6. Right to Non-Discrimination

An important aspect of Human Rights Protection is that such rights are provided to all without unfair discrimination. EU Member States are signatories to many legal instruments that guarantee the right of access to health care free from racial or ethnic discrimination. The principles of non-discrimination and equal protection irrespective of race, ethnicity, social or other status are enshrined in several international conventions, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic and Social Rights (ICESCR), and the Convention on the Elimination of All Forms of Racial Discrimination (CERD). Article 14 of the European Convention of Human Rights provides an important guarantee against discrimination in terms of the rights provided for in the convention. It does not however provide any stand alone rights or a general right against discrimination. Article 14 is designed in such a way that it is only activated when discrimination occurs within the sphere of a pre-existing right. This means that in order to use article 14, individuals must be presented with a situation within ‘the ambit’ of another right such as the freedom of private and family life or the right of liberty and security of person. If such a situation presents itself individuals can not be denied their rights under the convention because they belong to one of the groups in question unless such treatment is objectively reasonable. In the context of public health provision this could include the withholding of treatment from certain groups such as certain minorities or individuals with certain health statuses. This right could also be used by individuals who that are denied access to other (non-healthcare related) public services because of their health status. This could conceivably occur where individuals have become (or have been) infected during a pandemic.

The European Court of Human Rights has stated that for discrimination to occur, members of one of these groups must be treated differently from other persons in an analogous situation without and objective and reasonable justification. If an applicant can show that he has been treated differently because he belongs to a group that is caught by article 14, the state in question must prove that it can objectively justify the treatment of the individual concerned. In order to provide reasonable and objective justification the state in question must show that there is a reasonable relationship of proportionality between the means employed and the aim that is sort.