Using the courts to gain access to essential medicines should be the last resort
Going to court to get access to essential medicines may be necessary and has been successful in several cases, but it should only be used as a last resort, according to an article in this week's issue of The Lancet. Instead, policymakers should ensure that health policies are guided by human rights in the first place.
The right to health is part of the UN Universal Declaration of Human Rights and is also recognised in many other international treaties. In addition, the right to health has been incorporated into the national constitution of over 100 countries.
Hans Hogerzeil and colleagues (World Health Organization, Geneva, Switzerland) looked at 71 court cases from twelve low to middle income countries in which individuals or groups had claimed access to essential medicines with reference to the right to health. Essential medicines are classed as "those that satisfy the priority health care needs of the population" in WHO's most recent definition. Despite an intensive global search, more than 90% of the cases were from nine countries in central and Latin America.
Out of the 71 cases, 59 were successful. Success was often linked to the right to health being integral to the country's constitution with support from human rights treaties. Several cases were supported by non-governmental organisations. Many successful cases had considerable impact. For example, in several countries the court cases led to general availability of antiretroviral treatment for HIV/AIDS patients. In two landmark cases from Argentina and South Africa, government policies have successfully been challenged in court.
However, the authors stress that the courts should not be used as a matter of course. "Redress mechanisms through the courts are an essential function in society, but should preferably be used as a measure of last resort. Rather policymakers should ensure that standards for human rights guide their health policies and programmes from the outset, and should be publicly perceived as such," says Dr Hogerzeil.
Dr Hans V Hogerzeil
Department of Medicines Policy and Standards
World Health Organisation, Geneva, Switzerland
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