Preliminary observations and recommendations by the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health Mr. Dainius Pūras Country Visit to Malaysia, 19 November to 2 December 2014

Kuala Lumpur, 2 December 2014

Members of the press,
Ladies and gentlemen,

Allow me to begin by warmly thanking the Government of Malaysia for inviting me to visit the country to assess, in a spirit of dialogue and cooperation, the realisation of the right to health in Malaysia.   I am very grateful for their efforts in facilitating my visit, which started on 19 November.

During my visit, I have met with Government officials, members of Parliament, the National Human Rights Commission (SUHAKAM), as well as with representatives of international organizations, and a wide range of civil society actors. I have visited health facilities in Kuala Lumpur, Melaka, Negeri Sembilan, and the State of Sabah. I have also visited a prison and two immigration detention centres. I take this opportunity to thank the UN Country Team for their support to my visit, and all those who have given me the benefit of their time and experience.

After two weeks in the country, I have gathered a wealth of information and testimonies, which will help me assess the realisation of the right to health in Malaysia.  Today, I will confine myself to presenting some of my preliminary observations and recommendations, which will be elaborated in more detail in a report that will be considered by the UN Human Rights Council in June 2015.

Context and achievements

First, I would like to commend the Government of Malaysia for its achievements in improving the health status in the country through a sustained commitment to public health policy.  Malaysia has placed the health of its population at the heart of its development policy since it gained independence in 1957.

The country has made considerable improvements in increasing the life expectancy of large sectors of the population. It has halved maternal, infant and child mortality rates over the past decades, reaching levels that are similar to those of high-income developed countries. 

I also wish to commend achievements related to some of the essential underlying determinants of health in the country, including improvements in access to education, water and sanitation, and the effective control of outbreaks of recent epidemics.

The health sector in Malaysia has developed over the past few decades with a strong focus on primary care, achieving universal coverage for most of its population and fairly good standards of availability, accessibility, acceptability and quality. In this regard Malaysian model of primary healthcare may serve as an example to other countries. Malaysia has also made serious attempts to address the challenges of the ongoing demographical and epidemiological transition from a country with a focus on communicable diseases to a country where non-communicable diseases are becoming the main issue of concern. 

Malaysia is a member of the UN Human Rights Council and in 2015 will hold a seat at the UN Security Council, and the Chairmanship of ASEAN.  This will place the country in a unique regional and global position, and can offer the possibility to move forward towards the goal of achieving sustainable and inclusive growth with equity and respect for all human rights.

Challenges and groups in vulnerable situations

Malaysia has achieved rapid economic growth and development over the past few decades, which has allowed for some of the positive achievements regarding the realisation of the right to health.  However, it has only ratified three of the core international human rights treaties . This, together with the reservations introduced to the treaties ratified, and the slow pace in reporting to the respective monitoring bodies, is seriously affecting the accountability of the Government and can undermine the efforts undertaken so far.

Many of the challenges that I have preliminarily identified during my visit are related to a selective approach to human rights. This approach is mostly based on restrictive interpretations of cultural and religious norms and practices, and to a departure from universal human rights principles and standards.

This is having an impact on many groups of the population that are being excluded in law and practice from the efforts to promote and protect the right to health.

In addition, during my visit I have ascertained the challenges and risks that civil society faces in Malaysia when working on right to health issues. They operate in a very restrictive environment and important sectors of civil society work under the fear of being prosecuted under the Sedition Act (1948).

This seriously constrains their legitimate work and hinders the effective promotion and protection of the right to health in the country. 

Sustainability of the health care system

Malaysia is facing complex challenges for the sustainability of the healthcare system including the quality of the services provided; increased expectations of healthcare consumers; the growth of private sector and out-of pocket payments; and the drain of medical doctors and nurses from public to private sector.

The Government recognizes the need of transformation of the healthcare system and is considering different options for change. I will be providing specific recommendations on this important issue in my report. At this particular moment, I would underline some of the main principles that have to be taken into account for an effective transformation of public healthcare systems applied to the Malaysian context.

First, the strengths of the healthcare system in Malaysia, which include a solid and accessible primary care system and community-based initiatives, should continue to be supported.  Also, the further development of infrastructure of hospitals in a rational and cost-effective way should be continued.  Second, the current share of healthcare financing within the GDP, which stands at 4.3%, is low and should be increased to allow for more resources to be injected for the further development of the sector. Third, financial barriers that restrict access to health care, especially for groups in vulnerable situations, should be removed.

The sustainability of the health care system is at stake. A model of health financing should be consolidated as to ensure that the ability to pay does not affect an individual’s decision whether to seek access to necessary health goods and services. As we know, in many countries, the primary financial barrier to accessing health care is out-of-pocket payments, which are made by the user for health goods and services at the point of service delivery. This can cause catastrophic health consequences and push into poverty and social exclusion those most vulnerable. This is why the share of out of pocket payments within health expenditures in Malaysia should be reduced or, at least, not allowed to grow.

Right to health of women and girls

During my visit, I learned about positive initiatives to empower women in public life, such as the goal to increase their participation in the workforce of the country, as well as in the public sector. In addition, there are commendable programmes to facilitate access of women to health care, such as the Mammography subsidy programme, introduced in 2007. 

However, women and girls in Malaysia face significant barriers to access sexual and reproductive health and rights, including services, mostly due to certain interpretations of cultural, religious and political norms, values and traditions.  Comprehensive sexuality education is not integrated in school curricula and girls do not have access to basic information to make informed decisions on their reproductive health. This has led to a high prevalence of unintended pregnancies amongst girls below the age of eighteen, as well as a high risk of the spreading of sexually-transmitted diseases, including HIV/AIDS.

Therapeutic abortion is available in Malaysia   but, during my visit, I found out that women and doctors lack information about the availability of these services and face legal and societal pressure against their use.

Domestic violence is an issue of public health concern and I commend the establishment of One Stop Crisis Centres (OSCC) to provide integrated services for victims in public hospitals in Malaysia.  However, during my visit, I received credible reports indicating that some of the OSCC are either not accessible in practice or not fully operational.

I am also particularly concerned about the situation of women and girls which face compounded forms of discrimination due to their social, cultural and religious backgrounds.  These include women and girls who are exposed to harmful traditional practices, such as child marriage and female genital mutilation.  I will elaborate on these issues in my report to the Human Rights Council.

The situation of migrants, refugees and asylum-seekers

Malaysia is a multi-ethnic, multi-cultural, and multi-religious society that due to its economic dynamism has become a main destination of workers’ migratory movements in the region.  It is estimated that there are currently over 6 million migrant workers in Malaysia, of which only about 2.9 million are reportedly documented.

Documented migrants are forcibly tested before initiating their journey in the countries of origin, and are denied work permits if found to be HIV/AIDS positive or pregnant. This practice poses a serious problem with respect to the right not to be discriminated on the basis of health status, the right to privacy, and the fundamental principle of informed consent. There are also reports indicating that migrant workers suffer from high levels of exploitation at the workplace, including physical, sexual and emotional abuse, as well as high occupational risks.

Documented migrants, as foreign nationals, face specific barriers when accessing the healthcare system. They have to pay higher fees to access healthcare and, since June 2014, cannot access medication with prescription for chronic illnesses for more than five days. 

Additionally, undocumented migrants face the extraordinary challenge to be considered illegal in the country and face criminal penalties for being undocumented, ranging from fines to imprisonment and caning. During my visit, I learned about the establishment of immigration counters inside public hospitals to facilitate the referrals of undocumented migrants and asylum seekers to the police when they come seeking medical attention. I consider that this practice goes against public health interests and the code of ethics of doctors.  The establishment of these counters will deter undocumented migrants from seeking health care for fear of being reported, which among other things could cause the spread of communicable diseases.   

In this connection, I am alarmed at testimonies received about a recent wave of arrests of undocumented women migrants and asylum seekers who, only a few days after giving birth, were taken from hospitals directly to detention centres.  In those centres, some of these women and their new-born babies reportedly did not receive the necessary medical attention or the appropriate care from the authorities. I urge the authorities to stop this practice, and to refrain from using the health system for law and order purposes.

The vulnerable situation of asylum-seekers and refugees in the country is exacerbated by the fact that Malaysian law does not provide for them protection since the country is not a signatory to the UN 1951 Convention on the Status of Refugees. As a result asylum-seekers are subject to the Immigration Act as undocumented migrants, and hence are liable to being imprisoned, whipped or sent back.   

Moreover, the detention conditions in immigration detention centres have been reported as a source of concern from the right to health perspective.  I have visited Leggeng Detention Centre and the Kuala Lumpur International Airport immigration depot.

During my visits to these centres, among other issues, I found out that women who have just given birth are held in a separate area where they have mattresses for them and their new-born babies and are provided with the necessary hygienic products. However, diet does not seem sufficient for breastfeeding mothers.  This seems to be an issue for other detainees as well, as it was reported that often they only get two meals per day.  In addition, the conditions of detention in some wards of the centres fall short of complying with international standards. I am also concerned that most of the detainees are reportedly not allowed to spend enough time outside the common cell or outdoors.

Indigenous communities in Peninsular and East Malaysia

Despite commendable efforts from the Government to address health-related issues affecting indigenous groups, serious challenges remain with regard to their right to health and related rights both in Peninsular Malaysia (Orang Asli) and in the States of Sabah and Sarawak.

Health indicators among indigenous populations are significantly worse than those of the general population. For instance, life expectancy is about 53 years when the average in Malaysia is over 70 years. Indigenous populations also carry a larger burden of disease, including communicable and non-communicable diseases. Birth registration is a serious problem affecting indigenous communities living in remote areas which; and this, in turn, has a negative impact on access to healthcare.

Access to healthcare services for indigenous populations has significantly improved through the development of infrastructure of healthcare services, mostly primary care in remote areas, and specialized care, including a hospital meant for Orang Asli. The right to health should be promoted and protected not only through health care services but mainly through cross-sectorial programmes that address socioeconomic and environmental factors, and that are guided by a human rights-based approach emphasizing non-discrimination, participation and accountability.  

Moreover, the right to health of indigenous people is threatened by changes in the use of land caused by development projects in certain parts of the country. This has led to a substantial loss of access to traditional land and sources of livelihood and has had a direct and negative impact on their diet and physical health.

During my visit, I received testimonies indicating that there is no meaningful dialogue between authorities and indigenous communities, and that these communities do not have access to basic information about development projects in their region and the potential environmental impact. Uncertainties about their livelihood security in the future is having a serious effect on the mental health and emotional well-being of indigenous communities, leading to chronic stress and anxiety, at the same time that it violates principles of prior and informed consent.

Lesbian, gay, bisexual, and transgender persons

The rights of lesbian, gay, bisexual, and transgender people (LGBT) are not recognized in Malaysia. The criminalization of same sex conduct and of different forms of gender identity and expression has led to human rights violations and barriers in access to healthcare for this group of the population.

Reliable reports indicate that law enforcement officials arrest transgender women and subject them to various abuses, including humiliating practices such as parading them before the media, or subjecting them to physical and verbal abuse. Many transgender women face serious discrimination in public healthcare facilities.  They are forcibly tested for HIV/AIDS, are identified on the basis of their ID which does not reflect their current sex status, and when arrested are housed in male wards where they are exposed to serious violence and abuse.

I welcome the recent judgement of the Court of Appeal that found section 66 of the Syariah Criminal Enactment of Negeri Sembilan State criminalising cross-dressing as unconstitutional.

I am also very concerned about information received on programmes and practices supported by public institutions to change the sexual orientation of adolescents, so-called “corrective therapies”. Such therapies are not only unacceptable from a human rights perspective, but they are also against scientific evidence, and have a serious negative impact on the mental health and well-being of adolescents. State-led programs to identify, “expose”, and punish LGBT children have contributed to a detrimental educational environment where the inherent dignity of the child is not respected, and discrimination on the basis of sexual orientation and gender identity is encouraged.

Laws and regulations criminalizing same sex conduct and different forms of sexual identity and expression should be repealed.  I urge the Government to stop harmful and unscientific practices that discriminate against LGBT adolescents.  This does not only go against their human dignity enshrined in the Universal Declaration of Human Rights, but it is a cause of significant psychological distress and reinforces their stigmatisation in society.

People living with HIV/AIDS and drug users

The Government of Malaysia is to be commended on measures taken to reduce the spread of HIV/AIDS, which has traditionally affected drug users.  Measures taken have included available evidence-based treatment options, such as antiretroviral treatment and the implementation of harm reduction programmes. 

In recent years, Malaysia has seen a surge in HIV/AIDS infections due to sexual transmission, mainly affecting men having sex with men, and now also women.  However, the previous achievements in addressing the epidemic in the country have been hampered by a lack of political will to fully adhere to universal human rights obligations and principles, and recognize the rights of the groups most affected.

The experience of the HIV/AIDS pandemic has shown that the exposure of vulnerable groups to HIV/AIDS is reinforced through discrimination, stigmatization and disrespect for human rights. Discriminating and ostracizing vulnerable groups will only add to the continuation and further spread of HIV/AIDS. 

During my visit, I also learned that drug users are forcibly confined to rehabilitation camps and receive treatment without their explicit and informed consent. I will seek more information from the authorities before I elaborate further on this issue.

Children and the right to health

Malaysia has achieved good results in the area of the right to life and survival, reaching and sustaining low rates of infant and children under-five mortality, and high coverage of child immunization programs. Recently, there have been effective efforts to address the prevention of non-communicable diseases from childhood, such as promoting healthy lifestyles, preventing under-nutrition, as well as preventing overweight and obesity.

However, many recommendations of the UN Committee on the Rights of the Child, after its consideration of the first and second periodic report of Malaysia in 2007, have not been properly addressed. What I see as the main cross-cutting issue is the lack of recognition of the right of children to holistic development. This has led to a lack of sustainable measures to promote the emotional and social well-being of children, to protect them from all forms of violence, and to enhance the ability of parents and teachers to raise and educate children using non-violent methods.

During my visit, I have identified prevailing attitudes supporting punitive measures towards children, and the use of violence as a remedy. This is reinforced by representatives of national and local authorities, for example through the use of corporal punishment in schools. I see this as a serious systemic issue with a detrimental impact on societal physical and mental health and well-being, ranging from child-rearing practices to public decision-making when addressing social problems.

Children and adults with mental disabilities

Although Malaysia ratified the Convention on the Rights of Persons with Disabilities (CRPD) in 2010, and there is a Mental Health Act (2008), I am concerned that certain public policies and services are not in line with the Convention’s standards. 

There have been important positive initiatives implemented in Malaysia, regarding community based psychosocial rehabilitation of persons with mental disabilities and the integration of psychiatric inpatient units in general hospitals.

However, Malaysia still has a long way to go in order to achieve the full realisation of the rights of children and adults with developmental and mental disabilities. Infrastructure of user - friendly community-based services for these groups of individuals is not well developed, which can lead to systemic violations of their rights, such as the right to enjoy living in community. There are certain initiatives relating to the inclusive education of children with disabilities in mainstream schools, but they need further development.

In addition, I have found that there is high stigmatisation and discrimination of persons living with mental disability, which makes it difficult to provide them with a full spectrum of community-based services. 

Members of the press,
Ladies and gentlemen,

The Malaysian Government has recognized that the further successful development of the country depends not just on investing in economic growth, but also on the social well-being of the population, or on social capital.  It has taken steps in this direction.   

However, in order to consolidate an inclusive and sustainable model of development, a holistic and not selective human rights-based approach is necessary. The rights of all people living in Malaysia need to be protected, and more efforts are needed to combat discrimination of the more vulnerable groups to achieve their full inclusion in society.

During my visit, I have observed deeply entrenched discriminatory and violent attitudes towards groups in vulnerable situations. Arguments which base themselves on culture or religion to discriminate and restrict the rights of these groups are not acceptable and are against international human rights principles and standards. These arguments and attitudes not only cause systemic violations of rights, including the right to physical and mental health, but especially when initiated, supported or tolerated by authorities, they threaten the development of a healthy and inclusive society.

There are good opportunities to achieve the progressive realisation of right to health in Malaysia, but governance and public policy need to be guided by a holistic approach to human rights. This would contribute to the full enjoyment of the right to health and related rights, including civil, cultural, economic, political and social rights, and the rights of groups in vulnerable situations.

In order to successfully achieve ambitious plans such as becoming a high-income nation with inclusive and sustainable development by 2020, Malaysia needs to move forward towards the full realisation of and adherence to universal human rights principles and standards enshrined in Universal Declaration on Human Rights, and international human rights law. 

Let me conclude by saying that I am very grateful to the Government of Malaysia for inviting me to visit, enabling me to deepen my understanding of the right to health in the country. The Government’s invitation – and much of what I have learnt during my visit – indicates that there is a commitment to ensure and guarantee the enjoyment of the right to health. I hope that my visit and my report will assist the country in moving forward. 

Thank you.