This document outlines the challenges to the right to health care from a comparative legal perspective. It discusses the meaning of the right to health care under international law, focusing on developments in general comments and monitoring obligations. It also examines how the right is incorporated into national laws globally and trends toward more explicit recognition. Case studies are presented on litigation of health care access at the European Court of Human Rights regarding issues like medical treatment for prisoners and rationing decisions by national courts. Future challenges are discussed such as expanding the definition of human rights in health, the role of courts and guidelines in addressing rationing dilemmas, and ensuring fair processes for decision-making. Relevance for Ukraine is also noted.

1. Challenges to the Right to
Health Care. A Comparative
Perspective.
André den Exter

2. Outline
• Background
• Meaning of the Right to Health Care in International Law:
Recent Developments
• The Right to Health Care in National law
• The Justiciability of Health Care Access: Case studies
• Future Challenges
• Relevance to the Ukraine?

3. Background
 Economic crisis & Increase health care costs
 Health care market reforms
 Rationale
 Health care access as a recognised human right
 Litigating healthcare access
 Rationing
 Role of the Legislature

4. Meaning of the Right to Health Care in International
Law: Recent Developments
 Art. 12 (1) ICESCR ‘highest attainable standard of physical
and mental health’
 Art 12(2) ‘Steps to be taken to achieve the full realisation of
this right, in particular ....’
 General Comment on Health No. 14:
- Minimum core obligations
- Typology of obligations
- AAAQ
- Progressive realisation & no retrogressive measures
 Monitoring health care access and ‘human rights indicators’

5. The Right to Health Care in National law: Global
Trends
 Constitutional / Statutory Right
 Explicit or implicit recognition
 Constitutional commitments:
- equitable distribution and non-discriminatory
access
- treaty obligations outlined in international law
- irrespective the health care model
 Monitoring and review system (accountability)

6. The Justiciability of Health Care Access: Case
studies at the European Human Rights Court
Medical asylum seekers
 D. v. UK, App. no. 30240/96 (St Kitts): Deportation AIDS
infected patient subject to inhuman treatment?
Prisoners
 G. v. France, App no. 27244/09: Lack specialized treatment/
psychiatric supervision and inappropriate conditions detention:
Inhuman degrading treatment
Non-listed treatment methods
 Panaitescu v Romania, App no 30909/06 (ECtHR, 10 April
2012): denial of life saving medicine; breach right to life
 Hristozov v. Bulgaria, App no 47039/11 and 358/12 (ECtHR,
13 November 2012: no obligation to regulate access to
unauthorised medicines

7. The Justiciability of Health Care Access: Rationing
by national courts
UK: Swindon NHS Primary care Trust (Herceptin litigation)
Netherlands: Cost sharing under Health Insurance Act
annuled under ILO Convention 102/ECSS provisions (29-5-
1996, 8-9-2006)
Poland and Czech R.: Introduction HIS and Co-payments:
(restricting benefits); (K 8/96, 275 and K7/95, 414; Pl. US 1/08,
23 September 2008)
Austria: Viagra and Human Rights; OGH (10 ObS 12/06x):

8. The Justiciability of Health Care Access (2): Tragic
cases
New medical technologies and limited cost-effectiveness
 Germany: BVG 6 Dec 2005 (Nikolaus Beschluss):
lifesaving (experimental) medicine
‘Constitutional rights & likely positive effect on the
course of the disease’
 Switzerland: Fed. Supreme Crt. (Myozyme case), 23
Nov 2010
‘Cost-effectiveness threshold 100.000 CHF QALY’
 Policy Implications: Transparent criteria & Rationing
Procedure

9. Future Challenges
Rationing and Role Judiciary
 Innovative approach: Expanding definition human rights &
measuring States’ progressive realisation
 Court’s referral to and applying Oviedo Convention, art. 3
 Role of the EU Court Justice and EU Human Rights Charter
 Democratic debate on Rationing decision-making and moral
dilemmas
 Importance of professional guidelines/protocols, adressing
both clinical and cost-effectiveness & human rights arguments
 Fair rationing

10. Relevance to Ukraine?

11. References
A. den Exter, Health care Law-making in CEE. Review of a Legal-
Theoretical Model, Maklu Press (2002)
A. den Exter and M. Buijsen (eds.), Rationing Health Care. Hard choices
and unavoidable trade-offs, Maklu Press (2010)
A. den Exter (ed). Compendium of European Health Law, Maklu Press
(2016)
/www.bmg.eur.nl/english/research/eu_projects/jean_monnet_programme
/
Contact: denexter@bmg.eur.nl