Conversations on the Constitution: Anand Grover and the Right to Health

Yeoh Yen Kee

Recently, I came across news about 19-year old, Yeoh Yen Kee. She obtained 11As for SPM, and was to pursue her dream to study medicine. She was awarded a scholarship to study in the Czech Republic.

However, in 2008, she was diagnosed with leukemia and could not proceed with that plan. After undergoing chemotherapy, and another relapse, she was told that she needed a bone marrow transplant. Despite numerous attempts, efforts to find a donor were in vain. Finally, through the National Marrow Donor Programme Registry in USA, her family managed to find a suitable donor.

The cost?

RM200,000 for the operation and related-care. USD55,000 for the procurement and courier of the bone marrow.

The sum required is not an amount that her family let alone any ordinary Malaysian can afford. Yen Kee’s father had also quit his job to care for her. In the course of Yen Kee’s treatment in the Penang General Hospital, her family has already spent RM70-80,000. A blog (helpyenkee.co.cc/) [which has since been discontinued] was set-up by her friends, and a donation initiative was taken to raise funds for Yen Kee.

What about other families who cannot afford to pay the RM70,000 required to treat a cancer patient? What are the other options available in the healthcare system for them? Speaking to my parents, they seem to be riding on the chance that they would not need to go to the hospital, God forbid! I then did a check and found that the cost of an angioplasty and a bypass – heart diseases are the most common health problems – is in the region of RM18-35,000! This is not something an average Malaysian would be able to afford. And these are figures taken from IJN (subsidised by the Government) and not from a private hospital.

Right to Health in International Human Rights Law

Before I get lost ranting about the state of healthcare in Malaysia, the right to health is a fundamental human right. Article 25(1) of the Universal Declaration of Human Rights 1948 states that:

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.

Article 12(1) of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) recognises the right of everyone to “the enjoyment of the highest attainable standard of physical and mental health”. This imposes specific obligations on governments to make healthcare adequate, accessible and available to all, particularly the marginalised and underprivileged. Governments are also to ensure no one is discriminated against, and seek to increase greater participation by stakeholders when making decisions on healthcare.

Although SUHAKAM has said it a few times that Malaysia should be a party to the ICESCR, why is our Government still reluctant or unwilling to sign and ratify the ICESCR?

Problems with healthcare in Malaysia

On the other hand, we have seen moves to privatise healthcare which has worked against the needs of the rakyat. In 1993, the procurement of medicine for Government hospitals and clinics was privatised and the cost of medicine doubled the following year. In 1996, following the privatisation of five more areas of support services including laundry, cleaning, maintenance of equipment and facilities, and waste disposal, the cost of these services went up from RM140 million to RM450 million the following year. Is the escalating cost of healthcare and services sustainable for the rakyat in the long-term? (See Dr Hsu Dar Ren’s “Malaysian Healthcare: Where are we Heading? A Critical Look at the Proposed National Health Financial Scheme” and SUHAKAM’s “Report on the Public Forum on the Right to Health: Achieving Health MDGs”)

Yet, why is the Government spending less than 3% of Malaysia’s GDP on healthcare when the WHO-recommended level is 5%? If and when the Government fails to protect the right to accessible healthcare, shouldn’t they be held accountable? How are we to hold the Government accountable? To be held accountable would mean looking at our laws and the “highest” or supreme law of the land is the Federal Constitution. Does our Federal Constitution clearly define the State’s obligations to the rakyat in respect of healthcare?

While physical and financial access to healthcare is an important issue, another would be considering Malaysia’s fight to reduce and halt the transmission of HIV/AIDS. One of the Millennium Development Goals – No. 6 – calls to “Combat HIV/AIDS, Malaria & Other Diseases”. Malaysia is not doing very well on this front. We have one of the fastest-growing HIV infection rates in the Asia-Pacific region, and various initiatives by the Government have not succeeded in reversing the trend.

Anand Grover

Anand GroverIn June 2008, the UN appointed Anand Grover as the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health. He has a track record of fighting discrimination against HIV/AIDS sufferers, and is the Project Director of the HIV/AIDS Unit at the Lawyers Collective, an organisation created by a network of lawyers that offers legal services to those living with HIV/AIDS. He has personally handled several hundred HIV/AIDS-related litigations in India.

Grover led arguments in a recent landmark case, Naz Foundation v Government of Nct of Delhi, where the High Court decriminalised homosexual relations between consenting adults in private. On the basis of the constitutional right to health, it was argued that the criminalisation of gay sex (or known as “unnatural sex”) prevents homosexuals who are HIV/AIDS sufferers from obtaining information, treatment or healthcare for fear of prejudice and persecution.

The Bar Council’s Constitutional Law Committee is grateful to have Anand Grover share his thoughts, and kick-start our “Conversations with the Constitution (Conversations)” series on 29 October 2009 at 630pm, Bar Council. Admission if FREE and you are invited to attend. For more details, please go here.

Conversations is part of the MyConstitution Campaign/Kempen PerlembagaanKu due to launch on 13 November 2009 at 3pm, Bar Council. You are welcome to come join us! In the meantime, follow the Campaign trail here:

www.perlembagaanku.com (to be launched on 13 November 2009)

www.malaysianbar.org.my/constitutional_law_committee

www.facebook.com/MyConstitution

www.twitter.com/MyConsti

www.youtube.com/user/PerlembagaanKu


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Posted on 28 October 2009. You can follow any responses to this entry through the RSS 2.0.

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8 Responses to Conversations on the Constitution: Anand Grover and the Right to Health

  1. :) i otter congratulate you on your debut article..

  2. Michael

    Macondo: yeah, i agree. not against privatisation but if you read Dr. Hsu's research on Malaysian health care system, he mentioned how it can go really wrong.

    If i remember correctly, Taiwan was one of the countries that went really wrong with privatization mentioned in his report.

    should check it out if you have the time.the link's above.

  3. Lincoln Yeoh

    No not the same at all. By "certain point" I meant something like a max of RM200K every X years. And a max of RM700k total per lifetime – example figures only – the actuaries can go figure it out, and regularly adjust it for inflation and the country's hopefully improving finances.

    It'll be nice if we can give everyone the best, it'll be nice if we can give everyone a billion dollars. But in the real world we can't and there's no point promising to (except as a way for politicians to buy votes from stupid voters and setting the country up for a huge future debt).

    The "highest attainable" will continue to go up and up as progress is made.

    So there is no way you can give everyone the highest attainable standard of physical and mental health when in the future there will likely be increasingly expensive treatments, drugs and prosthetics.

    For example: they may eventually be able to grow a new limb for you from scratch for 20 million. But where are you going to get the money to do that for 2000 handicapped people in Malaysia? A very good mechanical prosthetic might cost 100K though – way more affordable. But it will not be the "highest attainable".

    In the past the technology was often the limit – doctors just couldn't do anything more for you. In the future the economics would be the limit in more and more cases – they can try to do something better for you if you pay 10x more.

    Responsible healthcare policies have to take those realities into account.

  4. macondo

    Hello Michael,

    Development and encouragement of private healthcare options do not necessarily hamper the provision of public healthcare services. If you look at Hong Kong and Singapore, there is healthy competition between the public and private sector. Services in public healthcare facilities are pretty good. On the flip side, the pricing of private facilities is kept in check by the affordable and good quality alternative available in public facilities. Lastly, these cities also seem to have been successful in also fostering "public-private" partnerships.

    The state of public and private healthcare in Malaysia I suspect is more a function of the design of infrastructure that serves as the foundation of government in Malaysia.

  5. Michael

    oops…the 'Read More" was because i copied it off the comments in facebook.

    didn't mean it in a condescending way. haha.

    June: hahahahahahhahahha

  6. Michael

    with regards to the 'certain point', ICESCR mentions it as the enjoyment of the highest attainable standard of physical and mental health. I think it's the same as what you mean on the 'certain point'.

    with what we spend on political campaigns and how we're trying to privatize everything about health care, we're slowly becoming insensitive and uncaring towards the needs of the poor and marginalized.

    i agree with you, they are a lot of inefficiencies, like how Malaysia privatized the supplies and facilities of the hospital. Price tripled after that…. Read more

    it's not really about the cancer lah. it's how we can do so much more. and we should, the govt needs to be held accountable according to the Constitution. It's our right that the Govt should take seriously which it isn't. Govt's just not being held accountable for health care services

    people need to understand it's not a prerogative, it's a right. there are poor ppl out there rm30 also cannot afford..

    Also, IJN might be privatized….again.

    http://www.malaysianbar.org.my/legal/general_news

  7. June

    I wouldn't worry about angioplasties and bypasses – the former is only applicable to persons named Angie and the latter is only available to those with a pass (equally difficult to obtain).

    That's probably also why you hardly ever hear someone say "John had an angioplasty the other day". They usually say things like "John had a heart attack" – because attacks by hearts are more common. They come from Cincinnati, and are vicious little buggers.

    Keep writing, Michael Loo!

  8. Lincoln Yeoh

    Basic health care should be subsidized or even free for all. But past a certain point of expenditure, it doesn't make good sense to subsidize you anymore.

    Because companies will be inventing more and more expensive treatments and technologies. Say someone creates an effective treatment course that costs USD200 million. Bill Gates can afford it if he needs it, but I doubt the taxpayers can afford to pay that amount for you.

    BUT as long as wastage and corruption is cut down, the "limit point" can be quite high. High enough to help most common cases. The actuarists can go figure out what the max payout per person per period should be (e.g. 500K, 1 million). And perhaps people should be allowed to donate their unused quota to others (special cases – has to be regulated to avoid abuse and exploitation of the ignorant) who have used theirs up.