Advancing the Right to Health Care in China: Towards Accountability

by Yi Zhang

Overview

Health is indispensable for living a life of dignity. Currently, there is an almost universal commitment to the right to health (care). However, despite the growing legal recognition of this right, empirical evidence suggests that, as a whole, the implementation of the right to health (care) remains largely rhetorical at the domestic level. For example, although China ratified the International Covenant on Economic, Social and Cultural Rights in 2001, relatively little attention has been paid to the domestic implementation of the right to health (care). Violations of this right were also identified in reality. Given that China's health care reform is entering the so-called 'deep-water' zone, it is essential for the Chinese government to investigate how to guarantee everyone equal access to health care.Advancing the Right to Health Care in China analyses the role of accountability, a Western concept that has recently been introduced to China, in advancing the right to health care in light of China's unique political, legal and social background. In doing so, this book synthesises two different concepts: (1) the right to health; and (2) accountability, and integrates them into an analytical framework for 'right to health-based accountability'. It further provides a greater understanding of accountability and the various forms of accountability mechanisms that should be established by States. More specifically, it establishes a constructive accountability model that can be applied to specific health concerns in China, as well as in other countries, particularly those with non-electoral regimes.This book first systematically evaluates the status quo of the legislative and policy measures China has taken to give effect to the right to health care within its jurisdiction. It then identifies the shortcomings in Chinas domestic implementation of this right and seeks to address the remaining challenges through the lens of accountability. This book concludes with a set of recommendations for Chinese law- and policy-makers for implementing China's obligations under the right to health care through its draft Basic Health Law.

Product Details

ISBN-13:	9781780686776
Publisher:	Intersentia
Publication date:	01/14/2019
Series:	Human Rights Research Series , #83
Edition description:	First Edition
Pages:	374
Product dimensions:	6.69(w) x 9.45(h) x 0.80(d)

Table of Contents

Acknowledgements v

List of Abbreviations xv

Chapter 1 General Introduction 1

1.1 Background and problem 1

1.2 Research questions and structure 9

1.2.1 Research questions 9

1.2.2 Research structure 10

1.3 Methodology 13

1.4 Terminology 16

1.5 Concluding summary 18

Part 1 The Implementation of the Right to Health (Care) - An Analysis of China's Practice

Chapter 2 The Right to Health Care as a Human Right 21

2.1 Introduction 21

2.2 Denning the right to health care 23

2.2.1 The meaning of the terms 'health' and 'health care' 23

2.2.1.3 Definition of 'health' 23

2.2.1.2 Definition of 'health care' 25

2.2.2 The emergence of health as a human right 26

2.2.2.1 The right to health in international human rights law 27

2.2.2.2 The right to health in regional human rights law 32

2.2.2.3 The right to health in national constitutions 32

2.2.3 The meaning of the right to health care 35

2.3 Normative content of the right to health care 37

2.3.1 The scope of the right to health care 38

2.3.2 The core content of the right to health care 41

2.3.2.1 The evolution of the 'core' concept 43

2.3.2.2 Limitations of the Committee on Economic, Social and Cultural Rights' interpretation of 'core obligations' 48

2.3.2.3 Scholarly debate over the core concept 52

2.3.2.4 Summary 56

2.3.3 Essential elements of the right to health care: AAAQ-AP 57

2.3.3.1 Availability 57

2.3.3.2 Accessibility 58

2.3.3.3 Acceptability 62

2.3.3.4 (Good) quality 62

2.3.3.5 Accountability 63

2.3.3.6 Participation 64

2.4 States' obligations arising from the right to health care 64

2.4.1 Progressive realisation 64

2.4.2 Obligations of immediate effect 66

2.4.3 Core obligations to respect, protect and fulfil and violations of such obligations 68

2.4.3.1 Core obligation to respect the right to health care 69

2.4.3.2 Core obligation to protect the right to health care 70

2.4.3.3 Core obligation to fulfil the right to health care 71

2.4.4 General obligations under the right to health care 72

2.5 Concluding summary 72

Chapter 3 China's Legislative Commitments towards the Right to Health Care 75

3.1 Introduction 75

3.2 The background of China's human rights protection and health care system 76

3.2.1 China's political and legal system 76

3.2.1.1 China's political power structure 76

3.2.1.2 China's health administration and health service delivery system 79

3.2.1.3 China's legal system 82

3.2.1.4 China's judicial system 83

3.2.2 China's ideology of human rights 84

3.2.2.1 The conception of human rights 84

3.2.2.2 Legal protection of human rights 87

3.3 The domestic application of international (human rights) treaties 88

3.3.1 General legal doctrines of domestic application of international (human rights) treaties 89

3.3.1.1 Internal effect 89

3.3.1.2 Direct effect 91

3.3.1.3 Precedence 92

3.3.1.4 General observations 93

3.3.2 Application of international (human rights) treaties in China 94

3.3.2.1 Application of international treaties: general practice 95

3.3.2.2 Application of international human rights treaties 98

3.4 The legislative implementation of the right to health care in China 99

3.4.1 General introduction and methodology 99

3.4.2 The Chinese Constitution and the right to health care 101

3.4.2.1 'The State respects and preserves human rights' 101

3.4.2.2 Constitutional provisions concerning non-discrimination and equality 103

3.4.2.3 Constitutional provisions concerning health and health care 104

3.4.2.4 Non-direct applicability of constitutional provisions 106

3.4.3 The Chinese health legislation 108

3.4.3.1 An overview of China's health law system 108

3.4.3.2 Provisions concerning non-discrimination and equality 112

3.4.3.3 Provisions concerning elements of other non-delegable core obligations 114

3.4 Concluding summary 118

Chapter 4 China's Policy Commitments towards the Right to HealthCare 131

4.1 Introduction 131

4.2 An appraisal of China's policy commitments to the right to health care 134

4.2.1 The scope of health policy in the Chinese context 135

4.2.2 Human rights-related documents 137

4.2.2.1 Human Rights White Papers 137

4.2.2.2 National Human Rights Action Plans 139

4.2.3 Health-related documents 143

4.2.4 A comparative normative analysis of Universal Health Coverage and the right to health care 146

4.2.4.1 The changing definitions of Universal Health Coverage 146

4.2.4.2 Evaluating progress towards Universal Health Coverage 153

4.2.4.3 Universal Health Coverage anchored in the right to health care 154

4.2.4.4 Reconciling core obligations under the right to health care with Universal Health Coverage 160

4.3 The evaluation of progress towards the realisation of the right to health care in China 162

4.3.1 Major health care reforms 162

4.3.1.1 Phase one: Before China's reform and opening-up in 1979 163

4.3.1.2 Phase two: 1980s to 2006 164

4.3.1.3 Phase three: 2006 to the present 165

4.3.2 Basic medical insurance system 166

4.3.2.1 The Urban Employees' Basic Medical Insurance 167

4.3.2.2 The Urban Residents' Basic Medical Insurance 168

4.3.2.3 The New Rural Cooperative Medical Scheme 168

4.3.2.4 The issue of health equity 169

4.3.3 The provision of essential medicines 171

4.3.3.1 Current reform of China's National Essential Medicines System 172

4.3.3.2 The impact of China's Essential Medicines Policy 173

4.4 Concluding summary 175

Part 2 An Analytical Framework For Right To Health-Based Accountability

Chapter 5 An Overview of Right to Health-based Accountability 189

5.1 Introduction 189

5.2 Conceptualising accountability 191

5.2.1 Accountability in different discourses 192

5.2.2 The principal-agent theory 196

5.2.3 Answerability and enforcement: two sides of the same coin 198

5.2.3.1 Answerability 199

5.2.3.2 Enforcement 201

5.2.3.3 Ex ante and ex post accountability 202

5.2.4 Summary 203

5.3 Types of accountability 203

5.3.1 The prevailing view of vertical, horizontal and diagonal accountability 204

5.3.2 Another school of thought on vertical, horizontal and diagonal accountability 206

5.4 Right to health-based accountability: a conceptual framework 208

5.4.1 Denning right to health-based accountability 208

5.4.2 Constituent elements of right to health-based accountability 211

5.4.2.1 Responsibility 212

5.4.2.2 Answerability 212

5.4.2.3 Enforcement 213

5.5 A constructive accountability process 214

5.5.1 Monitoring 216

5.5.2 Judgement 217

5.5.3 Consequences 218

5.5.4 Remedies 218

5.6 Concluding summary 218

Chapter 6 Accountability Mechanisms for the Realisation of the Right to Health 221

6.1 Introduction 221

6.2 An overview of accountability mechanisms 222

6.2.1 Accountability and accountability mechanisms: a conceptual clarification 222

6.2.2 Analytical framework for right to health-based accountability 228

6.2.2.1 Components of the analytical framework 228

6.2.2.2 An overview of findings 232

6.3 Domestic accountability mechanisms 234

6.3.1 Judicial accountability mechanisms 234

6.3.2 Quasi-judicial accountability mechanisms 238

6.3.3 Political accountability mechanisms 239

6.3.4 Administrative accountability mechanisms 242

6.3.5 Social accountability mechanisms 243

6.4 The media's role in exerting accountability 247

6.5 International mechanisms for monitoring the implementation of the right to health 250

6.5.1 UN Charter-based accountability mechanisms 250

6.5.2 UN treaty-based accountability mechanisms 251

6.5.2.1 State reporting 252

6.5.2.2 Inter-State communications 253

6.5.2.3 Individual communications 254

6.5.2.4 Inquiries 255

6.6 Concluding summary 256

Part 3 Advancing the Right to Health Care in China - Towards Accountability

Chapter 7 Accountability Mechanisms for the Realisation of the Right to Health Care in China 261

7.1 Introduction 261

7.2 Overseeing and accountable actors in China's health sector 262

7.2.1 Overseeing actors 263

7.2.2 Accountable actors 263

7.3 Judicial accountability 265

7.3.1 Constitutional accountability mechanisms 266

7.3.1.1 Constitutional review of legislation 266

7.3.1.2 Constitutional litigation - the 'judicialisation' of the Constitution 268

7.3.2 General judicial accountability mechanisms 271

7.3.2.1 Civil proceedings 271

7.3.2.2 Administrative proceedings 273

7.4 Quasi-judicial accountability 275

7.4.1 'Letters and visits' 275

7.4.2 Mediation 276

7.5 Political accountability 279

7.6 Administrative accountability 281

7.6.1 The cadre responsibility system 283

7.6.2 General oversight mechanisms 286

7.7 Social accountability 288

7.7.1 Society-led social accountability 289

7.7.1.1 The role of the media 290

7.7.1.2 The role of CSOs 297

7.7.2 State-led social accountability 298

7.7.3 Implications and limitations 300

7.8 Concluding summary 302

Chapter 8 Conclusions 307

8.1 Introduction 307

8.2 Conclusions 308

8.3 Recommendations 315

Annexes

Annex 1 The OPERA Framework 321

Annex 2 The Evolving Conceptions of 'Weisheng', 'Yiliao' and 'Jiankang' 323

1 Weisheng 323

2 Yiliao 330

3 Jiankang 332

Annex 3 Comparison of Chinese basic medical insurance schemes 335

List of Instalments 337

United Nations Documents 341

List of Tables and Figures 343

Samenvatting 345

Selected Bibliography 355

Curriculum Vitae 367

Human Rights Research Series 369