A "once-in-a-generation" report into New Zealand's health sector has recommended a significant overhaul of the country's district health board system and the creation of new health agencies.
COMMENT
New Zealand's health care system is underfunded, under-resourced and undervalued, it is suffering the ill-effects of the cutting of the proportion of the GDP spend on healthcare for nearly a decade.
The Health and Disability System Review provides us with a partial path to recovery.
However, the prescription forchange neglects to include a key element for the sustained good health of Aotearoa New Zealand's health care system, and that is its failure to make any mention of the right to health. Can we really have a credibly functioning health system when the ultimate recipients of health care – the people themselves – are not provided with a clear and inclusive voice?
Sadly, this oversight is not all that surprising because the right to health does not really feature in New Zealand legislation, more generally. The right to health is not included in the New Zealand Bill of Rights Act nor it is mentioned in the New Zealand Public Health and Disability Act, even though one of its purposes is the improvement, promotion and protection of the health of New Zealanders.
The right to health tends to be neglected because there is a persistent view that it is not a "real" right. New Zealand is not alone in adopting the traditional view that such decision-making, for better or for worse, is the responsibility of government and not the courts.
However, the New Zealand courts have recently had something to say about this in a series of judgments regarding the family-carer policy, judgments that have led this Government to engage in a review of policy and law.
The cost associated with giving effect to the right is another reason and it is a legitimate question, as legitimate as questions around the cost of an effectively functioning court system, for example, or the huge cost of this country's prison system. The right is regarded as being so vague that it is impossible to determine its legal meaning.
However, the right to health is very much a real right. At the global level, this right was recognised at least as far back as 1948, when New Zealand's Prime Minister, Peter Fraser, pushed for its inclusion in the Universal Declaration of Human Rights.
Since then, the right to health has been contained in core human rights documents generally as well as those relating to race women, children, persons with disabilities, and the rights of indigenous peoples.
Aotearoa New Zealand has agreed to protect and respect the rights contained in each of these documents.
So, what does the right to health actually mean? To start with, the right to health doesn't mean the right to be healthy. What it does mean is that everyone has freedoms and entitlements to ensure that they can enjoy "the highest attainable standard of physical and mental health".
What such rights and obligations look like has been broken down even further into four key elements.
One is availability, so that countries must have a sufficient amount of functioning public hospitals and other medical facilities, goods and services, as well as programmes.
Two is accessibility, which means that everyone must be able to access health facilities, goods and services without discrimination. Accessibility doesn't just mean physical access, to a hospital for example, it also means that health care must be economically accessible, in other words it must be affordable.
Three, the health care that is provided must be acceptable. For example, it must be sensitive to cultural beliefs, as well as age and gender.
Finally, the right to health means that healthcare must be of good quality, meaning for example, not only the right to skilled medical personnel, scientifically approved drugs and hospital equipment but also safe water and adequate sanitation.
Claire Breen. Photo / supplied
What are the benefits of including a right to health? A clear understanding of what the right to health actually means, provides us with a further tool with which to examine our health care system.
Awareness of the right to health can lead to improved health care practices, as well as practical and constructive contributions to efforts to ensure a more robust and effective health system.
A health system that incorporates the right to the highest attainable standard of health can help states ensure that their policies and practices are in conformity with their legally binding human rights duties, a win-win in law and in health.
Finally, where law and practice is failing, the right to health empowers the individual to hold the state accountable for such failures. This benefit is especially important and is noticeably lacking from the current review. It is a "once in a lifetime opportunity" missed once again.
• Claire Breen is a professor with Te Piringa Faculty of Law at Waikato University.
