A/69/299 25. Courts have also adjudicated the utilization by the State of available resources vis-à-vis existing policies and the obligation of non-retrogression. In a case where the court held that lack of available resources cannot be a justification for retrogression of policies, it unambiguously expressed that benefits promised under health-care programmes should be delivered and issued directions to the Government to that effect. 16 Moreover, should the adjudicators find that a sum has been allocated to the realization of a particular health right but has not been used, or such sum has been diverted to another use, they should hold that the State is not using the maximum of its available resources and may therefore be in violation of its progressively realizable obligations. 11 It is worth noting, however, that resources allocated to non-health rights may have the effect of improving access to and availability and quality of health facilities, goods and services. For example, funds spent on roads can improve access to medical clinics. 12 26. For a State to be in compliance with its progressively realizable obligations, the amount of available resources must be efficiently allocated. Availab le resources should be considered efficiently allocated if such allocation reduces barriers to non discriminatory access to available and acceptable-quality health facilities, goods and services. Failure to curb corruption, which results in the inefficient use of resources, may be considered a breach of a State’s progressively realizable obligations. 12 States must also ensure that what appears to be greater efficiency is not simply masking the transfer of such costs to non-State actors. For example, a policy that encourages patients to spend less time in the hospital, thus reducing the financial cost per treatment, may in reality shift those costs to the patient ’s home caregivers. 12 27. Some domestic courts have focused on judicial review of the process, rat her than the substance, of policymaking. Courts have confirmed that a State is in compliance with its progressively realizable obligations if the policymaking process was reasonable. 17 The Constitutional Court of South Africa, for example, has considered the following factors in determining whether a housing policy and a water distribution policy was “reasonable”: consideration given to vulnerable groups and emergency situations; flexibility of the policy to being updated upon continuing governmental review; attention paid to the short-term, medium-term and long-term needs; a transparent, participatory and well-considered process; efficient implementation of the policy; equitable coverage; retrogression in policy; and whether discrimination was tied to a legitimate government policy. 18 Even where adjudicators find that the process has been reasonable, they may also review whether the implementation of the policy has resulted in a disproportionately negative impact on a particular vulnerable group, which may evi dence a breach of the State’s progressively realizable obligations. 28. The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights also requires the Committee to “consider the reasonableness of the steps taken by the State Party” (art. 8 (4)). The Committee has laid out several considerations to be taken into account when determining reasonableness, such as __________________ 16 17 18 14-59014 High Court of Delhi, Laxmi Mandal v. Deen Dayal Haringagar Hospital and others, 2010, paras. 61-70. See Constitutional Court of South Africa, Minister of Health v. Treatment Action Campaign, 2002; High Court at Nairobi, Okwanda v. Minister of Health and Medical Services and others, 2013. South Africa v. Grootboom, 2001; Mazibuko and others v. City of Johannesburg and others, 2009. 9/22