Courts are increasingly obliged to adjudicate upon challenges to allocative decisions in healthcare, but their involvement continues to be regarded with unease, imperilling the legitimacy of the judicial role in this context. A central reason for this is that judges are perceived to lack sufficient expertise to determine allocative questions. This article critically appraises the claim of lack of judicial expertise through an examination of the various components of a limit-setting decision. It is argued that the inexpertise argument is weak (...) when compared with other rationales for judicial restraint, such as the procedural unsuitability and lack of constitutional competence of courts. (shrink)
The vision of global health with justice which Larry Gostin articulates in his book Global Health Law envisages a switch to ‘upstream’ priority-setting for expenditure on health, with a focus upon social determinants and a goal of redressing health inequalities. This article explores what is meant by this proposal and offers a critical evaluation of it. It is argued that difficulties arise in respect of the ethical and evidential bases for such an approach to the setting of priorities, while significant (...) challenges may also arise in the necessary modification of structures of governance. (shrink)
This paper offers a brief comment on Jennings’ preceding paper, focusing on the capacity of a republican approach to public health ethics to facilitate reconceptualization of the right to health in situations of limited resources through a relational reading.