right to health research paper

• Open access
• Published: 15 March 2022

Respecting, protecting and fulfilling the human right to health

• Zahara Nampewo 1 ,
• Jennifer Heaven Mike 1 &
• Jonathan Wolff 1  

International Journal for Equity in Health volume  21 , Article number:  36 ( 2022 ) Cite this article

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Human rights are best protected, promoted and guaranteed when they can compel binding and enforceability duty. One prominent criticism of category of human rights which includes the human right to health is that it is difficult, to assign the duties that correspond to these rights, because of stark disparity in how the main duty bearers approach their duties.

This paper adopts a doctrinal approach to examine and evaluate the duties to the right to health. The method in this study entails a detailed literature search to systematically evaluate the legal implications, regulations, arguments and policy regarding the nature of the obligation to the right to health. This study also engages with normative and philosophical aspects of human rights.

This paper posits that human rights protect against common, serious, and remediable threats and risks, and ensure that there are remedies from governments and third parties. However, it is difficult to compel duties especially in regard to the right to health. First it is not easy to achieve a uniform standard for duty bearers implied by the words ‘highest attainable physical and mental health.’ Theorists discussed in the paper outline views of what this could mean, from serious to common health concerns. Second, the right to health is not a legally established right in many jurisdictions, making it difficult to enforce. This paper outlines different layers of state and non-state legal duty bearers to enforce the right to health.

The duty to respect, protect, fulfil and even remedy the right to health, will often be meaningless in practice without a clear identification of the necessary duty bearers to enforce them. The law is the starting point for this to not only enshrine this right as a legally enforceable one but also to clearly identify duty bearers. Without this, the human right to health as outlined under international and regional human rights law generates an implausible, or even impossible, profusion of duties. There remains much work still to be done especially on the moral and legal fronts in order to fully guarantee this right.

Trial Registration

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Our work does not report results of a health care intervention on human participants. Registration is therefore not applicable.

Introduction

Health is both a human right in itself and an essential means for the realisation of other human rights. [ 1 , 2 ]. Good health is one of the many aspects of human wellbeing that is necessary for the enjoyment of human rights. Health also plays a pivotal role in empowering people to pursue other activities that will enhance their welfare [ 3 , 4 ]. In this respect, a healthy person is in a better position to practically engage in activities he or she finds useful, improve their living standards, increase their life chances and also enjoy other human rights. As an essential state of wellbeing, health is also a means by which people can undertake social, economic and cultural activities as well partake in civil and political activities, and, as a basic human right, health is an essential, fundamental and indispensable state of wellbeing [ 4 ]. The right to health is, therefore, one of the cornerstones for the enhancement and improvement of overall wellbeing and human development.

The guarantees and articulation of human rights to health are acknowledged in several human rights laws and instruments [ 5 ]. To give proper meaning to the right to health, some parties are tasked with the duty of safeguarding, protecting, guaranteeing and fulfilling and also, providing remedies for any breach of the rights. These duties accrue when states become parties to international treaties. This was reaffirmed by the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms adopted by the United Nations General Assembly in 1998 [ 6 ].

The world's understanding of the action needed to advance human rights is deeply structured by the ‘respect, protect, and fulfil’ framework [ 7 , 8 , 9 , 10 , 11 ]. According to Reeves, it entails duties to: ‘(1) respect rights, that is, avoid harming, or introducing deprivation of concern to, protected interests, (2) protect rights, that is, adequately ensure that others respect rights, and (3) provide , that is, aid those whose protected interests are experiencing remediable setbacks’ [ 12 ]. Here we will also discuss a fourth type of duty, related to the duty to protect, which is to implement through a functioning legal system. Despite the clear delineation, the duty to fulfil the right to health remains an issue across the world which calls into question how the right to health can fulfil its objective. Arguably, there is stark disparity in the ways in which the main duty bearers approach their duties, which reinforces the common argument against economic, social, and cultural rights, including the right to health, that it generates too many, or the wrong type, of duties. Assessing this critique is one of the main aims of this paper.

In the same vein, this paper accepts the view that the human right to health generates a range of obligations on individuals, states, corporations, NGOs and the international community, insofar as each of them have identifiable human rights duties. However, regarding the specific obligations of each party, it is arguable that the state, through its laws and implementation authorities must take the lead in fulfilling the duties necessary to effectively guarantee this right. We present the argument here by looking at both the underlying philosophical questions of the nature of duties, and at how human rights duties are given legal effect, especially in the context of African legal systems.

The paper is divided into four parts. The first part underscores the philosophical and normative argument for establishing human rights and the basis upon which human rights duties are given legal effect,setting the tone for the following arguments in the paper. Within the context of the right to health, the second part interrogates the nature of duties to the right. The third part relies on various jurisprudence to make a case for the implementation and enforcement of the right to health as an imperative obligation of states. The final part concludes with a recommendation for a rightsbased approach to fulfilling the duty to the right to health.

The doctrinal methodology in this research is employed to examine the underlying philosophical questions about the nature of the duties and how the obligations to the right to health are given effect, especially in the context of legal systems. We interrogate this by focusing on the human right to health as one of the cornerstones for the enhancement and improvement of overall social, cultural, economic welfare and human development. The doctrinal approach is ‘a detailed and highly technical commentary upon, and systematic exposition of, the context of legal doctrine’ [ 13 ]. A doctrinal research or ‘black letter’ research involves a systematic and analytical study of legal rules, judicial decisions and authoritative materials in relation to certain issues raised. This methodology further employs a desk review of existing literature that serve an important function of providing a foundation upon which to build the subsequent arguments that are made in this research. This approach essentially allows the researchers to critically analyse the issues, the meanings and implications of human rights and the obligations which underpin them. The main sources of data for this research are international and national human rights instruments and other statutes that make provisions for human rights, and cases and decisions that touch upon the right to health. This research also considers books, scholarly articles, and any other sources relevant to the issues in this paper.

The need for human rights

While looking in detail at mechanisms of implementation of the right to health, it is also worth considering why it is that some moral concerns are regarded as so important that they are elevated to the status of universal human rights, meaning other people, organizations, legal entities etc., then have the assigned duty, sometimes the enforceable assigned duty, to satisfy the requirements of such rights. While there is controversy about the foundations of human rights, it can be agreed that at least one of the main purposes of human rights is to safeguard vulnerable people who are in danger of being neglected or even persecuted unless there is a moral and legal scaffolding to protect their interests. Human rights are needed so that their interests do not recede from view, or their difficulties are not considered merely problems they have brought on themselves. For example, women in prison may be forced to wear handcuffs while giving birth. What is the public response? Some will be horrified, and believe that the human right to dignity is violated, others conclude that the mother herself is to blame as she did something to put her in prison in the first place. The latter opinion tends to be more likely if the woman in question is not a citizen of the country in question, or is a member of a minority. Human rights however force us to take the perspective of the victim. Whatever she has done, she is still entitled to dignity and protection. This can be very uncomfortable for those in power. Indeed, members of governments often are the first to try to undermine human rights discourse, as it is one of the mechanisms used to hold them to account [ 1 ]. Even when the abstract idea of human rights is popular, when they are pursued in particular cases they are often derided or parodied. This is all the more reason why they are needed.

In international law the human right to health makes a relatively subdued appearance in the Universal Declaration of Human Rights (UDHR). Humans are declared to have a right to a standard of living adequate for health, and, insightfully, a right to various other underlying determinants of health, such as food, clothing and housing, as well as medical care [ 14 ]. However, the drafters of the later International Covenant on Economic, Social and Cultural Rights (ICESCR) went much further, declaring a universal right to the highest attainable standard of physical and mental health [ 15 ]. This statement however is a challenge for defenders of the human right to health, foras Onora O’Neill has argued: “ what is to be made of the idea of the ‘highest attainable standard of health’? Consider a low resource environment such as rural India or sub-Saharan Africa. If we mean the globally highest attainable standard, then we are setting a utopian standard. If we mean the locally highest attainable standard are we not setting our target far too low?” [ 16 ]

A related difficulty is pointed out by Joseph Raz, although overall he is much more sympathetic to the human right to health than O’Neill. He points out that the notion of the ‘highest attainable’ standard does not specify whether it is the ‘highest attainable’ or ‘highest attainable, given proper weight to all other considerations, including other moral rights and worth-while goals’ [ 17 ].

Clearly, much work is needed to clearly chart a course for human rights. One way forward may be to accept Henry Shue’s notion that human rights protect against common, serious, and remediable threats [ 11 ] which, in this case, are common, serious, and remediable threats to health. To take them in reverse order, inclusion of remediable threats is obvious at least in terms of the duties it generates; if nothing can be done, and it is not the sort of harm for which compensation is possible, then it doesn’t generate any clear possible duty, apart, perhaps from the duty to research how to meet similar threats in future. It may be argued, however, that a human rights violation may still exist even if nothing can be done. There is a good case for accepting this, as it provides a way of keeping up pressure to look for a remedy. Remediable, therefore, should be understood as remediable or compensable in principle, in part or whole, even if nothing can be done at the moment.

The inclusion of the idea of serious threats, again, is obvious, in order to leave out trivial threats. There may however be some ambiguity here. Does trivial mean low-probability, or low-harm? Some combination of these is likely the best way forward, although how in practice the line is drawn will be a matter of contention. The inclusion of common threats, however, may seem more debatable. Why common? Why not a human right against unusual threats? Arguably the notion of the idea of a threat being common brings out the underlying egalitarianism of human rights doctrine. In most societies members of the elite rarely need to appeal to their human rights, except in cases of deliberate political persecution, if, for example, they are the member of an opposition party. The elite are normally able to protect their own interests again common threats. There will however be groups in society who need assistance to achieve even a basic level of protection, and human rights are designed to support those in such vulnerable positions. Human rights protect against mundane, ordinary risks, not exotic one-off harms [ 18 ].

Despite varying interpretations of these threats, the key notion is that human rights are protections especially for the vulnerable. We resist saying protections for minorities, for there are times when majorities can lack power, and need the protection of human rights. The idea that human rights offer special protection for the vulnerable may however seem to be in tension with the idea that human rights are universal. But, as discussed above, it is precisely because they are universal that human rights can protect minorities. The universality of human rights is a counter to the pattern that can easily be fallen into, when there is, de facto, one law for the rich or powerful and another for the poor or vulnerable. For example, the police and security services may take steps to protect the elite from a common threat of serious theft or assault, but leave the poor to fend for themselves. If there are steps that could be taken to improve the situation, i.e. the threat is, to some degree, remediable, and the threat is serious and common, if only the privileged are protected. this is where human rights claims take root. The vulnerable are ignored, or, even worse, suffer deliberate discrimination, and thereby their rights are violated. The vulnerable do not have access to what should be universal and is enjoyed by the rich. This concept remains true, however large or small the unprotected group is, provided that there is a protected elite.

Within the context of health, the threat of tuberculosis, for example, is common in many countries [ 19 ]. It is serious, and remediable in most cases through prevention or treatment. In many countries those who are rich, or belong to the ruling families, or work for the government, are protected. First, they live in conditions that are less conducive to the spread of infection, and second, have access to high quality treatment. Those outside these charmed circles are far more likely to fall ill, and far less likely to receive appropriate treatment, and thereby have a case that their human right to health has been ignored or violated. Hence, they are not protected from a common, serious, and remediable threat, while others are.

If one compares this with the case of a very rare disease, of equal virulence, that can strike rich or poor, if the rich are treated and the poor are not, there is an argument that the human right to health of the poor is violated. If however, no one is treated, there is much less strength to the argument that there has been a human rights violation. Rather, something very unfortunate and troubling has happened but as there is no pattern as to whom has been neglected it is harder to argue that human rights have been violated.

In this example, the requirement that the threat is common is an imperfect but useful proxy for another idea—that being especially vulnerable to the threat is a consequence of being a member of a vulnerable group. Here human rights should be a protection against this form of double vulnerability. Members of vulnerable groups may well suffer additional risks or threats that the non-vulnerable do not. This scenario is common in health care and has been illustrated by the COVID-19 pandemic where those in the lower socioeconomic strata had greater comorbidities at least in part because of structural inequities, which increased their susceptibility to infection and severe disease [ 20 ]. This is why human rights are needed. If this is correct, it explains why claims from the wealthy that their human rights have been violated so often ring hollow (again outside cases of deliberate political discrimination). In comparison to whom have the wealthy been treated badly? There may be an answer, but it needs spelling out. This also explains why, even though many people claim to be in favour of human rights, they tend to be much less in favour of those people who pursue human rights claims, because those claims are pursued, most likely, by those who are unpopular; refugees, outcasts, prisoners, members of minorities, etc. [ 21 ].

Human rights duty holders

A common argument against economic, social, and cultural rights, which includes the human right to health, is that they generate too many, or the wrong type, of duties. The right to health seems to be a positive right to assistance, and if human rights are universal then it seems they create universal positive obligations. Does this mean that any individual, is a human rights violator if they don’t keep everyone in the world alive and in good health? The same would apply for every other economic, social, or cultural right. Such an overwhelming proliferation of duties seems intolerable, and has been used as a reductio ad absurdum (Latin: “reduction to absurdity”) of economic, social, and cultural rights.

In the current discussion, however, this argument is rightly regarded as a cheap shot, as it fails to differentiate the different types of duties that can be associated with a right. Regarding the right to health, General Comment 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant) expatiates that the right to health, like other rights, generates a tri-partite structure of duties: to respect, protect and fulfil [ 1 ]. It can be argued that the source of this account of duties is, in fact, Henry Shue’s book Basic Rights [ 11 ] as modified by others [ 22 ]. As a way of overcoming what Shue regarded as a misleading and simplistic division of rights into ‘negative’ requiring duties of non-intervention, and ‘positive’ requiring duties of active assistance, Shue pointed out that the rights he was interested in – to liberty, security and subsistence – generate duties to ‘avoid’ certain types of behaviour, to ‘protect’ individuals from violations by others, and to ‘aid’ some individuals in achieving their rights [ 11 ]. These duties do not have to be held by the same party, although often they will be. Even ‘negative’ rights, such as the right to security, require positive action by governments, such as the provision of a police force.

What, then does this mean for the right to health, and in particular, the nature of the duty holder? One way of shortcutting the ‘proliferation of duties’ objection is the suggestion that in the first instance the duty holder in relation to the human right to health is the state, and if the state is unable to deliver, the duty then falls on the international community [ 23 ]. This suggestion could be criticised, perhaps, as an over-generalisation. Apart from the problem of people who are stateless, which can be answered by this approach, it has been suggested that multi-national companies as well as ordinary citizens can also have human rights duties [ 4 ].

Indeed, non-state duty bearers can be divided into the following groups:

Primary legal and care duty-bearers – e.g. parents for children, teachers for students, police for crime suspects, doctors/nurses for patients, employers for employees;

Secondary duty-bearers – e.g. institutions and organizations with immediate jurisdiction over the primary duty-bearers e.g. school principals, community organizations, hospital administrations, etc.;

Tertiary duty-bearers – e.g. institutions and organizations at a higher level / with more remote jurisdiction (NGOs, aid agencies, private sector organizations);

External duty-bearers – e.g. countries, institutions, organizations with no direct involvement e.g. WTO, UN, NGOs, Security Council, EU, African Union etc.

Private individuals, corporations, business entities.

The international community has yet to succinctly outline the nature of the duties that all the above parties will bear towards the right to health. The focus has mainly been on the duty of states. In the same vein, not many academic discussions have focused on how the aforementioned persons and entities can play a role in guaranteeing the right to health, and in particular the duties associated with the rights. Because states sign treaties, they are ultimately the legal duty holders (unless a law specifically identifies any of these non-state actor as having legal duty), however, one cannot discount the role of non-state actors in promoting, protecting and respecting the right to health, as exemplified by the debate on the commercial determinants of health [ 24 ].

Buttressing the categorisation of duty bearers as mentioned above, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) [ 1 ] in Para 42 stipulates that although States parties are ultimately accountable for compliance with human rights, all members of society—individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector—have responsibilities regarding the realization of the right to health. With regards to the core obligations, the Committee para 45 emphasized that ‘[…] it is particularly incumbent on States parties and other actors in a position to assist, to provide “international assistance and cooperation, especially economic and technical” which enable developing countries to fulfil their core and other obligations.’ Noticeably, the Comment does not expound on the nature of the non-state entities’ obligation in the exact terms as that of states. States are left with the discretion on how these non-state entities discharge their human right obligations. The Comment however, states that the State should provide an environment which facilitates the discharge of their responsibilities (Para 42).

The human rights responsibility of international assistance and cooperation in health is also gaining significant attention, and has become more urgent during the COVID 19 pandemic. This has often been analysed through the lens of high- and low- income states, and multilateral and bilateral trade agreements [ 25 ]. The General Comment No 14 on the Right to Health cited above [ 1 ] lays the foundation for an international commitment to the right to health, outside one’s own state. On the basis of their international obligations in relation to human rights, States are enjoined to respect the enjoyment of the right to health in other countries (Para 39). The Committee also clarified that states have a duty to prevent the violation of the right by third parties in other countries if they are able to influence these third parties through legal and political means, in accordance with the Charter of the United Nations and applicable international law (Para 39). Specifically, states should facilitate access to essential health facilities, goods and services in other countries, wherever possible, and provide the necessary aid when required’ within the context of available resources at their disposal.

Of particular note are the duties of corporations, businesses and third parties. Do third persons or non-state actors and corporations have a moral, or even a legally binding, duty in respect of the right to health? It has been suggested that they are obligated to respect and contribute to promoting human rights [ 26 ]. Accordingly, within the scope of their business operations, business enterprises and corporations, and third party service providers should respect, protect, fulfil and support the human rights of everyone [ 21 ]. Multi-national companies are often accused of being human rights violators, for example through be exploitative or dangerous work conditions, severe pollution, complicity in theft, corruption, or money laundering [ 27 ].

In this manner, the UN Norms for corporations recognized the responsibilities of corporations and business enterprises to respect, promote and secure human rights. The UN Norms for Corporations and Businesses further indicates that states have a general duty to ensure that corporations and business enterprises respect and promote human rights [ 28 ]. Likewise, state parties are required to prevent violations of human rights, including the right to health, by third parties, organisations and enterprises operating within the rights granted by states [ 10 ]. The issue remains, how corporations and third parties be made to contribute to the human right to health? Another question in this respect is whether and how states, as principal duty bearers, can legally compel third parties or corporations to protect and promote human right. Moreover, what kind of duty(s) are they expected to undertake? Specifically, can they protect, respect and guarantee the right to health? If so, is the standard same as that of States? On a smaller scale, ordinary individuals are sometimes accused of human rights abuses. Although not all abuse of rights is abuse of human rights, it is all too easy to slip from ordinary cases of rights abuse to human rights abuse. It seems plausible therefore that multi-nationals and citizens can have human rights duties. Does this, then, put them on a par with states in terms of their duties? And does this return us to the problem of proliferation?

Here the distinction between duties to respect, protect, and fulfil becomes relevant. It can be conceded that entities beyond the state can have duties to respect the human right to health. This essentially means not engaging in behaviour that threatens the health of others. Although it may seem an absurd to claim that an individual’s badly polluting car fails to respect another’s right to health, a whole fleet of badly polluting taxi cabs dominating a neighbourhood, begins to enter the realm of potential human rights claims. Non-state actors can therefore non-problematically be considered to have duties to respect the human right to health.

The claims that non-state actors have such duties to protect and fulfil the right to health however are less clear and may be less direct. The duty to protect is, in the first instance, a duty to create effective institutions to provide a reasonable guarantee of health. The duty to protect, generally, in the first instance is a call to put effective institutions in place. This would be expected this to fall on the government, although as a stop-gap international organisations such as the United Nations or the WHO can be required to step in. Organisations act through individuals who are officials within those organisations, and there are corporations and individuals who are influential within their community who can input into this right. Individuals can therefore protect the right to health bypromoting access to health care and health related services provided by third parties, refusing harmful social or traditional practices such as female genital mutilation, and enhancing information on health. This may also include the role of individuals and corporations to challenge legislation that does not promote the human right to health, including discriminatory legislation.

Indeed, the African Charter on Human and Peoples Rights (African Charter) envisages the responsibilities of individuals in achieving human rights in Chapter II [ 29 ]. Accordingly, Articles 27, 28 and 29 exhort a duty on individuals towards their families, society, state and communities. This duty includes the responsibility to respect the rights of others, preserve and strengthen social and national solidarity. Additionally, the African Children’s Charter under Article 31 imposes a range of duties on children [ 30 ]. Thus individuals can, through their concerted actions, promote the right to health of others. In sum, individuals and corporations can have human rights duties to protect, but those duties will often be different in content to those of the state and international organizations.

Finally, the duty to fulfil often requires the provision of services. This duty often gives rise to the proliferation objection [ 31 ]. If every individual has a human right to health, then there will be obligations to fulfil that right in terms of provision of directed services. But on whom do those duties fall? If a person in failing health can call on every other individual for direct assistance, then the proliferation objection hits hard. It is too demanding to make individuals responsible for providing whatever it takes to attempt to bring everyone else back to health. But rather than reject the human right to health on this basis, this requires understanding of the division of labour in human rights duties. As discussed above, it does not seem problematic to say that individuals have a duty to respect the human right to health, which means not engaging in action that creates serious health threats to others, and even to assist in protection of the health of others, in some cases. But the duty to fulfil seems to need concerted, sustained action, and the default position is that these duties fall on the state.

Breakey [ 32 ] introduces another challenge with regard to duties as outlined in General Comment 14 regarding realizing legal accountability for those to whom duties are assigned. Legal accountability means that an authority may compel compliance with the duty, or punish those who do not perform it [ 33 ]. Rights theories prize legal accountability for two reasons. First, making duty-bearers legally accountable for failing in their duties increases the sense in which rights can be guaranteed to the right-holders – that is, the likelihood that the right will be fulfilled, and for right-holders to be able to rely on this fact. However, this does not come with any guarantees. Second, legal accountability authorises an (arguably) appropriate retributive response to the profound moral wrongfulness of violating others' rights. At best, however, these considerations only require that some of the duties based on the right must possess legal accountability. With respect to guarantees, coercive avenues may be just one part of a range of strategies employed to guarantee rights. Legal accountability, at best, merely expresses a state's commitment to produce a result, which is not at all the same thing as producing that result [ 32 ].

It is also important to note that the obligations of states under the directive of international assistance are not easy to achieve. For instance, whist the UN Charter [ 34 ] in Article 1(3) talks of international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, this is wishful thinking and is hard to enforce. When states fail to take part in joint action in co-operation with the Organization for the achievement of human rights they can barely be brought to task in accounting for this which further complicates the discussion on duties [ 35 ].

Duty of the state to the right to health

Most scholars and case decisions agree that the duties of the right to health sit squarely on the shoulders of the state who should ensure the fair provision of the facilities, services and products necessary to promote and safeguard the right to health, through minimum core obligations [ 36 ]. In Purohit and Another v The Gambia [ 37 ] the African Commission held that The Gambia fell short of satisfying the requirements of Articles 16 and 18(4) of the African Charter in guaranteeing the enjoyment of the right to health which is crucial to the realisation of other fundamental rights and freedoms. The African Charter has also played an important role in imposing a human rights responsibility on the Nigerian government to respect the right to health and provide medical care to its citizens. In Media Rights Agenda and Others v Nigeria [ 38 ], the Commission took the view that the denial of an incarcerated suspect’s access to medical care while his health was deteriorating is a clear violation of the right to health under Article 16 of the Charter.

The Costa Rican Supreme Court in Mr William García Álvarez v Caja Costarricense de Seguro [ 39 ] also ruled in favour of the plaintiff, an HIV-positive person who was refused antiretroviral treatment by the social security institution. The plaintiffs argued that the treatments were expensive in the private sector and so refusal to provide them by the institution and inaccessibility was a violation of the right to life and health [ 39 ]. The judge, in the ruling in favour of the plaintiff, decided that:

If the right to life is especially protected in each modern State and with the right to health, any economic criteria that pretends to deny the exercise of those rights, has to be of second importance […] without right to life, all the remaining rights would be useless [ 39 ].

The jurisprudence of South Africa’s Constitutional court has broken new grounds on the obligation of the state to the right to health. In the South African cases of Treatment Action Campaign and others v Minister of Health and others and subsequent appeal to the Constitutional Court ( Minister of Health and others v Treatment Action Campaign and others) [ 13 , 40 ], the court took the time to consider the legal obligation of the state to enforce socio-economic rights and stressed that the state is under a constitutional duty to take all necessary and reasonable actions to comply with the provision of the right to health.

The Indian Supreme Court has also made notable pronouncement and paved the way for the enforcement of the right on the right to health. In Samity v State of Bengal [ 41 ], for instance, access to timely healthcare necessary to preserve life was upheld by the Indian Supreme Court. Deciding on the basis of the right to life, the court held that the right includes an obligation to provide access to medical treatments to preserve human life as a ‘constitutional obligation of the state to provide adequate medical services to the people.’ (Paragraphs 9, 15–16). Notably, the court held that this duty on the state is irrespective of financial and resource constraints. The Supreme Court stated this as follows:

It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. (Para 16).

Similarly, in Poltoratskiy v Ukraine [ 42 ] the European Commission of Human Rights (ECHR) also took the view that ‘lack of resources cannot in principle justify prison conditions which are so poor as to reach the threshold of treatment contrary to Article 3 of the Convention.’ (Para 148).

Despite the judicial affirmation of a duty to the right to health, one question however, remains unanswered: What happens then if the state is unable to act? Within human rights law the notion of ‘progressive realisation’ is established, allowing states to act within their resources, making progressive, concrete steps to achieve full realisation [ 43 ]. In many cases they may call on the international community for assistance, but one can also look in the other direction at individuals and corporations within the state. Where a state lacks financial resources it can perhaps draw on other resources that can only be offered by corporations and individuals, such as skills, commitment, education and so on, in order to ensure that the right to health is as fully realized as it can be without discrimination of any kind. The notion of progressive realization within available resources must not be viewed as an excuse to defeat or deny economic, social and cultural rights including the right to health, but as an opportunity to expand the scope of duty bearers in order to ensure maximum realization of the right to health.

Furthermore, the duty to protect human rights, it can be argued [ 44 , 45 ] entails the responsibility to avoid and mitigate any adverse human rights impact that non-state entities such as pharmaceutical companies and their business activities may cause or contribute to, and is linked to their operations, products or services [ 26 ]. Positively, pharmaceutical companies can support the state to fulfil, respect and protect the right to health by providing the means for the realisation of the right to health [ 46 ]. Through their pharmaceutical R&D and production undertakings, the drugs they produce can facilitate the availability of drugs for the realisation of the right to health. It is further argued, however, that their contribution to the human right to health goes beyond providing the facilities and goods (medicines) necessary for the enjoyment of this right. This responsibility extends to refraining from any act or policy that will obstruct access to affordable and available medicines, given that their business and marketing practices could limit access to medicines.

The UN’s Interpretive Guide on ‘The corporate responsibility to respect human rights’ emphasises in this regard that ‘[f]or pharmaceutical companies, the right to health will be particularly salient’ [ 47 ]. However, whether they actually owe this responsibility as an enforceable legal duty or mere corporate social responsibility, and how to measure the responsibility of non-state entities and individual companies in this regard may vary considerably, depending on where they operate and whether national laws impose this duty on them. Identifying the duties and role of non-state actions to the right to health is one thing, ensuring that they actually play this role is another. The state, as the primary duty bearer, can put into place domestic measures and legislation to compel such a duty. It however, waits to be seen how this will play out in practice [ 48 ].

Even where a country is not resource constrained, there are cases where corporations arguably have obligations to fulfil human rights to health duties. For example, if a university or pharmaceutical company is conducting a large-scale trial, they may then acquire health-related obligations that go beyond the strict confines of their research (for example if they incidentally discover non-related health conditions of participants in their trials [ 49 ].

Digging deeper, and trying to avoid sweeping generalisations, there can be specific obligations to fulfil the human right to health that can also fall on individuals and corporations. For instance, parents have a duty to make their children available for vaccinations, which is a human right for children [ 50 ]. Without these vaccinations, perhaps the children would suffer later violations of their right to health. In another example, in many countries in Sub Saharan Africa, if the respect for and actual duty regarding sexual and reproductive health is not supported by individuals at family and community levels, there is little that the state can do [ 51 ]. This calls for duties beyond the state party. Furthermore, whereas physical health might point towards duties mostly on the state, individuals have a central role to play in ensuring the right to mental health at family and community level. This is a critically important issue, but often overlooked. We still lack the know-how to impact on mental health at scale, and the best place for action is within the family and community.

Finally, even if there is no specific action called upon individuals, citizens are corporate members of the state, and so the state’s responsibility is the citizen’s responsibility. How citizens fulfil their responsibilities is different from the state. Citizens must pay taxes, vote for, or otherwise support, governments that take human rights duties seriously. Citizens must remain vigilant about whether those duties are being followed. The point is that, instead of stumbling over the proliferation of human right to health duties, the distinction between the obligations to respect, protect, and fulfil, and the different roles different individuals and organisations can have in relation to those duties must be understood. Of course, disagreements, disputes and grey areas remain, but these must be recognized and tackled.

Human rights legal implementation

The more concrete issue of how the right to health is implemented and enforced also requires discussion. While many municipal legal systems recognize the right to health explicitly or tacitly, the statutory enforcement of the right to health varies across counties. A cursory survey of the legal provisions indicates that many countries make explicit reference to the right without sharing the value-system of the international community [ 52 ]. As the WHO has observed, the right to health in a constitution that focuses on the duties of the citizens is not the same as the right to health in a traditional liberal constitution where the focus is on the rights of the citizen. [ 53 ] In many national contexts, the disparity between the state’s obligations to civil and political rights and socio-economic and cultural rights is in favour of political rights. The ethos or spirit of constitutions may indicate an intention to safeguard the health of the people but the enforcement mechanism vary on political grounds, with emphasis laid on civil and political rights. Countries such as Botswana, Cameroon, Djibouti, Lesotho and Costa Rica still favour the traditional approach that recognizes civil and political rights as fundamental rights and relegate the economic, social and cultural rights in their constitutions [ 54 ].

In some countries, particularly the sub-Saharan African Region, the right to health, even where it is mentioned in the constitution, is an unenforceable right against the State. African countries such as Malawi, Tanzania, Namibia and Nigeria recognise socio-economic and cultural rights as mere fundamental objectives and directive principles of state policy to be implemented progressively. The constitutions of Comoros, Mauritania, Cameroon and several other Francophone African Countries make a broad commitment to human rights in the preamble without specifically entrenching them in the Bill of rights [ 55 ]. In Nigeria for example, although the necessity of directing state policies towards facilitating access to medical and healthcare facilities to further the material wellbeing of Nigerians is mentioned in the Constitution, the status of this provision as a non-justiciable entitlement robs the provisions of a judicial recourse to compel government compliance, action and enforcement. Many authors have argued in this regard that there is no right to health in the Constitution of the country [ 56 , 57 ]. Furthermore, the core international human rights instruments that make succinct provision for the right to health has not been domesticated into the corpus of laws in the country. This is not to say there is no right to health in Nigeria, as the African Charter which makes provisions for the right to health forms a part of the laws of the country, as upheld by African Commission on Human and People’s Rights judicial [ 58 ]. However, because the Constitution simply states that the provisions on health are Fundamental Objectives and Directive Principles, which the Nigerian state aims to achieve for all its citizens, the Constitution is unable to compel a binding duty on the government to safeguard and guarantee the rights of its citizens. As mentioned earlier, human rights carry with them obligations for the state to respect, protect, fulfil and furthermore to implement. This duty includes ensuring that third parties, policies and laws do not interfere with the enjoyment of the right. As justiciable human rights, the provisions on health would also avail Nigerians with the opportunity and legal recourse to measure the performance of the government, authorities and third parties who infringe on those rights. However, the failure to guarantee the provisions on health as human rights under the Constitution means that the provisions may not make a full meaningful impact on all Nigerians, especially since the provisions are non-justiciable. This is also the case in countries that do not make the right to health a constitutional justiciable right.

In the same vein, there is no right to health, per se, in the Indian constitution. Indeed, the Fundamental Objectives and Directives in Chapter II of the Nigerian Constitution (including the provision on health and medical care) is borrowed from the Indian Constitution (1948) and was first included in the 1979 Nigerian Constitution. Nonetheless, the Supreme Court of India has interpreted the Constitution’s article on the protection of life and personal liberty to include access to health care into the article’s scope [ 59 ]. In the aforementioned case of Samity v State of Bengal , for instance, the court proactively ruled that access to timely healthcare is an imperative means to preserving life and pursuing other human development objectives [ 60 ]. In that case, Samity fell off a train and suffered serious head injuries. The necessary health facilities (including vacant bed) to treat him were not available in six hospitals. The Court held that the failure on the part of the government to provide timely medical care to a person in need of such treatment results in a violation of his right to life guaranteed in Article 21 of the Indian Constitution, citing a ‘constitutional obligation of the state to provide adequate medical services to the people.’ This progressive judicial interpretation of health as an intrinsic aspect of human rights is worth emulation in countries that do not explicitly recognize the right to health in their constitutions and laws. In the Sri Lankan Constitution, health care is included only as an obligation of the provincial councils, and not as a right [ 53 ]. However, health care as well as education are free in principle and contribute to consistently improving indicators in these areas. The constitutions of Bhutan, Bangladesh, and Myanmar do not recognize the right to health as a fundamental right, nevertheless, compel the state to provide health services or in some cases, more indirectly to improve public health. Importantly, although the right to health may not been included as a positive right in some constitutions, other national legislation guaranteeing this right might be in place, or access to healthcare may be treated de facto as a right.

Thus as it stands, the provision on healthcare in some countries is a mere political objective and goal, devoid of a concrete redress mechanism against the duty bearers to guarantee the enjoyment of these important provisions on health in countries that do not attach legal enforcement mechanisms to them. This leads academicians and legal specialists to criticize the categorization of the obligations to which the provision on healthcare in the non-enforceable parts of many Constitutions as a ‘toothless bulldog’ that barks but cannot bite because there are no concrete enforcement mechanisms attached to the health objective [ 56 ]. Legal guarantees and corresponding legal enforcement mechanisms are central to the right to health, as with other human rights. Human Rights are best enjoyed where they are secured. Moreover, a claim can only become a right if vested with prior recognition by law; otherwise it cannot be legitimately enforced as a right. Devoid of legal enforcement, healthcare provisions may be equated to mere exhortative appeals or abstract rights, lacking compelling enforcement or even sanctions upon breach.

Ultimately, however, the constitutions are the supreme laws of countries. In the case of any contradiction or inconsistency between any other national laws and provisions of the constitution, the stipulation in the constitution prevails. It is therefore imperative that the right to health’ or ‘right to healthcare’ is specifically mentioned as a justiciable fundamental right in national constitutions to compel a binding duty and guarantee the obligations and duties to respect, protect and fulfil human rights.

For several reasons, the inclusion of the right to health in national constitutions is central to the type of duties accompanying the right and the means of enforcing them. A rights-based approach to health signals a paradigm shift to using human rights as pervasive human rhetoric to mandate effective actions by the state and other duty bearers. When citizens become aware of human rights as a pervasive value of a democratic society and assume their role as rights holders, they will take actions to hold the states accountable to improve health service delivery. Human Rights Impacts Assessments (HRIAS) can be used to assess the direct and indirect impacts of government and its authorities’ actions which affect the right to health. Government ministers and officials may be reluctant to be held accountable by a ‘right to health’ obligation because human rights would then hold the government to account.

The courts can adopt a rights-based approach to interpret and enforce matters bordering on the rights to health, life and the dignity of the human person. In recent times, a number of national court decisions in have provided clear reference points on the state’s obligation to the right to health, within the context of the state’s obligation to respect and promote human rights. In the aforementioned cases of South African cases of Treatment Action Campaign and others v Minister of Health and others and Minister of Health and others v Treatment Action Campaign and others [ 13 , 40 ] the court decided in favour of the plaintiffs and stated that the restriction which affected the availability and accessibility of essential medicines for women and children violates the Constitutional human right provisions and constituted an ‘unjustifiable barrier to progressive realization of the right to health care.’ In this regard, the court decided that, while it is practically impossible to give everyone access to a ‘care service immediately’ (according to the minimum core obligation), the state is under a duty to reasonably provide access to socio-economic rights on a progressive basis. Although the delineation of this reasonable standard was not clearly defined by the court, it stated that that government is required to undertake all reasonable measures to eliminate or reduce the condition and ‘large areas of severe deprivation that afflict our society.’ Notably, the Court relied on international treaties (ICECSR) to interpret the state’s obligation to adopt ‘reasonable measures’ to implement the right to health. The court was able to adopt this progressive interpretation of the right because the right to health is recognized as a constitutional right in South Africa. Thus if the right to health is incorporated in the constitution as a fundamental right (positive right), it can be enforced in a court of law, rather than leaving it as a hortatory health development objective of the state.

Gains have also been made in linking the right to health with other rights, most especially the right to life. In the Kenyan case of Patricia Asero and Ors v AG [ 42 ], the court declared that the rights to life, dignity and health are “inextricably bound” and that without health, the right to life would be in jeopardy. In this case, the Petitioners were citizens of Kenya living with HIV. They claimed that the anti-counterfeiting legislation restricted their access to affordable, essential medicines, including generic medicines for HIV and AIDS, and therefore violated their fundamental rights to life, dignity and health under the constitution of Kenya. The Court noted that General Comment 14 affirmed the right to health as embracing a wide range of socio-economic factors that promote conditions in which people can lead a healthy life.” Additionally, in Centre for Health Human Rights & Development and 3 Ors v Attorney General [ 61 ] the petitioners challenged the Ugandan Government’s failure to provide basic maternal health services as a violation of both the right to health as well as the right to life. The supreme court acknowledged that access to proper maternal health care and emergency obstetric care is fundamental to ensuring women’s constitutional rights to health and life. Such a judgment makes judicial enforcement of economic social rights such as on the right to health almost as good as having it directly provided for under a country’s constitution, and gives good basis for its justiciability and legal enforceability.

While there may be a duty to respect, protect, fulfil and even remedy the right to health, these duties will often be meaningless in practice without a clear identification of the necessary duty bearers to enforce them. The law is the starting point for this. However, the law can also be used as a double edged sword, both to facilitate as well as deter enjoyment of this right. There are legal challenges where for instance the legal profession and judiciary are inept in living up to the foresightedness and innovativeness required in applying international human rights law to expound on, and enforce state duties. Legal concepts such as the ‘Political Question’ have sometimes been applied [ 62 ]. The Political question doctrine holds that certain issues should not be decided by courts because their resolution is committed to another branch of government and that those issues are not capable, for one reason or another, of judicial resolution. Its purpose is to distinguish the role of the judiciary from those of the Legislature and the Executive, preventing the former from encroaching on either of the latter. Under this rule, courts may choose to dismiss the cases even if they have jurisdiction over them. In such instances, the courts fail to assertively use their mandate to enforce economic social rights even where they can. This was the case in Centre for Health Human Rights & Development and 3 Ors v Attorney General [ 61 ] where the court acknowledged that the Ugandan government had not allocated enough resources to the health sector and in particular the maternal health care services but was reluctant to determine the questions raised in the petition. It based its decision on the assertion that the court had no power to determine or enforce its jurisdiction on matters that require analysis of government health sector policies as this would be substituting its discretion for that of the executive granted to it by law.

Recognizing the right to health should generate positive health outcomes and promote the realization of health rights [ 63 ]. The duty to respect, protect and fulfil should considers each person as a moral equal although as discussed above, human rights without clear identification of duty bearers have their limitations.

It is clear that while there may be a duty to respect, protect, fulfil and even remedy the right to health, these duties will often be meaningless in practice without a clear identification of the necessary duty bearers to enforce them. The law is the starting point for this to not only enshrine the right to health as a legally enforceable one but also to clearly identify duty bearers. Without this, the human right to health as outlined under international and regional human rights law generates an implausible, or even impossible, profusion of duties. Additionally, sound implementation is a necessary step to concretise the enjoyment of this right. There remains much work still to be done especially on the moral and legal fronts in order to fully guarantee the right to health. The nuances of these debates have become more obvious in the light of the current COVID 19 pandemic. The moral seeds have been planted and the legal fruit needs careful nurturing.

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Acknowledgements

This article was developed following a workshop that was supported by the Brocher Foundation which took place in January 2020 that brought together health academics from various parts of the world to discuss the right to health in Africa. The authors are sincerely grateful for this support without which, this work would have been impossible. We are particularly grateful to Thierry Ngosso of the University of St.Gallen and Valerie Luyckx of the University of Zurich for the organisation of the workshop.

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This work is a joint contribution of three authors; Jennifer Heaven Mike, Jonathan Wolff and Zahara Nampewo who compiled and analysed different aspects of the human right to health and shared experiences of its implementation form different jurisdictions. The author(s) read and approved the final manuscript.

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Dr. Zahara Nampewo is a Ugandan lawyer, academic and human rights practitioner teaching at Makerere University School of Law. She heads the Human Rights and Peace Centre (HURIPEC), a research and advocacy centre of Makerere University in Uganda. She is Managing Editor of the East African Journal on Peace and Human Rights, an international, peer-reviewed, bi-annual scholarly publication of HURIPEC.

Dr. Jennifer Heaven Mike is Assistant Professor of Law, Chair, Department of Public and International Law and Co-Director, Center for Governance, Development and Human Rights, at the American University in Nigeria. Dr. Mike teaches Human Rights Law, Intellectual Property Law and criminal Law.

Dr. Jonathan Wolff is a British philosopher and academic. He is the Alfred Landecker Professor of Values and Public Policy and Governing Body Fellow at Wolfson College at Oxford University. He was formerly Blavatnik Chair in Public Policy at the School, and before that Professor of Philosophy and Dean of the Faculty of Arts and Humanities at University College London.

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Nampewo, Z., Mike, J.H. & Wolff, J. Respecting, protecting and fulfilling the human right to health. Int J Equity Health 21 , 36 (2022). https://doi.org/10.1186/s12939-022-01634-3

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Article Contents

1. introduction, 2. context: human rights-based approaches to development, 3. evolving normative approaches to human rights-based approaches to health, 4. systematic literature review, 5. discussion, 6. conclusion, acknowledgements, conflict of interest, funding statement, human rights-based approaches and the right to health: a systematic literature review.

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David Patterson, Human Rights-based Approaches and the Right to Health: A Systematic Literature Review, Journal of Human Rights Practice , 2024;, huad063, https://doi.org/10.1093/jhuman/huad063

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The term ‘human rights-based approach’ is common in rights and international development literature. Yet there is no single, universally agreed definition of a human rights-based approach, let alone its application to the right to health. This article uses a PRISMA-informed systematic literature review to address the question, ‘What is the current status of the human rights-based approach to health in international law?’ Previous reviews have described how international organizations and development donors have tackled human rights-based approaches to development generally and discussed prominent works on human rights-based approaches to health. However, this is the first review to sample the peer-reviewed literature systematically. The study revealed that authors use the terms ‘human rights’, ‘human rights-based approach’ and ‘right to health’ to import a raft of legal implications, or none at all. Similarly, readers may assign legal meanings to these terms, or none at all. Confusion arises because although these terms often have different meanings for authors and readers from different disciplines, this is not commonly acknowledged, and authors rarely clarify their perspectives. The author concludes that scholars should seek co-authors with human rights law or public health qualifications, as relevant. Most academic institutions research and teach health and law separately; interdisciplinary centres of excellence in health, law and human rights offer an opportunity to overcome these historical obstacles to interdisciplinary dialogue and understanding. The study and its conclusions will be of interest to legal researchers, human rights advocates, public health scholars, and advocates from other disciplines.

This article addresses the question, ‘What is the current status of the human rights-based approach to health in international law?’ The primary audience is human rights scholars and advocates, particularly those engaged in addressing global health challenges. The issues raised will also be of interest to public health scholars and advocates from other disciplines.

The article reviews how the concept of the human rights-based approach to health has been applied in peer-reviewed, published literature in the period 2000–2021. Previous reviews have described how international organizations and development donors have tackled human rights-based approaches to development generally ( Piron and O’Neil 2016 ) and discussed prominent works on human rights-based approaches to health ( Gruskin et al. 2010 ). However, this is the first review to apply the PRISMA (preferred reporting items for systematic reviews and meta-analyses) approach to answer the research question. Consequently, the research revealed many articles by authors writing from a range of disciplinary perspectives other than law.

There is no single, universally agreed definition of a human rights-based approach, let alone its application to the right to health. Authors use the terms ‘human rights’, ‘human rights-based approach’ and ‘right to health’ to import a raft of legal implications, or none at all. Similarly, readers may assign legal meanings to these terms, or none at all. Authors and readers often approach the issues from different disciplinary perspectives. Confusion arises because although these terms often have different meanings for authors and readers from different disciplines, this is not commonly acknowledged, and authors rarely clarify their perspectives. Further, some articles misrepresent the legal foundations of the human rights-based approach to health.

First, this article introduces these issues in the context of human rights-based approaches to development, where the concept of human rights-based approaches to health originated. The article then examines the development of normative statements of human rights-based approaches to health. This analysis is then expanded through a systematic literature review exploring how authors have discussed human rights-based approaches to health since 2000. The methodology, results and limitations of the study are then considered. The article concludes that there is a need for greater awareness of differing disciplinary perspectives when discussing human rights-based approaches to health, and hence the need for greater dialogue between disciplines.

Since the creation of the United Nations in 1945 and the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, the international human rights framework has been extended and consolidated at both UN and regional levels through treaties and their interpretation by UN and regional treaty bodies. In 1986, the UN General Assembly adopted the Declaration on the Right to Development ( United Nations 1986 ). A broad enquiry into human rights-based approaches to development followed.

After the Cold War, increasingly divergent and sometimes inconsistent approaches to development cooperation emerged, including within the UN system. In 1997, UN Secretary-General Kofi Annan asked UN agencies and programmes to mainstream human rights throughout the UN system ( Robinson 2005 : 29). In the early 2000s ambiguity about human rights among development agencies persisted, particularly in the application of human rights-based approaches. Russell (2010) canvassed the views of the staff of international development organizations on the rights-based approaches to the right to water, essential to the right to health. She found that ‘rights-based approaches were associated with vague notions of participation, nondiscrimination, accountability, capacity building, empowerment, and/or access to information. Not uncommonly, any combination and permutation of these principles were seen to constitute a rights-based approach’ ( Russell 2010 : 14).

In 2003, an expert meeting of the United Nations Development Group (UNDG) proposed the following definition of ‘human rights-based approaches to development cooperation’ (UN Common Understanding) ( UN Sustainable Development Group undated-a : 1).

All programmes of development cooperation, policies and technical assistance should further the realization of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments.

Human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process.

Development cooperation contributes to the development of the capacities of ‘duty-bearers’ to meet their obligations and of ‘rights-holders’ to claim their rights.

When the UN Common Understanding is quoted, often only the above three points are cited. However, the statement also proposes and elucidates the following ‘pillars’ of the rights-based approach: universality and inalienability, indivisibility, interdependence and interrelatedness, equality and non-discrimination, participation and inclusion, and accountability and the rule of law. The UN Common Understanding also identifies ‘good programming practices’ and ‘other elements of good programming practices that are also essential under a human rights-based approach’ ( UN Sustainable Development Group undated-a : 3).

The UN Common Understanding has been cited widely by UN agencies and programmes, including the UN Office of the High Commissioner for Human Rights ( UN OHCHR 2006 ), the United Nations Populations Fund ( UNFPA undated ), and reiterated by the UN Sustainable Development Group (formerly the UNDG) ( United Nations 2020 ). However, the UN Common Understanding has not been endorsed by an intergovernmental body, such as the UN Human Rights Council (UNHRC), the UN Economic and Social Council (ECOSOC) or the UN General Assembly.

In 2016, the OECD and the World Bank published an extensive report on donor approaches, experiences, and challenges in integrating human rights into development programmes ( Piron and O’Neil 2016 ). The report cites the UN Common Understanding and notes the challenges of implementing and evaluating human rights-based approaches. The UN Sustainable Development Group published updated guidance on the human rights-based approach to development in 2019.

The Human Rights-Based Approach to Development [HRBA] is a conceptual framework for the process of sustainable development that is normatively based on international human rights standards and principles and operationally directed to promoting and protecting human rights. Under the HRBA, the plans, policies and processes of development are anchored in a system of rights and corresponding obligations established by international law, including all civil, cultural, economic, political and social rights, and the right to development. HRBA requires human rights principles (equality and non-discrimination, participation, accountability) to guide UN development cooperation, and focus on capacity development of both ‘duty-bearers’ to meet their obligations and ‘rights-holders’ to claim their rights ( United Nations 2019 : 13).

The UN Office of the High Commissioner for Human Rights (OHCHR) has also issued guidance on human rights-based approaches to various development challenges, for example on human rights and climate change ( UN OHCHR 2021 : 42–43). A 2022 study of human rights-based approaches in development programmes highlighted their potential for enhancing development practices ( Noh 2022 : 898).

The UDHR states (Article 25) ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family’. The right to health was first codified in 1966 in Article 12 of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), and later in multiple other UN and regional human rights treaties.

In the 1980s a leading proponent of the link between health and human rights was Dr Jonathan Mann, the founder and then Director of the WHO Global Programme on AIDS ( Mann et al. 1994 ). In 1988, the World Health Assembly adopted resolution WHA 41.24 entitled ‘AIDS: Avoidance of discrimination in relation to HIV-infected people and people with AIDS’. This was the first time that the World Health Assembly had drawn attention to the importance of human rights in the context of a health issue.

In 1996, the OHCHR and the newly created Joint United Nations Programme on HIV/AIDS (UNAIDS) held an expert consultation to draft guidelines on the application of UN human rights treaties to the HIV pandemic. The report of the consultation uses the terms ‘rights-based approach’, ‘human rights approach’, and ‘rights-based response’ interchangeably. The report notes that, ‘...a rights-based approach to HIV/AIDS is grounded in concepts of human dignity and equality which can be found in all cultures and traditions … The key human rights principles which are essential to effective State responses to HIV/AIDS are to be found in existing international instruments.’( UNAIDS and OHCHR 2006 : 82).

In 1997 the (then) United Nations Commission on Human Rights (UNCHR) welcomed the report of the consultation on HIV/AIDS and human rights (E/CN.4/1997/33) in resolution 1997/33. The resolution included an annex with 12 guidelines on the application of UN human rights treaties to the HIV pandemic. Although not binding on Member States, the 1997 and subsequent UNCHR (and later, UN Human Rights Council (UNHRC)) resolutions give the guidelines considerable weight and authority. They were published by UNAIDS and OHCHR as the ‘International Guidelines on HIV/AIDS and Human Rights’ in 1998, and later updated and reissued ( UNAIDS and OHCHR 2006 ).

In 2000 the UN Committee on Economic, Social and Cultural Rights (CESCR) issued General Comment 14 on ICESCR Article 12, with a focus on the right to health. The CESCR noted that, ‘(t)he adoption of a human rights-based approach by United Nations specialized agencies, programmes and bodies will greatly facilitate implementation of the right to health’ ( UN Committee on Economic, Social and Cultural Rights 2000 : s64).

In 2002 the World Health Organization published guidance on human rights and health which included a definition of a rights-based approach to health ( World Health Organization 2002 ). The WHO guidance notes the obligations of international cooperation contained in the UN Charter (Articles 55 and 56), the UN Declaration on the Right to Development ( United Nations 1986 ), and the ICESCR (Article 2), yet omits the critical concepts of rights-holders and duty-bearers. As with the UN Common Understanding, the WHO guidance has not been endorsed by the World Health Assembly, the UNHRC, nor any other intergovernmental body.

In 2006, the (then) Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, described a human rights-based approach approvingly as follows.

In recent years, it has become clear that a human rights-based approach to particular issues, such as development, poverty reduction and trade, brings certain valuable perspectives that otherwise tend to be neglected. Very briefly, in general terms a human rights-based approach requires that special attention be given to disadvantaged individuals and communities; it requires the active and informed participation of individuals and communities in policy decisions that affect them; and it requires effective, transparent and accessible monitoring and accountability mechanisms. The combined effect of these—and other features of a human rights-based approach—is to empower disadvantaged individuals and communities ( UN Commission on Human Rights 2006 : s25).

In 2008, OHCHR and WHO issued a joint fact sheet which cited the UN Common Understanding, CESCR General Comment 14, and noted the ‘key elements of a HRBA to health’ ( UN OHCHR and WHO 2008 ). Nonetheless, over time there was a loss of critical content in various formulations of the human rights-based approaches to health. In 2016, Hunt cautioned that the shift in focus from State obligations to protect, respect and fulfil the right to health set out in international treaties to the concept of a ‘human rights-based approach to health’ may also lead to overlooking essential elements of the right to health. These essential elements include the full nature of the concept of progressive realization and responsibilities of international assistance and cooperation ( Hunt 2016 : 113).

The term ‘human rights-based approach’ may indicate that the approach described is grounded in obligations arising from national or international law. It may also describe the activities through which these obligations may be realized. In 2006, Gruskin distinguished three broad categories of activities under the term ‘rights-based approaches to health’: legal, advocacy, and public health practice. Gruskin suggested that the legal category involves legal analysis and action at national and international levels; the advocacy category involves using the language of rights to mobilize public opinion and advocate for action by governments and other institutions of power; and the public health practice category involves applying a human rights framework to the design, implementation and monitoring of programmatic initiatives ( Gruskin 2006 : 7–8).

The human rights approach has also been discussed extensively in the context of preventable maternal mortality and morbidity and under-five child mortality and morbidity. In 2010, an OHCHR report to the UNHRC described the ‘human rights approach’ to maternal mortality and morbidity as follows:

The practical implications of the human rights values of dignity and nondiscrimination result in a set of working principles that form the basis of a human rights approach. The treaty bodies and United Nations experts have clarified the importance of seven such principles: accountability, participation, transparency, empowerment, sustainability, international cooperation and non-discrimination ( UN OHCHR 2010 : s32).

The report provides an extensive description of each of the seven principles as they apply to maternal mortality and morbidity. It was welcomed by the UNHRC (A/UNHRC/RES/15/17) and thus carries the weight and authority of Member States’ endorsement.

In 2012, UNHRC also welcomed an OHCHR report on technical guidance on the application of a human rights-based approach to the reduction of preventable maternal mortality and morbidity (A/UNHRC/RES/21/6). The report was issued as OHCHR Technical Guidance, and notes in the General Principles section that,

A human rights-based approach identifies rights-holders and their entitlements and corresponding duty-bearers and their obligations, and promotes strengthening the capacities of both rights-holders to make their claims and duty-bearers to meet their obligations. These rights and obligations are provided for under international human rights law ( UN OHCHR undated-a : 2).

Notably, the guidance also refers to the concepts of ‘progressive realization’, ‘international assistance and cooperation’ and to ‘availability, accessibility, acceptability and quality’ with regard to health facilities, goods and services ( UN OHCHR undated-a : 4). The CESCR has also provided general guidance on international technical assistance measures in General Comment 2 ( UN Committee on Economic, Social and Cultural Rights 1990a ) and the progressive realization of economic, social and cultural rights in General Comment 3 ( UN Committee on Economic Social and Cultural Rights 1990b ). These concepts are further explored in relation to the right to health in General Comment 14 ( UN Committee on Economic Social and Cultural Rights 2000 ). Following Hunt’s 2006 report, subsequent UN Special Rapporteurs on the right to health have also issued reports which address aspects of the human rights-based approach to health ( UN OHCHR undated-b ).

Although not specifically framed as such, the strong and consistent endorsement for the human rights-based approach to maternal morbidity and mortality provided by the UNHRC also provides guidance with broad application on the content of the human rights-based approach to health ( Yamin 2023 : 168–75).

4.1 Methodology

Human rights legal research has been criticized for lacking attention to methodology ( Coomans et al. 2010 ). Following the typology for interdisciplinary legal research proposed by Taekema and van der Burg, this article is written from a legal doctrinal perspective, grounded in the body of international human rights law and its interpretation by recognized authorities, with insights gained heuristically from public health and other disciplines ( Taekema and van der Burg 2015 : 41).

The methodology for this review is based on the PRISMA (preferred reporting items for systematic reviews and meta-analyses) approach ( Moher et al. 2009 ) and adapted to reflect the field of study (international law rather than biomedical science). The PRISMA approach adopts the definition of a ‘systematic review’ proposed by the Cochrane Collaboration: ‘Systematic reviews seek to collate evidence that fits pre-specified eligibility criteria in order to answer a specific research question. They aim to minimize bias by using explicit, systematic methods documented in advance with a protocol’ ( Cochrane 2021 ). This study thus differs from the literature cited above in that the systematic review identified many articles by authors with non-legal perspectives. The methodology also allowed a limited quantitative assessment of the literature.

4.2 Protocol

The research canvassed all English-language, peer-reviewed articles published between 2000 and 2021 available in full text online through the WorldCat library catalogues. The research identified articles containing the terms [‘rights-based approach’ OR ‘rights based approach’] AND [‘right to health’] in the title, abstract, body of the article, and citations. The search term ‘right to health’ was used instead of ‘health’ because a test run with the latter term identified many articles which did not specifically address the right to health.

The records were then screened for duplicates. Non-substantive items (for example conference abstracts, or items where the search terms only appeared in the references) were discarded. One article was retained because although it only contained the term ‘right to health’ in the references, it was judged relevant as it examines extensively the reluctance by both funders and beneficiaries to adopt rights-based approaches to adequate, clean water (essential to good health) ( Russell 2010 ). Sixty articles were identified for textual analysis (hereinafter ‘the review set’), as listed in Table 1 . Each article was then reviewed and scored according to the questions in Table 2 . If the answer was positive, further textual analysis followed. The quantitative data were recorded in MS Excel. Text with discussion containing the search terms was recorded in MS Word. The search questions, initial quantitative results, and articles in PDF format were uploaded to University of London (UK) EPPI-Reviewer Web (Beta) software. This software offers automated full text searches of PDF files and opportunities for quantitative and qualitative analyses of data sets. The search questions were then run again through EPPI-Reviewer, and discrepancies with the manual search results were cross-checked and corrected.

Articles identified through the systematic literature review—‘the review set’

Question and number (#)/percentage (%) of positive responses (n=60)

4.3 Study limitations

It was not possible to confirm the legal qualifications of the authors. Biographical data for each author were reviewed online, where available, to ascertain whether the author had a stated academic qualification in law or a legal academic affiliation (that is, was associated with a faculty of law or legal academic research institution).

The research only canvassed English language, peer-reviewed articles available in full text online from WorldCat.org. Other databases may contain articles which also meet the search criteria, however the 60 articles identified through WorldCat were judged sufficient to address the research question. Following the guidance for systematic literature reviews in law proposed by Snel and de Moraes (2018) , the review protocol was not independently verified, nor were the articles double scored by independent reviewers ( Snel and Moraes 2018 ).

4.4 Results

The 60 articles identified through the systematic literature review are noted in Table 1 . They are listed chronologically by year and then alphabetically by first author.

The positive responses for each question and the percentage of positive responses in the review set are noted in Table 2 .

5.1 The incorporation problem

Legal research frequently engages with other disciplines and, if the audience is largely legal, concerns about differing disciplinary perspectives are usually not raised. However, if the aim is interdisciplinary dialogue, real difficulties may be anticipated ( Roux 2015 : 55). Discussion of the right to health necessitates engagement with concepts such as ‘health’, ‘public health’, and ‘healthcare’, which have been extensively explored and defined by health experts and authorities. For example, the Preamble of the Constitution of the World Health Organization states, ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’ ( World Health Organization 1946 ). The WHO Constitution also frames ‘the enjoyment of the highest attainable standard of health’ as a fundamental right of every human being. Notably, this affirmation of the right to health occurred two decades before the right was concretized in the ICESCR.

It can be well understood that for many health scholars the right to health remains primarily an ethical concept. In 2007, these challenges were perceptively addressed by Haigh and Haigh (2007) from the perspective of the public health practitioner. They note that while ‘the academic study of rights has traditionally been dominated by lawyers, it is an interdisciplinary concept … [whereby] a more complete understanding requires awareness of concepts and views associated with an array of other disciplines, including politics, economics, social policy, education, sociology, and anthropology’ ( Haigh and Haigh 2007 ). This expansive understanding may also enrich our understanding of rights from the legal perspective, while underscoring the importance of defining our terms.

5.2 How is the term ‘human rights-based approach’ defined and used?

Almost two-thirds of the articles (63 per cent) offer a definition or explanation of the rights-based approach, including by citing other articles where rights-based approaches are discussed. Surprisingly, only 12 per cent of the articles refer to the UN Common Understanding. Nonetheless, over three-quarters of the articles (78 per cent) refer to some of the elements of the rights-based approach described in the UN Common Understanding and other sources, such as non-discrimination, participation, accountability, transparency, ‘rights-holders and duty-bearers’, and by the CESCR, such as the AAAQ framework (noted below).

Over half of the articles (53 per cent) use rights-related terminology other than, or in addition to, ‘rights-based approach’. The most common term is ‘human rights approach’, which appears in 42 per cent of the articles. Other terms used include ‘rights-based analysis’, ‘rights-based frameworks’, ‘human rights law-based framework’, and ‘human rights perspective’.

5.3 Relevance of author legal qualifications

Over two-fifths of the articles (43 per cent) had no author with a legal qualification or legal academic affiliation. This is heartening as it indicates interest outside the legal domain in the contribution of a human rights-based approach to health. However, more than 30 per cent of these articles contained obvious legal errors or omitted relevant legal frameworks or guidance. Two of the articles with a legally qualified author also omitted relevant legal frameworks or guidance (noted further below). Puzzlingly, five of the articles included the term ‘rights-based approach’ in the title or abstract but did not discuss or even mention the term in the body of the text.

It is worth exploring these errors and omissions to better understand these gaps in legal knowledge and their implications. Many articles revealed a weak understanding of the human rights legal framework at national, regional and UN levels. For example, one article simply refers the reader to the Stanford Encyclopedia of Philosophy for information on human rights ( Dresler et al. 2012 ). Another cites WHO guidance that, ‘Understanding health as a human right creates a legal obligation on states’ ( World Health Organization 2017 ), yet only discusses ethical sources of obligation, without reference to obligations in international law:

WHO takes a rights-based approach to health, with a view toward the elimination of health disparities. This approach emphasizes the principles of nondiscrimination, availability, accessibility, acceptability, quality, accountability, and universality [citation omitted]. The rights-based approach is rooted in ethics, which involves understanding, defending, and recommending concepts and standards of right and wrong conduct. This conduct is usually described with reference to what humans should do to benefit society, that is, to do no harm and promote fairness and equality through a rights-based lens ( Sinharoy and Fanzo 2019 : 240).

Two articles incorrectly refer to the Universal Declaration of Human Rights (UDHR) as a ‘treaty’ ( Burkholder et al. 2019 ; van der Eijk et al. 2017 ). Declarations of the UN General Assembly are adopted as resolutions, not treaties, and are not legally binding. However, they carry considerable moral force and serve as a clear indication of the commitments of the international community. For non-lawyers this may seem an unimportant distinction. Yet it is the equivalent in medical terms of confusing a bacterium and a virus—a fundamental error which calls into question the author’s knowledge of the field about which they are writing. The distinction is important: for example, treaties may lead to legal recourse in States which have incorporated them into domestic law, whereas resolutions do not.

One article cites the CESCR General Comment 14 and refers to the ‘AAAAQ’ framework when discussing the elements of availability, accessibility, acceptability, and affordability ( Gianella et al. 2019 : 2, 10, 12). Yet the CESCR refers to ‘AAAQ’ because affordability is regarded as a component of accessibility. One article inaccurately refers to both the legal status of instruments and their titles when stating that, ‘Tanzania has ratified some legal treaties such as the Economic Covenant ; the Women Convention and the universal [sic] Declaration of Human Rights which emphasizes on [sic] the right to health as a fundamental human right’ ( John et al. 2018 ). Although this article addresses maternal health care, the authors make no mention of the extensive guidance from the UNHRC and the OHCHR noted above, nor the relevant treaties of the African Union.

Several articles demonstrate a limited understanding of the ICESCR and its application to health promotion and disease prevention. ICESCR Article 12 describes States’ obligations to address ‘the improvement of all aspects of environmental and industrial hygiene’ (Article 12(2)(b)) and ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’ (Article 12(2)(d)). Yet D’Ambruoso et al. (2008) note in their abstract,

The rights-based approach could identify how and where to improve services. However, there are fundamental and inherent conflicts between the public health tradition (collective and preventative) and the right to health (individualistic and curative). As a result, and in practice, the right to health is likely to be ineffective for public health planning from a human rights perspective ( D’Ambruoso et al. 2008 : 1).

The authors discuss a review by Hogerzeil et al. (2006) on the use of litigation to oblige governments to implement their constitutional and human rights treaty obligations to provide access to essential medicines. D’Ambruoso et al. (2008) observe

'...a fundamental discordance in the human rights and public health traditions … Human rights are concerned with the protection and progressive realisation of the rights of the individual, whereas public health is concerned with the collective provision of health services for societies … The right to health is rooted in the medical model of health and healthcare which is clinical and curative in nature’ ( D’Ambruoso et al. 2008 : 7).

The authors also reference CESCR General Comment 14 yet overlook the CESCR’s clarification of States’ obligations to address preventative (public health) dimensions of the right to health. They imply that human rights frameworks cannot address the allocation of scarce health resources at a population level. Yet Hogerzeil et al. (2006) address these issues squarely, noting, ‘Most public budgets are not infinite and at a certain moment choices have to be made. Progressive implementation of the right to health requires a State to choose which components should be implemented first’ ( Hogerzeil et al. 2006 : 310).

The application of the right to health to public health challenges and the allocation of scarce resources in practice is well-illustrated by the jurisprudence in South Africa, where the Constitution (section 27(1)) entrenches ‘the right to have access to health care services’ Section 27(2) states, ‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights’. In 1998 the South African Constitutional Court recognized the limits of available resources when it refused to compel a provincial health service to offer renal dialysis to a gravely ill patient. Yet in 2002 the same Court ordered the provision of Nevirapine to pregnant women living with HIV to prevent mother to child HIV transmission ( Forman 2008 ). The South African experience demonstrates that Courts can apply a rights-based framework to public health challenges, including regarding the allocation of scarce resources.

Nonetheless, D’Ambruoso et al. (2008) conclude that, ‘In practice … the right to health is likely to fail as a public health planning tool’. Instead, the authors suggest that the right to development, as advanced in the 1986 UN Declaration on the Right to Development, ‘offers an avenue to inform public health planning from a human rights perspective that addresses the limitations of the right to health’ ( D’Ambruoso et al. 2008 : 7) The authors rely extensively on a 2008 article proposing the incorporation of the principles in the Declaration on the Right to Development in soft law, and the adoption of a Framework Convention on Global Health to address these limitations ( Meier and Fox 2008 ). D’Ambruoso et al. (2008) conclude that the rights-based approach ‘could identify how and when to improve [public health] services’, yet also note that, ‘the right to development may provide a means to achieve the ethical obligations of the international community to poorer countries, through legally binding commitments and enforcement where necessary’ ( D’Ambruoso et al. 2008 : 8) The authors overlook the legally binding obligations and accountability mechanisms in the ICESCR.

There is limited acknowledgment of the contribution of regional legal frameworks and soft law guidance. Of the 48 articles which reference an international treaty or legal instrument, only 11 (23 per cent) mention a regional treaty or legal instrument, for example the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, the European Convention on Human Rights, or declarations such as the 2006 African Union Abuja Call for Accelerated Action towards Universal Access to HIV/AIDS, Tuberculosis and Malaria Services in Africa.

5.4 Limited exploration of the human rights framework

Two articles unduly limit their discussion of the international human rights framework, which in turn limits their conclusions regarding rights-based approaches. Both have authors with legal qualifications. Cubillos et al. (2012) reviewed universal health coverage and litigation in Latin American countries without noting regional or international legal frameworks and related litigation. Yet the Inter-American human rights system is a source of legal obligations regarding the right to health in the region and has been used to this effect ( Meier and Ayala 2014 ; Meier and Yamin 2011 ) Following litigation, in 2001, the Inter-American Commission on Human Rights ordered the provision of anti-retroviral treatment to people living with HIV in El Salvador ( Hogerzeil et al. 2006 ; UNAIDS 2006 ).

Similarly, in an extensive textual review of UN treaties, Chawla et al. (2017) intended to go beyond moral obligations to explore support for emergency and essential surgical care and anesthesia (EESCA) in international law. However, they make no reference to the general comments or other interpretative guidance of the relevant UN treaty bodies. The authors note,

To further advocate for improved health by strengthening EESCA, greater political commitment from UN Member States is needed to translate EESCA from a moral responsibility to realization of the universal right to health. It may be useful to leverage language from existing international treaties and employ a human rights-based approach ( Chawla et al. 2017 : 1209).

The authors’ conclusion that, ‘A number of United Nations multilateral treaties support available and equitable emergency care’ ( Chawla et al. 2017 : 1216) would have been greatly strengthened with reference to the authoritative interpretations of the relevant treaties. These include the UN Committee on the Elimination of Discrimination Against Women in General Recommendation No. 24 on Women and Health ( UN Committee on the Elimination of Discrimination Against Women 1999 ) and the CESCR, which addresses emergency obstetric services in General Comment 14 ( UN Committee on Economic, Social and Cultural Rights 2000 ).

5.5 Perceived value of the human rights-based approach

Many authors commented positively on the human rights-based approach, as noted below.

5.5.1 Participation and the engagement of communities

Many articles noted the importance of participation as an element of the rights-based approach, for example in the development of national health plans and emergency care systems. One article noted, ‘The use of a rights-based approach is not only important during the development of emergency care systems, but also for evaluating and improving to [sic] the system. Assessment is essential to ensure that countries are accountable and meet their human rights obligations’. The authors note the importance of ‘involvement of the community’ during such assessments ( Burkholder et al. 2019 : 616). Structured and effective policies for community participation are noted as important for public health, as is ‘the normative importance of participation in realizing a rights-based approach to health’ ( Meier et al. 2012 : 1) One author, notably from the global South, observed,

Probably the most effective and efficient way to bring about the progressive realization of the right to health is through a human rights-based approach to health; an approach that pays particular attention to the principles of participation, accountability, non-discrimination, equity, and recognition of national and international legal provisions of the right to health. It calls for an analysis of the design, implementation, and evaluation of healthcare programmes in a participatory and transparent manner ( Malagala 2009 : 495).

5.5.2 Leave no one behind

The principle ‘leave no one behind’ is now entrenched as one of the six Guiding Principles of the UN Sustainable Development Cooperation Framework ( UN Sustainable Development Group undated-b ). The role of the human rights-based approach to health in assuring access to health services for marginalized and vulnerable populations, who might otherwise be overlooked, is seen as an additional benefit to public health programmes. Hanefeld et al. (2015) discuss the population wide provision of HIV treatment as part of a wider HIV prevention strategy (as antiretroviral therapy also reduces infectiousness) and note that

‘systematic and explicit integration of a rights-based approach to all aspects of such a programme could ensure that no ‘blind-spots’ develop and that the human rights of the entire population are respected and protected. At the same time, focus and attention on rights principles also strengthens such an intervention’ ( Hanefeld et al. 2015 : 124).

5.5.3 Creation of an enabling environment where human rights are more likely to be realized

One article, which references the UN Common Understanding, studied the human rights dimensions of food, health, and care among female adolescents in children’s homes in Uganda. This group was chosen because, ‘a central element of a HRBA is to focus on the most vulnerable groups in society’ ( Vogt et al. 2016 : 4). The authors state they were guided by the human rights principles of non-discrimination, participation, empowerment, and human dignity applied to the adolescents as rightsholders, as well as respect for the rule of law and accountability. Standards were drawn from the ICESCR and the UN Convention on the Rights of the Child, and the General Comments of their respective Committees. The authors note that, ‘Analysing the findings in light of human rights principles can contribute to an understanding of why—or why not—the conditions in children’s homes complied with specific standards for the rights to adequate food, health and care’ ( Vogt et al. 2016 : 12). Most notably, the researchers approached the study on the basis that under both international and Ugandan constitutional law, ‘all Ugandan children have the human rights to adequate food, to the highest attainable standard of physical and mental health, and to the right to active caring practices that go beyond protection’ ( Vogt et al. 2016 : 10).

5.5.4 Mutual reinforcement with other economic and social rights

The application of rights-based approaches to economic and social rights in one area can also reinforce another area. Thus, ‘the contribution of rights-based approaches to food poverty and food insecurity both coincide and overlap with discourses and experiences of those working in the right to health, of which the right to food is both constituent and partner’ ( Dowler and O’Connor 2012 : 50). This observation reflects the affirmation of the 1993 UN World Conference on Human Rights that, ‘All human rights are universal, indivisible and interdependent and interrelated’ ( UN OHCHR undated-c ).

5.5.5 As a framework for technical guidance on implementing health policies and services

Rights-based approaches are also perceived as providing practical guidance in the delivery of health services: ‘Rights-based care provides nurses with the tools to ensure that individuals, populations, and communities are not only getting the best care, but care that reflects humane practices and does not violate their human rights’ ( Ivanov and Oden 2013 : 7). Cook (2013) notes that OHCHR has compiled useful practices of human rights-based approaches to eliminate preventable maternal mortality and morbidity ( UN OHCHR undated-a ; Cook 2013 ). As noted, the endorsement of these approaches by the UNHRC gives them greater weight and authority.

5.5.6 As both process and content principles

The use of human rights principles as providing guidance on both process and content in the implementation of policies and programmes is explored by Szablewska and Kubacki in a discussion of social marketing campaigns conducted in response to States’ public health obligations. They suggest that ‘many dilemmas in identifying the social good in social marketing could be addressed by turning to human rights principles, and, in particular, by following a human rights-based approach’ ( Szablewska and Kubacki 2019 : 871). The authors identify three pairs of principles in the UN Statement of Common Understanding, namely transparency and accountability, equality and nondiscrimination, and participation and inclusion, as ‘process principles.’ The authors suggest that these process principles sit alongside the ‘content principles’ of universality and inalienability, indivisibility and interdependence and interrelatedness ( Szablewska and Kubacki 2019 : 877).

5.5.7 Offers an integrated, legal framework for health which reflects its social determinants

Discussing migrant farmworkers in the USA, Ramos (2018) suggests that the human rights-based approach can offer a framework for addressing the health of a vulnerable population which ‘weaves together the human rights to health, employment, and information, and provides a legal framework that can be operationalized through addressing the social determinants of health, thereby improving not only outcomes, but also processes at a local, state, and national level’ ( Ramos 2018 : 29). The reference to the social determinants of health also grounds the HRBA in the non-medical factors which influence health outcomes. The ‘social determinants of health’ analysis builds on the 2008 report of the WHO Commission on Social Determinants of Health and remains a contemporary public health framework ( World Health Organization undated ).

5.6 Criticisms of human rights-based approaches to health

Several articles express caution about or criticism of human rights-based approaches, including in the context of the right to health. These concerns have evolved over time. In 2010, Gruskin et al. noted scepticism about rights-based approaches to health among UN agencies, major governmental bilateral organizations, and international NGOs active in health. The authors observed that, while the public health community has come to a largely shared perspective on the value of a human rights lens on health, development actors still struggled with how to operationalize a rights-based approach to health ( Gruskin et al. 2010 : 129). In 2011, Meier and Yamin suggested that litigation to advance the right to health (for example regarding access to medicines for HIV and AIDS) may be perceived as ‘distorting governance for public health’ and produce a backlash against the rights-based approach. They advised further research and advocacy to understand the connection between human rights litigation and public health promotion ( Meier and Yamin 2011 : 83–84).

In 2012, Dowler and O’Connor explored rights-based approaches to food poverty in two high income countries as a right to health issue. The authors note ‘wariness among anti-poverty activists, who see rights-based approaches as inaccessible or potentially adversarial, despite the possibilities of reframing familiar issues towards social justice and entitlement [citation omitted]’ ( Dowler and O’Connor 2012 : 6). In 2014, Unnithan and Heitmeyer, discussing the right to health in particular, cautioned that rights may need ‘translation’ to reach communities. They noted that in rural India,

Rights-based approaches to development were far from being uncritically accepted by CSO [civil society organization] actors, whether at community level or operating at higher levels within their organizations … a focus on rights was viewed as inviting confrontation; supporting the marginalized, promoting individual interests; playing down duty and responsibility; enhancing institutional accountability; changing institutional foci and processes; promoting collaboration with private enterprise; conflating safety with efficiency in health service delivery; and as strengthening the role of the state in service delivery. [There is a] … complex interaction between ‘negative’ rights (civil and political rights) and ‘positive rights’ (economic, social and cultural rights, including the right to health) ( Unnithan and Heitmeyer 2014 : 1373–74).

The authors also noted that the different ‘translations’ of rights presented to poor rural communities were themselves subject to the interpretation and self-interest of the CSOs involved. They concluded that ‘such translation work has most traction and moral force when it responds to local exigencies and needs in ways that the universal language of human rights and state development discourse do not acknowledge’ ( Unnithan and Heitmeyer 2014 : 1381). Nonetheless, other authors have commented positively on the role of CSOs in this regard, suggesting that civil society organizations can assist through the ‘vernacularization’ of the international language of human rights ( Strecker et al. 2012 : 339, 341).

Yamin cautions that although human rights-based approaches were an attempt in the 2000s to build bridges of practice fields, ‘the way [they] generally have been designed too often reproduces the epistemic and institutional power structures within each field, rather than exposing and subverting them’ ( Yamin 2019 : 358).

These criticisms deserve careful consideration; however, none is fatal to human rights-based approaches to health, which are evolving in response. Early criticisms expressed by development actors regarding the operationalization of the right to health are in part addressed by the detailed OHCHR guidance on the application of HRBA to maternal mortality and morbidity, and the application of this guidance to other health challenges. By 2016, the UN and several other major multilateral and bilateral development agencies had referenced human rights in their development cooperation frameworks and were developing practical guidance for their application ( Piron and O’Neil 2016 : 92–120). Certainly, the vernacularization of human rights-based approaches is part of the social mobilization for rights; Heywood has described how the social mobilization around access to medication for HIV infection in South Africa was driven by the popularization of human rights concepts among communities of people living with and affected by HIV ( Heywood 2009 ).

Rather than abandoning human rights-based approaches to health, Yamin calls for ‘destabilizing the depoliticized ways of framing the world that stem from disciplinary orthodoxies in medicine and public health’. Yamin observes that the health sciences often operate within neoliberal frameworks, and in increasingly privatized health systems—and these relationships need to be unpacked and challenged ( Yamin 2019 : 358–59). Yamin has since observed that we now have far greater clarity and guidance on many aspects of HRBAs, including from diverse case studies ( Yamin 2023 : 221).

The above criticisms of HRBAs to health largely reflect the findings of this research: differing conceptions held by diverse stakeholders reflect a lack of a common understanding of HRBAs, or even of the legal basis of the right to health in international law.

No discipline can claim sole ownership of the terms ‘human rights’, ‘right to health’ or ‘rights-based approach.’ These terms may be used differently by various stakeholders, including from the legal, health and development domains. Scholars and advocates should therefore be encouraged to state their perspectives and to define their terms. Two decades ago, the (former) UN High Commissioner for Human Rights, Mary Robinson, emphasized that the legal character of the international treaties should be at the heart of a human rights approach ( Robinson 2005 : 38). It would be helpful if authors who intend to ground the terms ‘right to health’ or ‘human rights-based approach to health’ entirely in ethical frameworks were also explicit about this approach.

There is yet no commonly accepted definition of the human rights-based approach to health. The UNHRC has provided an authoritative definition in the context of maternal morbidity and mortality. A statement of more general application from the UNHRC would provide a welcome clarification. In any case, Hunt’s warning remains prescient: merely repackaging the right to health as the human rights-based approach to health risks overlooking key elements of the right to health.

There are some practical steps which may be taken to overcome the challenges in interdisciplinary dialogue about human rights-based approaches to health. More interdisciplinary scholarship can be encouraged. Scholars publishing on the right to health should seek co-authors with human rights law or public health qualifications, as relevant. All the articles in the above review set were peer-reviewed. Thus, it appears that many of these peer-reviewers also lacked an understanding of international human rights law. Perhaps this is not surprising, as peer-reviewers are often selected from among authors’ nominations. Peer-reviewers with complementary expertise should be identified. Unfortunately, most academic institutions research and teach health and law separately. Interdisciplinary centres of excellence in health, law and human rights offer an opportunity to overcome these historical obstacles to interdisciplinary dialogue and understanding.

The author acknowledges with gratitude comments on earlier drafts of this article by Prof. Brigit Toebes and Dr Marlies Hesselman, Faculty of Law, University of Groningen. The comments by the anonymous peer reviewers are also gratefully acknowledged.

None declared.

The author declares that no funding was received in connection with this research.

PhD candidate in the Department of Transboundary Legal Studies, Faculty of Law, University of Groningen, Groningen, Netherlands.

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POLICY AND PRACTICE REVIEWS article

Collision of fundamental human rights and the right to health access during the novel coronavirus pandemic.

• 1 Laboratório de Delineamento de Estudos e de Escrita Científica, Centro Universitário Saúde ABC Faculdade de Medicina do ABC (FMABC), Santo André, Brazil
• 2 Cambridge Health Alliance, Cambridge, MA, United States
• 3 Programa de Pós-Graduação em Ciências Médicas, Faculdade de Medicina da Universidade de São Paulo, São Paulo, Brazil
• 4 School of Medicine, University of Limerick, Limerick, Ireland
• 5 Federal University of Espírito Santo, Vitória, Brazil

Introduction: COVID-19 requires governmental measures to protect healthcare system access for people. In this process, the collision of fundamental rights emerges as a crucial challenge for decision-making.

Policy Options and Implications: This policy review analyzes selected articles by the PubMed searcher about extreme measures taken in several countries during precedent pandemics and the current pandemic, and selects hard decisions relating to the exceptional measures taken by judicial departments in Brazil, connecting them to the “collision of fundamental rights and law principles.” The collision of rights and principles imposed on decision makers a duty to provide balanced rights, and to adopt the enforcement of some rights prioritization. Ethical concerns were also verified in this field involving rights limitations. During a pandemic, the importance of extreme measures to protect health rights and healthcare systems is instrumental for focused, fast, and correct decision making to avoid loss of life and the collapse of healthcare systems. The main goals of this research are to discuss the implications and guidelines for public health decision making, the indispensable ethical and legal aspects for safeguarding health systems and the lives of people, and the respect of the Justice principle and of fundamental health and dignity rights. We conclude that COVID-19 justifies the prioritization of collective and individual health access rights. Acceptable standards of fundamental rights restrictions are established at the constitutional and international levels and must be enforced by rules and governmental action, to ensure fast and accurate decision making during a pandemic. Freedom rights exercises must be linked to solidarity for the realization of social welfare, for the health rights of all individuals and for health systems to function well during a pandemic.

Actionable Recommendations: All individuals are free and equal, therefore social exclusion is prohibited. Institutions must consider social inequalities when discussing public health measures and be guided by ethical standards, by law principles, and rules recognized by constitutional and international law for the benefit of all during a health pandemic.

Conclusions: Collective and individual health rights prevail over the collision of rights when facing pandemic occurrences, case by case, in health systems protection, based on the literature, on precedent pandemics and on legitimate Public Health efforts.

Introduction

“ Our rights culture cannot constitute us unless all rights count, and all rights cannot count if all rights are absolute.” 1

COVID-19 (the new coronavirus disease) requires judicial decision-making and public policies for countries to protect public and private health systems and consequently the well-being, and in a prior way, the health rights of their citizens.

Both at legal and ethical levels, it is desirable that decision-making in public health, which is even more important in a pandemic context, respects the non-derogable guidelines of fundamental human rights, also constitutional rights, and respects law-guided ethical standards, in a way to better protect the health rights of people, and to also provide the secure maintenance of healthcare systems.

Extreme measures taken by countries and governments are justified in the context of the novel coronavirus infection pandemic by the fact that the disease has a high transmissibility rate and the methods of transmissibility are not completely understood by scientists.

However, there is scientific evidence that asymptomatic transmissions, for example, are possible at the same rate as symptomatic cases transmissibility. On the other hand, some studies suggest that asymptomatic cases could be less infectious and mainly contribute to the generation of new asymptomatic cases, also having an inferior rate of transmissibility if compared to symptomatic patients ( 1 ).

This way, it is not completely defined in what frequency and intensity asymptomatic cases contribute to the pandemic dissemination. In addition, COVID-19 has a critically high rate of contagion that can lead to the potential collapse of healthcare systems, especially as there is no effective treatment or vaccine available for the illness.

It is also quite normal for the hospitalization of critically ill patients to last several weeks ( Table 1 ). A prolonged stay in an ICU facility creates legal, socio-economic, and political consequences that must be considered by governments in regard to healthcare system management in order to keep healthcare systems functioning during the pandemic, and also to avoid, as much as possible, the occurrence of new infections, in the case of shortage of beds in health institutions.

Table 1 . Median time of admission and hospitalization in ICU of critically ill patients with COVID-19 infections.

In this narrated scenario, the collision of fundamental rights emerges as a significant problem for government and healthcare management due to decision making regarding the need to delimit the extension of the acceptable exercise of freedom rights in times of a pandemic. They also need to consider the urgent need for fundamental human rights protection and the implications of pandemic measures on restricting people's rights related to liberty of movement, liberty of travel, liberty of work and to reopen schools.

In addition, more dense social issues demonstrate the illegal conditions of prison facilities and of confinement camps for migrants during the COVID-19 pandemic, that must be considered by authorities to guarantee the right of health for all and to cope with the spread of the virus.

This complex search for better solutions depends on the factual component of the reality of countries and societies. Besides that, communities and states need to attend to important rights for life, health, and human dignity, which are all surrounded by the urgency of public health prioritization.

There are no absolute rights. There are prima facie fundamental rights and there are the definitive exercise standards of each fundamental right, in each situation, that are defined beneath the facts and the legal norms of each situation under the law. All of the fundamental rights must be balanced to achieve the maximum protection for all fundamental rights in the reality of social life conflicts and in constitutional principles collision ( 4 ).

Post Second World War, European and Western countries, under directives from the United Nations (UN), built legal systems to face the barbarities committed by modern societies. The rights of life and human dignity were elevated to the top of the hierarchy of fundamental rights in constitutions, followed by the rights of freedom, which are also of extreme importance ( 5 ).

Policy Options and Implications

The discussion of balancing rights to freedom and the necessary decision to prioritize the fundamental human right to health in the context of the covid-19 pandemic, the data selection: scientific articles from pubmed searches and other materials from web-based public data.

Articles were selected from the PubMed database due to its large index and collection of world-leading research including scientific journals in health sciences detailing studies on before and after the SARS and MERS outbreaks.

Subsequently, filtering the database was accomplished by searching using the advanced search option in the PubMed website, with no restriction on language, and with the “date-completion” option set between 2003 and May 21, 2020. We used three sets of descriptors, one set for each search, with a total number of three searches, always within the same date range and only substituting the set of descriptors for each search.

The sets of descriptors used were MESH terms: “ coronavirus infections and human rights abuses;” “coronavirus infections and right to health;” and “coronavirus infections and court decisions.” The three searches returned, respectively, 2, 26, and 167 articles, totaling 195 articles for consideration. We conducted a search using all the descriptors together but this failed as no results were returned.

The method of analysis we applied was to read the titles and abstract of the articles found within the search described and, subsequently, make a choice as to whether the article should be included in the research. We chose articles that were strongly related to the theme of the present manuscript from the authors' point of view and that matched the designed structure of our research.

For that intent, focusing on specific descriptors that could return important articles related to the theme of this research, we established the three sets of descriptors because we found it important within MESH terms to select coronavirus infections and human rights abuses , imagining possible violation aspects in restricting rights within the pandemic. Next, we selected coronavirus infections and rights to health , health rights are the main rights to be balanced with priority in the face of other fundamental rights in the context of a pandemic.

For the last descriptor, we decided to include coronavirus infections and court decisions aiming to find different approaches to guide decision-making during a pandemic considering fundamental human rights and the rights concerning health prioritization.

Other scientific, journalistic, and opinion articles were included in the bibliography and used to develop the discussion within the research, in addition to the selected scientific articles from the searches performed as described above.

The PubMed material was complemented with data scraping carried out by Boolean operators performed in the Google free database before June 30, 2020. We used the Portuguese terms for coronavirus, COVID-19, court decisions, lockdown, quarantine, social distancing, prison, rules, legal acts, and jurisprudence . The selection criteria was based on the relevance of findings in regard to the focus of the present article.

These searches found references to Brazilian judicial court decisions in the scope of the COVID-19 pandemic, which were selected, read, and prepared for inclusion in the text. The authors utilized specific searches for judicial court decision numbers on the sites of the courts, as cited in Table 3 .

The Points of View of Scientific Articles on Collision of Rights, Decision-Making, and Priority of the Right to Health During a Pandemic

The articles using the PubMed search engine can be seen in Table 2 to provide a better understanding of the findings. The main findings of the articles found on the theme of pandemic measures are set in this chapter. For example, a research paper on the scope of the Ebola pandemic only recommended quarantine in cases supported by scientific evidence justifying the balance between public security and human rights ( 6 ).

Table 2 . PubMed articles selected and its findings.

Another research paper on the span of the COVID-19 pandemic attributed the closure of the city of Wuhan as an effective epidemic control measure at that location. The authors of that study also noted that cases of the virus would have increased over time if individuals who were infected had not been contained by public efforts ( 7 ). In the same sense, another research paper concluded that the lockdown measures were responsible for containing the epidemic in the city of Huangshi ( 8 ).

There was a critical article on street and road-blocking measures, as well as lockdown decrees, indicating that they were totally ineffective in containing COVID-19. Travel restriction measures imposed on Chinese citizens by other countries were contrary to international rules established by the WHO, according to this cited research ( 9 ).

However, the WHO (World Health Organization) International Health Regulations (IHR) from 2005 ( 10 ), in article 43, does not preclude state parties to establish restrictive measures to prevent people's entry based on health risk demonstrated with scientific foundations, and respecting its internal law and international agreements, being more restrictive than international measures adopted by the WHO. However, this needs to be communicated to the WHO and a procedure of verification of its maintenance must be adopted after 3 months of the implemented measure.

On the other hand, the previous research indicates that it is common knowledge that it is necessary to contain person-to-person contagion in the scope of the COVID-19 pandemic in a way to reduce the infected number of people, and that this is possible if people maintain social distancing. Additionally, it is especially important to achieve the development of therapies and vaccines based on science to face the pandemic ( 9 ).

From an economic perspective, one article finds that it is questionable that there was justice in the restrictive air traffic measures related to Toronto during the SARS epidemic in 2003, which would have imposed a local loss for the Toronto travel industry of approximately 1.1 billion dollars ( 11 ). This research considered that the restrictions would not have been ethical because the WHO did not listen to local authorities before the restrictions were imposed and the burden would not have been distributed equally ( 11 ).

On the theme of human rights, an essay indicated that China varied between complying with international determinations of the right to health (in the SARS case) and total non-compliance (in the HIV/AIDS case). In the case of SARS, China complied with measures to prevent the spread of the virus; in contrast it did not guarantee that Chinese patients suffering from HIV/AIDS had a right to access possible treatments ( 12 ).

According to the authors from the above article ( 12 ), rights in China do not have the same nature as the human rights in the international arena and in most Western democratic countries, where rights are considered inherent to every person. In China, there are only concessions of rights made by the government depending on a person's commitment to duties imposed by the government.

The prospects of rights in China, in comparison to other countries ruled by international human rights, are fundamentally diverse, because the rule of international human rights imposes the recognition of rights to every person, without conditions, such as liberty, political rights, dignity, life, health rights, social rights, and cultural and economic rights. Its intensity, extension, and depth vary according to the development stage and richness of a country.

Some dared to predict that if a new epidemic such as SARS appeared, and the local government instead of implementing airport passenger surveillance, affecting the economic travel and tourism sector, had only invested in surveillance at the entrance of health systems, the epidemic would end sooner. The pandemic would be less widespread and more easily contained ( 13 ).

Health surveillance and precise restriction measures to avoid public movement in Singapore during the last pandemic demonstrated that fewer people traveling contributed to lower rates of infection. This happened during the SARS epidemic and now has happened during the COVID-19 epidemic ( 14 ).

Relating science data to social issues, the research paper demonstrated that measures to restrict and contain an epidemic must follow biomedical criteria and must also consider the social implications of restrictions on rights to movement that affect many people's privacy, liberty, and social rights. The island of Singapore is described to be generally closed during pandemic occurrences with a ring of protection, in conjunction with quarantine, contact tracing, and temperature checking measures in public places ( 14 ).

Besides, it was verified through a mathematical model that the interventions of Singapore's government in containing the SARS virus were able to stifle the outbreak of the disease ( 15 ). This study did not focus on people's rights collision during the SARS pandemic but tried to answer two questions: was SARS controllable with restriction measures taken by the government and would these measures be effective?

This cited research ( 15 ) was successful in proving a positive answer to both questions above. This corroborates the defense of prioritization of collective health rights guaranteed by the measures taken in the SARS pandemic in Singapore. However, the limitation of the study, due to a focus on a mathematical model to prove efficiency of the restriction measures, did not demonstrate a broad view of people's rights in Singapore, which would have been desirable.

Among the possible measures of rights restrictions enacted by governments during a pandemic, there may be attempts to compel health professionals to assist patients with COVID-19 against of their own will (of health professionals). Would that be feasible? This question was raised during the SARS epidemic, where fatality rates were significantly higher than for COVID-19 rates.

The fatality rates of health professionals during both the SARS and COVID-19 outbreak were very high and ethically some health professionals refused to treat infected patients. Could this choice be considered reasonable? In this specific case, because of the rule that permits health professionals to safeguard their own health, the option of not treating infectious patients is justified at least in the context of SARS since there will always be volunteers to do the work, this was the conclusion of other research paper ( 16 ).

Judicial decisions on healthcare have social repercussions in the United Kingdom due to the common law system, and the system of precedents ( 17 ). An important case mentioned is the case of MB (patient name as initials, not publicized in full in the article for confidentiality reasons) admitted a few years ago to a London hospital.

The hospital sought an injunction to remove the patient from its facility in order to make room for COVID-19 patients. The hospital had already tried to move the patient to a communal home that would meet his needs; however, the patient refused. The judge decided on his removal and prevented him from returning to the hospital without express permission, except if brought by an ambulance [case: University college London Hospitals NHS Foundation Trust v MB [2020] EWHC 882] ( 17 ).

In the context of Tunisia ( 18 ), the government's right to restrict freedom rights during the exceptional context of a pandemic stems from the international human rights order, the Constitution, and the administrative and civil law normative acts. The same is true in Brazil, and for most state parties in the WHO, and in the same exact order of importance ( 10 ).

One research article set in China suggests that local governments must urgently make adaptations to their legal systems with a focus on the penal system, like China has been doing, in order to be able to punish people who fail to comply with restrictive measures aimed at containing the advance of the COVID-19 pandemic ( 19 ).

The penalties for these crimes vary from several months of detention to more than 10 years of reclusion. In the article cited ( 19 ) the problem discussed is that after the beginning of the COVID-19 pandemic, authorities in China supposedly made some alterations in the penal law so that they could punish people for infringement of measures during the pandemic.

In the Brazilian case, the penal code has a prevision for the so called danger crimes that can be applied to acts that do not adhere with governmental and health measures taken to avoid infections during pandemics, such as articles 131 and 132. The Brazilian penal code also prescribes the epidemic crime (article 267), the crime of infringement of sanitary measures (article 268), and the crime of disobedience (article 330) ( 20 ).

Caution is recommended because the main principle of the penal law is the legality principle, according to which the crime and the penalty for its commitment must be prescribed in law before the conduct that will be punished occurs (from the Latin sentence “ nullum crimen nulla poena sine praevia lege”) ( 20 , 21 ).

Two additional issues: the criminal approach is different in the Chinese context, for reasons already discussed in this study, and human rights seem not to be fully respected in China compared to the international sphere. Therefore, considering that in criminal facts coercion measures applied to previous facts under the principle of criminal legality cited above, it is not acceptable that the advance of the pandemic can be contained, an intention necessarily directed toward the future, by law enforcement to punish the authors of crimes.

The penal approach to stop the virus spread is only acceptable if it respects the penal principles, the due process of law, fundamental human rights guarantees, and if it is extremely necessary, as the last choice of the authorities to contain individuals conducting imminent and dangerously deliberate spread of the virus. It is the ultima ratio legitimate intervention.

In Revue Médicale Suisse (RMS) ( 22 ), medical doctors argue that it is not possible to follow the determination of public authorities for non-urgent cases, the so called fermeture obligatoire des cabinet medicaux per le Ordonnance 2 COVID 19 , with only permission for emergency medical care being maintained.

State restrictions have even created a definition for an urgent situation, such as one that cannot be postponed to another date. However, the authors claim that there are situations in which it is not possible to clearly determine if it is urgent or not, and that even patients whose conditions are originally not urgent can quickly evolve into an emergency that requires immediate intervention ( 22 ).

In Portugal there is context for the application of restrictive, exceptional, internment, and isolation measures indicated for reasons of public health, as detailed by constitutional interpretation and jurisprudence. There are no explicit provisions allowing restriction of liberty in the CRP (Constitution of the Portuguese Republic) in the case of a pandemic, but, as these authors explain, in these exceptional circumstances, restrictions are intended to contribute to the liberty and health of all, since the patient that refuses isolation threatens the liberty and health of the other citizens ( 23 ).

In the Spanish context of the pandemic, experts asked the authorities to decree a lockdown and to grant access to pandemic data to researchers, because it is indispensable to guarantee the right to information. This can also contribute to the formulation of exceptional measures to face the pandemic based on facts and scientific evidence ( 24 ).

Scientists also claimed, in addition, for the authorities to take more restrictive measures on freedom rights for the purpose of containing the advancement of COVID-19 ( 24 ). According to these authors, the Spanish government's timid measures were not enough to contain the pandemic's progress, and it eroded the foundations of the Spanish health system ( 24 ).

A finding in an article included in this study stated that people should follow the mandatory recommendations and restrictions, and comply with orders of social distancing. Moreover, governments should do their part, especially for the most vulnerable. For example, guaranteeing social and health care to immigrants, who fear deportation and would hide even if they were sick, causing individual and social damage. Governments must guarantee treatment, and, once a vaccine and effective treatments exist, they must be assured free of charge to the population, to avoid inequalities ( 25 ).

As a counterpoint to the idea that restrictions on the right to freedom should prevail to contain the advance of the pandemic, and consequently to safeguard the right to health, some authors advocate that restrictions on air travel are contrary to the norms of international law ( 26 ). But as we saw above in article 43 of the IHR, measures that restrict people's entry into state parties of the WHO to face health risk are not forbidden but have to be founded on scientific evidence and have to adhere to a procedure of communication and verification.

According to another study ( 27 ), policies of confinement of migrants in Europe, mainly in countries with low to medium income, threaten the efforts to contain the progress of COVID-19 in major European centers. Thousands of migrants do not have access to water, soap, medicines, toilets, and electricity, and they are confined to detainment facilities, such as confinement camps, without basic health conditions ( 27 ). These inhumane conditions are perfect for COVID-19 transmission, which can increase the rates of contagion in European centers going forward.

Several authorities in countries like Greece have already been informed of the need to eliminate such confinement camps in the scope of the pandemic, but no such measures were taken. Measures to cope with COVID-19, like those policies of the 2030 Agenda, should include universal access to health care systems for all people as an emergent need ( 27 ).

Restrictive and social distancing measures do not work and are not possible for confined migrants, in this inhumane scenario. All the efforts to contain COVID-19 could be in vain if there remain migrant confinement camps in the Mediterranean.

In the light of the declaration on January 31 2020 that the COVID-19 pandemic in the United States of America was an emergency and a clear exceptional situation of crisis, the government had a special responsibility to carefully balance the protection of public health and individual freedom ( 28 ).

The present article is about unveiling pandemic extreme measures that can be taken by governments and health authorities and that make it possible to better protect rights to freedom and health, guaranteeing human rights protection and promotion in a solidarity and collective way during a pandemic.

Collision of Rights to Freedom in the Face of the Rights to Life and Health During the Novel Coronavirus Pandemic

Brazilian state policies to face the pandemic and the judicialization of collisions of fundamental rights in brazil in the scope of the covid-19 pandemic.

Fundamental rights in Brazil are based on its Constitution. There is a claim that fundamental freedoms and their exercise by individuals and groups of people collide with the right to health in the scope of the current pandemic of COVID-19, which is similar to what happens in different parts of the world, as described in Table 2 .

In the COVID-19 context we must admit, by the data collected ( Table 3 ), that the head of the Federal State of Brazil has adopted contradictory measures during the pandemic. It is also possible to detect that he does not deliberately implement global health recommendations, and rejects any coordination with local governments to cope with the pandemic effects and containment. This can also be demonstrated in the science denial discourse of the head of the State ( 29 ).

Table 3 . Examples of Lawsuits in Brazil in the collision of fundamental human rights during the Coronavirus pandemic.

On the other hand, the Senate of Brazil decreed, after the President of the Republic requested, based on the Constitution, a state of public calamity to cope with the pandemic using economic measures. A state of emergency in public health was determined by the Ministry of Health to cope with the pandemic and adopt necessary health measures.

It also established, by law, the possibility of the government adopting, among other measures, the restriction to movement of people, compulsory submission to diagnostic tests, social isolations, quarantines, lockdowns, and the request of private assets for the use of the State. It was also declared by law that all people in the scope of the pandemic have the right to be treated free of charge. These are the main potential measures to be taken by the country's government to face the pandemic ( 30 ), at federal and local levels.

State and Municipal governments in Brazil, within the scope of their constitutionally guaranteed competence in health issues, have addressed normative and administrative acts (pandemic measures) to restrict the movement of people, established compulsory isolation of individuals, and have made determinations to carry out diagnostic tests on specific individuals. They likewise established quarantines, social distancing rules, and other restrictions such as road and street blocking, as well as specific lockdown measures.

There have been judicial decisions on conflicts related to the pandemic, and recurrent judicial rulings recognizing the prioritization of the right to health that justifies restrictions in freedom rights. The most important and iconic of the conflicts that have occurred so far was at the legislative initiative of the President of the Republic in which he aimed to prevent State and Municipal governments from adopting measures to restrict the exercise of freedom rights, such as social isolation, quarantine, and local lockdowns.

This was provisionally prevented by the Federal Supreme Court. The Brazilian President tried to avoid local governments having to balance the fundamental rights to health access under their constitutional competency and the freedom fundamental rights, in order to be capable of determining pandemic measures to cope with the spread of the virus, and the Brazilian Supreme Federal Court did not permit that limitation by the President, which would have been terribly unconstitutional.

There was a declaration by the court that State and Municipal governments, as well the Federal government, can legislate on health under the Constitution rules and principles, but especially in the pandemic scope, in order to face the emergency of public health.

Conflicts and collisions of rights have been judicialized in several Brazilian courts. The matters are diverse, such as lawsuits that have been filed to release prisoners from risk groups to avoid the damaging consequences of COVID-19. In this kind of situation, the right to health only sometimes prevailed over the State's right to punish in the precarious context of the pandemic, as demonstrated in Table 3 .

There are also cases of compulsory testing and social isolation. In such cases, the right to health has prevailed to the detriment of individual liberties in the cases verified ( Table 3 )

It is interesting to note that, in a way to prioritize health rights in habeas corpus petitions, in order to maintain social distancing, the claim verified has been that house arrest (relative liberty compared to prison) is necessary for inmates, in the risk group or with special conditions, to serve out their sentences or provisional prison measures.

In a case in which the judicial decision was to concede the mandamus, the court understood that imprisonment during this pandemic conflicts with health rights protection, and so it made the prioritization of health rights (Citizen 2, Table 3 ).

Some of the most relevant types of lawsuits involving the collision of principles which establish fundamental rights that have been found in the Brazilian pandemic situation are listed in Table 3 . The right to health in the majority of the cases selected (5–2) prevailed over the other interests in the context of the pandemic.

The Weighting and Balancing of Rights in Collision

There are theoretical guidelines in legal doctrine for making judicial decisions in the face of a collision of law principles and for conflicts of legal rules. On the other hand, in the theories of the field of justice there is a consensus that “A Theory of Justice” from John Rawls is a watershed moment ( 31 , 32 ).

John Rawls is the theorist that, from the second half of the 20th century onwards, changed the focus of the justice issue in a liberal way, focusing on the fairness of the justice, placing it in a set of rules for the better stand of liberty to all (egalitarian liberty) and of democratic equality completed by the sense of the principle of difference ( 31 , 32 ).

It is recognized in doctrine that justice was, in Rawls's theory, replaced in a different focus considering the distributive sense of just measures to all, and that Rawls conceived his theory based on criticizing the utilitarianism ethics.

In summary, the justice theories have developed since Plato's concept of justice as happiness of the city and of its guardians, and Aristotle's concept of justice as equity. Subsequently, justice was connected to Hobbes's and Locke's concepts of State and Justice, founded on the power of the strongest due to a necessary obedience of the sovereign, and based on the right to property, respectively.

Justice conception was completed in this chronology by the utilitarian theories of Jeremy Bentham and John Stuart Mill based on the principle of happiness. After this evolution until the 19th century there was not another widely relevant new theory of justice before John Rawls.

At the other side of the current approach of this research, hard decisions in which fundamental law principles that contain the fundamental rights of people collide, Ronald Dworkin sets the problem assuring that rights only apparently collide because constitutional rights, at his notion, are neat and clear concepts that need to be known by the interpreter, from a point of view of the internal theory, without external influence of other fundamental rights, according to the concept that the principles are found in their internal content ( 4 , 33 ).

But Dworkin accepts the balancing and weighting of the interests involved in such cases, but in a hidden way, with justification deficiency to the theory ( 33 ). At his side, Robert Alexy delivered an interpretation of law rules and principles, and in his conception of these optimization commandments (constitutional principles), from an external theory, it is necessary to balance and weigh principles and assume rights collisions, in a construction of a well-accepted technique to solve collision of rights and principles in court and state decisions ( 4 , 33 , 34 ).

Supported by the theory of principles by Robert Alexy, and the concepts of rules and principles by Ronald Dworkin, and also the horizon of liberty and equality borrowed from John Rawls's “A Theory of Justice,” it is possible to discuss the established rules created to face the COVID-19 pandemic in the context of the scenarios given by the selected PubMed searcher articles, in several countries in the world and different legal systems, considering also the Brazilian constitutional context in comparison.

Fundamental rights are essentially relative in the sense that there is no fundamental right, based on a principle, of absolute nature, according to the prevalent interpretation of the Constitution. For Pildes ( 35 ), although constitutional theory and political philosophy understand that rights are individual trumps for autonomy, dignity, and liberty against decisions in the common good, constitutional practice indicates that rights function in another sphere rather than acting in atomistic protection of individual interests. For this theorist, rights serve as tools for courts to evaluate the social meanings and dimensions of governmental action. In this way, rights are means of realizing the common good.

The exceptional situation of the COVID-19 pandemic and the need to face the public health emergency make it possible for authorities to balance constitutional principles, and to create and enforce legal rules that impose direct restrictions on the exercise of individual and social rights in the prioritization of the common good. Thus, greater constitutional and democratic values can prevail amid the pandemic.

The rights to life, public health, and human dignity are examples of fundamental rights of unquestionable social and legal importance. Due to the pandemic these fundamental human rights take precedence in a weighting of values in comparison to the mere right to freedom dissociated from the values of solidarity, self-protection, precaution, and care.

For most general liberty exercise rights to prevail over the right to health during a pandemic, they must be linked to solidarity, self-protection, precaution, and care. Examples are the cases of health professionals that refuse to assist COVID-19 patients, or of prisoners in Brazil, or of migrants in Europe or near the Mexican border in North America, whose restrictions to liberty in prison institutions render them unable to protect themselves from the virus spread in the pandemic, which is unacceptable.

These findings are based on the legal system, on constitutionalism, and the normative nature of constitutional principles, and are observed in the literature. In cases of collision of rights, the fundamental rights that carry a social relevant value, notably the rights to health, to liberty with solidarity and self-protection, to equality, protection of all human lives, promotion of human dignity, and social justice efficacy, must be, in all of these cases, prioritized as a necessary respect of the rule of ethics and rule of law that must be necessarily attended.

Actionable Recommendations

In his Theory of Justice, Rawls ( 32 ) locates political action at the encounter between the rationality of the modern political social contract and geometric morality.

In his work “A Theory of Justice,” Rawls ( 32 ) assumes that in each society all individuals must be equally free, autonomous, and democratically equal (principles of egalitarian liberty and democratic equality). No one may be subject to discrimination or exclusion, and institutional objectives must move in the direction and primary purpose of poverty reduction and, therefore, of social ills.

This theory of justice is complemented by the principle of difference, according to which institutions must be structured based on the observation of social inequalities, and institutional practice must produce, in the long run and in the future, greater benefits to the least favored in society.

From the viewpoint of the theory of principles, by Robert Alexy, according to Virgílio Afonso da Silva ( 34 ), there is a possibility of conflict between legal rules and of collision between legal principles which make up the fundamental rights. But it is also possible that a collision occurs between rules and principles, which is another way in which a collision between principles may take place ( 34 ).

Ronald Dworkin, in his work “Taking Rights Seriously” ( 36 ) addresses the issue of balancing law principles and the weighting of them as a need to decide, e.g., hard cases for which there are no decisions made yet but they certainly must be made. Some bases of these themes were previously addressed by the author earlier, in 1967, in an article entitled “The Model of the Rules” ( 37 ).

Dworkin establishes, in a way that is also indicated by Alexy, and is vastly accepted in law theory that a conflict between two rules has to be solved at the level of validity, with only one possible answer: one of the rules is valid, and the other rule is not valid.

On the other hand, Alexy indicates that in a collision between two principles, the nature of the collision is based in the “factual supports” of the principles, which includes in it the “protection scope of the principle” and the “governmental intervention” ( 34 ).

The “factual support” in Virgílio Afonso da Silva ( 4 ), on the other hand, also includes the “constitutional reasoning” in the conception of the constitutional principle to define whether the rights restriction based on rights collision, e.g., is constitutionally permitted or not.

Therefore, the technique to solve rights collision is to weigh the related principles, balance them, and select the one with greater weight, applying the proportionality principle conception to decide which is the most relevant principle to prevail for the governmental action to face the issue (facts) addressed, in order to restrict fundamental rights exercises in a constitutionally respectful pattern. And this weight and importance must be in accordance with the fairness of the decision for that situation ( 32 , 34 , 36 ).

Virgílio Afonso da Silva developed his own concept of the “factual support” based on Alexy's theory to clarify the constitutional permission of the fundamental rights restriction under a necessary verification: Scope of protection of the fundamental right + Governmental intervention + Constitutional Reasoning = Constitutional and Acceptable restriction of a Fundamental Right Exercise, case by case, necessarily considered the proportionality principle ( 4 ). If there is no constitutional reasoning for the measure/intervention adopted to restrict fundamental rights, the State's intervention in this case will be unconstitutional.

When two principles collide, e.g., the principle of individual liberty and the principle of public health, it must be assessed which principle should prevail in that specific scenario, considering and deciding in favor of the most fair decision to take (according to Alexy, the maximum protection of the fundamental right), always balancing and describing the weights of the law principles (rights) related to the situation. From the notion of the right to liberty that can be limited, in a Theory of Justice by Rawls, it is considered that liberty can be limited in favor of everyone's own equal liberty ( 32 ).

Added to the notion of the emergency of public health, everything indicates that the right to health in the context of the current pandemic must prevail over the right to unrestricted liberty of movement of people, because the health right in this pandemic carries more legal and moral weight than the liberty exercise with some necessary restrictions, considering also that the liberty exercise can never be without any restriction, for the common good of all people.

Thus, the legality and legitimacy of the extreme measures that restrict freedom rights in the strict duty to cope with the COVID-19 pandemic are well-justified if they are based in fairness and on solid facts, better scientific evidence, acceptable rules and constitutional principles, and if they are made by the competent authorities. Those measures can also be accepted if they use the least aggressive and restrictive measures possible to achieve the public health goal, if they do not cause direct or predicable harm to the life, dignity, and health of anybody, if they prioritize the health rights protection of the most vulnerable in the first instance, and if the measure taken is proportional to the risk faced and to the better protection of indivisible and interconnected fundamental rights.

In the Brazilian case, there is a regulation of social restrictions based on Federal and Local normative acts that settles legal rules during the pandemic. These rules inform other normative acts, improved per locality, which can be more restrictive but not more flexible than the Federal rules or the Federal State's rules. Hence, the normative prescriptions can be improved and adapted in local rules, on the level of the State, the Municipal, and the Federal District governments.

Accordingly, a potential collision of norms of broad spectrum of freedom rights exercises in the face of the established rules of health protection, in the context of the pandemic, to better protect health rights and healthcare systems demonstrates the possibility of the collision of a constitutional principle (rights to freedom) with a rule of protection of the right to health (restriction measures).

In this case, as described for similar abstract situations by Virgílio Afonso da Silva disserting on Dworkin's and Alexy's concepts ( 34 ), a principle (of liberty) is restricted by a rule (pandemic extreme measures set by law) so that other principles can prevail—in this case the principle of public health (which is the foundation of the right to health).

The Supreme Federal Court in Brazil has several precedents establishing that whenever health and life collide with constitutional principles less important than life (life with dignity is the most important democratic principle) ( 5 ), the rights to life and to health must prevail.

The US Supreme court on May 29, 2020 rejected a church challenge to California's COVID-19 restrictions by a 5–4 vote. Chief Justice John Roberts joined the liberals and said in his opinion that he would not join conservative judges escalating efforts to override public health measures in the name of religious freedom. It was set that “the Supreme Court will not facilitate the spread of a deadly virus in the name of the first amendment” ( 38 ).

In the context of the pandemic, the acceptable measures to restrict individual and social rights are strictly intended to contain the spread of the SARS-CoV-2 virus always with the aim of preserving public health and people's lives.

In an ethical approach there is the necessity to consider the argument of utilitarianism decisions to achieve major happiness as a finality (principle of happiness), at least to most people. The point defended by John Stuart Mill's utilitarianism ( 39 ) can be a point of departure, but not the foundation of the ethical decision. Other important legal and ethical implications must be considered for decision-making during a pandemic.

No life can be forgotten, that is the point. Decisions in such situations that involve freedom rights exercise, health rights access, and protection of healthcare systems during pandemics, must be decisions that do not directly affect anyone with imminent risk of death or health injury, and it must also predict the consequences of extreme decisions, in its foundations for not to put in real and imminent risk the human dignity of any person. For example, an extreme pandemic measure that put someone in imminent risk of death to protect the health right of most people is not a feasible and fair ethical or legal decision.

That is why the “rule utilitarianism” is, till today, a good way to make ethical decisions guided by law, as it establishes that “an act is morally right if and only if it is (or is likely to be) in accordance with an acceptable rule (or set of rules), where the acceptability of a rule is determined on utilitarian grounds” ( 40 ).

The present study developed Table 4 with resumed information of the recommendations found within this research for a guideline on taking pandemic measures fairly to the fundamental human rights and based on acceptable ethical rules.

Table 4 . Guidelines of conditions to orient authorities to take pandemic measures respecting acceptable ethical issues and fundamental human rights.

Conclusions

It is legal and legitimate for governments to adopt extreme measures by balancing and weighting constitutional principles to adopt restrictions on the fundamental rights exercise that collide with the fundamental rights to health in situations of a pandemic, on the level of the Constitution. It is extremely necessary to protect rights to life, dignity, and the health of all. The prioritization of them in the face of freedom rights divorced from the solidarity, self-protection, care, and respect of autonomy, values that are important to societies, must be considered in health decisions.

To face the collision of rights (on the level of constitutional principles) it is necessary that facts have not yet being legislated specifically by a rule, or the specific rules are imprecise or incomplete, or if the rules (indirectly the principles that forged the rules) collide with other fundamental principles based on the Constitution. For that reason, these situations need the constitutional principles that address fundamental human rights to complement or define the legal significance of the governmental intervention to be applied. Pandemic occurrences must require this special legislation (rules) and precedent rulings of courts to determine the legal conformation of rights restriction measures for decision-making.

The conflict of general legal rules and special rules for a pandemic, at the other side, must be decided at the validity level, in which a pandemic rule must prevail when applied to the current situation, by the application of the prevalence of a special rule instead of a general rule, according to the Latin sentence lex specialis derogat generali .

If one intends to achieve a state of social justice during a pandemic, at the same time the government must first protect the most vulnerable. Then it is necessary to protect all people's rights to health and liberty with solidarity, or health equity will not be possible, mainly in impoverished communities, in prisons, and in peripheral regions of the world.

Most of the articles selected in the present study legitimize social restraint measures to face the increase in the number of infected cases in the pandemic by factual evidence of contribution to decreasing the contagion and spread of the virus.

The same direction is noted in Table 3 data, in which seven court decisions face extreme measures related to the pandemic, and in its majority (5–2) they give precedence to the protection of the rights to health related in the case (only the cases 2. and 7., the “unblock of roads” and the “Citizen 3” cases, were not decided invoking the need of the extreme measure adopted to protect the right to health, as described in Table 3 ).

Nevertheless, there are some selected articles in this study that claim the alleged ineffectiveness or limited effectiveness of containing the transmissibility of the virus by restricting the movement of people, and there are also respectful researches advocating the contradiction of the travel restrictions to the rules of international law. These viewpoints are worth considering despite their limited influence due to the adoption of extreme measures since the SARS pandemic of 2002-2004, but they make an important point by indicating that it is necessary to consider the balance between the health protection of everyone and the preservation of the rights to freedom of all and all related fundamental rights that can be restricted in their exercise by pandemic extreme measures adopted by governments based on scientific evidence.

Restrictive measures must abide by the legal and constitutional systems, the social conditions and must be in harmony with the notion of relativity of fundamental rights. There exists the feasibility that health rights rules must take precedence over general freedom rights in the scope of a pandemic. The present research created guidelines for authorities to take during a pandemic when adopting extreme measures that affect fundamental rights exercises in a way of respecting the fundamental human rights of all and for the consideration of acceptable ethical decisions in this same direction. The guide is summarized in Table 4 .

Author Contributions

JS concepted the theme and idea of the research, indicated a law science author for consideration, and redacted its first manuscript. PS made the research of scientific articles used within this article, selected and interpreted them, selected the law science authors to be cited, concepted the structure of the research, and comparison of data. Also designed the tables, the article type, format, sections, headings and their nomenclatures, the abstract, the keywords, and the others sections of the article. Wrote the final version of the manuscript submitted, prepared the template for the journal submission, and designed its english version that was revised by experienced translators. FA coordinated the research and the writing process of the manuscript. IB, PM, and ET-C analyzed the data collected and suggested modifications and made revisions. LA conducted the process of creation, coordinated the authors, made suggestions in the conception and writing of the manuscript, and contributed within the data analysis. All authors contributed to the article and approved the submitted version.

Conflict of Interest

The authors declare that the research was conducted in the absence of any commercial or financial relationships that could be construed as a potential conflict of interest.

Acknowledgments

We acknowledge the commentaries by Prof. Dr. Fabio Costa Morais de Sá e Silva, Assistant Professor of International Studies and Wick Cary Professor of Brazilian Studies, University of Oklahoma (USA).

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Keywords: coronavirus infections, human rights abuses, right to health, court decisions, jurisprudence

Citation: dos Santos JLG, Stein Messetti PA, Adami F, Bezerra IMP, Maia PCGGS, Tristan-Cheever E and Abreu LCd (2021) Collision of Fundamental Human Rights and the Right to Health Access During the Novel Coronavirus Pandemic. Front. Public Health 8:570243. doi: 10.3389/fpubh.2020.570243

Received: 06 June 2020; Accepted: 19 August 2020; Published: 08 January 2021.

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Copyright © 2021 dos Santos, Stein Messetti, Adami, Bezerra, Maia, Tristan-Cheever and Abreu. This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY) . The use, distribution or reproduction in other forums is permitted, provided the original author(s) and the copyright owner(s) are credited and that the original publication in this journal is cited, in accordance with accepted academic practice. No use, distribution or reproduction is permitted which does not comply with these terms.

*Correspondence: Paulo André Stein Messetti, paulo@stm.adv.br ; paulo.messetti@aluno.fmabc.net

Disclaimer: All claims expressed in this article are solely those of the authors and do not necessarily represent those of their affiliated organizations, or those of the publisher, the editors and the reviewers. Any product that may be evaluated in this article or claim that may be made by its manufacturer is not guaranteed or endorsed by the publisher.

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Increasing Representation of Black Primary Care Physicians—A Critical Strategy to Advance Racial Health Equity

• 1 The University of Chicago, Section of General Internal Medicine, Center for the Study of Race, Politics and Culture, Chicago, Illinois
• Original Investigation Black Primary Care Physician Representation and US Population Life Expectancy John E. Snyder, MD, MS, MPH; Rachel D. Upton, PhD; Thomas C. Hassett, PhD; Hyunjung Lee, PhD, MS, MPP, MBA; Zakia Nouri, MA; Michael Dill, MAPP JAMA Network Open
• Correction Errors in Commentary JAMA Network Open

Racial disparities in health care and health outcomes have been perniciously difficult to eradicate despite local, regional, and national efforts to address them over the past several decades. Strategies have primarily focused on increasing health care access (eg, Medicaid expansion, the Affordable Care Act) and quality (eg, patient-centered care), with recent efforts promoting the integration of social care (ie, addressing patients’ social needs such as food insecurity) into comprehensive treatment plans. 1

Increasing the number of physicians who are racial and ethnic minority individuals has been another strategy to improve clinical care delivery and health outcomes among minoritized racial and ethnic populations. The evidence associating physician race with patient health outcomes has primarily been limited to research interventions and/or clinical settings. For example, Cooper et al 2 found that Black patients in racially concordant physician relationships had higher levels of positive physician affect, were more satisfied with their health care, and rated their physicians as more participatory in decision-making. Saha et al 3 reported that Black patients who had Black physicians were more likely to report having preventive care services and “all needed medical care” during the prior year. However, the association between Black physicians and the health of minoritized racial groups and health disparities at the population level has not been previously evaluated.

In JAMA Network Open , Snyder et al 4 used longitudinal data at the discrete time points of 2009, 2014, and 2019 from 1618 US counties that had at least 1 Black primary care physician (PCP) and measured the associations between the representation of Black PCPs and the mortality and survival rates both within counties and between counties. The authors’ definition of Black PCP representation is important because it is accurate regardless of changes to the size of the physician workforce or the population being served. The authors defined Black PCP representation as the ratio of the proportion of PCPs who identified as Black divided by the proportion of the population who identified as Black. The authors’ evaluation of between-county differences and within-county differences allowed the research team to explore variations that may be more likely due to changes over time (within-county variation) compared with inherent differences in place (between-county variation) that reflect infrastructure and resources needed to support healthy communities.

The authors found that a 10% increase in Black representation was associated with a 30.61-day increase in life expectancy for Black individuals (95% CI, 19.13-42.44 days), a reduction in all-cause mortality among Black persons by 12.71 deaths per 100 000 (95% CI, −14.77 to −10.66), and a 1.17% reduction in the Black/White disparity in all-cause mortality (95% CI, −1.29% to −1.05%). The associations with life expectancy were strongest in counties with high rates of poverty. During a given year of heightened Black representation within counties (vs their average), there were reduced mortality rates among Black populations (−35.34 [95% CI, −58.86 to −11.81] deaths per 100 000 ) and smaller Black/White disparities in all-cause mortality (−2.44 [95% CI, −3.65 to −1.23]).

This study’s findings are important for several reasons. First, they demonstrate that at a population level, mortality and life expectancy among Black individuals are improved when there is greater representation of Black PCPs within the community—a representation that aligns more closely with that of the population. These health outcomes are not exclusively related to health care delivery and use. While there is evidence to support potential mechanisms by which Black physicians working within the health care system can improve health outcomes for Black patients (eg, increased shared decision-making and patient-centered care, culturally concordant care, increased quality of care), there is also evidence that Black physicians are more likely than physicians from other racial or ethnic groups to engage in health-related work outside the health care system—that is, Black physicians are more likely to provide health-related expertise to local community organizations (eg, school boards, local media); to be politically involved in health-related matters at the local, state, or national level; and to encourage medical organizations to advocate public health (eg, air pollution, gun control, increased literacy, substance abuse prevention). 5 This community involvement and advocacy by Black physicians may change the social drivers of health for the populations most vulnerable to their health effects.

Second, the study’s mortality associations were more pronounced in counties with higher rates of poverty. In addition to factors noted above, this finding may also reflect that Black physicians disproportionately care for patients that are uninsured and underinsured compared with their non-Hispanic White counterparts. In a study of factors associated with PCPs’ decisions to accept new Medicaid patients under Michigan’s Medicaid expansion, Tipirneni et al 6 found that Black physicians had an adjusted odds ratio of 3.46 (95% CI, 1.45-8.25) of accepting new Medicaid patients, more than any other racial or ethnic group within the physician workforce.

Third, no significant associations were found between the total proportion of PCPs and life expectancy of Black populations or mortality rates among Black populations, although there was a small decrease in the Black-White mortality disparity rate. This not only underscores the importance of Black physicians to the health and well-being of Black patients, but points to the continued chasm between non-Black physicians and Black patients that has been created by generations of structural racism, medical experimentation and other abuses, clinician bias, and subsequent patient distrust and disengagement. 7 Overcoming this chasm, establishing trustworthy institutions, and engaging with and truly seeing Black patients in their full humanity will take an extraordinary, transformative, and sustained commitment of time, infrastructure, and action.

Last, more than 50% of US counties were ineligible at each of the 3 study time points because they did not have a single Black PCP in the entire county. During the same study period, 90.9% to 94.1% of US counties had at least 1 physician of any race or ethnicity. In addition, none of the counties had proportions of Black PCPs that were equivalent to the proportion of Black individuals in the population. Given the extraordinary association between Black PCP representation and population outcomes for Black communities, it should be a national priority to ensure that Black populations in the US have access to Black PCPs within their counties and to increase the representation of Black PCPs within existing counties.

This study has brought to light the importance of Black PCP representation to public health outcomes among Black populations across the US. Increasing this representation must become a multifaceted national strategy to improve health and increase equity among Black populations in the US.

Published: April 14, 2023. doi:10.1001/jamanetworkopen.2023.6678

Correction: This Invited Commentary was corrected on May 22, 2023, to correct certain mischaracterizations of the study by Snyder et al.

Open Access: This is an open access article distributed under the terms of the CC-BY License . © 2023 Peek ME. JAMA Network Open .

Corresponding Author: Monica E. Peek, MD, MPH, MSc, The University of Chicago, Section of General Internal Medicine, Center for the Study of Race, Politics and Culture, 5841 S Maryland Ave, MC 2007, Chicago, IL 60637 ( [email protected] ).

Conflict of Interest Disclosures: Dr Peek reports being a consultant for CME Outfitters and being a member of the National Academy of Medicine’s Unequal Treatment Revisited committee. No other disclosures were reported.

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Peek ME. Increasing Representation of Black Primary Care Physicians—A Critical Strategy to Advance Racial Health Equity. JAMA Netw Open. 2023;6(4):e236678. doi:10.1001/jamanetworkopen.2023.6678

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The term “gain of function” is often taken to refer to research with viruses that puts society at risk of an infectious disease outbreak for questionable gain. Some research on emerging viruses can result in variants that gain the ability to infect people but this does not necessarily mean the research is dangerous or that it is not fruitful. Concerns have focused on lab research on the virus that causes bird flu in 2012 and on the virus that causes COVID-19 since 2020. The National Institutes of Health had previously implemented a three-year moratorium on gain-of-function research on certain viruses, and some U.S. legislatures have proposed bills prohibiting gain-of-function research on “potentially pandemic pathogens.”

The possibility that a genetically modified virus could escape the lab needs to be taken seriously. But it does not mean that gain-of-function experiments are inherently risky or the purview of mad scientists. In fact, gain-of-function approaches are a fundamental tool in biology used to study much more than just viruses, contributing to many, if not most, modern discoveries in the field, including penicillin , cancer immunotherapies and drought-resistant crops .

As scientists who study viruses , we believe that misunderstanding the term “gain of function” as something nefarious comes at the cost of progress in human health, ecological sustainability and technological advancement. Clarifying what gain-of-function research really is can help clarify why it is an essential scientific tool.

What is gain of function?

To study how a living thing operates, scientists can change a specific part of it and then observe the effects. These changes sometimes result in the organism’s gaining a function it didn’t have before or losing a function it once had.

For example, if the goal is to enhance the tumor-killing ability of immune cells, researchers can take a sample of a person’s immune cells and modify them to express a protein that specifically targets cancer cells. This mutated immune cell, called a CAR-T cell thereby “gains the function” of being able to bind to cancerous cells and kill them. The advance of similar immunotherapies that help the immune system attack cancer cells is based on the exploratory research of scientists who synthesized such “ Frankenstein” proteins in the 1980s. At that time, there was no way to know how useful these chimeric proteins would be to cancer treatment today, some 40 years later.

Similarly, by adding specific genes into rice, corn or wheat plants that increase their production in diverse climates, scientists have been able to produce plants that are able to grow and thrive in geographical regions they previously could not. This is a critical advance to maintain food supplies in the face of climate change. Well-known examples of food sources that have their origins in gain-of-function research include rice plants that can grow in high flood plains or in drought conditions or that contain vitamin A to reduce malnutrition.

Medical advances from gain-of-function research

Gain-of-function experiments are ingrained in the scientific process. In many instances, the benefits that stem from gain-of-function experiments are not immediately clear. Only decades later does the research bring a new treatment to the clinic or a new technology within reach.

The development of most antibiotics have relied on the manipulation of bacteria or mold in gain-of-function experiments. Alexander Fleming’s initial discovery that the mold Penicillium rubens could produce a compound toxic to bacteria was a profound medical advance. But it wasn’t until scientists experimented with growth conditions and mold strains that therapeutic use of penicillin became feasible. Using a specific growth medium allowed the mold to gain the function of increased penicillin production, which was essential for its mass production and widespread use as a drug.

Research on antibiotic resistance also relies heavily on gain-of-function approaches. Studying how bacteria gain resistance against drugs is essential to developing new treatments microbes are unable to evade quickly.

Gain-of-function research in virology has also been critical to the advancement of science and health. Oncolytic viruses are genetically modified in the laboratory to infect and kill cancerous cells like melanoma. Similarly, the Johnson & Johnson COVID-19 vaccine contains an adenovirus altered to produce the spike protein that helps the COVID-19 virus infect cells. Scientists developed live attenuated flu vaccines by adapting them to grow at low temperatures and thereby lose the ability to grow at human lung temperatures.

By giving viruses new functions, scientists were able to develop new tools to treat and prevent disease.

Nature’s gain-of-function experiments

Gain-of-function approaches are needed to advance understanding of viruses in part because these processes already occur in nature.

Many viruses that infect such nonhuman animals as bats, pigs, birds and mice have the potential to spill over into people . Every time a virus copies its genome, it makes mistakes. Most of these mutations are detrimental – they reduce a virus’s ability to replicate – but some may allow a virus to replicate faster or better in human cells. Variant viruses with these rare, beneficial mutations will spread better than other variants and therefore come to dominate the viral population – that is how natural selection works .

If these viruses can replicate even a little bit within people, they have the potential to adapt and thereby thrive in their new human hosts. That is nature’s gain-of-function experiment, and it is happening constantly .

Gain-of-function experiments in the lab can help scientists anticipate the changes viruses may undergo in nature by understanding what specific features allow them to transmit between people and infect them. In contrast to nature’s experiments, these are conducted in highly controlled lab conditions designed to limit infection risk to laboratory personnel and others, including air flow control, personal protective equipment and waste sterilization.

It is important that researchers carefully observe lab safety to minimize the theoretical risk of infecting the general population. It is equally important that virologists continue to apply the tools of modern science to gauge the risk of natural viral spillovers before they become outbreaks.

A bird flu outbreak is currently raging across multiple continents. While the H5N1 virus is primarily infecting birds, some people have gotten sick too. More spillover events can change the virus in ways that would allow it to transmit more efficiently among people , potentially leading to a pandemic.

Scientists have a better appreciation of the tangible risk of bird flu spillover because of gain-of-function experiments published a decade ago . Those lab studies showed that bird flu viruses could be transmitted through the air between ferrets within a few feet of one another. They also revealed multiple features of the evolutionary path the H5N1 virus would need to take before it becomes transmissible in mammals, informing what signatures researchers need to look out for during surveillance of the current outbreak.

Oversight on gain of function

Perhaps this sounds like a semantic argument, and in many respects it is. Many researchers would likely agree that gain of function as a general tool is an important way to study biology that should not be restricted, while also arguing that it should be curtailed for research on specific dangerous pathogens. The problem with this argument is that pathogen research needs to include gain-of-function approaches in order to be effective – just as in any area of biology.

Oversight of gain-of-function research on potential pandemic pathogens already exists. Multiple layers of safety measures at the institutional and national levels minimize the risks of virus research.

While updates to current oversight are not unreasonable, we believe that blanket bans or additional restrictions on gain-of-function research do not make society safer. They may instead slow research in areas ranging from cancer therapies to agriculture. Clarifying which specific research areas are of concern regarding gain-of-function approaches can help identify how the current oversight framework can be improved.

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• Golden rice
• Immunotherapy
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Navigating the “Psychedelic Renaissance”: From Research to Reality

• Published: 08 May 2024

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• Doris Payer   ORCID: orcid.org/0000-0001-9313-2587 1 ,
• Sukhpreet Klaire 2 , 3 , 4 ,
• Dominique Morisano 5 , 6 , 7 ,
• Mary Bartram 8 , 9 ,
• Monnica Williams 7 &
• Brian Rush 5 , 6  

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The field of psychedelics is in an important era, with a significant focus on the potential role of psychedelic compounds in the treatment of mental health and substance use disorders. In 2022, a scientific research conference was held in Toronto to bring together stakeholders from a variety of disciplines and to promote dialogue and collaboration. This Special Issue includes 8 papers based on presentations from the conference, which showcase the breadth of topics that were brought forward. Included are both quantitative and qualitative works, as well as two letters to the editors which further advance these important conversations. These articles not only present the current state of research into psychedelics, but also present viewpoints about their impacts on underrepresented communities, the need to recognize the history of these compounds that extends beyond this new Western “renaissance,” and the complexities of integrating psychedelics into mainstream medicine. This Special Issue serves as both an exploration of a much-discussed topic and a reminder that collaboration can advance the field in order to harness its potential impact.

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Canadian Centre On Substance Use and Addiction, 75 Albert Street, Suite 500, Ottawa, ON, K1P 5E7, Canada

Doris Payer

Division of Addiction Medicine, Providence Health Care, Vancouver, BC, Canada

Sukhpreet Klaire

Department of Family Practice, University of British Columbia, Vancouver, BC, Canada

British Columbia Centre On Substance Use, Vancouver, BC, Canada

Centre for Addiction and Mental Health, Institute for Mental Health Policy Research, Toronto, ON, Canada

Dominique Morisano & Brian Rush

Dalla Lana School of Public Health, University of Toronto, Toronto, ON, Canada

Department of Psychology, University of Ottawa, Ottawa, ON, Canada

Dominique Morisano & Monnica Williams

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Mary Bartram

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Doris Payer, Mary Bartram, and Brian Rush declare that they have no conflict of interest. Sukhpreet Klaire has received financial compensation from Numinus Wellness, an organization providing psychedelic-assisted psychotherapy, for work as a clinical trial investigator. Dominique Morisano owns stock in Reunion Neuroscience and Numinus. She is currently in paid contract educational roles (re: psychedelic-assisted psychotherapy) with Journey Clinical, Fluence, Psychedelics Today, California Institute of Integral Studies (nonprofit), Naropa University (non-profit), and The MIND Foundation (non-profit). She is also a paid part-time contract facilitator with Beckley Retreats.

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Payer, D., Klaire, S., Morisano, D. et al. Navigating the “Psychedelic Renaissance”: From Research to Reality. Int J Ment Health Addiction (2024). https://doi.org/10.1007/s11469-024-01288-y

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Study Suggests Genetics as a Cause, Not Just a Risk, for Some Alzheimer’s

People with two copies of the gene variant APOE4 are almost certain to get Alzheimer’s, say researchers, who proposed a framework under which such patients could be diagnosed years before symptoms.

By Pam Belluck

Scientists are proposing a new way of understanding the genetics of Alzheimer’s that would mean that up to a fifth of patients would be considered to have a genetically caused form of the disease.

Currently, the vast majority of Alzheimer’s cases do not have a clearly identified cause. The new designation, proposed in a study published Monday, could broaden the scope of efforts to develop treatments, including gene therapy, and affect the design of clinical trials.

It could also mean that hundreds of thousands of people in the United States alone could, if they chose, receive a diagnosis of Alzheimer’s before developing any symptoms of cognitive decline, although there currently are no treatments for people at that stage.

The new classification would make this type of Alzheimer’s one of the most common genetic disorders in the world, medical experts said.

“This reconceptualization that we’re proposing affects not a small minority of people,” said Dr. Juan Fortea, an author of the study and the director of the Sant Pau Memory Unit in Barcelona, Spain. “Sometimes we say that we don’t know the cause of Alzheimer’s disease,” but, he said, this would mean that about 15 to 20 percent of cases “can be tracked back to a cause, and the cause is in the genes.”

The idea involves a gene variant called APOE4. Scientists have long known that inheriting one copy of the variant increases the risk of developing Alzheimer’s, and that people with two copies, inherited from each parent, have vastly increased risk.

The new study , published in the journal Nature Medicine, analyzed data from over 500 people with two copies of APOE4, a significantly larger pool than in previous studies. The researchers found that almost all of those patients developed the biological pathology of Alzheimer’s, and the authors say that two copies of APOE4 should now be considered a cause of Alzheimer’s — not simply a risk factor.

The patients also developed Alzheimer’s pathology relatively young, the study found. By age 55, over 95 percent had biological markers associated with the disease. By 65, almost all had abnormal levels of a protein called amyloid that forms plaques in the brain, a hallmark of Alzheimer’s. And many started developing symptoms of cognitive decline at age 65, younger than most people without the APOE4 variant.

“The critical thing is that these individuals are often symptomatic 10 years earlier than other forms of Alzheimer’s disease,” said Dr. Reisa Sperling, a neurologist at Mass General Brigham in Boston and an author of the study.

She added, “By the time they are picked up and clinically diagnosed, because they’re often younger, they have more pathology.”

People with two copies, known as APOE4 homozygotes, make up 2 to 3 percent of the general population, but are an estimated 15 to 20 percent of people with Alzheimer’s dementia, experts said. People with one copy make up about 15 to 25 percent of the general population, and about 50 percent of Alzheimer’s dementia patients.

The most common variant is called APOE3, which seems to have a neutral effect on Alzheimer’s risk. About 75 percent of the general population has one copy of APOE3, and more than half of the general population has two copies.

Alzheimer’s experts not involved in the study said classifying the two-copy condition as genetically determined Alzheimer’s could have significant implications, including encouraging drug development beyond the field’s recent major focus on treatments that target and reduce amyloid.

Dr. Samuel Gandy, an Alzheimer’s researcher at Mount Sinai in New York, who was not involved in the study, said that patients with two copies of APOE4 faced much higher safety risks from anti-amyloid drugs.

When the Food and Drug Administration approved the anti-amyloid drug Leqembi last year, it required a black-box warning on the label saying that the medication can cause “serious and life-threatening events” such as swelling and bleeding in the brain, especially for people with two copies of APOE4. Some treatment centers decided not to offer Leqembi, an intravenous infusion, to such patients.

Dr. Gandy and other experts said that classifying these patients as having a distinct genetic form of Alzheimer’s would galvanize interest in developing drugs that are safe and effective for them and add urgency to current efforts to prevent cognitive decline in people who do not yet have symptoms.

“Rather than say we have nothing for you, let’s look for a trial,” Dr. Gandy said, adding that such patients should be included in trials at younger ages, given how early their pathology starts.

Besides trying to develop drugs, some researchers are exploring gene editing to transform APOE4 into a variant called APOE2, which appears to protect against Alzheimer’s. Another gene-therapy approach being studied involves injecting APOE2 into patients’ brains.

The new study had some limitations, including a lack of diversity that might make the findings less generalizable. Most patients in the study had European ancestry. While two copies of APOE4 also greatly increase Alzheimer’s risk in other ethnicities, the risk levels differ, said Dr. Michael Greicius, a neurologist at Stanford University School of Medicine who was not involved in the research.

“One important argument against their interpretation is that the risk of Alzheimer’s disease in APOE4 homozygotes varies substantially across different genetic ancestries,” said Dr. Greicius, who cowrote a study that found that white people with two copies of APOE4 had 13 times the risk of white people with two copies of APOE3, while Black people with two copies of APOE4 had 6.5 times the risk of Black people with two copies of APOE3.

“This has critical implications when counseling patients about their ancestry-informed genetic risk for Alzheimer’s disease,” he said, “and it also speaks to some yet-to-be-discovered genetics and biology that presumably drive this massive difference in risk.”

Under the current genetic understanding of Alzheimer’s, less than 2 percent of cases are considered genetically caused. Some of those patients inherited a mutation in one of three genes and can develop symptoms as early as their 30s or 40s. Others are people with Down syndrome, who have three copies of a chromosome containing a protein that often leads to what is called Down syndrome-associated Alzheimer’s disease .

Dr. Sperling said the genetic alterations in those cases are believed to fuel buildup of amyloid, while APOE4 is believed to interfere with clearing amyloid buildup.

Under the researchers’ proposal, having one copy of APOE4 would continue to be considered a risk factor, not enough to cause Alzheimer’s, Dr. Fortea said. It is unusual for diseases to follow that genetic pattern, called “semidominance,” with two copies of a variant causing the disease, but one copy only increasing risk, experts said.

The new recommendation will prompt questions about whether people should get tested to determine if they have the APOE4 variant.

Dr. Greicius said that until there were treatments for people with two copies of APOE4 or trials of therapies to prevent them from developing dementia, “My recommendation is if you don’t have symptoms, you should definitely not figure out your APOE status.”

He added, “It will only cause grief at this point.”

Finding ways to help these patients cannot come soon enough, Dr. Sperling said, adding, “These individuals are desperate, they’ve seen it in both of their parents often and really need therapies.”

Pam Belluck is a health and science reporter, covering a range of subjects, including reproductive health, long Covid, brain science, neurological disorders, mental health and genetics. More about Pam Belluck

The Fight Against Alzheimer’s Disease

Alzheimer’s is the most common form of dementia, but much remains unknown about this daunting disease..

How is Alzheimer’s diagnosed? What causes Alzheimer’s? We answered some common questions .

A study suggests that genetics can be a cause of Alzheimer’s , not just a risk, raising the prospect of diagnosis years before symptoms appear.

Determining whether someone has Alzheimer’s usually requires an extended diagnostic process . But new criteria could lead to a diagnosis on the basis of a simple blood test .

The F.D.A. has given full approval to the Alzheimer’s drug Leqembi. Here is what to know about i t.

Alzheimer’s can make communicating difficult. We asked experts for tips on how to talk to someone with the disease .

Watch CBS News

Limit these ultra-processed foods for longer-term health, 30-year study suggests

By Sara Moniuszko

Edited By Paula Cohen

Updated on: May 10, 2024 / 11:09 AM EDT / CBS News

New research is adding to the evidence linking  ultra-processed foods  to health concerns. The study tracked people's habits over 30 years and found those who reported eating more of certain ultra-processed foods had a slightly higher risk of death — with four categories of foods found to be the biggest culprits. 

For the study, published in The BMJ , researchers analyzed data on more than 100,000 U.S. adults with no history of cancer, cardiovascular disease or diabetes. Every four years between 1986 and 2018, the participants completed a detailed food questionnaire.

The data showed those who ate the most  ultra-processed food — about 7 servings per day — had a 4% higher risk of death by any cause, compared to participants who ate the lowest amount, a median of about 3 servings per day.

Ultra-processed foods include "packaged baked goods and snacks, fizzy drinks, sugary cereals, and ready-to-eat or heat products,"  a news release  for the study noted. "They often contain colors, emulsifiers, flavors, and other additives and are typically high in energy, added sugar, saturated fat, and salt, but lack vitamins and fiber."

Foods with the strongest associations with increased mortality, according to the study, included:

• Ready-to-eat meat, poultry and seafood-based products
• Sugary drinks
• Dairy-based desserts
• Highly processed breakfast foods

Ultra-processed food is a "very mixed group of very different foods," the lead author of the study, Mingyang Song,  told CBS News , meaning these categories can offer a helpful distinction. 

"Some of the foods actually have really beneficial ingredients like vitamins, minerals, so that's why we always recommend that people not focus too much on the (whole of) ultra-processed food, but rather the individual categories of ultra-processed food."

The research included a large number of participants over a long timespan, but it did have some limitations. As an observational study, no exact cause-and-effect conclusions can be drawn. And the participants were health professionals and predominantly White and non-Hispanic, "limiting the generalizability of our findings," the authors acknowledged.

But they wrote that the findings "provide support for limiting consumption of certain types of ultra-processed food for long term health." 

"Future studies are warranted to improve the classification of ultra-processed foods and confirm our findings in other populations," they added.

This study comes after other research published earlier this year found diets high in ultra-processed food are associated with an increased risk of 32 damaging health outcomes , including higher risk for cancer, major heart and lung conditions, gastrointestinal issues, obesity, type 2 diabetes, sleep issues, mental health disorders and early death.

Sara Moniuszko is a health and lifestyle reporter at CBSNews.com. Previously, she wrote for USA Today, where she was selected to help launch the newspaper's wellness vertical. She now covers breaking and trending news for CBS News' HealthWatch.

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