Michael Harty (Clare, Independent) | Oireachtas source

Tairgim:

"Go léifear an Bille an Dara hUair anois."

I move:

"That the Bill be now read a Second Time."

At the outset I would like to thank my office and in particular my Institute of Public Administration intern, Mr. Manfred Lau, for his excellent research assistance in drafting this legislation and accompanying materials and Dr. Charles Larkin, my policy advisor. The purpose of the Thirty-ninth Amendment of the Constitution (Right to Health) Bill 2019 is to insert a new subsection into Article 40 of our Constitution. This is a bold, ambitious and progressive proposal which challenges current thinking on health provision and places a right to health protection in our Constitution. It proposes to insert a new subsection, 40.3.4⁰ into the Constitution as follows:

i. The State recognises the equal right of every citizen to the highest attainable standard of health protection; and the State shall endeavour to achieve the progressive realisation of this right.

ii. The State shall endeavour, within its available resources, to guarantee affordable access to medical products, services, and facilities appropriate to defend the health of the individual.

iii. The health of the public being, however, both individual and collective, the State shall give due regard to any health interests which serve the needs of the common good.

The purpose of this Bill is to give constitutional status to every citizen's right to health. It places an obligation on the State to realise this right progressively within its available resources and it gives equal priority to individual and population health needs. It puts a legal obligation on the State to be transparent in decision making and emphasises the principles of reasonableness and proportionality in any legal judgments. This Bill does not introduce any revolutionary ideas on health. It only reflects how we as a society and as a Government have come to acknowledge the superior benefits of universal access to health services. It is clear that the means test system is plagued with critical faults including unacceptable waiting times, weak Government accountability, no consensus on funding and neglected community and local care among many other issues. These faults were identified by the Oireachtas Committee on the Future of Healthcare, which published a report in 2017 detailing a strategic plan to reform the health system. Out of that plan arose Sláintecare which aims to give new life to Ireland's health system by instituting a universal, single-tier health and social care system where everyone has equal access to services based on need and not ability to pay. Sláintecare expresses the universal aspiration to enjoy access to affordable, high quality health services.

Health is an internationally recognised human right. Two thirds of global constitutions contain some form of provision for health. Without good health, our citizens cannot participate in Ireland's democratic institutions. Without good health, they cannot exercise the right to vote, to assemble, to worship, or the right to free expression; nor can they fully enjoy the rights and merits granted by the family, by education, or by private property. The State has as much of a duty to protect the health of the public as it does to protect other fundamental rights enshrined in Bunreacht na hÉireann. This Government has clearly voiced its agreement with the goals of Sláintecare. Ireland prides itself on being an international leader when it comes to the UN and EU sustainable development goals, including goal No. 3 which aims to ensure healthy lives and promote well-being for all at every age. Yet in the domestic setting there exists no fundamental, constitutional protection for the right to health. Health inequality is detrimental to well-being and can be a killer when inequality is extreme. The symptoms of this lacuna are manifested in the obstructed development of health policies. While the efforts of the Dáil and of Government in this area are commendable, difficult issues persist. Hospital waiting times remain at an all time high. There is a lack of bed capacity for acute care and soon the same will apply to elective care. Many permanent consultant posts and nursing posts lie vacant and the exodus of our health professionals continues unchecked. Sláintecare has been subject to a painfully slow process of implementation. Moreover, the budget forwarded by the Government in October failed to reach the necessary scale to implement Sláintecare's long-term changes. These criticisms do not prove that the Department of Health is not committed to the goals of Sláintecare but they do demonstrate that we have a long way to go before those goals are realised. There is always the concern that the State will simply sit on its promise to the public to deliver substantial and fundamental health reform but not do so. This Bill goes back to that promise and gives expression to national sentiment. It endorses the needs of the public and upholds the obligations of the State. In jurisdictions such as India and South Africa it has paved the way for health reform via the courts and the legislature by being framed as both a policy anchor and a legal right.

As a policy anchor, it generates new legislative initiatives. As a legal right, it protects the needs of individuals. Constitutionalisation of the right to health works beyond the domain of the courthouse by acting as a driver for institutional reform and new health policy. A legal right grants a legal foothold from which reform can issue.

I will clarify several aspects of the language of this Bill. It states that every citizen has an equal right to the highest attainable standards of health protection, rather than healthcare or health. We believe health protection is a more specific term than good health, and is a more inclusive construct than healthcare. The right to health protection is institutional, structural, societal and corporate. It cannot guarantee good health in and of itself, but encompasses interventions including healthcare and the environment in which good health is promoted. In everyday usage, it may be referred to as "the right to health", but these distinctions are crucial in delineating the legal scope of the proposed provision. This Bill also acknowledges that public health is both individual and collective. This means that collective health is not merely an aggregate of individual health factors, such as the total number of illnesses or injuries. While those are a part of the picture, public health represents more than that, including mental well-being, a work-life balance, clean air and water, sexual health promotion, a balanced diet, and traffic safety. It may not be the responsibility of the State to oversee each of these elements with the same dedication as with individual health interests, but the State must give them due regard insofar as they impact the common good.

An obvious benefit of this Bill is the ability to challenge State action or failure to act on to the right to health via the courts. This Bill is intended to be fully cognisable by the courts. It is modelled after the South African constitutional provision and the provision in the United Nations' International Covenant on Economic, Social and Cultural Rights, to which Ireland is a signatory. The South African court found its own reasonable standard of jurisprudence for the right to health, by which it was able to protect and enforce women's and children's access to antiretroviral treatments in at least one case. This decision spearheaded social movements to address and treat the country's massive HIV and AIDS crisis. It is hoped that Ireland's courts can come to similar health protection resolutions if this amendment to the Constitution is passed.

It has been suggested the constitutionalisation of a right to health would only lead to unrestrained litigation. In other words, individuals would sue the State over personal health claims, expecting courts to grant immediate relief, the waiting lists would simply transfer from the hospital to the courtroom, and nothing would be resolved. I respond to that claim by highlighting the deliberate language of this Bill, which states: "the State shall endeavour to achieve the progressive realisation of this right". It further states: "the State shall endeavour, within its available resources, to guarantee affordable access" to healthcare. The first condition of progressive realisation acknowledges the practical limitations to fulfilling a universal right to health, which is in practice already a goal of this Government. Nobody is made instantaneously healthy because a hundred words have been tacked on to an 80 year old document. While not instantaneous, the right to health will be realised with progression over time. It is not an excuse to drag one's political feet, but an immediate obligation to constant improvement by all means. The second condition, which stipulates that the State must work "within available resources", achieves a similar effect. It is already acknowledged that the health system is in need of expansion, and that a run on the courts would only drive it into further deficit. Therefore, this Bill would place public health protection high among the budgetary priorities of the State, such that its available resources are sufficient for significant progress, year by year, in the protection of public health.

A constitutional right to health is not just another avenue for litigation; it is also a key tool for public policy and for redirecting the political conversation. When an initiative such as Sláintecare is backed by a constitutional mandate, there are no more excuses for delays or negligence. The priorities remain the same even with a change of Government. Armed with this amendment to the Constitution, we can ask what is being done to fulfil the constitutional mandate, whether Sláintecare is on track to deliver by 2029, and what more we can do to progressively realise our State's duty. Litigation is not always necessary to instigate change. It is only when the failure of the State has reached a point of disproportionality and irrationality, and when the political process has failed the people, that the people have every right to take their adversity to the courts and bring the Government to account.

The right to "the highest attainable standard of health protection" is a fundamental and personal right. Decades have shown that a two-tier health system, based on one's ability to pay, is not equitable and does not work. The arguments behind the Constitution's lack of a right to health are not as compelling today as they were in past decades. This Bill does not violate the separation of powers. Separation of powers only has its basis in the Constitution, the same as any legal or political doctrine, and the preamble of the Constitution clearly aspires to attain true social order and champion the Christian values of justice and charity. Therefore, a constitutionally informed interpretation of the separation of powers understands that the Judiciary also has a role in protecting certain socioeconomic rights, such as the right to health. The Constitution has made explicit one other socioeconomic right, namely, the right to free primary education for children.

The right to health establishes accountability for State actions, gives a political and democratic voice to the marginalised, and preserves a crucial value of our State's fundamental law. When it becomes apparent that Bunreacht na hÉireann is lacking a fundamental provision, its amendment process provides a way to affirm the nation's foundational political and social values. The right to health belongs among our highly cherished fundamental and personal rights, and I expect that if this amendment proceeds to referendum, the public will voice their agreement with it. I look forward to a positive debate on this Bill.

See this speech in context