- Email: [email protected]
Health impact assessment: The contribution of the right to the highest attainable standard of health
Public Health 123 (2009) 302–305
Contents lists available at ScienceDirect
Public Health journal homepage: www.elsevierhealth.com/journals/pubh
Minisymposium
Health impact assessment: The contribution of the right to the highest attainable standard of health G. MacNaughton a, *, P. Hunt b a b
University of Oxford, UK Human Rights Centre, University of Essex, UK
a r t i c l e i n f o
s u m m a r y
Article history: Received 23 April 2008 Received in revised form 12 July 2008 Accepted 16 September 2008
There are growing demands for governments to carry out human rights impact assessments prior to adopting and implementing policies. This article outlines a preliminary human rights impact assessment methodology, using the right to the highest attainable standard of health as the case study. The authors recommend a mainstreaming approach, which involves integrating human rights into existing impact assessment methodologies. Accordingly, they identify considerations that, from a human rights perspective, governments should incorporate into existing impact assessment methodologies in order to comply with their legal obligations to realize human rights. To test the mainstreaming methodology, the authors propose integrating the right to the highest attainable standard of health into health impact assessment. Ó 2008 The Royal Society for Public Health. Published by Elsevier Ltd. All rights reserved.
Keywords: Impact assessment Right to health Human rights International
Human rights and health impact assessment are both concerned with promoting and enhancing the health and wellbeing of individuals, communities and populations. Human rights provide a set of values, an ethical and legal framework, while health impact assessment provides an evidence-based methodology for policy evaluation. Thus, human rights and health impact assessment are complementary, each able to make a valuable contribution to the other through interdisciplinary cooperation.1 To comply with their human rights legal obligations, governments should carry out human rights impact assessments prior to adopting and implementing policies. This article summarizes a larger report in which the authors outline a human rights impact assessment methodology, using the right to the highest attainable standard of health as a case study. The authors recommend a mainstreaming approach, which involves integrating human rights into existing impact assessment methodologies. In this article, the authors propose testing their mainstreaming approach by integrating the right to the highest attainable standard of health into existing health impact assessment. The authors, both human rights practitioners, invite public health professionals and health impact assessment practitioners to engage in this interdisciplinary endeavour.2
* Corresponding author. 9 Rewley Road, Oxford OX1 2RA, UK. Tel.: þ44 (0)1865 205 156. E-mail address: [email protected] (G. MacNaughton).
The right to the highest attainable standard of health (Box 1) The right to the highest attainable standard of health is enshrined in numerous national constitutions,3 the Constitution of the World Health Organization,4 the Declaration of Alma-Ata5 and numerous international human rights treaties. Every country in the world has ratified at least one international human rights treaty that includes the right to health. The International Covenant on Economic, Social and Cultural Rights contains the most widely applicable provision on this fundamental human right.6 It states that countries that are party to the Covenant ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ 7 The Covenant elaborates further that these countries must take steps, for example, to reduce infant mortality, improve environmental health, prevent epidemics and assure medical services to all.7
Box 1: What is the right to the highest attainable standard of health? The right to health is the right to enjoy a variety of goods, facilities and services that are necessary to realize the highest attainable standard of health. The right to health includes both health care and the underlying determinants of health, such as clean water, adequate food, safe housing and sanitation, healthy workplaces and environments, and access to health information and education. At the heart of the right to health lies an effective and integrated health system, encompassing health care and the underlying determinants of health, responsive to national and local priorities, and accessible to all. Based on Annex 2 of the UNESCO Report.24
0033-3506/$ – see front matter Ó 2008 The Royal Society for Public Health. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.puhe.2008.09.002
G. MacNaughton, P. Hunt / Public Health 123 (2009) 302–305
In 2000, the United Nations Committee on Economic, Social and Cultural Rights adopted General Comment 14, explaining the content of the right to health in more detail.8 The Comment states that ‘[t]he right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.’ 9 Further, it clarifies that the right includes both health care and the underlying determinants of health, including access to potable water and adequate sanitation, adequate food and housing, healthy occupational and environmental conditions, access to health education and information, and participation of the population in health-related decision-making.10 Since 2003, the numerous reports of the United Nations Special Rapporteur on the right to the highest attainable standard of health have sought to explore, elaborate and apply the right to health.11 The right to the highest attainable standard of health therefore is not a right to be healthy; the state cannot ensure good health, nor protect against every possible cause of ill health.12 Rather, the state must protect freedoms, such as the right to control decisions about one’s health and body, and ensure entitlements, such as a system of health protection that provides the opportunity for people to enjoy the highest attainable level of health.12 In short, ‘The right to health can be understood as a right to an effective and integrated health system, encompassing health care and the underlying determinants of health, which is responsive to national and local priorities, and accessible to all.’13 The right to health is one of the most complex rights in the lexicon of human rights. In brief, it has four essential elements: availability, accessibility, acceptability and quality (AAAQ). In other words, health care and the underlying determinants of health must be available throughout the country; physically and economically accessible to everyone without discrimination; acceptable in terms of medical ethics and sensitive to cultures, communities and gender; and of good quality. In addition, there are six concepts crucial to the right to health. These are progressive realization, core obligation, equality and non-discrimination, participation, information and accountability. These four essential elements and six crucial features of the right to health are outlined in Box 2. Two features of the right to health are key to understanding the importance of health impact assessment in realizing the right to health. First, the right to health is subject to progressive realization. Many states do not have the resources necessary to fully implement the right to health immediately. Nonetheless, states must take deliberate, concrete and targeted steps towards the full realization of the right to health.14 The corollary to this obligation to progressively realize the right to health is that there is a strong presumption that retrogressive measures in relation to the right to health are not permissible.15 The other key component is that the right to health demands accessible, transparent and effective mechanisms of accountability. Essentially, there are two approaches to vindicating human rights, including the right to health. Traditional methods and techniques include litigating cases in courts, ‘naming and shaming’ in reports and through the media, organizing letter-writing campaigns and creating slogans, all of which address past and continuing human rights violations.16 These traditional methods are fundamentally important to realizing all human rights; victims of human rights violations must have access to effective judicial and other appropriate remedies at both the national and international level.17 In recent years, however, it has become clear that these traditional methods and techniques are not enough. How can a government know if it is progressively realizing the right to health if it does not monitor the right to health in some manner? Consequently, human rights bodies, such as the United Nations Committee on Economic, Social and Cultural Rights, require states
303
Box 2: Content of the right to the highest attainable standard of health AAAQ
Four essential elements of the right to health.
Available
Health goods, facilities and services, including the underlying determinant of health, must be available in sufficient quantity everywhere in the country.
Accessible
Health goods, facilities and services must be accessible to everyone, physically and economically, without discrimination.
Acceptable
Health goods, facilities and services must be acceptable, respectful of medical ethics, including the right to confidentiality, and sensitive to cultures, communities and gender.
Quality
Health goods, facilities and services, including the underlying determinants of health, must be scientifically and medically appropriate and of good quality.
Six concepts
Six concepts crucial to the right to health.
Progressive realization
The right to health is subject to progressive realization, meaning that states must take clear steps towards realizing the right to health for all.
Core obligation
States have a core obligation for the right to health that applies now, requiring, at least, essential primary health care, food, housing and sanitation, and drugs.
Equality and nondiscrimination
The right to health prohibits discrimination in access to or provision of health care and the underlying determinants of health, and requires the state to promote equality.
Participation
The right to health requires participation by the population in all health-related decision-making, requiring health education and transparent policy-making.
Information
Access to health information is also essential to the right to health, and states must protect the right to seek, receive and impart information on health.
Accountability
The right to health demands access to effective and transparent mechanisms for monitoring and accountability, including judicial and policy mechanisms.
Based on Annex 2 of the UNESCO Report.24
to use appropriate indicators and benchmarks to monitor the progressive realization of the right to health and other human rights.18 Over the past few years, specialized agencies, civil society organizations, academics and others have been working to develop these indicators and benchmarks in order to be able to monitor the progressive realization of human rights, and hold governments accountable for their legal obligations under international human rights treaties and national law.19 The human rights community is, in fact, beginning to grapple with a range of new methods and techniques for integrating human rights into policy-making processes. The policy approach demands that we develop ‘new tools’ including indicators and benchmarks, budget analysis and frameworks for deciding how to prioritize among policy options in a manner that is respectful of international human rights obligations. While many of these tools are not new to people in other fields, integrating human rights into these methodologies is new to all of us. Furthermore, to do so will require interdisciplinary collaboration, which should be mutually beneficial as we are all working towards the same goal of improving the health and wellbeing of individuals, communities and populations. In summary, while traditional human rights methods are still vital to promoting and protecting human rights, so too are these ‘new’ policy approaches necessary to monitor progressive realization of the right to health, as well as other human rights, and to hold governments accountable. Human rights impact assessment In this context, there are growing demands for governments to carry out human rights impact assessments prior to adopting and
304
G. MacNaughton, P. Hunt / Public Health 123 (2009) 302–305
implementing new policies, programmes and projects. Human rights bodies, such as the United Nations Committee on the Rights of the Child, require states to carry out human rights impact assessments to ensure that children’s rights, including the right to health, are respected in legislation and in policy development and delivery at all levels of government.20 The United Nations Committee on Economic, Social and Cultural Rights has also recommended to states that human rights impact assessment, like environmental impact assessment, be made an integral part of the policy-making process.21 To date, however, relatively little work has been undertaken to develop methodologies and tools to help governments undertake human rights impact assessments. In his initial report to the United Nations Commission on Human Rights in 2003, the United Nations Special Rapporteur on the right to the highest attainable standard of health (2002–2008), one of the authors of this article, explained that he wished to examine impact assessments and the right to health.22 In response, the Commission specifically requested that the Special Rapporteur ‘pursue his analysis of. health impact assessments’.23 In 2006, he received a small research grant from UNESCO to carry out this research. The authors of this article then wrote a report on impact assessments, poverty and the right to the highest attainable standard of health (the ‘UNESCO report’).24 The purpose of the project was to contribute to the development of a human rights impact assessment methodology, with a particular focus on the right to health. The report is over 60 pages long and includes four detailed annexes. This article serves as a brief introduction to the full report. Human rights impact assessment is the process of predicting the potential consequences of a proposed policy, programme or project on the enjoyment of human rights. The objective of the assessment is to inform decision makers and the people likely to be affected so that they can improve the proposal to reduce potential negative effects and increase positive effects. Human rights impact assessment is a relatively recent concept. However, other forms of impact assessment, such as health, environmental and social impact assessments, are now well established and undertaken routinely in many countries to evaluate proposed policies, programmes and projects.25 Similarly, such initiatives, prior to being adopted and implemented, should be assessed for their impact on human rights. The UNESCO report reviews and then draws key criteria from three pioneering human rights impact assessment initiatives: (1) the Norwegian Agency for Development Cooperation’s ‘Handbook in human rights assessment’,26 (2) Rights and Democracy’s ‘Initiative on human rights impact assessment’27 and (3) the Humanist Committee for Human Rights’ ‘Health rights of women assessment instrument’.28 The report focuses specifically on the obligation of governments to undertake impact assessments in order to comply with their obligation to progressively realize human rights. Accordingly, it proposes a methodology specifically suited to assessments of governmental policies, programmes and projects.29 Importantly, the methodology is intended to assess proposed initiatives; it does not consider impact evaluations for initiatives that have already been implemented. It is recognized that developing such a methodology is a complicated undertaking, which will require more work and discussion, and comments on the study are welcomed. In designing a methodology for impact assessments, there are at least two distinct approaches. The first approach is to develop a self-standing methodology for human rights impact assessments, just as has been done for health, environmental and social impact assessments. The other approach is to develop a methodology for integrating human rights into other existing types of impact assessments. The report proposes the second approach, consistent with a policy of mainstreaming human rights into all government processes. The integration of human rights into existing impact
assessments will require interdisciplinary collaboration between human rights professionals, experts in various types of impact assessment and others. The study contributes to this process by providing some human rights considerations and frameworks, and by outlining a methodology. The report presents a methodology in two parts. The first part sets out seven general principles for performing a human rightsbased impact assessment (Box 3). These are: (1) use an explicit human rights framework; (2) aim for progressive realization of human rights; (3) promote equality and non-discrimination in process and policy; (4) ensure meaningful participation by all stakeholders; (5) provide information and protect the right to express ideas freely; (6) establish mechanisms to hold the state accountable; and (7) recognize the interdependence of all human rights. In the case study on the right to health, the explicit human rights framework is based on the content of the right to health. Aiming for the progressive realization of human rights involves, for example, providing stakeholders with information on the right to health, and engaging them in participatory policy-making on policies that may affect their right to health. Promoting equality and non-discrimination at all stages of the impact assessment process, as well as in the data collection and analysis, requires paying particular attention to vulnerable and marginalized people and their health. Ensuring meaningful participation by all stakeholders requires providing all with information, opportunities to be heard, and ability to influence decision-making. Providing information to all stakeholders means disseminating information on the impact assessment process and on the proposed policy, as well as protecting the rights of all to seek, receive and impart health-related information. Holding the state accountable requires establishing mechanisms to ensure that the assessment process respects human rights generally, and the right to health specifically, and informing all stakeholders of these mechanisms. Finally, while focusing on particular human rights, in this case the right to health, it is important to recognize that all human rights are interdependent. The second part of the methodology proposes six steps for integrating the right to health, as a starting point for integrating all human rights, into existing impact assessments. The six steps are: (1) perform a preliminary check on the proposed policy to determine whether or not a full-scale right-to-health impact assessment is necessary; (2) prepare an assessment plan and distribute information on the policy and the plan to all stakeholders; (3) collect information on potential right-to-health impacts of the proposed policy; (4) prepare a draft report comparing the potential impacts with the state’s legal obligations arising from the right to health; (5) distribute the draft report and engage stakeholders in evaluating the options; and (6) prepare the final report detailing the final decision, the rationale for the choices made and a framework for implementation and evaluation (Box 4). The final section of the report proposes several follow-up activities. While he was Special Rapporteur, Paul Hunt promoted, the study during his country missions, and the authors have presented it at some workshops and conferences. Subject to further
Box 3: Seven principles of human-rights-based impact assessment 1. Use an explicit human rights framework 2. Aim for progressive realization of human rights 3. Promote equality and non-discrimination in process and policy 4. Ensure meaningful participation by all stakeholders 5. Provide information and protect the right to freely express ideas 6. Establish mechanisms to hold the state accountable 7. Recognize the interdependence of all human rights Based on Annex 2 of the UNESCO Report.24
G. MacNaughton, P. Hunt / Public Health 123 (2009) 302–305
Ethical approval
Box 4: Assessment plan Step no. Step 1
Step 2
Step 3
Activity
Objective
Preliminary check
To consider whether the proposed policy may have any impacts on the right to health that would indicate a need for a full-scale rights-based impact assessment. To prepare an assessment plan of action and timetable for the research team and the public to follow, and against which the state may be held accountable. To collect information, data and views on the potential right-tohealth impacts of the proposed policy from a variety of sources, including the views of all stakeholders. To compare the information collected in Step 3 on the potential impacts of the proposed policy to the state’s legal obligations for the right to health determined in Step 1 and then prepare a draft report. To distribute the draft report with results and recommendations and engage all stakeholders in evaluating the proposed policy, options, alternatives, mitigating measures, modifications and reparations. To adopt a policy, explain how the decision was reached, provide a right-based rationale for the policy choices made, and establish a mechanism for implementation and evaluation.
Assessment plan
Information collection
Step 4
Rights analysis
Step 5
Debate options
Step 6
Decision and evaluation
305
Based on Annex 2 of the UNESCO Report.24
funding, it would also be helpful to present and distribute the report more widely for discussion. Additionally, further work is required to determine whether mainstreaming human rights, such as the right to health, into other existing impact assessments is feasible, including case studies with different types of impact assessments. In this regard, integrating the right to health into health impact assessment is an obvious choice for such a case study. The practical tools, such as checklists, interview guidelines and charts for connecting impacts to human rights obligations, drafts of which are found in the report, also need further development. Finally, there is a need to encourage governments to follow human-rights-based approaches to impact assessment and policy-making, and to encourage health professionals, impact assessment professionals and human rights experts to collaborate in the effort to carry them out. Conclusion Human rights impact assessments are an aid to equitable, inclusive, robust and sustainable policy-making. They bring a set of values to impact assessment methodologies. They are one way of ensuring that the right to health – especially of marginalized groups, including the poor – is given due weight in all national and international policy-making processes. From the right-to-health perspective, an impact assessment methodology is a key feature of a health system. Without such a methodology, how will a government know whether or not its proposed policies, programmes and projects are on target to progressively realise the right to the highest attainable standard of health, as required by international human rights law?
None sought. Funding Grant from UNESCO (Ref. 4500026308) titled: Impact Assessments: A Tool for Measuring the Impact of Policies on Poverty and Economic, Social and Cultural rights to Heallth as a Case Study. Competing interests None declared. References 1. Scott-Samuel A, O’Keefe E. Health impact assessment, human rights and global public policy: a critical appraisal. Bull World Health Organ 2007;85:212–7. 2. Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. UN Doc A/HRC/4/28, 17 January 2007, Para. 39–47. 3. Kinney ED, Clark BA. Provisions for health and health care in the constitutions of the countries of the world. Cornell Int Law J 2004;37:285. 4. Preamble to the Constitution of the World Health Organization (1946) states: ‘The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.’ 5. Declaration of Alma-Ata, International Conference on Primary Health Care, USSR, 6–12 September 1979, Para. I. 6. As of 26 September 2008, there are 159 state parties to this international human rights treaty. 7. International Covenant on Economic, Social and Cultural Rights 1966, Article 12. This provision provides the full formulation of the right. As a short hand, we use either ‘the right to the highest attainable standard of health’ or ‘the right to health’. 8. This Committee is responsible for monitoring state compliance with the International Covenant on Economic, Social and Cultural Rights. 9. General Comment 14, Para. 9. 10. General Comment 14, Para. 11. 11. For the Special Rapporteur’s thematic and country reports, presentations, press releases etc., see the website of the Right to Health Unit at the University of Essex. Available from: http://www2.essex.ac.uk/human_rights_centre/rth/. 12. General Comment 14, Para. 8. 13. Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. UN Doc E/CN.4/2006/48, 3 March 2006, Para. 4. 14. General Comment 14, Para. 30–31. 15. General Comment 14, Para. 32. 16. Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. UN Doc A/HRC/4/28, 17 January 2007, Para. 25. 17. General Comment 14, Para. 59. 18. General Comment 14, Para. 57–58. 19. For example, Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. UN Doc No E/CN.4/2006/48, 3 March 2006. 20. Committee on the Rights of the Child, General Comment 5, Para. 45. 21. Conclusions and recommendations, United Kingdom of Great Britain and Northern Ireland, UN Doc E/C.12/1/Add.19, 1997. 22. UN Doc E/CN.4/2003/58, 13 February 2003, Para. 82–85. 23. United Nations Commission on Human Rights resolution 2003/28, Para. 16. 24. Hunt P, MacNaughton G. Impact assessments, poverty and human rights: a case study using the right to the highest attainable standard of health. UNESCO; 2006. The full report is available on the website of the World Health Organization, Health and Human Rights Working Paper Series, Paper No. 6 http://www.who. int/hhr/Series_6_Impact%20Assessments_Hunt_MacNaughton1.pdf; and at Essex University, Human Rights Centre, Right to Health Unit http://www2. essex.ac.uk/human_rights_centre/rth/projects.shtm. 25. UNESCO. Abolishing poverty through the international human rights framework: towards an integrated strategy for the social and human sciences. Consultation in Bergen, Norway 5–6 June 2003. Available from: http://www. crop.org/publications/files/report/CROP_UNESCO_consultation_report.pdf. 26. Norwegian Agency for Development Cooperation. Handbook in human rights assessment: state obligations, awareness & empowerment. 2001. 27. Rights and Democracy. Human rights impact assessments for foreign investment projects. 2007. 28. Humanist Committee for Human Rights (now Aim for Human Rights). Health rights of women assessment instrument. 2006. 29. Some human rights assessments focus on assessing the activities of nongovernmental actors. See, for example, a recent United Nations study on impact assessments and business. UN Doc A/HRC/4/74.
Contents lists available at ScienceDirect
Public Health journal homepage: www.elsevierhealth.com/journals/pubh
Minisymposium
Health impact assessment: The contribution of the right to the highest attainable standard of health G. MacNaughton a, *, P. Hunt b a b
University of Oxford, UK Human Rights Centre, University of Essex, UK
a r t i c l e i n f o
s u m m a r y
Article history: Received 23 April 2008 Received in revised form 12 July 2008 Accepted 16 September 2008
There are growing demands for governments to carry out human rights impact assessments prior to adopting and implementing policies. This article outlines a preliminary human rights impact assessment methodology, using the right to the highest attainable standard of health as the case study. The authors recommend a mainstreaming approach, which involves integrating human rights into existing impact assessment methodologies. Accordingly, they identify considerations that, from a human rights perspective, governments should incorporate into existing impact assessment methodologies in order to comply with their legal obligations to realize human rights. To test the mainstreaming methodology, the authors propose integrating the right to the highest attainable standard of health into health impact assessment. Ó 2008 The Royal Society for Public Health. Published by Elsevier Ltd. All rights reserved.
Keywords: Impact assessment Right to health Human rights International
Human rights and health impact assessment are both concerned with promoting and enhancing the health and wellbeing of individuals, communities and populations. Human rights provide a set of values, an ethical and legal framework, while health impact assessment provides an evidence-based methodology for policy evaluation. Thus, human rights and health impact assessment are complementary, each able to make a valuable contribution to the other through interdisciplinary cooperation.1 To comply with their human rights legal obligations, governments should carry out human rights impact assessments prior to adopting and implementing policies. This article summarizes a larger report in which the authors outline a human rights impact assessment methodology, using the right to the highest attainable standard of health as a case study. The authors recommend a mainstreaming approach, which involves integrating human rights into existing impact assessment methodologies. In this article, the authors propose testing their mainstreaming approach by integrating the right to the highest attainable standard of health into existing health impact assessment. The authors, both human rights practitioners, invite public health professionals and health impact assessment practitioners to engage in this interdisciplinary endeavour.2
* Corresponding author. 9 Rewley Road, Oxford OX1 2RA, UK. Tel.: þ44 (0)1865 205 156. E-mail address: [email protected] (G. MacNaughton).
The right to the highest attainable standard of health (Box 1) The right to the highest attainable standard of health is enshrined in numerous national constitutions,3 the Constitution of the World Health Organization,4 the Declaration of Alma-Ata5 and numerous international human rights treaties. Every country in the world has ratified at least one international human rights treaty that includes the right to health. The International Covenant on Economic, Social and Cultural Rights contains the most widely applicable provision on this fundamental human right.6 It states that countries that are party to the Covenant ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.’ 7 The Covenant elaborates further that these countries must take steps, for example, to reduce infant mortality, improve environmental health, prevent epidemics and assure medical services to all.7
Box 1: What is the right to the highest attainable standard of health? The right to health is the right to enjoy a variety of goods, facilities and services that are necessary to realize the highest attainable standard of health. The right to health includes both health care and the underlying determinants of health, such as clean water, adequate food, safe housing and sanitation, healthy workplaces and environments, and access to health information and education. At the heart of the right to health lies an effective and integrated health system, encompassing health care and the underlying determinants of health, responsive to national and local priorities, and accessible to all. Based on Annex 2 of the UNESCO Report.24
0033-3506/$ – see front matter Ó 2008 The Royal Society for Public Health. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.puhe.2008.09.002
G. MacNaughton, P. Hunt / Public Health 123 (2009) 302–305
In 2000, the United Nations Committee on Economic, Social and Cultural Rights adopted General Comment 14, explaining the content of the right to health in more detail.8 The Comment states that ‘[t]he right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.’ 9 Further, it clarifies that the right includes both health care and the underlying determinants of health, including access to potable water and adequate sanitation, adequate food and housing, healthy occupational and environmental conditions, access to health education and information, and participation of the population in health-related decision-making.10 Since 2003, the numerous reports of the United Nations Special Rapporteur on the right to the highest attainable standard of health have sought to explore, elaborate and apply the right to health.11 The right to the highest attainable standard of health therefore is not a right to be healthy; the state cannot ensure good health, nor protect against every possible cause of ill health.12 Rather, the state must protect freedoms, such as the right to control decisions about one’s health and body, and ensure entitlements, such as a system of health protection that provides the opportunity for people to enjoy the highest attainable level of health.12 In short, ‘The right to health can be understood as a right to an effective and integrated health system, encompassing health care and the underlying determinants of health, which is responsive to national and local priorities, and accessible to all.’13 The right to health is one of the most complex rights in the lexicon of human rights. In brief, it has four essential elements: availability, accessibility, acceptability and quality (AAAQ). In other words, health care and the underlying determinants of health must be available throughout the country; physically and economically accessible to everyone without discrimination; acceptable in terms of medical ethics and sensitive to cultures, communities and gender; and of good quality. In addition, there are six concepts crucial to the right to health. These are progressive realization, core obligation, equality and non-discrimination, participation, information and accountability. These four essential elements and six crucial features of the right to health are outlined in Box 2. Two features of the right to health are key to understanding the importance of health impact assessment in realizing the right to health. First, the right to health is subject to progressive realization. Many states do not have the resources necessary to fully implement the right to health immediately. Nonetheless, states must take deliberate, concrete and targeted steps towards the full realization of the right to health.14 The corollary to this obligation to progressively realize the right to health is that there is a strong presumption that retrogressive measures in relation to the right to health are not permissible.15 The other key component is that the right to health demands accessible, transparent and effective mechanisms of accountability. Essentially, there are two approaches to vindicating human rights, including the right to health. Traditional methods and techniques include litigating cases in courts, ‘naming and shaming’ in reports and through the media, organizing letter-writing campaigns and creating slogans, all of which address past and continuing human rights violations.16 These traditional methods are fundamentally important to realizing all human rights; victims of human rights violations must have access to effective judicial and other appropriate remedies at both the national and international level.17 In recent years, however, it has become clear that these traditional methods and techniques are not enough. How can a government know if it is progressively realizing the right to health if it does not monitor the right to health in some manner? Consequently, human rights bodies, such as the United Nations Committee on Economic, Social and Cultural Rights, require states
303
Box 2: Content of the right to the highest attainable standard of health AAAQ
Four essential elements of the right to health.
Available
Health goods, facilities and services, including the underlying determinant of health, must be available in sufficient quantity everywhere in the country.
Accessible
Health goods, facilities and services must be accessible to everyone, physically and economically, without discrimination.
Acceptable
Health goods, facilities and services must be acceptable, respectful of medical ethics, including the right to confidentiality, and sensitive to cultures, communities and gender.
Quality
Health goods, facilities and services, including the underlying determinants of health, must be scientifically and medically appropriate and of good quality.
Six concepts
Six concepts crucial to the right to health.
Progressive realization
The right to health is subject to progressive realization, meaning that states must take clear steps towards realizing the right to health for all.
Core obligation
States have a core obligation for the right to health that applies now, requiring, at least, essential primary health care, food, housing and sanitation, and drugs.
Equality and nondiscrimination
The right to health prohibits discrimination in access to or provision of health care and the underlying determinants of health, and requires the state to promote equality.
Participation
The right to health requires participation by the population in all health-related decision-making, requiring health education and transparent policy-making.
Information
Access to health information is also essential to the right to health, and states must protect the right to seek, receive and impart information on health.
Accountability
The right to health demands access to effective and transparent mechanisms for monitoring and accountability, including judicial and policy mechanisms.
Based on Annex 2 of the UNESCO Report.24
to use appropriate indicators and benchmarks to monitor the progressive realization of the right to health and other human rights.18 Over the past few years, specialized agencies, civil society organizations, academics and others have been working to develop these indicators and benchmarks in order to be able to monitor the progressive realization of human rights, and hold governments accountable for their legal obligations under international human rights treaties and national law.19 The human rights community is, in fact, beginning to grapple with a range of new methods and techniques for integrating human rights into policy-making processes. The policy approach demands that we develop ‘new tools’ including indicators and benchmarks, budget analysis and frameworks for deciding how to prioritize among policy options in a manner that is respectful of international human rights obligations. While many of these tools are not new to people in other fields, integrating human rights into these methodologies is new to all of us. Furthermore, to do so will require interdisciplinary collaboration, which should be mutually beneficial as we are all working towards the same goal of improving the health and wellbeing of individuals, communities and populations. In summary, while traditional human rights methods are still vital to promoting and protecting human rights, so too are these ‘new’ policy approaches necessary to monitor progressive realization of the right to health, as well as other human rights, and to hold governments accountable. Human rights impact assessment In this context, there are growing demands for governments to carry out human rights impact assessments prior to adopting and
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implementing new policies, programmes and projects. Human rights bodies, such as the United Nations Committee on the Rights of the Child, require states to carry out human rights impact assessments to ensure that children’s rights, including the right to health, are respected in legislation and in policy development and delivery at all levels of government.20 The United Nations Committee on Economic, Social and Cultural Rights has also recommended to states that human rights impact assessment, like environmental impact assessment, be made an integral part of the policy-making process.21 To date, however, relatively little work has been undertaken to develop methodologies and tools to help governments undertake human rights impact assessments. In his initial report to the United Nations Commission on Human Rights in 2003, the United Nations Special Rapporteur on the right to the highest attainable standard of health (2002–2008), one of the authors of this article, explained that he wished to examine impact assessments and the right to health.22 In response, the Commission specifically requested that the Special Rapporteur ‘pursue his analysis of. health impact assessments’.23 In 2006, he received a small research grant from UNESCO to carry out this research. The authors of this article then wrote a report on impact assessments, poverty and the right to the highest attainable standard of health (the ‘UNESCO report’).24 The purpose of the project was to contribute to the development of a human rights impact assessment methodology, with a particular focus on the right to health. The report is over 60 pages long and includes four detailed annexes. This article serves as a brief introduction to the full report. Human rights impact assessment is the process of predicting the potential consequences of a proposed policy, programme or project on the enjoyment of human rights. The objective of the assessment is to inform decision makers and the people likely to be affected so that they can improve the proposal to reduce potential negative effects and increase positive effects. Human rights impact assessment is a relatively recent concept. However, other forms of impact assessment, such as health, environmental and social impact assessments, are now well established and undertaken routinely in many countries to evaluate proposed policies, programmes and projects.25 Similarly, such initiatives, prior to being adopted and implemented, should be assessed for their impact on human rights. The UNESCO report reviews and then draws key criteria from three pioneering human rights impact assessment initiatives: (1) the Norwegian Agency for Development Cooperation’s ‘Handbook in human rights assessment’,26 (2) Rights and Democracy’s ‘Initiative on human rights impact assessment’27 and (3) the Humanist Committee for Human Rights’ ‘Health rights of women assessment instrument’.28 The report focuses specifically on the obligation of governments to undertake impact assessments in order to comply with their obligation to progressively realize human rights. Accordingly, it proposes a methodology specifically suited to assessments of governmental policies, programmes and projects.29 Importantly, the methodology is intended to assess proposed initiatives; it does not consider impact evaluations for initiatives that have already been implemented. It is recognized that developing such a methodology is a complicated undertaking, which will require more work and discussion, and comments on the study are welcomed. In designing a methodology for impact assessments, there are at least two distinct approaches. The first approach is to develop a self-standing methodology for human rights impact assessments, just as has been done for health, environmental and social impact assessments. The other approach is to develop a methodology for integrating human rights into other existing types of impact assessments. The report proposes the second approach, consistent with a policy of mainstreaming human rights into all government processes. The integration of human rights into existing impact
assessments will require interdisciplinary collaboration between human rights professionals, experts in various types of impact assessment and others. The study contributes to this process by providing some human rights considerations and frameworks, and by outlining a methodology. The report presents a methodology in two parts. The first part sets out seven general principles for performing a human rightsbased impact assessment (Box 3). These are: (1) use an explicit human rights framework; (2) aim for progressive realization of human rights; (3) promote equality and non-discrimination in process and policy; (4) ensure meaningful participation by all stakeholders; (5) provide information and protect the right to express ideas freely; (6) establish mechanisms to hold the state accountable; and (7) recognize the interdependence of all human rights. In the case study on the right to health, the explicit human rights framework is based on the content of the right to health. Aiming for the progressive realization of human rights involves, for example, providing stakeholders with information on the right to health, and engaging them in participatory policy-making on policies that may affect their right to health. Promoting equality and non-discrimination at all stages of the impact assessment process, as well as in the data collection and analysis, requires paying particular attention to vulnerable and marginalized people and their health. Ensuring meaningful participation by all stakeholders requires providing all with information, opportunities to be heard, and ability to influence decision-making. Providing information to all stakeholders means disseminating information on the impact assessment process and on the proposed policy, as well as protecting the rights of all to seek, receive and impart health-related information. Holding the state accountable requires establishing mechanisms to ensure that the assessment process respects human rights generally, and the right to health specifically, and informing all stakeholders of these mechanisms. Finally, while focusing on particular human rights, in this case the right to health, it is important to recognize that all human rights are interdependent. The second part of the methodology proposes six steps for integrating the right to health, as a starting point for integrating all human rights, into existing impact assessments. The six steps are: (1) perform a preliminary check on the proposed policy to determine whether or not a full-scale right-to-health impact assessment is necessary; (2) prepare an assessment plan and distribute information on the policy and the plan to all stakeholders; (3) collect information on potential right-to-health impacts of the proposed policy; (4) prepare a draft report comparing the potential impacts with the state’s legal obligations arising from the right to health; (5) distribute the draft report and engage stakeholders in evaluating the options; and (6) prepare the final report detailing the final decision, the rationale for the choices made and a framework for implementation and evaluation (Box 4). The final section of the report proposes several follow-up activities. While he was Special Rapporteur, Paul Hunt promoted, the study during his country missions, and the authors have presented it at some workshops and conferences. Subject to further
Box 3: Seven principles of human-rights-based impact assessment 1. Use an explicit human rights framework 2. Aim for progressive realization of human rights 3. Promote equality and non-discrimination in process and policy 4. Ensure meaningful participation by all stakeholders 5. Provide information and protect the right to freely express ideas 6. Establish mechanisms to hold the state accountable 7. Recognize the interdependence of all human rights Based on Annex 2 of the UNESCO Report.24
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Ethical approval
Box 4: Assessment plan Step no. Step 1
Step 2
Step 3
Activity
Objective
Preliminary check
To consider whether the proposed policy may have any impacts on the right to health that would indicate a need for a full-scale rights-based impact assessment. To prepare an assessment plan of action and timetable for the research team and the public to follow, and against which the state may be held accountable. To collect information, data and views on the potential right-tohealth impacts of the proposed policy from a variety of sources, including the views of all stakeholders. To compare the information collected in Step 3 on the potential impacts of the proposed policy to the state’s legal obligations for the right to health determined in Step 1 and then prepare a draft report. To distribute the draft report with results and recommendations and engage all stakeholders in evaluating the proposed policy, options, alternatives, mitigating measures, modifications and reparations. To adopt a policy, explain how the decision was reached, provide a right-based rationale for the policy choices made, and establish a mechanism for implementation and evaluation.
Assessment plan
Information collection
Step 4
Rights analysis
Step 5
Debate options
Step 6
Decision and evaluation
305
Based on Annex 2 of the UNESCO Report.24
funding, it would also be helpful to present and distribute the report more widely for discussion. Additionally, further work is required to determine whether mainstreaming human rights, such as the right to health, into other existing impact assessments is feasible, including case studies with different types of impact assessments. In this regard, integrating the right to health into health impact assessment is an obvious choice for such a case study. The practical tools, such as checklists, interview guidelines and charts for connecting impacts to human rights obligations, drafts of which are found in the report, also need further development. Finally, there is a need to encourage governments to follow human-rights-based approaches to impact assessment and policy-making, and to encourage health professionals, impact assessment professionals and human rights experts to collaborate in the effort to carry them out. Conclusion Human rights impact assessments are an aid to equitable, inclusive, robust and sustainable policy-making. They bring a set of values to impact assessment methodologies. They are one way of ensuring that the right to health – especially of marginalized groups, including the poor – is given due weight in all national and international policy-making processes. From the right-to-health perspective, an impact assessment methodology is a key feature of a health system. Without such a methodology, how will a government know whether or not its proposed policies, programmes and projects are on target to progressively realise the right to the highest attainable standard of health, as required by international human rights law?
None sought. Funding Grant from UNESCO (Ref. 4500026308) titled: Impact Assessments: A Tool for Measuring the Impact of Policies on Poverty and Economic, Social and Cultural rights to Heallth as a Case Study. Competing interests None declared. References 1. Scott-Samuel A, O’Keefe E. Health impact assessment, human rights and global public policy: a critical appraisal. Bull World Health Organ 2007;85:212–7. 2. Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. UN Doc A/HRC/4/28, 17 January 2007, Para. 39–47. 3. Kinney ED, Clark BA. Provisions for health and health care in the constitutions of the countries of the world. Cornell Int Law J 2004;37:285. 4. Preamble to the Constitution of the World Health Organization (1946) states: ‘The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.’ 5. Declaration of Alma-Ata, International Conference on Primary Health Care, USSR, 6–12 September 1979, Para. I. 6. As of 26 September 2008, there are 159 state parties to this international human rights treaty. 7. International Covenant on Economic, Social and Cultural Rights 1966, Article 12. This provision provides the full formulation of the right. As a short hand, we use either ‘the right to the highest attainable standard of health’ or ‘the right to health’. 8. This Committee is responsible for monitoring state compliance with the International Covenant on Economic, Social and Cultural Rights. 9. General Comment 14, Para. 9. 10. General Comment 14, Para. 11. 11. For the Special Rapporteur’s thematic and country reports, presentations, press releases etc., see the website of the Right to Health Unit at the University of Essex. Available from: http://www2.essex.ac.uk/human_rights_centre/rth/. 12. General Comment 14, Para. 8. 13. Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. UN Doc E/CN.4/2006/48, 3 March 2006, Para. 4. 14. General Comment 14, Para. 30–31. 15. General Comment 14, Para. 32. 16. Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. UN Doc A/HRC/4/28, 17 January 2007, Para. 25. 17. General Comment 14, Para. 59. 18. General Comment 14, Para. 57–58. 19. For example, Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of mental and physical health. UN Doc No E/CN.4/2006/48, 3 March 2006. 20. Committee on the Rights of the Child, General Comment 5, Para. 45. 21. Conclusions and recommendations, United Kingdom of Great Britain and Northern Ireland, UN Doc E/C.12/1/Add.19, 1997. 22. UN Doc E/CN.4/2003/58, 13 February 2003, Para. 82–85. 23. United Nations Commission on Human Rights resolution 2003/28, Para. 16. 24. Hunt P, MacNaughton G. Impact assessments, poverty and human rights: a case study using the right to the highest attainable standard of health. UNESCO; 2006. The full report is available on the website of the World Health Organization, Health and Human Rights Working Paper Series, Paper No. 6 http://www.who. int/hhr/Series_6_Impact%20Assessments_Hunt_MacNaughton1.pdf; and at Essex University, Human Rights Centre, Right to Health Unit http://www2. essex.ac.uk/human_rights_centre/rth/projects.shtm. 25. UNESCO. Abolishing poverty through the international human rights framework: towards an integrated strategy for the social and human sciences. Consultation in Bergen, Norway 5–6 June 2003. Available from: http://www. crop.org/publications/files/report/CROP_UNESCO_consultation_report.pdf. 26. Norwegian Agency for Development Cooperation. Handbook in human rights assessment: state obligations, awareness & empowerment. 2001. 27. Rights and Democracy. Human rights impact assessments for foreign investment projects. 2007. 28. Humanist Committee for Human Rights (now Aim for Human Rights). Health rights of women assessment instrument. 2006. 29. Some human rights assessments focus on assessing the activities of nongovernmental actors. See, for example, a recent United Nations study on impact assessments and business. UN Doc A/HRC/4/74.