Academic journal article Health Law Journal

The Right to Health Care

Academic journal article Health Law Journal

The Right to Health Care

Article excerpt

They have needs, and because they live within a welfare state, these needs confer entitlements-rights--to the resources of people like me. Their needs and their entitlements establish a silent relation between us. As we stand together in line at the post office, while they cash their pension cheques, some tiny portion of my income is transferred into their pockets through the numberless capillaries of the state. The mediated quality of our relationship seems necessary to both of us. They are dependent on the state, not upon me, and we are both glad of it... My responsibilities towards them are mediated through a vast division of labour.... When they can't go on, an ambulance will take them to the hospital, and when they die, a nurse will be there to listen to the ebbing of their breath. It is this solidarity among strangers, this transformation through the division of labour of needs into rights and rights into care that gives us whatever fragile basis we have for saying that we live in a moral community. (1)


In an atmosphere of heightened public concern over the erosion of the public health care system in Canada, establishing a right to health care has taken on an urgent quality for Canadian legal scholars and human rights activists. This contemporary public fervour has pushed Canadians into a philosophical battle over the right to health care that has been waged internationally for quite some time. (2) The existence of a human right to health care continues to be a topic of heated debate among academics despite the fact that such a right has been recognized in several international instruments, most notably the International Covenant on Economic, Social and Political Rights. (3) But a human right, even one supported by international law, is not a legal right--it is not justiciable, and thus cannot be used as a tool by Canadian citizens who want to be proactive in improving and maintaining the quality of their public health care. While an overview of the philosophical debate between libertarians and economic theo rists on one hand, and egalitarian theorists on the other, is an appropriate starting point for an attempt to locate a legal right to health care in Canada, it is Canadian health law jurisprudence that will ultimately furnish human rights activists with the tools they seek. Under the Canada Health Act, (4) the Canadian Federal Government has undertaken to provide Canadians with universal, free health care. The task for Canadian health care activists is to engage existing constitutional apparatus in the struggle to influence health care resource allocation decisions. Sections 7 and 15 of the Charter of Rights and Freedoms (5) appear to be promising constitutional tools available for use in enforcing positive, socio-economic rights to health care in Canada.

There is No "Right" to Health Care: Libertarian and Economic Theories

An overview of the libertarian approach to health care provides a good framework for understanding the kind of claim socio-economic rights, such as the right to health care, make on society in general and governments in particular. By accepting only "negative" rights as true rights and rejecting claims of "positive" rights, libertarians are able to make quick cognitive work of claims to health care. K. Selick explains the classical liberal understanding of positive and negative rights as follows:

Over the past four centuries, western liberal democracies have viewed rights primarily as protective mechanisms. A right is like an invisible wall keeping us safe from the interference of others. . . . The right to life, for example, simply meant the right not to have one's life taken away--the right not to be killed--by others. It did not mean the right to require others to give one the means of sustenance. (6)

Rights--that is, negative rights--require only non-interference from other people and the government. To say that positive rights exist implies a corresponding duty to actively support the right claimed. …

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