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Law, Legitimacy and the Rationing of Healthcare
A Contextual and Comparative Perspective
Keith Syrett argues for a reappraisal of the role played by public law
adjudication in questions of healthcare rationing. As governments
worldwide turn to strategies of explicit rationing to manage the
mismatch between demand for and supply of health services and
treatments, disappointed patients and the public have sought to contest
the moral authority of bodies making rationing decisions. This has led to
the growing involvement of law in this field of public policy. The author
argues that, rather than bemoaning this development, those working
within the health policy community should recognise the points of
confluence between the principles and purposes of public law and the
proposals which have been made to address rationing’s ‘legitimacy
problem’. Drawing upon jurisprudence from England, Canada and
South Africa, the book evaluates the capacity of courts to establish the
conditions for a process of public deliberation from which legitimacy for
healthcare rationing may be derived.
DR KEITH SYRETT is a Solicitor and Senior Lecturer in Law at the
University of Bristol.
Cambridge Law, Medicine and Ethics
This series of books was founded by Cambridge University Press with
Alexander McCall Smith as its first editor in 2003. It focuses on the law’s
complex and troubled relationship with medicine across both the devel-
oped and the developing world. In the past twenty years, we have seen in
many countries increasing resort to the courts by dissatisfied patients
and a growing use of the courts to attempt to resolve intractable ethical
dilemmas. At the same time, legislatures across the world have struggled
to address the questions posed by both the successes and the failures of
modern medicine, while international organisations such as the WHO
and UNESCO now regularly address issues of medical law.
It follows that we would expect ethical and policy questions to be
integral to the analysis of the legal issues discussed in this series. The
series responds to the high profile of medical law in universities, in legal
and medical practice, as well as in public and political affairs. We seek to
reflect the evidence that many major health-related policy debates in the
UK, Europe and the international community over the past two decades
have involved a strong medical law dimension. Organ retention, embry-
onic stem cell research, physician-assisted suicide and the allocation of
resources to fund health care are but a few examples among many. The
emphasis of this series is thus on matters of public concern and/or
practical significance. We look for books that could make a difference
to the development of medical law and enhance the role of medico-legal
debate in policy circles. That is not to say that we lack interest in the
important theoretical dimensions of the subject, but we aim to ensure
that theoretical debate is grounded in the realities of how the law does
and should interact with medicine and health care.
General Editors
Professor Margaret Brazier, University of Manchester
Professor Graeme Laurie, University of Edinburgh
Editorial Advisory Board
Professor Richard Ashcroft, Queen Mary, University of London
Professor Martin Bobrow, University of Cambridge
Dr Alexander Morgan Capron, Director, Ethics and Health,
World Health Organization, Geneva
Professor Jim Childress, University of Virginia
Professor Ruth Chadwick, Cardiff Law School
Dame Ruth Deech, University of Oxford
Professor John Keown, Georgetown University, Washington, D.C.
Dr. Kathy Liddell, University of Cambridge
Professor Alexander McCall Smith, University of Edinburgh
Professor Dr. Mo´nica Navarro-Michel, University of Barcelona
Marcus Radetzki, Marian Radetzki, Niklas Juth
Genes and Insurance: Ethical, Legal and Economic Issues
978 0 521 83090 4
Ruth Macklin
Double Standards in Medical Research in Developing Countries
978 0 521 83388 2 hardback 978 0 521 54170 1 paperback
Donna Dickenson
Property in the Body: Feminist Perspectives
978 0 521 86792 4
Matti Ha¨yry, Ruth Chadwick, Vilhja´lmur A
´
rnason, Gardar A
´
rnason
The Ethics and Governance of Human Genetic Databases: European
Perspectives
978 0 521 85662 1
Ken Mason
The Troubled Pregnancy, Legal Wrongs and Rights in Reproduction
978 0 521 85075 9
Daniel Sperling
Posthumous Interests: Legal and Ethical Perspectives
978 0 521 87784 8
Law, Legitimacy and the
Rationing of Healthcare
A Contextual and Comparative Perspective
Keith Syrett
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
First published in print format
ISBN-13 978-0-521-85773-4
ISBN-13 978-0-521-67445-4
ISBN-13 978-0-511-37880-5
© Keith Syrett 2007
2007
Information on this title: www.cambridge.org/9780521857734
This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written
p
ermission of Cambrid
g
e University Press.
Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
g
uarantee that any content on such websites is, or will remain, accurate or a
pp
ro
p
riate.
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
paperback
eBook (NetLibrary)
hardback
To the memory of my father and of my mother
[...]... ‘Problems of Medical Law’, in S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (Oxford: Clarendon Press, 5th edn, 2003) at 263 12 Law, Legitimacy and the Rationing of Healthcare healthcare resources are not present elsewhere The mismatch between the demand for, and supply of healthcare resources which is analysed in Chapter 2 presents a political (and increasingly, a legal) challenge... for a more positive evaluation of the role of law, and particularly of the courts, in this field However, working from the premise that a proper appreciation of the function of law cannot be developed in isolation from the socio-political environment in which it operates, it is necessary also to attain an understanding of the character of allocative decisionmaking in healthcare and of the nature of the. .. resources and the financing of healthcare in three jurisdictions: England, Canada and South Africa In view of the growing involvement of the legal process in this arena of public policy, a characteristic which is readily apparent from the Herceptin example, such an analysis appears crucial to the development of a full understanding and critique of this form of allocative decisionmaking However, Chapters... to offer an exhaustive account of the statute and case law relating to the allocation of scarce Introduction 11 healthcare resources in any individual jurisdiction, and readers with an interest in such analysis are advised to look elsewhere.43 Rather, the intention is to present a critical reading of public law adjudication which emphasises the facilitative capabilities of legal principles, values and. .. demand and supply in this area By contrast, Chapters 4 and 5 focus primarily upon the theoretical context Drawing upon recent academic analyses of health policy and, more broadly, upon theories of democracy, Chapter 4 will seek to explain why rationing (in particular, the explicit variant) has generated a problem of legitimacy for those who must make decisions on the allocation of scarce healthcare. .. http://news.bbc.co.uk/1/hi/england/staffordshire/4430036.stm (accessed 8 January 2007) ‘Breast Cancer Campaign’, The Sun, 30 September 2005 4 Law, Legitimacy and the Rationing of Healthcare The issue was also regularly raised in both Houses of Parliament,15 was discussed in Select Committee16 and was the subject of both a private members’ debate in Westminster Hall17 and an Early Day Motion sponsored by the shadow Health Secretary.18... necessitate the making of value judgments, raising the issue of who should make rationing decisions, which is explored in Chapter 3 20 Law, Legitimacy and the Rationing of Healthcare of the resource, or of the degree of the patient’s need for the service This approach has been adopted in part because the book’s focus upon publicly funded healthcare necessarily inclines towards acceptance of those understandings... and activation of internal and external mechanisms for appeal and review Indeed, perhaps paradoxically, the techniques of ‘evidence-based medicine’ actually served to fuel the controversy in this instance, in that the campaign to make Herceptin available on the NHS for those suffering from early-stage breast cancer was largely stimulated by the results of the three major international clinical trials... rights, as distinct from judicial review of the legality of administrative decisions and actions This aspect of the discussion may therefore be regarded as a contribution to the literature on the relationship between law, human rights and healthcare. 48 46 47 48 For discussion, see Coulter and Ham (eds.), The Global Challenge of Health Care Rationing; C Ham and G Robert (eds.), Reasonable Rationing. .. 14 Law, Legitimacy and the Rationing of Healthcare this extent the book’s argument that the function of law in this context merits fresh evaluation is as applicable to that system as to the others surveyed, albeit that analysts of the system will be obliged to consider the role of private, as well as public, law As regards the problems of rationing which arise within health systems in developing nations, . page intentionally left blank
Law, Legitimacy and the Rationing of Healthcare
A Contextual and Comparative Perspective
Keith Syrett argues for a reappraisal. Law, Legitimacy and the Rationing of Healthcare
Herceptin and the NHS: a case study of
the rationing of treatment
Herceptin (the brand name of the drug trastuzumab)
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