Analysing governments' progress on the right to health.

Objective: To examine the influence of varying articulations of the right to health under domestic constitutions, legislation and jurisprudence on the scope of legal protection for health. Methods: We investigated legal recognition of the right to health, by conducting a three-level search. First, we searched databases containing constitutional texts. Second, we did a thematic analysis of those constitutional texts with explicit constitutional recognition of health rights, employing NVivo for coding. For the 54 World Health Organization (WHO) Member States without explicit constitutional provisions, we explored statutory paths, judicial constructions and instances where both methods contributed to the acknowledgement of health rights. Lastly, we confirmed evidence of jurisprudence constructing a right to health based on a combination of domestic law and international human rights norms incorporated directly into the text. Findings: We identified 140 WHO Member States with a constitutionalized right to health. Our analysis suggests there are notable variations in the legal scope of protection for health, including breadth of entitlements and the possibility of enforcing these rights through the legal system. We also highlight the critical importance of constitutional acknowledgement, legislative measures, and judicial interpretations in shaping the legal entitlements to health-care services, affecting their accessibility and financial support. Conclusion: The analysis offers insights for policy-makers to assess different approaches to health-related entitlements, with implications for health financing and the evaluation of Member States' strides towards universal access to comprehensive care. This analysis also illuminates how distinct formulations of the right to health have varied effects on reducing health disparities.

The Legal Determinants of Scarcity: Expanding Human Rights Advocacy for Affordability of Health Technologies.

Recognizing law as a determinant of scarcity in health care is vital. This paper underscores the need for a comprehensive approach to manage scarcity beyond intellectual property, using targeted regulations to promote affordability and counter market distortions. I argue that relying on law solely to ensure democratic deliberations for resource allocation overlooks market failures and economic inequalities that contribute to scarcity. I examine different "legal determinants of scarcity" that can be used, on the basis of the right to health, to improve or positively influence the availability and affordability of health technologies through complementary policies such as direct price control, competitive procurement, competition laws, and public-private partnerships. I conclude by asserting that health care affordability must be a central positive human rights obligation in economic and health policies and that states must strive to diversify their approaches to eliminate persistent economic barriers.

The Right to Health as a Tool of Social Control: Compulsory Treatment Orders by Courts in Brazil.

Brazilian citizens have a constitutional right to health. This right has also been a powerful instrument in the judicial enforcement of drug dependence treatment in Brazil. This study reviews a sample of decisions from the state of São Paulo and provides evidence that the right to health has been used to justify compulsory admission to treatment for people deemed to have a drug use disorder. These claims are filed against the state, mainly by families, who argue that the right to health of individuals is being violated. This model of litigation-oriented toward the satisfaction of a presumed health care need-does not engage sufficiently with individual informed consent and participation in the delivery of treatment, as a person-centered approach would demand. Further, the judgments reveal a low level of awareness among judges about the procedural rights of people ordered to undergo compulsory treatment, despite the large-scale implementation of the right to health via courts in Brazil. This problematic interpretation of the right to health, in the context of mounting punitive policies and ideology in Brazil, can be harmful to people who use drugs and bring about an environment of more limited patient safeguards.