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Should India make health a fundamental right?


As a symbolic gesture, it is great to make health a justiciable right; but as citizenry, we would be foolish to let the healthcare debate be hijacked by this non-issue, or remain satisfied by a piece of legislation

As the legal guardian responsible for the safety and security of all its citizens, it is the state’s duty to protect its citizens from mortality and morbidity caused by disease and illness as well. Photo: Praiyanka Parashar/Mint

The draft National Health Policy 2015 (NPH) released by the National Democratic Alliance (NDA) government on 31 December 2014 seems to have its heart in the right place.
Its intentions are noble—universal and affordable healthcare. Its understanding of the challenges is clear—pathetic state of primary care, scarcity of trained human resources, fragmented approach to healthcare delivery, and so on. And its strategies for improving what it calls “health outcomes” border on the idealistic: raise government expenditure on healthcare from the current 1.04% to 2.5% of the GDP.
More than its avowed goals and strategies, however, what has attracted the most attention so far is the policy’s intent to make health a fundamental right. Doing so would make denial of health “justiciable”—which basically means that you can sue the state if you are sick and unable to access healthcare.
The idea of making health a fundamental right is an old, comfortable, feel-good debate. So let’s consider its broad contours. The case in favour can be summed up as follows: the right to health is a natural corollary of the right to life and, therefore, denying someone healthcare is like denying a living human being the right to live out her natural life span.
As the legal guardian responsible for the safety and security of all its citizens, it is the state’s duty to protect its citizens from mortality and morbidity caused by disease and illness as well. Making health a fundamental right would thus give citizens the power to hold the state accountable for fulfilling its responsibility toward them.
As for the case against, the most common one is the libertarian position. This can be summed as follows: while health, in certain preventative aspects, may require a degree of engagement from the state, in a world cleansed, for the most part, of epidemics and the most dangerous communicable diseases, it is the individual who is responsible for her health. And if she falls sick, she must pay for it—and not just monetarily but also in a punitive sense—for having been irresponsible enough to fall ill (through neglect, etc.,) and impose a social cost on society.
The other set of arguments usually brought up against making health a right are the pragmatic ones, to do with the capacity of the state to deliver on such a promise—where is the money going to come from, where are the hospitals, where are the trained health workers, etc.
Those who support health as a fundamental right counter the above criticisms by pointing out that it is not only the individual who is responsible for her health but also the circumstances in which she lives and works, and these are often not under her control.
For example, Delhi is the world’s most polluted city. In winter especially, you can barely venture out in the morning smog without catching an infection. Isn’t the state responsible for controlling pollution? If health was a fundamental right, then the government would be compelled to think seriously about the pollution aspect or the environmental impact when, say, granting permissions for new industries or framing development policies.
Furthermore, when health is enshrined in law as a right, it is a public acknowledgement that we make as a society about our collectively held values as a nation. A state which holds health as a fundamental right, for instance, will have to think twice before giving a free run to the pharma lobby on drug pricing.
The question is not so much about the legal enforcement of health as a right as about health-as-a-right being an ever-present guiding principle for government policy in every sphere. This would be a principle that all ministries (not just the health ministry) will need to take into account—including the finance ministry, which, incidentally, is reported to have slashed the 2014-15 health budget by 20% even as the health ministry has been busy putting out an official document proposal health as a right.
Also, given that most nations are now moving towards a commitment to some form of universal health coverage, there is, indeed, a strong case to be made for making health a fundamental right.
At the end of the day, in a country where 63 million people slip back into poverty due to catastrophic healthcare costs, it is hard not to see the logic of legally mandating health as a right, and thereby empowering the citizen to hold the state accountable for it.
But all said and done, making health a right is no longer such a big deal. Even the World Health Organization (WHO), which is not exactly a champion of socialist values, has been batting aggressively for universal health care. In fact, the whole NPH 2015 document seems to have been inspired by the WHO’s report on health system financing, which calls for an insurance-centric (pooling together of funds via compulsory prepayment) universal healthcare programme. The US‘ Obamacare is one such model, and one of its many flaws, which has been pointed out by its critics, is that, in the name of improving efficiency, it inflates costs exponentially, thereby increasing fiscal burdens and sovereign debt, while locking in a steady inflow of funds for the insurance industry, i.e., global finance capital.
The United Kingdom’s National Health Service (NHS) is the other model—the single-payer system—where it is not premium-paying individuals but the government which directly bears everyone’s medical cost through funds raised by wealth taxes and progressive income tax. In this system, everybody is covered automatically from birth to death, for every illness, and healthcare costs are much cheaper and more under control on account of bulk purchasing of drugs, centralized budgeting for hospitals, and so on.
If we are serious about health outcomes, and evidence-based decision-making, there is no debate here—the NHS model wins hands down.
The reason for this detour into a discussion of Obamacare and NHS is that the NPH 2015 is essentially setting the stage for the NDA government’s Universal Health Assurance plan, which will be rolled out, with much fanfare, no doubt, later this year.
The point being that, rather than getting carried away by the symbolism of making health a right, the real focus of public concern and debate ought to be the mode of delivery. Here, the worrying indications are that India might be headed the Obamacare way. This means ballooning health care costs and fiscal nightmares—but also much political goodwill in the short-term for the incumbent regime—before people wake up, too late, to the fact that it is more hype than substance.
In other words, it really doesn’t matter whether or not India makes health a fundamental right—that is not the real debate. For reasons that have less to do with a sudden outburst of welfarist concern for the health of the poor and more to do with the unfolding imperatives global finance capital, universal healthcare is coming to India in any case. So yes, as a symbolic gesture, it is great to make health a justiciable right. But as a citizenry, we would be foolish to let the healthcare debate be hijacked by this non-issue, or remain satisfied by a piece of legislation.

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