Human Rights and Legal status of the Right to Pain Treatment within the Right to Health

                As we stated before, the right to the treatment of pain is immersed in the right to health, and is not yet explicitly and officially recognized as a human right. However, during their evolution from moral sentiment to legal entrenchment, claims not yet formally recognized as human rights may nevertheless be legitimate and have consequences without being incorporated into binding law[1].  Because of this fact and because pain is now recognized as a disease by itself, it is appropriate to analyze the relevant aspects on the right to health and consider them as equivalents to the natural health-related right of the treatment of pain.

a.       The consideration of health as human right is reflected in article 25 of the Universal Declaration of Human Rights (UDHR) “Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, and housing and medical care and necessary social services”.

b.      Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) states that it is  “The right of everyone to the enjoyment of the highest attainable standard of physical and mental health[2]”.

c.       Article 24 of the 1989 Convention on the Rights of Child (CRC) states that it is “the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health”.

d.      Article 12 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) acknowledges in writing  “The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction…to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning…ensure to women appropriate services in connection with pregnancy, confinement and post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation, as on the right to non-discrimination reflected in the Durban Declaration and Programme of Action”.

e.       Article 5 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) includes “The right of public health, medical care, social and security services”.

f.        Article 15 of the European Social Charter of 1961, revised in 1996 mention an obligation to take measures in order “to remove as far as possible the causes of ill health[3]; to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; to prevent as far as possible, epidemic, endemic and other diseases[4], as well as accidents” and recognizes a duty “to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts of from other sources, in particular by benefits under social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition”,

g.       Article 16 of the African Charter on Human and Peoples’ Rights of 1981 mentions “…the right to enjoy the best attainable state of physical and mental health and the obligation of the state to take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

h.       Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (known as the Protocol of San Salvador) of 1988 states that a need to “enjoyment of the highest level of physical, mental and social well-being…ensure a primary health care, that is, essential health care made available to all individuals and families in the community, extension of the benefits to all individuals subject to the state’s  jurisdiction, universal immunization against the principal infectious diseases, prevention and treatment of endemic, occupational and other diseases, education of the population on the prevention and treatment of health problems, and satisfaction of the health needs of the highest risk groups and those whose poverty makes them the most vulnerable”

i.         In regional human rights treaties, such as in the article 14 of the African Charter on the Rights of the Child.  The WHO Constitution adopted in 1946: “The enjoyment of the highest attainable[5] standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economical or social condition”

4.                  There are other instruments in which the right to health, although not mentioned, is protected indirectly, such is the case of the:

a.       American Declaration on the Rights and Duties of Man.

b.      American Convention on Human Rights.

c.       Inter-American Convention on the Prevention, Punishment and Eradication of violence against Women.

d.      European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols. 

5.                  It is worth noting that through the legal provisions derived from the above mentioned instruments, health violations have being reported and flagged as in the case of ICJ v. Portugal in which the European Social Charter principles were violated allowing children to work in an environment that may have consequences on their health and development[6]

6.                  The Right to Health has 14 basic integral components as mentioned on the General Comment on the Right to Health by the Committee on Economic, Social and Cultural Rights.  They are the rights to[7]:

I.                 Food

II.                 Housing

III.                 Work

IV.                 Education

V.                 Human dignity

VI.                 Life

VII.                 Non discrimination

VIII.                 Equality

IX.                 Prohibition against torture

X.                 Privacy

XI.                 Access to information

XII.                 Freedoms of association

XIII.                 Assembly

XIV.                 Movement

7.                  It is worth mentioning that “Human Dignity”, as above quoted, is one of the core pronouncements of the Initiative:

“As pain and suffering present one of the greatest tyrannies of mankind, society should do its utmost to use any means available through current scientific knowledge to avoid suffering, and to provide human beings with all available and possible means of curing their pain, or ameliorating it, thus granting them compassionate relief and dignity both in life and in dying”.

8.                  Dignity is used here as basic, fundamental and philosophical motive for this natural human right.  A life rife with the constant pain and suffering of a human being and his family in a world in which scientific knowledge has achieved the means to eliminate or ameliorate it, is purely an act of humiliation, discrimination and mistreatment by any society that allows this condition to occur.

9.                  When we mention discrimination, we imply that a person or persons immersed in such suffering and their families, have been denied the fundamental human right of equality.  It is a concept that has been included in the history of the philosophical principles on Human rights for centuries.  Jean-Jacques Rousseau wrote in Essay on the Origin on Inequality among Men “it is plainly contrary to the law of nature…that the privileged few should gore themselves with superfluities, while the starving multitude are in want of the bare necessities of life”[8].

10.              Non-discriminatory and equal treatment is among the most critical components of the right to health and health related rights and it is the obligation of States to respect, protect and fulfill those human rights[9]. Accordingly, international human rights law proscribes any discrimination in access to health care, and the underlying determinants of health, on the internationally prohibited grounds, including health status, which has the intention or effect of impairing the equal enjoyment of the right to health[10].  Also, the Committee on Economical Social and Cultural Rights states that health facilities, goods and services, including the underlying determinants of health, shall be accessible, acceptable and of good quality[11]. 

11.              The non-discriminatory pronouncement of the Initiative enshrines the above-mentioned rights:

“The Treatment of Pain should not be merely the privilege of some, but a Fundamental Right of every living Human Being”.

12.              Another transcendental goal of the Initiative is to promote the enjoyment of the benefits of scientific advancement and advances in an equitable manner by all members of the human community[12].  This, no doubt, has to do with the right to development, recognized in numerous United Nations resolutions, specifically in the 1986 Declaration on the Right to Development[13] and also in the African Charter on Human and Peoples’ Rights that reads: “an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”[14]

13.              Aside from the Right to Development, the access to medication has being a recent resolution of the Commission of Human Rights[15].

14.              The 14 basic integral components of the Right to Health as aforementioned contemplate many aspects for the accomplishment of such a right.  Also, as with all other human rights, the right of pain treatment should be viewed through the prism of many other elements of the human environment and circumstances.  Therefore the World Conference on Human Rights (Vienna, June 1993) expressed: “All human rights are universal, indivisible and interdependent.  The international community must treat human rights globally and in fair and equal manner, on the same footing, and with the same emphasis.  While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms”[16]

15.              The right to pain treatment does not mean the right to pain relief, just as the right to health does not mean the right to be healthy since being healthy is determined in part by health care, but also by genetic predisposition and social factors.  What is of greater significance for the realization of healthy lives is the extent to which respect for other human rights has a direct bearing on the right to health or on the social factors that contribute to healthy lives[17].  In this context, “relief” is viewed as the consequence of “treatment” in its broad meaning. In the treatment of pain, and specifically, chronic pain conditions, it is of paramount significance that the extent to which the respect for other human rights or other social factors has a direct effect on those conditions and their resulting suffering and disability be directly relational.  Consequently, from the human rights perspective we should focus on the treatment of pain as a human right.  The optimal relief we can attain is immersed within the concept of treatment as a matter of ethics and principles, where the results obtained in the form of relief cannot constitute a legal obligation of the member states.  If the possibility exists that, aside from the best of treatments, even in a minimal percentage of human beings no relief can be attained, the law scholars will oppose and counsel their governments and institutions not to embark on that legal compromise.  Besides, the right to the treatment of pain as the right to health, has to be viewed as the complex integration and fulfillment of all human rights that bear direct significance for their accomplishment.  Treating is a broad term that can be meant to imply “taking care of”.  In treating one’s health, prevention of disease is prominent.  In this instance, the concept of prevention fits better within the concept of treatment (taking care of) than it does within the concept of relief (assistance, support).  It is then fundamental to notice that the human right for the treatment (taking care of) of pain conditions, has to include as a sin e qua non concept the aspect of prevention, as well as the universal condemnation of unlawful infliction of pain to any human being by the violation of other human rights law, international criminal law or international humanitarian law, as will be the execution of international crimes such as genocide, torture, slavery, racial discrimination and terrorism. 

16.              A global United Nations conference should be promptly promoted in order to place the problem of the Treatment of Pain as a Human Right at the top of the global agenda, and to influence national and international policy-making processes on what is called today “health related rights”.  Such rights are included already in various constitutions around the world.  WHO has commissioned the International Commission of Jurists to embark upon a survey of national constitutions that enshrine the right to health and health-related rights[18].  According to preliminary findings of this study, which remains in its early stages, over 60 constitutional provisions include the right to health or the right to health care, while over 40 constitutional provisions include health-related rights…such as the right of the disabled[19] to material assistance and the right to a healthy environment.  Further, a large number of constitutions set out State duties in relation to health, such as the State duty to develop health services, from which it may be possible to infer health entitlements.  Moreover, in some jurisdictions constitutional provisions on the right to health have generated significant jurisprudence[20].  All the laws and legal decisions at the national, regional and international levels confirms the justifiability of the right to health, with the right to pain treatment immersed within the larger statute.  This late assertion is of particular relevance because, it has been established that the right to health is an inclusive right, extending not only to timely and appropriate health care, but also to the underlying determinants of health[21]. 

17.              The right to health contains both freedoms and entitlements. Freedoms

            include the right to control one’s health…Entitlements include the right to a system of health protection (i.e. health care and the underlying determinants of health) that provides equality of opportunity for people to enjoy the highest attainable standard of health[22].

The right to health has being broken in specific entitlements[23]

a.       The right to maternal, child and reproductive health;

b.      The right for a healthy workplace and natural environments;

c.       The right for the prevention, treatment and control of diseases; including access to essential medicines;

d.      The right to access to safe and potable water.

It is our assertion that a new entitlement should be incorporated into the right to health named:

e.       The right for the prevention, treatment and control of pain, including access[24] to essential medicines and related technology.

18.              The Initiative mentions the right to receive health treatment:

“…society should do its utmost to use any means available through current scientific knowledge to avoid suffering…”

…which is an entitlement already established as part of the human right to health and health related rights[25]. 

19.              The realization and fulfillment on the right to pain treatment should be, as it is on the right to health, not only a government responsibility but also the responsibility of the individuals, the health professionals in general, the associations for the treatment of pain, the non-governmental organizations and of the community as a whole[26].

20.              The recognition of the new entitlement on the right to health, that is the right to pain treatment, will impose upon societies the same immediate obligations already recognized as obligations imposed by the right of health.  Although subjected to progressive realization and resource constraints, these obligations will include the guarantees of non-discrimination and equal treatment, and the obligation to take concrete and targeted steps towards the full realization of the right to pain treatment, such as the preparation of a national public health strategy and a plan of action.  Progressive realization means that States have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of the right to health[27] which should be guaranteed through effective, transparent and accessible monitoring and accountability arrangements, which are an essential feature of the human rights approach.

21.              It is an obligation of the member states to implement human rights, as is in the case of the right to health, and this should also be the case with the right to pain treatment.  That obligation also means cooperation with other states in protecting such rights, as well as ensuring that no international agreement or policy adversely impacts upon those rights.  It is also an obligation of the state to cooperate with other states towards the advancement of the mentioned human rights[28].  I present Judge Weeramantry’s dissenting opinion in the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, in which he cited article 12 of the International Covenant on Economical, Social and Cultural Rights (ICESCR) and stated, in relation to this article, that, “it will be noted here that the recognition by States of the right to health is in the general terms that they recognize the right of ‘everyone’ and not merely of their own subjects.  Consequently, each state is under the obligation to respect the right to health of all members of the international community[29].  In relation to the right to pain treatment, this fact will be of particular importance and transcendence regarding cooperation between countries to share human and technological resources in order to protect and advance that right and to ensure that no international agreement or policy adversely impact upon that right.

22.              The Committee on Economical Social and Cultural Rights observes that health facilities, goods and services, including the underlying determinants of health, shall be available, accessible, acceptable and of good quality, and determines the dimensions of each term.  As such, “accessible” has four dimensions: accessible without discrimination, physically accessible, economically accessible (i.e. affordable), and accessible information[30]

23.              The right to the treatment of pain is of vital importance for all human beings, but as with other human rights, it conveys special meaningfulness for those living in poverty.  Good health and the treatment of disabling conditions, like chronic pain, is not just an outcome of development: it is a way of achieving development.  It is for this reason that health issues are prominent in the United Nations Millennium Declaration and the Millennium Development Goals[31].  Of the Millennium Development Goals (MDGs) four are health-related; two relate to maternal and infant mortality, one to the environment and a fourth one to HIV/AIDS, malaria and other major diseases that afflict humanity.  Here, the prominence of chronic pain as a primary disease of humanity cannot be overemphasized

24.              The relevant data on the world statistics of the treatment of pain should be disaggregated so that the conditions of specifically disadvantaged groups – poor woman, minorities, indigenous peoples and so on – are captured.  This dispersement will help to identify policies that will deliver the promise of the Millennium Declaration to all individuals and groups.

25.              The right to pain treatment should be part of the poverty reduction strategies through the recognition that chronic pain and the consequent disability has a particular impact on the poor, and specific policies should be designed to reach the poor and treat their chronic pain conditions. One such policy, for example, can be directed at reducing the financial burden of chronic pain treatment on the poor.  The specific contribution on the right to pain treatment as a means of reducing poverty should always be considered within the general contribution of human rights – e.g. non discrimination, participation, international cooperation, accountability – to poverty reduction.  It is important to notice that a recent WHO study on 10 poverty reduction strategy papers (PRSP’s) and 3 interim PRSP’s found that no PRSP mentioned health as a human right[32].

26.              It should be noted that because of chronic pain and its consequent disability, the poor become poorer and that access to advancements in treatment, being medications or advanced technologies becomes very limited due to poor acquisition capabilities.

27.              In poor countries, themselves, the level of research and development is extremely limited, as noted by the 1990 Commission on Health Research and Development that expressed the 10/90 disequilibrium, indicating that only 10 percent of research and development spending is directed at the health problems of 90% of the world’s population. 

28.              It is of fundamental importance and transcendence that any the new international trade accords acknowledge the epidemical existence of disabilities due to chronic pain conditions, and their profound consequences on the social and economical welfare of societies, especially those in the poorest countries.  Rich countries should give economic incentives, such as tax relief, to the manufacturers of medications and technology designed to treat chronic pain conditions, so that those elements or instruments of treatment will become as cheaply available, or even more, in poor  countries as they are in many instances in the richer countries where they are manufactured.  Sadly the opposite scenario is often the case. The Commission on Human Rights recognized that: “access to medication in the context of pandemics such as HIV/AIDS (note here that chronic pain has being recognized as the worst epidemic of our times) is one fundamental element for achieving progressively the full realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”[33].  The Doha Declaration[34] recognizes “the gravity of public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics (again, pain has being considered the worst epidemic of our times). It is important to remember here the World Trade Organization members obligation “to protect public health and, in particular, to promote access to medicines for all”[35].  Furthermore, the Commission on Human Rights in its resolution 2002/32 called upon all States to “ensure that their actions as members of international organizations take due account on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and that the application of international agreements is supportive of public health policies which promote broad access to safe, effective and affordable preventive, curative and palliative pharmaceuticals and medical technologies”

29.              The social determinants of chronic pain conditions, such as discrimination on the grounds of gender, race, ethnicity and other social inequalities should be identified, because they add to the inequalities already experienced by those affected and, amount to a failure to respect human dignity.  Special populations should be carefully considered such as people with disabilities, racial and ethnic minorities and women.  It has been recognized that “the burden of ill health is borne by vulnerable and marginalized groups in society”[36].  In this aspect, the International Covenant on Economical, Social and Cultural Rights “proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin…”[37]  It is of fundamental importance that the treatment of pain become accessible to all in society. States have an obligation to ensure that health facilities, goods and services – including the underlying determinants of health – are accessible to all, especially the most vulnerable or marginalized sections of the population without discrimination[38]

30.              The WHO should make a report on the Global Impact of Chronic Pain as was done on the Global Defense against the Infectious Disease Threat.  Such an initiative would demonstrate that chronic pain conditions also represent neglected diseases whose outcomes will likely prove worsen than those encountered by persons afflicted whit infectious disease.  Studies indicate that the: “health impact of these neglected diseases is measured by severe and permanent disabilities and deformities in almost 1 billion people…Their low mortality despite high morbidity places them near the bottom of mortality tables and, in the past, they have received low priority”[39]. 

31.              It has been repeatedly shown that chronic pain conditions and disabilities represent an astronomical economical loss to societies, which is the end result of a neglected disease.  The neglected disease of chronic pain constitutes the worst epidemic phenomenon of our times, and is consequently commendable and mandatory the acknowledgement that the concept on the treatment of pain as a human right receives the highest consideration by the United Nations, the World Health Organization, the Commission on Human Rights, and any other commission organ, institution or individual that has involvement in the procurement of health and well being of the human beings.