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of the Constitution’s incorporation of international treaties that recognize the right to health, the
court found that the Government had not “fulfilled its obligations to make available the Candid-1
vaccine”. Because the private sector saw the production of the vaccine as unprofitable, the court
ordered the State to produce Candid-1.
2. Accessible
71.
The right to health imposes an obligation on a State to ensure that health facilities, goods
and services are accessible to everyone within its jurisdiction. In this context, access has four
main dimensions: the facilities, goods and services must be physically accessible; economically
accessible (i.e. affordable); and accessible without discrimination; also, health information must
be accessible.53
72.
In Minister of Health v. Treatment Action Campaign, as well as considering the issue of
resource availability and progressive realization (see paragraph 60), the South African
Constitutional Court also considered whether or not Nevirapine was accessible.54 The
Government provided Nevirapine at only two research and training sites per province. The drug
could also be obtained from private medical providers. As a result, mothers and their babies who
did not have access to the research and training sites, and who could not afford access to private
health care, were unable to gain access to Nevirapine. The Government argued that “until the
best programme has been formulated and the necessary funds and infrastructure provided … the
drug must be withheld from mothers and children who do not have access to the research and
training sites”. However, the Court held that the State’s limited provision of Nevirapine was
unreasonable. It ordered that the Government act without delay to provide, inter alia, the drug in
public hospitals and clinics when medically indicated.55
73.
States must take reasonable measures to enhance access to health information, including
for people with disabilities. In the Canadian case of Eldridge v. British Columbia, a group of
deaf applicants challenged the absence of sign-language interpreters in the publicly funded
health-care system.56 The Supreme Court held that provincial governments had a positive
obligation under the Canadian Charter of Rights and Freedoms to address the needs of
disadvantaged groups, such as persons with disabilities. The Court decided that the applicants
had a right to publicly funded sign-language interpretation in the provision of health care and
that the failure of the authorities to ensure that the applicants benefited equally from the
provincial medicare scheme amounted to discrimination.
3. Acceptable
74.
The right to health requires that all health facilities, goods and services must be respectful
of medical ethics, such as the requirements of informed consent, and be culturally appropriate.
In Andrea Szijjarto v. Hungary, a Hungarian woman of Roma origin alleged that she had been
coercively sterilized.57 In 2000, she went into labour and was taken to hospital. Upon
examination, it was found that the foetus had died and a Caesarean section was urgently needed.
On the operating table, she was asked to sign a form consenting to the Caesarean section, as well
as a “barely legible note” handwritten by the doctor giving permission for sterilization. The
reference to sterilization was in a language that she did not understand. In her application to the
Committee on the Elimination of Discrimination against Women, she alleged that this conduct
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