Stretching the limits of "rights talk": securing health care entitlements for children

Health care rights by their very nature have to be considered not only in a traditional legal context structured around the ideas of human autonomy but in a new analytical framework based on the notion of human interdependence. "A healthy life depends upon [social] interdependence: the quality of air, water, and sanitation which the [state] maintains for the public good; the quality of one's caring relationships, which are highly correlated to health; [as well as] the quality of health care and support furnished officially by medical institutions and provided informally by family, friends, [and the community]."     

Condliff v North Staffordshire Primary Care Trust: can human rights redress inequities in United Kingdom and Australian cost-containment-driven health care reforms?

A recent case from the English Court of Appeal (R (on the application of Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910, concerning denial by a regional health care rationing committee of laparoscopic gastric bypass surgery for morbid obesity) demonstrates the problems of attempting to rely post hoc on human rights protections to ameliorate inequities in health care reforms that emphasise institutional budgets rather than universal access. This column analyses the complexities of such an approach in relation to recent policy debates and legislative reform of the health systems in the United Kingdom and Australia. Enforceable human rights, such as those available in the United Kingdom to the patient Tom Condliff, appear insufficient to adequately redress issues of inequity promoted by such "reforms". Equity may fare even worse under Australian cost-containment health care reforms, given the absence of relevant enforceable human rights in that jurisdiction.     

Supervising junior doctors and "on-call" responsibilities: Brus v Australian Capital Territory; Greater Southern Area Health Service v Angus

The recent decisions of Brus v Australian Capital Territory [2007] ACTSC 83 and Greater Southern Area Health Service v Angus [2007] NSWSC 1211 highlight different aspects of the difficulties associated with supervision of junior doctors in the present public-funded Australian public hospital system. Their facts reveal how difficult it is for senior staff to achieve the fine balance required to assist trainees by according adequate experience and responsibility on the one hand, and to ensure patient safety, on the other. In addition, these cases highlight problems with the supervision process that are likely to be exacerbated in a privatised health care setting where senior staff may have less inclination to supervise struggling juniors unless adequately remunerated for such teaching, an issue of considerable controversy given the focus on profit of those institutions.     

Beyond "safe and effective": the role of the federal government in supporting and disseminating comparative-effectiveness research

Over the past century, medical advancements have resulted in tremendous health gains for Americans. Although the federal government has played a prominent role in ensuring that new treatments are safe and effective, questions about which medical treatments work best under which circumstances have largely remained unanswered. Thus, the federal government's recent major investments in comparative-effectiveness research have potential to play a significant role in helping both patients and health care providers navigate the vast array of available treatment options, as well as in improving the quality, efficiency, and delivery of health care system-wide. Yet, the controversial nature of the government's foray into comparative-effectiveness research also suggests that the path toward realizing these goals may be treacherous. This Article describes the rationales for federal support of comparative-effectiveness research and potential models for that involvement, analyzes the federal government's recent investments in the research, and concludes with predictions about the probable outcomes of these investments. While increased federal support for comparative-effectiveness research is unlikely to achieve all of the benefits anticipated by its supporters, it is a crucial step toward ensuring that Americans are able to take full advantage of the benefits of medical innovation     

Explaining health care system change: problem pressure and the emergence of "hybrid" health care systems

In this article, we will further the explanation of the state's changing role in health care systems belonging to the Organisation for Economic Cooperation and Development (OECD). We build on our analysis of twenty-three OECD countries, which reveals broad trends regarding governments' role in financing, service provision, and regulation. In particular, we identified increasing similarities between the three system types we delineate as National Health Service (NHS), social health insurance, and private health insurance systems. We argue that the specific health care system type is an essential contributor to these changes. We highlight that health care systems tend to feature specific, type-related deficiencies, which cannot be solved by routine mechanisms. As a consequence, non-system-specific elements and innovative policies are implemented, which leads to the emergence of "hybrid" systems and indicates a trend toward convergence, or increasing similarities. We elaborate this hypothesis in two steps. First, we describe system-specific deficits of each health care system type and provide an overview of major adaptive responses to these deficits. The adaptive responses can be considered as non-system-specific interventions that broaden the portfolio of regulatory policies. Second, we examine diagnosis-related groups (DRGs) as a common approach for financing hospitals efficiently, which are nevertheless shaped by type-specific deficiencies and reform requirements. In the United States' private insurance system, DRGs are mainly used as a means of hierarchical cost control, while their implementation in the English NHS system is to increase productivity of hospital services. In the German social health insurance system, DRGs support competition as a means to control self-regulated providers. Thus, DRGs contribute to the hybridization of health care systems because they tend to strengthen coordination mechanisms that were less developed in the existing health care systems.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

Using law to fight a silent epidemic: the role of health literacy in health care access, quality, & cost

The dominant rhetoric in the health care policy debate about cost has assumed an inherent tension between access and quality on the one hand, and cost effectiveness on the other; but an emerging discourse has challenged this narrative by presenting a more nuanced relationship between access, quality, and cost. This is reflected in the discourse surrounding health literacy, which is viewed as an important tool for achieving all three goals. Health literacy refers to one's ability to obtain, understand and use health information to make appropriate health decisions. Research shows that improving patients' health literacy can help overcome access barriers and empower patients to be better health care partners, which should lead to better health outcomes. Promoting health literacy can also reduce expenditures for unnecessary or inappropriate treatment. This explains why, as a policy matter, improving health literacy is an objective that has been embraced by almost every sector of the health care system. As a legal matter, however, the role of health literacy in ensuring quality and access is not as prominent. Although the health literacy movement is relatively young, it has roots in longstanding bioethical principles of patient autonomy, beneficence, and justice as well as the corresponding legal principles of informed consent, the right to quality care, and antidiscrimination. Assumptions and concerns about health literacy seem to do important, yet subtle work in these legal doctrines--influencing conclusions about patient understanding in informed consent cases, animating decisions about patient responsibility in malpractice cases, and underlying regulatory guidance concerning the quality of language assistance services that are necessary for meaningful access to care. Nonetheless, health literacy is not explicitly treated as a legally relevant factor in these doctrines. Moreover, there is no coherent legal framework for incorporating health literacy research that challenges traditional assumptions about patient comprehension and decision-making, and that emphasizes the need for providers to improve communication and take affirmative steps to assess patient understanding. The absence of a clear and robust consideration of health literacy in these doctrines undermines core access and quality aims, and it means that such laws are of limited efficacy in promoting health literacy. Returning to the theme that the health literacy problem reflects a complementary view of access, quality and cost, it is likely that the cost implications of this problem (and not concerns about quality and access) will motivate the kind of health literacy reform that may ultimately strengthen existing quality and access standards. One recent example of this can be seen in reforms linked to government, insurer and provider attempts to reduce costly medication errors.     

The conflict between the ethics of th individual and the ethics governing public health: practical sustainability of health care in jeopardy?

The "health rights movement" has reconstructed the clinical relationship between health care workers and patients by simultaneously demanding more from traditional medical care and challenging the perceived power differential between doctors and patients by rejecting the paternalistic medical model in favour of an individual patients' rights model. However, the growth in individual expectations of a right to health care creates a potential conflict with the ethics that prioritise public health and guide the rationing of its limited financial and human capital resources. This, in turn, creates a practical dilemma which requires public health institutions to become service orientated while sacrificing their integral role in training and educating the medical workforce and potentially compromising the practical sustainable delivery of public health in Australia. However, the law can play a role in resolving this conflict through legislation, regulations, codes, administrative law and common law in an effort to ensure the quality and future sustainability of public health in Australia.     

Medical devices; patient examination and surgeons' gloves; adulteration--FDA. Final rule

The Food and Drug Administration (FDA) is issuing a final rule to: (1) Define adulteration for patient examination and surgeons' gloves; and (2) establish the sample plans and test method the agency will use to determine if these gloves are adulterated as defined by the rule. With the prevalence of human immunodeficiency virus (HIV) infection and the risk of clinical transmission of other infections, the importance of the quality of an effective barrier to the transmission of infection in health care settings is crucial. The public health will benefit through improved quality control of these protective barriers.     

"Interdependence": The Reality,the Concept,and the Policy

During the entire postwar period, the term "interdependence" has figured repeatedly in statements by American governmental figures and in the writings of bourgeois political scientists. In the past two or three years, it has acquired a new ring. Whereas previously American expressions regarding "interdependence" applied to relationships within the framework of NATO, today they have to do with a considerably broader sphere of foreign policy relationships of the United States, including those involving the entire capitalist world and the developing countries. In a number of cases, American writers working on the "interdependence" problem have also included certain aspects of the relation between capitalist and socialist states. They undertake to analyze, from the standpoint of bourgeois political science, various aspects of "interdependence" — economic, physical-geographical (deriving from mankind's ever more intensive joint utilization of the atmosphere, the waters and floor of the world ocean, near outer space, solar and subsurface energy, etc.), military-political (having to do with the threat of destruction of world civilization should a nuclear war occur), cultural, and so on.     

Medicalization and social justice

Most social justice critiques of medical care focus upon the allocation of extant, but scarce, resources. In contrast to that focus, this article explores the preallocative arena of factors which shape the supply and availability of medical care. We identify four such factors: (1)medicalization — the tendency to regard as biologically caused various human problems which were in earlier eras ignored or attributed to other causes; (2)social inclusion — the bringing of economically deprived and socially marginal groups into participation in the medical care system; (3)biomedical transcendence — the elevation of biomedically derived concepts of human function into a social and personal world view; and (4)health absolutism — the ideology which holds individuals accountable for their own health and which, contrary to the thrust of the other factors, deemphasizes access and social equity for professionally provided medical care. While these forces all enhance the place of health as a social value, it is by no means certain that they will lead to a society which is more medically just. The article concludes with an appeal for critical analysis of the processes which shape both the medical care system and the broad social concern with medical care.     

Presbyterian Hospital of Dallas v. Harris: a dubious consequence of piecemeal health care legislation

For almost forty years, legislators have advocated comprehensive measures designed to assure Americans quality health care. Instead of implementing an integrated health care plan, Congress has intermittently enacted statutes which address specific health care delivery problems. At times the judiciary has stretched the ambit of existing health legislation in response to particular plaintiffs' urgent claims. This Case Comment examines the dilemma of piecemeal legislation and judicial policymaking as exemplified by Presbyterian Hospital of Dallas v. Harris, a Fifth Circuit Court of Appeals health care financing decision whose outcome Congress has flatly rejected.     

A rejoinder to Vaughn and Smith's “Practicing penal harm medicine in the United States: Prisoners' voices from jail”

Correctional health care has improved tremendously over the past 25 years. This rejoinder is a response to an article published in Justice Quarterly by Michael Vaughn and Linda Smith, in which they assert that the quality of correctional health care is suspect in correctional settings, and that an examination of one jail's problems with health care delivery revealed a “penal harm medicine” movement. We call into question such an assertion, claim that the penal harm medicine hypothesis cannot be proven by the data presented by Vaughn and Smith, and state that many of their conclusions are tenuous and harmful to correctional health professionals. We offer an analysis of their claims and suggest a more balanced view of correctional health care.     

Psychological models of mental disorder, human rights, and compulsory mental health care in the community

Recent amendments to the 1983 Mental Health Act in the UK (Mental Health Act 2007) include the controversial provision for: “supervised treatment in the community for suitable patients following an initial period of detention and treatment in hospital”. This provision is widespread, and more formal, in other English-speaking jurisdictions. Reviews of the international literature, human rights considerations and the perspective of psychological approaches to mental health care suggest that proposed ‘supervised community treatment orders’ are valuable, lawful, and compatible with the European Convention on Human Rights if certain specific conditions are met. Provisions for ‘supervised community treatment orders’ in the UK should be supported, but with the provisos that: the powers of the Mental Health Act are limited as in Scotland, to persons whose “ability to make decisions about the provision of [care] is significantly impaired”, that each order is time-limited and subject to review by a properly constituted Tribunal, and that the use of such orders should represent a benefit to people in terms of more appropriate treatment, or be a least restrictive alternative, or better preserve the person's private and family life.     

The Impact Imprisonment has on Women's Health and Health Care from the Perspective of Female Inmates in Kansas

This multimethod study, conducted at the Topeka Correctional Facility during the summers of 2001, 2002, and 2003, investigated the impact of imprisonment on women's health and health care. The researcher hypothesized that 3 independent constructs—(a) extended strain, (b) level of health care received either before or during incarceration, and (c) detrimental social structural influences—could predict the health status of female inmates prior to and during incarceration. Multiple regression analyses conducted on 1 survey sample of 120 inmates revealed that only health care prior to incarceration and extended strain contributed significantly to explaining the inmates' self-perceived health status prior to and during incarceration. When life history interviews with 22 inmates were examined to determine inmates' perceptions of their health status and the health care they had received, prior to and during their imprisonment, qualitative results revealed inmates expressed dissatisfaction with the quality of health care received in prison, as well as the manner in which it was administered.     

Waiting for Godot: wishes and worries in managed care

Managed care has done a better job at reducing expenditure growth than it has in improving quality. Although reduced expenditure growth is not appreciated by many, it has real benefits. For the majority of Americans who are privately insured, it results in greater disposable income for goods and services other than health care (although the illusion of employer-paid health insurance obscures this reality for many). For Medicaid programs, slower growth of expenditures facilitates efforts at expanding coverage. For low-income workers, slower expenditure growth results in larger numbers of people retaining insurance coverage than would have been the case if premiums rose more quickly. While there are some victories to which managed care organizations can point, we cannot credibly argue that overall levels of quality and health outcomes are improving as the health care system is massively disrupted by changes in health care finance and delivery. The disruptions create real hardships for some physicians and other health care workers, and worries for many consumers. These worries fuel the managed care backlash. The danger is that politicians will respond to these worries with policies that inhibit the development of high-quality delivery systems. The opportunity is for relatively modest public policy changes--external review organizations, better public-sector purchasing capabilities, public investment in producing and publicizing information on health plan and medical group performance, and establishment of a public ombudsperson--to respond to consumer worries and lead to improvements in health care quality and outcomes. Finally, I would be remiss without a reminder that the single most effective action politicians could take to improve health care quality and outcomes would be to change the rules of health care financing to assure that all Americans are covered by managed care. Even with all of its inadequacies, managed care is much superior to the patchwork care available to the 43 million Americans who are uninsured. The managed care backlash is concerned with protecting patients who are insured (and their providers). Far more valuable would be to protect those without insurance. Sadly, no politician has yet figured out how to do this. Still waiting.     

Physician self referral arrangements: legitimate business or unethical "entrepreneurialism"

An emerging legal and ethical controversy in the health care industry centers on physician investment in health care facilities to which they make patient referrals. This Article analyzes the policy debate surrounding these physician self referral arrangements as well as the various responses to such arrangements. The Article asserts that an effective legal or ethical response to self referral arrangements must acknowledge and balance both the possible pro-competitive effects of such arrangements and the inherent potential for abuses in this type of business practice. From this perspective, the most effective form of regulation consists of extensive structural guidelines which focus on the physician's referral behavior and limit restrictions on investment procedures. Such an approach would minimize referral abuses and conflict of interest concerns but promote business and competitive freedom.     

Coroners' autopsies: quality concerns in the United Kingdom

Safety in health care has increasingly become a key focus of health care providers. Data on "patient outcomes" and evidence-based clinical decision-making have led to real changes in health care policy and care provision. Specialist groups such as the National Patient Safety Agency which operates the National Confidential Enquiry into Patient Outcome and Death (NCEPOD) in the United Kingdom are reliant on good information in order to identify factors that lead to poor patient care. In a recent study the NCEPOD reviewed the quality of coroners' autopsy reports on which they rely for much of their core data. The study found that just over half of the reports (52%) were considered satisfactory by the reviewers, 19% were good and 4% were excellent. However, over a quarter of autopsies were marked as poor or of an unacceptable standard. While analysing the factors associated with poor-quality autopsies, comments and recommendations were made with regard to the processes of death investigation and the degree to which the coroner's death investigation meets the needs of health care services.     

The Israeli Model for Managing The National List of Health Services in an Era of Limited Resources

In order to attain financial stability, equality, and quality of care, Israel placed its basic health insurance system under strict government regulation in the National Health Insurance Act (NHIA) of 1994. The act creates the National List of Health Services (NLHS), which outlines the minimal health services (including drugs and medical devices) that the four pre–exiting Sick Funds must supply to their members free of charge or for a relatively small defined co–payment
This article analyzes the mechanisms that update the NLHS to ensure the quality of health services provided to all citizens with respect to the constant developments in health technologies both for medical procedures and diagnosis, and for drugs.
The article's main conclusion is that Israel offers a unique model for explicit rationing. The process of updating the list of services leads to clear decision making at a national level, one which offers new technologies to all citizens by public funding each year within the limits of an allocated and defined budget. However, the Israeli model is far from perfect, especially as the act does not establish a defined mechanism for allocating an annual budget for updating the list. Therefore, the act cannot assure a health care system with the stability and certainty it requires.     

The Independent Medicare Advisory Committee: death panel or smart governing?

This comment explores whether health care reform legislation establishes an administrative body effectively charged with the rationing of health care resources; insofar as it establishes a presidentially appointed Independent Medicare Advisory Committee (IMAC). IMAC would be charged with "making two annual reports dictating updated rates for Medicare providers including physicians, hospitals, skilled nursing facilities, home health, and durable medical equipment." IMAC's recommendations would be implemented nationally, subject to a Congressional vote. Congress would be granted a thirty-day window to achieve a simple majority for or against the IMAC recommendations. Part I is an introduction. Part II of this article covers the history of American health care. It lays out the federal government's evolving role in the arena of public health and health care, starting in the mid-nineteenth century and continues up to the present day. Part III examines the existing process by which Medicare spending is controlled. This part focuses on the administrative procedures that control Medicare reimbursements. Part IV examines IMAC. This part discusses IMAC's statutory provisions and the administrative transparency laws IMAC would be bound to follow. The close of this part, draws on three analogies as a gauge for how IMAC will operate: Senator Tom Daschle's Federal Health Board (FHB) proposal; the administrative oversight of the Federal Reserve; and the United Kingdom's National Institute for Health and Clinical Excellence (NICE). Part V creates a snapshot of the U.S. health care system as it operates today. This part emphasizes cost, quality, and accessibility of health care, with comparisons to international and state-run health care systems. Throughout this article there are a number of words, phrases, and agencies that have been given acronyms. For convenience, an index of these acronyms is provided in an appendix following the article.