The AAAQ framework and the highest standard of health attainable

It is thus worth studying GC14, as it provides guidelines on the ‘normative content’

of the right to health, building upon the experience gained by the UN Committee in its reporting procedure.¹⁹⁸ In this document, the UN Committee recognises four requirements particularly crucial to achieving the highest standard of health attainable: availability, accessibility, acceptability and quality of healthcare (i.e. the AAAQ framework).¹⁹⁹ I will demonstrate in subsection 2.2.2.1 that the AAAQ framework could potentially enable the UN Committee to clarify the normative scope of the right to health. However, I will argue in subsection 2.2.2.2 that the potential of the AAAQ framework to assist the UN Committee to successfully do so is limited.

2.2.2.1 Potential to improve conceptual clarity

GC14 clarifies the normative scope of the right to health by materialising the highest standard of health attainable into four requirements. According to this document, health facilities, goods, services, personnel and information are elements that must be: available; accessible; acceptable; and of good quality. ²⁰⁰ These four requirements, constituting the AAAQ framework, are then further divided into more detailed ‘sub-requirements’. Health facilities, goods, services and personnel must thus be:

• Functioning and available in sufficient quantity (availability);

• Physically and financially accessible to everyone, without discrimination (accessibility);

• Respectful of medical ethics, and culturally appropriate (acceptability);

• Scientifically or medically appropriate, and of good quality (quality).²⁰¹

198 UNCESCR, ‘GC14’ (n 21), part I; ECOSOC, Report of 44^th and 45^th sessions UNCESCR (n 159), paras 55 to 58.

199 UNCESCR, ‘GC14’ (n 21), para 12.

200 ibid.

201 ibid.

In order to test the potential of the AAAQ framework to clarify what the highest standard of health attainable entails, I will use the example of childbirth care. In this instance, health facilities, goods, services, personnel, and information to which the AAAQ requirements apply, are the following. They include maternity wings, whether in public hospital or private clinics (the facilities); as well as obstetric equipment and medicines such as forceps, pain relieving drugs etc. (the goods). They also include procedures such as epidural anaesthesia or caesarean section (the services); obstetricians and midwives (the personnel); as well as medical advice provided in case of complications (the information). Furthermore, according to the AAAQ framework, all these elements must be functioning and in sufficient numbers, compared to the needs of the population (availability). They must also be spread adequately throughout the country in order to be geographically accessible to everyone, including to persons living in rural areas. Their costs must be affordable to everyone, including for persons living in poverty. Medical advice in case of obstetric complications must be given to all future parents (accessibility). Furthermore, obstetric care must respect medical ethics (e.g. physicians must obtain informed consent of the patient before administrating epidural anaesthesia). It must also be culturally appropriate (e.g. possibility for the patient to choose the position during delivery if it does not involve any medical risks)²⁰² (acceptability). Finally, obstetric care must be scientifically and medically appropriate (e.g. evidence-based procedures with best outcome for the patient and the foetus, such as caesarean section when the foetus is in transverse position). It must also be of good quality (e.g.

trained midwives) (quality).

At first glance, the AAAQ framework seems to successfully clarify what the highest standard of childbirth care attainable entails. It applies fundamental requirements of healthcare delivery to key elements of childbirth in a coherent, comprehensive and transparent manner. As a result, it represents an improvement from the erratic review operated by the UN Committee in its Concluding Observations on Article 12 ICESCR. It is also worth noting that the AAAQ framework is sometimes used by

202 Sabine Gabrysch and others, ‘Cultural Adaptation of Birthing Services in Rural Ayacucho, Peru’ (2009) 87 Bulletin of the World Health Organization 724, 726.

NGOs,²⁰³ and by academics,²⁰⁴ when seeking conceptual clarity in human right law.

Finally, the UN Committee indirectly endorses the relevance of the AAAQ framework in its reporting procedure, by regularly expressing dissatisfaction regarding situations in which such requirements are unmet. For instance, concerns expressed against insufficient medical staff in geriatrics, indirectly relate to the requirement ‘availability’, and to the sub-requirement ‘availability of health professionals’.²⁰⁵ Such practice is reflected in Figure 4.

203 E.g. Physicians for Human Rights, ‘Tools & Resources: AAAQ Framework.’

<http://phrtoolkits.org/toolkits/medical-professionalism/the-human-rights-basis-for-professionalism-in-health-care/aaaq-framework/> [accessed 8 September 2015];

International Federation of Health and Human Rights Organisations, ‘Site Visits - Applying the AAAQ Framework in Health Institutions.’ <http://www.ifhhro-training-manual.org/index.php?r=training/view&id=14&sid=7> [accessed 8 September 2015];

Kenyan ESCR Coalition, International Network for Economic Social & Cultural Rights,

‘Challenging Poverty and Inequality through Human Rights’ (2008) at International Strategy Meeting on Economic, Social and Cultural Rights and ESCR-NET General Assembly

<http://www.escr-net.org/docs/i/836924> [accessed 8 September 2015].

204 E.g. Judith V Welling, ‘International Indicators and Economic, Social, and Cultural Rights’ (2008) 30 Human Rights Quarterly 933, 951–952: Welling argues that ‘The significance and value of the newly delineated norms [AAAQ framework] is clear, and should inform the creation of indicator sets linking closely with the Covenant [ICESCR]’;

Sital Kalantry, Jocelyn E Getgen and Steven Arrigg Koh, ‘Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to Education in the ICESCR’ (2010) 32 Human Rights Quarterly 253, 273–279: the authors use this framework to suggest a set of indicators enabling the UN Committee to monitor the right to education (although for the right to education, the element ‘quality’ has become

‘adaptability’).

205 E.g. see concerns expressed in: UNCESCR, ‘Concluding Observations on Germany’s Fifth Periodic Report’ (2011) UN Doc E/C12/DEU/CO/5, para 27; UNCESCR, ‘Concluding Observations on The Kingdom of the Netherlands’ Combined Fourth and Fifth Periodic Report’ (2010) UN Doc E/C12/NDL/CO/4-5, para 29.

Figure 4 Indirect review of AAAQ requirements in Concluding Observations (based on the 2008-2012 sample)

However, the UN Committee does not explicitly acknowledge the relevance of the AAAQ framework in its Concluding Observations on Article 12 ICESCR. These connections result from my own analysis of the issues addressed in the 2008-2012 sample of Concluding Observations.

2.2.2.2 Limited capacity to improve conceptual clarity

Whilst the AAAQ framework could improve the ability of the UN Committee to clarify the normative scope of the right to health in its reporting procedure, three limits arise.

Firstly, the failure of the UN Committee to use the AAAQ framework in its Concluding Observations on Article 12 ICESCR reflects a discrepancy between the standards drawn in abstracto in GC14, and those effectively applied in monitoring.

0 20 40 60 80

Non-discrimination in access to health Physical access to health Economic access to health Access to health

information Availability of health

professionals Availability of health

facilities Availability of health

services Availability of health goods

Quality of social determinants of health

Quality of healthcare Healthcare respectful of

medical ethics Healthcare culturally

acceptable

Indirect review of AAAQ requirements in Concluding Observations (%)

Therefore, its interpretation could be criticised for being insufficiently coherent and principled. This was confirmed through the interviews conducted in Geneva in May 2014: none of the four UN Committee members declared using the AAAQ framework, and some were unaware of its meaning.²⁰⁶

Secondly, the focus of the UN Committee on accessibility issues in its Concluding Observations, as showed by Figure 4, reflects the key role that the accessibility requirement plays in the AAAQ framework, but can be problematic on two aspects.

The accessibility requirement plays a key role in monitoring healthcare delivery.

Logically, individuals cannot benefit from a health service that is available, acceptable and of good quality, if they cannot access it in the first place.²⁰⁷ For instance, healthcare that is unaffordable for the poor in the United States; or healthcare that is not within safe physical reach for Palestinians in Israel.

Furthermore, the accessibility requirement plays a key role in monitoring the non-discrimination principle, a cornerstone of human rights law. In its Concluding Observations, the UN Committee often expresses concern regarding health discrimination with regard to Article 2(2) ICESCR (and not necessarily Article 12).²⁰⁸

However, such focus on accessibility issues in Concluding Observations can impede the capacity of the UN Committee to successfully clarify the normative scope of the right to health for two reasons. First, whilst AAAQ requirements are bound to be intertwined, an all-inclusive umbrella requirement (i.e. accessibility) might cause repetition and confusion in monitoring procedures. For instance, does a service have to be available to be accessible, or does it have to be accessible to be available?

Second, focusing on accessibility issues should not result in an insufficient review of the availability, acceptability, and quality of healthcare, as showed by Figure 4, since these remain crucial. For instance, a health service that is not acceptable or not of

206 Interviews UN Committee members (n 190), Question 3.

207 It is worth noting that medical experts also defend the centrality of accessibility: Jean-Frederic Levesque, Mark F Harris and Grant Russell, ‘Patient-Centred Access to Health Care: Conceptualising Access at the Interface of Health Systems and Populations’ (2013) 12 International Journal for Equity in Health 18.

208 ICESCR (n 4), Art 2(2).

good quality may discourage patients from using it, regardless of the fact that it is accessible and available in sufficient numbers. In Ecuador, maternal care that did not offer women the choice of a delivery position adapted to their cultural background (although safe for women’s and foetus’ health), was reported as deterring them from having an institutional delivery.²⁰⁹ This thesis acknowledges, nonetheless, that evaluating the acceptability and quality of healthcare requires greater medical expertise than assessing its availability or accessibility, and does not always bear the same urgency.

Finally, the third limit to the potential of the AAAQ framework in clarifying the right to health, is that it may crystallise and, thus, restrict its normative scope as a result. It is worth noting that Levesque, Harris and Russell, who synthesised how access to health was conceptualised in the literature, suggested five dimensions to healthcare.

They advise that healthcare be understood through the dimensions of approachability; acceptability; availability and accommodation; affordability; and appropriateness. Interestingly, this framework partially covers the AAAQ requirements but adds two supplementary requirements: i.e. providing healthcare in a timely manner; and according to patients’ needs.²¹⁰ These two requirements cannot be found within the AAAQ framework although they are essential to achieving the highest standard of health attainable.

To conclude, whilst the AAAQ framework could potentially contribute to clarifying the normative scope of the right to health, it remains unused by the UN Committee, and when (indirectly) applied in its reporting procedure, is inherently limited. As a result, the AAAQ framework does not contribute entirely adequately to defining what the highest standard of health attainable means in the reporting procedure of the UN Committee.

209 La revolución Ciudadana Avanza, Care and Ministerio de Salud Pública, ‘Culturally Appropriate Delivery Care: A Right of Women and Newborns (Área de Salud N°12 Hospital

Raúl Maldonado Mejía Cantón-Cayambe, Ecuador)’ (2010)

<http://www.care.org/sites/default/files/documents/MH-PCA_ingles.pdf> [accessed 8 September 2015].

210 Levesque, Harris and Russell (n 207) 22–23.