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XII. Human Rights Standards

The detention of patients who are unable to pay their medical bills at public hospitals in Burundi raises a number of concerns under international human rights law.  This includes the right not to be arbitrarily detained, detained as a debtor or mistreated in detention as protected in the International Covenant on Civil and Political Rights (ICCPR).  The impact of the policy on individuals seeking health care implicates the state’s progressive realization of the right to the highest attainable standard of health under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other human rights instruments.  Burundi became a party to both covenants in 1990.

Detention

The detention of debtors—such as persons who are unable to settle their hospital bill—is unlawful under international human rights law.   Article 9 of the ICCPR provides that everyone has the right to liberty and security of person and “[n]o one shall be subjected to arbitrary arrest or detention.”  Detention is considered arbitrary if it is illegal or if manifestly disproportionate, unjust, discriminatory or unpredictable.²²² 

More specifically, article 11 of the ICCPR states: “No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.” This provision prohibits the deprivation of personal liberty for failure to pay a debt either by a creditor or by the state. States have an obligation to enact laws and other measures to prevent the state and private creditors from limiting the personal liberty of their debtors who cannot fulfill their contracts.²²³

The ICCPR lays out the right to humane treatment in detention. Article 10 states that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. In its General Comment, the Human Rights Committee, the international body of experts that monitors compliance with the ICCPR, has made clear that this article applies to:

[A]ny one deprived of liberty under the laws and authority of the State who is held in prisons, hospitals - particularly psychiatric hospitals - detention camps or correctional institutions or elsewhere. States parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held.²²⁴

Patients who are held in state hospitals come within the protection of article 10.

Health

Health is a fundamental human right enshrined in numerous international human rights instruments, including the Universal Declaration of Human Rights, the ICESCR, the African Charter for Human and People’s Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The ICESCR specifies that everyone has a right “to the enjoyment of the highest attainable standard of physical and mental health.”²²⁵

Because states have different levels of resources, international law does not mandate the kind of health care to be provided, beyond certain minimum standards. The right to health is considered a right of “progressive realization.” By becoming party to the international agreements, a state agrees “to take steps… to the maximum of its available resources” to achieve the full realization of the right to health. States are obliged to create conditions that would assure access to all medical service and medical attention in the event of sickness.²²⁶

The Committee on Economic, Social and Cultural Rights provides examples of what constitutes a failure of a government to fulfill its obligations with respect to the right to health. The examples include failing to adopt or implement a national health policy designed to ensure the right to health for everyone; insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or marginalized, and the failure to reduce infant and maternal mortality rates.²²⁷ 

International law describes essential elements of the right to health (availability, accessibility, acceptability and quality), as well as minimum “core obligations” of governments. The basic elements of this right and the minimum core obligations are described in detail in General Comment No. 14 of the Committee on Economic, Social and Cultural Rights. That General Comment emphasizes the minimum core obligations of a government in terms of health care, which includes, for example, “the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups” and that governments must “ensure equitable distribution of all health facilities, goods, and services.”²²⁸ With regard to economic access, the Committee states:

Health facilities, goods and services must be affordable for all. Payment for health-care services, as well as services related to the underlying determinants of health, has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.²²⁹

In this perspective, the recent decision by the Burundian government to make maternal and child health care free of charge constitutes an important advance in progressively realizing the right to health.

Under international law on the right to health, priority is given to children and women. The ICESCR stipulates that efforts must focus on child and maternal health, that is by taking measures to reduce the stillbirth rate and infant mortality and to provide for the healthy development of the child.²³⁰ The Committee on Economic, Social and Cultural Rights states that ensuring “reproductive, maternal (pre-natal as well as post-natal) and child health care” is of comparable priority to the core obligations. Lowering of maternal mortality is defined as a “major goal” for governments.

Building upon the provisions of the ICESCR, the Convention on the Rights of the Child  has specified the particular rights of children with regards to health, and states that governments must act in the areas of child health and pre-and post-natal health care, in particular primary health care.²³¹ Similarly, the CEDAW defines the right of women to access health care without discrimination and to get “appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”²³²