Why Health Care Reform should be about the right to health and protecting human rights defenders

 Health care policy needs to be about the human right to health care, Basic human rights principles hold that health care must be accessible and affordable to all, irrespective of race, gender, religion, geography, and income. Thus the protocols of the HHS to respond to human rights defenders and mandated reporters who report on human rights violations is critical to protect the human rights of patients and persons needing health care. These human rights defenders may be medical professionals or governmental agency employees working within or in conjunction with the medical community. Thus their medical whistleblower complaints may be heard by the Office of Special Counsel in the US Department of Justice or be acted upon by local or state officials in the Department of Justice or other state or federal agencies. The US Department of Justice and the US Department of Health and Human Services must work together to provide meaningful reform so as to protect human rights defenders, mandated reporters and medical whistleblowers and also provide a meaningful and effective pathway for action on their complaints. There should be a seamless way for these whistleblower cases to move forward so that no human rights violations are left unaddressed or uncorrected. Protecting human rights of patients should be a priority. Protecting the taxpayer from medical fraud is also critically important for a sustainable medical health system.

Basic human rights principles hold that health care must be accessible and affordable to all, irrespective of race, gender, religion, geography, and income. The U.S. needs to now fully recognize the universality of human rights and to fully implement a health care system that fulfills the human right to health care. US health care at present has a heavy reliance on a private sector whose bottom line dictates a focus on profits over people. The international right to health delineated in United Nations documents provides clear expectations for providing the best possible health care to all people. Health care must be physically and financially accessible, and no one may be deprived of health services because of income, location, race, or insurance status. Services must meet minimum standards of quality, and must be culturally appropriate. We must build a health care system in the USA that recognizes that human dignity requires the protection not only of civil and political rights but also of economic, social, and cultural rights.

Declaration of Alma-Ata, 1978, World Health Organization at Art. VII. Available at: http://www.who.dk/AboutWHO/Policy/20010827_1.

A useful summary of the international agreements that establish and codify the human right to health care, entitled "The Right to Health Care in the United States: What Does it Mean?" has been published by the Center on Social and Economic Rights, and is available  at CESR's website.http://www.nhchc.org/Advocacy/RighttoHealthinAmerica.pdf 

Economic and financial Considerations of private NGO’s more important than outcomes?

US debate over health care reform has centered over political ideology and financial budget decisions. We should instead focus on a human rights approach and the underlying purpose of the health care system. We must focus on outcomes not profits. The current system is focused on maximizing the financial profit of the medical-industrial-insurance complex at the expense of individual patient health. When the system promotes hospital profits over individual patient’s right to informed choice of treatment and provider and the right to make health care decisions in keeping with their cultural and religious beliefs, we then have substituted institutional decision making based on financial profits over patient health outcomes. In addition it is important to consider that we need an integrated system for health care, one that considers the care of individual patients as an interrelated and fundamental component of public health,  In the USA overall quality of care is inconsistent and inadequate and for adequate health care reform quality enforcement and measurement are necessary.

Health Care should be universally available and accessible

Health care must be universally available and accessible. Basic human rights principles hold that health care must be accessible and affordable to all, irrespective of race, gender, religion, geography, and income. Human rights defenders are the first to point out that minorities in the U.S. receive even poorer health care due to dramatically lower rates of minority health providers, lack of health services, and systematic discrimination. Rising insurance premiums, a growing population, and the growing costs of providing quality care, makes it clear why an increasing number of Americans cannot afford access to even basic care.

Pharmaceutical corporation lobbyists adversely affect legislation and thus impact care

We need human rights defenders to be heard and acknowledged by HHS leadership regarding their concerns about the unequal political lobbying of those who benefit from ignoring human rights issues in favor of profits. The general cost of health care has been incrementally increasing with the profits recorded by pharmaceutical corporations are unusually high. Lavish salaries accompany these profits. Wide profit margins for shareholders in managed care organizations, multi- million dollar salaries for pharmaceutical executives, and vast sums spent on industry lobbying represent hundreds of millions of dollars that are simply leaving the system without advancing research, delivering care, or paying medical providers. Among health care organizations, pharmaceuticals spend the most on lobbying ($96 million in 2000) followed by physicians, and health care organizations. Of the 1192 organizations involved in health care lobbying, the AMA spent $17million and the American Hospital Association $10 million. Case Western Reserve University. Case Studies shows drug companies are top health care lobbyists. (March 29, 2004)

U.S. Census Bureau, Quarterly Financial Report, Third Quarter 2003, Table D, p. xviii (2003).Public Citizen Congress Watch, 2002 Drug Industry Profits: Hefty Pharmaceutical Company Margins Dwarf Other Industries (June 2003) available at http://www.citizen.org/documents/Pharma_Report.pdf.

Weiss Ratings Inc., available at http://www.weissratings.com/News/Ins_HMO/20040302hmo.htm. HMO profits jumped from $2.5 billion to $4.3 billion during the first six months of 2003.

BUS. WIRE, HMOs Earn $10.2 Billion in 2003, Nearly Doubling Profits, According to Weiss Ratings; Blue Cross Blue Shield Plans Report 63% Jump in Earnings (2004), available at http://home.businesswire.com/portal/site/google/index.jsp?ndmViewId=news_view&newsId=2004083000 5473&newsLang=en.

 

We need accountability and transparency to prevent medical fraud

Human Rights Defenders also help detect medical fraud and thus help protect the federal taxpayer. Health care reform must establish a mechanism for government accountability that includes holding private health care providers and insurers responsible when they commit medical fraud against the US taxpayer and the vulnerable patient populations. The level of medical fraud in this country now exceeds the level of fraud in the defense industry. Medical fraud is difficult to detect, investigate and prosecute because of the issues of patient privacy which prevents law enforcement access to critical records. Those wishing to use patients for profit realize this and thus those whose greed outweighs their moral scruples have found the medical community an excellent place to do illegal activity, including but not limited to Medicare and Medicaid fraudulent billing, illegal investment scams, SEC fraudulent filings on the public stock exchanges, and violations of human rights including violations of informed choice and human subject protections.

This fraud is not without a human cost - patients in California lost their lives when they were deceived by hospital doctors and forced into unnecessary open heart surgery. The hospital was trying to maximize profit in order to pay for the debt on a very expensive open heart surgery suite. Human lives were lost and others severely harmed. In another medical fraud case doctors continued to implant a medical device even though they knew it was defective and the FDA had called for a recall. In yet another medical fraud case, pharmaceutical companies distributed informational brochures about psychiatric medications without the FDA legally mandated black box warning label that indicated that the pharmaceutical medication could cause violent tendencies including suicide and yet encouraged the prescription of those medications often extra-label to vulnerable mental health patients.

The rush to privatize welfare has given the health and welfare NGO’s a profit incentive to disregard human rights principles in favor of increased profits. Nowhere is this more clearly seen than in health care services to the private prisons, private nursing care facilities, private hospital and managed care corporations. With less oversight, little or no financial auditing by federal authorities, little or no outcome measurement that would meet rigorous scientific standards, we cannot assume that those who make a profit out of providing medical care and services or medical insurance, have the best interests of the patients upmost in their decision making process. [Alicia Ely Yamin, Defining Questions: Situating Issues of Power in the Formulation of a Right to Health under International Law, 18 HUM. RTS. Q. 398 (1996).]

Every day the escalating cost of medical insurance has impacted the health care of millions of US citizens – this cost is a product of the rising level of undetected and unprosecuted medical fraud within the health care system. One of the reasons for this escalating rise of medical care costs is the lack of patient or consumer involvement in medical care decisions and the increasing use of tertiary decision makers often without patient knowledge or consent. Patients often are the first to notice the effects of medical fraud because it directly impacts them in their daily lives. Thus we need to reaffirm the right of patients to assert their human rights – including informed consent and human subjects’ protections. In addition persons of ethical conduct who are mandated reporters are obligated to report human rights violations but there is not yet a system for protection of these essential defenders of human rights nor is there a clear pathway for effective action on the complaints of human rights defenders.

Does the doctor or hospital know best? Clearly not, especially when there are millions of dollars of profit at stake. (Sources: Anderson et al., supra note 47 at 91-92, CENTERS FOR MEDICARE & MEDICAID SERVICES PRESS RELEASE, available at http://www.cms.hhs.gov/media/press/release.asp?Counter=935)

 

This petition is addressed to: Kathleen Sebelius, HHS Secretary, U.S. Department of Health & Human Services 200 Independence Avenue, S.W. - Washington, D.C. 20201 E-mail: Kathleen.Sebelius@hhs.gov Phone: (202) 690-7000

William V. Corr, J.D., HHS Deputy Secretary U.S. Department of Health and Human Services. 200 Independence Avenue, S.W. - Washington, D.C. 20201 Phone: 202-690-6133 U.S. Department of Health and Human Services, Laura Petrou, Chief of Staff E-mail: COS_info@hhs.gov Phone: 202-690-8157

For your information I list below the international law that currently applies and the historical context of UN treaty ratification.

United States of America Obligations under International Law United Nations Declaration on Human Rights Defenders A/RES/58/178 of 22 December 2003

The United Nations Charter and The Universal Declaration of Human Rights, and the General Assembly resolution 53/144 of 8 March 1999 http://www2.ohchr.org/english/issues/defenders/declaration.htm

CAT - ratified Oct. 21, 1994 The UN Convention against Torture http://www2.ohchr.org/english/bodies/cat/ ICERD - ratified Oct. 21, 1994

The International Convention on the Elimination of All Forms of Racial Discrimination http://www2.ohchr.org/english/law/pdf/cerd.pdf ​

http://www2.ohchr.org/english/law/cerd.htm ICCPR - ratified June 8, 1992

The International Covenant on Civil and Political Rights http://www2.ohchr.org/english/law/ccpr.htm ​http://www2.ohchr.org/english/law/pdf/ccpr.pdf

The Palermo Protocol - ratified http://www.unodc.org/unodc/en/treaties/CTOC/index.html

The Geneva Conventions or Aug. 12, 1949 and additional protocols I and II - all ratified   http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079​

OP-CRC-SC - ratified Dec. 23, 2002 (art. 3 para 1 and 4 para 1) http://www.thecommonwealth.org/Shared_ASP_Files/UploadedFiles/%7BD61309F4-0374-44C8-8CD1-8BD8228ACB69%7D_StatusofRatifications4.pdf ​

OP-CRC-AC ratified Dec. 23, 2002 http://www.thecommonwealth.org/Shared_ASP_Files/UploadedFiles/%7BD61309F4-0374-44C8-8CD1-8BD8228ACB69%7D_StatusofRatifications4.pdf

The Principle of Human Rights – as stated in UN human rights documents: Universal Declaration of Human Rights Article 25 (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. (Source: UDHR, U.N.G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948))

International Covenant on Economic, Social & Cultural Rights Article 12 (1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. (Source: ICESCR U.N.G.A. res. 2200A (XXI) of 16 December 1966 (entry into force 3 January 1976, in accordance with article 27))

International and human rights infrastructure: Together, the Covenants and the UDHR constitute the International Bill of Human Rights.

Universal Declaration of Human Rights, U.N.G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948) [hereinafter “UDHR”]. Although the UDHR is a General Assembly declaration instead of a treaty, it may be legally binding on the U.S. as either customary international law or as authoritative interpretation of the U.N. Charter. See Henry J. Steiner & Philip Alston, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 143 (2d ed. 2000).

ICESCR. The U.S. signed the ICESCR on 5 October 1977, but has not yet been ratified, which is required to make it legally binding. However, the U.S. signature indicates its support of the ICESCR provisions, and makes its terms politically binding.

In addition, the U.S. is part of an international system that views right to health as an essential human right, including the World Health Organization Charter, the Conventions Nos. 102 and 103 of the International Labor Organization, and Rules 22 to 26 of the Standard Minimum Rules for the Treatment of Prisoners

U.N. Committee on Economic, Social and Cultural Rights [hereinafter “CESCR”], General Comment 14, The right to the highest attainable standard of health, CESCR, 22nd Sess., para. 4, U.N. Doc. E/CN.12/2000/4 (2000).

UDHR preamble, para. 2 (“the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people”).

The UDHR and the ICESCR form the backbone of the human right to health under international law. However, the provisions of the two treaties are general. While they recognize the right of everyone to enjoy “the highest attainable standard” of health, they do not offer an exact recipe for implementation, nor do they take a position on the respective desirability of public or private financing for health care.

The U.N. Committee on Economic, Social, and Cultural Rights (CESCR), the primary body responsible for interpreting the ICESCR, has however developed guidelines on how the right to health should be interpreted at the national level. The first fundamental component of those guidelines is a minimum floor below which no country may fall, which in the case of health means ensuring essential primary health care for the entire population. In its General Comment No. 3, the CESCR clarified steps that should be taken by governments regardless of their “economic and political systems.” In General Comment No. 14, the Committee enumerated four substantive interrelated elements which are essential to the right to health: availability, accessibility, acceptability, and quality.

The right to health is also recognized in regional instruments including the American Declaration on the Rights and Duties of Man (article 33), the European Social Charter (article 11), and the African Charter on Human and Peoples’ rights (article 16), and in other international treaties such as the Convention on the Rights of the Child (articles 23 and 24), Convention on the Elimination of Discrimination Against Women (article 10(a), 11(f), 12, and 14(b)), and Convention on the Elimination of All Forms of Racial Discrimination (article 5(e)(iv)). As of July 12, 2010, the United States does not have a national human rights institution accredited by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights.

CERD recommended that the US consider the establishment of a national human rights institution in accordance with the Paris Principles. CRC and the Working Group of experts on people of African Descent made similar recommendations. CERD recommended that the State ensure a coordinated approach towards the implementation of the Convention at the federal, state and local levels.CAT noted that the USA had a federal structure and had an obligation to implement the Convention against Torture in full at the domestic level. Likewise, CRC recommended strengthening coordination in the areas covered by OP-CRC-SC, both at the federal and state levels.

The International Covenant on Civil and Political Rights, including the right to life and freedom of association and expression, should be protected from violations not only by State agents, but also private persons or entities. Human Rights Committee, general comment No. 31 on article 2 of the Covenant on the nature of the general legal obligation imposed on States parties to the Covenant, 26 May 2004.

A/RES/58/178 of 22 December 2003 The United Nations Charter and The Universal Declaration of Human Rights, and the General Assembly resolution 53/144 of 8 March 1999, adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, known as the Declaration on Human Rights Defenders and subsequent resolutions.

The United States has a responsibility in relation to actions and omissions of non-State actors Article 12, paragraph 3, of the Declaration, also reiterated by numerous human rights bodies, the Human Rights Committee and the Inter-American Commission on Human Rights. Declaration of Alma-Ata, 1978, World Health Organization at Art. VII. Available at: http://www.who.dk/AboutWHO/Policy/20010827_1.