As for legal protection to health, the formal recognition of the right to health is also quite different in BRICS.
In Brazil, health is considered as a universal right by 1988 Constitution. We find express reference to right to health in articles 6th and 196 to 200. In these articles, Brazilian Constitution determines that the state has the duty to protect the right to health by organizing a public health system capable to offer universal health services, free of charge to users and resolutive to all kinds of diseases (integrality of assistance). Brazilian Constitution adopts a broad conception of health and defines several measures that must be developed by governments for its promotion and protection, including social and economic policies, sanitary and epidemiological actions, workers health protection, environment preservation, basic sanitation, and others (Ferraz, 2011).
In India, the Part III of the Constitution guarantees certain fundamental rights, including right to life (art. 21), liberty (art. 19), and equality (art. 14). Articles 32 and 226 gives to Supreme and High Courts the right to grant appropriate remedies for violations of fundamental rights. Based in a common law system, India has seen the protection to right to health being increased by Courts decisions along the last three decades. In 1981, on deplorable prison conditions; in 1992, in a case concerning the provision for state workers’ health and medical care; between 1989 and 1995 in several cases regarding to right to life as well as a better standard of life, hygienic conditions in work and leisure. In 1996 a decision fixed the right to health as an independent right by imposing government to pay compensation to a citizen who have had a medical emergency that had been denied by seven hospitals. Later, several decisions affirmed as settled law that right to health is integral to right to life and must be protected as fundamental rights (Parmar & Wahi, 2011).
The right to health is among the provisions of the Bill of Rights of the South African Constitution. While the right to health manifests in a number of provisions of the Constitution, section 27 provides that everyone has the right to have access to health care services, including reproductive health care; to sufficient food and water; and to social security, including, if they are unable to support themselves and their dependents, appropriate social assistance. The same article states that government must take reasonable and other measures, within its available resources, to achieve a progressive realization of each of these rights, as well as no one may be refused emergency medical treatment (Cooper, 2011).
In Russia, the article 41.2 determines that the Russian Federation federal programmes for protecting and improving the health of the population shall be financed by the State. The Russian constitution also determines that measures shall be adopted to develop state, municipal and private health services and that activities shall be promoted in order to facilitate the improvement of health, the development of physical culture and sport, ecological and sanitary-epidemiological well-being. In Article 41.3 of Russian Federation’s Constitution there is the prevision that the concealment by officials of facts and circumstances posing a threat to the life and health of people shall entail responsibility according to federal law. These constitutional guidelines pushed Russian legal system to guarantee the right to health, including the right to access public medical assistance offered by the State.
The right to health is recognized as legal right in China by Article 33 of the Constitution, which stipulates that the State must respect and protect human rights. Article 21 of the PRC Constitution stipulates that the state must develop medical and health services to protect people’s health, and article 45 determines that citizens of the People’s Republic of China have the right to material assistance from the State and society when they are old, ill or disabled. Therefore, the State must develop social insurance, social relief and medical and health services that are required for citizens to enjoy this right. This constitutional article imposes a legal obligation to governments and recognize health as a right of citizens.
As seen, BRICS have some sort of constitutional and legal protection to right to health, but the way that these different countries protect their people’s health is far too different. The recognition of heath as a right is the same important step to the creation of a legal and administrative structure able to offer good and efficient basic health services to population.
The protection of health services depends on public social and economic policies willing to reduce inequity and to promote a good standard of living. In health sector, primary health care services are fundamental to initiate the right to health protection, as well as to guarantee universal basic health services.
In this context, health democracy plays a central role in the construction of health systems, in the measure that it will allow countries to understand better their real health needs and orient governments towards good and efficient public policies.
This article showed some partial results of the research Right to Health and Health Democracy: Bridges to Citizenship, and the comprehension of the actual legal structure of the right to health protection in BRICS, as well as the understanding about the different possibilities of people’s participation in public policies decisions on health, will certainly contributes to a better effectiveness of the protection to health to right given to all global population. These countries represent half of global humanity today and give us a nice figure about how right to health is being really treated in the world nowadays.
Acknowledgements
This study was made possible through funding provided by the University of São Paulo – USP, Brazil. We acknowedege the support given by the researchers of the academic partners in BRICS: Wang Chenguang, Tsinghua University Law School, China; Maulik Rajnikant Chokshi, Indian Institute of Public Health-Delhi (IIPHD), Public Health Foundation of India, India; Anju Vali Tikoo, University: National Law Uniersity Delhi, India; Elena Tarasenko, High School of Economics, Russia; Charles Ngwena, University of Free State, South Africa.
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PAHO (Pan American
