50 Pages Posted: 27 Sep 2011 Last revised: 6 Mar 2015
Date Written: September 22, 2011
While there is a considerable literature on access to essential medicines and human rights, the topic of access to reliable drug safety and effectiveness information has received little or no attention in human rights discourse. The paper argues that access to information related to clinical drug trials is a fundamental component of the right to health. This approach rejoins the claim of authors who characterize clinical drug trials as public goods. Yet, it offers also a legal and moral basis for the immediate implementation of transparency measures, regardless of more fundamental reform of drug regulation. Framing access to clinical trials data as a component of the right to health offers strong support against the argument that transparency measures may violate international trade obligations related to data secrecy and provides a basis for claiming that states have a duty to implement such measures.
The paper first provides a detailed overview of the historical development of clinical trials and results reporting registries. It then analyzes the arguments invoked against mandatory trial registration and results reporting, zooming in on claims based on data secrecy obligations under TRIPS and TRIPS Plus agreements. The paper explores why registries can generally be justified under public interest exceptions in international trade agreements and how the existence of data exclusivity regimes already provides protection against ‘unfair commercial use’ of clinical trials data.
In the final section of the paper, the implementation of clinical trial and results reporting registries is situated in the context of the right to health. This not only promotes individual empowerment in requesting access to relevant health information, but also suggests that states have a duty to develop reliable and publicly accountable information systems. Such systems should enable independent medical research groups and civil society in general to contribute meaningfully to publicly accountable medical research and health product development.
Keywords: drug regulation, drug safety and effectiveness, clinical trials, data secrecy, TRIPS, human rights, right to health, transparency, governance of information
JEL Classification: I18, K10, K20, K23, K32, K33, L52, L65, O19, O34
Suggested Citation: Suggested Citation
Lemmens, Trudo and Telfer, Candice, Access to Information and the Right to Health: The Human Rights Case for Clinical Trials Transparency (September 22, 2011). American Journal of Law and Medicine, Vol. 38, pp. 63-112, 2012. Available at SSRN: https://ssrn.com/abstract=1932436