Charter rights & health care funding: a typology of Canadian health rights litigation

Canadian health consumers have increasingly relied on the Charter of Rights and Freedoms to demand certain therapies and reasonably timely access to care. Organizing these cases into a 5-part typology, we examine how a rights-based discourse affects allocation of health care resources. First, successful Charter challenges can, in theory, lead to courts granting and enforcing positive rights to therapies or to timely care. Second, courts may grant a right to certain health services; however, subsequently government fails to deliver on this right. Third, successful litigation may create negative rights, i.e. rights to access care or private health insurance without government interference. Fourth, consumers can fail in their legal pursuit of a right but galvanize public support in the process, ultimately effecting the desired policy changes. Lastly, a failed lawsuit can stifle an entire advocacy campaign for the sought-after therapies. The typology illustrates the need to examine both legal and policy outcomes of health right litigation. This broader analysis reveals that the pursuit of health rights seems to have caused largely a regressive rather than progressive impact on Canadian Medicare.     

Australia: Migration Review Tribunal waives medical inadmissibility criteria for two HIV-positive visa applicants

In two recent cases, Australia's Migration Review Tribunal (MRT) overturned government decisions to refuse the visa applications of HIV-positive candidates for Partner (Temporary) (Class UK) visas on the basis of medical inadmissibility. In doing so, the MRT questioned the opinion of the government medical officer concerning the costs to the Australian community, and took into account the applicants' potential contributions.     

HealthConnect and the duty of care: a dilemma for medical practitioners

This article asks whether medical practitioners' duty of care to their patients will encompass participation in the HealthConnect shared electronic records initiative. Medico-legal aspects of the HeathConnect scheme relating to the nature of shared electronic health record summaries (SEHRS) are examined, focusing on their function as an element of patient care and their ultimate purpose. The analysis is based on the premise that an incomplete and hence inaccurate shared electronic health record summary is clinically and legally more perilous than no record at all.     

Penal harm medicine: state tort remedies for delaying and denying health care to prisoners

In prison and jail subcultures, custodial personnel are committed to the penal harm movement, which seeks to inflict pain on prisoners. Conversely, correctional medical personnel are sworn to the Hippocratic Oath and are committed to alleviating prisoners' suffering. The Hippocratic Oath is violated when correctional medical workers adopt penal harm mandates and inflict pain on prisoners. By analyzing lawsuits filed by prisoners under state tort law, this article shows how the penal harm movement co-opts some correctional medical employees into abandoning their treatment and healing mission, thus causing denial or delay of medical treatment to prisoners. This revised version was published online in July 2006 with corrections to the Cover Date.     

US: court rules deportation of HIV-positive Dominican does not violate convention against torture

The US District Court for New York has upheld a tribunal decision deporting an HIV-positive Dominican national. The court held that the tribunal did not err in finding that Rogelio Reyes-Sanchez had failed to show that he would more likely than not be subject to torture if deported. The court agreed that evidence suggesting that people living with HIV/AIDS may receive substandard medical treatment from public and private hospitals in the Dominican Republic di not constitute evidence of torture.     

Determining health care rights from behind a veil of ignorance

Should our society establish positive rights to health care that each citizen could claim, as many health policy analysts believe? Or should it provide only background rules of contract and property law and leave the provision of health care to the free market, as Richard Epstein advocates in Mortal Peril? In this article, Professor Korobkin argues that this question should be addressed from the Rawlsian "veil of ignorance" perspective. That is, the question should be answered by asking what kind of society would individuals agree to form if they had no knowledge of their individual skills or endowments; if they did not know whether they were rich or poor, healthy or sick, weak or strong. Professor Korobkin contends that individuals behind such a veil of ignorance would balance their inherent risk aversion (which favors a safety net of "rights") against the inefficient incentives created by rights regimes that would reduce net social wealth (which favors a free market). Whether they would choose to establish rights to health care or not is ultimately an empirical question that turns on how inefficient any particular right would be. The question thus requires a case-by-case analysis of proposed rights. The article then considers the policy issues of (1) community rating of private health insurance and (2) the mandated provision of emergency medical care. It concludes that in these cases the inefficient incentives created by establishing rights are probably smaller and/or controllable enough to lead individuals behind the veil of ignorance to favor a regime of positive rights.