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The right to health in times of austerity: the Greek example

imagesWe are delighted to welcome this guest post from Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala Since the outbreak of the financial crisis in 2008 and the austerity measures adopted by a significant number of states, especially in Europe, questions about social rights and their role in this changing economic, legal and social landscape have become prominet stearing an interesting debade. The issue seems to be gaining again some momendum after the prominent journal on health issues Lancet published last week an article that seeks to evaluate the impact of the Greek austerity package on public health. Undeniably the account is devastating. According to the authors the public hospital budget was reduced by 26% within two years (2009-2011) and further cuts are to be expected. This was a direct consequence of the objective set by the Troika to reduce public expenditure for public health at 6% of GDP which is the lowest amongst the pre-2004 EU Member States. This reconstructing seems to have direct effects on the citizens’ health care standards. The workload of the staff is increasing and it is estimated that the waiting lists (for surgeries etc) are getting longer. Since co-payments for certain medicines have increased by 10% and a prescription fee (1 euro) was introduced, while incomes are shrinking, a study showed that 70% of the respondents in a rural Greek province (which, importantly, is not amongst the poorest) are struggling to buy their medicines. In 2011 a 5 euros fee was introduced in public hospitals for outpatient visits, with the almost expressed purpose to exclude irregular immigrants who were thought to be “high jacking” the system. Given though the rising levels of poverty and unemployment, Greek nationals were directly affected too; an attempt to introduce a 25 euros fee was withdrawn after significant public outcry. Further, the fact that health insurance is linked to employment status combined with the rising levels of unemployment or informal, illegal employment practices results in an estimated 800,000 people to be left without any kind of health coverage. Further, the decreased number of syringes and condoms distributed to drug users resulted in a significant increase of HIV infections amongst this specifically vulnerable population (from 15 in 2009 to 484 in 2012). The indirect health implications of the current management of the crisis should not be underestimated as well. As Durkheim has pointed out in his research on suicide, rapid socioeconomic downgrade is prone to influencing mental health. Simultaneously, public expenditure on mental health was reduced by 20% between 2010 and 2011 and by a further 55% between 2011 and 2012. Young women and children are of particular vulnerability.

The question naturally arising for lawyers is whether and how the right to health comes into play in such conditions of extreme austerity that directly and indirectly influences the health and the access to health care for a significant proportion of the population. Could a human rights- based rhetoric and litigation provide some protection against the most extreme results of such policies? To begin with, it is worth noticing that despite the Greek Constitution providing that “The State shall care for the health of citizens and shall adopt special measures for the protection of youth, old age, disability and for the relief of the needy”, (for a full text of the Constitution in English see here), Greek Courts have been reluctant in attaching specific legal effects to this provision well before the recession. Secondly, it is worth reflecting on whether international guarantees to the right to health as stipulated in the UN Declaration of Human Rights, the UN Convention of Economic Social and Cultural Rights and the General Comment 14 of the ECOSOC Committee. By now it is received wisdom that the right to the highest attainable standard of health does not equal a right to be healthy. Rather, it creates a nexus of freedoms (for example the right to be free from torture or non-consensual treatment) and entitlements (equal opportunities for health protection) and corresponding state obligations. Availability, accessibility, acceptability and quality are generally considered the four elements that render health care provision compatible with the right to health.

Budgetary and general capacity concerns along with the idea of “gradual realisation” constitute the two broad caveats when it comes to the enjoyment and realisation of social rights and the right to health constitutes no exception in this respect. Here lies the greatest problem in using international human rights’ frameworks to advocate/litigate for a meaningful right to health care in Greece or in any other austerity-bound states. The Troika austerity package is a holistic program of structural readjustments that seeks to transform the backbone of Greek economy. For example, the idea that Greek economy lacks competitiveness and this must be compensated by tax breaks for enterprises’ profits and high personal incomes resulted in a drastic decline of state revenue. It is of relevance here that Greek commercial ship-owners are of significant wealth and influence at an international level, holding for instance key positions in the International Maritime Organisation, but extensive tax breaks before and after the recession result in them contributing to the Greek economy less than irregular immigrants do with the fees paid for semi-permanent residency certificates. Nevertheless, budgetary constraints are perceived by international human rights documents and organs as the objective background against which various semi-technocratic decisions are being made. Further, the Committee has repeatedly abstained from qualifying extensive privatisations as prima facie violations of certain rights (the right to water, rights of persons with disabilities) and the right to health did not constitute an exception. Still, privatisations of such essential services have proved disastrous in most cases, drastically limiting the access to certain fundamental goods and generally increasing the costs of their provision (see here) leading to sharpened  social problems and unrest (see here). If combined with shrinking incomes and rising unemployment, it is difficult to see how privatisations are compatible with accessibility and quality of health care. Given these restraints in the way in which economic and social rights are formulated on an international scale, it would be fair to assert and other legal and political strategies and arguments might be better situated to address the issue. First, the recent agreement between Greece and the WHO for the latter to assist the health sector reforms might be able to address the most pressing issues of this health crisis. Secondly, the persistently high levels of (prolonged) unemployment mean that for the most vulnerable to have access to public health services, employment status should be to a certain extent disassociated from health insurance. Finally, tax law and policy might be a better field to fight this battle than individual human rights litigation.

These thoughts are not to suggest that human rights discourse and litigation are altogether irrelevant when it comes to the management of the Greek health crisis. The case of forced testing for infectious diseases is a domain when a robust human rights strategy is possible and could prove to be affective. During the summer of 2013 the Health Ministry re-introduced the controversial law that stipulates forced testing of immigrants, drug uses and prostitutes under police supervision. The provision is allegedly discriminatory on the basic of ethnicity and personal status and is also in conflict with the rights of personal liberty, privacy and autonomy along with the negative aspect of the right to health that prohibits forced treatment, experimentation and testing. Further, it reinforces stereotypes that it is these marginalised groups that are responsible for the rise of the HIV/AIDS in Greece, while it probably prevents them from voluntarily seeking tests and basic protection inducing a sense of fear and mistrust towards state officials. The Joint UN Programme on HIV/ AIDS has called for the repeal of the law, since it “could serve to justify actions that violate human rights.”  It is also notable that when the law was first introduced, it was accompanied by the publication on the Greek Police site of photos of the women found HIV-positive. Charges were pressed (and later dropped) against the sex workers in a process that the UN Programme in HIV/ AIDS considered “inappropriate application of criminal law”.

To conclude, the Greek health crisis is only now starting to reveal its multiple dimensions and severity. Human rights could undeniably be utilised to address the most extreme instances of the severe implications of this reform process, especially when abusive practices like those described above are introduced. Nevertheless, it could also help us reflect on the human rights discourse and its ability to effectively resolve issues of (re)distribution of goods and services in contexts of aggravated social inequality and exclusion. The alleged neutrality and inevitability of budgetary concerns is embedded in the formulation of socioeconomic rights in international legal documents and the organs responsible for their monitoring have been notoriously reluctant in meaningfully assessing the implications of privatisations upon their enjoyment. Thus, it would be worth asking ourselves whether the present situation is not necessarily a problem of social rights violations but rather the direct reflection of their short-comings.

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