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Shadow Submission on the Right to the Highest Attainable Standard of Health in the UK

This civil society report on the right to the highest attainable standard of health in the United Kingdom (UK) has been coordinated by the People¹s Health Movement-UK, in association with Medact and Doctors for Human Rights.

The report is a response to the UK's Fifth Report under the International Covenant of  Economic, Social and Cultural Rights. It draws upon the guidance provided by the Committee¹s General Comment 14 on the Right to the Highest Attainable Standard of Health, especially the affirmation that the enjoyment of those facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health must be accessible to everyone within the jurisdiction of the State party without discrimination.

The report has received contributions from the following non-governmental organisations; Age Concern England, Médecins du Monde UK, Medsin, MIND, National AIDS Trust, The Reaching Out Project at Medact, Maternity Action, Terrence Higgins Trust, and The Children¹s Society. The participating organisations share a common concern at the increasing marginalisation of sectors of the United Kingdom population, and the impact this is having on health. Several of these non-governmental organisations provide services that the state has neglected its obligation to provide. Others provide scrutiny on government policies and their implementation. In addition, the following individuals have made important contributions to the work: Angela Burnett of the Medical Foundation for the Care of Victims of Torture; Jane Lethbridge of the Public Services International Research Unit, University of Greenwich; and Gilles de Wildt, General Practitioner, Jiggins Lane Medical Centre, Birmingham. The report would not have been completed but for the hard work of volunteers; Charly Williams, Krisnah Poinasamy and Charlotte Chompff.

Fifth report failures
In General Comment 1, the Committee on Economic, Social and Cultural Rights identified seven objectives for states' Periodic Reports. Yet the UK Government's implementation in 2004 of legislation that de facto denies failed asylum seekers access to free NHS hospital care, at a stroke precludes the UK's Fifth Periodic Report from achieving the three initial objectives.

Firstly, the Government's violation of the Covenant through retrogressive legislation is clearly inconsistent with conformity with the Covenant. Secondly, the recent appeal by the Department of Health against a judicial review judgment allowing failed asylum seekers access to free NHS hospital care on the basis they are residents, underscores the Government's determination to not ensure everyone's rights under the Covenant are protected. Thirdly, not only does the Fifth Report challenge the Committee's 2002 Concluding Observations over the incorporation of the Covenant into domestic law, but, by introducing the 2004 legislation, the Government inculpates itself further. As UN General Comment 9 advises, the Covenant does not stipulate the method of its implementation into the national legal order, but it does require the method be effective. Given that the government has itself violated the Covenant by discriminating against failed asylum seekers, making non-discrimination justiciable remains the only infallible method. Lastly, the Fifth Report's claims that no retrogressive measures have taken place, and that courts will interpret domestic statutes passed after the date of a treaty as intended to carry out the treaty obligations and not to be inconsistent with them, is manifestly misleading.

Further, the Fifth Report largely fails to provide relevant data or benchmarks with which to measure healthcare delivery. The report fails to provide the objective information required to not only evaluate the current healthcare system, but also to monitor progressive realisation of the right to the highest attainable standard of health against the UK's Fourth Report, and in the future using the UK's Sixth Report. Lastly, the consultation over the Fifth Report carried out by the Government with civil society was limited to a small number of non-governmental organisations that either lacked healthcare expertise or economic, social and cultural human rights expertise. Notably, none of the organisations that have contributed to the present civil society report were consulted by the Government in preparation of its Fifth Report.

The failure by the authors of the Fifth Report to engage with the guidelines promulgated by the Committee on Economic, Social and Cultural Rights in General Comment 1, calls into question over the UK's commitment to meet its international human rights treaty obligations.

Of the seven chapters within this report, five deal with discrimination in healthcare delivery against people from marginalised groups, and the remaining two chapters document the failure of the Government to introduce education for doctors in economic, social and cultural rights, and the harmful effect privatisation on healthcare delivery.

Since 2004, and in defiance of the Committee¹s 2002 Concluding Observation 25 and 31, the Government introduced regulations that denied most failed asylum seekers access to free non-emergency hospital treatment - which de facto denies them access to hospital care because of their forced destitution under government policy. Further, the Government has discouraged primary care doctors from providing non-emergency treatment for refused asylum seekers and has proposed to withdraw doctors' discretion to treat under the NHS.  Thus, health security, one of the core elements of human security, is now denied to a group of people who have already been denied security of residency, and, as a result of government policy, suffer destitution.

The Government fails to provide accessible and good quality health care to immigration detainees and fails to protect them from unnecessary morbidity and mortality arising from detention.

Pregnant women, including rejected asylum seekers, trafficked women, women whose immigration status is dependent on their husband and undocumented migrants are not entitled to free NHS maternity care, putting not only their own health at risk but also that of their unborn child.

Evidence shows that, despite improvements in the care of elderly people, age-based discrimination by staff continues to compromises the healthcare of elderly people.

Despite a fifth of the population, amongst whom black people are disproportionately affected, experiencing mental illnesses, mental health services lack adequate resources. Worryingly the new Mental Health Act 2007 has broadened the definition of a mental disorder to include people with untreatable personality disorders. This risks adversely affecting the delicate balance between protecting the interests of the patient against the interest of the public.

The Government has threatened future health services by accepting long-term contracts with the private sector to fund capital expenditure. This financial commitment puts at risk the future availability, accessibility and quality of NHS health facilities. Furthermore NHS land is threatened if hospitals find they are unable to make payments and have to leave their sites and facilities, because of terms which have given developers the rights to land on which the hospital is built.

In 2006 the  UN Special Rapporteur on the right to the highest attainable standard of health reported to the Human Rights Council that the realization of the right to the highest attainable standard of health depends upon health professionals enhancing public health and delivering medical care, adding that 'The right to health cannot be realized without health professionals.' Yet three years later, and despite the Committee¹s 2002 Concluding Observation 30, the Government has failed to provide education for doctors on Economic, Social and Cultural Rights.

In its 2002 Concluding Observations the Committee found no factors to impede the full implementation of the Covenant on Economic, Social and Cultural Rights in the UK. Nevertheless, as our report illustrates, seven years after those Concluding Observations were given, there remain conspicuous failures by the UK government in its implementation of the right to the highest attainable standard of health.

Download the report here:

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