This is the second of a series of five blogs on COVID 19 and human rights, focusing on the timeline of the virus. Blog 1 focused on the beginning of the virus in China, in relation to the right to freedom of expression. These next two blogs focus on “the present” – measures being taken throughout the world to address the virus.
Spread of the Virus across the World
Since its initial outbreak in China, the virus has spread to all continents bar Antarctica. Similar patterns have arisen across the world. COVID 19 cases start slowly, but can quickly escalate with catastrophic consequences, as has occurred in Iran, Italy, Spain, France, the UK and the United States.
For example, Italy’s small but concerning February case load escalated exponentially to overwhelm its health systems by mid-March. All States wanted to avoid becoming “the next Italy”. Nevertheless, high fatality rates coupled with high infection rates (though it is likely that there are many more infections than recorded), meaning tens of thousands of dead, have followed in Spain, France, and the UK. The US has the highest number of cases and fatalities in the world; US President Donald Trump has projected that up to 200,000 people in the US could die from the disease.
Overwhelmed Hospital Systems
The tragedy in Italy (and now Spain, France, the UK and the US) is exacerbated by the sheer number of cases overwhelming its hospital system, which has swelled deaths from both COVID-19 and non-COVID causes. Exhausted medical staff have become disproportionately infected, with a large number dying, prejudicing their right to life (Article 6 of the ICCPR) and the right to health (Article 12 of the ICESCR) of the whole population which needs its trained hospital staff. There has, for example, been speculation that the UK’s failure to stockpile sufficient personal protective equipment (“PPE”), which has had lethal consequences for hospital staff, could breach the right to life in the European Convention on Human Rights.
The health system in many rich States, let alone poor States, was not equipped to deal with this pandemic, in terms of numbers of, for example, PPE and intensive care (“ICU”) beds. In this respect, the UN Committee on Economic, Social and Cultural Rights stated, in an April statement on COVID-19 (at para 4), that:
Health-care systems and social programmes have been weakened by decades of underinvestment in public health services …, accelerated by the global financial crisis of 2007-2008. Consequently, they are ill equipped to respond effectively and expeditiously to cope with the intensity of the current pandemic.
While COVID 19 was not foreseeable, its incidence signals a need for States to boost their public health spending in order to comply with their positive human rights obligations regarding the right to health.
Italy sounded the alarm to other States about the hospital crises which could ensue. Hence, those States that followed Italy had some time to redirect resources, for example to create greater ICU capacity. In this respect, the reported continuing failure by the US federal government to properly facilitate the provision of essential equipment, such as ventilators and PPE equipment to the US States, seems to contravene human rights standards regarding the rights to life and health. While the US is not a party to any treaty that protects the right to health per se, I note that it may be bound in this regard by customary international law.
The Rationing of Health Care
While States must do what they can to massively increase hospital capacity to address the COVID-19 threat, no State has unlimited health resources. This inevitability is conceded in the ICESCR as its obligations are qualified by a State’s “maximum available resources” in Article 2(1). Alarming stories emerged from Italy (and later other States) of doctors having to choose those who would be given intensive care beds and access to ventilators, and those who would not, likely condemning the latter to die. If rationing must occur, on what basis are doctors to make the choice as to who receives and who does not receive treatment? Reports have indicated that older patients are being refused certain treatment in favour of younger patients in some States.
On 26 March 2020, the UN special rapporteurs (appointed human rights experts) issued a joint statement in which they stated that “everyone has the access to life-saving interventions”, and that resource scarcity must not be a reason to discriminate against vulnerable groups. The UN statement indicates that a crude exclusion on vulnerable grounds such as age or disability is contrary to human rights. A more nuanced choice must be made.
Some guidance may be gleaned from Soobramoney v Minister of Health, KwaZulu-Natal, a decision of the Constitutional Court of South Africa regarding the rationing of scarce health resources. The provincial government of KwaZulu-Natal could not provide kidney dialysis for free to all who needed it, so it distinguished between patients on the basis of their health status. As a sufferer of chronic irreversible kidney disease alongside other serious conditions, Mr Soobramoney was denied dialysis. The Constitutional Court rejected his argument that the denial breached his constitutional rights to emergency health care, health and life. The Constitutional Court found that the basis upon which he was denied dialysis was reasonable and rational, and therefore not a breach of his human rights. This was so even though the lack of dialysis would hasten his death.
Soobramoney indicates that the denial of an ICU bed or ventilator to a person on the basis that they are less likely to survive than another, who is allocated access, is a human rights-compliant basis for that allocation. That decision should not be based purely on a person’s status, such as age, alone. However, older age is an aggravating factor that increases a person’s chance of dying from COVID-19. Hence, it may be reasonable for age to be one factor upon which scarce resources are allocated.
Furthermore, while the triaging decisions necessitated by COVID-19 are extraordinary in their nature and volume, triaging itself is common. For example, eligibility for life-saving organ transplants is generally restricted. As stated by Sachs J in Soobramoney:
In all the open and democratic societies based upon dignity, freedom and equality with which I am familiar, the rationing of access to life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care.
However, while Soobramoney might provide guidance on the rationing of health resources, which is inevitable in many contexts, it does not itself justify governmental decisions regarding the overall availability of the relevant resources, both before and during the COVID-19 crisis. The Constitutional Court of South Africa did not investigate whether the total amount allocated for kidney dialysis in the province and the nation was reasonable, deferring to the government on that issue. A more rigorous investigation of the reasonableness of a health rationing decision would take into account not only the basis of the triaging choices, but also the overall reasonableness of the budget allocated for the rationed good or service.
Of course, another way to deal with the hospital overload is to slow the spread of the disease. Most States have taken that route of “flattening the curve”, through the implementation of extensive lockdowns. The human rights implications of those lockdowns are addressed in the next blog post.