Are Courts Promoting or Hindering Fair Priority-Setting in Health?

When the right to health care is enshrined in law, coupled with mechanisms like judicial accountability for challenging the denial of services, it can be an important tool for achieving Universal Health Coverage (UHC). Yet there are concerns that justiciable rights to health care can be an obstacle to fair and efficient priority-setting, which is also critical for achieving sustainable UHC. Indeed, courts can undermine priority-setting by adjudicating health treatment claims without regard to the opportunity costs and trade-offs involved in allocative decisions. To reduce this risk, courts must understand the difference between allocating scarce resources themselves and controlling the priority-setting decisions made by health systems.

Recognizing a right to health care in law

Many jurisdictions recognize legally enforceable entitlements to receive health care, either under their constitution or statutory law or through the direct application of international treaties in domestic law. Even countries that do not expressly use the term “right to health” may nonetheless recognize the right to receive health care through judicial interpretation of other human rights (e.g., the right to life) or legal mandates requiring governments to provide health coverage to a population.

This growing recognition of legal rights to health care occurs in a context of rising health care costs and expectations, which health systems struggle to keep up with. This makes judicial claims challenging the denial of funding for health treatments (in particular, new technologies) increasingly common both in low- and middle-income countries (Brazil, Colombia, India, South Africa, Thailand) and in high-income countries (Canada, Germany, Netherlands, Switzerland, and the United Kingdom).

As one of the authors of this post argues elsewhere, the right to health care and priority-setting do not necessarily conflict. First, the right to health (as interpreted by the UN Committee on Economic, Social, and Cultural Rights, and by most scholars) does not imply an absolute right to receive care regardless of the costs, and it is not contrary to cost-effectiveness analysis and budget considerations. Second, there is growing consensus that priorities should be set using a wide range of substantive ethical principles with which the idea of rights is compatible.

When adjudication becomes resource allocation

In practice, however, courts often interpret the right to health care as barring health systems from explicitly considering cost-effectiveness and budget impact when setting priorities. In Brazil, the number of judicial claims for health care rose 130 percent from 2008–2017. The federal government alone spends over R$1.3 billion/year (about US$350 million) to comply with judicial decisions on health care, mostly on drugs that were not included in the official coverage lists. This is more than the entire annual budget for HIV treatment, one of the most successful health policies in Brazil. All this is unsurprising given that the Brazilian Federal Supreme Court has refused several times to overturn its precedent from the 1990s that affirms:

Between protecting the inviolability of the right to life, an inalienable Constitutional fundamental right, or a financial and secondary interest of the State, I believe. . . ethical and legal reasons leave the judge with only one possible option: unwavering respect for life.

In Colombia, the 1751/2015 Act brought significant changes to the national health system, including a new scheme for selecting drugs for public funding. The original draft bill proposed a “negative” list of treatments that would not be provided if they lacked evidence of effectiveness, safety, and efficacy. It also proposed a “positive” list defining the treatments that would be covered. The Colombian Constitutional Court declared the positive list unconstitutional because it breached the right to health. In practice, this rules out all criteria that were not considered in the creation of the negative list, such as cost-effectiveness, budget impact, and opportunity costs. The Colombian Constitutional Court also declared that “[the health system´s] financial sustainability cannot justify the denial of efficient and timely provision of all the services owed to any service user.” 

In Germany, the Constitutional Court found in the Nikolaus case that the constitutional right to life and physical integrity means that funding for treatment cannot be withheld when a patient suffers from a life-threatening illness, there is no available alternative treatment, and the prospect of curing or improving the condition is not entirely remote. The decision created a precedent that makes it possible for claimants to access through litigation treatments that are not regularly and universally funded (including experimental treatments), as “it implies that any cost is acceptable to extend a single life.”

The judiciaries in Brazil, Colombia, and Germany apply what Gopal Sreenivasan would call a “reverse-engineered approach.” Instead of applying priority-setting principles and processes to the existing budget to determine service coverage, courts are interpreting the right to health in order to decide which services will be covered, and payers must then adapt their budgets and processes to guarantee provision. This form of resource allocation ignores financial sustainability and opportunity costs in health spending and is likely to increase health inequalities and inefficiency. Resources are allocated to individuals who pursue a legal challenge, disregarding the needs of those who could have benefited from an alternative use of resources and ignoring policy alternatives where the same amount of money could have had greater impact.

Is there a right role for courts?

This does not mean courts should be completely deferential to health systems´ priority-setting decisions. The choice is not simply between courts making allocative decisions themselves or accepting those of health authorities without demur. A more constructive interaction could occur if courts accept that there are trade-offs and opportunity costs in health care spending decisions, and that they are not in a good position to make allocative decisions. Courts could then demand explicit priority-setting, check on the fairness of the decision-making process, and scrutinize the reasons behind allocative choices that determine winners and losers.

An example of how this could work in practice is the Soobramoney case in South Africa. The Constitutional Court, instead of ordering the provision of the dialysis needed by the patient, analysed the reasonableness of the health system´s policy for allocating dialysis machines (to check, for instance, if it was not discriminatory) and if the policy was fairly and rationally applied in that particular case.

In England, courts accept that there are financial and distributive issues facing policymakers and have made it clear that it is not their job to allocate resources. However, rationing decisions have been overturned by courts because authorities could not provide clear and rational reasons for their decisions, insufficient weight was given to contrary evidence and opinion, relevant information was not disclosed, local decision-makers did not give reasons for departing from national guidelines, exceptional circumstances were not considered, and stakeholders were not sufficiently engaged. Over time, judicial review has helped to shape the way priorities are set at the NHS. The standards and requirements established by courts have been incorporated into the decision-making processes by policymakers aware that courts will demand priority-setting to be evidence-informed, fair, and transparent.

How litigation for health care affects priority-setting depends on whether courts see their role as protecting the needs of right-holders against priority-setting decisions or, alternatively, as engaging with policymakers and scrutinizing their decisions to demand transparency, fairness, and evidence. This is likely to determine if the judicial protection of health rights promotes or hinders fair and efficient priority-setting and, ultimately, progression towards fair and financially sustainable UHC.

Daniel Wang is a Lecturer in Health and Human Rights at Queen Mary University of London and an Associate Professor at Fundação Getulio Vargas (FGV), São Paulo - Brazil. Yot Teerawattananon is the Founder of Health Intervention and Technology Assessment Program (HITAP), Ministry of Public Health, Thailand.