1 Private for Profit Actors Working for the right to health? The logic of regulation under the right to health Rachel Hammonds WHO, 21 May 2015

2 Proposition Private provision of health services does not change the role of the state as the ultimate guarantor of the realization of the right to health but makes it more difficult for a state to fulfill its obligations to realize the right to health.

3 Increasing private provision of health care “Private provision is a substantial and growing sector that is capturing an increasing share of the health market across the world.” WHO, World Health Report, 2010

4 Increasing private provision of health care Progress towards universal health coverage in BRICS: translating economic growth into better health Krishna D Rao, Varduhi Petrosyan, Edson Correia Araujo & Diane McIntyre Bulletin of the World Health Organization, 2014;92: “The health sector of many low- and middle-income countries is characterized by mixed health systems in which both the public and private sectors provide health services.”

5 Increasing private provision of health care Neoliberal arguments -reduce role of the state -reduce taxation to increase investment -greater efficiency of private sector = lower prices -choice for consumers -improve quality -expand coverage

Strength of government commitment to protecting access to health services (Canada) Type of health system (see Jean Drèze and Amartya Sen – Kerala vs N India) Degree of privatization (US vs UK) Capacity and willingness of State to regulate (accountability) to ensure equitable access (cost as a barrier) Impact of private sector provision - Context 6

7 1948: UN General Assembly adopted the Universal Declaration of Human Rights By with 8 abstentions (Eastern bloc, Saudi Arabia and S Africa) Legal Protection of International Human Rights

8 Article 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

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The right to health – human rights principles 10

11 What does the human rights framework do? Provides a legal framework with standards telling us about the obligations of States Parties: What Governments can not do to us (respect) What Governments must stop others from doing to us (protect) What Governments must do for us over time – ESC progressive realization and core obligations (fulfill)

12 How should health care services be delivered? 8.The Committee notes that the undertaking “to take steps... by all appropriate means including particularly the adoption of legislative measures” neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected…. Committee on ESC Rights, General Comment No. 3 (1991)

13 How should health care services be delivered? “Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laissez ‑ faire economy, or upon any other particular approach.” Committee on ESC Rights, General Comment No. 3 (1991)

14 What is the impact of privatization? It expands the human rights obligations of the state to protect its inhabitants from infringements of human rights by private health providers. This requires that states assume a more complex regulatory role. Change in power dynamics requires vigilance across all policy areas including taxation, intellectual property. Lancet-Oslo Commission on Global Governance for Health (2014)

15 What does privatization require of governments? “Governments need to be able to analyze market conditions, set policy frameworks, draw up, negotiate and enforce contracts, regulate monopolies, coordinate finance and support producers, enable community provision and provide consumers with information on their options and remedies.” Privatization of Public Sector Activities, 1999, UN Department of Economic and Social Affairs

16 What does the human rights framework require? “Whether publicly or privately provided, health care services must be affordable to all.” (para 12b.iii) “States Parties have the obligation to protect the right to health by ensuring that privatization of the health sector does not impact on the availability, accessibility, acceptability and quality of health facilities.” ( para 35) General Comment 14

17 What does the human rights framework require? De Jure role of the State includes the obligation to respect the right to health by: Effective regulation - of public and private providers Effective monitoring which requires functioning health information systems, civil registration systems and disaggregated data. Effective accountability of health professionals, institutions, the health system, private sector actors (respect the right to health), IFIs (World Bank, IMF) and donors.

18 Case law - Preventable Maternal Mortality Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, 2011 The Committee found that Brazil directly responsible for the failure to monitor private institutions when medical services were outsourced to such institutions.” (failure to protect) The Committee condemned the government for denying not just Alyne’s rights, but also those of all Brazilian women by its failure to address the systemic health care factors that lead to maternal death. (failure to respect, fulfill)

19 Technical guidance on preventable maternal morbidity and mortality 22… States are responsible for exercising due diligence, or acting with a certain standard of care, to ensure that non-governmental actors, including private service providers, insurance and pharmaceutical companies, and manufacturers of health-related goods and equipment, as well as community and family members, comply with certain standards. States may be held responsible for private acts if they fail to act with due diligence to prevent, investigate and punish violations of rights. United Nations Human Rights Council 2012 A/HRC/21/22

OPERA Framework – Center for Economic, Social and Cultural Rights 20

Neoliberal policies that encourage privatization and the resulting down-sized state are in conflict with the increased role of the state in regulation. “The smaller, weaker and less resourced governments fashioned by neoliberal policies are less able to implement their human rights obligations to protect their members from abuses by third party institutions and actors or to effectively regulate private sector health institutions.” Audrey Chapman, The Impact of Reliance on Private Sector Health Services on the Right to Health: Health and Human Rights Journal, 2014, 16/1. Tension 21

Accountability human rights obligations apply to governments not private actors Guiding Principles on Business and Human Rights- “Ruggie Framework” (respect, protect and remedy) Extra challenges in a mixed system 22

Access and equity versus profit - TRIPS “The experiences of South Africa, Thailand, and India provide examples of difficulties countries have had to overcome to implement TRIPS flexibilities. Although they were successful in their attempts, there is fear that pressure from developed countries and pharmaceutical companies will thwart future actions.” UN Human Rights Council, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, 31 March 2009, A/HRC/11/12, Extra challenges in a mixed system 23

24 Additional challenges of private provision for advancing the right to health How to divide responsibility for respecting, protecting and fulfilling the right to health between multiple duty bearers? national government (primary) countries in a position to assist domestic and multinational corporations (Guiding Principles on Business and Human Rights- Ruggie Framework) international actors (e.g. World Bank, Global Fund, GAVI Alliance)

25 Conclusions 1. Robust regulation of public and private providers 2. Disaggregated data for ensuring accountability Human rights impact assessment of privatization initiatives to assess compliance with AAAQ (Brigit Toebes) or OPERA A strong state committed to realizing rights Advancing the right to health requires: