(a) Triggers for public health law reform within government
Within government, there will be a variety of political opportunities for prioritizing public health policies and for initiating the process of law reform. These may arise within the context of developing a poverty reduction strategy, a national public health strategy, or reporting to development partners. Disease outbreaks and national public health emergencies may also provide opportunities for advocacy to government by professional and nongovernment organizations, and for leadership by government in the area of public health law reform. Sunset clauses may also require the government to formally consider re-authorizing, extending or reforming current laws.
International instruments can draw attention to particular health challenges arising at the country level and serve as a catalyst for national law reform. Examples include the WHO FCTC,79 the International Health Regulations (2005),80 the International Code of Marketing of Breast-milk Substitutes,81 the set of recommendations on the marketing of foods and non-alcoholic beverages to
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children,82 and the Global Action Plan for the Prevention and Control of Noncommunicable Diseases 2013–2020.83 In the case of treaties and regulations, countries have an obligation under international law to implement these instruments by amending their domestic laws and developing their national capabilities.
(b) Community participation as a trigger for public health law reform and policy-making
In some countries, formal mechanisms for community participation in government processes may assist civil society organizations to put health issues on the agenda of government and to participate in law-making. For example, citizen-initiated referenda may allow citizens to petition government on a popular issue. In Brazil, legislation enacted in 1990 establishes the National Health Council as a
“permanent collegiate deliberative body” representing government, service providers, health workers and health service users, which participates in the development of health policies and monitors their implementation.84 At the state and municipal levels, the establishment of health councils is a precondition to the receipt of federal funds from the National Health Fund.85 By 2008 there were over 5500 municipal health councils in Brazil.86
Policy conventions and health congresses provide opportunities for citizens to identify national health priorities, to monitor progress in implementation, and to advocate for law reform. In Brazil, the National Health Conference is required to meet every four years to evaluate the health situation in Brazil and to propose health policy directives.87 In Thailand, the National Health Act of 2007 formalizes community participation in the formation of health policy through the National Health Assembly (NHA).88 Topics that are successful in reaching the agenda of the NHA are supported by briefing papers and debated. Although resolutions passed at the NHA are non-binding, they are re-shaped by the National Health Commission for consideration by relevant ministries.
(c) Litigation and public health law reform
Civil society organizations have often turned to the courts as a remedy for injustice and discrimination within the health sector, litigating the absence of tobacco control laws, lack of access to health care services, clean water, sanitation and housing, and adequate food.89 National constitutions frequently protect individuals from legislative and executive actions that interfere with the civil and political rights of the individual. Some constitutions also recognize social and economic rights and oblige the State to take positive actions to secure these rights for the benefit of the population. This section focuses on legal claims which assert that the fundamental protections contained in a national constitution, a bill or charter of rights, or a ratified international agreement, require governments to alter their policies or practices – in ways that advance the realization of the right to health. In some cases, successful litigation may prove to be the catalyst for the subsequent introduction or amendment of public health laws.
Around two thirds of countries have constitutional provisions recognizing a right to health or health care services.90 Typically, these provisions require the legislature, the executive and other organs of State to take reasonable measures to secure the enjoyment of the right within the limits of available
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resources. For example, in several cases the South African Constitutional Court has ruled that the government has a positive obligation to take reasonable measures to fulfil basic socioeconomic rights, including the right to health care, food and water, and housing or land.91
In South Africa, the existence of social and economic rights in the Constitution obliges government to protect these rights not only through legislation, but also through the effective implementation of policies designed to improve public health. For example, when ruling that the Constitution imposes a positive obligation on the government to take action to fulfil the right to housing, the South African Constitutional Court stated that legislation alone – without effective change – would not satisfy this duty.92 Box 3.6 presents a case study of litigation whose substantive effect was to require the South African government to implement a national plan of action to provide HIV-positive pregnant women with reasonable access to nevirapine, a drug for preventing the perinatal transmission of HIV from mother to child.
Box 3.6: The right to health and reasonable access to nevirapine in South Africa
In Minister of Health v Treatment Action Campaign (No. 2),93 a coalition of civil society organizations challenged the decision of the South African Government to impose restrictions on the availability of nevirapine within the public health sector.
WHO recommended nevirapine for the prevention of mother-to-child HIV transmission in January 2001, and the Medicines Control Council formally approved its use in South Africa in April of the same year. As a result, medical practitioners in the private sector became entitled to prescribe nevirapine in appropriate cases. The risk of HIV transmission from a pregnant, HIV-positive woman is substantially reduced through a single dose of nevirapine during pregnancy, and by the administration of a few drops to the baby within 72 hours of delivery. According to government estimates at the time, around 70 000 children became infected with HIV perinatally each year.
Despite the fact that the manufacturers of nevirapine had offered it to the South African Government without charge, for a period of five years, the ability to prescribe nevirapine within the public health system was limited to two sites per province, while research continued for a further period of two years into the safety and efficacy of the drug and the operational challenges of making it more widely available. These included the challenges of making confidential counselling and HIV testing services widely available to pregnant women.
The South African Bill of Rights provides that everyone has the right to access “health care services, including reproductive health care”.94 Every child has the right to “to basic nutrition, shelter, basic health care services and social services”.95 The State is required to use legislative and other measures, to progressively realize these rights, within its available resources.96
The South African Supreme Court held that the safety concerns about nevirapine were no more than
“hypothetical”, and that the cost of nevirapine was not at issue. It held that the government was not justified in restricting the availability of nevirapine to those sites where it could be provided as part of a broader “comprehensive package” of services for preventing mother-to-child transmission and that the restrictions on public sector availability unreasonably excluded women who could not access the chosen sites. The Court said: “To the extent that government limits the supply of nevirapine to its research sites, it is the poor outside the catchment areas of these sites who will suffer”.97
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The Court concluded that the government’s “inflexible” policy of limiting the availability of a
“potentially lifesaving drug” was in breach of both the right to health care in Article 27 and the rights of children as set out in Article 28. As the Court pointed out, this finding required a change in government policy: “The policy will have to be that nevirapine must be provided where it is medically indicated at those hospitals and clinics within the public sector where facilities exist for testing and counselling”.98
The orders made by the Court emphasized the positive obligations imposed on the government by the constitutional right to health. These included the delivery, within available resources, of a comprehensive health care programme to progressively realize the rights of pregnant women and their children to services to prevent the transmission of HIV, including reasonable measures for testing and counselling of women to reduce the risk of perinatal transmission.
In Colombia, the Ministry of Social Protection initiated a sweeping reform of its health system – including changes in the coverage of health care services – following a finding by the Constitutional Court that systemic problems within the public health system constituted failure to fulfil the right to health.99 Other courts have mandated that states reallocate funds to secure access to treatment for all, regardless of expense. Peru and the Bolivarian Republic of Venezuela also adjusted their public health spending following such rulings.100
Even in countries where the constitution does not protect the right to health, other constitutional rights may nevertheless provide indirect protection. For example, although there is no right to health in the Indian Constitution, the Supreme Court has interpreted the constitutional right to life (Article 21) to impose a duty on the government to safeguard life, which extends to providing for emergency health care services.101
In Murli Deora v Union of India,102 the Supreme Court of India held that smoking in public violates the right to protection of life and personal liberty contained in the Constitution. It issued an order requiring the federal and state governments to ensure implementation of the prohibition on smoking in a number of public settings. These restrictions were included in subsequent national tobacco control legislation, passed in 2003 (Box 3.7).
Box 3.7: Protection from exposure to second-hand smoke through the constitutional right to life and to personal liberty in the Indian Constitution
Part III of the Constitution of India sets out a number of fundamental rights and liberties, including Article 21, which states: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Under Article 32 of the Constitution, individuals may petition the Supreme Court to enforce these rights, and the Supreme Court may issue appropriate orders.
In Murli S. Deora v Union of India,103 the petitioner relied on Article 21 of the Constitution to seek an order protecting non-smokers from harm caused by exposure to tobacco smoke in public places. At the time the case was heard, India’s federal Tobacco Act contained no restrictions on smoking in public places, although a bill had been introduced into Parliament and was awaiting consideration by a Select Committee. The Attorney-General of India and counsel for the various states agreed that it
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was in the interests of citizens for the Court to make an order protecting citizens from environmental tobacco smoke until the federal Act could be amended.
Referring to the rights guaranteed under Article 21, the Court asked why a non-smoker should be threatened with fatal diseases, including cancer or heart disease, as a result of exposure to tobacco smoke in public: “Is it not indirectly depriving [a person] of his life without any process of law? The answer is obviously – ‘yes’.”104
After considering the effect of smoking on both smokers and non-smokers, the Court issued an order prohibiting smoking in public places and requiring federal and state governments to “take effective steps to ensure [the prohibition of] smoking” in “auditoriums, hospital buildings, health institutions, educational institutions, libraries and court buildings, and public conveyances including railways”.105 The effect of this order was to give constitutional protection against exposure to second-hand smoke in public places in India. In 2003, the Parliament of India passed the Cigarettes and Other Tobacco Products Act, which prohibits smoking in a “public place”, defined to include the places identified in the order of the Supreme Court.106
Similarly, in 2001, a public interest applicant, the Environmental Action Network, sought a declaration in the High Court of Uganda that public smoking violated a number of constitutional rights including the right to life (Article 22) and the right to a healthy and clean environment (Article 39). In one of several judgments relating to this application, Justice Ntabgoba commented that
“unregulated smoking in public places constitutes a violation of the rights of non-smoking members of the public”, depriving them of a clean and healthy environment.107 As a result of this litigation,108 the National Environment Management Authority issued regulations in 2004 banning smoking in a range of public places.109
Cases like this illustrate that litigants, and public health organizations, can be powerful agents for change. The history, and legal and constitutional context of each country is unique. It follows that stakeholders will need to identify allies, and to consider how the available political, legal and constitutional processes might be used most effectively to build momentum towards the improvement of public health policies and the introduction of effective public health laws. The environment for reform is likely to be most favourable where deficiencies in a country’s public health laws have been recognized and demonstrated, where law reform proposals have been identified and discussed with major stakeholders, and where political champions are ready and able to take the issue forward.110 Civil society organizations and the media play a vital role throughout the public health law reform process.
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