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Africa: Accountability for User Fee Damage?
AfricaFocus Bulletin
March 31, 2014 (140331)
(Reposted from sources cited below)
Editor's Note
"In contrast to the untested economic theories of the World Bank's
health economists in the 1980s, it turns out the critics had been
correct all along: user fees do not raise substantial revenue for
the health sector, nor do they make public health interventions
more effective." Rather, argues Richard Rowden in a 2013 paper,
user fees "turned out to be inequitable and sharply limited access
to health care for the poor." Those who imposed these policies, he
suggests, should be held accountable.
This AfricaFocus Bulletin contains excerpts from Rowden's article,
entitled "The ghosts of user fees past: Exploring accountability
for victims of a 30-year economic policy mistake." The full article
is available in the journal Health and Human Rights at
http://www.hhrjournal.org/archives/
Rowden recognizes that his proposal faces formidable obstacles to
implementation, but he stresses "an unmistakable shift in
international consensus away from health sector privatization and
user fees toward public provision of universal health coverage
(UHC) with tax-based financing." Tentative evidence of such a shift
came in December 2013 with a new Lancet Commission report on
Global Health 2035 (http://globalhealth2035.org/). That report,
authored by two of the principal advocates of the World Bank's
earlier approach, including former World Bank economist Lawrence Summers,
abandons support for user fees.
However, the report resolutely avoids any mention of the right to
health or the broader socioeconomic context of health care. A
critique of the report by 42 public health professionals appeared
in The Lancet of 31 March 2014 (see http://tinyurl.com/kawlzl2).
They argue that the Commission's recommendations "are based on the
principle of return on investment, not on health equity, while
creating a double standard: one for the rich and another for the
rest of us. ... The Lancet Commission's recommendations do not
represent the global health community and are fundamentally flawed
by neglecting the principle of the right to health."
For previous AfricaFocus Bulletins on health issues, visit
http://www.africafocus.org/healthexp4.php
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The ghosts of user fees past: Exploring accountability for victims
of a 30-year economic policy mistake
Rick Rowden
Health and Human Rights, Volume 15, No. 1, June 2013
Rick Rowden is a doctoral candidate in Economic Studies and
Planning at Jawaharlal Nehru University (JNU) in New Delhi, India.
Please address correspondence to the author at
rick.rowden@gmail.com. ]
[Excerpts. To download full text, including footnotes, visit
http://www.hhrjournal.org/archives/]
Today, there is an unmistakable shift in international consensus
away from health sector privatization and user fees toward public
provision of universal health coverage (UHC) with tax-based
financing. As part of broader efforts to privatize health financing
in recent decades, the issue of user fees, in which fees are
charged to users of health services at the time of delivery, proved
especially controversial. The newly emerging consensus against
privatization generally, and against charging user fees in
particular, was recently articulated in a September 2012 special
issue of The Lancet on universal health coverage. The shift was
also underscored in the December 2012 adoption of a United Nations
General Assembly resolution on affordable universal health care,
which urged member states to develop health systems that avoid
significant direct payments at the point of delivery. In practice,
this shift has been exemplified in recent years, as countries such
as China, India, Brazil Mexico, Sri Lanka and others have rejected
the privatization approach in favor of moving toward UHC.
This new support for UHC comes nearly 30 years after roughly the
same conclusions had been reached at the 1978 World Health
Organization (WHO) conference in Alma-Ata, Kazakhstan, at which UN
agencies and health representatives of 134 countries and 64
organizations formally recognized access to health care as a human
right. The revolutionary significance of this acknowledgement
implied tremendous new obligations on all governments to therefore
adopt policies that would make a basic package of publically
financed primary health care (PHC) universally accessible,
affordable, and more socially responsible. The Alma-Ata consensus
reflected the then-almost universal acknowledgement of the
importance of scaled-up investment in public health systems
generally.
But the Alma-Ata consensus was reaching its apex of political
support just months before the world was dramatically changed by
the ascendance of neoliberal economic policies, as represented by
the election of Prime Minister Margaret Thatcher in the UK in 1979
and President Ronald Reagan in the US in 1980. ... The Reagan and
Thatcher governments led others in dramatically reforming the
thrust of economic policy at the World Bank and other bilateral aid
agencies, including on health policy.
Ironically, in the late 1970s, the World Bank had been influenced
by the prevailing perspectives of the Alma-Ata Declaration, and its
annual World Development Report (WDR) 1980 expressed the idea of
health care as a universal human right and showed a strong
commitment to primary health care. And like other major
international institutions at the time, the World Bank actually
warned in the WDR 1980 against introducing user fees for health,
education, and water: "The use of prices and markets to allocate
health care is generally not desirable."
But just as the ambitious nature of the Alma-Ata vision of
universal access for primary health care was becoming recognized,
the US and UK brought in many new free market economists to the
World Bank, which began to adopt the new conservative counternarrative
that was emerging in the 1980s. According to this
narrative, public sector efficiency could be improved by
privatizing the health sector and by introducing user fees, which
in theory would raise the additional revenue necessary to make the
health sector financially viable. Critics' warnings that poor
people would be unable to afford these fees went unheeded.
... this article focuses on the World Bank, not only because it was
a leader at the forefront of promoting user fees and significantly
influenced other international agencies that followed its lead, but
also because of its particularly coercive approach to making
implementation of user fees a binding condition on its loans to
many poor and aid-dependent borrowing countries.
Thirty years of user fees at the World Bank: From critic to
advocate to critic again
The origins of this logic in favor of user fees first appeared
within the World Bank in the 1981 report, "Accelerated Development
in Sub-Saharan Africa." Also known as the Berg Report after its
author, the paper is considered an important turning point in World
Bank thinking in the 1980s, as the organization moved away from the
Keynesian economics which had dominated from the 1940s to the 1970s
and towards the market-oriented approaches of neoliberalism.
Instead of finding ways to try to finance PHC, the report called
for private insurance schemes, charging user fees at public health
clinics, reorganizations and layoffs of staff in public health
systems, streamlining administrative procedures, liberalizing the
pharmaceutical trade, and "contracting out" to private firms.
... Instead of the Alma-Ata view of health care as a human right -
in which government policy is obligated to fulfill - the paper's
logic depoliticized and negated the state's obligation to this
commitment. Rather than exploring ways the state could fulfill this
obligation, [World Bank economist] de Ferranti inverted the
perspective to instead ask only how much health care could be
afforded "subject to the resource constraint." As this new logic
took hold throughout the World Bank and other aid donors, the
earlier high-profile commitments to the Alma-Ata principles of
access to health as a human right, which included support of the
public health provision of PHC, were abandoned rapidly.
The idea that individual "health consumers," who rationally base
every purchasing decision on how best to optimize their cost
efficiency, ought to "purchase" health services only when they have
begun to show symptoms - and not before - was more than just a
convenient cost-cutting measure. It was arguably the kind of lethal
reasoning that contributed to weakening the initial public health
response to the HIV/ AIDS crisis, possibly making the epidemic far
worse than it otherwise would have been. ...
The 1985 paper also made a strong push for general privatization of
health care, claiming that the role of the private sector is "a key
one." While admitting that the evidence on private provision was so
far inconclusive at the time, he [de Ferranti] still proposed a
plan to foster the development of private institutions, in which
the basic idea is to limit the growth of the public sector until
the private sector can take over. Privatization, along with
defunding the public health system, is justified because if one can
charge full-cost marginal pricing for patient care, then "for
patient related services … the arguments in favor of a strong
public role in the provision of health care are, on close
inspection, not very compelling."
...
By 1987, these papers proved influential in establishing new World
Bank health sector reform policies, helping to completely invert
the Bank's earlier position - as stated in its 1975 Health Sector
Policy and 1980 WDR reports - as the use of prices and markets to
allocate health went from undesirable to highly desirable. By the
mid-1980s, all of the intellectual pieces needed to justify the
allocation of health care via the market with World Bank policy
advice and loan conditions were in place; these became a key part
of structural adjustment programs, particularly throughout the
1990s. By 1993, the Bank published its first health-focused WDR,
"Investing in health." which laid out the neoliberal agenda of user
fees, privatization, and decentralization of government services.
... With structural adjustment programs, the World Bank and IMF
offered new loans to heavily indebted developing countries,
conditional on compliance with a set of economic policy reforms.
... These changes greatly transformed the health sectors of dozens
of developing countries as deep budget cuts, staff layoffs, and
user fees were applied throughout the 1980s and 1990s; this had
tragic consequences for millions of people who were too poor to
afford the user fees.
[Eventually] under mounting pressure from civil society critics,
the US Congress approved legislation in 2000 that prevented the US
Treasury from approving any further World Bank loans with user fees
included as binding conditions. This compelled the World Bank to
issue a revised user fees policy in 2001, in which it acknowledged
that the fees have prevented poor people from accessing health
clinics (and primary education), and stating it now "opposes user
fees for primary education and basic health services for poor
people." However, it included a caveat that said it would still
support user fees in some circumstances. ... despite the revision
of user fees policies across UN institutions, the Bank still
promotes them in some cases, and user fees remain common in many
developing countries.
Wrong economic policies prove deadly
...
The 2008 World Health Report summed up the overall experience with
user fees, documenting how many countries introduced them in the
1980s and 1990s in an effort to infuse new resources into
struggling services, often in a context of disengagement of the
state and dwindling public resources for health.
WHO noted in the report: "Most undertook these measures without
anticipating the extent of the damage they would do." In many
settings, "dramatic declines in service use ensued, particularly
among vulnerable groups, while the frequency of catastrophic
expenditure increased." The WHO report also noted, "Where some
countries have reconsidered their position and started phasing out
user fees, this has resulted in substantial increases in the use of
services, especially by the poor."
The 2010 World Health Report documented widespread "financial
catastrophe (for households) associated with direct payments for
health services" and states that "even when relatively low, any
kind of charge imposed directly on households may discourage using
health care services or push people close to poverty under the
poverty line." The 2010 WHO report found that when people have no
choice but to use services, they may incur high - sometimes
catastrophic - costs from which they never recover.
Taken together, WHO estimated that around 150 million people suffer
financial catastrophe annually, while 100 million are pushed below
the poverty line. WHO Director Margaret Chan has said that user
fees represent "by far the greatest obstacle to progress" toward
achieving universal coverage.
...
In contrast to the untested economic theories of the World Bank's
health economists in the 1980s, it turns out the critics had been
correct all along: user fees do not raise substantial revenue for
the health sector, nor do they make public health interventions
more effective. Rather, they turned out to be inequitable and
sharply limited access to health care for the poor. The surges in
demand whenever the fees are abolished suggests that the neoliberal
premises upon which user fees were based do not hold true.
... Coming full circle back to the earlier consensus arrived at in
Alma-Ata, today's emerging consensus supports removing user fees as
a way to increase health care utilization and improve health
outcomes for the poor.
The quest for accountability
When considering the full circle journey from the Alma-Ata
consensus in support of tax-financed, public PHC in 1978 to today's
reemerging support for tax-financed, public UHC, it is worth asking
how and why the international health community took this nearly
three decade detour and how such a misguided alternative policy
could have dominated during the intervening period. More
importantly, there are related questions of accountability and
liability, and determining who is responsible for the tragedy.
Trying to quantify the exact degree of criminally negligent
homicide resulting from such economic policies is difficult to
ascertain. For example, James et al. projects that 153,000 child
deaths could be avoided if user fees were abolished in 20 African
countries. However, Yates looked back in time and raised perhaps
even more important questions, estimating that 3 million child
deaths could have been averted had user fees not been charged.
It is important to ask if the surviving victims of the negligent
policies will get any recompense, or if there will be any
accountability for the purveyors of the policies, such as the World
Bank and/or its economists. While precise quantification of the
death and injury resulting from the implementation of user fees may
not be possible, the degree of pain and suffering as a consequence
of the policy is undeniable and considerable in magnitude; someone
holds responsibility for the unnecessary nature of these injuries.
In criminal law, criminal negligence is defined as an act that is
careless, inattentive, neglectful, willfully blind, or in the case
of gross negligence, what would have been reckless in any other
defendant. Arguably, the World Bank exhibited such negligence
because the implementation of user fees was like a grand
ideological experiment on millions of unwilling subjects, whereas a
proper approach to analyzing the effect of user fees would have
been to first observe the outcome in small controlled studies, with
subjects who have given their prior and informed consent. But this
was never done before the World Bank mandated user fees as binding
loan conditions across dozens of poor and aid-dependent countries
in a blanket manner.
Over time, legal advocates have expanded the frontiers of liability
for injustices, with many countries adopting far-reaching legal
codes for criminal malpractice lawsuits, particularly for legal and
medical malpractice cases. Increasingly, victims can seek redress
from negligent doctors and lawyers, who can be faced with serious
civil and criminal liabilities. Pharmaceutical companies, too, are
increasingly held liable and threatened with litigation in cases of
gross negligence when they have marketed medicines that turn out to
be unsafe.
It is noteworthy that while the legal and medical professions can
decertify and disbar doctors and lawyers for malpractice, the
economics profession has never established a process for sanctions
against economists who get it wrong.
...
Legal advocates have been pushing the frontiers of legal liability
in other arenas, however. Interesting steps forward have been
achieved with the establishment of the International Criminal Court
(ICC) to hold individuals accountable for human rights abuses and
crimes against humanity across international boundaries. The United
Nations Working Group on the issue of human rights and
transnational corporations and other business enterprises, and
civil society advocates, such as Earthrights International, have
been pursuing the boundaries of accountability for enabling local
populations to seek redress for environmental or other human rights
abuses committed by multinational companies in their overseas
operations. However, attempts to sue international organizations
such as the World Bank have proven difficult.
As a specialized agency of the United Nations, the World Bank has
signed a relationship agreement with the United Nations which
states that, while it should consult with and be respectful of the
United Nations, it is not bound to comply with any UN instructions,
with the exception of Article VII resolutions of the Security
Council.
It has been argued that the United Nations Declaration of Human
Rights (UNDHR), while not a binding treaty, is beginning to take on
the characteristics of "customary international law" to which the
World Bank is subject under the Vienna Convention. This suggests
that the UNDHR would impose on the World Bank an obligation to
respect, protect, and fulfill human rights. However, holding the
World Bank accountable under international law is difficult.
...
International lawyers have yet to fully explore or rigorously
analyze this "accountability gap"; the rights, responsibilities,
powers, and obligations of the Bank are not settled and need
greater elaboration.
The Tilburg Guiding Principles on World Bank, IMF and Human Rights,
drafted by experts at Tilburg University in 2001 and 2002,
attempted to link legal obligations in the field of human rights to
the organizations' obligations and discussed the possible redress
of adverse human rights impacts of their activities. The sixth
Tilburg Guiding Principle notes that despite the fact that their
relationship agreements with the UN allow the IMF and World Bank to
function as independent international organizations, these only
provide an organizational independence from the UN - not from
international law.
Although the World Bank eventually changed its policy on user fees,
it has not yet assumed any responsibility for reparations. One way
to resolve the "accountability gap" is to strengthen and clarify
the applicability of international law rules to the World Bank as a
subject of international law with an attempted lawsuit on behalf of
those harmed by Bank actions. Such a step would necessarily help
clarify the responsibilities of the World Bank and other IFIs under
international law.
Despite the independence from the UN provided for in its
relationship agreement, the Bank remains part of the UN system and
the degree of independence does not, as Tilburg Guiding Principles
note, discharge the Bank from its obligations under international
law as contained in the United Nations Charter. For example, as a
specialized agency, the World Bank is still obligated to further
the objectives of the UN Charter and not to take actions that
undermine those objectives. ...
The question of gross negligence arises because it is arguable that
the World Bank knew or should have known that its user fees policy
was violating the right to health. By not intervening and
continuing its financial and technical support and loan conditions
for the implementation of user fees until at least 2004, the World
Bank, along with its member states, is complicit in those human
rights violations that occurred during this time, and violated the
legal obligations enshrined in, inter alia, the UN Charter to
promote universal respect for, and observance of, human rights.
Despite the fact that the World Bank is so obligated, its Articles
of Agreement are filled with immunity clauses which attempt to make
legal efforts holding the Bank accountable for its actions a
virtual land-mine of procedural obstacles ...
Additionally, another avenue of argumentation notes that the member
states that make up the World Bank all have human rights
obligations. These states cannot ignore, or indeed violate, these
obligations simply by organizing themselves into the World Bank or
by using the bank as an agent to carry out policies that violate
their respective international human rights obligations. ...
This approach to the liability of individual member states of the
World Bank is also relevant because most members are among the 160
countries which have made concrete obligations to ensure the
realization of economic, social and cultural rights, with such
obligations enshrined in the Universal Declaration of Human Rights
and in a number of other human rights treaties, such as the
International Covenant on Economic, Social and Cultural Rights
(ICESCR). [Note: the United States is one of the few countries that
has not ratified the ICESCR - see http://tinyurl.com/qxqfpj5] ...
States' actions taken at the World Bank to promote private
financing including user fees have led to outcomes that would
constitute violations of the obligations to pursue progressive
realization of the human right to health and avoid retrogression in
the realization of this right.
...
Despite the violations of the human right to health by the World
Bank and its member states, the fact that survivors of such
violations cannot yet avail themselves of remedies, such as those
provided by international and regional human rights fora or the
various United Nations treaty-monitoring bodies, suggests a degree
of impunity for international agencies dispensing with health
policy advice that should be noted with concern by the
international health community.
As a lending agency, the World Bank has a duty to ensure that its
projects, loan conditions, and policy advice are implemented in
such a way that does not result in the violation of human rights,
such as the right to heath. Nevertheless, the Bank breached this
duty by ignoring the human rights violations which occurred in the
context of the implementation of user fees and therefore could be
liable. This liability should be explored further by civil society
advocates and foundations by bringing together survivors of user
fees with international lawyers to consider avenues for bringing a
class action lawsuit against the World Bank.
AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with
a
particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.
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