The Judicialization of Health Care: Symptoms, Diagnosis, and Prescriptions

The Judicialization of Health Care: Symptoms, Diagnosis, and Prescriptions

Description

Middle-income countries (MICs) are, by definition, in a gray zone. As with middle classes within domestic societies, they find themselves in an intermediate ground between precariousness and opulence. Their essence is one of contrasts, as shown by the disparate geography of their large cities, from São Paulo and Delhi to Jakarta and Johannesburg. Economic contrasts go hand in hand with institutional contrasts. The institutions of MICs are hybrids: in them coexist elements of weakness and strength, incapacity and capacity. On some occasions, there is disparity between different institutions - for example, between an authoritarian government captured by private interests, on the one hand, and an independent judiciary that protects citizens’ rights, on the other. In others, the asymmetry is found within a single institution – for example, a tax-collecting agency or police force that is efficient in the cities, but absent or incapable of fulfilling its mission in the rest of the country. This double economic and institutional contrast makes MICs particularly fertile ground for the judicialization of conflicts regarding socioeconomic rights (SERs). Among the economic variables that favor judicialization, income level and distribution stand out. By definition, MICs have more resources than low-income countries (LICs), but tend to have a distribution of wealth just as or more unequal than the latter. The aforementioned institutional asymmetry increases the probability that these demands turn into litigation. This is because governmental agencies are not sufficiently strong to adequately and regularly resolve citizen petitions, but (in contrast to what happens in LICs) do tend to be sufficiently strong and accountable to fulfil judicial orders. When courts are independent and have adequate institutional capacity, litigation offers a particularly promising route to demand the fulfillment of SERs. This combination of factors is particularly notable in the more well-off MICs, that is, those referred to as upper-MICs. To avoid the risk of overgeneralization associated with the use of the extremely broad MIC category, my arguments in this chapter are confined specifically to those countries with higher incomes within that category and a democratic political system committed to the rule of law. I have in mind, above all, those democratic upper middle-income countries (DUMICs) in which courts have been particularly active in the protection of SERs, such as South Africa, India, Brazil, Colombia, Argentina, and Costa Rica. To empirically support my analysis, I focus on the right to health, which is the most litigated in these countries. Table 12.1 gives a general idea of the level of litigation regarding health in these countries. As shown in the table, Colombia is, by far, the most prolific country in health litigation. Therefore, it represents an extreme case that allows us to see more clearly, as though under a magnifying glass, the causes and effects of the intervention of courts in the distribution of resources in DUMICs. With this methodological logic, in this chapter I focus on the analysis of the evidence regarding Colombia. The chapter has two main goals. First, from an analytic point of view, I seek to examine how and why conflicts over the right to health have arrived en masse to Colombian courts and tribunals. Put in terms of research questions, I explore the following puzzles: What has been the magnitude of these constitutional claims regarding health? Who goes to court and what do they request? Why is Colombia the country with the largest amount of legal cases on the topic? What has been the response of judges? What impact have their decisions had? And, crucially, what does the Colombian story tell us about the factors underlying the judicialization of health in DUMICs at large? Second, from a prescriptive point of view, I aim to use the findings on Colombia to tackle questions of institutional design and practice that have sparked much public debate and numerous regulatory reform proposals in DUMICs. Who should resolve the disputes on the right to health (and SERs in general), so that the solutions are at the same time efficient and comply with constitutional norms and international treaties on SERs? What administrative and legislative reforms can reduce the volume of health litigation? In what cases should courts intervene? How should they intervene? What mechanisms of institutional dialogue between the judiciary, on one hand, and the other branches of state power and relevant sectors of civil society, on the other, can maximize transparency, citizen participation, and the protection of the right to health and SERs at large? To tackle these questions, I divide the article into three sections. I begin by exploring, in a medical manner, the symptoms of the phenomenon of judicialization of health. I combine original and secondary data to delineate the evolution of constitutional litigation on health in Colombia. Continuing with the medical analogy, I then offer a diagnostic of the situation, that is, an analysis of the causes and effects of the massive use of the courts in health disputes. I conclude the chapter and the medical parallel with a prescription section, in which I delineate administrative and judicial approaches that, while preserving a key role for courts, avoid the inequities and inefficiencies of the indiscriminate judicialization of health, and promote citizen participation in complex decisions about the health care system. My argument is twofold. First, with respect to the diagnosis, I maintain that the judicialization process stems from a combination of factors that, albeit particularly marked in Colombia, are common to other DUMICs, that is, deep and persistent failures of the health system; a particularly accessible and proactive judiciary in the protection of SERs; and civil society actors that have gone to the courts en masse to resolve conflicts regarding the right to health. With respect to the impact of this type of case, I maintain that although it has offered an indispensable escape valve for the claims stemming from the profound failures of the health system, and has been the most efficient mechanism for protection of the right to health, it has also had counterproductive effects. In order to theorize and empirically document the positive and the negative consequences of judicialization of health in Colombia and DUMICs at large, I present a typology of effects of rulings on SERs. Second, in relation to institutional and jurisprudential reforms, I maintain that the most promising approach is one that promotes public deliberation and dialogue among the courts, the executive, and the legislature about the complex decisions related with the health care system. This approach combines insights from the fields of public health and public policy, and developments in constitutional theory and adjudication that support a move to “dialogic judicial activism” on SERs, which focuses on structural remedies as opposed to case-by-case litigation.

Source Publication

Law and Development of Middle-Income Countries: Avoiding the Middle-Income Trap

Source Editors/Authors

Randall Peerenboom, Tom Ginsburg

Publication Date

2014

The Judicialization of Health Care: Symptoms, Diagnosis, and Prescriptions

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