Question 1:The Distinction Between The Right To Health And The Right To Healthcare

INTRODUCTION
The right to health and healthcare has been the subject of many debates. Are they the same rights or different and should they be rights in the first place. An often cited definition of health from the World Health Organization describes health as a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity.
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Health care connotes the means for the achievement of health, as in

the care, services or supplies related to the health of an individual.2 This debate has even extended to probably the highest office in the world: Washington, where the introduction of the now famous Obama care which advocates for the right to healthcare was highly debated as many saw that the universal right to health was enough and that the right to healthcare would need more funding. The debate made its way to the halls of justice where the Supreme Court of America upheld the Obama care which is seen as an enforcement of healthcare to all.3 Most countries do find the right to healthcare hard to put in place given the strain on the government to guarantee free healthcare to all. The right to health though has less controversy given it is a universal right upheld by international instruments just to name a few: International covenant on economic, social and cultural right article 12 The 1965 international convention on the elimination of all forms of racial discrimination article 5 The 1979 international convention on the elimination of all forms of discrimination against women article 11(1) (f),12 and 14(b)

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constitution of the World Health Organization (2006), Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, 45 C.F.R. 160.103. 3 NATIONAL FEDERATION OF INDEPENDENCE OF BUSINESS ET AL. vs. SEBELIUS,SECRETARY OF HEALTH AND HUMAN SERVICES

RIGHT TO HEALTH
The human right to health means that everyone has the right to the highest attainable standard of physical and mental health, which includes access to: Medical services Sanitation Adequate food Decent housing Healthy working conditions A clean environment

According to the constitution of the World Health Organization (WHO), Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, political belief, economic or social condition.4 At first glance, it might seem wrong to speak of health as a right whenever increasing segments of the worlds population are witnessing a steady decline in the state of their health, to the point where their very existence is threatened. According to the most recent figures from the World Health Organization (WHO), 1.7 million persons died from tuberculosis in 2004 at the same time as 8.9 million new cases were registered. From 350 to 500 million human beings suffer from malaria, of whom a million mostly children die from each year. AIDS killed more than three million persons in 2005. Thus, these three devastating illnesses are responsible for more than six million
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WHO Constitution, preamble, par. 1, 2, adopted by the International Health Conference (NewYork), 19-22 July 1946: http://www.yale.edu/lawweb/avalon/decade/decad051.htm.

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deaths every year, the overwhelming majority of which occur in the South. Moreover, it is estimated that the world including the countries of the North needs some 4.3 additional health care professionals (doctors, nurses, environmental degradation is more than ever a threat to every-bodys health.5 From the above statistics, it seems the right to health is a deluded thought given the state of our health is out of our own hands and as many tend to believe, the health of the population should be left to the God or as the ancient Greeks would put it as the gods or as others would believe health boils down to ones fate or to chance. Yet, the right to health is recognized in many international human rights instruments. Also recognized is that the realization of the right to health is closely tied to, and dependent on, the realization of other human rights, mainly economic, social and cultural rights. Further, most of the worlds disease like most of its death results from the nonsatisfaction of basic needs, the lack of, and/or non-access to, sanitation, potable water and food being surely the greatest and most pressing. The development of public health in the Europe and the United States shows that the most significant interventions for the million

midwives etc.) and

improvement of the health of populations do not involve health services per se. Rather, the realization of the right to health is dependent on the realization of economic, social and cultural rights: food; housing; hygiene; proper work conditions; the exercise of various freedoms, in particular those associated with trade unions; etc. It is also directly related to peace and security. In other words, the preservation and promotion of health imply more than just access to medical care and medicines. The right to healthy does not exist and is different from the right to health because the right to being healthy depends on an individual and cannot be implemented such as if for example genetic factors determine how healthy I will be , as opposed to the right to health which must be provided for regardless of my genetic formations . From this interaction of the right to health and its dependants on economic, social and cultural rights this is where the right to healthcare comes in.

Right to health by Melik zden,

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The Right to Healthcare

The right to healthcare is one of the systems of implementation of the right to health. The right to healthcare means that hospitals, clinics, medicine and doctors services must be accessible, available, and acceptable and of good quality for everyone on an equitable basis, where and when needed. This means that the right to healthcare must be actualized by a good healthcare system while the human right to health is actualized by access to more than just medical services but it also encompasses sanitation, decent housing, and healthy working conditions. If the right of healthcare is in fact made absolute, then this would mean free access to medical services while if the right to health was made absolute, it would mean free access to medical services, sanitation services, adequate food, decent housing, healthy working conditions and a clean environment.

The Right To Health In Kenya

Under the constitution of Kenya 2010 the following articles cover the right to health

43. (1). Every person has the right (a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; Article 43 of the constitution expressly and unequivocally expresses the right to health as explained in World health organization treaty. This article also makes the basic requirement of the right to health: which is the provision of medical services. Through this article, the provision of medical services to better the health is attained. Article 43 (b) To accessible and adequate housing, and to reasonable

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Standards of sanitation; (c) to be free from hunger, and to have adequate food of Acceptable quality; (d) To clean and safe water in adequate quantities; This article attains the prescribed requirements of the right to health which are the socio-economic aspects of the right to health which combine to create an environment for the right to health to be implemented such as Right to sanitation which is essential in prevention of illnesses and diseases and provides a safe breeding ground for pathogens that impact negatively and on the right to health; for example lack of sanitation may lead to diseases relating to skin among others Adequate food which is essential in preventing health complications relating to malnutrition such as rickets or eventual death due to hunger Clean and safe water goes a long way in safeguarding against health hazards relating to water such as the waterborne diseases for example cholera and bilharzia.

53. Every child has (c) To basic nutrition, shelter and health care

70. (1) If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter. Article 42. Every person has the right to a clean and healthy environment

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The articles above recognize the relation of the environment and health and how without caring for the environment, health may be negatively affected by all kinds of pollution such as sound pollution causing a hearing impairment

Right to healthcare in Kenya

Article 43 (1) (a) to the highest attainable standard of health, which includes the right to healthcare services, including reproductive health care; (2) A person shall not be denied emergency medical treatment. The right to healthcare is in fact a sensitive matter as shown by the National Federation Of Independence Of Business Et Al. Vs. Sebelius, Secretary Of Health And Human Services case, where the United States government struggled to find a means to make the right to healthcare absolute and at the same time struggled to find a way to find funds to pay for it. In Kenya on the other hand, the right to healthcare services is provided meaning provision of medical services is free in a basic interpretation of the law. The only problem is the implantation of this provision given the public healthcare sector is struggling to provide healthcare to even the paying population due to lack of infrastructure even though the good will is being shown.

CONCLUSION
The right to health is in fact distinct from the right to healthcare given the right to health incorporates the socio-economic factors plus medical services while the right to healthcare incorporates provision of medical services and relates to resources in the provision of those medical services.

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Question 2. How Does The Enforceability Of These Rights Interrelate With The Level Of Healthcare Resources: Do Healthcare Professionals Have An Ethical Obligation To Perform Their Duties Should Resources Be Scarce?

The Constitution provides that everyone has the right to have access to health care services which the state must provide within its available resources. Therefore in the case of state run health care facilities, health care practitioners are required to treat everyone who presents and qualifies for treatment. This does not apply to privately run facilities except in the case of emergency medical cases. In the case of emergency medical treatment nobody may be turned away by either public or private facilities. The general rule regarding the provision of health care services in an environment of reduced medical resources is that the ethical rules of the health care professions cannot be compromised. Health care practitioners will be expected to maintain their ethical standards even in an environment of reduced resources. Failure to do so may result in disciplinary action by the relevant health care professional board or council and in the case of Kenya, the medical and dentist practitioners board Furthermore, if the breach of ethics results in an invasion of a patients constitutional rights, the health care practitioner may also face legal action. Decisions about reducing the

resources available to health care practitioners and their patients are usually made by public health authorities and the managers of health care institutions. If a patients treatment will be affected by a shortage of resources at a medical fa cility the patient has a right to be informed. Patients must be provided with sufficient information about the treatment and options available so that they can give an informed consent.
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Private patients who are referred to state hospitals because their medical aid or financial resources have run out are not entitled to better treatment than other state-aided patients. They must be treated in the same way as other state-aided patients who are being treated within the states available resources. This is in tow with the constitutional rights in Kenya of Equality and freedom from discrimination which is article 27 and consumer right to information in article 46 From the above, it is obvious that the law does not compromise on the right to healthcare and therefore regardless of the amount of resources, the healthcare is both ethically and legally liable if he or she fails to treat patients fairly in relation to resources or refuses to treat due to lack of resources. An example is the South African case in relation to a similar right to healthcare in their constitution article 27, Soobramoney v Minister of Health Mr Soobramoney suffered from chronic kidney failure which required him to have regular kidney dialysis treatment in order for him to survive. He could not afford private hospital treatment and approached a state hospital for dialysis treatment. The hospital refused

treatment because dialysis was only available to renal patients who were eligible for a kidney transplant. In order to qualify for a kidney transplant a patient had to be free from other significant disease which Mr Soobramoney was not. The hospital justified its policy on the basis that dialysis treatment was very expensive and it only had limited resources. A clinical decision was made by doctors as to who were good candidates for a kidney transplant. Mr Soobramoney brought an urgent application in the high court for an order directing the hospital to provide him with dialysis treatment because without such treatment he would die. He based his application on Section27 (3) of the Constitution which states: No one may be refused emergency Medical treatment . His application failed and he appealed to the Constitutional Court where his application was again refused.6 The case is similar to the Kenyan right in the constitution 2010, article 43. (1)(a): Every person has the right to the highest attainable standard of health, which includes the

[Soobramoney v Minister of Health, KZN 1998 (1) SA 765 (CC)]

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right to health care services, including reproductive health care; and (2) A person shall not be denied emergency medical treatment. Under the Kenyan system, an argument from the patient would need for emergency treatment, but the medical practitioners would dispute his need sighting lack of resources but the patient in Kenya has a constitutional right of right to emergency medical treatment as well as not to be discriminated on the basis of having other medical complication overriding any discriminatory hospital policy.

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References See Lawrence O. Gostin, Securing Health or Just Health Care? The Effect of the Health Care System on the Health of America, 39 ST. LOUIS U. L.J. 7 (1994), and Lawrence O. Gostin, The Right to Health: A Right to the Highest Attainable Standard of Health, 31 HASTINGS CENTER REPORT 29-10 (2001). Constitution of the World Health Organization (2006), Right to health by Melik zden WHO Constitution, preamble, par. 1, 2, adopted by the International Health Conference (New York), 19-22 July 1946: http://www.yale.edu/lawweb/avalon/decade/decad051.htm. The right of everyone to the enjoyment of the highest attainable standard of physical and Mental health: Report of the Special Rapporteur, Paul Hunt, submitted in accordance with Commission resolution 2002/31, 13 Feb. 2003, E/CN.4/2003/58, par. 39:http://www.unhchr.ch/Huridocda/Huridoca.nsf. Bioethics by Justin Oakley, Monash University, Australia The International Library of Essays In Public and Professional Ethics Miola, J. (2007) Medical Ethics and Medical Law (Hart).

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