Discussions Continue On How To Govern WHO Interactions With Outside Actors

IP-Watch – The World Health Organization interacts with a large number of actors aside from governments, such as industry, philanthropic organisations, academia, and civil society. With an eye to preventing undue influence on the work of the organisation, member states have been trying to finalise a draft framework on WHO interaction with those actors. This week, what was seen as a last effort at reaching a consensual text did not quite meet the goal and some additional informal discussions are expected to take place before the annual World Health Assembly in late May.

The Open-Ended Intergovernmental Meeting on the draft framework of engagement with non-State actors (FENSA) met from 25-27 April, with the task of breaching differences on the draft framework and present a consensus text and a draft resolution to the 23-28 May World Health Assembly (WHA) through the Programme, Budget and Administration Committee.

The framework is part of the overall reform of the WHO, which started in 2010.

WHO members were expected to work from the latest version of the draft text [pdf], attached to the meeting document, which has colour-coded text. The text highlighted in green had been agreed upon, text in yellow was non-consensual, and text not highlighted had not been considered yet.

A new confidential version [pdf] of the text was issued at the end of the session showing the text as it appeared on screen at 17:00. The majority of the text is, as it was, in green highlights, however some paragraphs which were yellow or white now have been agreed upon.

For example, paragraph 46 was yellow and is now green, stating: “WHO does not accept secondments from private sector entities.” A secondment is an employee of an outside entity who is essentially “on loan” to WHO.

Also paragraph 69 on implementation has been fleshed out and appears to have been agreed upon.

Previous 69bis read: [Consistent with the principles identified in paragraph 6, this framework will be implemented in its entirety in a manner which enhances WHO engagement with non-State actors towards the attainment of public health objectives, whilst protecting and preserving WHO’s integrity, independence, credibility and reputation.]

It now reads: “Consistent with the principles identified in paragraph 6, this framework will be implemented in its entirety in a manner that manages and strengthens WHO’s engagement with non-State actors towards the attainment of public health objectives, including through multistakeholder partnerships, whilst protecting and preserving WHO’s integrity, independence, credibility and reputation;”

69ter reads: “The Director-General, in the application of this framework, when responding to acute public health events described in the International Health Regulations (2005) or other emergencies with health consequences, will act according to the WHO Constitution (FOOTNOTE: Including article 2(d) of the WHO Constitution) and the principles identified in this framework. In doing so, the Director-General may exercise flexibility as might be needed in the application of the procedures of this framework in those responses, when he/she deems necessary, in accordance with WHO’s responsibilities as health cluster lead, and the need to engage quickly and broadly with non-State actors for coordination, scale up and service delivery (FOOTNOTE: Taking into account resolution WHA65.20 (WHO’s response, and role as the health cluster lead, in meeting the growing demands of health in humanitarian emergencies)). The Director-General will inform Member States through appropriate means, including in particular written communication, without undue delay when such a response requires exercise of flexibility, and include summary information with justification on the use of such flexibility in the annual report on engagement with non-State actors.”

However, paragraph 14 is still in yellow: “[The [Director-General] / [Health Assembly] can [propose to] set up mechanisms for pooling contributions from multiple sources, [including for private sector entities whose business relate to that of WHO,] if the mechanisms are designed in such a manner as to avoid any perceived influence from the contributors on WHO’s work; if the mechanism is open to all interested contributors;]

Also appearing in green are paragraphs relating to technical collaboration with the private sector, and philanthropic foundations.

Next Steps

According to a meeting document [pdf] obtained by Intellectual Property Watch, member states are expected to finalise paragraphs which are still open in the draft FENSA, including paragraph 14 on private sector policy.

At the WHA, member states are expected to consider a number of paragraphs which have been agreed upon (16, 17, 27, 32, 34, 35, 38 and 38bis), shown in green in the text. For example, WHO’s involvement in meetings organised wholly or partly by a non-State actor, risk management, and transparency.

The document also says that member states should finalise the draft resolution at the WHA.

According to the document, the FENSA chair is to make a proposal on paragraph 27 (Overarching Framework), 13(a) (Private sector policy), and 14 (private sector policy).

A conference paper is expected to reflect the outcomes of the informal consultations between the end of this week’s meeting and the start of the WHA, including proposals received on the draft resolution, according to the document.

WHA Committee A is expected to open the agenda item on 24 May (second day of the weeklong meeting), so “that establishing a drafting group may be considered.” notes the document.

Divergent Reports on Implementation Implications

One of the questions which kept discussions open are the possible implications of the implementation of FENSA, according to sources. Following a request from member states, the WHO secretariat issued a report [pdf] in October on those implications.

According to several developing country sources, the report was criticised as being overly negative.

The report stated that the proposed change in the work of WHO governing bodies suggested by the FENSA draft would add additional agenda items to the Programme Budget and Administration Committee (PBAC), which would have to examine an annual report of the WHO Director General on WHO’s engagement with non-state actors.

It also estimated costs, saying for instance that the cost for building up and maintaining a system for the register of non-state actors would amount to: Global engagement management (in 2015) would amount to US$ 734,000 in start-up costs, and thereafter US$ 76,000 per year.

The report also said “it is expected that the major part of additional workload will happen in technical unit and at country level. With thousands of non-State actors WHO engages with and tens of thousands of engagements per year, this workload is significant.”

“Transparency beyond a certain level could lead to the unwillingness of some key actors to engage with WHO and expose WHO to the risk of litigation and claims to justify in details each due diligence and risk assessment,” said the WHO report about unintended effects of the FENSA implementation.

In reaction, some sources told Intellectual Property Watch, developing countries asked that the WHO external auditor also produce a report, which was issued [pdf] in March (IPW, Public Health, 26 April 2016).

In the view of some developing country sources, the external auditor’s report gives a fairer evaluation of the implications of the FENSA implementation.

In its conclusions, the external auditor’s report said, “FENSA as an overarching framework can already stand on its own and can be considered for adoption, as it already embodies the strategic context of WHO on its engagements with NSAs. Specific policy guidelines, however, need to be separately provided to clarify the mechanism of the framework.”

Some developed countries have concerns about the lack of clarity on the cost of the FENSA implementation, some sources told Intellectual Property Watch. According to civil society sources, some European countries are conditioning the adoption of FENSA to more information, in particular on costs.

According to the WHO, the organisation “can receive three kinds of resources: money, goods and services (…) Receiving money is referred to as financial contributions, receiving goods and services can be either procurement when they are bought on the market for market prices or in-kind contributions when they are received free of charge or for an amount which would not be available under market conditions. ”

The applicability of FENSA “depends on the nature of the interaction and the actor WHO engages with. All procurements are regulated by the WHO procurement strategy and do not fall under the Framework of engagement with non-State actors,” according to a December 2015 unofficial document (non-paper) [pdf]by the secretariat.

FENSA would be expected to replace the current principles of engagement with non-state actors, governed by two documents: Principles governing relations between the WHO and NGOs (non-governmental organizations) [pdf], and Guidelines on interaction with commercial enterprises to achieve health outcomes [pdf].

Non-State Actors and Government Secondments, Issue For Some

Meanwhile, the Third World Network (TWN) expressed concern in December about philanthropic foundations, such as the Bill & Melinda Gates Foundation and the United Nations Foundations, which have seconded their staffers to top management positions at WHO (IPW, Outside Sources, 15 December 2015).

According to TWN, between 2012 and 2015, WHO had 37 secondments from non-state actors, from academic institutions, philanthropic foundation and non-governmental organisations. But “the data does not reveal any direct secondments from the private sector,” the group said.

During the FENSA meeting this week, several developing countries expressed their concerns to Intellectual Property Watch about secondments from governments. According to those sources, some developed countries have seconded their staffers to WHO, in particular in the field, following earmarked funding.

Those secondments are a sign of governments trying to influence health policies on the ground, the sources said.

The WHO was unable to provide the number of people working at WHO who have been seconded by their government at press time.

“We want a WHO that serves everyone,” a developing country source told Intellectual Property Watch.

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