A right to health: Pharma, human rights & access to medicine

Pharma needs to go further with human rights than merely access to medicine – words by Professor Robert McCorquodale, director, British Institute of International and Comparative Law (BIICL).

The United Nations is just one of many international bodies that makes it clear that health is a fundamental human right, and access to medicine forms an important part of this. Yet for millions of people, particularly from low income regions/economies, the ability to enjoy their right to health is hampered by their inability to access medicines of a good quality.

Although the pharmaceutical sector is improving global access to medicine, last month’s publication of the 2016 Access to Medicine Index points out that only moderate progress is visible across the industry, and some areas have even remained static. This index highlights that what many in the industrialised economies perceive to be a basic human right, is still difficult to achieve across the globe.

There is a growing scrutiny of the human rights responsibilities and impacts of companies. Global businesses often find it far easier to comply with human rights closer to home - in their offices and with their locally based suppliers - than in those operations/suppliers based in developing countries. Stories about sweat-shop conditions in supply chains just being one example of this.

The resulting newspaper headlines have certainly played their part in raising the profile of human rights and the impact of business on communities - but the signs are that human rights impacts are still being overlooked by many businesses in the pharmaceutical sector.

The relevance of this issue is only increasing. In the UK, the Modern Slavery Act came into force this year, meaning that companies with a turnover above £36 million need to report on steps they are taking to eradicate slavery and human trafficking in their supply chains, and the EU’s Non-Financial Reporting Directive requires large companies to report on their human rights due diligence processes.

However, a recent study by the British Institute of International and Comparative Law (BIICL) and law firm Norton Rose Fulbright, surveying over 150 companies around the world including pharmas, has found that many businesses are still not implementing the international standards.

While many companies conduct general due diligence, the fact is that this is not enough to detect human rights impacts. Our research showed that only 20% of companies that only considered human rights indirectly as part of other non-human rights processes (e.g. health and safety, non-discrimination, labour) identified any human rights impacts; and less than a third did not identify adverse impacts linked to third party relationships. In contrast, 75% of companies that carried out specific human rights due diligence identified actual or potential human rights impacts; and over 70% identified impacts linked to third party relationships.

When identifying human rights in a pharmaceutical company, apart from slavery and human trafficking, other issues need to be considered too. For instance, internal employment issues, access to medicine, environmental issues, safety of patients taking medicines, conduct of clinical research and clinical trials, and privacy should all be included. Meanwhile, turning to supply chains specifically - child labour, issues of minimum versus living wage, safe and hygienic conditions, working hours, and non-discrimination should all be prioritised.

It is also important to understand that human rights due diligence is not general due diligence. General business due diligence considers the risk to the company of actions such as mergers and investment, and is often voluntary or subject to limited regulation. Human rights due diligence, on the other hand, examines the risk to others of the activities of a company. Those at risk include a wide set of stakeholders - not only employees but also local communities, indigenous peoples, consumers and others. Our research showed that many of these groups are simply not being considered.

Not undertaking human rights due diligence exposes a company to a plethora of risks: reputational, financial, operational and legal. A picture or comment on social media from a local group far from the company’s headquarters can transform its reputation in a flash.

By the time awareness of a human rights risk reaches the board, it is often too late to apply a preventative approach and the damage is already done.

What can be done about this? Human rights impacts must be recognised at the operational level, where the interaction with the rights-holders takes place: on the factory floor; the overseas operations; in the laboratory; and when supplies are procured. Companies must develop the ability to look at their activities through a human rights lens. Internally, a multi-functional approach is needed that includes people from across relevant departments. Organisations need to move away from a due diligence process that only looks at employees and internal stakeholders, and include all stakeholders. Training and consultations with all stakeholders and regular human rights impact assessments are also needed.

If this approach is not taken, boards and risk departments will start to find the heat rising sooner than they expect. It’s something that business simply cannot afford to ignore.