Recent years have seen an increase in the turn to rights discourse within the context of access to health and specifically health care. Developments took place at both the national and global levels, with a significant increase in right to health litigation around the world1 and developments at the international level, such as the appointment of a Special Rapporteur on the Right to Health and the adoption of a “General Comment” on the topic by the UN Committee on Economic, Social (...) and Cultural Rights. (shrink)

In recent years we have noticed an increase in the turn to rights analysis in litigation relating to access to health care. Examining litigation, we can notice a contradiction between on the one hand the ability of the right to health to reinforce privatization and commodification of health care, by rearticulating claims to private health care in terms of human rights, and on the other hand, its ability to reinforce and reinstate public values, especially that of equality, against the background (...) of privatization and commodification. While many hope that rights discourse will do the latter, and secure that access to health care should occur on the basis of need as opposed to ability to pay, it has actually been used to attempt to advance arguments that will allow access to private or semiprivate health insurance in ways that may exacerbate inequality. These types of arguments won ground in the Canadian Supreme Court, but were rejected by the Israeli Supreme Court. In order to avoid this co-optation of right to health, a notion of rights that incorporates the principles of substantive equality is required. Otherwise, one of the unintended consequences of inserting rights analysis into public health care may be that it will reinforce rather than challenge privatization in a way that may increase inequalities. (shrink)

In 2006, a WHO survey found evidence of a substantial increase in patient-led litigation against health authorities and funders over access to medicines around the world. New Zealanders have seldom litigated denials of access to health care. Part of the explanation lies in the fact that New Zealand has a legislated patients' "bill of rights", with enforcement through a complaints mechanism. Although the separate regime does not afford patients substantive legal protection in respect of complaints about lack of access to (...) care, this form of alternative, low-level resolution of health care disputes does condition disgruntled patients not to turn to the courts for legal redress in relation to their rights. But given the increasing need for prioritization arising from serious concern about the sustainability of the public health system, as well as a trend towards greater explicitness when it occurs, increased disappointment on behalf of patients and the public when care is denied or limited seems inevitable. This may well translate into increased patient-led litigation against health boards and funders. Part 1 provides an overview of the New Zealand health system, with a focus on the points at which resource allocation decisions are made, the identity of the decision-maker, and the methods by which priority-setting occurs. Part 1.1 describes inequalities between population groups in New Zealand, both in health outcomes and in access to health care. Part 2 describes the legal framework surrounding the health and disability sector, and discusses the lack of legislated rights to health and the limited right of access to health care in legislation, despite the existence of a legally enforceable Code of Health and Disability Services Consumers' Rights. (shrink)

Robert Post's work in constitutional theory is engaging in an exceptional way: it always forces one to rethink and reconsider the basic tenets of the field. In his article The Challenge of Globalization to American Public Law Scholarship, Post discusses American public law and human rights scholarship in the age of globalization. In this comment, I will make a few remarks on some of the points raised in the article.