Both developing and developed countries face an increasing mismatch between what patients expect to receive from healthcare and what the public healthcare systems can afford to provide. Where there has been a growing recognition of the entitlement to receive healthcare, the frustrated expectations with regards to the level of provision has led to lawsuits challenging the denial of funding for health treatments by public health systems.
This book analyses the impact of courts and litigation on the way health systems set priorities and make rationing decisions. In particular, it focuses on how the judicial protection of the right to healthcare can impact the institutionalization, functioning and centrality of Health Technology Assessment (HTA) for decisions about the funding of treatment. Based on the case study of three jurisdictions – Brazil, Colombia, and England – it shows that courts can be a key driver for the institutionalization of HTA. These case studies show the paradoxes of judicial control, which can promote accountability and impair it, demand administrative competence and undermine bureaucratic capacities. The case studies offer a nuanced and evidence-informed understanding of these paradoxes in the context of health care by showing how the judicial control of priority-setting decisions in health care can be used to require and control an explicit scheme for health technology assessment, but can also limit and circumvent it.
It will be essential for those researching Medical Law and Healthcare Policy, Human Rights Law, and Social Rights.
Table of Contents
2 Priority-Setting and the Right to Healthcare: Synergies and Tensions on the Path to Universal Health Coverage
3 Priority-Setting and Health Technology Assessment
4 Brazil – Right to Healthcare Litigation: The Problem and the Institutional Responses
5 Colombia – Demanding But Undermining Fair Priority-Setting Via Courts
6 England – From Wednesbury Unreasonableness to Accountability for Reasonableness
7 Conclusion – Institutionalizing, Controlling, Limiting and Circumventing HTA Via Courts
Daniel Wei Liang Wang is Associate Professor at Fundação Getúlio Vargas (FGV) School of Law. Before joining FGV, he was a Lecturer (Assistant Professor) in Health and Human Rights at Queen Mary University of London and a Law Fellow at the London School of Economics, where he taught Human Rights Law. Daniel holds a PhD in Law (LSE), an MSc in Philosophy and Public Policies (LSE), a Master in Law (University of São Paulo), a BA in Social Sciences (University of São Paulo) and a BA in Law (University of São Paulo). He was a member of the National Health Service (NHS) Central London Research Ethics Committee (2017-2019).
"This work offers a rare perspective of the interplay between the judiciary on one hand and institutions responsible for making decisions about healthcare investments, on the other. Studying real examples of priority setting institutions and of court rulings from Latin America and the UK, it offers valuable lessons for policy makers, legal experts and human rights advocates, demonstrating rather clearly that all decisions carry trade-offs and that in the strive to realise health as a human right, good intentions alone may result into perverse outcomes for the poorest and sickest amongst us."
Kalipso Chalkidou, Professor of Public Health at Imperial College London and founder of NICE International.
"A challenging dissection of the impact of courts on health care decision-making. Learned, well-researched and written in a clear style, this book’s close scrutiny of three jurisdictions leads it to ask some very hard questions about whether judges – even well-meaning ones – might not be doing more harm than good in this vital arena".
Conor Gearty, Professor of Human Rights Law in the London Sschool of Economics Law Department, UK.
"Resource limits in health care generate agonizing dilemmas for health care providers. They also create challenges for the idea that everyone has a right to health, and difficulties in designing institutions that do justice to individuals’ claims. In this book, Daniel Wang offers a clear-headed and empirically informed look at these problems and how they may be resolved. He stands apart in his ability to master and integrate theories of health care justice, legal theory and practice, and social science. The result is a landmark analysis of how to conceive of, and institutionalise, the right to health."
Alex Voorhoeve, Professor of Philosophy in the Department of Philosophy, Logic and Scientific Method at the London Sschool of Economics, UK