Right to health through litigation? Can court enforced health rights improve health policy and priority- setting in poor countries? Chr. Michelsen Institute: Siri Gloppen; Roberto Gargarella; Ottar Mæstad; Bruce Wilson University of Bergen, Faculty of Medicine: Ole Frithjof Norheim With Harvard Law School, Human Rights Program, USA Centre for Applied Legal Studies, University of the Witwatersrand, South Africa Ain o Salish Kendra (ASK), Bangladesh Raquel Dodge, Ministério Público, Brazil and Harvard Law School Mark Goodale, George Mason University The aim and relevance of the project This multidisciplinary project aims to systematically investigate whether litigation can make health policies and -systems in poor countries more equitable by forcing policy- makers and administrators to take seriously their human rights obligations. A majority of the world’s governments are obliged through international treaties or national constitutions, or both, to respect, protect, promote and fulfill the human right to health. In most cases, this has not been an enforceable legal right. However, cases regarding the right to health care are increasingly brought before the courts. In a number of low- and middle-income countries – first in Latin America, later in Africa and Asia, court decisions have granted access to certain forms of medical treatment. 1 These are decisions with potentially great implications for how health sector resources are prioritized and allocated, but so far there is little systematic knowledge of the actual effect of such cases on health policy formation, implementation and spending. Do they have a significant effect in practice? And, if so, do they contribute to more – or less – justice in health service delivery? The project aims to contribute to filling this gap. To know more about consequences of health rights litigation under different circumstances is important from the perspective of health sector reform. Both because of its constructive potential – the possibility of developing and facilitating health litigation as an instrument for health policy reform – but also for ‘defensive purposes’. Health litigation already takes place, and increasingly so, in poor countries. It has implications for policy and spending. This may be positive from the perspective of justice in health care, but it could also represent a threat to systematic priority setting and equity, and raises difficult ethical issues. 1 A study of litigation for access to essential medicines found such cases in at least twelve low- and middle-income countries. (Hogerzeil HV et al. (2006) “Is access to essential medicines as part of the fulfillment of the right to health enforceable through the courts?” Lancet. Jul 22; 368 (9532):305-11.) For an analysis of the increase in health litigation in the US, see W.E. Pamet and R.A. Danard (2000), ”The New Public Health Litigation”, Annual Review of Public Health, 21, 437-54. "Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services". (Article 25.1 of the Universal Declaration of Human Rights,1948) “[States parties] recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". (International Covenant on Economic, Social and Cultural Rights of 1966)