Keywords: right to health · positivism · legal sources · health policy

 

The document released by the State Council Information Office on the development of China’s public health as an essential element of human rights states that: “China has established a complete medical and health system that is guided by the Constitution, based on civil laws and regulations, laws and administrative regulations on health, and local regulations, and directed by the outlines, programs, and plans of the health sector. The system has proved effective in maintaining sound doctor-patient relations, addressing medical disputes with impartiality, and ensuring citizens’ right to health.”¹However, the ongoing study of the right to health by domestic academia focus on its legal principle², internal value³, ethical function⁴, and idealistic (right and function) construction⁵ as the core concerns.

 

With the constant improvement of China’s health system, relevant studies on the right to health should rise above the scope of principle planning and steer to normative substantiation. This paper adopts a comparative law perspective and employs the “law-policy” substantiation (norm) structure to outline three basic models for substantiating the right to health — the substantiation of the right to health based on international law, substantiation of the right to health based on domestic laws and its illustration of China, and substantiation of the right to health based on the rule of law and public policies — and its intrinsic logic, with the aim of laying the foundation for redirecting the study of the substantiation of the right to health norms.

 

 

It is generally recognized that the right to health is a right that follows “international law first, domestic law second.”⁶ The right to health included in the international human rights convention comprises the origin and critical reference for the right to health in domestic law and provides documentary evidence for substantiating the right to health by law. In addition, even without being incorporated into or translated by domestic legislation, the right to health in international law may have directly applicable binding force or serve as the reference norm and interpretation basis in many member states of international treaties. For example, the judicial litigation pertaining to the right to health in Israeli courts concluded that domestic law shall be interpreted in accordance with international obligations whenever possible in judicial litigation pertaining to the right to health.⁷ Specifically, the norms of the right to health in international law can be expanded from human rights conventions both globally and regionally.

 

 

Official documents from international organizations have defined and explained the meaning of the right to health in international law because the right to health was developed following the regulations in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. Under the implementation mechanism of international human rights conventions, the organizations obliged to protect human rights must describe and interpret the concept and type of important rights. Consequently, the Committee on Economic, Social and Cultural Rights issued a General Comment,⁸ namely CESCR General Comment No. 14: the Right to the Highest Attainable Standard of Health (Art. 12) and the World Health Organization and the UN Office of the High Commissioner for Human Rights (OHCHR) issued the Right to Health: Fact Sheet No. 31.⁹ These two official instruments specifically explain the right to health and enumerate the content of the international human rights documents relating to the right (the international law sources). This paper will follow the guidance of these documents in listing the textual representations of the right to health norms.

 

The first appearance of the concept of the right to health is contained in the Constitution of the World Health Organization (hereinafter referred to as “the Constitution”), which was issued in 1946 and became effective in 1948. The Preamble of the Constitution states that: “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” Despite that, this content is not directly applicable in courts, although it has served as an important basis and reference for judges’ clarification of the right to health and laid the foundation for the official provisions of the right to health in subsequent human rights conventions. 

 

Paragraph 1, Article 25 of the Universal Declaration of Human Rights, issued by the United Nations General Assembly on December 10, 1948, stipulates that “Everyone has the right to a standard of living adequate for the health and well–being of himself and his family, including food, clothing, housing, medical care and necessary social services.” This expression constitutes the first legal source of the right to health in international law and defines the “the availability of medical services” as a fundamental right to be enjoyed by everyone, which has comprised the essence of the right to health without explicitly mentioning these three words. This concept was further recognized and expanded in Article 12 of the International Covenant on Economic, Social and Cultural Rights: “1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.” The “highest attainable standard of health” — the core connotation of the right to health was established independently. However, on the eve before the International Covenant on Economic, Social and Cultural Rights was adopted, Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which was issued by the UN General Assembly on December 21, 1965, and came into force on January 4, 1969, emphasized economic, social and cultural rights include “The right to public health, medical care, social security, and social services”.

 

Based on the International Covenant on Economic, Social and Cultural Rights, the right to health has been inherited and recognized by a range of international human rights conventions, especially those for the protection of particular groups of people, with the right to health being an indispensable part of human rights conventions. Content-wise, however, they are merely the reiterations or moderate adaptations of Article 12 of the Covenant, i.e. prescribe the measures to be taken by countries and the contents to be realized through the right to health. There are five international human rights conventions containing such contents (see Table 1). 

 

 

The first regional human rights convention recognizing the right to health was the European Social Charter (ESC) formulated by the European Commission and adopted in 1965, where Article 11 (The right to protection of health) stipulates that: “To ensure the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organizations, to take appropriate measures designed inter alia: (1) to remove as far as possible the causes of ill–health; (2) to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; (3) to prevent as far as possible epidemic, endemic and other diseases, as well as accidents.” The provisions of the European Union regarding the right to health are directly projected toward the control of factors influencing health and health promotion measures such as health education. In effect, it has had the unique aspect of rising above the traditional paradigm of rights to disseminate public health law to the public or groups of people.¹⁰

 

The protection of the right to health in Africa is also a prominent part of its regional human rights conventions. Article 16 of the African Charter on Human and Peoples’ Rights, which came into effect in 1986 provides that: (1) Every individual shall have the right to enjoy the best attainable state of physical and mental health; (2) State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. In addition, Article 14 (Health and Health Services) of the African Charter on the Rights and Welfare of the Child, which came into force on November 29, 1999, set provisions on the right to health of Children¹¹ almost identical to that in the Convention on the Rights of the Child¹² formulated and issued by the United Nations.

 

The provisions of the right to health are included in the American Convention on Human Rights¹³ in which the right originated. Article 10 of Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (namely the Protocol of San Salvador), which came into force in November 1999, declares that everyone shall have the right to health, namely the enjoyment of the highest level of physical, mental, and social wellbeing. One innovative term in the Protocol is that “In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good”, which is used to ensure the right to health via specific provisions of primary health care, prevention and treatment of infectious, endemic, occupational and other diseases, and education of health problems. In addition, Article 11 of the Protocol stipulates that everyone shall have the right to live in a healthy environment and the States Parties shall promote the protection, preservation, and improvement of the environment.

 

The right to health in international human rights conventions has a broad framework, including freedom (freedom from torture and cruel punishment), rights and capabilities (i.e. acquire basic drugs and health care), direct incorporation of basic determinants of health (safe drinking water, food, housing, and environment), equality (discrimination in the provision of health services is prohibited), and quality requirement (equal accessibility and quality assurance); with regard their duties, countries are obliged to respect, protect, and perform. However, the greatest “identity” of the framework lies in its attribute as a social right as opposed to a freedom right hinges entirely on the voluntary fulfilment of the government rather than on the petition right granted to an individual (at least this does not represent the original design intent of international human rights), which forms another dimension generated by the right to health norms unless substantiated by domestic laws, i.e. substantiation by constitutions or general laws.

 

 

The norms of the right to health in domestic laws include the right of health deemed as a fundamental right by constitutions and also the right to health termed in statutes as the right too accessible health care and medical care. Generally, the right to health is mainly prescribed in domestic constitutions, especially those in emerging countries that became independent after World War II, where the right to health is included in their constitutions. It is safe to say that the right to health is a basic norm and mark of civilization in the constitutions of modern democracies. Except for where the right to health is framed as a fundamental right in constitutions, some countries also embody the right to health in their domestic laws (i.e. basic medical and health laws, social security laws, medical insurance laws, and laws relevant to medical rights). For example, Israel has offered substantiated exposition of the right to health in its National Health Insurance Law and Patient’s Rights Law;¹⁴ and the Netherlands has defined the specific right to health of nationals in its Health Insurance Law adopted in 2006.¹⁵ “The specific right to health norms in the law allow for more detailed enumeration of rights (e.g.patient’s right) rather than a highly abstract and open guarantee in the Constitution”.¹⁶ These countries provide for the right to health of nationals in their domestic administrative laws or social security laws to grant nationals the possibility of seeking the right to health relief through justice. In this case, the substantiated form in which the right to health in constitutions and laws are coherently linked needs to be extracted and summarized.

 

 

After World War II, under the promotion of international human rights movements and the enlightenment of human rights conventions, various emerging countries adopted constitutional provisions regarding health and the fundamental right to health in different forms and styles in their constitutional instruments, making the right to health a statutory component of global constitutional rights. According to the statistics conducted by scholars in 2004, 67.5 percent of over 200 constitutions worldwide contain provisions on health and the right to health, which can be categorized into five types.¹⁷

 

The first is the statement of aspiration, i.e., specifying the security of their people’s health as a national objective. As prescribed by the Constitution of Uruguay, for example: “The State shall legislate on all questions connected with public health and hygiene, endeavouring to attain the physical, moral, and social improvement of all inhabitants of the country. It is the duty of all inhabitants to take care of their health as well as to receive treatment in case of illness. The State will provide gratis the means of prevention and treatment to both indigents and those lacking sufficient means.” The terms of the national goals are typically included in the general provisions of the constitutions concerned. The national goals are by nature a norm of highest-ranking constitutional duties, which regulate the principle and route of national activities and demand the duties to be undertaken by organs of state power by designating specific development paths, e.g. the legislative bodies shall commit to the duties entrusted by the constitution and convert national goals into specific systems.¹⁸ By making the health of citizens a national goal, it raises a constitutional demand for specific legislation and arrangements of administrative systems. Hence, these countries tend to formulate specific health security laws to protect the right to health of their citizens or design specific medical systems and health security systems via public policies.

 

The second is the statement of entitlement, i.e., that citizens enjoy the right to health, right to health care, or right to public health services. As stipulated by the Constitution of the Republic of Mozambique, for instance: “All citizens shall have the right to medical and health care, within the terms of the law, and shall have the duty to promote and protect public health.” The move to specify health as a fundamental right in constitutional instruments constitutes the constitutional source of the right to health as discussed in this paper. It demonstrates the national emphasis on social rights and a prominent feature of emerging countries’ constitution-making in the postWWII era. It is of great significance to define the right to health as a fundamental right in national constitutions. As per the theory of functional systems of fundamental rights, recognizing health as a fundamental right means that citizens can seek relief in judicialization of the constitution, or that the constitutional review can be utilized to ensure that laws enacted by legislatures and other activities conducted by national organs prevent encroachment on the right to health and that domestic laws further support the constitutional guarantee of the right to health. 

 

The third is the statement of duty, i.e., countries are under the duty to safeguard public health or provide medical care and public health services. For example, the Constitution of the Netherlands provides that “The authorities shall take steps to promote the health of the population.” Defining health care as a basic national duty aims to exert a binding force on national organs, i.e., the legislative organs are responsible for legislating on the security of citizens’ right to health and administrative organs are responsible for implementing health security and formulating specific health security policies. Compared to the statement of aspiration, the statement of duty has a more precise coverage and lower duty ranking, i.e. defining health security as a national duty rather than a national goal forms a more immediate binding force on national organs, which will be suspected of violation of the constitution if they do not fulfil that duty.

 

The fourth is the programmatic statement, i.e., describe the ways to finance, provide or regulate medical and public health services via guiding solutions. As provided in Article 52 of the Constitution of the Republic of Bulgaria: “Citizens shall have the right to medical insurance guaranteeing them affordable medical care, and to free medical care, and to free medical care in accordance with conditions and procedures established by a law; citizens’ medical care shall be financed from the state budget, by employers, through private and collective health-insurance schemes, and from other sources in accordance with conditions and procedures established by a law; the state shall protect the health of citizens and shall promote the development of sports and tourism.” Programmatic clauses or so-called guiding clauses refer to “constitutional provisions that guide and direct the future behaviours of state power (especially legislators)”. The guidance and direction are more politically and ethically significant rather than legally significant.”¹⁹ To include such a health guarantee in the constitution as a guiding clause represents the aspiration to provide a health guarantee, but this form of guarantee lacks potency in general.

 

The fifth is the referential statement, i.e., including international or regional human rights conventions stipulating the right to health or the right to medical care into domestic laws by referring to specific provisions. As provided in Article 10, Chapter One of the Constitution of the Czech Republic: “Promulgated treaties, to the ratification of which Parliament has given its consent and by which the Czech Republic is bound, form a part of the legal order; if a treaty provides something other than that which a statute provides, the treaty shall apply.” This Paragraph means all the human rights conventions related to the right to health mentioned above constitute the source of the right to health in Czech and exert a binding force on legislative and administrative, and in particular judicial bodies. The same design is adopted by the Constitution for the Argentine Nation.

 

These five types of norms are formed based on the constitutional provisions for health security in different countries, of which the statement of entitlement constitutes the legal source of the constitutional right to health expounded in this paper. According to the author’s rough statistics, the statement of entitlement is found in up to half of the national constitutions globally.²⁰ Some countries stipulate that citizens have the lawful right to the enjoyment of the right to health while providing for national duties or national goals. Specifying the right to health in the constitution means the makers of the constitutions of these countries believe that “the constitution shall exercise a direct and forceful effect like other constitutional rights to freedom,”²¹ i.e., they consider the right to health as a concrete right that constitutes the source of the right to health in written constitutions, which is protected by the mechanism of fundamental rights. However, from the perspective of the implementation mechanism of the constitution, the effect of security under various procedures may only be different regarding the implementation process and institutional factors without a substantial difference, whether the security of citizens’ health is provided as a national goal, national duty, or fundamental right.²²

 

 

Similarly, some countries or law districts may provide for the right to health using general statutory laws largely represented by administrative laws and social laws while lessor countries use civil laws (e.g., China, see exposition below). The stipulation of the right to health in law is directly and closely related to the national constitution. As the basic norm of one country’s legal framework, the constitution assumes the greatest effectiveness as the basis upon which specific laws can be formulated and may frame legislating duties for legislators. Broadly speaking, there are several conditions of how the right to health is stipulated by law according to different origins and legislating causes.

 

The first is the executive legislation model — typically moved in concrete institutionalized arrangements of the fundamental rights. The implementation and fulfilment of the constitutional requirements of the fundamental rights still need to be reified by legislatures for the fundamental rights to be secured fully and timely, because the constitutional provisions tend to be highly abstract and general even though certain fundamental rights is provided within, and also because the implementation of the constitution in effect covers the inactions and action of organs of power rather than the fundamental rights of themselves. Consequently, the norm of the right to health on the legal level is generated by legislatures enacting concrete laws to protect and realize the right to health, with the right being specified as a fundamental right under the constitution.

 

The second is the delegated legislation model, which is normally rooted in performing the legislating duties delegated by the constitution. The makers of the constitution may take account of the theoretical controversy and practical challenge faced by the right to health as a social right and choose not to stipulate it as a fundamental right, defining health security instead as a constitutional commission²³and handing it over to the legislature to finish in the future. The nature of the constitution enumerating the fundamental rights is to “qualify the community members for social resources distribution.”²⁴ However, with limited resources, the constitution cannot explicitly stipulate the content and scope of what should be deemed as a fundamental social right and therefore chooses to delegate the job to legislators to be finished in the future. Under this circumstance, legislatures choose to specify the right to health through administrative law or other regulations to fulfil the duties delegated by the constitution.

 

The third is the authorized legislation model, which generally derives from the national duty to fulfil the institutional guarantee. Some countries define health care as an institutional guarantee in their constitutional instrument, i.e. treat the health care system in their constitutional instrument as being equal to the political party system, private property system, the system of freedom of religion, and civil service system, through which the constitution grants lawmakers extensive powers to construct such system in concrete.²⁵ Under such circumstances, if a concrete structure of the idea of the right to health is present in a country’s constitution, the theory of institutional guarantee can be used to practice the right to health.

 

The fourth is the policy legislation model typically anchored in agendas to achieve national governance objects or implement national strategies. Some countries’ constitutions specify the right to health or health security as a national goal or even a national guiding plan, which makes legislative bodies accountable for realizing such a national goal or guiding plan for the protection of the right to health. Contrary to the aforementioned constitutional commission and institutional guarantee, the obligatoriness of the national goal is of the greatest effect. However, the national goal and strategic policies and clauses endow the legislators with a higher level of discretion and make them immune to any unconstitutional liability. Under such circumstances, the formulation of laws by legislative bodies is also a direct path to generate the right to health norms. 

 

The fifth is transformative legislation which generally adopts the transformation of international treaties. According to the general jurisprudence of international law, the domestic application of international law (including international human rights conventions) is mainly represented by adoption and transformation. Adoption means direct application, which is equal to the legal source of the country. Whereas in transformation, international law, on a precondition that it is not applicable in a certain country, has to be transformed into domestic law by institutions with the sovereign will,²⁶ i.e., transforming international human rights conventions into new domestic law via the domestic legislatures. In cases when conventions of economic, social, and cultural rights (including the right to health) are to be transformed, a new way to generate domestic rights to health norms is created.

 

It’s without a doubt that it is logically possible for legislators, as sovereigns or representatives of sovereigns, to directly create right to health norms without constitutional provisions. Such cases are not rare. This is because the culmination of constitution-making took place ten years after WWII when ideas and concepts of the right to health and other social rights are not as influential as today. With the deepening comparative law exchanges and the development of globalization, especially the promotion of international human rights organizations such as the Committee on Economic, Social and Cultural Rights of the United Nations, the right to health and other social rights have become gradually accepted in the legal ideas of many countries, with more and more countries creating the legal norms that guarantee and protect citizens’ right to health.

 

The above five legislation models are the basis for the creation of the right to health in domestic general law. They also demonstrate a host of characteristics regarding the contents of the right, including the accessibility to health care, the option of medical treatment, right to informed consent, accessibility to medical information, and patient confidentiality, which form a bundle of rights.²⁷ These models take on a similar expression of the right to health norms in international law by putting forward a statement of duties, i.e. some rights directly specify the patients’ rights and some rights state the duties of health care providers. In addition, the entitlement of the legal source of the right to health (for national legislation) is explicitly endowed to patients, thus establishing medical security as the main type of the right to health. In terms of legislative forms, there are laws on the protection of patients’ rights, national health insurance, medical insurance, and special medical expenses, etc.²⁸

 

 

By establishing the concept of the right to health in the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care and the Civil Code, China has completed the critical process of the substantiation of the right to health. The title “right to health” has been institutionalized into a legal concept and legal right. More specifically, under the governance of the Constitution, the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care and the Civil Code exercise “same-channel protection” of the right to health in both public and private laws. Therefore, we can define the right to health in China’s legal context as the “right to the substantiation of the same-channel protection of public and private laws.”

 

 

First, the right to health in the Constitution of China. Does the right to health exist in China’s Constitution? This is foremost a normative question to be argued. This is because in existing constitutional instrument, particularly in those articles on fundamental rights, none stipulates and enumerates the right to health as a type of independent and explicit right except in Paragraph 3, Article 36 on the freedom of religious belief which provides that no one is allowed to conduct activities detrimental to citizen’s health by exploiting religion. However, the common view of academia believes that the right to health is a fundamental right not enumerated in China’s Constitution.²⁹ Justifying the right to health as an unenumerated right in China’s Constitution typically involves the nature of fundamental rights and their functional systems, while demonstrating textual evidence such as national goals,

institutional guarantees, programmatic policies, and fundamental rights. From the perspective of unenumerated rights, the right to health in China’s Constitution includes the functions of procedural guarantee (Article 2), institutional guarantee (Paragraph 4, Article 14), beneficiary right (Article 21, 26, and 45), defense right (Paragraph 3, Article 33 and Paragraph 3, Article 36). These clauses and contents include citizens shall be protected by law to engage in national health affairs and that the state shall establish a sound health guarantee system, develop medical care to protect the people’s health, develop sports to improve the people’s physical fitness, protect the ecological environment, respect and protect citizens’ right to health, ensure citizens’ physical health is not interfered with by religious activities and their rights to medical and material assistance, develop social insurance, social relief, and medical and health services, and guarantee the livelihood of disabled military personnel and disabled citizens.³⁰ However, this is an indirect interpretation inferred from consequentialism used to prove that the right to health is a fundamental right guaranteed by China’s Constitution and thus constitutes the normative path of the constitutional right to health. Nonetheless, it is still insufficient to prove that the right to health is a 

fundamental right explicitly provided for in the Constitution. 

 

Second, the right to health in the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care. From the perspective of the legislative background, the right to health serves as the foundation and purpose of this law, which means this is the first time the right to health is explicitly specified in China’s health law system and even in the entire legal system. Paragraph 1, Article 4 of this law states that: “The state and society respect and protect citizens’ right to health.” This clause “specifies the citizens’right to health and embodies the importance the state attaches to the right to health at the legislative level.” On the other hand, it emphasizes the responsibilities of the state and society of protecting the citizens’ right to health, representing the sense of responsibility and change of governing conceptions.” ³¹ This is a direct recognition of the concept of the right to health. Meanwhile, Paragraph 1, Article 5 also provides that: “Citizens shall, in accordance with applicable laws, have the right to receive basic medical and healthcare services from the state and society.” Paragraph 1, Article 32 provides that: “Citizens shall have the right to informed consent in matters relating to their illness, diagnosis and therapy plan, medical risks, and medical expenses when receiving medical and healthcare services.” Furthermore, Paragraph 2 of both Articles specify the procedures to implement these rights. It means that under the general right to health, the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care creates another two concrete rights to health — the right to receive basic medical and healthcare services and the right to informed consent.³²In addition, according to the systematic interpretation, one can find that the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care underscores the protection of the right to health of specific groups, which means Article 24 — provisions regarding maternal and child healthcare, Article 25 — provision regarding elderly healthcare, and Article 26 — disability prevention and rehabilitation can be viewed as the path to generate the norms of administrative right to health in China.

 

Third, the right to health in the Civil Code. As the Civil Code divides the right to life defined by the former General Principles of the Civil Law into the right to life, the right to corporeal integrity, and the right to health, the right to health has officially been legally recognized by the civil law system and civil rights in China. Article 110 of the Civil Code stipulates that: “A natural person enjoys the right to life, the right to corporeal integrity, the right to health, the right to name, the right to likeness, the right to reputation, the right to honour, the right to privacy, and the right to freedom of marriage.” Thus the right to health is recognized by civil rights and officially included in the civil rights system. Article 990 of the Civil Code provides that: “Personality rights are the rights enjoyed by persons of the civil law, such as the right to life, the right to corporeal integrity, the right to health, the right to name, the right to entity name, the right to likeness, the right to reputation, the right to honour, the right to privacy, and the like.” This clause sets down the nature of the right to health, i.e., a personality right in nature, which forms a part of the compilation of personality rights with Chinese characteristics. Article 1004 of the Civil Code provides that: “A natural person enjoys the right to health. A natural person’s physical and mental health are protected by law and free from infringement by any organization or individual.” This are the direct provisions of the Civil Code on the right to health and in a narrow sense represent the source of civil laws of the right to health in China with particular provisions on mental health, manifesting the forward-thinking and the determination to protect the right to health of the legislators. Article 1005 of the Civil Code stipulates that: “Where a natural person’s right to life, right to corporeal integrity, or right to health is infringed upon or otherwise in peril, the organization or individual who is legally obligated to aid shall promptly extend rescue.” This clause further defines the relief available through the right to health and emphasizes the obligation of relevant persons to offer contingent rescue. Furthermore, the Civil Code specifies the systems offering legal restraints on corporeal donations, clinical trials, medical and scientific research activity related to human genes and embryos. Likewise, these clauses also constitute the path to generate the civil right to health norms in China. ³³

 

 

According to the aforementioned analysis, the right to health norms in the legal system of China manifests a triangular relation that resorts to “hierarchical structure,” that is, the right to health is systematically specified via public and private law, with the Constitution as the governing principle; it also constitutes a typical example of the substantiation model of the right to health in domestic law. In other words, almost simultaneously,³⁴ the legislators in China achieved the legal substantiation of the right to health through basic law and civil basic law, putting in place a dual-track featuring the same-channel protection of public and private laws. Under the protection of the right to health as a social right by public and private laws, the right to health is fully substantiated in the legal system of China. What are the connotations of these two types of right to health? What are the common conceptual connotations, in what contexts do they differ, and how are they demarcated? This paper will now expound on the subject of the right, subject of the duty, attribute of the right, and duty, in an attempt to clarify the concrete connotations of these two types of right to health as well as the connection and difference between.

 

The right to health in the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care is not only specified in a declarative manner but also reified through the right to basic medical and healthcare services and the right to informed consent. In the declarative expression of the right to health — the respect from the nation and society and protection of citizens’ right to health, citizens are the subject of the right to health while the nation and society form the subjects of duty of the right to health. However, the attribute of the right to health is absent and replaced by the duty, namely respect, and protection. The subject of right and subject of the duty of the right to basic medical and healthcare services are the same as that in the right to health, albeit expressed using the attribute of the right — “access to basic medical and healthcare services.” As per the aforementioned path to generate the right to health norm in international law, the accessibility to the basic medical and healthcare services is the typical content or even the main attribute of the right to health. In comparison, under the right to informed consent, the subject of the right is the citizen; the subject of the duty is medical and healthcare staff such as physicians and nurses in hospitals; its attribute is expressed as the informed consent enjoyed by the citizens to the medical conditions, diagnosis and treatment plan, medical risks, medical expenses. It is safe to say that the legislation has established the right to informed consent as a subordinate concept of the right to basic medical and healthcare services. Consequently, the citizens’ right to health in China’s administrative law assumes, in effect, a triple — layer embedded protection structure.

 

Under the right to health in the Civil Code, the subject of the right is unequivocally a natural person because the fundamental value and function mechanism of the personality rights compilation are constituted by personality dignity.³⁵ Whereas the subject of duty is any random organization or person, the attribute of the right is physical and mental health, and the duty is expressed as the prohibition of the violation. In addition, from the perspective of systematic interpretation, the Civil Code also recognizes some important health values through stipulating the system of obligatory rescue, the system of corporeal donation, the prohibition of the purchase or sale of human cells, tissues, organs, or remains, the circumstance where clinical trials on human are prohibited, the system of restricting the medical and scientific research activities related to human genes and embryos, while explicitly determining the specific subject of duty, attribute of right, or duty. From the perspective of normative evolution and historical progress, the right to health in the Civil Code is expanded from the rights to life and health defined in Article 98 of the former General Principles of the Civil Law. The Civil Code specifies the right to life, the right to corporeal integrity, and the right to health and succeeds in constructing a more complete material system of personality rights.³⁶ The Civil Code does not elaborate on the connotations of the right to health but merely specifies “a natural person’s physical and mental health” in an abstract manner. It still calls for the juristic dogmatics and judiciary adjudication to define and improve the criterion of the right to health, especially the connotation of mental health, and to draw the demarcations between the right to health and the rights to health and life.

 

In pursuit of the analysis of the normative connotations above, the rights to health in these two laws are intrinsically different. The right to health in the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care aims to define the citizens’ petition right to medical services, of which the subject of duty is the state and society, i.e., citizens enjoy the right to petition relevant state organs and social organizations obligated to provide medical services (e.g. hospitals and rehabilitation facilities) to provide medical services. As the traditional social right theory consistently advocates, the realization of such right relies first and foremost on the voluntary actions of the state, whereas the citizens may only petition the courts to get involved to provide them with personalized and guaranteed relief when the state fails to act or act adequately. On the other hand, the right to health in the Civil Code refers to the right enjoyed by a natural person to resist any organizations or person to infringe upon his or her right to health. It is a passive right that provides no capability to petition others, which means a person may only defend him or herself or else petition the court to extend restorative relief when his or her health is being infringed upon by others. Overall, the implementation of these two rights constitutes active and guaranteed relief and passive and restorative relief respectively. Arguably, they are two kinds of rights with different natures, which determine the heterogeneity of their normative connotations.

 

In addition, from the perspective of systematic interpretation, these two laws partially overlap. The right to informed consent, a subordinate concept specified under the right to health in the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care is also provided by the chapters pertaining to medical infringement in the Civil Code, namely the obligation of medical institutions to explain the conditions to the patient and the right to informed consent of the patient.³⁷ From the perspective of the textual expression, Paragraph 2, Article 32 of the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care and Article 1219 of the Civil Code are coherently identical, which leads to the controversy over whether the system of medical informed consent bears on the administrative law relation or civil law relation.³⁸ Because these two legal relations in different nature involve the access to and effect of relief on the right to the medical informed consent of a citizen or natural person and all the more directly pertain to accountability within the hospital, this controversy is a real issue to be solved in the future medical industry. 

 

 

Two fundamental fields of substantiating the right to health (norm) are laws and policies. In the aspect of policy, two components provide a normative drive for substantiating the right to health: the principle of the rule of law and public policies themselves. In regard to the policy-based legal principle, it can be confirmed by the principles of human rights protection, equality, non-discrimination, and due process. In terms of public policies, the policy of social welfare draws the most attention.

 

 

The courts or even law enforcement usually provide both objective and de facto protection of the right to health both by citing and announcing the human rights protection concepts and the principle of the rule of law. According to the view of systematology, there is a systematic relation called “bidirectional coupling”³⁹ between human rights, the legal system, and social system: one is “subject of law” coupling with the legal system, i.e. the aspect of constitutional rights; the other is a “subject of nature” coupling with the social system, i.e. the aspect of natural rights. It is based on the latter that legal principles and the right to health in public policies function by upholding the concept of human rights protection and principles of modern rule of law. Because human rights differ from other legally substantiated rights and the constitution is not equipped with the function to identify and confirm human rights, one cannot argue that “the constitution defines human rights” but “the constitution frames human rights.”⁴⁰ These principles include the principle of human rights protection itself, the principle of non-discrimination, and the principle of due process. They are interconnected, either reflecting the inherent specifications of human rights protection or serving as the necessity of achieving the expected level of sound human rights. The following is a detailed elaboration.

 

First, the principle of human rights protection. The core concept of the principle of human rights protection that shapes and constitutes the right to health lies in facilitating the “potential collaboration” between “health” and “human rights.”⁴¹ Scholars’ research shows that this integration typically occurs in three dimensions — or three pairs of relations: first, the relation between practical scopes such as health policies and programs and human rights. On this dimension, the positive and negative impacts of public health practices may exert on the creation of human rights are investigated to strike a “perfect balance” between public health targets and human rights norms through “social negotiations.” Second, the relationship between actions that infringe upon rights and health. This dimension investigates if actions that interfere with (especially infringe on) rights would create “significant impacts to health,” while the criteria of being “important” hinges on the extension of the sub-argument. Third, the relationship between the promotion and protection of health as well that between the promotion and protection of human rights and human dignity. These represent the cornerstones for the three pairs of relations and are generally viewed as being logically and inseparably linked.⁴² The exploration of the relationship between health and human dignity tends to reach out to mental health,⁴³ which serves to enrich the connotations of the right to health.

 

Second, the principle of equality. The process of dissecting the principle of equality and shaping and constituting the right to health is de facto the reiteration of the rating criterion of “health equality.” “The fields of human rights and health equity have different languages, perspectives, criteria, and tools for action. At the same time, they share several fundamental values.”⁴⁴ It is generally viewed that the practical social factor that connect “human rights protection” and “health equality” is actually “social conditions,”⁴⁵ while the practical logic for “social conditions” to affect “health” is an important means by which to evaluate the rating criterion of “health equality.” Therefore, without a clear understanding of the causes of “social conditions,” one cannot learn what actions may cause “health inequality” and its adverse consequences, which may further violate the principle of equality and the expectations for human rights protection as a whole. Specifically, the “equality” demanded by health equality has to be equality under the “social conditions aligned with the state of being healthy”, which is the “quality” requirement for health equality to shape and constitute the right to health.⁴⁶ The principle of equality has two standards regarding “quantity.” One is the universality of the state of being healthy⁴⁷ and the other is the optimal requirement in a comparative sense. The right to “obtain the highest standard of sustainable health” of itself means that for the health equality concept — in a comparative sense — and its practice in policies, the only thing that qualifies as the reference system for decisionmaking is the highest health standard;⁴⁸ and such connotations of the right further strengthen the idea of health equality and provide directions for the evaluation of it.⁴⁹ More important, the “optimal proposition” of the principle of equality and the national responsibility for human rights protection are mutually connected. This signifies that it includes the requirement to extend a “proactive guarantee” to citizens’ health care, namely “ensure the citizens’ enjoyment of the living conditions that lead to the highest standard of sustainable health.”⁵⁰ As a result, the principle of equality plays a de facto role in shaping the inherent content of the right to health.

 

Third, the principle of non-discrimination. The principle of non-discrimination, in a sense, is a significant aspect of the principle of equality because the method of demarcating “non-discrimination” has to resort to the “discrimination of (health) equality.” Typically, discrimination is closely related to the marginalization of particular groups and often is the source of fundamental and structural inequities in society. Hence, “the non-discriminatory human rights principles enhance the conceptual foundation of health equality.”⁵¹ The demarcating logic lies in it identifies the extreme value of “inequality” and lays down a “self-explaining” definition: When health conditions and existing health influence factors (including social conditions) are obviously in a state of “inequality”, it goes without saying that “health equality” is “absent.”⁵² The “non-discrimination principle” is of great significance for the reasoning — in particular, the exhaustiveness in citing adjudicative grounds — of the indirect judiciary protection of the right to health.⁵³ Overall, non-discrimination is an integral part of the right to health, with its concept providing objective inner quality assurance to the protection and realization of the right to health.

 

Fourth, the principle of due process. The principle of due process derives from the “generalized human rights protection clauses”⁵⁴ in the Constitution of the United States and assumes a dual structure of “procedural due process” and “substantive due process.”⁵⁵ The “procedural due process” serves to mirror the enumerated fundamental rights and the “substantive due process” is used to infer and confirm the “unenumerated rights” and their sources, while the two jointly exercise the “generalized” function recognized by human rights norms. Evidently, the right to health should align with the latter in a constitutive sense.⁵⁶ Some scholars have indicated that the “substantive due process” primarily functions in relation to two aspects in the protection of the right to health: First, to evaluate if laws designed to protect the health benefits are “deviating from the pre-set challenge”; second, to serve as the adjudicative grounds. The theoretical connotation of the substantive due process clauses over the right to health can be extracted and realized through the so-called constitutionality assessing procedure.⁵⁷

 

 

The goal of drawing the demarcation of the scope of public policies of the right to health is to reflect on this type of view: Is a legal expression of the right to health the necessity for such a right to exist? The answer is negative. From the perspective of institutional typology, “The right to health plays different roles in various types of health care systems.”⁵⁸ In high-income countries that have established a “tax-funded health system” — in particular the United Kingdom, Spain, and other countries with a long history of capitalism, medical care, and health guarantee have taken roots as being a national duty, while the right to health as an obligatory right is often “absent.”⁵⁹ In contrast, in countries that provide health care via funding from social health insurance and regulated competitive system,⁶⁰ the right to health plays a more important role.⁶¹ In middle-income countries with large wealth gaps embedded in their health service systems, the constitutional expression of the right to health care (direct expression or indirect express inferred from other fundamental rights such as the right to existence) are more common, to the point of being a certain “path dependence.” Therefore, only by focusing on high-income countries with a “tax-funded health system” can one explore and discover the scope of public policies of the components of the right to health.

 

In Canada, the United Kingdom, Sweden, New Zealand, and other countries that provide health services by relying on “tax funding”, despite the consideration for the protection of extremely disadvantaged groups, which drives the increasing appeal for the right to health substantiation and the dawning of regional reform measures, the basic landscape that “health care system is an organic component of modern welfare states rather than a constitutive element of legal rights framework”⁶² remains intact. The right to health protected by the modern welfare system is primarily confronted by the issue of maintaining the balance between private rights and social rights. Take the United Kingdom as an example, the primary claim in the field of private health care centers on the management of new health issues (such as those induced by drugs and electronic devices). Yet, the concern of the public sector lies in the overall effectiveness of health care. The action logic of public health policies may not necessarily guarantee “immediacy” to every citizen. Its design and execution typically pay priority to key areas or criterion-related validity high-priority groups, the consistency between performance and expected increments, absolute expenditure of welfare health care, and structural effectiveness and inclusiveness of welfare health care, with an emphasis on basic areas that concern people’s livelihood such as to expand the investment in improving citizens’ living conditions.⁶³ Nonetheless, structural inequities still prevail in the health care systems of these countries. For instance, the indigenous residents in Canada have less access to medical care and their health conditions are worse than their non-indigenous counterparts.⁶⁴ In the presence of such a situation, public health policies will continue to raise the input to rectify the systematic and structural imbalance, resulting in a great failure to respond to appeals from private sectors and a constantly deepening “public-private” divide within the right to health in the scope of public policies, or even a vicious cycle.

 

In effect, the normative creation of the right to health in China is also under a huge impact from the national public health policies. By constructing “Health China”, an immersive concept, China averts from the intrinsic drawback of neglecting social continuity in the structural design of health policies. In particular, the draft and reinstatement enable the transition of the health care logic from “giving someone the fish” to “teaching someone to fish”, i.e. the creation, operation, and existence of “health service”, “health guarantee”, “health environment” and “health industry”⁶⁵ center on the initiative (willingness) and action (ability to participate) of citizens to volunteer in building a healthy life, thus protecting the “objective rights” of the citizens to enjoy a healthy life; as for the need for protection and relief of “subjective rights” encountered during the implementation of “Healthy Life”, they are not to be addressed by permanent principles or regular policies, but to be addressed through the functional operation of other social sub-systems, particularly justice and the judicial system, with the principle of rule of law and public policies only serving as the reference for the decision-making in the mutual reference and involvement of these systems. This path precisely echoes and represents the institutional logic of “normative substantiation” referred to in this paper. However, the implementation of the right to health is to be discussed separately, while this paper, as described in the “Preamble”, merely represents the first step of the positivist research of the right to health.

 

 

The social need to improve the health system calls for the paradigm transition of sustentative research on the norms of the right to health. The normative substantiation of the right to health is a multi-faceted and comprehensive project that requires systematic efforts: a static demarcation from the perspective of normative identification shows that “law” and “policy” are the most fundamental areas, among which the area of policy incorporates various normative requirements of the principle of the rule of law; a dynamic collation from the perspective of the creation of norms uncovers three basic models of the right to health substantiation as the right to health substantiation based on international law, the right to health substantiation based on domestic law, and the right to health substantiation based on the principle of rule of law and public policies. Hence it is revealed that the normative substantiation of the right to law not only involves connecting the mechanism of the right to health to the international community but also pertains to the local evolvement of health governance experience. Various profiles of the right to health norms may be rooted in different institutional conditions, embedded with different institutional expectations, and represent different institutional forms. Consequently, for the substantiation of the right to health, a typological exploration of the path of creation of the right to health, which includes but is not limited to the process and effect of the creation of norms, is necessary. However, for the evolution of a health system, normative substantiation is the precondition, but nothing more than preparation in the early phase; what is more significant is to inspect and raise suggestions for its implementation system, which is left for future discussion.

 

(Translated by HU Genfu)

 

* LI Guangde（ 李广德 ), Research Associate at the Law Institute of Chinese Academy of Social Science. Doctor of Laws. This paper is the phased achievement (21BFX169) of the “Study on the Implementation of the Right to Health under the Background of Same-channel Protection of Public and Private Law”, a general program of the National Social Science Fund of China.

 

1. Development of China’s Public Health as an Essential Element of Human Rights, the State Council Information Office of the People’s Republic of China.

 

2. Li Guangde, “Exploring the Fali of Health as a Legal Right,” Law and Social Development 3 (2019).

 

3. Gao Jing et al., “Health Equity: The Core Value of the Basic Medical and Health Law”, Medicine & Jurisprudence 2 (2016); Xie Zhiyong, “Essentials of Fundamental Principle of Health Law”, Journal of Comparative Law 3 (2019).

 

4. Lu Yan’e, “The Right to Health: An Ethical Interpretation of the Law”, Hebei Law Science 3 (2011); Cao, Yongfu, “Ethical Consideration on the Legal Protection of Citizen Right to Health in China”, Medicine & Philosophy 17 (2020).

 

5. Chen Yunliang, “Normative Construction of the Right to Health”, China Legal Science 5 (2019).

 

6. Wang Chenguang, Building a Solid Foundation of Medicine and Health Care Law to Guarantee Citizens’Right to Health, Medicine and Jurisprudence 8 (2016).

 

7. Colleen M. Flood & Aeyal Gross eds., The Right to Health at the Private/Public Divide: A Global Comparative Study (Cambridge: Cambridge University Press, 2014), 7-9.

 

8. The General Comment issued by the Committee on Economic, Social and Cultural Rights is the official interpretational comment on the key concepts in the International Covenant on Economic, Social and Cultural Rights that serves to facilitate the understanding of the key concepts and meanings of the “Covenant” by countries and supervisory and executive bodies of the “Covenant”. Since the General Comment No.1 applicable to the States Parties was issued in 1989, the Committee on Economic, Social and Cultural Rights has issued 24 General Comments up until now, including General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), General Comment No. 13: The Right to Education, General Comment No. 19: The right to social security. 

 

9. The Office of the United Nations High Commissioner for Human Rights (OHCHR) is the coordination center of various human rights activities conducted by the United Nations and is also the secretariat of the Human Rights Committee, treaty organization (namely the expert committee supervising the compliance of the treaty) and other United Nations human rights organizations. The Fact Sheets released by the OHCHR represent the official introductory description on relevant human rights issues to help the public understand fundamental human rights and what the UN is doing to achieve them. 38 Facts Sheets have been issued till now. The outline of Fact Sheet No. 31. 

 

10. For the definition and analysis of the theoretical system of the public health law, see Li Guangde, “Theoretical Coordinates and System Constitution of the Public Health Law of China”, China Legal Science 5 (2020).

 

11. This consists of two parts. The first part emphasizes the accessibility of physical, mental, and spiritual health for children; the second part recognizes the duty of States Parties for securing the integrity of children and their health benefits and requires States Parties to take corresponding measures (10 items) to fulfill the duty. See OAU Doc. CAB/LEG/24.9/49 (1990).

 

12. Text library of relevant conventions.

 

13. By consulting the legislative materials of the Universal Declaration of Human Rights, researchers have found that the ideological source and theoretical origin of the right to health stem from the human rights philosophy in Latin America, instead of from a particular preposition of communism and socialism previously recognized by the academic circle. John Tobin, The Right to Health in International Law (Oxford: Oxford University Press, 2012), 14-43.

 

14. Chen Yongsheng and Zhong Renyao, “Research on the Social Security Institutional Innovation of Israel and its Enlightenment for China”, Social Security Studies 4 (2018).

 

15. Shen Junbin, “International Experience of Promoting Transformation of Long-term Care Service through Social Insurance System: On Enlightenment for China”, Journal of Fujian Administrative Institute 1 (2017).

 

16. Colleen M. Flood & Aeyal Gross eds., The Right to Health at the Private/Public Divide: A Global Comparative Study (Cambridge: Cambridge University Press, 2014), 10.

 

17. Eleanor D. Kinney & Brian Alexander Clark, “Provisions for Health and Health Care in the Constitutions of the Countries of the World”, 37 Cornell International Law Journal 2 (2004): 285-355. Some legislation cases enumerated in “(1) The Model for Domestic Right to Health to be Included in constitutions.

 

18. For elaboration on the nature and normative functions of national goals, see Zhang Xiang, “The New Development of The Environmental Constitution and Its Normative Interpretation”, The Jurist 3 (2018): 94.

 

19. Chen Xinmin, Basic Theory of Public Law in Germany (vol. 2) (Beijing: Law Press, 2010), 442.

 

20. For the collation of health-related contents of constitutional instruments of the world, see Li Guangde and Chen Minghui, “Health-related Norms in the Constitutional Instruments of the World,” compiled and translated based on the work of American scholar Eleanor D. Kinney, in The Foundation of Health Law: Theory and Institution of Right to Health, Wang Chenguang et al. (Beijing: Peking University Press, 2020), 203-246.

 

21. Chen Xinmin, Basic Theory of Public Law in Germany (vol. 2) (Beijing: Law Press, 2010), 444.

 

22. This view stems from the comment of Professor Zhang Xiang on the theoretic proposition of the constitutionalization of the right to a healthy environment. Zhang Xiang, “The New Development of The Environmental Constitution and Its Normative Interpretation”, The Jurist 3 (2018): 94.

 

23. The delegation of the constitution is a fundamental method to implement basic social rights, which means the legislator is given a legislative delegation from the constitution. If statutes enacted by the legislator are against such clauses of fundamental rights, unconstitutional results will be incurred. Colleen M. Flood and Aeyal Gross eds., The Right to Health at the Private/Public Divide: A Global Comparative Study (Cambridge: Cambridge University Press, 2014), 442-443.

 

24. Qin Xiaojian, “Why Are Rights Enumerated in the Constitution — Normative Connotations of Chinese Constitutional Rights”, Law and Social Development 1 (2014): 89.

 

25. Chen Xinmin, Basic Theory of Public Law in Germany (vol. 2) (Beijing: Law Press, 2010), 443-444.

 

26. Wang Tieya, Guojifa Yinlun (Beijing: Peking University Press, 1998), 198-199.

 

27. A bundle of rights is a model to analyze the form of a set of rights. We can view it as the “ideal type” to rights analysis, i.e. prove the right to health to be the generic term of a bundle of rights instead of a specific reference to a single right.

 

28. The National Insurance Law and the Patients’ Rights Act of Israel and the Health Insurance Act and the Exceptional Medical Expenses Act of the Netherlands. Colleen M. Flood and Aeyal Gross eds., The Right to Health at the Private/Public Divide: A Global Comparative Study (Cambridge: Cambridge University Press, 2014), 7-9.

 

29. For more of this kind of views, Jiao Hongchang, “Right to Health as a Fundamental Human Right”, Journal of CUPL 1 (2010); Chen Yunliang, “Normative Construction of the Right to Health”, China Legal Science 3 (2019); Xie Zhiyong, “Essentials of Fundamental Principle of Health Law”, Journal of Comparative Law 3 (2019).

 

30. Gao Qinwei, “On the Right to Medical Care as a Social Right”, Jianghan Tribune 8 (2015); Li Guangde, “Dilemma and the Way for the Realization of the Right of Health”, Social Sciences in Yunnan 6 (2019).

 

31. Shen Weixing, Understanding and Application of the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care (Beijing: China University of Political Science and Law Press, 2020), 30.

 

32. In effect, Article 4, Article 21, Article 82 and Article 97 of the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care also enumerate respectively the right to health education, vaccination, health insurance, and tip-offs. Since these rights tend to combine power and duty, which makes it controversial to define them purely as “specific right to health”, they are not expounded on in the body of the this paper.

 

33. Yang Lixin., “From Right of Life and Health to Life Right, Body Right and Health Right — Innovative Norms of Material Personality Right in The Civil Code”, Journal of Yangzhou University (Natural Science Edition) 3 (2020).

 

34. The Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care was adopted on December 28, 2019, and became effective on June 1, 2020. The Civil Code was adopted on May 28, 2020, and became effective on January 1, 2021. The legislative processes of these two laws at the National People’s Congress were around 5 years.

 

35. Wang Liming, “Personal Dignity: The Primary Value of the Title of Personal Rights in Civil Code of China”, Contemporary Law Review 1 (2021).

 

36. Yang Lixin, “The Innovative Development of the Legislation of Personality Rights in China’s Civil Code”,Studies in Law and Business 4 (2020): 21.

 

37. Article 1219 of the Civil Code: “The medical staff shall explain the medical conditions and treatment measures to the patient when diagnosing and treating him. Where a surgery, a special examination, or a special treatment is needed, the medical staff shall explain to the patient the medical risks, alternative treatment plans, and other information in a timely manner and obtain his express consent. Where it is impossible or inappropriate to do so, the medical staff shall explain them to the patient’s close relatives and get their express consent. Where the medical staff fail to fulfill the obligations as provided in the preceding paragraph and thus cause damage to the patient, the medical institution shall assume the liability for compensation.”

 

38. In the health law community exists a key proposition, i.e. medical-legal relation equals administrative-legal relation. Hu Xiaoxiang, “The Evolution of ‘Legal Attribute of Doctor-Patient Relationship‘ in Medical Law Monographs”, China Health Law 4 (2019). 

 

39. Li Zhongxia, “Normative Connotation of the Constitutional Principle of’Rule-of-Law State (Rechtsstaat)’”, Chinese Journal of Law 2 (2017).

 

40. Zhang Yan, “On the Relationship between Human Rights and Constitutional Rights”, Jurist 6 (2010).

 

41. Jonathan M. Mann et al., “Health and Human Rights”, 1 Health and Human Rights 1 (1994): 6.

 

42. Audrey Chapman, “The Foundations of a Human Right to Health: Human Rights and Bioethics in Dialogue”, 17 Health and Human Rights 1 (2015): 6-18.

 

43. For the representative study on psychological health or mental health and its aspect of right, Jonathan Kenneth Burns, “Mental Health and Inequity: A Human Rights Approach to Inequality, Discrimination, and Mental Disability”, 11 Health and Human Rights 2 (2009): 19-31.

 

44. Paula Braveman, “Social Conditions, Health Equity, and Human Rights”, 12 Health and Human Rights 2 (2010): 31.

 

45. Ibid., 32-34

 

46. Commission on Social Determinants of Health (CSDH), Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health: Final Report of the Commission on Social Determinants of Health (Geneva, Switzerland: World Health Organization, 2008).

 

47. Lisa Forman et al., “What Do Core Obligation under the Right to Health Bring to Universal Health Coverage?”, 18 Health and Human Rights 2 (2016): 23.

 

48. Lawrence O. Gostin, “At Law: The Human Right to Health: A Right to the ‘Highest Attainable Standard of Health’”, 31 The Hastings Center Report 2 (2001): 29.

 

49. Jonathan M. Mann et al., “Health and Human Rights”, 1 Health and Human Rights 1 (1994): 31.

 

50. This active health care duty doesn’t mean that the state should ensure every citizen enjoys the highest standard of sustainable health. Rather, the state should ensure the conditions necessary to obtain such health on an equal basis. The author refers to it as “indirect and active guarantee duty”. See Jonathan M. Mann et al., “Health and Human Rights”, 1 Health and Human Rights 1 (1994): 38.

 

51. Jonathan M. Mann et al., “Health and Human Rights”, 1 Health and Human Rights 1 (1994): 31.

 

52. Ibid., 37.

 

53. Canada once supported the deaf-mute to request the state’s fulfillment of offering sign language services in hospitals by the principle of non-discrimination. Li Guangde, “How to Remedy the Right to Health? — A Category of Degrees of Involvement of Judiciary”, Tsinghua University Law Journal 3 (2019).

 

54. Yu Jun, “Due Process: as the Generalized Human Rights Protection Clause — based on the Investigation of the Judicial History of the Supreme Court of the United States”, Zhejiang Academic Journal 6 (2014).

 

55. Ibid.

 

56. Allan J. Jacobs, “Is State Power to Protect Health Compatible with Substantive Due Process Rights?”, 20 Annals of Health Law 1 (2011): 148-149.

 

57. Ibid., 113-117.

 

58. Colleen M. Flood and Aeyal Gross eds., The Right to Health at the Private/Public Divide: A Global Comparative Study (Cambridge: Cambridge University Press, 2014), 62.

 

59. Ibid.

 

60. These types of countries include high-income as well as middle-income countries; it is also why the former type emphasizes “tax-funded”. Take Europe as an example, Germany, France, Netherlands, Austria, Belgium, and other high-income countries have establishedhealth services funding systems “based on social health insurance” instead of an insurance system for the entire population “based on National Health Service”(representative countries that initiative such system include the United Kingdom, Spain, Italy, Sweden, Finland, and Ireland, etc.); similar countries establishing a health services funding system include Czech, Slovakia, Slovenia, Poland, Bulgaria, Romania, Baltic countries, and other middle-income countries. See Dieter Tscheulin & Florian Drevs, “Europe and Health: National Health Care Systems and the Effects of European Integration”, 30 Journal for Public and Nonprofit Services 4 (2007): 436-437.

 

61. Colleen. M. Flood et al., “Introduction: Legislating and Litigating Health Care Rights around the World”, 33 Journal of Law, Medicine and Ethics 4 (2005): 638.

 

62. Colleen M. Flood and Aeyal Gross, “Litigating the Right to Health: What Can We Learn from a Comparative Law and Health Care Systems Approach”, 16 Health and Human Rights 2 (2014): 66.

 

63. Ibid.

 

64. See Colleen M. Flood and Aeyal Gross eds., The Right to Health at the Private/Public Divide: A Global Comparative Study (Cambridge: Cambridge University Press, 2014), 10.

 

65. The Outline of the Healthy China 2030 Initiative describes a coordinated construction system for “Healthy China” with “Healthy Life” (Chapter II) at the core, “Health Services” (Chapter III), “Health Guarantee”(Chapter IV), “Healthy Environment” (Chapter V), and “Health Industry” (Chapter VI) as the belt, and “Support and Guarantee System” (Chapter VII) and “Organizational Implementation System” as the peripheral structure. “The CPC Central Committee and the State Council Jointly Issued the Outline for the ‘Healthy China 2030’ Initiative,” The Chinese government website.