While the fourth wave of COVID-19 pandemics flows over Europe and other continents, States undertake different steps and measures aimed at minimizing the spread of the virus. Many countries and regions introduced the requirement of COVID certificates/passes, while some plan to implement mandatory vaccinations at least for certain occupations. These measures have spurred discussions of discrimination and legitimate justifications that could support interferences in personal freedom and autonomy. This post though presents a completely different perspective, as the main focus is directed to the question of State responsibility for the consequences of NOT introducing adequate measures to minimize the spread of the virus. This post analyses the positive obligations of States to fight epidemic diseases under IHRL, and offers arguments for the accountability of States for not protecting the life and health of individuals under their jurisdiction.
Poland is one of the very few European countries with only limited COVID restrictions, even though epidemic statistics in Poland are very unfavourable, in comparison with other states. On the 29 December 2021 the highest number of deaths from COVID during the fourth wave of the pandemics in Poland was reported as reaching 797 deaths. Poland is also among the countries with the lowest level of vaccinated inhabitants, with only about 50% fully vaccinated. Other worrying numbers relate to excess mortality which is a consequence of strained access to health-care due to mass COVID-patients intake. This raises the question of Poland’s responsibility for not fulfilling its positive obligations to protect the right to life and the right to health, as a result of inadequate or delayed measures directed to fight pandemics and protect patients who were unable to receive indispensable health-care. This question would not have emerged in the context of the first waves of the pandemics, when little was known about the virus and its spread. Today however, several effective vaccines are available, and governments have had some time to make necessary adjustments of health-care facilities and to prepare a strategy.
The obligation to prevent and fight epidemic diseases is rooted in international, as well as in national legal frameworks. Regarding international norms, we should in particular turn to Article 12 ICESCR and Article 11 ESC. Poland is bound by both these treaties. The Polish Constitution also explicitly foresees that “Public authorities shall combat epidemic illnesses…” in Article 68(4). While the ICESCR’s wording is more demanding – requiring States to take steps that are necessary for the prevention, treatment, and control of epidemic diseases, ESC has been framed more diffidently, obliging States to take appropriate measures designed to prevent, as far as possible, epidemic diseases. It should be emphasized, that even though the obligation to prevent, treat, and control epidemic diseases has not been listed among the core obligations, it is considered as one of the obligations of “comparable priority”. Some guidance regarding how these obligations should be fulfilled can be found in General Comment nr 14 (2000), where States are encouraged to create a system of urgent medical care in cases of, inter alia, epidemics. In order to control diseases, States should use and improve epidemiological surveillance and data collection, and implement or enhance immunization programmes and other strategies of infectious diseases control.
The Polish government has taken some urgent steps to treat COVID patients. Temporary hospitals have been created and more respirators bought. There is no shortage of vaccinations. An obligation to wear face masks is in place, although it is largely not respected. However, it cannot be said that there is a strategy to control the epidemic and that these measures are adequate to the risks and needs. The number of new infections is not particularly high, compared to other countries, but it says little about the real number of infections because testing is not widespread. Unfortunately, the Polish authorities seem to have taken up the position of a rather passive observer of the situation. When we compare data from different European countries, there are some striking differences. According to WHO weekly death reports (data retrieved on 21.12.2021), the UK reached 779, France 1030, Germany 2,5988, Spain 98, Italy 810, Slovakia 653, Portugal 120, Switzerland 81 and Poland 3,006, which makes it the country with the second highest number of deaths of COVID positive patients, right after the Russian Federation.
No less worrying statistics relate to so-called excess mortality. According to the OECD Health at a Glance 2021 report, excess mortality has been observed in all European countries but one (Norway) from January 2020 to June 2021, and Poland has accounted for the highest number in Europe (139 024). The rise of deaths compared to the years 2015-2019 is 22,57% (compared with an OECD average 11,79%). This data is supported by the statistics of the Polish GUS. The number of deaths per week in 2018 oscillated between 6 and 9 thousand, and in 2021 from 8 to 12 thousand. These are the ‘hidden’ victims of the pandemic who did not receive appropriate and timely health care. Many hospitals significantly reduced inpatient care because of a lack of medical staff and a lack of beds for non-COVID patients. Some hospitals have even had to close some of their wards.
We know well that the justiciability of the right to health has always been problematic, because it is subject to progressive realization, and it is difficult to adjudge because of the uncertainty over when an obligation might be breached. Especially in times of pandemic, States may try to defend themselves by stating that impossibilium nulla obligatio est, relying on extraordinary circumstances (force majeure), inability to react in a fast and effective manner because of a lack in data, equipment, staff, etc. While such arguments may have been of relevance in the first months of the pandemic, the situation is different now. Even though Article 3 of the Oviedo Convention obliges States to provide equitable access to health care of appropriate quality subject to ‘available resources’, States need to ‘use their best endeavours’ to fulfill this obligation. When a standard of knowledge of risk has been met by a State, lack of response or a delay in response may lead to a violation and subsequent responsibility (see e.g. ECSR in FIDH v. Greece and ECtHR in Brincat and Others v. Malta).
Obligations stemming from the right to health are obviously interconnected with substantive positive obligations to protect life. The final comments of this post are devoted to the question of State responsibility under the ECHR for its failure to meet this fundamental obligation. Potential accountability would of course require a thorough analysis of a given case in a particular context. Attribution of responsibility in the area of health care has never been easy but is not impossible. It is a matter of well-established case law, that Article 2 ECHR requires States, not only to refrain from the intentional taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This obligation is, in principle, of a regulatory and systemic/structural nature. If we apply the principles set up in Lopes de Sousa Fernandes v. Portugal, applicants will have to be able to show that a State did not put in place an effective regulatory framework to protect patients’ lives (measures aimed at minimizing the spread of the virus were insufficient), and that failure has led to systemic disfunction in health care (hospital and other) services. As a result of this disfunction, patients were deprived of access to essential life-saving treatment. The authorities had knowledge of that risk and failed to undertake the necessary measures to prevent that risk from materializing, thus putting patients’ lives in danger. Potential applicants will also need to show a causal link between the disfunction complained of and the harm the patient sustained. As already mentioned, managing health care is complicated and costly, and thus expectations need to be tailored according to the available resources and specific situation. However, this does not mean that States will always successfully defend themselves relying on arguments that ‘the lack of places was linked solely to an unforeseeable shortage of places arising from the rapid arrival of patients’ (ECtHR in Asiye Genc v. Turkey), or that there were not enough medical staff, or that they acted within a margin of appreciation when deciding how their limited resources should be allocated and how to make ‘difficult choices’ between ‘worthy needs’ (see e.g. Pentiacova and Others v. Moldova).
When we apply these considerations to the current situation in Poland, one may wonder what had been done during the last couple of months to prevent serious disfunctions of the health care system? Did the authorities act with due diligence to protect the life and health of persons under its jurisdiction? The current condition of health care in Poland does not meet at least one of the four fundamental elements of the right to health, namely, availability. In consequence, many patients do not receive the indispensable care they need. Availability, along with other ‘AAAQ’ conditions remains pertinent in all the contexts of health provisions, including the pandemic response. As the IACHR has recently stated, the right to health requires State Parties to the American Convention on Human Rights to ‘provide timely, appropriate health care and treatment’ during the pandemic. What then could ‘reasonably be expected from the authorities’ (see ECtHR in Asiye Genc v. Turkey) to improve the availability of health care services? While some problems, such as shortages of staff (doctors and nurses) are not easy to handle, adequate steps should be taken to enhance testing and vaccinations, and to secure a smooth functioning of health care facilities. It may be anticipated that gradually, patients and their families will recover from a ‘pandemic shock’ and try litigating. Governments should be reminded that obligation to protect life and health has not been lifted by the current situation and it applies to ALL patients, and not only to COVID patients.