by Micheal Loo Yeong Huei (member of the Bar Council Constitutional Law Committee)

Yeoh Yen Kee

Recently, I came across news about 19-year old, Yeoh Yen Kee. She obtained 11As for SPM, and was to pursue her dream to study medicine. She was awarded a scholarship to study in the Czech Republic.

However, in 2008, she was diagnosed with leukemia and could not proceed with that plan. After undergoing chemotherapy, and another relapse, she was told that she needed a bone marrow transplant. Despite numerous attempts, efforts to find a donor were in vain. Finally, through the National Marrow Donor Programme Registry in USA, her family managed to find a suitable donor.

The cost?

RM200,000 for the operation and related-care. USD55,000 for the procurement and courier of the bone marrow.

The sum required is not an amount that her family let alone any ordinary Malaysian can afford. Yen Kee’s father had also quit his job to care for her. In the course of Yen Kee’s treatment in the Penang General Hospital, her family has already spent RM70-80,000. A blog (helpyenkee.co.cc/) [which has since been discontinued] was set-up by her friends, and a donation initiative was taken to raise funds for Yen Kee.

What about other families who cannot afford to pay the RM70,000 required to treat a cancer patient? What are the other options available in the healthcare system for them? Speaking to my parents, they seem to be riding on the chance that they would not need to go to the hospital, God forbid! I then did a check and found that the cost of an angioplasty and a bypass – heart diseases are the most common health problems – is in the region of RM18-35,000! This is not something an average Malaysian would be able to afford. And these are figures taken from IJN (subsidised by the Government) and not from a private hospital.

Right to Health in International Human Rights Law

Before I get lost ranting about the state of healthcare in Malaysia, the right to health is a fundamental human right. Article 25(1) of the Universal Declaration of Human Rights 1948 states that:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Article 12(1) of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) recognises the right of everyone to “the enjoyment of the highest attainable standard of physical and mental health”. This imposes specific obligations on governments to make healthcare adequate, accessible and available to all, particularly the marginalised and underprivileged. Governments are also to ensure no one is discriminated against, and seek to increase greater participation by stakeholders when making decisions on healthcare.

Although SUHAKAM has said it a few times that Malaysia should be a party to the ICESCR, why is our Government still reluctant or unwilling to sign and ratify the ICESCR?

Problems with healthcare in Malaysia

On the other hand, we have seen moves to privatise healthcare which has worked against the needs of the rakyat. In 1993, the procurement of medicine for Government hospitals and clinics was privatised and the cost of medicine doubled the following year. In 1996, following the privatisation of five more areas of support services including laundry, cleaning, maintenance of equipment and facilities, and waste disposal, the cost of these services went up from RM140 million to RM450 million the following year. Is the escalating cost of healthcare and services sustainable for the rakyat in the long-term? (See Dr Hsu Dar Ren’s “Malaysian Healthcare: Where are we Heading? A Critical Look at the Proposed National Health Financial Scheme” and SUHAKAM’s “Report on the Public Forum on the Right to Health: Achieving Health MDGs”)

Yet, why is the Government spending less than 3% of Malaysia’s GDP on healthcare when the WHO-recommended level is 5%? If and when the Government fails to protect the right to accessible healthcare, shouldn’t they be held accountable? How are we to hold the Government accountable? To be held accountable would mean looking at our laws and the “highest” or supreme law of the land is the Federal Constitution. Does our Federal Constitution clearly define the State’s obligations to the rakyat in respect of healthcare?

While physical and financial access to healthcare is an important issue, another would be considering Malaysia’s fight to reduce and halt the transmission of HIV/AIDS. One of the Millennium Development Goals – No. 6 – calls to “Combat HIV/AIDS, Malaria & Other Diseases”. Malaysia is not doing very well on this front. We have one of the fastest-growing HIV infection rates in the Asia-Pacific region, and various initiatives by the Government have not succeeded in reversing the trend.

Anand Grover

In June 2008, the UN appointed Anand Grover as the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health. He has a track record of fighting discrimination against HIV/AIDS sufferers, and is the Project Director of the HIV/AIDS Unit at the Lawyers Collective, an organisation created by a network of lawyers that offers legal services to those living with HIV/AIDS. He has personally handled several hundred HIV/AIDS-related litigations in India.

Grover led arguments in a recent landmark case, Naz Foundation v Government of Nct of Delhi, where the High Court decriminalised homosexual relations between consenting adults in private. On the basis of the constitutional right to health, it was argued that the criminalisation of gay sex (or known as “unnatural sex”) prevents homosexuals who are HIV/AIDS sufferers from obtaining information, treatment or healthcare for fear of prejudice and persecution.

The Bar Council’s Constitutional Law Committee is grateful to have Anand Grover share his thoughts, and kick-start our “Conversations with the Constitution (Conversations)” series on 29 October 2009 at 630pm, Bar Council. Admission if FREE and you are invited to attend. For more details, please go here.

Conversations is part of the MyConstitution Campaign/Kempen PerlembagaanKu due to launch on 13 November 2009 at 3pm, Bar Council. You are welcome to come join us! In the meantime, follow the Campaign trail here:

http://www.perlembagaanku.com (to be launched on 13 November 2009)

www.malaysianbar.org.my/constitutional_law_committee

www.facebook.com/MyConstitution

www.twitter.com/MyConsti

www.youtube.com/user/PerlembagaanKu

*I am reproducing this from Loyarburok because I have not updated my blog recently as I am working on the PerlembagaanKu/MyConstitution campaign. The ‘Conversations on the Constitution’ series is a part of that campaign.

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