Table 6: Patient Care and the Right to the Highest Attainable Standard of Physical and Mental Health
Examples of Human Rights Violations
- Hospitals do not take adequate measures to prevent hospital-borne infections, oversee health risks following transfusions, and ensure that their tests and treatment remain of high quality.
- Hospitals fail to meet the needs of patients who require religious or psychological support, or do not provide treatment appropriate for the terminally ill.
- Hospitals fail to provide care suited to the needs of small children.
- Long, unjustified delays in the provision of health services regularly lead to a worsening in patients’ health.
- A state lacks adequate compensation procedures for patients harmed by health care providers.
|Human Rights Standards
|Treaty Body Interpretation
|ICESCR 12(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.ICESCR 12(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: . . .(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
|CESCR General Comment No. 14 (3-4): explaining that Art. 12(1) speaks of “the highest attainable standard of physical and mental health” and that this standard might depend on economic capacity and capabilities and will hardly ever reach a state in which all persons are entirely healthy.CESCR General Comment No. 14 (4): explaining that “[t]he right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life.”
CESCR General Comment No. 14 (12): explaining that, “[a]s well as being culturally acceptable, health facilities, goods and services must also be scientifically and medically appropriate and of good quality.” They must also be “sensitive to gender and life-cycle requirements….”
CESCR: pointing to a need for federal legislation on patient rights in Russia, including redress for medical errors. E/C.12/1/ADD.94 (CESCR, 2003).
|CEDAW 12(1) States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.(2) Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
|CEDAW Committee [Jurisprudence]: finding Brazil in violation of Art.12 (2). The applicant’s daughter was pregnant and died because of a delay in obtaining proper emergency care during a complicated pregnancy. The Committee noted that Brazil had adopted policies to address maternal health but referred to “general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of the Convention and notes that the policies of the State party must be action- and results-oriented as well as adequately funded.” The Committee found that “the State party violated its obligations under article 12 (in relation to access to health), article 2 (c) (in relation to access to justice) and article 2 (e) (in relation to the State party’s due diligence obligation to regulate the activities of private health service providers), in conjunction with article 1, of the Convention, read together with general recommendations Nos. 24 and 28.” The Committee recommended, among other things, that the State party must “[e]nsure women’s right to safe motherhood and affordable access for all women to adequate emergency obstetric care, in line with general recommendation No. 24 (1999) on women and health.” Alyne da Silva Pimentel v. Brazil, CEDAW/C/49/D/17/2008.
|Human Rights Standards
|ACHPR 16(1) Every individual shall have the right to enjoy the best attainable state of physical and mental health.ACHPR 16(2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
|ACHPR (Committee): “African jurisprudence places a premium on both the right to health care and the right to the underlying conditions of health. In the Purohit case, the African Commission held that the right to health in the African Charter on Human and Peoples’ Rights includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind. (Purohit and Moore v. The Gambia, Communication 241/2001, para 80.) It has been confirmed that the underlying conditions for achieving a healthy life are protected by the right to health. Thus lack of electricity, drinking water and medicines amount to a violation of the right to health. The Zaire case, 2(Free Legal Assistance Group and Others v Zaire, Communications No 25/89, 47/90, 56/91, 100/93) concerning Article 16 of the African Charter on Human and Peoples’ Rights, confirmed that the failure of the government of Zaire to provide the mentioned basic services amounted to an infringement of the right to health.” IHRDA and Open Society Justice Initiative (OSJI) (on behalf of children of Nubian descent in Kenya) v Kenya, Communications No 002/09.ACHPR (Commission): “The State’s responsibility in the event of detention is even more evident to the extent that detention centres are its exclusive preserve, hence the physical integrity and welfare of detainees is the responsibility of the competent public authorities. Some prisoners died as a result of the lack of medical attention. The general state of health of the prisoners deteriorated due to the lack of sufficient food; they had neither blankets nor adequate hygiene. The Mauritanian state is directly responsible for this state of affairs and the government has not denied these facts. Consequently, the Commission considers that there was a violation of [the right to health].” Malawi African Association, Amnesty International, Ms Sarr Diop, Union interafricaine des droits de l’Homme and RADDHO, Collectif des veuves et ayants-Droit, Association mauritanienne des droits de l’Homme / Mauritania, Communication No. 54/91-61/91-96/93-98/93-164/97_196/97-210/98.
Declaration of Lisbon on the Rights of the Patient, Principle 1: Right to medical care of good quality.
a. Every person is entitled without discrimination to appropriate medical care.
b. Every patient has the right to be cared for by a physician whom he/she knows to be free to make clinical and ethical judgements without any outside interference.
c. The patient shall always be treated in accordance with his/her best interests. The treatment applied shall be in accordance with generally approved medical principles.
d. Quality assurance should always be a part of health care. Physicians, in particular, should accept responsibility for being guardians of the quality of medical services.
e. In circumstances where a choice must be made between potential patients for a particular treatment that is in limited supply, all such patients are entitled to a fair selection procedure for that treatment. That choice must be based on medical criteria and made without discrimination.
f. The patient has the right to continuity of health care. The physician has an obligation to cooperate in the coordination of medically indicated care with other health care providers treating the patient. The physician may not discontinue treatment of a patient as long as further treatment is medically indicated, without giving the patient reasonable assistance and sufficient opportunity to make alternative arrangements for care.
Declaration on the Promotion of Patients’ Rights in Europe, Art. 5.3: “Patients have the right to a quality of care which is marked both by high technical standards and by a humane relationship between the patient and health care provider.”
European Charter of Patients’ Rights.
International Alliance of Patients’ Organizations: Declaration on Patient-Centered Health Care (March 30, 2007), (www.patientsorganizations.org/).