By Dr. Elisavet Athanasia Alexiadou, LLMs, MSc, Post-doc Researcher at Law Faculty AUTH*, Email: ea.alexiadou@gmail.com

Statement of the problem

The COVID-19 pandemic and subsequent state responses to combat the spread of the virus generated considerable attention towards regulatory policies strategies on health care governance in times of health emergencies. [1] In health care governance, it is generally acknowledged that serious gaps exist, especially around accountability. Accountability is a long-standing requirement in health care governance, but also constitutes a systemic vulnerability in the health sector. [2] In a state of emergency, setting up domestic accountability frameworks to prevent violations of the right to health can be hindered; existing safeguards of accountability in the health sector can be critically challenged and/or even overlooked by rapid response measures to emergency risks. [3] Τhis alarming development can be reflected in the implementation of weak procurement systems and limited transparency of public finances, thereby leading to the inefficient use of financial resources disbursed in a public health emergency. [4]

Without any doubt, in the face of public health emergencies public officials are under intense pressure to immediately act and contain the health threat that jeopardizes public welfare. This pressure leaves little or even no time for comprehensive checks and balances in relation to the efficient use of financial resources disbursed in such a situation. [5] Consequently, this increases the risk of corruption (e.g., overpricing, purchasing of substandard/falsified products, and hidden contracts). This risk is  especially prominent in countries whose health systems experience systemic weaknesses, with adverse implications on the effectiveness of emergency management decisions and on health and human rights more generally. [6] Within this context, it is critical to hold state and non-state actors accountable for harm caused to the effective realization of the right to health and, in particular, to ensure access for individuals and groups to effective remedies against those actors.

Accountability: a fundamental right to health component

Accountability can be broadly conceptualized as a ‘continuing concern for checks and oversight, for surveillance and institutional constraints on the exercise of power’. [7] Within the health care domain, accountability is a broad process. It requires the responsible actors in health care governance (i.e. duty-bearers) to show, explain and justify how they have discharged their health obligations, ultimately leading to redress, remedy and policy review. [8] It is asserted that an effective accountability process for upholding the right to health involves four essential procedural elements: monitoring, accountability mechanisms, remedies, and participation. [9] At the same time, the understanding and strengthening of accountability in health is founded on the right to health framework which provides an authoritative framework for driving accountability for the right to health. [10] Accordingly, the UN Committee on Economic, Social and Cultural Rights (CESCR) has acknowledged in its General Comment No. 14 the crucial role of accountability in processes associated with the realization of the right to health for all at all times. [11] In essence, accountability is a key procedural component in health-related decision-making, implementation, monitoring and evaluation of policies in the health sector. [12]

In addition to the UN CESCR, over the years the consecutive Special Rapporteurs on the Right to Health have examined the importance of accountability for upholding the right to health. The Special Rapporteur has explicitly affirmed that ‘without accountability, human rights can become no more than window-dressing’. [13] In fact, the Special Rapporteur has particularly emphasized that effective health care governance requires a range of effective, transparent, accessible and independent accountability mechanisms to be established by the State. [14] Interestingly, in a comprehensive report on health sector corruption, the Special Rapporteur on the Right to Health underlined that:

‘health systems are complex and a wide range of monitoring and review processes have a role to play in enhancing accountability for the right to health in the context of corruption. In terms of monitoring, budget monitoring, effective and accurate accounting, audits and public expenditure tracking surveys are ways of monitoring how funds have been allocated and whether they have been distributed as intended, or whether corruption may have occurred’. [15]

Additionally, the Special Rapporteur stated that transparency and access to information on decision-making processes, budgets, and financial transfers in both the public and private sectors, create the necessary conditions under which accountability for the right to health could be advanced. [16] Most notably, during the COVID-19 pandemic, the Special Rapporteur drew attention to the urgent need for state and other relevant actors to adhere to accountability for mitigating corruption risks in COVID-19 responses. [17]  

Concluding remarks

In light of the above considerations, it becomes evident that accountability for the right to health must be front and center on every country’s public health emergency response. Mechanisms must be in place well before a crisis hits. This ensures that resources made available for emergency responses are not squandered by corruption, misallocation, and maladministration. Furthermore, state and other relevant actors (i.e. duty-bearers) can be held accountable in the event of violations and harmful and unethical practices. Realizing the full potential of accountability in times of public health emergencies is especially challenging. Looking ahead, the COVID-19 pandemic represents an opportunity to advance existing accountability frameworks to protect the right to health, especially in crisis that threaten health security. As the UN Secretary General has pointedly stated, the COVID-19 pandemic presents ‘a time when, more than ever, governments need to be open and transparent, responsive and accountable to the people they are seeking to protect’. [18]

* This research is co-financed by Greece and the European Union (European Social Fund- ESF) through the Operational Programme «Human Resources Development, Education and Lifelong Learning» in the context of the project “Reinforcement of Postdoctoral Researchers - 2nd Cycle” (MIS-5033021), implemented by the State Scholarships Foundation (ΙΚΥ).

[1] UN General Assembly (2020). The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Report of the Special Rapporteur, Dainius Pūras, 75th Sess., Agenda Item 72(b). UN doc A/75/163

[2] UN General Assembly (2008). The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Report of the Special Rapporteur, Paul Hunt, 63rd Sess., Agenda Item 67(b). UN doc Α/63/263, para 12; WHO (2017). Leading the realization of human rights to health and through health: Report of the high-level working group on the health and human rights of women, children and adolescents. Geneva: World Health Organization

[3] UN Department of Economic and Social Affairs (2020). Policy Brief No. 74: Resilient institutions in times of crisis: transparency, accountability and participation at the national level key to effective response to CONID-19

[4] Ibid.

[5] UNDP (2020). Accountability and COVID-19: a guidance note on inclusive processes and institutions. N.Y.: United Nations Development Programme

[6] See in relation, notes 1 and 3.

[7] Schedler, A. (1999), ‘Conceptualizing Accountability’ in A. Schedler, L. Diamond and M. F. Plattner (eds), The Self-restraining State: Power and Accountability in New Democracies, USA: Lynne Rienner Publishers, p 13-28,  p 13

[8] Potts, H. (2008). Accountability and the right to the highest attainable standard of health. Essex: University of Essex Human Rights Center, Open Society Institute, p 13; WHO (2019). Accountability as a driver of health equity. Copenhagen: WHO Regional Office for Europe; See note 2, UN doc Α/63/263, para 9

[9] Ibid., Potts (2008)

[10] See note 8, WHO (2019)

[11] UN Committee on Economic, Social and Cultural Rights (2000). General Comment No. 14: The Right to the Highest Attainable Standard of Health. UN doc E/C.12/2000/4, para 59

[12] See notes 2 and 8; Yamin, A. E. (2008). ‘Beyond compassion: the central role of accountability in applying a human rights framework to health’. Health Hum Right, 10(2): 1-20; Ibid., UN CESCR (2000), paras 43(f), 55 and 59

[13] See note 2, UN doc Α/63/263, para 8

[14] Ibid., para 11

[15] UN General Assembly (2017). The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health: Report of the Special Rapporteur, Dainius Pūras, 72nd Sess., Agenda Item 73(b). UN doc A/72/137, para 52

[16] Ibid., para 51

[17] See note 1, UN doc A/75/163

[18] See note 5, p. 3