The Right to Healthcare, Universal Health Coverage and Primary Health Care: The Necessary Relationship

A leading administrator expressed the first problem posed by the legal Right to Healthcare in the following terms: “We are already doing all that we can do within our constrained resources for achieving UHC. What additional advantage would making it a legal right provide? It would only tie us down in litigations and contestations. Given both our constraints in human resource management and financial resources, we will hardly be able to close all the gaps. Further, this kind of litigation would then force us to change our priorities based on legal rulings.” Already in India, as senior administrators point out, court rulings on inclusion of costly treatments for rare diseases under public financing have created a challenge.

This is a tangible concern and has been expressed most in the Latin America context.  A recent article in The Lancet put it this way: “the right to health provisions in national constitutions has led to the spectacular growth of litigation by citizens against governments where this right is enforceable in courts… In some instances, these cases have been brought forward by the rich, seeking high-priced medications and experimental treatments. In others, pharmaceutical companies have been found to have had an active role in bringing right to health cases to court. In countries such as Brazil, the right to health litigation has ultimately forced the state to foot the bill for costly drugs, such as onasemnogene abeparvovec, widely known as the most expensive drug in the world.” The article concludes with the caution that “We should be careful not to let loose language related to the right to health and UHC confuse or conflate these substantive and worthwhile goals” (Harris 2023).

This leads to the second major concern with right to health legislation: that the laws can be misused to serve corporate interests and agendas by enforcing public financing for expensive care with low cost-effectiveness and in so doing divert money away from the more essential care that remains widely required.

There is a third, somewhat looser argument that one frequently encounters. Perhaps it is more of a sentiment or symptom rather than an argument. One often hears that “a right-based approach has inherent limitations.” But, because this inherence is generally assumed and rarely illustrated, it is hard to contest and go against this drift. Yet, we caution against passively drifting into accepting this as received wisdom, without carefully questioning where this perception is rising from. One possibility is that there is a long and growing list of countries and state governments in India, that have legislated a right to health and healthcare but that this does not seem to make any difference in terms of outcomes. Assam is one case in point and many have already written off Rajasthan’s more recent law. There seems to be a pretty significant consensus here that the legislation does little to translate and sustain political commitment and institutional capacity and therefore leaves the unrealised right even weaker than the unlegislated demand. On the other, countries such as Sri Lanka were already doing a competent job of providing universal coverage before UHC policy arrived and without a right to health law. That they are now in danger of losing it due to financial and other crises is another matter and it remains unclear whether a legislation would have been able to prevent this. In India as well, states like Tamil Nadu and Kerala have been able to deliver better on healthcare coverage than most other states and they did so without enacting legislation. Either way you toss the coin, it can be argued that the right to healthcare doesn’t necessarily help and isn’t necessarily needed.

So, to sum up the arguments against bringing a law are:  a) legislation is not enough to ensure delivery of health services as an entitlement; b) legislation leads to a burden of litigation and contestations that would not be productive in terms of increasing access in a resource-constrained setting c) legislation could be used to serve a corporate agenda forcing the state to pay for costly care, especially for the wealthy, diverting money from more essential health services for those in greater need.

Public Provision: It now becomes clear that any meaningful right to healthcare law in the context of Indian states is possible only if we have a system of universal health coverage in place, where the capacity of public health services and publicly administered services can cater to all those who need such services. The term publicly administered services is important here and refers to service providers who are privately owned but who choose to come under the ambit of health services as defined by the law through suitable contracts. It follows that any right to healthcare legislation must ensure that it implies the right to access a health service that can deliver healthcare responsive to the needs of the patient. The key design features of the health system through which such health services can be accessed as an entitlement must be indicated in the legal text.

Priority Setting: The next challenge is of priority setting. Given that resources are finite, how do we keep out those very expensive treatments and therapies that are of doubtful value and are clearly not cost-effective. Who is to decide and how is it to be decided what makes it in and out of the package and will such decisions stand in a court of law? The tried and tested solution is for the law to make it clear that the choices regarding the health services to be included as well as the costs of care that must be reimbursed to the providers would be defined by a duly constituted committee using a well-defined process. These committees need to be guided by both health technology assessment techniques centred around cost-effectiveness studies and a deliberative process that considers concerns related to equity and ethics. New procedures will have to demonstrate that they fall below an agreed cost-effectiveness threshold value and will have to prove that, given the available budget, the new services will not displace other essential care, which benefit many. It is well known that health systems like the UK’s National Health Services and Thailand’s Universal Coverage System have been using such an approach, and have developed institutions that have the capacity to make such assessments. This has been a protection against corporate capture and the courts have never overruled these decisions (at least as of date).

Non-confrontational forms of accountability: When it comes to avoiding any significant increase in legal contestations, putting in place a robust and fair grievance redressal strategy goes a long way. Thailand has what is called a no-fault liability clause in its act which ensures that errors and denials or illegal charges are compensated if found to be true, without necessarily having to fix which individual provider is to be held accountable for the same. This helps because often the gaps are systemic and medical errors do happen. One percent of the budget is earmarked for compensation and currently about 0.3 percent is spent. There is also a supportive local civil society arrangement that helps the complainant and ensures that there is a greater understanding among both providers and service users of the constraints, building solidarity instead of a confrontational form of accountability. But this requires the system to acknowledge errors and denials, which is after all the point of the law.

Thinking through the delivery mechanisms: The biggest problem that remains, however, is in ensuring effectiveness of a law in delivering healthcare as an entitlement. It is here that the necessity of a network of public primary health care facilities and providers becomes critical. This is not just any model-agnostic or experimental approach to UHC, but one that is consciously and foundationally based on a primary healthcare approach. The importance of the relationship between UHC and PHC cannot be overemphasized. Put simply: effective UHC requires a primary healthcare approach.

Understanding primary health care as an approach: A primary healthcare approach is a an approach to the delivery of services that is characterized by a few essential features. These could be listed as healthcare that is: comprehensive, prioritizes prevention and promotion, free, population-based, community based, people-centred and serves as the entry point to all levels of care. The characterization of comprehensive care must be contrasted against the earlier and erstwhile policy that called for selective packages, where only some aspects of reproductive health services and a few disease control programmes were included, with the rest being left to private markets. Even when some symptomatic relief for self-limiting illness was also included, this meant that over 85 percent of health care needs were not effectively covered. In the current understanding by contrast, most diseases have some aspects of care that are required to be delivered at the primary, secondary, and tertiary level.

The primary health centre provides services related to preventing these diseases and their early detection, and ensuring that even for chronic illness diagnosed at higher levels there is medication compliance and follow up and prevention of complications possible at the primary care level. Most importantly, when consultation at a higher level is required it is the primary care provider who acts as a guide and facilitator to access such care. Further, when we say this is community-based care we are referring to services  being as close to communities as is convenient, which is what a network of primary level of care providers do. And when we say, this is population-based healthcare we are referring to the requirement that such a provider is responsible for the highest attainable health outcomes in the entire population and NOT ONLY to those who sought care.

Registration  with primary care provider and  entitlements: Thus, in such a health system, every family and individual is registered with a primary healthcare provider and such a registration is the means through which they access all preventive, promotive and curative services as required and feasible at that level. It is also the portal through which they have facilitated access to all the secondary and tertiary care that is available under the health service. In effect, the act of registration is the act of securing delivery of the entitlement. Patients who walk-in directly to a higher centre cannot be denied care, but they are not assured of the continuity of care across levels that they would get if they had come in as referrals from their primary facility of registration. In the current scenario, even where there are public services available, there are many informal forms of rationing care. Often patients are told to go elsewhere because the requisite care is not available there or because the available capacity is exceeded.

None of this is possible if UHC is equated only with insurance. It only works if there is a network of primary level care providers who are part of a UHC system designed on a primary health care approach.  The delivery of healthcare services as an entitlement also requires a duty bearer, a site of prime accountability. A right to a public service requires a mandated architecture for delivery of that service where every individual knows where their entitlement lies and how it can be claimed. Such a law and system will be able to detect denials as a consequence of rationing of care and through mandatory referrals or expansion of services address this problem on a continuous basis.

Value addition at every stage of implementation and resource use: Such legislation will also enable the citizen or resident to claim their entitlement whenever necessary to call out denials to accountable authority structures. But perhaps most importantly, by clarifying where entitlements lie and the pathways to access them, a well-crafted right to health law that frames and protects a primary health care-based universal health coverage system would help guide health seeking behaviours so as to detect diseases early and get people  to seek the most appropriate and affordable  healthcare options in a timely fashion. Thus, at every level of resource availability and phase of the roll-out of UHC, a law brings greater clarity and appropriate utilisation. The Thai law puts it succinctly: “Section 6: Any person intending to exercise the right pursuant to Section 5 shall select a service unit for regular visitation, and shall be registered there as per rules and shall be entitled to the health services, as prescribed by the Board.”

The necessary relationship: We thus see that the right to healthcare requires universal healthcare which in turn needs a primary healthcare approach. The reverse logic is also true. To succeed,  a primary healthcare approach needs a commitment to universal health coverage/care as defined earlier and achieving UHC requires to be protected by a law that ensures the nature of the service as a public good rather than as a market commodity.

This, then, is the necessary and essential relationship between the right to healthcare, UHC, and primary health care.