Is access to essential medicines as part of the fulfilment of the right to health enforceable through the courts?

Abstract

Background: Most countries in the world have become States parties to one or more international human rights treaties, thus creating an obligation by the State to its people towards the realisation of the right to health, which includes access to essential medicines. But whether such access is enforceable in practice is unknown.

Methods: We did a systematic search to identify completed court cases in low-income and middle-income countries in which individuals or groups had claimed access to essential medicines with reference to the right to health in general, or to specific human rights treaties ratified by the government. We identified and analysed 71 court cases from 12 countries in which access to essential medicines was claimed with reference to the right to health.

Findings: In 59 cases, access to essential medicines as part of the fulfilment of the right to health could indeed be enforced through the courts, with most coming from Central and Latin America. Success was mainly linked to constitutional provisions on the right to health, supported by the human rights treaties. Other success factors were a link between the right to health and the right to life, and support by public-interest non-government organisations. Individual cases have generated entitlements across a population group, the right to health was not restricted by limitations in social security coverage, and government policies have successfully been challenged in court.

Interpretation: Skilful litigation can help to ensure that governments fulfil their constitutional and international treaty obligations. Such assurances are especially valuable in countries in which social security systems are still being developed. However, redress mechanisms through the courts should be used as a last resort. Rather, policymakers should ensure that human rights standards guide their health policies and programmes from the outset.