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Human Rights Value Based on the Legislation Principle of the Basic Healthcare and Health Promotion Law
October 17,2019   By:CSHRS

Human Rights Value Based on the Legislation Principle of the Basic Healthcare and Health Promotion Law

ZHANG Boyuan*

Abstract: The draft of the Basic Healthcare and Health Promotion Law directly incorporates the concept of the right to health, which will have a positive significance in realizing the constitutional norms of the right to health protection. China’s Constitution stipulates the general policy, concrete duties and specific obligations of the state to protect citizens’ right to health, which is the most fundamental logical starting point of legislative design. The implementation of state obligations requires the legislation to follow the principles as follows: people-centered public welfare, respecting and protecting the principle of citizens’ right to health, equitable access to basic medical and health services and the government responsibility for the purpose of the people’s health.

Keywords: right to health ; constitutional origin ; legislation principle ; human rights

I. Introduction: Constitutional Origin of Provisions on Citizens’ Right to Health

On October 22, 2018, the draft of the Basic Healthcare and Health Promotion Law (hereinafter referred to as “Healthcare and Health Promotion Law”) was submitted to the sixth Session of the Standing Committee of the 13th National People’s Congress of China for its second review. The version of the law after the second review (hereinafter referred to as the “second review draft”) has been released for public comments and suggestions. Compared with the “first review draft”, nine articles have been added to the second review draft, increasing the total number of articles to 111. The structure of the law has also been significantly revised, highlighting the concept of “basic, grassroots and public”. The content of the law has been rearranged into the following order: basic medical and health services, health workers, drug supply security, health funding, health promotion and regulation, with more specific provisions highlighting the equity, accessibility and commonality of health governance. This basic law is an important legal guarantee for implementing the “Healthy China Strategy” and ensuring the reform of the health system, requiring us to continue to focus on the basic provisions on the citizen’s right to health enshrined in the Constitution of the People’s Republic of China, advocate the principle of human rights protection, establish the basic legislation principles from the perspective of top-level design, and make scientific and reasonable institutional arrangements accordingly. This paper attempts to determine and verify the constitutional origin of the aforesaid law as well as the human right attributes of its basic principles so as to make the author’s due contribution to helping the bill to be enacted into law.

At present, 67.5 percent of the countries in the world have provisions regarding the right to health in their Constitutions, and these provisions can be categorized into: a statement of aspiration, a statement of entitlement, a statement of duty, a programmatic statement and a referential statement.1 China’s academic circles have different opinions on the nature, connotations and attributes of the right to health. Most of the views define right to health as a “constitutional right”.2 However, “combined rights” advocates argue that right to health is a human right, basic right as well as civil right,3 leading to various debates on the name, positioning and nature of the right to health in the process of legislation.4 The root cause of these arguments lies in the lack of indepth understanding of the constitutional origin of right to health. Citizens’ right to health has undergone the great change from personal right protected by civil law to a social right protected by the Constitution.5 The provisions on the right to health in international human rights documents are basically centered on the theoretical framework of it being a social right. The evolution of the provisions on the obligations of the state regarding social rights illustrates the trend of shifting from elastic obligations to rigid obligations. The international documents concerning human rights have long confirmed that the right to health lies in the enjoyment of the highest available stan-dards of health, which is one of the basic rights of people. In 1990, General Comment No.3 adopted in the fifth session of the UN Committee on Economic, Social and Cultural Rights (CESCR) explicitly required all the countries to provide basic primary healthcare to their nationals and such core obligation of the countries not to be derogated.6 The laws with regard to the evolution of right to health require us to pay more attention to the in-depth analysis of the supporting role of constitutional provisions from the perspective of human rights protection in our studies.7

The right to health is an important part of the human rights system. Article 33(3) of the Constitution of the People’s Republic of China stipulates that “the country respects and protects human rights”. Starting from the basic point of this constitutional provision, we may summarize the country’s constitutional obligations on guaranteeing citizens’ right to health as follows:

First, overall obligation on healthcare and health. Article 21 of the Constitution of the People’s Republic of China stipulates — “The country develops the medical and health cause, promotes modern medicine and traditional Chinese medicine, encourages and supports rural collective economic organizations, state-owned enterprises and institutions and neighborhood organizations to build various medical and health facilities, carry out health activities for the masses, and protect the health of the people. The country develops the cause of sports, conducts sports activities for the masses, and enhances the people’s physical fitness.”

Second, a relief system concerning citizen’s right to health. Article 45(1) of the Constitution stipulates that citizens shall have the right to obtain relief from the country — “Citizens of the People’s Republic of China have the right to material assistance from the state and the society in case of old age, illness and incapacity to work”. In order to lay a material foundation for the protection of citizens’ right to health, this article also provides: “The state develops social insurance, social relief and medical and health services needed by the citizens to enjoy these rights”. These efforts fully cover the important areas such as health financing and payment, medical services, public healthcare and the health industry, and constitute a solid material foundation for the protection of citizens’ right to health.

Third, the obligation to protect the environment so citizens can enjoy the right to health. Citizens’ health is closely related to the natural environment in which they live. Article 26(1) of the Constitution stipulates the constitutional provisions on the country’s environmental responsibilities: “The country protects and improves the environment and the ecology, and prevents pollution and other public hazards.” In order to effectively prevent and resolve environmental risk factors, it provides the primary basis of health hazard prevention.

Fourth, a system to protect workers’ right to health. The right to work, as a means for workers to obtain benefits, overlaps with the right to health. The workers’ right to rest is the basis for the existence and development of the right to work. Article 42 of the Constitution stipulates the state’s obligation to “strengthen labor protection and improve working conditions”. Article 43 of the Constitution also provides that the state develops rest and recuperation facilities to protect workers’ health, and establishes a working schedule system and an employee leave system, which helps to ensure that the workers can recover physically and mentally and maintain good health so as to continue their work. These systems have also been further provided in the second review draft. Article 83 of the Constitution further stipulates the statutory obligations of the employers to protect the health of their employees, making the connotations of Article 42 of the Constitution — the provisions regarding the country’s obligations on labor protection — more specific and feasible.

Fifth, the obligation to protect the right to health of special groups. Article 49(3) of the Constitution stipulates “the prohibition of mistreating the elderly, women and children”, which constitutes a general obligation to guarantee the right to health of the aforementioned special groups in a real sense and providing a clear constitutional basis for the promotion and protection of the rights of the underprivileged groups such as the elderly and the children.

Sixth, “national policy” provisions as the constitutional basis for protection of special groups’ health. Article 25 of the Constitution stipulates that “the country implements the family planning policy so as to adapt its population growth to its economic and social development plans”.This provision is not only a direct foundation for the legislation of the Population and Family Planning Law, but also provides a direct basis for the promotion of the women’s health system. Article 3 of Population and Family Planning Law stipulates that carrying out the work with regard to population and family planning shall be combined with the tasks of increasing women’s access to education and employment, enhancing women’s health and improving women’s status.

Seventh, obligation to protect citizens’ right to health in religious activities. Article 36(3) of the Constitution provides — “The country protects normal religious activities. However, no one shall carry out any activities which undermine the social order, impair the health of citizens, or impede the country’s education system in the name of any religion.” Article 4 of the amendment (2017) of Regulations on Religious Affairs reiterates that no organization or individual shall endanger the national security, undermine the social order, harm the health of citizens, impede the country’s education system, or carry out any other illegal activities that harm the interests of the country, the public interests of society, and the legitimate rights and interests of the citizens in the name of any religion.

The above-mentioned provisions mean that the citizens require the country to assume positive obligations to provide them with a healthy environment, health facilities, medical and healthcare services and corresponding reliefs, thus forming the most fundamental constitutional foundation for the legislative design of the Healthcare and Health Promotion Law.

The Healthcare and Health Promotion Law has three goals — confirming the right of citizens to health, leading the relevant reform, and safeguarding the implementation of the “Healthy China” strategy. The second review draft of the law clearly specifies the contents of the rights and obligations concerning citizens’ health, highlights the implication of human rights protection. As to the protection of citizens’ right to health, we shall not be satisfied with the implementation of the government’s responsibility of “providing medical treatment for the illness”. Instead, we shall realize the political mission of “legislation for livelihoods” by fulfilling our political responsibility of “protecting people’s lives”. The legislation must properly harmonize and coordinate the multiple interest appeals in the medical and health cause, such as career development, industry revitalization and industry regulation, and allocate the resources of legislation in a scientific manner. Then, a synergy of national health protection can be formed. However, the current research and interpretations of the legislative principles by the academic circle are not very in-depth. Although the principles of government leadership, social cooperation and government’s necessary responsibilities have been touched upon from the perspective of the basic medical law, studies of the universal principles lag behind. Some other studies attempt to start from the concept of “distributive justice” to study the issue of the equitable distribution of the rights and obligations of different subjects regarding health in the approach of “who should obtain what and how”, but they have failed to touch upon the value benchmark behind what it ought to be, or has failed to refer to the specific difference between “what ought to be” and “what is actually received”.8 In the normative sense, the significance of paying attention to institutional logic lies in paying attention to the importance of the consistency and coordination of the legal system — “It is far more than a small contribution to confirming the rational value in deductive reasoning. Instead, it can effectively refute the argument of anti-rationalism”.9 As part of the analysis, the institutional logic puts more emphasis on the “results-oriented” mode of thinking, focuses more on the objectives, approaches and effects of institutions, especially the relationship between its goals and effects. Internally, each specific legal system is required to have its own objectives, and the objectives of the system can only be achieved when all the regulation clusters of the system work together. In a certain sense, the logical consistency of the system itself is an important indicator for measuring a specific legal system, and it is an important embodiment of scientific legislation. The Healthcare and Health Promotion Law must take the protection of right to health as its purpose and objective, and achieve compatibility and unification of the health needs of the people and the goals of the health system reform through the implementation of the following legislation principles.

II. Principle of People-Centered Public Welfare

Article 3 of the second review draft stipulates that the development of the healthcare and health cause shall be people-centered, serve people’s health, focus on the grassroots, take reform and innovation as its driving force, focus on prevention, pay equal attention to both traditional Chinese medicine and Western medicine, integrate health into all policies, adopt a working principle of “co-building and sharing” by the people for the medical and health cause, adhere to the principle of public welfare in the medical and health cause. This point can be summarized as the legislation principle of “people-centered” public welfare.

It highlights the principle of public welfare in the healthcare cause. This kind of public welfare is different from the public welfare of public hospitals. According to Wu Jinglian, the public welfare of public hospitals is mainly reflected in “the nature of being non-profit” and”the purpose of promoting public well-being”.10 However, the public welfare of the health cause is specifically expressed in the law as follows—”In order to develop the medical and health cause, we shall adhere to the people-centered principle, serve the people’s health... (and follow) the guideline of co-building and sharing by the people in the medical and health cause.” It can be seen that there are differences in terms of level between the principle of people-centered public welfare in legislation and the principle of public welfare in public hospital reform. First, the legislation principle requires a “people standard” as its starting point and destination of the socialist medical and health cause. Second, a “people standard” is not limited to “serving the people’s health”. It’s more prominently reflected in the confirmation of the people as the subject of the legislation. In the normative sense, the people are not only the ones who enjoy health services, but also the builders of the national health cause. The participation of individual citizens is not only an important feature of the right to health, but also the highest manifestation of the human rights of individual citizens.Article 11 of European Social Charter (1996) clearly stipulates that “with a view to ensuring the effective exercise of the right to protection of health… and the encouragement of individual responsibility in matters of health”.11 Recommendation No.R(2000)12 of the Committee of Ministers to member states on the development of structures for citizen and patient participation in the decision-making process affecting healthcare adopted by the Committee of Ministers of the Council of Europe also pointed out that citizens and patients’ participation is of great significance in terms of democracy, so it is necessary to establish a corresponding legal framework to ensure and protect the right to participation of citizens and patients .

In the process of global health governance, the responsibilities of the state and the non-state behavioral responsibilities coexist and complement each other. In addition to state responsibilities, citizens are entitled to participation in the healthcare cause and health management as individuals and required to assume corresponding responsibilities, which is an important component of health legislation. If the question of “who is to be resorted to in case of disease”13 is actually asking the question of “who provides the medical relief”, then the current legislation is trying to solve a more profound proposition of “who shall be responsible for the citizens’ health” which will inevitably touch upon the essential issues such as health risks and distribution of responsibilities. In the context of a risk society, limited financial capacity promotes the contemporary transformation of welfare states, attaches importance to the role of individual citizens in controlling mental illness, AIDS, tobacco control, food safety, drug risk prevention and so forth, and makes the communitarian legal approach regain the attention of the people. Its core lies in the emphasis on individual and social responsibilities in modern society, the opposition to the reduction of individual responsibilities based on the “right standard” theory and the reiteration of the necessity of obligations.14 The New Egalitarianism proposed by Giddens also believes that “active welfare” shall pursue “active intervention” based on ex-ante governance rather than reparatory remedies of risks or ex-post governance, pay more attention to the government’s cultivation and guidance of people’s healthy lifestyles, and advocate that individuals shall be responsible for their own health arising from their own choices.15 The contemporary Western welfare policies are actively shifting their focus from rights to rights and obligations. Active welfare policies pay more attention to the impact of artificially constructed risks on society, look forward to the establishment of a mechanism in which the citizens and the country share their responsibilities, implement the principle of “no responsibility, no right”, namely, the citizens must assume their own responsibilities while the government assumes the responsibility of guaranteeing the health of citizens. While protecting the people from risks, they also motivate the people to take the opportunity to take initiative to reduce risks. In China, the “Healthy China 2030” Planning Outline clearly puts forward the concept of “co-building and sharing”, requiring us to strengthen individuals’ responsibilities with regard to health and coordinate the resources of three aspects (society, industry and individuals) so as to achieve the goal of building a healthy China. This undoubtedly reflects the pursuit of sharing citizens’ health responsibilities in a rational manner. In practice, the legitimacy and necessity of citizens’ participation in health governance has not received due attention. The substantive and procedural rights of citizens to participate in the decision-making of medical and health affairs are still very scarce. A citizens’ participation in health-related decision-making is often initiated by the signing of an informed consent form when he or she is ill, waiting for diagnosis or treatment for his/her disease. Its passive and ex post nature is obvious. Citizens’ participation in the decision-making process of a national or local health policy is even weaker. It is imperative to solve the problem of “rights poverty”caused by the defects of the system in terms of representation of rights and interests in the process of legislation and policymaking. To this end, the second review draft of the law has made some positive efforts in this respect. For example, Article 9 provides, the country encourages and supports citizens and social organizations to participate in the development of the cause of healthcare and health as well as the health industry by establishing medical and health organizations according to the law and providing donations and funding so as to meet diversified health needs. As another example, Article 98 also encourages the public to participate in the supervision of medical and health work. These provisions explicitly express the promotion of citizens’ participation in developing the health cause for the purpose of realizing the well-intended “co-building and sharing” vision of legislation.

III. Principle of Respecting and Protecting Citizens’ Right to Health

Article 4 of the second review draft of the Healthcare and Health Promotion Law stipulates that citizens enjoy the right to health, and the country and society respect and protect the right to health of citizens. This point can be summarized as the legislative principle of respecting and protecting citizens’ right to health. Enshrining “right to health” in law is an important milestone for securing the state’s responsibility for guarantee citizens’ right to health. Modern countries play an increasingly important role in reducing health risks and meeting the citizens’ personal healthcare needs. For China, due to the profound impact of the SARS crisis in 2003, the social and public nature of the medical and health services has received unprecedented attention. The “overall health concept” featured with “health for all”, “all for health” and “lifelong health” optimizes the traditional individual-centered health concept and helps to correct the value deviation in legislation.

First, the right to health in the constitutional sense focuses on maintaining the health of all the members of society rather than the health of some individuals, or the right to health of a certain underprivileged group. In a certain sense, legislation must emphasizethe protection of the general, common and fundamental interests of all the citizens. This is undoubtedly the essence of the legislation on health.16 Second, the right to health is about all-around health in its connotations, including but limited to physical or psychologicalhealth status, or the health status with regard to social adaptation. The contents of the citizen’s right to health are by no means limited to the citizens’ right to physical health and medical relief. Finally, the country’s health guarantee responsibilities are not limited to those after a person falls ill. Instead, it starts with pregnancy, maternal and infant care, and ends with the death of citizens, throughout the whole process of life. The “Overall Health View” requires the government to do its utmost to provide the necessary materials, information and other resources to ensure the health of citizens, not limited to first aid in emergencies or the diagnosis and treatment of diseases. The broadness of subjects, the inclusiveness of the rights and the extension of the safeguard cycle all require the health legislation process to be guided by the “Overall Health View” to actively and effectively respond to and meet the legislation needs so as to promote the maximizing of the rights and interests of all the people. However, the normative legal expression with regard to the right to health in China’s Constitution has not yet been made an explicit, operational and actionable right. It is urgent to “localize” the right to health referred to in the international human rights laws. There are two different ways to deal with it in the practice of international legislation, namely, constitutionalization and legalization. However, the countries that provide relatively adequate healthcare obligations for citizens do not stipulate the right to health directly in their Constitutions, and constitutionalization is not superior to the direct legalization of the right to health.

This paper argues that the provisions on the rights and obligations with regard to citizens’ health in the second review draft not only effectively set the country’s obligations to guarantee its citizens’ right to health, but also have the special function of explicitly expressing the right to health as a basic right. Safeguarding citizens’ right to health and developing the cause of healthcare have always been one of the keynotes of China’s Constitution.The “basic national policies” concerning the medical and health system in the constitutional text constitute an effective constraint on the country’s public power, which means that the country has the obligation to continuously promote the achievement of these constitutional goals through legislation, jurisdiction, administration and other means. The guarantee of the right to health is not only the basis for the interpretation of the constitutional order, but also an important guide for the institutional development of the health system the construction of the legal dogmatics of the health sector. On one hand, the right to health is a basic right with subjectivity, which is the foundation for individuals to claim for a country’s action or inaction; on the other hand, the right to health is an objective existence of value, which requires the country to fulfill its obligations with its best effort by establishing the guarantee of various organizational and procedural systems, promoting the realization of the right to health, and maximizing the effectiveness of the basic right.17 The establishment of a normative structure of the “right to health — state obligation” in accordance with the law does not mean the exclusion of the participation of citizens and other social subjects in terms of protecting the right to health. Today, many countries in the world have clear provisions on the health protection obligations of non-state subjects in their Constitutions and laws. The International Covenant on Economic, Social and Cultural Rights also makes clear declarations on the obligations of non-state subjects. The practice of all the countries undoubtedly shows that non-state subjects’ independent participation or joint substantive participation with the country in the healthcare cause have become an important trend in developing the “co-building and sharing” health cause by the country and society. An important legislative guarantee for China’s medical reform in 2009 is to clearly define the rights and obligations of the government, the society and citizens in accordance with the law. In order to clearly define the rights and obligations of different subjects in terms of health protection and promotion in legislation, not only the country’s obligations need to be specified, but also sufficient institutional room needs to be reserved for non-state subjects.

Citizens have the right to health in accordance with the law, and the state and the society have an unshirkable legal obligation to respect, protect and realize the right to health of citizens. This legal norm fundamentally establishes the basic framework with regard to the state’s obligation on the right to health as a social right.18 The text of the second review draft refines the legislation principles contained in Article 4.

First, the state’s obligation to respect. This is embodied in the provisions of Article 41 of the second review draft of the law — when citizens receive medical and health services, they shall have the right to informed consent on matters related to their diseases, diagnosis and treatment plans, medical risks, medical expenses, etc pursuant to the law. Article 42 stipulates — citizens shall be respected when receiving medical and health services; medical and health institutions and health workers shall share the care for the patients and treat them equally and respect and protect the patients’ dignity and privacy; no organization or individual shall discriminate against any patient with any special disease such as an infectious disease or mental disorder.

Second, the state’s obligation to protect. This includes the obligation to prevent the citizens’ right to health from being violated by any third party or any natural disaster via the use of legislation and other measures. The second review draft focuses on defining the connotations of the country’s obligation to protect its citizens’ right to healthcare from the perspective of civil rights. First, it stipulates the protection of the citizens’ health privacy and the protection of the security of personal information; unless otherwise provided in any statute or with personal consent, the personal health information shall not be acquired, used or disclosed. Second, it also stipulates that citizens shall have the right to voluntary consent and informed consent in the field of experimental medical research.

Third, the state’s obligation to realize. This requires the state to actively provide health-related facilities, goods, services and so on. This must be realized step by step through a series of specific norms of the system. The second review draft stipulates that a health promotion system shall be in place and the the country’s health promotion responsibilities in the areas of disease surveillance, health education, smoking control and so forth shall be clarified. In addition to the public health system, it also includes tiered diagnosis and treatment, hospital management, drug supply and comprehensive supervision, etc.

IV. Principle of Equitable Access to Basic Medical and Health Services

Article 5 of the second review draft of the law stipulates that the citizens shall have the right to obtain the basic medical and health services from the country and the society pursuant to law; the country shall establish a basic medical and health system, establish and improve a basic medical and health service system, provide citizens with basic medical and health services in line with its economic and social development in an equitable manner, and protect and secure citizens’ right to access basic medical and health services. This point can be summarized as the legislation principle of equitable access to basic medical and health services. As an important way to guarantee the provision of basic medical services, Article 5(3) of the second review draft stipulates that the country shall deepen the reform of the medical and health system, focus on providing more specific institutional supports, such as improving tiered diagnosis and treatment, modern hospital management, universal basic medical insurance, drug supply security, comprehensive supervision and management. These systems reflect the route of evolution of China’s future Healthcare and Health Promotion Law.

The provision of the basic medical and health services must be based on the precondition of the basic medical and health system, the medical and health service system and the equalized supply of basic medical services on the basis of health equity. Public welfare of medical and health services and health equity are consistent. They boil down to the emphasis on the health status of underprivileged people and the realization of the maximization of the interests of those who benefit the least.19 This inherently requires the universal affordability and accessibility of the basic medical services. First of all, the urban and rural residents shall not be excluded from the enjoyment of basic medical and health services because of the financial difficulties of their families. Second, urban and rural residents shall be basically able to find relevant services available nearby.20 These basic healthcare services shall be the services that the basic medical security system can guarantee. The basic medical and health service is a concept of “expense”, which needs the government’s ability of payment and the equity of initial distribution as its standards of judgement. According to the assessment of the World Health Organization, China’s health financing and distribution equity was the fourth worst among the 194 members of the World Health Organizationin the early 21st century.21The commercialization tendency of the “private behavior as public identity” of public hospitals has also been widely criticized.22 The “commodification” of medical and health services in Western countries is caused by the continuous expansion of the marketization and privatization mechanism of the medical and health system during the prevalence of neoliberalism. Two contradictory trends — commodification and de-commodification — have been running through the transformation of China’s medical and health system. The process of commodification began in the practice of “autonomous hospital management” in public hospitals in the 1980s. The medical and health cause shifted from public welfare to a “mixture of welfare and commercialization”. Under the circumstances of budget reduction, multiple subjects and liberalization, financial performance has become a core indicator for evaluating hospital operations. The “oligopolistic” status of public hospitals in the medical market has led to some prominent problems, such as the weakening of public welfare in basic medical services, the ambiguity of the legal status of public hospitals and the legality of their property transactions.23 The patriarchal tradition of medical science and the weakening of laws and regulations in the sector have further exacerbated the “misconduct of behavior” of public hospitals and their interests-driven practices such as covering hospital expenses with drug revenues, fundamentally weakening the public welfare of the medical and health cause.

Practice has shown that the commodification of medical services is the root cause that hinders the return on public welfare and the equalization of medical and health services. The degree of “de-commodification” directly determines the equity in the basic health protection of the people. China’s “de-commodification” process and the shift of policies concerning the public welfare of public hospitals began with a point in the report of the 17th National Congress of the Communist Party of China — “adhering to the public welfare nature of the public medical and health system”. In 2009, the medical reform policy highlighted the public welfare nature of the basic medical and health services, and “providing the basic medical and health systemto all the people as a public good” was established as the basic principle of the medical reform, fully embodying the public welfare value in the basic medical and health system.

The second review draft of the Healthcare and Health Promotion Law fully embodies the “de-commodification” efforts, focusing on the establishment of rules and regulations from the aspects such as the constraints on the behaviors of the basic medical and health service providers and the sharing of their financial burdens due to the costs of their services. For example, Articles 68 and 69 have the following provisions

— “The basic public health services shall be provided free of charge by the country to all its citizens. The costs of the basic medical services are mainly shared by the basic medical insurance funds and the individuals themselves”. Article 22 has the following prohibitive provisions: “The government-run medical and health institutions shall not cooperate with other organizations to set up any medical and health institution without the status of an independent legal entity, or cooperate with any social capital to incorporate any for-profit medical and health organization.” It can be seen that the law has clearly defined the legal boundaries of the government and the public hospitals regarding their behaviors of incorporation and investment. China’s policy supply for deepening the medical system reform in recent years has also played a good leading and supporting role for the above. In 2016, Opinions on Integrating Basic Medical Insurance Systems for Urban and Rural Residents issued by the government proposed to gradually integrate the basic medical insurance system for urban residents and the new rural cooperative medical insurance system24 through the establishment of a unified basic medical insurance system for urban and rural residents, and to gradually unify the scope of coverage and the standards of payment so as to achieve unified insurance coverage for the urban and rural residents and eliminate the “identity discrimination” at the level of medical security. In 2017, the plan to cancel the cost-plus drug pricing policy began to be implemented in all the public hospitals, bidding farewell to the practice of “covering hospital expenses with drug revenues”. At the same time, tiered diagnosis and treatment, modern hospital management, universal basic medical insurance, drug supply security, and comprehensive supervision and management listed in Article 5 of the second review draft were also actively promoted as the key tasks of the reform of the national health system.

“De-commodification” does not negate the role of the market mechanism. Instead, it opposes “simplified” decision-making on citizens’ right to health based solely on the laws of the market economy. Human beings’ distribution of scarce resources is often tragic. The root of it is “without the support of a dominant rational distribution concept based on hierarchy or equity, a society’s dream of distribution will be destroyed.”25 The country’s obligation to protect the citizens’ health may not be immediately realized in the results. Therefore, it is not appropriate to have a one-sided understanding of the country’s guarantee responsibility. The huge financial burdens arising from the construction of European welfare states and the inefficiency after the universal welfare show that the health protection responsibility needs to be matched with the financial strength of a country. In the normative sense, the basic medical and health services are the welfare-based medical and health services stipulated by the law, every member of society has the right to enjoy, and it is guaranteed by the government and society.26 In order to avoid the double trap of equity and efficiency, the current medical reform policy emphasizes “focusing on the role of the market mechanism”, deepening the supply-side structural reform in the social sector and promoting the diversification of medical services. Although the public hospitals are the main providers of the basic medical services, they are by no means the only implementers of public welfare. Article 9 of the second review draft clearly stipulates that the country encourages and supports citizens, legal entities and other organizations to participate in the medical and health cause, develop the health industry, and meet the diversified, differentiated and individualized health needs by setting up medical and health organizations, making donations and subsidies pursuant to the law. This reflects the concept of designing a “co-building and sharing” system for all the people to enjoy social welfare. Correspondingly, Article 24 reaffirms that “the country encourages social forces to organize non-profit medical and health institutions according to the law”; Article 70 provides that medical charities are a useful supplement to the medical security system; and Article 9 includes the provisions on the tax incentives for the donations made by non-profit organizations. In recent years, the initiation of the policies concerning encouraging social capital to invest in the medical cause issued by the central and the local governments and the implementation of medical and pension infrastructure projects — public-private partnerships (PPPs) — reflect the positive marketization of medical facilities construction.27All of the above have irrefutablyexplained that stimulating the supply of medical and health resources by social forces is an important way to make up for the insufficient supply of government’s financial resources.

V. Principle of Government Responsibility for the Purpose of People’s Health

Article 6 of the second review draft of the law stipulates that the country adheres to the implementation of the people’s health-centered “ Healthy China Strategy”. The governments at all levels shall put the people’s health in a strategic position for prioritized development, integrate health concepts into various policy-making processes, organize and implement health-promoting plans and actions, establish a health impact assessment system, and incorporate the improvement of main health indicators of citizens into the government’s objective responsibility assessment; and the whole society shall care for and support the development of the medical and health cause. Therefore, we summarize the legislation principle embodied here as the principle of government responsibility for the purpose of the people’s health.

Health is an important value. Social security can provide the necessary health support and protection to a certain extent.28 However, it’s legislation which carries the important mission in a risk society — to shape the security order and build a “barrier” to the right to social security.29 In the context of a risk society, aging, disease, accident and unemployment are the most important risks that endanger human survival. The compositeness of a citizen’s right to health, the complexity of health risk factors, and the extensiveness of the health cycle are inevitable in nature, require the strengthening of the government responsibility mechanism, not only clarifying the specific responsibilities of governments at all levels for the protection of the citizens’ health, but also establishing a sound responsibility assessment system and mechanism to ensure the establishment of the government’s statutory duties and responsibilities and the implementation of the government’s responsibilities with regard to the citizens’ health protection. The specific connotations of this principle can be interpreted as follows:

First, to establish a health-first philosophy of government governance. The priority value is “ people’s health”, which ensures that the right to health of citizens has priority in the value sequence of all the government’s tasks. Therefore, we must regard health as the inevitable requirement for promoting the all-round development of human beings and the basic condition for economic and social development, and give it in a prominent position of the government goals so as to resolve the contradiction between the people’s growing health needs and the imbalanced and inadequate health supply. Only in this way, can we encourage the governments at all levels to make their great efforts to form a thriving basic medical and health service sector.

Second, to establish a policymaking mechanism that incorporates health into all policies. The Healthy China plan requires governments at all levels to prioritize health in development, integrate the concept of promoting health into the process of public policymaking, accelerate the formation of healthy lifestyles as well as health-oriented modes of ecological, economic and social development, and realize a virtuous cycle of coordinated development. This requires governments at all levels to actively integrate the concept of people’s health into the design, process, implementation and evaluation of policies, and regard people’s health as the starting point and destination of all policies as well as one of the important indicators of policy performance evaluation. We need to regard health as a core value and an evaluation criterion, and embed it in the whole process of the formulation, implementation and evaluation of public policies of governments at all levels, which will help to realize its functions driven by policy and the law for the protection of citizens’ health.

Third, to implement health plans and establish an impact assessment system. The WHO Constitution (1946) proposed the three-in-one concept of health, including physical, mental and social well-being. The Healthy China plan is based on the all-round, full-cycle and all-dimensional guarantee of the citizens’ right to health, and is substantially superior to the traditional concept of health which centers on the diagnosis and treatment of “diseases”, shifting its focus from “visible diseases” to “invisible pathogenic factors”. It has prompted the medical paradigm to shift from focusing on disease diagnosis and treatment to a “health-based” prevention model. Legislation should take the implementation of health plans and the establishment of a health impact assessment system as the focuses of the governments at all levels to implement their health promotion functions and create the corresponding institutional norms. Article 77 of the second review draft stipulates that the country carries out surveys on residents’ health status to collect relevant statistics, conduct physical fitness monitoring, evaluate health performance, formulate and improve health-related laws, policies and plans based on the assessment results. Article 78 stipulates that the country establish a system to monitor and investigate diseases and health risks and assess risk factors, and requires the governments at or above the county level and their relevant departments to organize studies on health risk factors and formulate comprehensive prevention and control measures for major health problems. In addition, it also provides that the country shall strengthen the prevention and governance of environmental issues affecting people’s health, organize research on the impact of the environmental quality on health, and take measures to prevent and control diseases related to environmental problems.

Fourth, to improve the government’s objective assessment mechanism. The improvement of the people’s rights and interests with regard to health is an important criterion for measuring the government’s fulfillment of its healthcare responsibilities. The fulfillment of government responsibilities is ultimately reflected in the improvement of the main indicators regarding citizens’ health.30 One of the highlights of the second review draft is the incorporation of the improvement of the main indicators regarding citizens’ health into the government’s objective responsibility assessment, linking the government performance appraisal mechanism with the health promotion mechanism, which will effectively stimulate the enthusiasm of governments at all levels and their relevant departments to fulfill the responsibilities, and provide a reference standard for the public to participate in monitoring and evaluating the government’s ability in health governance. Correspondingly, Article 88 of the second review draft also stipulates the accountability interview mechanism — if any relevant department of the people’s government at or above the county level fails to perform the duties related to basic medical and health promotion, the people’s government at that level shall require the principal responsible person to have a accountability interview. On the other hand, if the local people’s government fails to perform the duties related to the work of medical and health promotion, the people’s government at a higher level shall require an accountability interview of its principal responsible person; the department and local people’s government that has been interviewed shall take immediate measures to carry out rectification; the accountability interview and the rectification shall be incorporated in the work review and the performance assessment of the local government.

Fifth, to improve the multi-participation mechanism under the leadership of the government. The fulfillment of the government’s healthcare responsibilities are inseparable from the coordination and the cooperation of various government departments. The second review draft clearly states that “the whole of society shall jointly care for and support the development of the medical and health cause”, and build and improve the comprehensive governance pattern of “government leadership, departmental cooperation, common participation of the whole society”, which is an indispensable foundation for the national health governance system and the only way to improve the state’s health governance.

The cooperative governance by various government departments under the leadership of the government is an important experience in global health governance. The Health and Medical Service Act of Sweden, for instance, stipulates that county councils may cooperate with the local government, social insurance offices and labor councils by signing agreements to achieve the effective use of resources.31 In 2002, the United Kingdom established the Council for the Regulation of Healthcare Professionals in the form of special legislation, reporting directly to Parliament, in order to promote cooperation between the National Care Standards Commission, the Commission for Healthcare Audit and Inspection and other health regulatory agencies. The duties and responsibilities of all the health regulatory bodies are stipulated by the legislative and regulatory documents of Parliament, this fundamentally realizes the legalization of departmental responsibilities. China’s medical and health sector features “department leadership” and “excessive delegation of power”.32 Some important laws have made the health regulators and their related departments the main parties responsible for promoting the cause of healthcare and the supervision of the industry.33 Prior to the reform of China’s central administrative bodies, the National Development and Reform Commission, the Ministry of Finance, the Ministry of Human Resources and Social Security, the State Administration for Industry and Commerce and the State TaxationAdministration assumed responsibilities related to medical and health regulation to varying degrees, the National Administration of Traditional Chinese Medicine and the China Food and Drug Administration also undertake relevant responsibilities with regard to healthcare and health. However, there is no effective coordination between these departments. Before 2009, there was almost no clear delineation of departmental responsibilities in the “active support and cooperation” and other initiatives frequently proposed in the medical reform policies.34 Prior to the establishment of the National Health and Family Planning Commission in 2013, the Ministry of Health undertook the following responsibilities: ratifying the market entry of medical service providers, regulating non-profit and for-profit medical institutions, and supervising the quality of medical and health services. However, in response to some major public health risk incidents, it has failed to play an effective role of coordination. After 2013,the Men-tal Health Law, Food Safety Law, Traditional Chinese Medicine Law and other laws gradually “materialized” departmental cooperation.35 In recent years, health policies have highlighted the various government agencies’ responsibilities.36 But despite these provisions, the cooperation between departments and between various social subjects is still insufficient. For example, in the fields of mental health, the collaborative relationship between various government departments, such as diagnosis and treatment of mental illness, medical security and disability relief, is still not obvious,which limits the natural development of the community mental health service model and directly reduces the rights and interests regarding the rehabilitation of patients with mental health problems. 37 The active participation of citizens and social organizations in health services is highly compatible with the inherent requirement of the contemporary cooperative governance, shifting from authoritative cooperation to democratic cooperation.38 Article 45 of the second review draft stipulates that the people’s governments at all levels shall take measures to encourage medical and health institutions to establish cooperative mechanism with nursing homes, orphanages and community organizations to provide safe and convenient medical, health and care services for the elderly, the disabled and the orphan. This provision has significant positive implications for mobilizing social forces to participate in the health cause.

(Translated by ZHANG Jie)


* ZHANG Boyuan ( 张博源 ), Associate Professor at the Department of Health Law, Capital Medical University, and Jurum Doctor. This paper is a preliminary result of the project “Research on Mental Health Legislation in Beijing from Perspective of Public Governance” (Project No. 15FXB029) sponsored by Beijing Social Science Fund.

1. American scholars Eleanor and Brain identified five types of provisions with regard to the right to health in the constitutions of countries, among them, a statement of aspiration, stating a goal in relation to the health of its citizens, a statement of entitlement, stating a right to health or health care or public health services, etc. See Eleanor D. Kinney and Brian Alexander Clark, “Provisions for Health and Health Care in the Constitutions of the Countries of the World”, Cornell International Law Journal 2 (2004): 285-355.

2. Du Chengming and Xie Minxian, “On Constitutional Attributes of Right to Health and Its Realization”, Hebei Law Science 1 (2007): 65.

3. Zou Yanhui, “Clarification of Nature of Right to Health”, Journal of University of Jinan (Social Science) 1 (2015); Huang Qinghua, “Re-cognition of Right to Health: On Civil, Social and Political Attributes of Right to Health”, Tribune of Social Sciences 1 (2016).

4. Different laws use different wording for the right to health, for example, both Food Safety Law and Drug Administration Law use the term “physical health”. Traditional Chinese Medicine Law promulgated in 2016 ad-opted the phrase “protecting the people's health”. See the provisions of Article 1 of these three laws for details.

5. Lin Zhiqiang, Research on Right to Health (Beijing: China Legal Publishing House, 2010), 34 and 56.

6. Wang Xinsheng, “A Brief Discussion on State Obligations of Social Rights and Their Trend of Development”, Law Review 6 (2012).

7. Gao Qinwei, “On Right to Healthcare as a Social Right”, Jianghan Forum 8 (2015): 125.

8. Wang Xigen and Song Daping, “Legislation Concept of Basic Law of Healthcare and Health Based on Distributive Justice”, Journal of Xinjiang Normal University(Philosophy and Social Sciences) 3 (2017).

9. Neil MacCormick, Legal Reasoning and Legal Theory, trans. Jiang Feng (Beijing: Law Press ? China, 2005), 179 and 256.

10. Wu Jinglian, “ Research on Public Welfare Issues in Public Hospitals”, Comparative Economic and Social Systems 4 (2012).

11. European Social Charter, accessed December 23, 2018, http: //www. hrcr.org/docs/Social_Charter/soccharter5. html.

12. Recommendation No.R(2000), accessed December 22, 2018, https: //search.coe.int/cm/Pages/result_details, aspx?ObjectID=09000016804bbc51 #globalcontainer/.

13. As to a series of views of Mr. Zhou Qiren on the medical reform, see Zhou Qiren, Who Is Responsible for Ensuring Treatment of Diseases (Beijing: Peking University Press, 2000).
 
14. Philip Selznick, The Communitarian Persuasion, trans. Ma Hong and Li Qingwei (Shanghai: Shanghai People's Publishing House, 2009), 6.

15. A. Giddens, Europe in the Global Age (Cambridge: Cambridge Policy Press, 2006), 100.
 
16. Dong Wenyong, “On Positioning of Basic Health Legislation - Value, System and Principle”, Hebei Law Science 2 (2015).
 
17. Zhang Xiang, “Systematic Thinking of Basic Rights”, Tsinghua University Law Journal 4 (2002).

18. Wang Xinsheng, “A Brief Discussion on State Obligations of Social Rights and Their Trend of Development”.
 
19. That is — “all the primary goods: rights, liberties, and opportunities; income and wealth; and the social bases of self-respect - shall be fairly distributed, unless the unfair distribution of some or all primary goods in the society is to the benefit of the least advantaged members of society” advocated by John Rawls. See John Rawls, A Theory of Justice, trans. He Huaihong and others (Beijing: China Social Science Press, 1988), 292.

20. Gu Xin, “How to Realize Public Welfare of Medicare: Five Specific Objectives and Five Major Policy Combinations”, Chinese Health Resources 5 (2011).

21. World Health Organization, The World Health Report 2000 - Health Systems: Improving Performance (Beijing: People’s Medical Publishing House, 2000), 56.

22. Vivian Lin et al., Health Policy in and for China (Beijing: Peking University Medical Press, 2010), 222.

23. Zhou Qiren, Who Is Responsible for Ensuring Treatment of Diseases, 5-9 and 125-136.
 
24. The State Council of China, Opinions on Integrating Basic Medical Insurance Systems for Urban and Rural Residents) (Guo Fa [2016] No. 3).
 
25. Guido Calabresi and Philip Bobbitt, Tragic Choices — The conflicts society confronts in the allocation of tragically scare resources, trans. Xu Pinfei, Zhang Yuhua and Xiao Yi'er (Beijing: Peking University Press, 2005), 4.

26. Wang Jianrong, Let Everybody Enjoy Basic Medical Services: A Study of Legislation of Basic Medical Health

in China (Beijing: Law Press, 2014), 39.

27. In 2017, the General Office of the State Council of China issued Opinions on Further Stimulating Vitality of Investments in Social Sector (Guo Ban Fa [2017] No. 21), requiring the strengthening of institutional supply for attracting social capital to invest in the medical and health sector in the aspects of financing, market entry and supervision.
 
28. Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, trans. Deng Zhenglai (Beijing: China University of Political Science and Law Press, 2004), 317-321.

29. Yu Zhaobo, “Transformation of Legislative Decision-Making Concepts from Perspective of Risk Society”, Local Legislation Research 1 (2017): 85-86.
 
30. The key indicators regarding citizens’ health mainly include life expectancy, maternal mortality, infant mortality, and under-five mortality. See Article 109 of the second review draft of the Healthcare and Health Promotion Law.
 
31. The Health and Medical Service Act (1982: 763), http://www.ilo.org/dyn/travail/docs/1643/health%20a%20 nd%20medical%20insurance%20act.pdf, accessd December 24, 2018.

32. Li Honglei, “Healthcare Services and Its Regulations in UK”, in the Regulatory Research: Government Regulations on Food and Drug Safety, ed. Song Hualin and Fu Weigang (Shanghai: Shanghai People’s Publishing House, 2009), 122-123.

33. For details, please refer to Article 6 of Law on Prevention and Control of Infectious Diseases and Article 4 of Maternal and Infant Healthcare Law.
 
34. Only Guiding Opinions on Development of Urban Community Health Services (Guo Fa [2006] No. 10) issued by the State Council of China in 2006 clarified the duties and responsibilities of the National Development and Reform Commission, and the regulators of health, food and drug supervision, traditional Chinese medicine, civil affairs, social security, education and other departments in jointly promoting the development of health services in the cities with districts.

35. Articles 14, 27, 103 of Food Safety Law; Article 6 of Mental Health Law.

36. For example, Guiding Opinions of General Office of State Council on Promoting Construction and Development of Medical Consortium (Guo Ban Fa [2017] No. 32) has clear provisions on the responsibilities of and the specific policy requirements for the NDRC and the departments of medical insurance, finance, human resources and social security.

37. See Yang Zeng and Chen Tingting, “Research on Community Organizations of Mental Health Rehabilitation in Context of Multiple Institutions: Possible Paths of Building Local Public Welfare for Mental Health”, Social Science Front 3 (2017): 209.

38. Tang Wenyu, “Cooperative Governance: Authoritative Cooperation and Democratic Cooperation”, Journal of Wuhan University (Philosophy & Social Sciences) 6 (2011).
 

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