Trading-off human rights with public health in the name of COVID-19

25 September 2020 – Mukesh Kapila

Today, during the General Assembly marking the 75th anniversary of the United Nations, the Office of the UN High Commissioner for Human Rights organises a high-level event on participation as a human right when tackling global challenges. A recent seminar by PlatformA and the Parliamentary Assembly of the Mediterranean also got legislators from and beyond the Euro-Mediterranean area debating human rights in the COVID-19 context.

A Field Hospital Image by Mukesh Kapila

There is much anxiety that when authoritarian leaders invoke COVID restrictions without due process and accountability, democracy is undermined. Of equal concern – and the focus of this article – is the worry that draconian measures to control the coronavirus heap extra vulnerability onto already risk-burdened groups such as migrants, minorities, women trapped in abusive circumstances,  children without meaningful access to education at home, food insecure households, and others whose precarious livelihoods are ripped away.  Add to that the ‘collateral damage’ of mental illness, and extra deaths from other conditions such as cancers and heart disease neglected when routine health services re-orientate towards COVID-19 management. 

The unintended effects of COVID-19 control policies are discriminatory. They prioritise saving the lives of the few with the coronavirus at the cost of the lives, livelihoods,  and well-being of others – either the majority without the virus or the marginalised groups negatively impacted by restrictions.  This is justified by the ‘greater good’ argument i.e. the imperative to protect the health of the public as a whole including saving future lives-at-risk. But there is further discrimination here: the poor or marginalised are not equally placed to benefit although they do lose more when wider public health is compromised.

No doubt, with time and greater data accumulation, a fuller scorecard will determine the balance of good and harm done by COVID-19 control policies. But such computation is not simply mathematical. A life saved today from the coronavirus or prevented from being lost tomorrow is valued differently compared with the social inconvenience or indirect losses from lockdowns. That is because humanity instinctively values the right-to-life higher than anything else. However, that is disputed by those forced to suffer disproportionately, especially when nobody consulted them on the trade-offs that life-saving often involves.  Altruism is great but not cost-free and who gains and loses is not equitably determined.

Such trade-offs exist in daily healthcare. They are implicit when, for example, measles is allowed to flourish because immunisation programmes are suspended due to COVID  limitations. That is because our natural default mode discounts theoretical future gains for concrete current benefits. Therefore,  a child saved from measles tomorrow appears to be valued less than a grandparent saved from coronavirus today.

The trade-offs  become more explicit in real time, as clinicians know when allocating scarce medical resources. Who do you put on the spare ventilator in the COVID-19 intensive care ward: the previously healthy younger man or the older diabetic? The concept of  ‘disability-adjusted healthy life years’ exists to guide such heart-wrenching decisions.  But how much is a life worth? Economic calculations indicate a range between a few dollars and several million dollars depending on who you are and where you live. In any case, in many health systems, the ability-to-pay easily overrides the morality of equity. Thus, it is evident that while universal human rights bestow the right-to-life on everyone, not all lives are equal.

The same is true for the other universal right that is much talked about nowadays: the right-to-health. This is somewhat sloppily worded. Nobody has divine entitlement to enjoy perfect health as this depends on their own genetic endowment and behavioural choices. The  latter are conditioned by social, economic and environmental exposures which are unequally distributed i.e. in an unfair world, not everyone is capable of making healthy living choices. This includes avoiding getting the coronavirus. So, the right-to-health is more accurately called the right-to-healthcare. This is captured in the notion of ‘universal health coverage’, a key underpinning of the Sustainable Development Goals.

In reality, when it comes to potentially life-threatening conditions such as the extreme manifestation of COVID-19, the right-to-life and the right-to-healthcare are more or less the same thing.  Both are part of universal human rights, the rock on which humanity’s hopes and dreams are anchored.  However, in the harsh COVID age, are we misleading people about prevalent reality?

The reality is that although we must continue to strive, all human rights everywhere and at all times, can’t be guaranteed.  Most of us know this but are coy to acknowledge it. In any case, laws allow states to suspend rights under special circumstances (except for some absolute prohibitions such as torture).  Is the pandemic such a circumstance?  This is debatable but regardless, a more transparent and honest human rights rhetoric may be more effective in controlling COVID-19. Transparency would also better protect the most vulnerable and marginalised by gaining their trust and empowering them to take their own responsibility to look after themselves as best as they can.

Curtailing human rights for public health reasons can be necessary but rendered more acceptable if seen to follow consistent norms. These already exist as the so-called Siracusa Principles derived from the UN Human Rights Committee’s guidance on applying the International Covenant on Civil and Political Rights.  

They require that any human rights suspensions on emergency grounds must be strictly necessary, evidence-based, proportionate to requirements, and apply only for a minimum duration. This is challenging in the case of COVID-19 when the novelty of the condition and uncertain science mean much debate on what is justifiable. Under such circumstances, the cautionary principle is invoked to reduce risk and safeguard the public.  The imperative to be safe than sorry is the justification for lockdowns.

At the same time, the Siracusa principles require restrictive measures not to be arbitrary, and to mitigate disproportionate impacts on particular groups. Some well-resourced governments have done that with special economic and social interventions.  But poor countries struggle and the most fragile communities with least coping capacities bear the brunt.   There is much call for solidarity and a great deal of spontaneous and organised humanitarianism.  However, charity can’t blunt the worst ravages of cruel or thoughtless COVID-19 control policies. Hunger and even starvation deaths are reported as well as suicides and thousands of preventable deaths from neglected other conditions.    

When the cure becomes worse than the problem, it is urgent to invoke the rest of the Siracusa framework. This requires human rights restrictions to be imposed only by due process of law and subjected to regular review against abusive application. Far too many states have invoked national emergency justifications to use executive powers and bypass proper discussion in parliaments. Often legislators have themselves been locked-out and unable to do their job properly to protect the rights of their constituents. 

COVID-19’s damage to democracy may last longer than the pandemic itself, especially in countries where authoritarian governance is entrenched or in ascendance. Ultimately, this is not good for public well-being because we know from experience with HIV and AIDS, Ebola, and other conditions, that the best results are achieved voluntarily by and with people. COVID-19 strategies must realise this sooner than later.  

Published by Mukesh Kapila

See http://www.mukeshkapila.org

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