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 world. The social economic rights regime, is expected by many to address questions of social-economic justice. In the context of the right to health, it has the potential to assist in expanding equal access to health (and health care) and redressing disadvantage. But this article considers the tension 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. The article considers claims of access to private or semi-private health programs have been made using human rights arguments with success (Canada) and with failure (Israel) and focuses on the role of rights discourse and litigation at this intersection of the public and the private, while considering the role rights play in affecting health policy and health systems at this intersection. By looking at the case law I consider how introducing human rights to the area of public health care may be used not to expand equality, but rather to re-articulate claims to private health care as human rights claims: in both Canada and Israel there have been constitutional attack on legislation which attempted to prevent a shift from accessibility based on medical need, to accessibility based on the ability to pay.
03 November 2013
The short 'Is There a Human Right to Private Health Care?' by Aeyal Gross in (2013) Journal of Law, Medicine & Ethics 138 comments that