The International Covenant on Economic, Social and Cultural Rights requires states parties to create ‘conditions which would assure to all medical attention in the event of sickness’, including both physical and mental health (Article 12(2)(d)). In its General Comment 14, the ESCR Committee elaborates further on this right and finds that it includes the provision of equal and timely access to basic preventive, curative, rehabilitative health services and health education; regular screening programmes; appropriate treatment of prevalent diseases, illnesses, injuries and disabilities, preferably at community level; the provision of essential drugs; and appropriate mental health treatment and care. Furthermore, an important aspect is the improvement and furtherance of participation of the population in the provision of preventive and curative health services, such as the organisation of the health sector, the insurance system and, in particular, participation in political decisions relating to the right to health taken at both the community and national levels. Below follows a selection of both international and domestic case-law dealing with the right to health facilities, goods and services.
In the following case, Purohit and Moore v. The Gambia , the African Commission recognised that the right to health under the African Charter includes the right to health facilities, access to goods and services. In this case, the African Commission deals specifically with mental health care and defines clearly the obligations of states parties with regard to mental health patients. This case is also discussed in the right to life.
Purohit and Moore v. The Gambia
African Commission on Peoples’ and Human Rights
Communication No. 241/2001
Sixteenth Annual Report 2002/2003, Annex VII
Keywords: health - non-discrimination - equal treatment - human dignity - liberty of person - security of person - defence
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Summary of Facts
1. The Complainants are mental health advocates, submitting the communication on behalf of patients detained at Campama, a Psychiatric Unit of the Royal Victoria Hospital, and existing and ‘future’ mental health patients detained under the Mental Health Acts of the Republic of The Gambia.
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3. The Complainants allege that legislation governing mental health in The Gambia is outdated.
4. It is alleged that within the Lunatics Detention Act (the principle instrument governing mental health) there is no definition of who a lunatic is, and that there are no provisions and requirements establishing safeguards during the diagnosis, certification and detention of the patient.
5. Further, the Complainants allege that there is overcrowding in the Psychiatric Unit, no requirement of consent to treatment or subsequent review of continued treatment.
6. The Complainants also state that there is no independent examination of administration, management and living conditions within the Unit itself.
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LAW
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Merits
39. The present communication was declared admissible at the African Commission’s 31 Ordinary Session in May 2002. [?].
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77. The Complainants submit that the scheme and operation of the LDA both violate the right to health provided for in Article 16 of the African Charter when read with Article 18 (4) of the African Charter.
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80. Enjoyment of the human right to health as it is widely known is vital to all aspects of a person’s life and well-being, and is crucial to the realisation of all the other fundamental human rights and freedoms. This right includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind.
81. More so, as a result of their condition and by virtue of their disabilities, mental health patients should be accorded special treatment which would enable them not only attain but also sustain their optimum level of independence and performance in keeping with Article 18(4) of the African Charter and the standards applicable to the treatment of mentally ill persons as defined in the Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care.
82. Under the Principles, “mental health care” includes analysis and diagnosis of person’s mental condition and treatment, care and rehabilitation for a mental illness or suspected mental illness. The Principles envisage not just ‘attainable standards’, but the highest attainable standards of health care for the mentally ill at three levels. First, in the analysis and diagnosis of a person’s mental condition; second, in the treatment of that mental condition and; thirdly, during the rehabilitation of a suspected or diagnosed person with mental health problems.
83. In the instant case, it is clear that the scheme of the LDA is lacking in terms of therapeutic objectives as well as provision of matching resources and programmes of treatment of persons with mental disabilities, a situation that the Respondent State does not deny but which never-the-less falls short of satisfying the requirements laid down in Articles 16 and 18(4) of the African Charter.
84. The African Commission would however like to state that it is aware that millions of people in Africa are not enjoying the right to health maximally because African countries are generally faced with the problem of poverty which renders them incapable to provide the necessary amenities, infrastructure and resources that facilitate the full enjoyment of this right. Therefore, having due regard to this depressing but real state of affairs, the African Commission would like to read into Article 16 the obligation on part of States party to the African Charter to take concrete and targeted steps, while taking full advantage of its available resources, to ensure that the right to health is fully realised in all its aspects without discrimination of any kind.
85. The African Commission commends the Respondent State’s disclosure that there is no significant shortage of drug supplies at Campama and that in the event that there are drug shortages, all efforts are made to alleviate the problem. Furthermore, that it has taken steps to improve the nature of care given to mental health patients held at Campama. The Respondent State also informed the African Commission that it is fully aware of the outdated aspects of the LDA and has therefore long taken administrative steps to complement and/or reform the archaic parts of the LDA. This is however not enough because the rights and freedoms of human beings are at stake. Persons with mental illnesses should never be denied their right to proper health care, which is crucial for their survival and their assimilation into and acceptance by the wider society.
For the above reasons, the African Commission,
Finds the Republic of The Gambia in violation of Articles [?] 16 and 18(4) of the African Charter.
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In the following case, Rosario Congo v. Ecuador , Mr. Congo, a person suffering from mentally illness was charged with robbery and assault and placed in a detention centre, the Social Rehabilitation Center in Machala. While in detention, Mr. Congo was subjected to physical and moral assault by staff of the Rehabilitation Center and he received no medical care to treat his wounds. Moreover, although he was diagnosed as mentally ill, he was kept in isolation and his basic physical needs were disregarded in the knowledge that he was in no condition to care for himself. While still in detention, Mr Congo died of malnutrition, hydroelectrolitic imbalance, and heart and lung failure.
Rosario Congo v. Ecuador
Inter-American Commission on Human Rights
Case 11.427, Report No. 63/99, Decision of 13 April 1999
Keywords: life - humane treatment - judicial protection
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B. Issues of law
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1. Right to humane treatment
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59. In this case, the Commission considers that the solitary confinement to which Mr. Congo was subjected constitutes inhuman and degrading treatment in the terms of Article 5(2) of the American Convention . This violation is aggravated by the fact that he was left in isolation unable to satisfy his basic needs. Consequently, the Ecuadorian State violated the right of Víctor Rosario Congo to “be treated with respect for the inherent dignity of the human person.”
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65. In its Report No. 28/9613 the Commission found that retaining in custody, and without medical treatment, a person who was suffering from cerebral edema and cholera constituted a violation of physical, mental and moral integrity and of the prohibition on the infliction of inhuman, cruel or degrading treatment, established in Article 5 of the American Convention.
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67. The Commission considers that a violation of the right to physical integrity is even more serious in the case of a person held in preventive detention, suffering a mental disease, and therefore in the custody of the State in a particularly vulnerable position.
68. The Commission concludes from the foregoing that the State is responsible for not taking the necessary measures to protect the physical, mental and moral integrity of the victim. It is not clear from the positions of the parties whether his condition was investigated promptly or belatedly by the authorities; in any case, once that condition was established, the State failed to provide the medical treatment needed to ensure his physical integrity.
2. The right to life
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82. The European Court of Human Rights has established that the state of health of a victim is an important factor in determining whether they have been subjected to inhumane or degrading punishment or treatment.21 The Commission must take into consideration that the death of the victim occurred as a consequence of dehydration and malnutrition. Persons with mental disability are not able to look after themselves and require care, treatment and supervision for their own protection. In this case, therefore, the agents of the State charged with the personal safety of Mr. Congo were not in a position to assume that the inmate was capable of feeding and caring for himself. The fact that the supposed victim died as a result of his dehydration and malnutrition reveals that the State failed in its duty to do what was in its power to keep him alive, given his mental and physical disorders. The petitioners have not argued that Mr. Congo was deliberately deprived of water and food, but the State has not shown that it took the measures incumbent on it to ensure that the alleged victim would be properly fed during the time of his isolation. Nor does the fact that the inmate may have displayed antisocial behaviour– a symptom of his disorder in any case–exempt the State from taking such measures as are in its power to keep him alive. As held by the European Commission in the case of Dhoest vs. Belgium, the obligation of authorities to watch continually over the health and welfare of persons with mental disabilities extends to the cases of prisoners who are uncooperative. Therefore, given the causes of his death, and apart from having omitted to provide him with medical and psychiatric care, the State neglected its obligation to protect the life of inmate Víctor Rosario Congo.
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84. On the basis of the foregoing, the Commission concludes that in the present case the State failed to take the measures in its power to ensure the right to life of a person who, partly because of his state of health and in part owing to injuries inflicted on him by a State agent, was defenseless, isolated and under its control. Therefore, Ecuador has violated the right to life of Mr. Congo, as enshrined in Article 4 of the American Convention, and omitted to discharge its obligations under Article 1(1) thereof.
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VI. ARTICLE 50 REPORT AND CONSIDERATIONS ON COMPIANCE WITH THE RECOMMENDATIONS SET FORTH THEREIN
98. On September 29, 1998, during its 100° Regular Session, the Commission approved Report 51/98 according to Article 50 of the American Convention. The Report concluded that the State was responsible for the violation of the rights to life (Article 4), to humane treatment (Article 5(1) (2)), and to judicial protection (Article 25), set forth in the American Convention, in conjunction with the obligation established in Article 1(1) thereof. The Commission recommended the State to: 1) Conduct a serious, impartial and prompt investigation to identify, try and punish the persons responsible for the violations specified in the conclusions of this report. 2) Take appropriate measures to compensate the family members of Víctor Rosario Congo. 3) Provide medical and psychiatric care for persons suffering from mental illness and confined in penitentiary facilities. 4) Assign to the health services of the penitentiary system specialists able to identify psychiatric disorders that can affect the lives and the physical, mental and moral integrity of those confined in it. Report 51/98 was notified to the State on October 20 1998 with a three-month period to present information regarding compliance with the above recommendations.
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VII. CONCLUSIONS
101. Based on the above considerations of fact and law, the Commission finds that the recommendations issued in Report 51/98 have yet to be complied with, and therefore ratifies its conclusion that the Ecuadorian State is responsible for the violation of the rights to life (Article 4), to humane treatment (Article 5(1) (2)), and to judicial protection (Article 25), set forth in the American Convention, in conjunction with the obligation established in Article 1(1) thereof.
VIII. RECOMMENDATIONS
102. On the basis of the foregoing conclusions,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES:
103. To reiterate its recommendations to the State of Ecuador that it:
1. Conduct a serious, impartial and prompt investigation to identify, try and punish the persons responsible for the violations specified in the conclusions of this report.
2. Take appropriate measures to compensate the family members of Víctor Rosario Congo.
3. Provide medical and psychiatric care for persons suffering from mental illness and confined in penitentiary facilities.
4. Assign to the health services of the penitentiary system specialists able to identify psychiatric disorders that can affect the lives and the physical, mental and moral integrity of those confined in it.
Comment
The Inter-American Commission decided in this case to base its decision on the right to life (Article 4); right to humane treatment (Article 5); and the right to judicial protection (Article 25) of the American Convention, as well as the obligation to guarantee the enjoyment of such rights (Article 1(1)) and did not find it necessary to invoke the right to health (Article 10) of the Protocol of San Salvador under Article 26 of the American Convention or the right to health as guaranteed under the American Declaration of the Rights and Duties of Man . Instead, the Commission based its recommendations to give protection to persons with mental illness on the right to humane treatment.
Similarly, the Human Rights Committee has applied the right to life to protect the health and well-being of detainees and prisoners. In Lantsova v. The Russian Federation , Mr Lantsov was placed in a pre-trial detention centre in March 1995 and died one month later. The prison was overcrowded and conditions were inhuman because of inadequate ventilation, food and hygiene. The Human Rights Committee found a violation of the right to life since the state had failed to take steps to ascertain Mr Lantsov’s health and provide adequate medical assistance and conditions of detention (reproduced in the right to life, The duty to take adequate measures to protect the lives of individuals held in state custody ).
At the European level, there is a general positive obligation to regularly review conditions of detention to meet the requirements of the health and well-being of a detainee or a prisoner. If a detainee requires special medical treatment because of a health problem, a state is obliged under Article 3 (freedom from torture or inhuman or degrading treatment or punishment) to ensure that the conditions of detention are suited to his/her poor state of health, and that he/she receives adequate medical, palliative and psychological treatment in detention (see, e.g., Kudla v. Poland , Application No. 30210/96, Judgement of 26 October 2000, para. 94 and Price v. The United Kingdom , Application No. 33394/96, Judgement of 10 July 2001, paras. 21-30). The alternative is to grant provisional release and hospitalisation to enable proper medical care. Failure to do either may result in degrading or even inhuman treatment. In McGlinchey et al. v. The United Kingdom (also discussed in prohibition of torture and ill-treatment, Conditions of Detention ). Judith McGlinchey, a heroin addict, died while in prison because of the failure of the prison authority to take effective measures when confronted with her serious weight loss and dehydration. The European Court found a violation of Article 3 as:
57. The evidence indicates to the Court that by the morning of 14 December 1998 Judith McGlinchey, a heroin addict whose nutritional state and general health were not good on admission to prison, had suffered serious weight loss and was dehydrated. This was the result of a week of largely uncontrolled vomiting symptoms and an inability to eat or hold down fluids. This situation, in addition to causing Judith distress and suffering, posed very serious risks to her health, as shown by her subsequent collapse. Having regard to the responsibility owed by prison authorities to provide the requisite medical care for detained persons, the Court finds that in the present case there was a failure to meet the standards imposed by Article 3 of the Convention. It notes in this context the failure of the prison authorities to provide accurate means of establishing Judith’s weight loss, which was a factor that should have alerted the prison to the seriousness of her condition, but was largely discounted due to the discrepancy of the scales. There was a gap in the monitoring of her condition by a doctor over the weekend when there was a further significant drop in weight and a failure of the prison to take more effective steps to treat Judith’s condition, such as her admission to hospital to ensure the intake of medication and fluids intravenously, or to obtain more expert assistance in controlling the vomiting.
58. The Court concludes that the prison authorities’ treatment of Judith McGlinchey contravened the prohibition against inhuman and degrading treatment contained in Article 3 of the Convention.
In Paschim banga Khet Samity v. State of West Bengal the petitioner fell off a train at Mathurapur Station in West Bengal suffering serious head injuries and brain haemorrhage. He was denied treatment in all six government-owned hospitals due to alleged non-availability of facilities including bed space. The issue before the Supreme Court of India was whether the non-availability of hospital facilities to a person suffering serious injuries resulted in the denial of his right to life guaranteed under Article 21 of the Constitution of India.
Paschim banga Khet Samity v. State of West Bengal
Supreme Court of India
Case No. 169, Judgement of 6 May 1996
Keywords: health – social security - welfare – life
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1.In Pt. Parmanand Katara v. Union of India (1989) 4 SCC 286 : (AIR 1989 SC 2039) this Court in the context of medico-legal cases, has emphasised the need for rendering immediate medical aid to injured persons to preserve life and the obligations of the State as well as doctors in that regard. This petition, filed under Article 32 of the Constitution raises this issue in the context of availability of facilities in Government hospitals for treatment of persons sustaining serious injuries.
2. Hakim Seikh [Petitioner No.2] who is a member of Paschim Banga Khet Mazdoor Samity [petitioner No.1], an organisation of agricultural labourers, fell of a train at Mathurapur Station in West Bengal at about 7.45 P.M. on July 8, 1992. As a result of the said fall Hakim Seikh suffered serious head injuries and brain haemorrhage. He was taken to the Primary Health Centre at Mathurapur. Since necessary facilities for treatment were not available at the Primary Health Centre, the medical officer in charge of the Centre referred him to the Diomond Harbour Sub-Divisional Hospital or any other State hospital for better treatment. Hakim Seikh was taken to N.R.S. Medical College Hospital near Sealdah Railway Station, Calcutta at about 11.45 P.M. on July 8, 1992. The Emergency Medical Officer in the said Hospital, after examining him and after taking two X-rays prints of his skull recommended immediate admission for further treatment. But Hakim Seikh could not be admitted in the said hospital as no vacant bed was available in the Surgical Emergency ward and the regular Surgery Ward was also full. He was thereafter taken to Calcutta Medical College Hospital at about 12.20 A.M. on July 9, 1992, but there also he was not admitted on the ground that no vacant bed was available. He was then taken to Shambhu Nath Pandit Hospital at about 1.00 A.M. on July 9, 1992. He was not admitted in that hospital and referred to a teaching hospital in the ENT, Neuro Surgeon Department on the ground that the hospital has no ENT Emergency or Neuro Emergency Department. At about 2.00 A.M. on July 9, 1992 he was taken to the Calcutta National Medical College Hospital but there also he was not admitted on account of non-availability of bed. At about 8.00 A.M. on July 9, 1992 he was taken to the Bangur Institute of Neurology but on seeing the CT Scan (which was got done at a private hospital on payment of Rs.1,310/-) it was found that there was haemorrhage condition in the frontal region of the head and that it was an emergency case which could not be handled in the said Institute. At about 10.00 A.M. on July 9, 1992 he was taken to SSKM Hospital but there also he was not admitted on the ground that the hospital has no facility of neuro surgery. Ultimately he was admitted in Calcutta Medical Research Institute, a private hospital, where he received treatment as an indoor patient from July 9, 1992 to July 22, 1992 and he had incurred an expenditure of approximately Rs.17,000/- in his treatment.
3. Feeling aggrieved by the indifferent and callous attitude on the part of the medical authorities at the various State run hospitals in Calcutta in providing treatment for the serious injuries sustained by Hakim Seikh the petitioners have filed this writ petition.
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9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities of the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the Medical Officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State, the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the Court of such violation by way of redress in proceedings under Article 32 and 226 of the Constitution.[?]
Comment
The Court upheld the petition and ordered payment of compensation to petitioners. It noted that Article 21 imposes an obligation on the state to regard the preservation of human life as of paramount importance. The government hospitals and the medical officers employed therein are duty-bound to extend medical assistance to preserve human life and cannot avoid responsibility for such denial. The Court also acknowledged that the adequacy of health care resources critically depended on the availability of financial resources and should thus be provided by states to the best of their ability.
In a South African case,Soobramoney v. Minister of Health , the applicant suffered from chronic renal failure and was in vital need of renal dialysis to be kept alive. He sought service in a state-founded hospital and was denied treatment because his general physical condition did not qualify him for treatment under the guidelines used by the hospital to determine eligibility for such treatments. The issue before the Constitutional Court of South Africa was whether the hospital had violated the applicant’s right not to be ‘refused emergency medical treatment’ in accordance with section 27(3) of the South African Constitution. The Constitutional Court of South Africa found in favour of the state:
1. [20] Section 27(3) itself is couched in negative terms – it is a right not to be refused emergency treatment. The purpose of the right seems to be to ensure that treatment be given in an emergency, and is not frustrated by reason of bureaucratic requirements or other formalities. A person who suffers a sudden catastrophe which calls for immediate medical attention [?] should not be refused ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment. [?] What the section requires is that remedial treatment that is necessary and available be given immediately to avert that harm.
[21] The applicant suffers from chronic renal failure. To be kept alive by dialysis he would require such treatment two to three times a week. This is not an emergency which calls for immediate remedial treatment. It is an ongoing state of affairs resulting from a deterioration of the applicant’s renal function which is incurable. In my view section 27(3) does not apply to these facts.
Thus, the Constitutional Court of South Africa did not find that the South African state had violated the right of the applicant not to be ‘refused emergency medical treatment’ and concluded that it could not interfere with rational decisions taken in good faith by political and medical authorities as to how to allocate budgets and decide on priorities.