Table 9: Patient Care and the Right to Non-Discrimination and Equality

Examples of Human Rights Violations

  • Members of certain communities are treated in separate ways with a lower standard of care.
  • Health workers refuse to treat sex workers, drug workers or LGBTI persons.
  • Maternal and reproductive health services for women are lacking.
  • A country fails to provide health services to the poor or non-citizens.
Human Rights Standards Treaty Body Interpretation
ICESCR 2(2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenants will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

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.

CESCR General Comment 20: In explaining “other status” under ICESCR 2(2), CESCR explains “Health status refers to a person’s physical or mental health. States parties should ensure that a person’s actual or perceived health status is not a barrier to realizing the rights under the Covenant. The protection of public health is often cited by States as a basis for restricting human rights in the context of a person’s health status. However, many such restrictions are discriminatory, for example, when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum. States parties should also adopt measures to address widespread stigmatisation of persons on the basis of their health status, such as mental illness, diseases such as leprosy and women who have suffered obstetric fistula, which often undermines the ability of individuals to enjoy fully their Covenant rights. Denial of access to health insurance on the basis of health status will amount to discrimination if no reasonable or objective criteria can justify such differentiation.” E/C.12/GC/20 (June 10, 2009).CESCR General Comment 14: “With respect to the right to health, equality of access to health care and health services has to be emphasized. States have a special obligation to provide those who do not have sufficient means with the necessary health insurance and health-care facilities, and to prevent any discrimination on internationally prohibited grounds in the provision of health care and health services, especially with respect to the core obligations of the right to health.”

CESCR General Comment No. 14 (14): Explaining that “health facilities, goods and services must be accessible to all [without discrimination], especially to the most vulnerable and marginalized sections of the population . . . .” The Committee stated that this included the health care access needs of “ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS.”

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.

CEDAW Committee General Recommendation No. 19 (19-20): explaining that “States parties are required by Article 12 to take measures to ensure equal access to health care. Violence against women puts their health and lives at risk. In some States there are traditional practices perpetuated by culture and tradition that are harmful to the health of women and children. These practices include dietary restrictions for pregnant women, preference for male children and female circumcision or genital mutilation.”

Other Interpretations 

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.  (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.

Declaration of Alma-Ata: (V) Governments have a responsibility for the health of their people which can be fulfilled only by the provision of adequate health and social measures. …  (VIII) All governments should formulate national policies, strategies and plans of action to launch and sustain primary health care as part of a comprehensive national health system and in coordination with other sectors. To this end, it will be necessary to exercise political will, to mobilize the country’s resources and to use available external resources rationally.

European Convention on Human Rights and Biomedicine, Art. 3: Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. See also Explanatory Report, paras. 24-27 (interpreting the right to equitable access to health care provided by article 3 of the European Convention on Human Rights and Biomedicine).

Covenant on the Rights of the Child in Islam, as adopted by the Organization of the Islamic Conference (OIC), art. 15. The child [regardless of minority status] is entitled to physical and psychological care.