Academic journal article Dalhousie Law Journal

A Goal-Oriented Understanding of the Right to Health Care and Its Implications for Future Health Rights Litigation

Academic journal article Dalhousie Law Journal

A Goal-Oriented Understanding of the Right to Health Care and Its Implications for Future Health Rights Litigation

Article excerpt

Introduction

Current forms of Canadian health rights litigation must untie jurisprudential knots before achieving mainstream health rights advocates' progressive goals. Whether it is worth untying them in court depends on whether the intended ends are actually laudable and achievable. Litigation is not a tool for merely clearing up conceptual confusion. It is a technical procedure for achieving certain ends. When considering the future of health law in Canada, my desire is to identify the ends that such litigation should achieve. Part of this work is scrutiny of what a health right actually is and what it means to fulfill it. I believe that identifying the intended ends of appeals to health rights could also clear up the aforementioned conceptual confusion by demonstrating that purported health rights are constituted by their intended ends. The right to health care (RTHC) in particular is best understood as a set of goals that are often (perhaps mistakenly) placed under a common rights-based heading. One of my prospective contributions to the future of health law is an argument for this theory of the RTHC and explanation of its implications. My hope is that future health rights litigation will seek to fulfill these goals.

A full argument for this goal-oriented model of the RTHC should identify problems with existing models of the right and explain and motivate the competing model. It should also discuss how the goal-oriented model addresses other models' problem areas. To explore the implications of this model for future health rights litigation, one should then identify the content of the right, measures for how to fulfill the content, how and when health right litigation could fulfill deficiencies in those measures, and why health rights litigation should focus on fulfilling those deficiencies. This complete account is impossible in the space allotted.1

This paper is thus a preliminary effort at explaining what a goal-oriented RTHC might look like and why one may want to adopt the model. I begin by explaining deficiencies with existing views. I then outline arguments for my view, including a claim that it avoids some problems with existing models. As part of this discussion, I address lingering weaknesses with the model. Finally, I present the preliminary case for the claim that future health rights litigation should seek to promote the RTHC's constitutive goals.

I. Issues with existing models of the right to health care

There are two major models of the RTHC. Moral theories seek to identify reasons people have a moral RTHC (and explain why it should be fulfilled through the law). Legal theories explain why legal authority must be used to recognize a RTHC. Some look to the law and legal practice to explain the nature of the right.2 Both model types face a variety of challenges. While some permutations of each avoid the criticisms better than others, the non-goal-oriented variants of both types run into some persistent problems.

Some classic theoretical and practical challenges to the RTHC can be easily met, but others continue to plague most, if not all, of the dominant models of the RTHC. First, the argument from the nature of rights suggests that there can be no RTHC because no one owes a duty to fulfill that right.3 This challenge can met in ethics with relative ease. But there is reason to question whether a solution to the problem has legal implications. The traditional understanding of rights as claims defines a right as A's entitlement to X from B.4 A right must be held by an individual and entails specific correlative duties by others. X could be a good, a service, or a freedom. One could have a right to payment for services or to picnic on a public lawn. The service-recipient would then have a duty to give the rights-holder money. Everyone would have a (defeasible) duty not to stop the picnicker from laying down her blanket. The claim-right framework purportedly entails that there cannot be a moral right to health because one cannot identify particular individuals who could fulfill the right and thus cannot identify even candidate duty-bearers. …

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