VIEWPOINT
Vol. 139 No. 1632 |
Is health a basic human right or a commodity? Travelling the difficult road towards equity of outcomes
Citation: Bagshaw P, Potter JD, Goddard J, et al. Is health a basic human right or a commodity? Travelling the difficult road towards equity of outcomes. N Z Med J. 2026 Mar 27;139(1632):92-100. doi: 10.26635/6965.7355.
Since the mid-1980s, with increasingly dominant neoliberal political and economic philosophies in government, there has been a sustained trend to: i) commodify health by turning it into a publicly marketable product and ii) progressively pass responsibility for the provision of healthcare services to national and international corporations and private healthcare companies.
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The right to health is a complex philosophical, legal and political issue that has been endlessly debated in national and international forums without consistent unanimous agreement since World War II.1 Not least among the issues is how the putative right to health relates to access to healthcare. Since the Social Security Act of 1938,2 citizens of Aotearoa New Zealand have had a private, partly subsidised primary healthcare system and a two-tier public–private secondary healthcare system, which included free universal access.3–5
Post-1938, long-term, sustained taxpayer support had provided high-standard secondary healthcare. It initially produced excellent equity of health outcomes for all except Māori and Pacific people, for whom the health systems were inappropriately organised, and for whom long-term health outcomes were unacceptably poor;6 they have remained so.7–9
Later developments
Since the mid-1980s, with increasingly dominant neoliberal political and economic philosophies in government, there has been a sustained trend to: i) commodify health by turning it into a publicly marketable product and ii) progressively pass responsibility for the provision of healthcare services to national and international corporations and private healthcare companies.10 Along with these changes, the size of welfare support has decreased, the number living at or below the poverty line has increased and the health disparities between wealthy and impoverished have widened.11–13 There is evidence for a reduction in the number of practitioners working and the number of hours worked in the public sector and a corresponding migration of salaried specialists into the private sector.14
The reasons given—by its advocates and supporters—for the continued neoliberal trend10 and the resulting commodification of health15–17 include:
- Healthcare should be seen as a personal responsibility.
- As a service requiring resources that are produced through labour and capital, healthcare should be subjected to usual free-market processes, with limited government intervention and freedom of consumer choices.
- This market approach is claimed to be inherently more efficient.
The primary problem with this position is that neither of the key free-market preconditions apply: i) no barriers to entry and exit—entry into the market as a seller is restricted, and ii) perfect information—there is an information asymmetry as buyers in the market do not have enough information or knowledge to fully judge the quality of the services they are purchasing. Furthermore, neoliberal political and economic theories favour those who are already economically advantaged, in that there is no regulated minimum level of service that sellers are obliged to deliver for everyone.18
The recent consequences of these developments in Aotearoa New Zealand and elsewhere19,20 include:
- long-term contracts that outsource secondary elective healthcare to the private sector;21
- an increase in public–private partnerships22 and the possibility of private management of public hospitals;23
- a rise in the private healthcare sector, which has not resulted in relief for the public hospital system,24–26 and a progressive decline in the functioning of the public primary and secondary healthcare sectors;27
- increasing inconsistencies in inter-regional healthcare standards;28–31
- fragmentation of the usual integration of the continuum of healthcare, particularly for isolated providers;32,33
- little incentive for private providers to take responsibility for any damage caused, for example to the environment;18\
- lack of due diligence by businesses to protect human rights, including health and safety, across their organisations, even in the face of relevant international guidance;34,35impaired recruitment into the healthcare workforce both because of declining working conditions36 and compromised training opportunities.21
We deduce that the commodification of health in Aotearoa New Zealand has had, and continues to have, negative impacts on the effective functioning of our public healthcare system and on the general health of the population.
The New Zealand Bill of Rights Act 1990 does not address the right to health or the right to access health services, although it does preserve the rights of an individual to refuse treatment (Section 11) and not to be subject to medical or scientific experimentation (Section 10).37 A possible way to arrest the decay towards a United States of America–style health system (inferior to other high-income countries on measures of affordability, efficiency, equity and outcomes38) is to restore the balance in the social contract39 by making health a legal human right.40 This could be enforced by individuals and by civil society groups as a collective or community right.18
The Waitangi Tribunal, in its 2023 report on stage one of the health services and outcomes Kaupapa inquiry, found Te Tiriti o Waitangi breaches in relation to the funding and provision of primary care services.9 The Tribunal concluded that the treaty principles of active protection and equity require that there be equitable access and funding of health services and equity of health outcomes.9 Establishing a right to health would thus be consistent with Te Tiriti o Waitangi, derived from its principles of partnership, consultation and active protection. All these threads, for which the Aotearoa New Zealand government has a positive obligation, can be woven into the fabric of the social contract with constructive effect.
At present, none of our Aotearoa New Zealand laws, including the recent Pae Ora (Healthy Futures) Act 2022,41 provide that right.42,43 However, Aotearoa New Zealand has recognised or ratified some international declarations and covenants on human rights to health. Table 1 shows the most important of these44–47 and how we have responded.48–52 In particular, we have ratified the United Nations (UN) International Covenant on Economic, Social and Cultural Rights.44 Article 12 of this covenant mentions “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.44 However, the Government recently asserted that it did not recognise the UN Declaration of the Rights of Indigenous Peoples47 as having any binding legal effect on Aotearoa New Zealand and had no plans to take steps to implement it.52
View Table 1.
General comment no. 14 (2000) of the UN Committee on Economic, Social and Cultural Rights clarifies that “the right to health is not to be understood as a right to be healthy”.53 We understand that this explains that the state: i) cannot make everyone completely healthy, and ii) does not have the resources to make everyone as healthy as possible immediately, but that it should make every effort to do so as quickly as is feasible, within available resources. We also understand that pursuing the goal of equity of health outcomes for all requires appropriate processes of proportionate universalism and distributive justice.54
However, we are particularly concerned by the following:
- As Aotearoa New Zealand has not ratified the Optional Protocol to the UN International Covenant on Economic, Social and Cultural Rights (2008),55 our citizens cannot make individual complaints about their healthcare rights to that body. These complaints must go to the Health and Disability Commissioner, directly or via the Ministry of Health – Manatū Hauroa.56 The Commissioner’s decisions are final and only reviewable by the Ombudsman over issues of process.
- The UN Committee on Economic, Social and Cultural Rights has frequently raised serious concerns and made numerous recommendations on the substance of Aotearoa New Zealand’s implementation of the right to health and persistent inequalities within its healthcare system, particularly regarding Māori and other vulnerable groups.57,58 Indeed, a 2021 analysis by the Aotearoa New Zealand Human Rights Commission of the performance of the government of Aotearoa New Zealand found serious violations of the above-mentioned International Covenant for Economic, Social and Cultural Rights regarding the rights to adequate housing and to healthcare, revealing breaches in fulfilling minimum core obligations and a failure to fully use available resources.59
Towards solutions
We conclude that the focus on complex and ultimately inadequate legal processes failed to protect us from the damaging effects of neoliberalism on our health and our healthcare systems. What we should have been focussing on throughout was the ultimate goal of universal equity of health outcomes. We therefore contend there is a positive obligation for our government to strengthen and protect our human right to health. This obligation is consistent with recommendation 2 of the 2023 report of the WHO Council on the Economics of Health for All: “Use legal and financial commitments to enforce health as a human right.”60 It would be reinforced by the establishment of a minimum level of healthcare accessible for all—see recommendations 8 and 13 of the New Zealand Productivity Commission’s 2023 report.61 To embrace this obligation, our government must take responsibility to provide rights:
i) to easy and cost-free access to primary and secondary healthcare of a consistently high standard;
ii) to the social-welfare supports necessary to address the known socio-economic, environmental and cultural determinants of health, specifically including the terms of Te Tiriti o Waitangi, with the purpose of attempting to achieve equity of high-standard health outcomes for all citizens;
iii) to ensure that when and where the government employs business enterprises to provide healthcare, they will be required to comply with all applicable laws and to respect the right to human health.34,35
Consequent upon that legal definition, measures need to be established to ensure that: i) the law is applied; ii) striving for equity is maintained; and iii) no present or future government can renege on these commitments.
Unfortunately, Aotearoa New Zealand has only Te Tiriti o Waitangi and statutes, judicial decisions and conventions, and accepted norms, to protect our right to health from future parliamentary manipulation.42,56,62,63 In countries with constitutions as codified single documents, such rights are easier to defend and sustain.64 Some Aotearoa New Zealand academics have suggested that we should adopt such a codified constitution here65,66 or, at the very least, entrench the Bill of Rights to safeguard against political manipulation.67
How, then, do we progress this whole issue:
- by strong, relentless, open physician advocacy,68 starting with the medical colleges of Aotearoa New Zealand, who espouse the primacy of standards of health and healthcare;
- by honouring the rights of New Zealanders, individually and collectively, to health through the active pursuit of appropriate socio-economic and healthcare standards;
- by adhering to relevant international agreements and binding national justiciable laws;
- by advancing the proposal that a codified constitutional legal structure will better protect the people of Aotearoa New Zealand from the short-term, self-interested and irrational vagaries of contemporary political whim.69,70
From 1938, Aotearoa New Zealand health policy committed to providing free universal access to secondary healthcare. This approach initially worked for all citizens except Māori and Pacific peoples, who had different unmet needs. From the 1980s, as a neoliberal agenda spread, it became clear that action was needed to protect the population from the scourge of health as a commodity. Those who could afford to buy healthcare already had better social determinants of health; however, ultimately inadequate legal processes failed to protect many people from the damage to our healthcare systems.
The focus should have been on the ultimate goal of universal equity of health outcomes. To rebalance, we define health as a collective and individual legal right. The required laws to thus refresh the social contract should: i) bind rights and responsibilities of government and governed and protect all citizens; and ii) be enshrined against future whims of politicians. We suggest ways forward, including: i) open physician advocacy, starting with the medical colleges; ii) honouring the right of New Zealanders, individually and collectively, to health; iii) adhering to relevant international agreements and national laws; and iv) advancing a codified constitutional legal structure for Aotearoa New Zealand.
Authors
Phil Bagshaw: Chair, Canterbury Charity Hospital Trust, Christchuch, Aotearoa New Zealand.
Professor John D Potter: Centre for Public Health Research, Massey University, Wellington, Aotearoa New Zealand; Public Health Sciences, Fred Hutchinson Cancer Center, Seattle, Washington, United States of America; Department of Epidemiology, University of Washington, Seattle, Washington, United States of America.
John Goddard: Barrister, Lambton Chambers, Wellington, Aotearoa New Zealand.
Professor Fiona McDonald: Faculty of Law, Te Herenga Waka—Victoria University of Wellington, Aotearoa New Zealand; Australian Centre for Health Law Research, Queensland University of Technology, Australia; Department of Bioethics, Faculty of Medicine, Dalhousie University, Canada.
Sue Bagshaw: Senior Clinical Lecturer, Paediatrics, University of Otago Christchurch, Aotearoa New Zealand.
Professor Matt Roskruge: Associate Dean Māori, Massey Business School, Aotearoa New Zealand.
Ganesh Ahiro (also known as Ganesh Nana): Former Chair, New Zealand Productivity Commission.
Correspondence
Phil Bagshaw: Chair, Canterbury Charity Hospital Trust, PO Box 20409, Christchurch 8543, Aotearoa New Zealand. Ph: 03-360-2266
Correspondence email
philipfbagshaw@gmail.comCompeting interests
FM receives royalties for various books and textbooks about equity and health.
MR received support from employer Massey University for this work. MR is director, Massey Ventures Ltd; director, NZSEER Ltd; and director, Enzymes Aotearoa Ltd.
GA is treasurer and board member, Kaibosh Food Rescue; board member, Nuku Ora; board member and chair, Finance and Risk Committee, New Zealand Drug Foundation Te Puna Whakaiti Pāmamae Kai Whakapiri; and board member, ActionStation.
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