Social Structures
Author: Ollie Bartlett, Assistant Professor of Law, Assisting Living and Learning (ALL) Institute, School of Law and Criminology, Maynooth University
The world was clearly inadequately prepared to fight Covid-19. An important factor in this was the inadequacy of public health law frameworks at international, regional and national level. Political attention quickly turned to the creation of a new pandemic treaty and the revision of supranational rules concerning cross-border health threats, comparatively little attention has been placed upon the role that the right to health should have played in shaping Covid-19 policy, or what role it should play in the future development of public health policy.
I have written on this question in the Irish context, and concluded that the debate begun in 2019 on the need for a right to health in the Irish Constitution is worth returning to. A constitutional right to health would support clearer and more proportionate public health decision-making, and may facilitate more direct challenges to government policies that have unacceptable or inappropriate consequences for health outcomes.
This second possibility is particularly important for vulnerable or marginalised people. People who are homeless, who are suffering addiction, who are imprisoned, who have a disability, or who are vulnerable in another way suffer disproportionately poor health outcomes, and should therefore be a priority for public health work. However, vulnerable and marginalised people systematically suffer worse health outcomes and struggle the most to access the health services they require, while experiencing greater barriers in accessing justice for health outcomes. During the Covid-19 pandemic in particular, restrictions imposed to protect populations from infectious disease had a disproportionately negative impact upon other health and well-being outcomes for vulnerable or marginalised people.
Intervention of some kind is clearly required to enable vulnerable and marginalised people to enjoy better and more equitable health outcomes, both during health emergencies and outside of them. A justiciable right to health, combined with an accessible and affordable judicial mechanism, as well as support from advocacy groups, could provide a means of countering the health inequalities suffered by vulnerable or marginalised people. Research has already begun to address this possibility in the context of, for example, people with disabilities, LBGT people, and prisoners.
It is clear that disproportionate and unfair restrictions on a person’s opportunities to pursue their highest level of health, even in service of other public health goals, are breaches of the right to health expressed in the International Covenant of Economic and Social Rights (ICESCR). The right to health of certain people such as persons with disabilities or children are given particular protection by the ICESCR right to health, and the right is also included in the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child. However, since there is no international judicial mechanism to adjudicate breaches of the right to health, states must incorporate it into their constitutions if it is to be of any practical use.
Ireland does not have a constitutional right to health, and a proposal made in 2019 to amend the Constitution accordingly proved controversial and stalled upon its introduction to the Dáil. The Irish government was reluctant to constitutionalise a right to health on grounds that government control over resource allocation and social policy prioritisation will be transferred to judges. These are common arguments against a constitutional right to health, and are not without merit, even though there are good arguments that such a wholesale shift in the separation of powers would not materialise in Ireland.
However, the Covid-19 pandemic has fundamentally shifted the parameters in this debate. Public health protection is, according to rhetoric employed by the Irish government (and most other governments) throughout the pandemic, the most important of government priorities. Social privileges once considered unassailable can clearly now be swiftly removed by governments with frightening ease in the name of public health protection, with devastating adverse consequences. In this new context, the ability for judges to alter government health policy decisions no longer seems unpalatable – rather, in some circumstances it appears desirable.
Such a circumstance is the unequal impact of government decision making upon the health outcomes of vulnerable or marginalised people. In Ireland, pandemic restrictions caused particularly severe adverse health outcomes for many of these population groups (for example prisoners, children, and people with addictions). Even before the pandemic there was inequity in the health outcomes and ability to access health services of vulnerable population groups in Ireland. While the Irish government has reasonable concerns to ensure that inserting a right to health into the Irish constitution is done in an appropriate manner, and that potential impacts are thoroughly understood in advance, the impact of a justiciable and accessible right to health in enabling vulnerable and marginalised Irish people to secure fairer health outcomes should surely be seen as desirable.
In fact, this alone should be a key factor in determining whether and how the Irish constitution should contain a right to health. Fundamental rights exist precisely to ensure that governments make policy decisions within the boundaries of what society considers acceptable treatment, and it is the role of the judge to decide whether governments have exceeded those legal limits. It is unacceptable that vulnerable and marginalised people in Ireland suffer inequitable health outcomes, both during health emergencies and outside them, and it is therefore appropriate for judges to have an input into correcting this through the vehicle of a justiciable right to health. This probable impact of a constitutional right to health will not distort the separation of powers – on the contrary, it is a necessary part of a society that values the rule of law and seeks to promote health justice.