International Protection Of The Right To Health Of Elderly Persons
Author: LawSphereX
Category: Constitutional & Human Rights
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INTERNATIONAL PROTECTION OF THE RIGHT TO
HEALTH OF ELDERLY PERSONS Harihara Priya, Assistant Professor, School of Law, Vel Tech Rangarajan Dr. Sagunthala R & D institute of Science and Technology.
ABSTRACT
The well-being of individuals and their loved ones is a subject of concern for human beings. Irrespective of demographic factors such as age, gender, socio-economic status, or ethnic background, individuals universally regard their health as a fundamental and indispensable resource. The presence of poor health, conversely, has the potential to impede our ability to engage in educational pursuits or professional endeavours, hinder our capacity to fulfil familial obligations, and limit our active involvement in communal affairs. Similarly, individuals exhibit a willingness to make numerous sacrifices with the hope of ensuring an extended and improved lifespan for themselves and their loved ones. In brief, the concept of well-being frequently encompasses the notion of health.
The entitlement to health is an intrinsic component of our universal human rights framework and is integral to our conception of a life characterised by inherent worth and respect. The entitlement to the optimal level of physical and mental well-being, commonly referred to as the right to the enjoyment of the highest attainable standard of physical and mental health, has a longstanding history and is not a recent development. The study aims to analyse the international protection of right to health of elderly persons. Keywords: Right to Health, Elderly population, Human rights, fundamental right and personal liberty.
INTRODUCTION
The concept of health, as we understand it today, was initially expounded on a global scale in the 1946 Constitution of the World Health Organisation (WHO). Within the preamble of this document, health is defined as "a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity. " The preamble asserts that the highest achievable level of health is a fundamental entitlement bestowed upon all individuals, irrespective of their racial, religious, political, economic, or social background1. The inclusion of health as an integral component of the right to an adequate standard of living was explicitly stated in Article 25 of the Universal Declaration of Human Rights in 1948. The recognition of the right to health as a fundamental human right was reaffirmed in the International Covenant on Economic, Social and Cultural Rights of 19662.
Subsequent to that juncture, various international human rights agreements have acknowledged or made reference to the entitlement to health or its constituent components, such as the entitlement to medical care. The relevance of the right to health extends to all States, as evidenced by the ratification of at least one international human rights treaty by each State, thereby acknowledging the recognition of the right to health. Various States have demonstrated their dedication to safeguarding this particular right by means of endorsing international declarations, enacting domestic legislation and policies, and actively participating in international conferences. In recent years, there has been a growing focus on the recognition and promotion of the right to the highest attainable standard of health.
This heightened attention has been observed from various entities, including human rights treaty monitoring bodies, the World Health Organisation (WHO), and the former Commission on Human Rights, which has since been replaced by the Human Rights Council. Notably, in 2002, the Commission on Human Rights established the mandate of the Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health. This appointment signifies a significant step towards ensuring the realisation of this fundamental right for all individuals. These aforementioned initiatives have played a pivotal role in elucidating the inherent characteristics of the right to health and delineating the strategies and mechanisms through which it can be effectively realised3. H O Agarwal, Human Right (Central Law Publication, Allahabad 2001); see also https://www. scribd.
com/document/258811565/vmou 2 2 Marge Lovell RN, Caring for the elderly: Changing perceptions and attitudes, Vol. 24, Issue 1, Journal of Vascular Nursing, 22 to 26 (2006) http://doi. org/10. 1016/j. jvn. 2005 3 UNHR Document, United Nations (Jun. 3, 2023). https://www. humanrights. gov. au/publications/whatuniversaldeclaration-human-rights. html RIGHT TO HEALTH: CONCEPT AND IMPLICATIONS The right to health includes everyone. Access to healthcare and the construction of hospitals are commonly linked to the right to health. This is true, but there are other aspects of the right to health. It consists of a wide range of elements that can support healthy living.
These are referred to as the "underlying determinants of health" by the Committee of Economic, Social, and Cultural Rights, the organisation in charge of overseeing the International Covenant on Economic, Social, and Cultural Rights4. Safe food, adequate nutrition, suitable housing, sanitary drinking water and sanitation, healthy working and environmental conditions, and health-related education and information are some of them. The right to health includes freedoms. These freedoms include the right to be free from torture and other cruel, inhuman, or humiliating treatment or punishment, as well as the right to be free from non-consensual medical treatment such as medical research and experimentation or forced sterilisation. Entitlement is part of the right to health.
These rights include the following: The right to a system of health protection that gives everyone an equal opportunity to enjoy the highest level of health that is attainable; The right to disease prevention, treatment, and control; Access to necessary medications; Maternal, child, and reproductive health; Equal and prompt access to basic health services; The provision of health-related education and information; Participation of the population in health-related decisions; All people must have access to equal health services, products, and facilities. A fundamental human rights value that is essential to the exercise of the right to the best achievable level of health is non-discrimination. All facilities, services, and products must be readily available, usable, acceptable, and of high quality.
A State must have enough functional public health and healthcare facilities, as well as related supplies and services. They must be financially feasible, non-discriminatory, and physically accessible to all segments of the population, including children, teenagers, older people, people with disabilities, and other vulnerable groups5. Additionally, accessibility implies the right to request, receive, and disseminate health information in an accessible format (for everyone, including people with disabilities), but it does not restrict the right to have private health information handled with care. Additionally, 4 Lynn P. Freedman, Reflections on Emerging Frameworks of Health and Human Rights, Vol. 1, Harvard School of Public Health/François-Xavier Bagnoud Center for Health, 314-348 (1995) (Jun. 7, 2023) http://www. jstor. org/stable/4065246.
5 David Jary and Julia Jary, Collin’s Dictionary of Sociology 87 Vol. 4, International Journal of Law Management & Humanities. the facilities, products, and services should adhere to medical ethics and be gender- and culturally sensitive. They should therefore be acceptable from both a medical and cultural standpoint. They must also be of high quality and appropriate in terms of science and medicine. In particular, this calls for skilled medical personnel, medications that have been scientifically approved and are still valid, hospital supplies, proper sanitation, and clean water6. The distinction between the right to health and the right to be healthy should be acknowledged. It is important to note that a prevalent misconception among individuals is the notion that the State bears the responsibility of ensuring the provision of optimal health for its citizens.
Nonetheless, it is imperative to acknowledge that the state of good health is subject to the influence of various factors that lie beyond the immediate purview of governmental entities. These factors encompass an individual's inherent biological composition as well as the prevailing socio-economic circumstances in which they find themselves. The concept of the right to health pertains to the entitlement of individuals to partake in a diverse range of goods, facilities, services, and conditions that are indispensable for the actualization of their health. The more precise and scientifically grounded approach is to characterise it as the entitlement to the utmost achievable level of physical and mental well-being, rather than an absolute entitlement to optimal health. The right to health is not solely a programmatic objective to be achieved in the distant future.
The proposition that the realisation of the right to health should be a concrete objective within programmatic frameworks does not imply the absence of immediate obligations on States stemming from this right. It is imperative for States to exert utmost diligence and allocate appropriate resources towards the attainment of the right to health. Prompt action must be taken by States to advance this objective without any undue delay. Despite limitations in available resources, certain responsibilities have an instantaneous impact. For instance, the commitment to ensure equal access to healthcare, enact targeted legislation and action plans, or undertake comparable measures to fully actualize this fundamental right, akin to other universally recognised human rights.
In order to uphold the right to health, states are obligated to guarantee a baseline level of accessibility to fundamental material elements. This includes the provision of essential pharmaceuticals and comprehensive maternal and child health services. The presence of a challenging economic climate within a nation does not exempt it from the responsibility of implementing measures to ensure the fulfilment of the right to health. There exists a prevalent argument suggesting that States 6 S K Kapoor, Human Right under International Law and Indian Law 1 (Central Law Agency, Allahabad 2001); https://www. humanrights. com/what-are-human-rights/universal-declaration-of-human-rights/preamble. html.
lacking the financial means are not necessarily obligated to undertake measures in order to fulfil this particular right, or alternatively, they may choose to indefinitely postpone their obligations in this regard. When evaluating the extent to which this right is being implemented in a specific State, factors such as the availability of resources and the prevailing development context are considered. However, it is important to note that a State cannot provide a valid justification for failing to uphold its obligations solely based on a lack of resources. It is imperative for states to ensure the provision of the right to health, to the best of their abilities, even in situations where resources may be limited. The process of fulfilling obligations to respect, protect, and fulfil may vary depending on the specific context7.
However, it is imperative for all states to take necessary measures to progress towards meeting these obligations. The intricate interplay between the right to health and various other fundamental human rights has been a subject of considerable scholarly inquiry. Researchers have sought to elucidate the multifaceted connections and synergies that exist between the right to health and other rights enshrined in international human rights instruments. One prominent aspect of this link lies in the recognition that the right to health is inherently interconnected with the right to life8. The concept of human rights is predicated upon the understanding that these rights are interconnected, cannot be separated, and mutually influence one another.
The violation of the right to health has been observed to have a significant impact on the ability to fully enjoy other fundamental human rights, including but not limited to the rights to education or work. Conversely, the infringement of these other rights can also have detrimental effects on the realisation of the right to health. The significance attributed to the "underlying determinants of health," namely the various factors and conditions that safeguard and enhance the right to health beyond the provision of health services, goods, and facilities, underscores the interdependence between the right to health and the fulfilment of numerous other human rights.
The aforementioned rights encompass various fundamental entitlements, such as the right to nourishment, the right to access clean water, the right to a satisfactory level of living, the right to suitable housing, the right to be free from discriminatory practises, the right to privacy, the right to access information, the right to participate in decision-making processes, and the right 7 Mr. Kaustav Choudhry & Dr. Chintamani, Right to Health as Human Right for the Elderly Persons in India, Vol. 4 International Journal of Law Management & Humanities (2021).
8 Morsink & Johannes, UDHR- Origin, Drafting and Intent 19 Oxford University Press, New York (2000)
https://socialprotection-humanrights. org/introduction-to-a-rights-based-approach, June. 25, 2023. to reap the benefits of scientific advancements and their practical applications. The interdependence of rights becomes readily apparent when examining the issue of poverty. In the context of individuals experiencing poverty, their health can serve as a crucial resource that enables the pursuit of various economic and social entitlements, including but not limited to the right to employment and the right to education9. The relationship between physical health and mental health is crucial, as it facilitates the ability of adults to engage in work-related activities and allows children to effectively acquire knowledge. Conversely, the presence of ill health poses a significant burden not only on the affected individuals but also on those responsible for their care.
In order to fully realise individuals' right to health, it is imperative to also address the realisation of their other fundamental rights. The violations of these rights, which are intrinsically linked to poverty, include the rights to work, food, housing, and education, as well as the principle of non-discrimination. THE INTERNATIONAL BILL OF RIGHTS ON HEALTH CARE OF ELDERS Human rights are fundamentals without which one cannot function as humans. Since these rights are ours just by virtue of birth, they belong to everyone and are universally applicable regardless of caste, creed, religion, age, sex, or nationality. All persons are born free and with equal rights, according to Article 1 of the 1948 Universal Declaration of Human Rights, and since we are all endowed with reason and conscience, we should treat one another with brotherhood.
The United Nations General Assembly recognised the Universal Declaration of Human Rights to be a benchmark for accomplishment for all individuals and nations, and everyone was urged to guarantee its universal and effective implementation. Three major documents came into effect in 1976, three decades after the United Nations had started this massive undertaking, and together they formed the "International Bill of Human Rights": (a) The International Covenant on Economic, Social and Cultural Rights (b)The International Covenant on Civil and Political Rights and (c)The Optional Protocol to the latter covenant.
9 Giriraj Shah and K N Gupta, Human Rights Free and Equal 127 Anmol Publication, Delhi (2001).
United Nation Principles for Older persons The United Nations has established a set of principles specifically designed to address the needs and rights of older persons. These principles serve as a framework for promoting the wellbeing and dignity of older individuals across the globe. By recognising the unique challenges faced by older persons, the United Nations aims to ensure their inclusion, The General Assembly, acknowledging the valuable contributions made by older individuals to their respective societies, Acknowledging the provisions outlined in the Charter of the United Nations, it is evident that the member states of the United Nations express their unwavering commitment to upholding fundamental human rights, recognising the inherent value and significance of every individual, and advocating for equal rights among all genders and nations, regardless of their size.
Furthermore, the United Nations aims to foster social advancement and enhance living conditions, ultimately striving for a state of greater liberty and autonomy. The elaboration of human rights can be observed in various international documents, such as the Universal Declaration of Human Rights88, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. These instruments aim to establish universal standards that apply to specific groups, ensuring the protection and promotion of human rights.
In accordance with the International Plan of Action on Ageing, which was adopted by the World Assembly on Ageing and subsequently supported by the General Assembly through resolution 37/51 on 3 December 1982, Acknowledging the remarkable heterogeneity in the circumstances of elderly individuals, both across nations and within nations, as well as among individuals themselves, necessitates the implementation of a range of policy measures. It is widely acknowledged that individuals across all nations are experiencing a notable increase in life expectancy, accompanied by improved overall health conditions, when compared to previous generations. In light of the extensive scientific research conducted in recent years, it has become increasingly evident that numerous stereotypes pertaining to the inevitable and irreversible declines associated with ageing have been debunked.
It is widely acknowledged that in a society marked by a growing population of older individuals, it is imperative to create avenues that enable willing and capable seniors to actively engage and make meaningful contributions to the various spheres of societal functioning. Recognising the significant challenges faced by carers of elderly individuals in both developed and developing nations, it is imperative to provide adequate support to alleviate the burdens placed on family life. Taking into consideration the established criteria outlined in the International Plan of Action on Ageing, as well as the various conventions, recommendations, and resolutions put forth by esteemed organisations such as the International Labour Organisation, the World Health Organisation, and other entities within the United Nations framework.
CONCLUSION
There are lot of international instruments that fosters right to health to every human being and that includes elderly persons also. A special concentration has to be provided for the aged people as they require an extra attention. Article - 253 of Indian Constitution provides for the implementation of all such human rights in India as well.