines that are affordable, safe, efficacious and of quality, and through financial and technical support and training of personnel, while recognizing that the primary responsibility for promoting and protecting all human rights rests with States;
7. Invites relevant United Nations programmes and agencies, in particular the World Health Organization, as well as other relevant international organizations, within their mandates, to consider the findings of the study of the Special Rapporteur;
8. Recognizes the innovative funding mechanisms that contribute to the availability of vaccines and medicines in developing countries, such as the Global Fund to Fight AIDS, Tuberculosis and Malaria, the GAVI Alliance and the International Drug Purchase Facility, UNITAID, and calls upon all States, United Nations programmes and agencies, in particular the World Health Organization, and relevant intergovernmental organizations, within their respective mandates, and encourages relevant stakeholders, including pharmaceutical companies, while safeguarding public health from undue influence by any form of real, perceived or potential conflict of interest, to further collaborate to enable equitable access to quality, safe and efficacious medicines that are affordable to all, including those living in poverty, children and other persons in vulnerable situations;
9. Urges all States, United Nations agencies and programmes and relevant intergovernmental organizations, within their respective mandates, and encourages non-governmental organizations and relevant stakeholders, to promote the innovative research and development to address the health needs in developing countries, including the access to quality, safe, efficacious and affordable medicines, and in particular with regard to diseases disproportionately affecting developing countries, as well as challenges arising from the growing burden of non-communicable diseases;
10. Invites the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, within his existing mandate, while considering the many ways towards the full realization of the right to health, including universal health coverage, to continue to focus on the issue of access to medicines including in his regular country missions.