Is There a Human Right to Private Health Care?

See Hogerzeil H. V. Samson M. Casanovas Vidal J. , and Rahmani-Ocora L. , “Is Access to Essential Medicines as Part of the Fulfillment of the Right to Health Enforceable through the Courts?” The Lancet 368, no. 9532 (2006): 305–311; Gauri V. and Brinks D. M. , Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008); Yamin A. E. and Gloppen S. , Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge, MA: Harvard University Press, 2011); Flood C. and Gross A. , eds., The Right to Health at the Public/Private Divide: A Global Comparative Study (Cambridge University Press, forthcoming).

On the right to health at the international law level, see Tobin J. , The Right to Health in International Law (Oxford: Oxford University Press, 2012).

See Hunt P. , “The UN Special Rapporteur on the Right to Health: Key Objectives, Themes and Interventions,” Health and Human Rights 7, no. 1 (2003): 1–27; Hunt P. and Leader S. , “Developing and Applying the Right to the Highest Attainable Standard of Health: The Role of the UN Special Rapporteur (2002–2008),” in Harrington J. and Stuttaford M. , eds., Global Health and Human Rights: Legal and Philosophical Perspectives (New York: Routledge, 2010): At 28–61.

General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12), E/C12/2000/4, CESCR (August 11, 2000). These developments were accompanied by the proliferation of research on the topic as apparent in journals, research institutes and different publications addressing the link between health and human rights. See Gross A. , “The Right to Health in an Era of Privatization and Globalization: National and International Perspectives,” in Barak-Erez D. and Gross A. , eds., Exploring Social Rights: Between Theory and Practice (Oxford: Hart Publishing, 2007): At 289–339, 291.

International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (December 16, 1966).

See generally Barak-Erez and Gross , supra note 4.

See Ferraz Motta O. L. , “The Right to Health in the Courts of Brazil: Worsening Health Inequities?” Health and Human Rights 11, no. 2 (2009): 33–45; Prado M. , “Provision of Health Care Services and the Right to Health in Brazil: The Long, Winding and Uncertain Road to Equality,” in Flood and Gross , eds., supra note 1. On the right to health as potentially “skewing” public resources, see Easterly W. , Financial Times, Human Rights Are the Wrong Basis for Healthcare (October 12, 2009).

For the latter topic, see Gross , supra note 4, at 289–339, 331–336; O'Connell P. , “The Human Right to Health in an Age of Market Hegemony,” in Harrington and Stuttaford , eds., supra note 3, at 190–209, 203–205. See also Gold E. R. , “Patents and Human Rights: A Heterodox Analysis,” in this symposium issue.

Hoffman A. , “An Emerging and Endangered New Right to Health: Expanding Access through U.S. Health Reform,” in Flood and Gross , supra note 1.

See on “medicalization” in this context Meier B. M. , “The World Health Organization, the Evolution of Human Rights, and the Failure to Achieve Health for All,” in Harrington and Stuttaford , eds., supra note 3, at 163–189. On social determinants, see Chapman A. , “The Social Determinants of Health, Health Equity and Human Rights,” Health and Human Rights 12, no. 2 (2010): 17–35.

In the context of right to health litigation, see especially the literature cited in supra notes 1 and 7; see also Clapham A. and Marks S. , “Health,” in Human Rights Lexicon (Oxford: Oxford University Press, 2005): At 197–208.

The relationship between the concepts of “equality” and “equity” in this context is a complex one that goes beyond the scope of this article. Dahlgren and Whithead argue that “health inequalities count as inequities when they are avoidable unnecessary and unfair.” See Dahlgren G. and Whitehead M. , Policies and Strategies to Promote Social Equity in Health. Background Document to WHO – Strategy Paper for Europe (Stockholm: Institute of Future Studies, 1991), available at <http://www.framtidsstudier.se/wp-content/uploads/2011/01/20080109110739flmZ8UVQv2wQFShMRF6cuT.pdf> (last visited February 11, 2013). However, as Yamin notes, “There is no consensus as to what is avoidable, unnecessary, and unfair”: see Yamin A. E. , “Shades of Dignity: Exploring the Demands of Equality in Applying the Human Rights Frameworks to Health,” Health and Human Rights 11, no. 2 (2009): 1–18, at 9. For the purpose of the discussions here, I work under an understanding that both “equality” (understood as substantive equality) and equity share in the basic idea of health justice addressed in the text, which requires that access to health should be based on need and not on one's ability to pay for it. For a discussion of the complexities of the concept of equality in the context of health rights, see Yamin , id.

On this background, see McGregor S. , “Neoliberalism and Healthcare,” International Journal of Consumer Studies 25, no. 2 (2001): 82–89; Filc D. , “The Health Business under Neo-Liberalism: The Israeli Case,” Critical Social Policy 25, no. 2 (2005): 180–197.

This terms follows on a letter from Avner Pinchuk, The Association for Civil Rights in Israel, on behalf of Adva Center, Physicians for Human Rights-Israel and the Association for Civil Rights in Israel, “The Exclusion of Life Saving Medicines from the Sick Funds Additional Health Services,” to the Speaker of the Knesset and others (December 23, 2007).

For a discussion of how in the U.S. resort-to-rights discourse with its individualist bent may, in the context of public health, entail risks of co-opting the right to health to the detriment of sound public health policies, see Jacobson P. and Soliman S. , “Co-opting the Health and Human Rights Movement,” Journal of Law, Medicine & Ethics 30, no. 4 (2002): 705–715.

Flood C. , International Health Care Reform: A Legal, Economic and Political Analysis (London: Routledge, 2003): at 27.

Id., at 28.

Id.. See also Anand S. , “The Concern for Equity in Health,” in Ahmed S. Peter F. , and Sen A. , eds., Public Health, Ethics and Equity (Oxford: Oxford University Press, 2004): At 15–32, 16, discussing the intrinsic and instrumental value of health and its critical nature because it directly affects a person's well-being and is a prerequisite to her functioning as an agent.

Id. (Anand), at 17–18. See also Sen A. , “Why Health Equity,” in Ahmed S. Peter F. , and Sen A. , eds., Public Health, Ethics and Equity (Oxford: Oxford University Press, 2004): At 21–33.

As Anand notes, inequalities in health, nutrition and health care offend us much more than inequalities in clothes, furniture, motor cars or boats. Anand , supra note 18: 17.

See Flood , supra note 16, at 28.

The inelastic nature of the demand means that people will continue to buy health insurance and services even when very expensive, and the demand for services is relatively unresponsive to changes in price. See Flood , supra note 16, at 19.

See Flood , supra note 16, at 23–25.

See Daniels N. Kennedy B. , and Kawachi I. , “Health and Inequality, or, Why Justice Is Good for Our Health,” in Ahmed Peter , and Sen , eds., supra note 18, at 63–91.

See Flood , supra note 16, at 28.

Canada Health Act, R.S.C., c. C-6, s. 3 (1985). For background to the Canadian health system, see Flood C. , “Litigating Health Rights in Canada: A White Knight for Equity?” in Flood and Gross , supra note 1.

The National Health Insurance Law, 5754 – 1996, 1469 LSI 156 §1 (1994) (Isr.) (Hebrew). For background to the Israeli health system, see Gross A. , “The Right to Health in Israel Between Solidarity and Neo-Liberalism,” in Flood and Gross , supra note 1.

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35.

Jackman M. , “Misdiagnosis or Cure: Charter Review of the Health Care System,” in Flood C. , ed., Just Medicare: What's In, What's Out, How We Decide (Toronto: University of Toronto Press, 2006): At 58–79, 59.

See Chaoulli , supra note 28, at para 2.

See Chaoulli , supra note 28, at para 14; Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Charter of Human Rights and Freedoms, R.S.Q., c. C-12.

The case was decided by a 4–3 majority. All four majority judges held that the statute violated the Quebec Charter. Three of them determined that it also violated the Canadian Charter.

For a comprehensive look see Flood C. Roach K. , and Sossin L. , eds., Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005).

Flood C. , “Introduction,” in Flood , ed., supra note 29, at 5. See also Petter's Andrew description of Chaoulli as possibly implying that Canadians who can afford private health insurance will have access to better medical care than those who cannot. Petter A. , “Wealthcare: The Politics of the Charter Revisited,” in Flood Roach and Sossin , eds., supra note 33, at 116–138, 116. The decision was also criticized for lacking a serious factual basis which would justify the reasoning that allowing private health insurance will improve accessibility. See also page 118 of the same book; Flood C. Stabile M. , and Kontic S. , “Finding Health Policy ‘Arbitrary’: The Evidence on Waiting, Dying and Two-Tier Systems,” in Flood Roach , and Sossin , eds., supra note 33, at 296–320.

Flood C. Stabile M. , and Tuohy C. , “What's In and Out of Medicare? Who Decides?” in Flood , ed., supra note 29, at 15–41, 28. Similarly the dissenting judges in Chaoulli warned of use of the Charter by the wealthy to “roll back” benefits of a legislated scheme that helps the poor. See Chaoulli , supra note 28, at para. 274.

See Jackman , supra note 29, at 66. The Court in Chaoulli did express the view that the prohibition on private insurance will create an obstacle especially for people with average incomes, as the very wealthy can afford to pay for entirely private services. See Chaoulli, supra note 28, at para. 55. See also the concurring opinion at para. 106.

On such risks see Flood , International Health Care Reform, supra note 16, at 34.

Id. (Flood).

See Chaoulli , supra note 28, at para. 164.

Id., at para. 181.

Id., at para. 166.

See Russel P. , “Chaoulli: The Political versus the Legal Life of a Judicial Decision,” in Flood Roach and Sossin , eds., supra note 33, at 5–18, 6–9; Dickens B. , “The Chaoulli Judgment: Less Than Meets the Eye – or More,” in Flood Roach , and Sossin , eds., supra note 33, at 19–31, 25.

Flood C. and Haugan A. , “Is Canada Odd? A Comparison of European and Canadian Approaches to Choice and Regulation of the Public/Private Divide in Health Care,” Health Economics, Policy and Law 5, no. Special Issue 3 (2010): 319–341, 335–336.

See Flood and Hugan , supra note 43, at 321. See also Picard A. , “Who's Fighting for Private Health Insurance in Canada?” The Globe and Mail, September 25, 2012, available at <http://www.theglobeandmail.com/life/health-and-fitness/whos-fighting-for-private-health-insurance-in-canada/article4568340/> (last visited February 11, 2013).

See Jackman , supra note 29, at 58–59 and sources cited therein; Petter , supra note 34, at 117.

See Jackman , supra note 29, at 65.

See Chaoulli , supra note 28, at para. 6.

See General Comment 14, supra note 4, at 12(b).

See Petter , supra note 34, at 117–119.

Porter B. , “A Right to Health Care in Canada – Only If You Can Pay for It,” ESR Review 6, no. 4 (2005): 8–12, available at <http://www.communitylawcentre.org.za/ser/esr2005/2005nov_canada.php#canada> (last visited February 11, 2013).

Choudhry S. , “Worse Than Lochner?” in Flood Roach and Sossin , eds., supra note 33, at 75–100, 93–94.

In the Hebrew acronymic “Sharap”.

For a discussion, see Ben-Nun G. Berlovitz Y. , and Shani M. , The Health System in Israel, 2d ed. (Tel Aviv: Am Oved Publishing, 2010) (Hebrew): at 131–137; Shuval Y. and Hanson O. , Ha'Ikar HaBriut [Most Importantly, Health] (Jerusalem: Magnes, 2000) (Hebrew): at 307–314.

HCJ 4253/02 Kiryati et v the Attorney General [2009] Nevo Legal Database (by subscription) (Isr.).

See Kiryati , supra note 54, at para. 2.

Id., at para. 3.

Id., at para 34.

See Kiryati , supra note 54, at para. 36. Concurring Justice Naor expressed the opinion that primary legislation is not required in order to allow for PHS while concurring Justice Jubran chose to leave the answer open. Thus there is no majority opinion on this point.

See Kiryati , supra note 54, at para. 41.

See Kiryati , supra note 54, para. 48. Justice Berliner based her decision also on a few statutory provisions, including the prohibition on the use of state property for private use without the government's approval, the prohibition on the provision by a private health cooperation of medical services in a public health care organization; and the prohibition on the provision on health services by a physician in a public health care organization except for services given within his employment. See Kiryati , supra note 54, at paras. 26–27. A later petition questioned the legality of PHS in publicly funded hospitals which provide public services, but are operated by private companies and are not government hospitals in the same way the hospitals addressed in Kiryati were. The HCJ rejected the petition, basing its reasoning mostly on the laches doctrine, holding that the petition was submitted with significant delay, but also distinguishing the case from Kiryati based on the difference between the types of hospitals involved. Addressing the question of whether because of the nature of the rights involved the HCJ should consider the merits of the case notwithstanding the delay, the Court noted that even if the right to equal access to health care is to be recognized as derivative of the constitutional right to human dignity, then the right is at the periphery and not at the core of the constitutional right. HCJ 2114/12 The Association for Civil Rights in Israel vs. Government of Israel, The Judicial Authority Website [2012] (Isr.) (Hebrew).

See Kiryati , supra note 54, at para. 24.

Id., at para. 52.

Id., para. 57.

See supra notes 28–32 and accompanying text.

See Gross A. , “In Search of the Right to Health in Israeli Constitutional Law,” in Israeli Constitutional Law at a Crossroads, edited by Barak A. Barak-Erez D. , and Sapir G. (Oxford: Hart 2013, forthcoming).

See Horwitz M. , “Rights,” Harvard Civil Rights-Civil Liberties Law Review 23, no. 2 (1988): 393–406.

See Kiryati , supra note 54, at para. 42.

On the issue of co-payments, see Gross , supra note 27.

HCJ 2974/06 Israeli v Committee for the Expansion of the Health Basket [2006] The Judicial Authority Website (Isr.).

On supplementary insurance, see Shalev C. , Health, Law and Human Rights (Tel-Aviv: Ramot, 2003) (Hebrew): at 255–258, 262–263.

Ben-Nun Berlovitz , and Shani , supra note 53, at 256–261.

See letter from Pinchuk , supra note 14.

The National Health Insurance Law, 5754–1996, 1469 LSI 156 §10(b)(4) (1994) (Isr.) (Hebrew).

See letter from Judy Wasserman, Legal Advisor to the Knesset's Labor, Welfare and Health Committee, “The Prohibition on the Including of Life Saving and Life Prolonging Medicines in the Additional Health Services Plans,” to the Speaker of the Knesset and others (December 13, 2007) (Hebrew).

HCJ 73/08 Levy v. The Knesset, The Judicial Authority Website (Isr.) (Hebrew).

E-mail from Avner Pinchuk who represented the Association for Civil Rights in Israel in the proceedings, dated July 17, 2008 (Hebrew).

See Flood , supra note 16, at 274.

Evans R. , “Health Care Reform: Who's Selling the Market, and Why,” Journal of Public Health Medicine 19, no. 1 (1997): 45–49, at 47. See also Evans R. , “Going for the Gold: The Redistributive Agenda behind Market-Based Health Care Reform,” Journal of Health Politics, Policy and the Law 22, no. 2 (1997): 427–465.

See The Association for Civil Rights in Israel, supra note 60. For a discussion of the HCJ's reasoning in the case, see supra note 60.

See O'Connell , supra note 8, at 190–209.

See Horwitz , supra note 66. See also in this context Norman Daniels's argument that we may claim a right to health care only if it can be harvested from an acceptable general theory of distributive justice or from a more particular theory of justice for health and health care, that will tell us which kinds of right claims are legitimate. Daniels N. , Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge University Press, 2008): at 15.