This article was written by Lawrence O. Gostin, Sarah Wetter, and Eric Friedman
In his closing remarks at the 72nd World Health Assembly (WHA) on May 28, 2019, WHO Director-General Tedros Adhanom Ghebreyesus urged countries to “commit to regular accountability” in fulfilling promises to meet the UN’s Sustainable Development Goals (SDGs). Over course of the nine-day meeting, member states passed wide-ranging resolutions, spanning from universal health coverage (UHC), access to medicines, and migrant and refugee health, to pandemic preparedness. Yet as Dr. Tedros highlighted, resolutions are purposeless without policies and programs designed to deliver results. This requires strong political will, sustainable funding, and action at the country level. It demands that clear targets be set and progress monitored to keep actors accountable. Accountability is the hallmark of good governance, along with transparency, honest stewardship, and inclusive participation.
As the recent Lancet-O’Neill Commission report demonstrates, the law is a vital tool for fulfilling pledges to advance health. Though its capacity to advance global public health has been underutilized, law has been central to major public health achievements, including in tobacco control, non-communicable diseases, road safety, and public health emergencies. The report includes a vital case study on how law can achieve UHC. We plan, in partnership with WHO, a Standing Lancet Commission, with its first project, “Legal Solutions for UHC.”
The right to health is a legally binding human rights principle that provides a foundation for advancing global health with justice. This right aligns with the core SDG promise to leave no one behind. For under this right, every human being has a claim to affordable, high quality health services, including the underlying determinants of health. Yet, the issues that define global health today, including inequitable access to health services and essential medicines, international migration, and emerging infectious diseases, threaten to drive realization of the right to health only further out of reach for already disadvantaged populations. Whether WHO member states respond to these preeminent global health issues consistent with their SDG promises hinge on their enacting and enforcing evidence-based legal interventions firmly grounded in human rights.
Universal Health Coverage
At least half the world’s population continues to be deprived of access to health services, essential for human health and wellbeing. Paying out of pocket for health services pushes nearly 100 million into extreme poverty every year. Beyond staggering rates of infectious and noncommunicable diseases, the inaccessibility of health services perpetuates inequities in gender, ethnicity, wealth, and educational attainment. Achieving UHC, while itself an SDG target, will require action across many of the SDGs. It means that all individuals and communities receive needed, quality health services – from health prevention and treatment of disease to rehabilitation and palliative care. It includes protection from financial hardships from paying for essential health services out of pocket, eliminating financial decisions on health that no one should ever have to make.
Delegates at the 72nd WHA adopted three resolutions on UHC. The first urges member states to implement the Declaration de Astana – the 40-year follow-up to the Declaration of Alma Ata – which stresses the critical role of primary health care to bring needed health services to any person, anywhere in the world, at any point in her lifespan. The second resolution recognizes the role of well-trained community health workers in delivering UHC. Strengthening the health workforce is imperative. Without action, there is an expected shortage of 18 million health workers by 2030. The health worker crisis results from insufficient professional educational capacity, poor working conditions, and low salaries. Retaining health workers is especially difficult, as many flee to higher-income countries for better opportunities. Community health workers could be the backbone of primary care delivery, requiring WHO leadership and support to ensure health workers have proper training, supervision, certification, renumeration, and recognition. Meanwhile, robust and sustainable funding for community and other health workers is urgently needed.
The third resolution looks forward to the UN High-Level Meeting on Universal Health Coverage this September. While the General Assembly will adopt a political declaration, are governments truly willing and prepared to take political and financial action to fully achieve UHC? This requires fidelity to the right to health. Will governments enact laws that prohibit discrimination and actively facilitate access for all, including the most vulnerable—migrants, people with disabilities, and linguistic/cultural/ethnic minorities? Will governments maintain transparent, participatory, and accountable processes to set priorities and determine benefits? In line with international assistance obligations, will wealthier countries support lower-income countries with funding to ensure that people can access quality health services – no matter which country they call home?
Access to Essential Medicines and Health Products
Rising costs of health products like medicines, vaccines, and health technologies are a major source of financial hardships, inequitable healthcare access, and barriers to UHC. For example, the price of drug treatment for hepatitis C exceeds average annual earnings for people in 12 countries. Can we really allow transformative treatments to remain a commodity of the wealthy? As described by Suzanne Hill, head of the WHO’s Department of Essential Medicines and Health Services, these cost-prohibitive, disparate drug prices are “an indicator of a system that is no longer functioning in a way that allows public health goals to be met.”
In the months leading up to the 72nd WHA, Italy’s Minister of Health Giula Grillo spoke out on the urgency for better understanding what drives the high costs of drugs, vaccines, and health-related technologies through greater transparency among pharmaceutical and other markets. She put forward a draft WHA resolution entitled, “Improving the Transparency of Markets for Medicines, Vaccines, and Other Health Products.” The draft would have mandated greater transparency in the prices that governments and other buyers of health products pay to pharmaceutical companies, and the determinants for setting these prices. Further, it would have mandated enhanced public disclosure of research and development costs that are often used to justify high drug prices. Yet facing great opposition from countries including the U.S., the resolution was revised to encourage voluntary, rather than mandated, disclosures. Advocates for transparency objected to this watered down version, calling it “practically useless” towards making the necessary market reforms. Others, including Germany, the United Kingdom, and Hungry felt it still went too far, and ultimately disassociated from the resolution.
The language of the adopted resolution is insufficient to create a strong and enforceable commitment among nations to make lasting reforms to pharmaceutical and technological markets. Still, it is essential that countries do not bypass the opportunity to enact national legislation to guarantee public access to information on the price and cost of health products. By requiring global transparency, we can better understand how prices are set, affording the opportunity to fix a broken system and put lifesaving treatments within reach.
Migrant and Refugee Health
Central to UHC is the concept that everyone – include the most vulnerable and marginalized populations, like migrants – has access to high quality health services. With 1 billion migrants globally – 258 million of whom have crossed international borders – migration is a defining global health issue. Climate change and political instability will only lead to more migration. Migrants who escape from life-threatening conditions and travel hazardous routes frequently suffer complex physical and mental health conditions. Yet their access to high-quality health services is often blocked. Legislation in many countries prohibits migrants from participating in national healthcare programs, classifies undocumented migrants as “criminals,” or denies them of the right to health entirely. Further, most refugees (about 85%) flee to lower-income countries that are unable to absorb the overwhelming number of displaced persons into their health systems. To reach UHC, it is essential to have an international framework of shared responsibility, guaranteeing migrants the right to health and supporting low-resourced nations.
The 72nd WHA adopted WHO’s Global Action Plan on Promoting the Health of Refugees and Migrants, 2019-2023 (GAP). The GAP emphasizes high-quality and accessible care at all stages of migration: from domestic conditions, through migrants’ journeys, and on to their new home countries, whether temporarily or permanently. Its priorities include quality health care, occupational health and safety, mental health, public health, and social determinants of health. GAP supports cross-border collaboration and the implementation of two UN compacts on shared responsibilities for migrant and refugee health. It aims to improve data collection and, critically, to counter misperceptions that foster discrimination and xenophobia. WHO needs to provide global leadership by supporting rights-based national legal frameworks, helping build bottom-up social action, and supporting inclusive participation of affected communities.
GAP holds much promise, yet it relies on national action for its promises to come to fruition. Some countries, like Portugal, lamented the voluntary nature of GAP reporting requirements. The GAP can only be achieved through national legislation. A bolder commitment would entail holding countries accountable for revising and enacting rights-based, non-discriminatory legal frameworks. Law and policy reforms should guarantee migrants and refugees equal access to all health and social benefits. National policies that require health workers to disclose a patient’s legal status to immigration authorities can deter migrants from seeking care and must also be reformed. WHO must take the lead on advocating for legal reforms and ensuring that local migrant organizations and networks take part in domestic policy-making.
Preparing for Pandemics: PIP Framework in Tension with the Nagoya Protocol
Over 100 years since the 1918 Spanish Flu pandemic, preparing the world for a highly lethal influenza outbreak remains essential to the right to health. Critical to global health security is international cooperation in sharing pathogens and their genetic information for developing vaccines and other medical countermeasures. At the same time, it is vital to equitably share the benefits gained through scientific research. Since 2011, the Pandemic Influenza Preparedness Framework (PIP) has provided procedures and guidelines for sharing influenza viruses of pandemic potential, and their derived benefits (e.g., vaccines, therapies). Yet hesitancies in the sharing of pathogens and their genetic sequencing data (GSD) remain. For one, low-and middle-income countries, often on the front lines of infectious disease outbreaks, have legitimate concerns that countermeasures derived from shared pathogens or GSD will be unaffordable. Or, as demonstrated between China and the U.S., pathogen sharing could become intertwined in a political or trade dispute. To make matters even more complex, unclear and conflicting international arrangements leave vital questions on global responsibilities unanswered.
The 72nd WHA was viewed as an opportunity to answer these questions, primarily surrounding national obligations derived from the 2014 Nagoya Protocol, a supplement to the Convention on Biological Diversity (CBD). The Nagoya Protocol encourages the fair and equitable sharing of benefits arising from genetic resources, but also allows countries to make sovereign determinations on conditions for access; conditions could differ among genetic resources. As expressed in a 2016 WHO report, this approach threatens to slow or undermine the PIP Framework. Countries could set additional requirements under Nagoya, sowing confusion and complicating the sharing of influenza viruses. WHO laboratories could be thwarted in gaining speedy access to virus samples for research and development.
The 72nd WHA did little to answer lingering questions on global responsibilities related to Nagoya and PIP. The Health Assembly requested the WHO Director-General to engage with member states, the CBD Secretariat, and stakeholders to discern current pathogen-sharing practices and their implications for benefit-sharing and public health outcomes. Much is at stake. To ensure that all populations can be protected from the next influenza pandemic – including people in the poorest countries – it is essential that countries continue to recognize and fulfill their obligations to share viral information as well as derived benefits. Legal arrangements must be in place to ensure that the Nagoya Protocol is interpreted to avoid inhibiting the strongest possible protections against pandemic influenza. Perhaps even more concerning, the PIP Framework only applies to pandemic influenza virus samples, while omitting all other viruses, such as MERS and Ebola.
Mutual Solidarity Among Nations
Whether tackling the rising costs of drugs, providing health services to migrants, or preparing for the next pandemic, several things are clear. First, these objectives demand that nations recognize and fulfill their shared responsibilities, even where WHA resolutions contain voluntary language. High-income countries must not put their own interests – such as protecting current pricing practices of their pharmaceutical companies – above the urgency of extending high-quality health services to everyone. Second, realizing these objectives requires concrete national action. Under the guidance and with the support of WHO, national laws, policies, and programs that are designed to deliver results and adhere to human rights principles must be put into place. Finally, domestic policies must be explicitly designed to address health inequities and advance the right to health. Across the globe, health indicators are improving—but not for everyone. Millions of vulnerable people are being left behind. We must not let global health achievements mask the reality that the gap in access to health goods and services persists – and in many cases, even widens. The 72nd WHA saw some progress. Yet, the task of achieving health with justice has a long way to go.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.