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Can litigation promote fairness in healthcare? The judicial review of rationing decisions in Brazil and England

Wei Liang Wang, Daniel (2013) Can litigation promote fairness in healthcare? The judicial review of rationing decisions in Brazil and England. PhD thesis, The London School of Economics and Political Science (LSE).

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Abstract

This thesis analyses “health care litigation” in Brazil and England. By health care litigation I mean those lawsuits in which claimants demand from the State the provision of a certain health treatment based on their entitlement to receive health care from the public health system or funded by it. The question that guides this thesis is whether courts intervening in rationing decisions make the public health system more or less fair. The concept of fairness I use in this thesis draws on the idea of “accountability for reasonableness” developed by Norman Daniel and Charles Sabin. This research will analyse the case-law of courts in Brazil and England, and the impact of litigation on the public health system. Based on this research, I argue that health care litigation in Brazil, where courts interpret the right to health as an individual trump against rationing decisions, is making the public health system less fair. Conversely, in England, where courts mainly control the procedure rather than the substance of the rationing decisions, litigation contributed to make health authorities more accountable and rationing decisions more public and based on better reasons, robust evidence and fair principles. Interestingly, even though courts in both countries have judged their cases in different ways, in the long term, litigation was one of the reasons for the creation of health technology assessment systems that try to legitimate rationing decisions through more public and better reasoned decisions: CONITEC in Brazil and NICE in England. The analysis of healthcare litigation in Brazil and England also contributes to the broader debate about social rights adjudication. These cases provide empirical and nuanced evidence that can be compared with the experience of other jurisdictions to shed light on the potential, risks and limits of courts controlling the allocation of resources in social policies using the language of social rights.

Item Type: Thesis (PhD)
Additional Information: © 2013 Daniel Wei Liang Wang
Library of Congress subject classification: K Law > K Law (General)
K Law > KD England and Wales
Sets: Departments > Law
Supervisor: Gearty, Conor and Poole, Thomas
URI: http://etheses.lse.ac.uk/id/eprint/739

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