Comment
Human-rights-based approaches to health in Latin America
Published Online: 15 October 2014
Article Info
A
key and distinctive feature of Latin America is the explicit discourse
around the right to health. Many countries have translated this
commitment into practice by incorporating rights principles and
standards in constitutions and legislation, together with health
policies and programmes, to treat health as an asset of citizenship
rather than a market commodity, and to promote an equitable path to
universal health coverage. Human-rights-based approaches (HRBAs) are
characterised by a focus on the underlying social determinants of health
and an emphasis on the principles of accountability, meaningful
participation, transparency, and equality and non-discrimination.1
Understanding governments as duty bearers and health system users as
claims holders has been fundamental to holding governments to account
with respect to achieving aspects of universal health coverage equitably
in Latin America, a region marked by profound social inequality, which
is reflected in health disparities.
The explicit use of
human rights frameworks and strategies in the region has led to the
exposure of systematic discrimination against marginalised populations;2, 3, 4 the reallocation of health budgets to improve equity;5 the enhancement of quality of care in facilities;6 increased oversight of health systems;7
and, perhaps most importantly in the long term, to the appropriation of
access to quality care as a political and legal entitlement by the
public.7, 8
The
cornerstone of HRBAs in Latin America, and perhaps what they have most
distinctively added to other universal health coverage efforts, is
accountability. Accountability in HRBAs is not an afterthought, and
involves both processes and results in relation to universal health
coverage. HRBAs promote a “circle of accountability”, which implies
changes in a chain of decisions from the initial situation analysis
through the establishment of legal and policy frameworks, the
development of national public health strategies and plans of action to
set priorities, the formulation and allocation of budgets, the
implementation of programmes, monitoring and review processes, and
oversight mechanisms, including meaningful access to judicial remedies.9, 10
Enabling
legal frameworks are a necessary but not sufficient condition for
meaningful accountability. The right to health is embedded in 18 of the
region's constitutions, and an additional five countries include social
protection for health as a basic tenet of the health system. Many
countries in the region have also enacted implementing legislation and
policies, and structural reforms in legal systems have enabled judicial
enforcement of the right to health.11
The
combination of the chronic democratic failure that marks many countries
in the region, coupled with favourable opportunity structures in courts
(eg, low access barriers, existence of constitutional protection writs,
relaxed standing requirements, and speed of resolution) has led to
increasing judicialisation of health rights. Thousands, and in some
cases hundreds of thousands, of cases focusing on access to health
services and essential medicines, but also including other public health
issues, have been brought in Colombia, Brazil, Argentina, and Costa
Rica in particular. While there is some evidence that individual
litigation for personal entitlements could benefit the middle class more
than the worst-off groups and lead to provision of treatments that are
not cost effective,12, 13
judicial enforcement of rights principles and standards can also
advance health system strengthening and universal health coverage, as
shown by the court-mandated transformation of the health system and
unification of benefits in Colombia (panel).
PanelHuman rights accountability and universal health coverage in Colombia and Peru
Health system transformation in Colombia through judicial enforcement of the right to health
More than a million individual claims for health entitlements have been brought since 1999 in Colombia.14
In 2008, the Constitutional Court issued the most sweeping structural
judgment related to health anywhere in the world, aimed at addressing
the root causes of the litigation: the inequities built into Colombia's
health system and the failure of the system to regulate itself. In that
case, the Court examined systemic failures in the regulation of the
health system, reasserted the independent enforceability of the right to
health, and called for substantial restructuring of the health system
including the unification of benefits packages for contributory
(payroll-tax financed) and subsidised systems, as well as updating of
the benefits package based on a comprehensive and participatory
situational analysis.15
The judgment also explicitly adopted the right to health framework laid
out in international law. Almost 6 years after the judgment, the
judgment has increased oversight and has also set in motion overhauls of
the health system, including a unified and newly defined benefits
package. The Colombian Congress passed major health reform in 2013 in
the form of a new Framework Law on Health, which explicitly enshrines it
as a right with corresponding governmental duties, and subsequently
expanded pharmaceutical regulation. Questions remain regarding the
financing of the system and the implementation of reforms. Nevertheless,
that this judicial decision triggered a series of cascading effects,
including increased public appropriation of health as a right instead of
a commodity, is indisputable.7
Citizen monitoring of health services quality in Peru
Peru
is a country marked by steep social and economic inequality, and
disproportionate marginalisation of indigenous populations, including
with respect to their health. In the Puno region, Quechua and Aymara
women community leaders are engaging with the regional offices of the
Human-Rights Ombuds office to monitor women's health rights,
particularly the right to good quality, appropriate, and culturally
respectful maternal health services. These community leaders have
received training through ForoSalud (Citizen Forum on Health) and CARE.
Through accompaniment of rural women who use the services as well as
collective empowerment processes, these women leaders have been able to
secure both information and changes from local and regional health
authorities. The initiative, now supported by the Pan American Health
Organization and the International Iniative on Maternal Mortality and
Human Rights, has been cited internationally as a successful example of
social accountability, has contributed to increased transparency,
respect, and cultural sensitivity in service delivery, and increased
demand for health services by rural, indigenous women and children as
well as to the development of national policies with respect to citizen
monitoring.16, 17, 18
The Peru example also illustrates the crucial part that citizen
monitoring can play in informing health sector reform policies and
corresponding implementation processes so that they respond to people's
needs and expectations.19
HRBAs,
however, go beyond the legal realm. They convert passive targets of
services into active claims holders, which means that there cannot be a
static package of services for universal health coverage defined by
technocrats behind closed doors. The ways in which priority services and
treatments, as well as public health interventions, are determined,
together with steps to include more people and reduce financial burdens,
must be achieved through citizen participation, which advances rights
and the legitimacy of the system.1, 9, 20, 21
Social accountability processes in Latin America have enabled
meaningful participation of people, including traditionally excluded and
marginalised groups, in the design, implementation, and evaluation of
public policies and budgets, as well as in auditing the quality of care.21
One successful example of citizen monitoring of health services in Peru
is involvement of indigenous women community leaders in strengthening
the quality and cultural appropriateness of services, and in
facilitating effective coverage for indigenous groups (panel).
Latin
American civil society, together with many governments, has embraced
human rights principles, standards, and indicators to provide meaningful
content to the right to health, which in turn has enriched and extended
priorities for universal health coverage and contributed to health
systems that are more responsive to people's health needs. HRBAs have
been shown to promote improved understanding of vulnerability as a
structural issue, derived from and resulting in inequitable power
relations in society. Holding governments and other actors to account
for their promises relating to the right to health is a fundamental part
of the debate about policies on universal health coverage, and their
implementation, in Latin America. The examples and results of social and
judicial accountability initiatives in the region provide valuable
insights for promotion of universal health coverage elsewhere.
We declare no competing interests.
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