Does Ireland Need the Constitutional Right to Health?

Why should health professionals have to shout from the rooftops that their patients may be harmed or die because they are under resourced/funded? Why should patients or carers (often sick themselves) have to set up their own advocacy groups out of serious concerns for themselves or their loved ones? Why should ordinary people have to march for the homeless and the most vulnerable of our society?

Imagine if charities, unions or voluntary groups did not have to compete with one another so that they could get better access to health services; recruit/retain more doctors, nurses or consultants or reduce waiting lists for treatments or surgeries? In a perfect world, all Irish citizens and organisations (private/public/voluntary) would be able to collaborate and collectively advocate to ensure everyone had “the right to the enjoyment of the highest attainable standard of physical and mental health”.

In a perfect world, this, the fundamental right to health, would be in our Constitution.

Why?

Hardly a day goes by and we hear devastating stories about the lack of housing; untimely and unequal access to medical services/treatments; and unhealthy/unsafe working environments (especially in healthcare). Having the constitutional fundamental right to health could ensure our State really think about the decisions they take, and actions they make, which impact directly on the citizens of Ireland.

But don’t we already have the right to health?

In theory, yes. In reality – partly.

The fundamental right to health (which is somewhat different to the right to healthcare) means that everyone equally has the right to access all medical services, sanitation, adequate food, decent housing, healthy working conditions and a clean environment.[i]

Despite the fact our State has subscribed to various EU human right laws[ii], our State do not always have the power to implement these laws in full. [vi] It has been seen on numerous occasions that our Constitution can often prevent our Government from providing some of the most basic human right principles with regard to social, economic and cultural laws. The need for public referendums to change our Constitution (e.g. Marriage Equality Act and 8th Amendment) are some cases in point.

Does this mean we have no right to health?

Not exactly.

Unlike many other countries across the world[iii], Ireland has no specific constitutional fundamental right to health.

However, we do have a few laws highlighting the States obligations for the provision of healthcare, many of which can be found in our Irish Statute Book, and our Constitution. For instance, the right to bodily integrity means the State may not do anything to harm a person’s health or life”. The right to life means “you have the right not to have your life terminated or death accelerated.”  We also have “the right not to have our health endangered by the State”.[iv] These laws may seem independent of one another, but in fact they are “interdependent and indivisible, meaning that rights are linked and not protecting one right may impact on another.[i]

So, are these not enough? Do these current laws not provide enough protection to the citizens of Ireland regarding decisions made by the State, in relation to accessibility, equality and safety?

Or, more importantly, could it be negligent of the State if they did not uphold these laws?

What is negligence?

Negligence, in medical terms, is deemed to be any action, or omission, made by a medical professional which leads to a patient suffering an avoidable injury, having their condition worsened or which causes them harm. For instance, a delayed diagnosis could lead to a possible medical negligence case.[v]  Medical professionals can be held to account for this, and other such cases, because they have a legal obligation (duty of care) to ensure the safety and welfare of their patients.

So does the same legal duty of care on health professionals, expand to decision makers in the State?

What if it is found that a delayed diagnosis, was in fact, not caused by a medical professional but instead due to a lack of, or inadequate supply of resources, staff or facilities in the health system? In other words; what if a patient could not, in the first instance, access diagnostic services in a timely manner? What if they couldn’t see a doctor, have a scan or get surgery on time because the system was under-resourced or facilities were not up to standard? What if the HSE, in the first instance, was under resourced because of decisions made by the State?

Who is at fault then?

The medical professional (who couldn’t see the patient in the first instance); the State (who decided/didn’t decide on the allocation of funds/resources/staff/facilities); the HSE (because they didn’t manage resources properly) or nobody – because that’s just the way it is?

If we have the right not to have our health or life endangered or harmed, then could it be said a case could be taken against the State for a delayed diagnosis?

Is a decision an action?

It is important to understand in clear terms what each fundamental right means. For instance, the right to bodily integrity means the State may not do anything to harm a person’s health or life. To “do” something is to perform an action. When a medical professional makes a decision (action) to do something, such as prescribe a medication, there is a duty of care on the doctor to make an informed decision, that is to (in as far as practicable) learn as much as they can about the patient before prescribing (e.g. find out about other medications, conditions, allergies etc.)

If this stands true, does the State then not also have an equal duty of care to find out all the facts before making a decision to ensure they do not harm or hurt a person’s life?

Our Constitution would imply that they do.

Informed Decision Making

The State are acutely aware that our health service does not have an adequate amount of health professionals and sufficient facilities/equipment to meet the needs of all citizens. The State know there are not enough houses for all the citizens in Ireland. Without a home or enough health professionals could people’s lives or health be endangered or harmed? It doesn’t take a mastermind to come to the conclusion.

Thus, it is fair to say that the State are informed.

Should the State then (much like a medical professional) not provide the appropriate “treatment” (i.e. funds, resources, staff etc.,) especially when made aware that if these were provided, they could prevent harm or injury? If the State makes (or does not make) timely decisions which directly impact on people’s lives with the full knowledge that the output of that action could harm or endanger a person’s health or life, is there not a duty of care? 

Duty of Care and Foreseeability

The duty of care is looked at through the lens of foreseeability; in other words, can it be reasonably foreseen in fact, what actually happened, led to the damage? Unfortunately, foreseeability has been a temporal conflict, looked at in the present, to events that happened in the past. The difficulty for the argument of the State making decisions for the future is that we are now looking at foreseeability; for events that may happen in the future.

If medical professionals (and they do!) openly tell the State that it is foreseeable that patients’ lives or health will be at risk because they cannot diagnose or treat in a timely manner, because of lack of staff/resources/equipment, then it would seem the State must take action.

Is it not then the State’s duty of care to immediately intervene (take action) to prevent this from happening?

Timely Decision Making

If a rural community did not have a local GP or ambulance service and a patient died while waiting for services miles away to arrive, and it was foreseeable that this could happen, who would be responsible? If a patient was on an unnecessary waiting list for surgery and their health was permanently damaged because they were not being treated and/or diagnosed on time; and it was foreseeable that this could happen, who would be responsible?  If an elderly person is left on a trolley for days because there weren’t enough beds or nurses, who would be responsible? If a person did not have shelter, food or water and they died on the streets, who would be responsible?

If time is lost, a life can be lost.

Accountability

Could a case currently be taken for negligence and or possible wrongful death, considering the fact that risks to a person’s health or life were foreseeable by the State? Having regard to our current constitutional rights, could there potentially be a case for negligence in relation to any decision made by the State for the people, which could “accelerate death”; “endanger a person’s health” or “harm a person’s health or life”?

The thing is, it shouldn’t come down to citizens taking legal cases against the State. Taking the litigation route is no easy task. Never mind the costs and time involved – it often forces someone who has already been hurt, relive their painful experiences and live with the stress that they may risk losing their case, especially when going up against an organisation which has unlimited legal resources. From the many I’ve spoken to who have done this, I have learned that honest accounts; meaningful apologies; preventative action for others; and reimbursement, in that order, are usually the main reasons people take legal cases against the State. And there is the other side (which I hate saying because I am a firm believer in justice and accountability) but public legal cases come out of taxpayers money. This is not good for our economy.

Proactive vs reactive

But what if we had a system which did everything in it’s power to ensure no-one was harmed in the first instance? If “the Health Service Executive shall, to the extent practicable, further its object, the need to secure the most beneficial, effective and efficient use of those resources” surely the State should provide adequate resources in the first instance to allow for same?

We all know the saying, prevention is better than cure.

Having the constitutional fundamental right to health does not mean the State would have to provide everything immediately (this would be near impossible and probably unsustainable). But it does mean that our Government would seriously have to sit down and think about any future decisions they make to ensure they are doing their absolute best to prevent injury or harm to a person’s health or life. In other words, knowing that they could be equally as accountable as a medical professional, could ensure they make smarter, safer and more efficient decisions, not just for citizens, but for our economy as a whole.

Who are the drivers for change?

In consideration of the fact that we do not currently have the constitutional fundamental right to health, do our current laws provide enough protection to the citizens of Ireland in relation to accessibility, equality, housing and healthy working conditions?

This I do not know.

But one thing is for sure – the people of Ireland are becoming increasingly agitated about the decisions the State are making that are impacting directly on their lives, and our country as a whole. People are scared.

It just takes one person to test our current laws to see if they are fit for purpose.

It just takes one person to fight for our constitutional fundamental right to health.

Warning bells have already rung for this.

I know if my customers told me that I could potentially harm even one person I would stop in my tracks and reassess.

So why are the Government not doing the same, considering it is the Dáil, in totality, which makes the law?

The Big Question…

Although the Minister for Health has overall constitutional and political responsibility for the Department of Health, it is not the responsibility of the Minister on his/her own to make this decision, it is the collective responsibility of the cabinet, which is the Executive of the State. While the executive power is conferred on the Government, it is important to note that the Minister(s) are the driving force. We, the citizens of Ireland, can only change our Constitution through public referendum. So, should we ask our Ministers to drive this agenda and ask for a referendum, or do we stick with our current laws and hope for the best?

Should the Fundamental Right to Health be included in our Constitution?

I know my answer, but I would love to know yours.


Feel free to comment below, on Twitter @oliveblogs or email me at olivejoconnor@gmail.com



**Please feel free to counteract anything I have said that may not be factually true or share links with me to evidence that I may not have included/excluded. I am only going on my own knowledge and the evidence presented to hand. I will edit this post and cite your response if needs be.**

Disclosure

For clarity, I want to make it explicitly clear that:

  • I am not aligned to any political party, and I do not begrudge any political person(s)
  • I am not advocating for people to take legal cases – I am solely advocating for the fundamental right to health
  • I have no conflict of interest and have not been asked (or funded) by anybody to write this article
  • I am not a lawyer or barrister (I’m just a mere citizen)
  • I am not suggesting in anyway that the Government are currently breaking any laws, I am just asking questions (Article 40.6.1.i – The right to freely express your convictions and opinions)

References

[i] https://www.nesri.org/programs/what-is-the-human-right-to-health-and-health-care

https://www.ihrec.ie/app/uploads/download/pdf/ihrec_human_rights_explained.pdf

[ii] https://www.who.int/mediacentre/news/statements/fundamental-human-right/en/

[iii] http://www.un.org/en/universal-declaration-human-rights/

https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

http://nda.ie/Disability-overview/Legislation/UN-Convention-on-the-Rights-of-Persons-with-Disabilities.html

https://www.sciencedaily.com/releases/2013/07/130719104927.html

[iv] www.citizensinformation.ie

[v] https://www.traceysolicitors.ie/en/what-is-medical-negligence/

http://www.irishstatutebook.ie/

https://www.gov.ie/en/publication/d5bd8c-constitution-of-ireland/

My Background

  • Personal Lived Experiences: I am a mom to four daughters (ages 1 – 16) all of whom have various complex chronic health conditions. I cared for my (late) dad who was on over 22 medications and my husband had a stroke at age 42. I live with various health conditions myself. Living in Co. Mayo, (over the last twelve years) we have made over 200 round trips to paediatric services in Dublin alone.
  • Professional Lived Experiences: I am also an experienced healthcare advocate; certified patient experience (PX) specialist, international speaker, recognised researcher and award winning social entrepreneur.