The right to health: for ombudsman schemes

Article 12 of the ICESCR recognises the right to enjoy ‘the highest attainable standard of physical and mental health’.

Article 11 of the ESC recognises the right to protection of health, while Article 13 enshrines the right to social and medical assistance.

These rights are closely linked to the right to private and family life, which protects your right to control of your body, health and treatment.

As with many socio-economic rights, remedies for breaches of the right to health cannot be sought in the courts. Instead the ICESCR and ESC have their own monitoring mechanisms, involving expert committees. Neither accepts complaints from individuals.

However, complainants have successfully used the right to life, the right to be free from inhuman or degrading treatment, and the right to private and family life to get healthcare provision.

• health and social care
• planning decisions
• working conditions
• environment
• education
• housing

The right to health relies on the principle of progressive realisation – that states do what they can to fulfil their obligations with the resources they have available.

The ICESCR obliges states to:

• improve infant mortality rates and healthy child development
• improve environmental and industrial hygiene
• prevent, treat and control diseases

The ESC obliges them to:

• remove the causes of ill-health as far as possible
• promote health, including through health education at school
• prevent accidents and the spread of diseases, including through medical checks at school and screening
• provide healthcare to those without the resources to get it themselves

States are expected to provide emergency healthcare to all. The UN Committee on Economic, Social and Cultural Rights (CESCR) has said that healthcare must:

• be available and accessible – this may require doctors travelling to patients who cannot leave their homes, or adaptations for cultural or religious needs (see also protection from discrimination)
• include the provision of food and water in a clean environment – hospitals and care homes must make sure food and water is within reach of people with limited mobility and made available when it is needed rather than when it is convenient for the institution
• focus on prevention, cure and rehabilitation – through access to a wide range of health professionals, and vaccination and education programmes

These wide-ranging obligations on states place broad duties on public authorities generally, not just health and caring authorities and medical treatment. The right to health could be claimed in relation to working conditions, the physical environment, in planning decisions, in the education system and housing.

Mental health

The CESCR has stressed the need for people with mental health conditions to be involved in decision-making. Regular reviews should ensure that care and treatment is still appropriate and according to the wishes of the patient. For more information, see our protection from discrimination page about provision for disabled people.

Older people

Healthcare for older people should focus on prevention, treatment and rehabilitation, so that they can maintain mobility and autonomy for as long as possible into old age (CESCR General Comment No. 6).

Progressive realisation does not excuse public authorities of their obligations because of a lack of resources. They must be aware of their human rights duties and demonstrate what steps they have taken to fulfil them.

The aim should be the highest attainable standard of physical and mental health within maximum available resources, prioritising the needs of disadvantaged groups.

What to do if this right is relevant to your case

You should aim to establish:

• any evidence of discrimination on the basis of a protected characteristic or because the complaint concerns someone from a disadvantaged group
• whether the health authority accommodated any needs relating to age, religion, gender or disability
• evidence demonstrating prioritisation of protected or disadvantaged groups in policy and practices
• how the authority managed waiting lists for services and treatment
• how the authority used maximum available resources to realise the right
• evidence of a commitment to realise the right over time
• whether there was interference with the right to private and family life, the right to be free from inhuman or degrading treatment, or the right to life

You do not need to undertake a detailed analysis of budgets, but you should examine the organisation’s policies and plans closely. As a minimum, they should refer explicitly to the right to health, show an understanding of their obligations, and set out a clear plan to realise the right to health for all.

Independent professional advice (IPA) could help you establish if the action in question was reasonable against what was the highest attainable standard within the maximum resources available.

• Complaint to a health trust about the care and treatment of an elderly relative