Covid-19, Privatisation of Health Care and International Human Rights Law (Repost) – by Gema Ocaña
This blog was originally published on the Global Health Law Groningen Research Center Blog on the 27 of March 2020. It is republished here courtesy of Gema Ocaña and the Global Health Law Groningen Research Center.
Media across the globe have warned of the incapacity of health care systems to cope with the COVID-19 pandemic. The privatisation of health care systems and the cuts in public health budgets, especially in the aftermath of the 2008 financial crisis, are widely cited as the main reasons for such incapacity. This short piece asks: How the privatisation and under-budgeting of health care systems can affect our ability to respond to the pandemic caused by coronavirus? Does international human rights law have a role to play in this context?
As a starting point, it is important to note that international human rights law is neutral with respect to privatisation: it is neither for nor against it. This applies equally to privatisation of health care: international human rights law does not specify how health care services should be delivered or paid for, as long as the health care provision is consistent with states’ human rights obligations.
Understanding the human rights obligations of states is thus vital. A range of principles, doctrines and approaches are relevant to this task. In this piece I focus on one: the AAAQ framework. The international right to the highest attainable standard of health (right to health), stated in the article 12 of the International Covenant of Economic, Social and Cultural Rights, imposes a duty on States to provide health facilities, goods and services that must be accessible for all, especially for the most vulnerable or marginalised groups in the population. A key document interpreting this right, the General Comment 14, states that the right to health in all its forms and at all levels contains four essential elements that every State must ensure: namely, the availability, accessibility, acceptability, and quality of health facilities, goods and services (the AAAQ framework).
In this short article I will look at two components of this AAAQ framework—accessibility and availability —in relation to some specific concerns raised during the COVID-19 pandemic. Let’s start with the accessibility component.
Privatisation of health care has been accompanied in many countries by the introduction of out-of-pocket payments making access to health care less (or non) affordable. To briefly define the term out-of-pocket payments, it can be said that it refers to payments a person has to make directly at the time she uses health care services because these costs are not covered by the insurance plan. In countries where the population is heavily uninsured or underinsured, and out-of-pocket payments are high, the financial burden might prevent many people from seeking medical care because they are unable to afford it. Also, out-of-pocket payments can lead people to suffer financial catastrophe or hardship: they face such high expenditure in order to receive health care that they need to cut down on other necessities, such as food, or incur debt.
In the context of the current pandemic, the high cost of health care could lead people to avoid testing, treatment, and hospitalisation, potentially exposing more people to the virus, especially socio-economically disadvantaged populations, and this clashes with the affordability requirement of the AAAQ framework. According to the General Comment 14, one of the dimensions of the accessibility component is economic accessibility or affordability, meaning that health facilities, goods and services, whether privately or publicly provided, must be affordable for all, including socially disadvantaged groups. Moreover, the General Comment 14 states that equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.
Another important concern raised during the COVID-19 crisis relates to the availability component of the AAAQ framework. A significant issue that surrounds the privatisation of health care systems and is having a substantial impact in this pandemic is the cuts in health budgets. In our recent history, this trend has been particularly patent at the aftermath of the 2008 financial crisis, which led to a scenario characterised by the increasing privatisation and underfinancing of public health systems. The global financial crisis resulted in severe reductions in health budgets in some countries, sometimes because of actual or anticipated financial constraints and sometimes because the recession provided a justification for the imposition of austerity measures.
The availability component of the AAAQ framework demands that functioning public health and health care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the states. This includes, among others, adequate sanitation facilities, hospitals, clinics and other health-related buildings, and trained medical and professional personnel. In many countries the COVID-19 pandemic has brought evidence of a shortfall in medical resources—including insufficient safety equipment for medical personnel, beds in intensive care units or appropriate isolation—bringing to light the need for strongly funded health care systems that can meet the availability requirements.
The concerns on the impacts of privatisation of health care and austerity measures in the COVID-19 pandemic have been recently confirmed by the UN Independent Expert on the effects of foreign debt and human rights: ‘Over the last years, we have witnessed the adverse consequences of the marketization and privatization of a number of essential services, including health care and public health. So-called ‘cost-saving’ policies have been implemented in many countries. These developments must be reversed urgently so that States are able to meet the human rights and fiscal challenges posed by the COVID-19 crisis’. 
In the light of the global recession that is unfolding, there is a need to avoid the mistakes made in the past and to enable vigorous health facilities, goods and services accessible for all, especially for the most vulnerable and marginalised groups of the population. Engagement with health system financing and economic inequalities has been for a long time an uncharted territory for human rights advocates. Perhaps this is the time to start.
 AR Chapman, Global Health, Human Rights and the Challenge of Neoliberal Policies (Cambridge University Press, 2016) 125.
 ICESCR (UN General Assembly, International Covenant on Civil and Political Rights (16 December 1996) UN Doc 2200A (XXI)).
 General Comment No. 14 (2000) on the right to the highest attainable standard of health (article 12). E/C.12/2000/4. General Comments are documents aimed at clarifying the interpretation of human rights treaties. General Comment 14 is a key document interpreting the right to health stated in the art.12 of the ICESCR.
 World Health Organisation, The world health report, 2010: Health systems financing: the path to universal coverage (Geneva: WHO, 2010).
 Ibid 14.
 Human Rights Watch https://www.hrw.org/news/2020/03/19/us-address-impact-covid-19-poor accessed on 25 March 2020.
 Chapman (note 1) 101. See for instance the case of Ireland http://www.euro.who.int/__data/assets/pdf_file/0011/266384/The-impact-of-the-financial-crisis-on-the-health-system-and-health-in-Ireland.pdf?ua=1 or Spain in CAS Madrid (Comps), ¿Por nuestra salud? La privatización de los servicios sanitarios (Traficantes de sueños 2010).
 UN Independent Expert on the effects of foreign debt and human rights https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25732&LangID=E accessed on 25 March 2020.
Gema Ocaña is a PhD Candidate at Queen´s University Belfast and member of the Health and Human Rights Unit, Member of the Global Health Law Groningen Research Centre and Senior Advisor in EU funding at the University of Groningen.