Introduction Marrying Human Rights and Health Care Systems

Introduction: Marrying Human Rights and
Health Care Systems
Contexts for a Power to Improve Access and Equity
Colleen M. Flood and Aeyal Gross
Marriage is a matter of more worth

Than to be dealt in by attorneyship.
1 Henry VI 5.5.50–51
In this volume, we explore the power of health care rights in diverse health care
systems. Does a right to health care serve to advance greater equity or does it in fact
advance the opposite result? Does the recognition of a right to health care help sustain
public values (like equality) in systems that are undergoing privatization? Or, to the
contrary, does a focus on rights-based norms foster individualism and exacerbate
inequalities brought about by privatization? Does the legal means by which health
care rights are established make a difference (whether in a constitutional document,
in a statute, etc.)? How do courts balance the rights of an individual against collective
needs in the distribution of health care? Has this differed depending on the wording
of health rights protections? To what extent are broader legal, economic, and political
considerations taken into account in the courts’ reasoning about health rights? Does
the interpretation of the right to health vary depending on the model of health
system involved (e.g., private insurance, social insurance, single payer [public/tax-
financed])?
why we wrote this book

Many of us who teach or practice human rights law believe as an article of faith that
pursuing the realization of health rights will result in public welfare improvements
and, in particular, will improve the plight of some of the most vulnerable in society.
But increasingly we are pressed to question this assumption, as statistics continue to
underscore widespread inequities in health and access to health care. In colloquial
terms then, we address whether the creation and judicialization of health rights
is a force for good or ill. We also deeply appreciate that law is part of a larger
1
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2 Colleen M. Flood and Aeyal Gross
socioeconomic, political, and cultural context, and we are interested in how these
contextual factors influence health care rights, for better or for worse.
A variety of social, political, and philosophical factors culminated in the framing of
health as a human right. As Eleanor Kinney describes it, notions of a positive right to
health originated in the nineteenth century, when public health reformers advocated
government involvement in public health.1 Pointing to the Enlightenment, the Latin
American philosophy of human rights, and the rise of the modern welfare state, John
Tobin suggests that the health and human rights approach indicates “an embrace of
liberal values with an acceptance of the need for states to take measures to mitigate
the harm caused by excessive liberalism and capitalism.”2
But while the right to health as discussed later was included in the Universal
Declaration of Human Rights (UDHR) from 1948, the rights in the UDHR were
split into two separate covenants in 1966, one including civil and political rights and
the other social and economic rights.3 Jack Donnelly notes that Cold War tensions
further bifurcated the development of human rights, with the West focusing on civil
and political rights, while leaders in the East (particularly those in the Soviet bloc)
focused on economic and social rights.4 In dominant human rights discourse, the
right to health care, as part of the framework of social and economic rights, was
relegated to a second-class status.5
Seven factors contributed to the reemergence of rights to health and health care
since the 1990s at both the national and international levels:
1. To some extent, the end of the Cold War reduced the ideological divide
between civil and political rights and economic and social rights, as apparent
in the Declaration adopted by the Second World Congress on Human Rights,
referring to the two sets of rights as “universal, indivisible, and interdependent
and interrelated.”6
2. The growing critique of the international human rights movement, especially
from postcolonial countries, arguing that the West’s focus on civil and political
1 Eleanor D. Kinney, The International Human Right to Health: What Does This Mean for Our Nation
and World?, 34 Ind. L. Rev. 1457, 1459 (2001).
2 John Tobin, The Right to Health in International Law 42 (2012).
3 For a discussion, see Daphne Barak-Erez & Aeyal M. Gross, Do We Need Social Rights? Questions
in the Era of Globalisation, Privatisation and the Diminished Welfare State, in Exploring Social
Rights: Between Theory and Practice 3 (Daphne Barak-Erez & Aeyal Gross, eds., 2007).
4 Jack Donnelly, Universal Human Rights in Theory and Practice 27 (2002).
5 Id. at 7–8.
6 Vienna Declaration and Programme of Action, U.N. General Assembly World Conference on Human
Rights, A/CONF/157/23 (1993). On the effect of the end of the Cold War, see also Mindey Jane
Roseman & Siri Gloppen, Litigating the Right to Health: Are Transnational Actors Backseat Driving?,
in Litigating Health Rights: Can Court Bring More Justice to Health? 246, 249 (Alicia Ely
Yamin & Siri Gloppen, eds., 2011); Tobin, supra note 2, at 1; For a discussion of this and some of
the other factors, see also Helena Nygren-Krug, The Right to Health from Concept to Practice, in
Advancing the Human Right to Health 39 (Jose M. Zuniga, Stephen Marks & Lawrence Gostin,
eds., 2013).
Introduction 3
rights ignored the harsh social distress experienced by much of the world’s
population, whose lack of access to housing, food, health care, and other
material living conditions is no less detrimental than violations of rights such
as freedom of speech or religion. The human rights movement recognized
that it could not remain relevant while ignoring or downplaying social rights.7
3. Growing demands for health services spurred by technological developments
and (in many developed countries) an aging population in combination with
a neoliberal imperative to reduce public spending/privatize. Neoliberal eco-
nomic measures emanating from the Washington Consensus, the Interna-
tional Monetary Fund, and the World Bank have encouraged policies that
inadequately respond to the growing demands for health services. In some
countries, especially those in Latin America, the result was the forced adop-
tion of structural adjustments programs, involving reduction of government
services and privatization, which had a particularly detrimental impact on
health care.8
4. Also in the context of globalization, the Trade-Related Aspects of Intellec-
tual Property Rights agreement created global patents in drugs, pitting a
conflict between international trade law and access to medicines in poor
countries.9 The global campaign for universal access to antiretroviral thera-
pies was grounded in the idea of health as a human right.
5. The wave of health care reforms enacted since the middle of the 1980s – inter-
nal market reforms, managed competition reforms, and the rise of managed
care – has sought to control the cost, volume, and quality of health services
supplied.10 Patients facing denial or delays in care often turn to the courts,
invoking the right to health.
7 See Barak-Erez & Gross, supra note 3, at 5.

8 See Roseman & Gloppen, supra note 6, at 249; David Harvey, A Brief History of Neoliberalism
(2007). In the context of health, see Sue L. T. McGregor, Neoliberalism and Healthcare, 25 Int’l
J.Consumer Stud. 82 (2001); Dani Filc, The Health Business under Neo-Liberalism: The Israeli Case,
25 Critical Soc. Pol’y 180 (2005); Paul O’Connell, The Human Right to Health in an Age of Market
Hegemony, in Global Health and Human Rights: Legal and Philosophical Perspectives 190
(J. Harrington & M. Stuttaford, eds., 2010). See also Alicia Ely Yamin, Power, Suffering and Courts:
Reflections on Promoting Health Rights through Judicialization, in Litigating Health Rights, supra
note 5, at 333, 340; Jonathan Wolff, The Human Right to Health 94 (2012).
9 See Phillipe Cullet, Patents and Medicines: The Relationship between TRIPS and the Human Right
to Health, in Perspectives on Health and Human Rights 179 (S. Gruskin et al. eds., 2005); E ‘t
Hoen, TRIPS, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle
to Doha, in Perspectives on Health and Human Rights, id at 100; Wolff, supra note 8, at 100–108;
Lisa Forman & Jillian Clare Kohler, eds., Access to Medicines as a Human Right: Implications
for Pharmaceutical Industry Responsibility (2012). On the relevance of globalization generally,
see also Audrey R. Chapman & Salil D. Benegal, Globalization and the Right to Health, in The State
of Economic and Social Rights: A Global Overview 61 (Lance Minkler ed., 2013).
10 Colleen M. Flood, International Health Care Reform: A Legal, Economic and Political
Analysis 1–9 (2003); Tobin, supra note 2, at 351–370.
6. The process of democratization has entailed drafting new constitutions, which

often include an explicit justiciable right to health as part of the idea of
transformative constitutionalism – a factor apparent in South Africa and Latin
America.11
7. The rise of AIDS, which played a major role as advocates turned to human
rights in order to both tackle discrimination and guarantee access to medi-
cations. Many of the groundbreaking cases relate to access to antiretroviral
drugs.12
All of these factors contributed to a renewed interest in the right to health from
the 1990s and into the 2000s. This growing recognition of health as a human right
led to its articulation in myriad legal instruments, both international and domestic.
Health rights, both general and specific, now appear in numerous international
agreements,13 as well as domestic state constitutions and statutes.14 But for all these
formal declarations of human health at the global level, we continue to see extreme
inequalities – health care spending per capita for the top 5 percent of the world
population is nearly 4,500 times that of the lowest 20 percent; 2.5 million people
die annually from vaccine-preventable diseases;15 and close to 7 million children
younger than the age of five died in 2011 from malnutrition and mostly preventable
diseases.16 These sad but familiar statistics force us to take stock: What difference
has law, particularly the judicialization of health rights, made?
The Office of the U.N. High Commission for Human Rights reports that at least
115 constitutions around the world speak to the right to health or health care,17 but
they can have varying degrees of legal force. Eleanor Kinney reports that 68 percent
11 Yamin, supra note 8, at 339–340. On this role of social rights in the South African Constitution, see e.g.,
Aeyal Gross, The Constitution in Reconciliation and Transitional Justice: Lessons from South-Africa
and Israel 40 Stan. J. Int’l L. 47 (2004).
12 See Yamin, supra note 8, at 338–339, 348–350; Wolff, supra note 8, at 39–91; Paul Hunt, The Right to
Health: From the Margins to the Mainstream, 340 The Lancet 1878 (2002).
13 See e.g., International Covenant on Economic, Social and Cultural Rights, G.A. Res. 22001 (XXI),
U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc A/6316, 993 U.N.T.D. 3 (1996); CESCR General
Comment No. 14, The Right to the Highest Attainable Standard of Health, U.N. ESCOR, 22nd Sess.,
U.N. Doc. E/C.12/2000/4 (2000); Constitution of the World Health Organization, pmbl., 62 Stat. 6349,
14 U.N.T.S. 185. On the right to health in international law, see Brigit Toebes, The Right to Health
as a Human Right in International Law (1999); Tobin, supra note 2.
14 See e.g., Brazil Const. tit. II, ch. II, art.6 & tit.VIII, ch. II, art.196–197; South Africa Const. ch. II,
art. 27–28.On the right to health, see generally Andrew Clapham & Mary Robinson, eds., Realizing
the Right to Health (2009); Stephen P. Marks, The Emergence and Scope of the Human Right to
Health, in Advancing the Human Right to Health, supra note 6, at 3. See also, Courtney Jung,
Ran Hirschl and Evan Rosevear, Economic and Social Rights in National Constitutions (October 16,
2013) at 9, available at http://ssrn.com/abstract=2349680
15 Lawrence Gostin, The Unconscionable Health Gap: A Global Plan for Justice, 375 The Lancet 1504
(2010).
16 World Health Organization Fact Sheet No. 178, Children: Reducing Mortality (Sept. 2012), available
at http://www.who.int/mediacentre/factsheets/fs178/en/index.html.
17 Office of the U.N. Commissioner for Human Rights, Fact Sheet No. 31, The Right to Health: Fact
Sheet (June 2008), available at http://www.ohchr.org/Documents/Publications/Factsheet31.pdf.
Introduction 5
of countries have a provision addressing health or health care (including “statements

of aspiration” and “programmatic statements”) in their constitutions, with 40 percent
including a right to health care and 38 percent providing an affirmative duty for
the state to provide care. However, her research shows that those with the greatest
nominal commitment to health in their constitutions spend less than half as much
per capita on health care as do countries with no formal constitutional declarations
with respect to health.18 One could conclude from this that there is a distinct lack
of correlation between words on paper and actions on the ground. But that would
be too simplistic. As we discuss in the Conclusion, there is indeed some degree of
correlation between the constitutional recognition of a right to health and the exis-
tence of a weak (or nascent) public health care system. But this is likely attributable
to the fact that establishment of a constitutional right to health is part of so-called
second-generation rights, which appear mostly in newer constitutions of emerging
democracies. By contrast, countries with stronger public health care systems are
often established and richer democracies in which the health care system is part of
a welfare state, developed historically without explicit reference to health rights.
our chosen countries

Our story of the power of health rights involves sixteen countries, each represented by
a chapter. In selecting countries for study, we sought to capture a range of approaches
to the legal recognition of health rights:
1. Specific health care rights are articulated in the constitution;
2. Constitutional rights (e.g., the right to life) have or could be interpreted to
include rights to health care;
3. Health care rights are contained in domestic statutes and regulations; or
4. No legal rights to health care are recognized at all.
We classify our country chapters into three groups that, loosely understood, fall on
a spectrum from more to less private. Our typology is as follows:
1. Public/Tax-Financed – these are countries in which public financing, based
on taxation revenues, is a defining feature of the health care system. Our
representative countries here are the United Kingdom, New Zealand, Canada,
and Sweden.
2. Social Health Insurance/Managed Competition – these countries have uni-
versal coverage for health care and, like Public/Tax-Financed countries, redis-
tribute (at least to some extent) from the rich to the poor and from the healthy
to the sick. But in place of tax revenues, these systems are financed primar-
ily through mandatory contributions from employers and employees to either
18 Eleanor D. Kinney, The International Human Right to Health in Domestic Constitutional and Statu-
tory Law, in Law and Ethics, in Rationing Access to Care in a High-Cost Global Economy
171, 175 (Wendy K. Mariner & Paula Lobato de Faria, eds., 2008).
non-profit social health insurers or competing private not-for-profit or for-profit

insurers (managed competition). The representative countries we include in
this category are Colombia, Israel, the Netherlands, Hungary and Taiwan.
3. Mixed Private/Public19 – these are countries in which a private health system
fulfills a central role alongside a public system. In these countries health care
is not universal (e.g., the United States) or, alternatively, a universal public
scheme exists but is so impoverished that private finance/delivery plays a very
significant role (e.g., India). The representative countries we include in this
section are China, South Africa, Brazil, the United States, Nigeria, Venezuela,
and India.
The allocation of countries into these three categories is not cut-and-dried, and we
have made judgment calls on categorization in consultation with our contributors.
For example, in Hungary (which we classify as a Social Health Insurance country),
there is a significant role for extra payments (bribes, etc.) made to doctors and other
providers, which undoubtedly distorts the fair allocation of care. Nonetheless, we
consider as an overall judgment that Hungary is better situated in the middle of our
spectrum of public-private funding.
This framing puts heavy emphasis on the extent to which different mixes of
public and private financing interact with health care rights, yielding differing levels
of access and equity in health care. In developed countries, the maturation of public
health systems and concerns about growing health care costs result in tensions
over the inclusion of new technologies, drugs, and services – leading, it seems, to
ever-more frequent attempts to privatize existing systems of redistribution. In middle-
income and developing countries, issues focus more on developing universal health
care systems to ensure access to some minimum of care for all citizens, but also
can involve efforts on the part of some to access expensive new drugs and devices
at public expense. This text looks at the role that legal rights to health care can and
should play in these respective processes, and what is the broader impact on equity
in health.
The health care systems considered in the text cover a blend of public, private,
and public/private approaches to the funding and delivery of health care, with some
systems transitioning toward increased privatization. Beyond formal laws and court
actions, the realization of health care rights is impacted by the larger political,
economic, and social context of the state; thus two systems with similar rights pro-
visions but different social/political systems may – we hypothesize – show dramatic
differences in their realization of health rights.
A further note here on our emphasis on the public/private mix: we also examine
whether asserting “rights” can combat further privatization of health care and discuss
19 “Public” in this context includes systems that are partially funded by tax finance as well as those
partially funded by mandatory social health insurance or mandatory private insurance (the managed
competition model).
Introduction 7
whether health human rights are successful in this regard or not. For example, in
2008, an Egyptian court overturned a significant move on the part of the government
to privatize the delivery of health care, finding that the privatization of the health
care system would violate the government’s obligations to affirm/protect citizens’
right to health.20 This can be contrasted with Canada, where the Supreme Court in
Chaoulli, held that individuals have a legal right to buy private health insurance but
have yet to find any positive obligation on the part of governments to provide public
health care.21
sources of health care rights

Before going further, we need to provide a little more context on the sources of health
and health care rights, which include international law (treaties, conventions, etc.),
domestic states’ constitutions, and domestic statutes. Rights can also emerge from
long-term patterns of public policy, whereby rights, though not formally articulated,
are acknowledged to exist (de facto rights). In what follows we discuss the differential
impact of litigation of international rights versus the impact of rights contained in
domestic legislation (constitutions and statutes) and as a matter of public policy.
International Rights
According to Article 25.1 of the Universal Declaration on Human Rights,22
“[e]veryone has the right to a standard of living adequate for the health of him-
self and of his family, including food, clothing, housing and medical care and
necessary social services.” This concept was affirmed and expanded by Article 12.1 of
the International Covenant on Economic, Social and Cultural Rights (ICESCR),23
which recognizes “the right of everyone to the enjoyment of the highest attain-
able standard of physical and mental health.” Further, Article 12.2 of the ICESCR
strengthens the right by outlining the obligations of states to “achieve the full realiza-
tion of this right.”24 Of the states considered in later chapters, all except South Africa
and the United States are parties to this covenant.25 Following ICESCR, several
international instruments included provisions addressing the right to health, for
20 Nabieh Taha Muhammad al-Bahyetors. vs. The President of the Republic et ors., Case no. 21550/61st
judicial year/2008/State Counsel, Court of Administrative Justice (First circuit) (Egypt). (English
translation on file with authors).
21 Chaoulli v. Quebec (Attorney General), 2005 SCC 35 (Can.).
22 G.A. Res. 217A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948).
23 International Covenant on Economic, Social and Cultural Rights, supra note 13.
24 Id.
25 United Nations Treaty Collection, UN, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY
&mtdsg_no=IV-3&chapter=4&lang=en (last visited July 19, 2013). In 2009, Taiwan, while not a signa-
tory to the agreement, passed legislation giving domestic legal effect to the ICESCR.
example, the 1978 Declaration of Alma-Ata.26 This document is notable in its

emphasis on the availability of primary care services and on “unacceptable” health
disparities both within countries and between developed and developing countries.
In addition to these general declarations, many international instruments exist that
attempt to address a specific global health concern. For example, UN Millennium
Development Goal 5 and UN CEDAW Article 12(2) are focused on reducing mater-
nal mortality, whereas the Framework Convention on Tobacco Control focuses on
reducing tobacco usage. Another important document is the Doha Declaration, in
which the World Trade Organization responded to the high price of AIDS medica-
tion by clarifying that patent protections in the Trade-Related Aspects of Intellectual
Property Rights Agreement do not preclude member states from taking measures to
protect public health.27
Although many of these international instruments are several decades old, there
is a resurgence of interest in health and human rights. For example, in 2000, the
UN Committee on Economic, Social and Cultural Rights issued a comprehen-
sive document (“General Comment 14”), intended to elucidate the right to health,
putting an emphasis on issues of equity, equality, and accessibility28 and developing
the “AAAQ” model of availability, accessibility, acceptability, and quality.29 General
Comment 14 reiterates important principles developed in social economic rights
interpretation including the tripartite nature of state obligations, which includes the
obligations to respect, protect, and fulfill.30 The Comment also specifies that states
have “core obligations” under the ICESCR, notwithstanding the accompanying
principle of “progressive realization”31 – meaning states must ensure, at the very
least, minimum essential levels of each of the rights enunciated in the Covenant,
including essential primary health care.32 Finally, the Comment contains a pre-
sumption against retrogressive measures.33 In 2002, the UN Commission on Human
Rights appointed a Special Rapporteur on the right to health.34
26 Declaration of Alma-Ata, World Health Organization (Sept. 1978), available at http://www.who.

int/publications/almaata declaration en.pdf.
27 Doha Ministerial Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, art.
4 (Nov. 14, 2001), available at http://www.wto.org/english/thewto e/minist e/min01 e/mindecl trips
e.pdf.
28 General Comment No. 14, supra note 13.
29 For a discussion, see Aeyal Gross, The Right to Health in an Era of Privatization and Globalization,
in Barak-Erez & Gross, supra note 3, at 300–305; A. Clapham & S. Marks, International Human
Rights Lexicon 207 (2005).
30 General Comment No. 14, supra note 13, at para. 33; Tobin, supra note 2, at 185–197.
31 General Comment No. 14, supra note 13, at paras. 30, 43.
32 Id. at para. 43; Tobin, supra note 2, at 238–252; Wolff, supra note 8, at 9–12; Lisa Forman, What
Future for the Minimum Core? Contextualizing the Implications of South African Socioeconomic
Rights Jurisprudence for the International Human Right to Health, in Global Health and Human
Rights, supra note 8, at 66–80.
33 General Comment No. 14, supra note 13, at para. 32.
34 For a description on the role of the Rapporteur, see Paul Hunt, The UN Special Rapporteur on
the Right to Health: Key Objectives, Themes and Interventions, 7 Health & Hum. Rts. 1 (2003);
Introduction 9
But as inspiring and influential as these developments may be, the nature of
public international law can limit their impact. State sovereignty is invoked by a
number of nations as a type of universal trump card to the articulation of health
rights in international instruments, and thus an individual’s health rights are usually
determined by the domestic laws of their state and not by international conventions.
In domestic courts, internationally ratified agreements may be used to interpret
the meaning of domestic laws – in other words, the court will, if possible, assume
that the government intended its domestic laws to be interpreted in a way that
would comply with ratified international agreements. Thus, judicial interpretation
of international instruments can prove to be an important normative force. In this
regard, Andre den Exter notes in Chapter 7 that international human rights law
has played an important role in interpreting the Dutch constitution to include a
right to health care. Also, as Aeyal Gross notes in Chapter 6, Israeli courts have
held that domestic laws should be interpreted to the extent possible so as to be
compatible with international obligations. Venezuela offers another example, as its
domestic constitution provides that international human rights treaties become part
of domestic law immediately following ratification by the government.
Domestic Constitutional Rights

As previously noted, 68 percent of countries make some reference to health in their
constitutions. Health care rights may be expressly articulated, as, for example, in
Brazil or South Africa, or may be read in or inferred as part of other fundamental
rights; thus, for example, in India, the courts have interpreted the right to life as
including a right to health.
On the face of it, an obvious benefit of having health rights articulated in a state
constitution is that (usually) a constitution is the supreme law of the land with
which all other laws must comply. Further, constitutions transcend elected terms
of government and tend to be more difficult to change or repeal than ordinary
legislation is.
Statutory Rights
A third model arises where health rights do not exist in a domestic constitution
but are created by statute. An example here would be Israel, where health rights are
articulated in two statutes: the National Health Insurance Law and the Patient Rights
Law (although on occasion, similar to India, Israeli courts have grounded a right
to health in the constitutional right to life and body). While rights not enshrined
Paul Hunt & Sheldon Leader, Developing and Applying the Right to the Highest Attainable Standard
of Health: The Role of the UN Special Rapporteur (2002–2008), in Global Health and Human
Rights, supra note 8, at 28.
in a state constitution would seem to be more fragile than constitutional rights,

some note that the right to health now forms part of customary international law,
which serves to strengthen the right domestically.35 Another example is found in the
Netherlands where high-level state obligations to “promote public health” are found
in Article 22(1) of the constitution, but the formal articulation of specific entitlements
to care is found in the country’s 2006 Health Insurance Act. A statutory enactment
of health rights may allow for a more detailed enumeration of rights (e.g., a patient’s
bill of rights), as opposed to very abstract and open-ended guarantees common in
constitutions. Among other things, open-ended provisions may provide more latitude
for judicial interpretation, resulting in very regressive readings of health rights (e.g.,
Chaoulli).
De Facto Rights
Is a formal expression of a positive right to health (domestic or international) a
necessary component of such a right existing? It seems this is not necessarily so,
particularly in older, established welfare state systems where entitlements to health
care have been well entrenched as a result of public policy. Examples here would
include Sweden, Canada, New Zealand, and the United Kingdom. While one might
expect de facto health rights to be the most fragile of all, these four countries have
historically shown some of the strongest, pragmatic affirmation of these rights, based
both on the availability of care and the health of their populations.
But despite most of the countries in this category having relatively strong health
care systems, there are ongoing structural inequities, and new challenges are on the
horizon. In Canada, for example, aboriginal populations have less access to care
and a significantly lower standard of health than the non-aboriginal populace does.
Further, recent moves by the Canadian government will “delist” many refugee
claimants from insured medical care in Canada even in emergency situations.36
The government’s unilateral decision, made without consultation with the public,
health professionals, or provincial governments, shows the risk of not having a formal
declaration of a right and the resulting need for judicial oversight of government.37
Moreover, recent fiscal pressures associated with global economic downturns, an
aging population, new medical technologies of questionable benefit, and a culture
of individualism are pushing a privatization agenda that will test these systems and
their lack of articulated health care rights.
35 Clapham & Marks, supra note 29, at 197; E. D. Kinney & B. A. Clark, Provisions for Health and Health
Care in the Constitutions of the World, 37 Cornell Int’l L. J. 285 (2004).
36 Order Respecting the Interim Federal Health Program, 2012, SI/2012–26 (Can.).
37 Canadian Medical Association Bulletin, Continue Coverage for Refugees: CMA, 184 Can. Med. Ass’n
J. 1212 (2012); Government Information on Refugee Healthcare Changes is Misleading, May be Fatal,
Canadian Council for Refugees (May 3, 2012), http://ccrweb.ca/en/bulletin/12/05/03 (last visited
July 19, 2013); Mark Tyndall, Op-Ed., An Attack on Vulnerable Refugees, Ottawa Citizen, May 9,
2012, at A15.
Introduction 11
from here to there and the structure of each chapter

We turn now to explain the approach each country chapter follows and the themes
we sought to explore. First, however, a note on the process we followed to determine
the structure and themes. After conceptualizing the overall thesis of this book, we
met together over a number of months to discuss the range of countries to be covered
and possible contributors, employing a global network of scholars to identify the best
person for each of the country chapters. We then organized two in-person meetings
of our chosen contributors, first in Toronto and, eighteen months later, in Tel Aviv.
With our colleagues we workshopped multiple drafts of the country chapters and
developed a rich array of common themes and discussion points, which we discuss
later. With respect to the basic mechanics of each chapter, we asked each of our
authors that they clearly and coherently describe the dynamics of their respective
health care system, describe the role of health rights and/or health rights litigation,
and then analyze the dynamic between the two. To this end, and to better facilitate
comparison between countries, we asked each author to follow a common four-part
structure (described later in this chapter), addressing the issues we have identified
as being crucial to the question equity in health care and to the public/private
divide.
In the first section of each country chapter we describe the important features of
the health care system in the country: how it is financed; the presence/absence of a
national public health care/insurance system, and if such exists, what is its standing
vis-à-vis private health systems (and insurance); who has access to health care and
how health care services are allocated to different needs; how the most vulnerable
groups in society fare in terms of access to health care services and to health more
broadly; who, how, and at what level decisions are being made about which services
and goods are provided; and whether there is a prescribed “basket” of services and
goods provided.
In a bid to diagnose current or emerging equity gaps, the first section of each
chapter identifies the source(s) of the most significant access gaps. Those gaps
include, for example, extremely high informal payments to providers (Hungary),
very high levels of user charges (Israel), or the poor state of Aboriginal people and
the failure to include pharmaceuticals in the universal public plan (Canada). In
some countries, the threat of a significant equity gap lurks on the horizon, with
market-like reforms on the verge of implementation (England).
The theme of the “equity gap” is revisited throughout the other three sections of
each chapter: the extent to which litigation of health care rights is helping ameliorate
or address the gap (or not); how equity gaps map onto the public/private divide
within the system; and how the collection of funding in the system is regressive or
progressive – for example, a flat premium or fixed copayment is superficially fair but
adversely discriminates against those on lower incomes.
The second section of each chapter discusses the legal instruments (provisions
in international law, constitutions, statutes, etc.) that regulate access to health, and
more specifically the right to health care in the country; what the concept of the
right to health includes; whether the right to health is limited to health care or
encompasses broader determinants of health; and how the scope of health rights, if
such exist, have been defined/recognized by the courts and in state practice.
In the third section, each of our authors describes and analyzes litigation that
has taken place in their respective country concerning access to health care. Each
chapter addresses the following issues (as appropriate):
1. Litigation over access to services or goods that are not regularly pro-
vided/funded by the public health care system (and thus available only pri-
vately) but are asked for by patients (and their doctors).
2. Issues at the intersection of public and private, such as the legality and the
scope of private (or semi-private) insurance, the regulation of the interaction
between the systems, the provision of private services in public hospitals, and
so forth.
3. Issues pertaining to services and goods provided by the public health system
but financed partly through copayments that are charged out of pocket, thus
partially privatizing the financing of these services.
Finally, for the content of the fourth section of their respective chapters, we asked
each of our contributors to provide an overall assessment of the consequences of
litigation of health care rights– notably whether litigation is associated with greater
equity in health care access and health itself. In doing so we asked our authors
to be aware that in testing whether rights litigation is progressive or regressive,
several factors may contextualize their findings. In some countries, there is a huge
amount of litigation concerning these issues. In others, the volume of litigation is
significantly smaller, making it difficult to reach general conclusions about its impact
overall. There may also be significant temporal issues; what may seem regressive or
progressive at first may over time transpire not to be so. A further complicating factor
is that the terms “progressive” and “regressive” and “rich” and “poor” and even
“public” and “private” are laden with subjectivity. In any case, we have selected
each of the contributors for their specialized knowledge of both the legal and health
systems in their respective countries and rely on each of them to explain why in
their expert opinion, and in the context of their country’s political, legal and health
systems, a decision should be viewed as regressive or progressive.
Clearly we have asked a great deal of our authors and to frame the discussion, let
us identify two ways in which we have attempted to narrow the remit.
First, although discussions regarding the state of world health can be framed
either in terms of health outcomes (life expectancy, maternal mortality rates, etc.)
or in terms of access to care, we focus largely on the latter. There are many other
contributing factors to health (geographic, sociopolitical, etc.), and it is very difficult
to attribute specific cause and effect to each contributing factor. While our focus
on access to health care may implicate us in the “medicalization” of the right to
Introduction 13
health – that is, the frequent focus on health care rather than on social determinants
of health such as education, nutrition, and housing38 – we do this because access to
care is certainly a contributing factor to health outcomes. Moreover, issues of access
to care are important independent of health itself because of issues associated with
dignity and security. For example, access to end-of-life care contributes compara-
tively little to aggregate health outcomes, but most would prioritize this kind of care
as an important function of health systems. Further, from a pragmatic perspective,
access to health is more likely to be the subject of litigation; people bring court
actions to argue that they were denied care (a discrete identifiable benefit) that they
had a legal right to receive. Thus by focusing on access to care and the litigation
that surrounds it we are able to present a contained and manageable topic for anal-
ysis. This is not to negate the need, however, in future studies to examine litigation
relating to broader determinants of health.
Second, when prioritizing what to discuss, we have asked our authors to focus
where possible on how the structure of their system impacts access and how access
barriers can have especially detrimental effects for more vulnerable populations,
particularly the poor. Here we focus, in part, on how problems of access to care may
conspire with problems of access to justice. Where a vulnerable person is denied
care they may lack the financial ability to bring litigation to assert their rights. Thus
an important part of the context of health rights is the extent to which pro bono
cases are brought by rights groups and the extent to which class action suits help
offset the costs of litigation for the poor. A related issue is whether rulings for a given
plaintiff are generalized/enforced across the system – a problem highlighted in the
Canadian case of Eldridge discussed in Chapter 3.
themes and issues

A rich array of issues and themes arose through the process of workshopping draft
chapters. Our authors emphasize or discuss many of the following themes and issues
throughout this text – and in the Conclusion we return to these for a fuller analysis.
One important theme concerned the extent to which health rights litigation may
serve to undermine a fair allocation of resources within a health care system. This
theme is part of a broader problem of the limits of invoking individual rights in
systems of mutual dependence, rationing, and priority setting. Frequently, human
rights litigation is assumed to be progressive: the realization of rights will improve
the position of the most vulnerable in society. Law is seen as rectifying injustice that
results in the most vulnerable in society being allocated an unfair share of resources
38 On “medicalization” in this context, see Benjamin Mason Meier, The World Health Organization,
The Evolution of Human Rights, and the Failure to Achieve Health for All, in Global Health and
Human Rights, supra note 8, at 163. On social determinants, see Audrey R. Chapman, The Social
Determinants of Health, Health Equity and Human Rights, 12 Health & Hum. Rts. 1 (2010).
because of economic inequality, prejudice, discrimination, racism, homophobia,

sexism, and other factors. However, rights litigation that challenges allocation deci-
sions in health care can destabilize the allocation of scarce public resources to the
disadvantage of the more vulnerable in society. Thus, for example, litigation that
results in successful claims to access expensive new drug therapies could result in
limited public resources being spent on new drugs rather than preventative and
primary care of greater benefit to poorer patients and communities. Authors discuss
what it is that people are being given or seeking access to, including a discussion
of medicalization and how commercial interests may drive perceptions of “need.”
Litigation can be used to promote those interests rather than the interests of the poor.
Various contributors, for example, Christopher Newdick in the context of the
UK system and Mariana Prado in the context of the Brazilian health care system,
explore whether issue-specific litigation undermines the fairness of overall allocation
of health care resources. As others have pointed out, a focus on upholding individual
rights may camouflage the distributive nature of the decision and encourage disre-
gard for the needs of others. It may impede the larger social and political processes
through which difficult distributive choices are made. The challenge – especially
given the need for priority setting and rationing39 – is to articulate health rights in a
way that advances mutual social dependence while giving due consideration to the
health needs of individuals.
Along with this concern about distorting overall allocations within health budgets
is a more expansive concern: governments may not be spending enough on health
care even if one assumes that the redistribution within that limited resource cap is
fair. The chapter on Israel thus addresses this larger issue regarding the fairness of
the overall health budget and the failure, for the most part, of health rights litigation
to succeed in challenging the erosion of the public budget for health care. Authors
throughout the text consider to what extent health care rights litigation has been
or could be used in their jurisdiction to challenge the fairness of the total budget
allocated to health care, the risks of distributing limited resources away from those
in greatest need, and the need to hold government’s feet to the fire regarding a fair
determination of the public health care budget.
A second recurring theme, alluded to already, concerns the fact that the pro-
gressivity of human rights litigation cannot be readily disentangled from access to
justice issues. Litigation is often extremely expensive. Frequently those who are
most disadvantaged in the allocation of health and health care are not represented
in case law. For example, the Aboriginal peoples of Canada have, on average, far
worse health care outcomes than do others, yet to date they are poorly represented
in health rights litigation. Access-to-justice issues are thus a core theme in this vol-
ume, with contributors exploring the costs of litigation, the ability for NGOs and
other organizations to bring actions on the part of vulnerable populations, the ability
39 Gross, supra note 29, at 297–300; Clapham & Marks, supra note 29, at 207–208.
Introduction 15
to bring class actions, and other procedural impediments and facilitators for those
without means. However, unmitigated access to justice is not always a solution. For
example, Colombians can realize their constitutional rights to health care through
a low-cost mechanism, a “tutela” action. However, these decision makers, without
the discipline of a budget, largely approved every claim before them. As Everaldo
Lamprea writes in Chapter 5, this significantly challenged the stability of the public
health care system, although a subsequent court decision has attempted to address
this problem.
A third theme explored in this volume, as mentioned, concerns how law and judi-
cial decisions operate within a larger sociopolitical context. Each of the contributors
to this volume has been selected for their overall understanding of their country’s
relevant health care and legal systems, particularly the interface of public and pri-
vate, and how health care resources are allocated to the rich and the poor. Many
of these systems are very complex; for example, as den Exter explains, the Dutch
health care system is an amalgamation of public and private, where what looks like
private effectively functions like public as a result of layers of detailed regulation.
Each author, in addition to their expertise in health care systems, has also been
selected for their ability to analyze judgments and legal reasoning and thus high-
light the unique context of their country’s legal system and its impact on the health
care system. In some countries, for example Hungary, the legal system is refracted
through health care systems that are rife with corruption. To understand the impact
of human rights litigation in these countries, it is important to first understand the
impact of corruption on the allocation of medical resources. In other countries, the
health care system faces challenges from globalization. In India, for instance, along-
side a robust medical tourism industry that boasts the capacity to perform some of the
most advanced surgeries in the world, tuberculosis and diarrheal diseases together
continue to claim the lives of more than one million people each year.40
In understanding the real impact of law as part of the larger sociopolitical con-
text, it is also important to look past the point, for example, of a particular court
ruling to examine the decision’s impact over time. Thus, for example, a decision
that is on its face progressive, ensuring access to health care services of high impact
for vulnerable populations, may indeed have little real impact if the decision is
not enforced. Similarly, a decision that is prima facie regressive, perhaps denying
access to essential treatment, may mobilize political action and result in govern-
ment(s) moving to fund the treatment despite the court’s finding that they need
not do so. Consequently, where possible, contributors to this volume explore what
happens past the point of the judicial decision itself. An example here is the Cana-
dian case of Auton.41 Here the courts held that the government did not have a legal
40 Amit Sengupta & Samiran Nundy, Editorial, The Private Health Sector in India, Brit. Med. J. 1158
(2005).
41 Auton v. British Columbia (Att’y.Gen.), [2004] 3 S.C.R. 657 (Can.).
obligation to fund a particular treatment for autism. However, the publicity generated
by the case and the groundswell of support for the cause prompted provincial govern-
ments across Canada to eventually include this treatment within their public health
insurance schemes. In Israel, while the Court in the Israeli42 judgment rejected
the legal argument against the huge copayment imposed on cochlear implants, the
government did abolish it shortly thereafter.
A fourth theme explored concerns the impact of litigation of constitutional rights
versus the impact of rights contained in domestic legislation. Do entrenched con-
stitutional rights result in better and more frequent litigation that benefits the more
vulnerable? In exploring this question we find that the mode of enactment is endoge-
nous to other contextual factors. What emerges is that developing/emerging coun-
tries with progressive aspirations will entrench a constitutional right to health, while
for the time being having poor public health systems. At this point, we cannot
know whether a constitutional right to health care will have the desired impact of
accelerating gains in access and equity.
Finally, a theme that emerges from a review of the country case-studies is that
courts may not be the best venue if one hopes to improve equity or fairness, although
they may suffice for simply protecting existing standards of equity (with some notable
exceptions). Thus where there is an equitable system in place, the courts are more
likely to protect it from challenges that would see resources distributed away from the
most vulnerable. On the other hand, courts seem less capable of “producing” equity –
that is, insisting that resources are redistributed to those most in need. Related to this,
courts seem, overall, reluctant to interfere with the legislative/executive branches of
government. Courts are most willing to intervene where a claim can be construed as
a private law claim – a one-off dispute between private parties. From the perspective
of equity, this trend may be unfortunate as it favors those with the resources to litigate
their personal health rights claims. There are, however, some exceptions, where the
courts are willing to act more boldly (e.g., as Lisa Forman and Jerome Amir Singh
discuss, the Treatment Action Campaign case in South Africa,43 a collective and not
an individual petition, in which the Court interpreted the constitution to require the
government to expand programs addressing mother-to-child transmission of AIDS
in public clinics).
Our authors explore these five themes in the unique context of their country of
study. In the concluding chapter we reflect on their rich explorations and weave
together conclusions, some tentative and some stronger, to inform a better under-
standing of the powerful and complex marriage of human rights and health care
systems.
42 HCJ 2974/06 Israeli v. Committee for the Expansion of the Health Basket [2006] The Judicial Authority
Website (Isr.).
43 Minister of Health & Another v. Treatment Action Campaign & Others 2002 (5) SA 721 (CC) (S.
Afr.).

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Introduction: Marrying Human Rights and

Health Care Systems

Contexts for a Power to Improve Access and Equity

Colleen M. Flood and Aeyal Gross

Marriage is a matter of more worth

why we wrote this book

7 See Barak-Erez & Gross, supra note 3, at 5.

6. The process of democratization has entailed drafting new constitutions, which

of countries have a provision addressing health or health care (including “statements

our chosen countries

non-profit social health insurers or competing private not-for-profit or for-profit

sources of health care rights

example, the 1978 Declaration of Alma-Ata.26 This document is notable in its

26 Declaration of Alma-Ata, World Health Organization (Sept. 1978), available at http://www.who.

Domestic Constitutional Rights

in a state constitution would seem to be more fragile than constitutional rights,

from here to there and the structure of each chapter

themes and issues

because of economic inequality, prejudice, discrimination, racism, homophobia,

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