The judicialization of the right to health plays a significant role in the success of priority setting for universal health coverage. The right to health is entrenched in international treaties signed by all UN member states, and the constitutional and legislative law of over 50% of countries. And, patients are increasingly turning to the courts to uphold this basic human right to health. In certain instances, individuals utilize the judicial system to access their right to health in a well-founded fight for the drugs their health system has promised to provide but failed to do so. In others, citizens argue against the unfair processes used to determine who will get what care. These valiant efforts and just causes represent only a few of the positive ways in which patients have “judicialized” the right to health.

However, as with most things, the judicialization of the right to health is not without problems, creation of difficulties, or imposition of setbacks. In certain instances, patients are taking to the courts to argue that the government’s (or, one of its subsidiary’s) failure to provide physician-prescribed care is against their right to health—even when that decision not to provide coverage was due to intentional priority setting. Of course, sometimes priority setting is conducting improperly, ambiguously, or unfairly, and the court’s involvement could be critical. However, where the courts overturn explicit, transparent priority setting decisions, they could threaten the stability and effectiveness of priority setting institutions or the prioritization recommendations themselves.

This working paper, Healthcare Priority Setting in the Courts, offers an in-depth look at over twenty court opinions across Latin America, Africa, and Europe grappling with whether prioritization has compromised an individual’s right to health. In some cases, the decisions explore whether the priority setting decision itself has threatened a person’s right to health—in others, whether the priority setting process itself is unfair. Where applicable, the review of each case offers insight into why the court decided the way that it did, and what international or national laws the court felt the priority setting decision did or did not contradict. Where relevant, the decisions are framed against the context of the country’s legal system and general experiences managing the judicialization of the right to health. Even more broadly, the paper considers how the judicialization of the right to health may differ within civil law legal systems (such as Brazil and Argentina), or common law legal systems (such as England or Israel).

Needless to say, all legal systems are different, and courts are not required to follow prior decisions (as is especially true in civil law systems). Yet, it is our hope that insight into the specific reasoning behind these decisions will help government, priority setting institutions, and policy makers understand how and why the courts decide in order to prepare for and anticipate cases in the future. The paper concludes with a discussion on how governments could aim to support explicit, transparent, and equitable priority setting processes in hopes of striking a new balance between priority setting and the critical role that the courts should continue to play ensuring and upholding the rationality and fairness of priority setting. This latter idea is explored in-depth in the recent publication: The International Right to Health: What Does it Mean in Legal Practice and How Can it Affect Priority Setting for Universal Health Coverage? as part of Health Systems & Reform Journal’s Special Issue for the 2016 Prince Mahidol Award Conference.

As the work continues to grow, we invite and encourage your thoughts, feedback, and recommendations.

Rebecca Dittrich is a Juris Doctorate Candidate at the Georgetown University Law Center and a Master of Public Health Candidate at the Johns Hopkins Bloomberg School of Public Health. She is a NICE International Associate.