The Pluralist Right to Health Care: A Framework and Case Study 9781487538828

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THE PLURALIST RIGHT TO HEALTH CARE

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The Pluralist Right to Health Care A Framework and Case Study

MICHAEL DA SILVA Foreword by Daniel Weinstock

UNIVERSITY OF TORONTO PRESS Toronto Bufalo London

© University of Toronto Press 2021 Toronto Buffalo London utorontopress.com Printed in the U.S.A. ISBN 978-1-4875-0872-2 (cloth) ISBN 978-1-4875-3883-5 (EPUB) ISBN 978-1-4875-3882-8 (PDF)

Library and Archives Canada Cataloguing in Publication Title: The pluralist right to health care : a framework and case study / Michael Da Silva ; foreword by Daniel Weinstock. Names: Da Silva, Michael, author. Description: Includes bibliographical references and index. Identifiers: Canadiana (print) 20210276193 | Canadiana (ebook) 2021027624X | ISBN 9781487508722 (cloth) | ISBN 9781487538835 (EPUB) | ISBN 9781487538828 (PDF) Subjects: LCSH: Right to health – Canada. Classification: LCC RA395.C3 D25 2021 | DDC 362.10971 – dc23 University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.

Funded by the Financé par le Government gouvernement du Canada of Canada

Contents

Foreword vii daniel weinsto ck Acknowledgments

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A Note on the Text xi 1 Introduction

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Part I: Conceptualizing and Measuring the Right to Health Care 2 Health Rights: A Taxonomy

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3 Te Case for a Pluralist Conception of the Right to Health Care 52 4 Te Pluralist Right to Health Care and International Human Rights Law 96 Appendix 1: A (Non-Exhaustive) List of Key Sources for Identifying the International Right to Health Care 115 5 Metrics for Realization of the Right to Health Care 119 Appendix 2: Metrics for Comparative Analysis of Right to Health Care Implementation 151 Part II: Te Right to Health Care in Canada: A Case Study in Realization 6 Te Mainstream Canadian Health Care System and the Pluralist Right to Health Care 155

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Contents

7 Vulnerable Populations in Canada and the Pluralist Right to Health Care 187 8 Tools for Better Realizing the Pluralist Right to Health Care in Canada 213 Conclusion: Next Steps 9 Concluding Toughts and the Path(s) Forward Index

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Foreword

Although some have quibbled about this fact, it is uncontroversially the case that “rights talk” has become the agreed upon vocabulary in which to express claims to social justice. This terminological convergence has been both a blessing and a curse. It has been the former because it signals that those who put forward rights claims must justify these claims by reference to normative considerations, the urgency of which justifies the use of a term that signals and gives practical expression to that urgency. If someone can successfully make out a claim that they have a right, that signals at least in a prima facie way that there is someone else who must, as it were, put down whatever else they are doing to attend to that right. But it has also been a curse because of the lack of specificity that often attaches to these claims. This is particularly the case when the rights that are invoked are “positive” in nature, that is, when they require for their satisfaction that rights-holders be provided with something by whoever is addressed by the right claim, rather than simply that they be left alone to act as they wish. The right to health care is a particularly acute example of this kind of right. On the one hand, it is clearly the case that the ability that activists and theorists have had to articulate certain claims related to health as rights has made a difference to the situation of vulnerable people the world over, from Latin America to South Africa (where a number of state constitutions now contain explicit “positive rights” provisions). On the other, it is not clear what these rights mount to in practice. Clearly, no state can guarantee the health of its members. Rights attach to certain kinds of things that are empirically connected to health. But which ones? This is a vexing question that should be at the forefront of philosophical and empirical research on the right to health. We are all in Michael Da Silva’s debt for having made a huge stride in solving this question. What Da Silva shows, through an enviable combination of philosophical rigour, legal acumen, and sensitivity to the empirics of the question, is that the right to health is irreducibly pluralist in nature. In other words,

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Foreword

its satisfaction depends upon the availability to citizens of a number of goods, including, crucially, a functioning health care system. Spelling out precisely what the right to health consists in provides us with a solution to the puzzle of what concretely is owed to citizens who claim that right. Conceptual analysis, properly carried out, contributes a great deal to the resolution of real-world problems. This book would stand as a signal contribution had it done nothing but specify the precise extension of the right to health care. But it does much more. In particular, it operationalizes the concept by suggesting a metric that can be used to measure the degree of realization of the right in different societies, and uses that metric to identify the shortfalls of Canada’s health care system. Canadian policy-makers intent on fully realizing the right to health care of all Canadians are well-advised to attend to the very concrete and compelling arguments put forward by Da Silva on the basis of his rigorous conceptualization of that right. But the book can – and should – profitably be read by scholars and politicians around the world, as the framework that he proposes is anything but parochial. It can lend itself to a critical analysis of health care systems of very different kinds. The book’s methodology will, moreover, hopefully be generalized by other scholars who will have been inspired by Da Silva’s accomplishment here. For while the right to health care is probably the most commonly invoked positive right, it is far from being the only one. Claims are often made in terms of the right to education, or the right to housing. We need elaborations of those rights that follow Da Silva in connecting rigorous conceptual analysis with policy relevance. It is my very great hope that this book will be widely read by health care scholars (be they philosophers, political scientists, public policy scholars, or students of public administration) and practitioners alike. It is rare that one is able to say of a book that it significantly moves the terms of an important debate forward. But this is one of them. Daniel Weinstock

Acknowledgments

This is my first book. Many mistakes were made along the way. Please bear with me during what is surely an overlong acknowledgments section as many individuals were of immense help in the development of the project. I can only thank a small selection here. But if you recall a conversation with me on health rights, chances are I owe you a debt. I am likewise grateful to the many institutions who hosted my talks on related issues. I owe profound intellectual debts to Colleen M. Flood and Daniel Weinstock, both invaluable mentors in my development as a scholar and a person. I cannot thank them enough for their continuing support. I wrote this piece at several institutions and thank those I interacted with in each locale. Professor Flood has been with this project since the beginning. Lorraine Weinrib, Sophia Moreau, and Trudo Lemmens provided excellent early feedback and remain supportive of my work. Norman Daniels provided part of the intellectual firmament on which my project is built, and Jutta Brunnée and Mariana Mota Prado were also of great assistance throughout. I was lucky enough to hold a Canadian Institutes for Health Research (CIHR) Vanier Canada Graduate Scholarship, a CIHR Graduate Fellowship in Health Law, Ethics and Policy, and a Senior Doctoral Fellowship in the Comparative Program on Health and Society in the Munk School for Global Affairs during my doctoral studies. I thank the program funders. I also took a course on health and human rights with Lisa Forman, who led the Comparative Program on Health and Society and was also instrumental in my work. My time as a Graduate Associate of the Centre for Ethics was highly enjoyable and I thank the funders and my friends there. My time as a Visiting Assistant Professor at the Peter A. Allard School of Law at the University of British Columbia was important to the development of this book. I loved my time there and thank (then-Dean) Catherine Dauvergne for the opportunity and Douglas Harris for helpful feedback on my book proposal.

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Acknowledgments

I completed the rest of the work on the book manuscript during my term as CIHR Banting Postdoctoral Fellow in the McGill Institute for Health and Social Policy (IHSP) and the Faculty of Law. In addition to CIHR, I thank Professor Weinstock and Dean Robert Leckey for hosting me there. Anaik Fortier and Sonia Bichler at the IHSP provided excellent administrative assistance with my work. While at McGill, I was delighted to participate in the Research Group on Health and Law led by Lara Khoury and Alana Klein and the Research Group on Constitutional Studies in the Yan P. Lin Centre for the Study of Freedom and Global Orders in the Ancient and Modern Worlds led by Jacob T. Levy. I thank everyone at these institutions. Professors Klein and Weinstock also generously provided funding for the final production of this book through their Social Sciences and Humanities Research Council of Canada Insight Grant, Harm Reduction, Public Policy, and Moral Controversy: Principles and Practice. I cannot thank them enough for this support, which was necessary to get this project across the “finish line.” The copy-editing process was completed during my early days as the Alex Trebek Postdoctoral Fellow in the Centre for Law, Technology, and Society (CLTS) and the Centre for Health Law, Policy, and Ethics (CHLPE) at the University of Ottawa (and its Faculty of Law). I thank the Alex Trebek Forum for Dialogue for funding and Dean Adam Dodek, CLTS Director Florian MartinBariteau, and the CHLPE’s Professor Flood and Pascal Thibeault for hosting me. Given this history, I unsurprisingly owe many colleagues thanks for feedback on drafts of this and related work. There are far too many to list, but I would be remiss if I did not publicly thank Y.Y. Brandon Chen, Sophie Nunnelly, Vanessa Rampton, Maxwell Smith, and (especially) Andrew Flavelle Martin for helpful feedback – and for serving as sounding boards when difficulties arose. Editors and reviewers at journals where I published related work, such as Dalhousie Law Journal, the McGill Journal of Law and Health, the Michigan Journal of International Law, the Journal of Value Inquiry, and Public Health Ethics, improved my work. Thank you also to the University of Toronto Press for their assistance. My acquisitions editor, Daniel Quinlan, has been a strong champion of this work and I appreciate the work of, among others, associate managing editor Leah Connor, product marketing specialist Stephanie Mazza, and copy editor Matthew Kudelka. The anonymous peer reviewers were also helpful. Finally, I thank my family for their support. Notably, my daughter Mary and my late dog Pinceau were invaluable “research assistants,” if only by keeping me sane. But my greatest thanks are due to my wife, Hannah. Words cannot express my gratitude for her support in all my endeavours.

A Note on the Text

This text was written and accepted for publication prior to the beginning of the COVID-19 pandemic. The pandemic clearly raises many important issues at the intersection of health and human rights. Yet COVID-19 does not change the nature of my arguments so much as stress their importance. Moreover, the ethics of COVID-19 demands its own analysis. Rather than add in a cursory application of COVID-19 to this text, I invite discuss of how the arguments apply in pandemic contexts.

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THE PLURALIST RIGHT TO HEALTH CARE

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Chapter One

Introduction

The distribution of health care is a contentious issue at the forefront of political debates throughout the world. Appeals to “rights,” including rights to health and health care, are common in these debates, but controversial. Many health rights exist as a matter of international and domestic laws. International law recognizes a right to health that includes health care entitlements.1 Most domestic constitutions include a right to health care.2 Philosophical defences of the right to health care and its fellow “positive” rights – viz., rights that require people to provide others with substantive entitlements3 – are also increasingly common.4 Many theorists believe that governments must provide some health care 1 E.g., United Nations, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 12 [ICESCR]. See, e.g., chapter 4 for details on the content of this international right. 2 Courtney Jung, Ran Hirschl & Evan Rosevear, “Economic and Social Rights in National Constitutions” (2014) 62 Am J Comp L 1034 at 1054. See also Eleanor Kinney, “Te International Right to Health: What Does It Mean for Our Nation and World” (2001) 34 Indiana LR 1457 at 1465; S Katrina Perehudof, Health, Essential Medicines, Human Rights & Constitutions (Amsterdam/Geneva: Vrije Universiteit Amsterdam/World Health Organization, 2008); S Katrina Perehudof, Brigit Toebes & Hans Hogerzeil, “Essential Medicines in National Constitutions: Progress Since 2008” (2016) 18(1) Health and Human Rights Journal 141; Evan Rosevear, Ran Hirschl & Courtney Jung, “Justiciable and Aspirational Economic and Social Rights in National Constitutions” in Katharine G Young, ed, Te Future of Economic and Social Rights (Cambridge: Cambridge UP, 2019) [Young, Future] 37 at 56–57. 3 Tis concept, contrasted with negative rights in e.g., Jan Narveson, Te Libertarian Idea (Peterborough: Broadview Press, 2001), is criticized in e.g., Henry Shue, Basic Rights: Subsistence, Afuence, and U.S. Foreign Policy, 2d ed (Princeton: Princeton UP, 1996) and Stephen Holmes & Cass Sunstein, Te Costs of Rights (New York: WW Norton, 1999). I detail the extent to which I rely on the positive/negative rights distinction in chapter 2. 4 For examples using various approaches, see Shue, ibid; Holmes & Sunstein, ibid; James W Nickel, Making Sense of Human Rights: Philosophical Refections on the Universal Declaration of Human Rights (Berkeley: U California P, 1987); Alan Gewirth, Te Community of Rights (Chicago: U Chicago P, 1996); Amartya Sen, Development as Freedom (Oxford: Oxford UP,

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to (at least) their citizens as a matter of justice.5 These requirements are plausibly understood as rights-based. Yet theoretical and empirical questions about how best to understand and implement health rights remain. Theoretically, for instance, existing articulations of rights to health care do not easily fit the traditional “claim right” model of rights in which every right entails a specific and precise duty that an identified duty-holder can and must fulfil.6 Practically, in turn, questions remain regarding how to operationalize health rights, including how to do so without overwhelming the public purse.7 Health rights, then, are widely recognized but hard to justify. The rights clearly exist as a matter of law and have some philosophical support. Yet many believe that such “rights” are a confused concept. This inconsistency between common legal phenomena and a traditional source of justification for such phenomena could be problematic. Either a widespread legal phenomenon is unjustified, or our philosophical theories of rights are less explanatory than we may hope, failing to justify a widespread phenomenon that – as future chapters will demonstrate – can otherwise play a positive moral role. It is difficult to resolve this concern and its attendant issues in a manner that accounts for the structure of health rights in domestic constitutional laws, international human rights law, and philosophy. Simply stating that the legal and moral senses of the right to health care are wholly independent will not help on its own. The relationship 1999) [Sen, Development]; Allen Buchanan, Justice, Legitimacy, & Self-Determination (Oxford: Oxford UP, 2003); among many others. Jonathan Wolf, Te Human Right to Health (New York: WW Norton, 2012), specifcally tries to defend the international right to health on philosophical grounds. 5 E.g., Norman Daniels, Just Health Care (Cambridge: Cambridge UP, 1985) [Daniels, JHC]; Sen, Development, ibid; Amartya Sen, Te Idea of Justice (Cambridge: Harvard UP, 2009) [Sen, Idea]; Jennifer Prah Ruger, Health and Social Justice (New York: Oxford UP, 2009) [Prah Ruger, Health]. 6 Te classic statement of this requirement is ofen sourced to Wesley Newcomb Hohfeld in e.g., “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23(1) Yale LJ 16 at 31 [Hohfeld, 1913]; “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710 [Hohfeld, 1917]. I discuss Hohfeld and his model in greater depth in chapter 2. For a critical application of Hohfeld to the health rights context, see e.g., Onora O’Neill, Towards Justice and Virtue (Cambridge: Cambridge UP, 1996); Onora O’Neill, Bounds of Justice (Cambridge: Cambridge UP, 2000); Gopal Sreenivasan, “A Human Right to Health? Some Inconclusive Scepticism” (2012) 86(1) Aristotelian Society Supplementary Volume 239 [Sreenivasan, “Human”]). 7 See e.g., Florian F Hofman & Fernando RNM Bentes, “Accountability for Social and Economic Rights in Brazil,” in Varun Gauri & Daniel M Brinks, eds, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge UP, 2008/2010) 100; Alicia Ely Yamin, Oscar Parra-Vera & Camilla Gianella, “Colombia: Judicial Protection of the Right to Health: An Elusive Promise?,” in Alicia Ely Yamin & Siri Gloppen, eds, Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge: International Human Rights Clinic, Human Rights Program, Harvard Law School, 2011) 103.

Introduction

5

between the international and domestic legal health rights and claimed moral rights to health generally and/or health care specifically is also difficult to uncontroversially specify. Some explanation of why the word “rights” is used in both domains and why either use is licit remains necessary. This work answers many persistent questions about the right to health care in a manner that is consistent with and explanatory of existing legal health rights. It argues that ‘the right to health care’ is best understood as shorthand for a set of goals that governments can and should achieve, namely (1) provision of the health care goods and services necessary for a dignified existence,8 (2) procedural fairness in determining what other goods will be provided and in the provision of goods, and (3) a functioning health care system. It then demonstrates that we can use these goals to assess health care systems and provides an example of such an assessment. In so doing, it builds on and synthesizes work in several fields, placing legal, policy, and philosophical work in conversation to produce an original argument that contributes to our philosophical understanding of human rights and of health care and to empirical knowledge of how to improve the delivery of valuable social goods. It promotes a “pluralist” conception of the right to health care in which the right is an umbrella term for a variety of related important health care–related moral ends that can and must be fulfilled through a variety of means.9 This approach is independently justifiable, explanatory of the existing phenomenon, and concrete, providing empirical metrics for rights realization that can guide action by law- and policymakers in the health care domain. It can also align with a plausible variation of the (independently problematic10) claim right model of rights. 8 I use the term “health care goods” to refer to “health care goods and services” throughout this text. I do not mean to thereby suggest some priority for “goods” over “services” or to adopt a market-oriented understanding of all health care as a “good” to be traded. I simply use the shorthand to avoid repetition. A “health care good” is just health care that is subject to distribution. “Health care” in this text broadly refers to “curative, diagnostic and preventative goods and services provided by (preferably licensed) medical, dental, allied health and psychological professionals qua professionals.” Tis defnition is imperfect. For instance, its reliance on professional practice supports a status quo bias and it still admits of borderline cases. Yet it is functionally valuable for the present project. 9 In discussing this as a ‘pluralist’ right, I mean that the right has multiple components that each serve certain ends and which could theoretically be severed. Yet, as I discuss in Chapter 3, the components of the right I envision are fundamentally linked and constitute a moral unity. Te word ‘pluralist’ may not capture this and may accordingly be misleading. I discuss the right as a ‘complex’ right elsewhere and now prefer that term (Michael Da Silva, “Te Complex Structure of Health Rights” (2020) 13(1) Public Health Ethics 99) but time constraints did not permit changes in this text. 10 Indeed, the plausibility of the right to health care serves as further evidence of the traditional view’s implausibility. Other reasons to question the traditional understanding of that model appear in chapter 2. For a more detailed critique of applying that traditional understanding

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Before making this positive case, I must explain the relevant phenomenon as well as the problems facing existing models of the right to health care. This chapter accordingly introduces the health rights phenomenon, its attendant problems, and my solution to those problems. Health Rights: The Phenomenon and the Problem There are at least two distinct health rights: the right to health and the right to health care. International human rights law recognizes a right to health.11 Scholars contest how to understand the precise contours of this international right (see chapter 4). Authoritative interpretations of that right state that it is not a right “to be healthy.”12 This statement is justified. No one can fulfil a right to be healthy: biology will render some people unhealthy regardless of what other people do for them. The international human rights law sources that specify the content of the right also state that it is a right to more than just health care. The relevant sources state that the content of the right to health also includes social determinants of health, such as access to water and a healthy environment.13 The fact that international human rights law views all human rights as “indivisible” further suggests that the international right to health can only be fulfilled when recognized rights to other social determinants, such as food, are fulfilled.14 Philosophical work justifying a right to health generally and/or the international right to health particularly then seeks to justify a right to more than just health care.15 The contours of the right to health care are also contested, particularly where the definition of health care remains controversial. That said, the right to health care is clearly narrower than the right to health and focuses solely on goods plausibly understood as health care goods. International human rights law, including the authoritative interpretation of the international right to health, General Comment 14: The Right to the Highest Attainable Standard of Health,16 recognizes

11 12 13 14

15 16

outside private law, see Michael Da Silva “Correlativity and the Case Against a Common Presumption About the Structure of Rights” (2020) 54 Journal of Value Inquiry 289. ICESCR, supra note 1, s 12. United Nations, Committee on Economic, Social and Cultural Rights, General Comment 14: Te Right to the Highest Attainable Standard of Health, 22d Sess, UN Doc E/C.12/2000/4, (2000) at para 7 [GC 14]. See chapter 4 for relevant details on the international right to health and the international right to health care. On indivisibility, see e.g., James W Nickel, “Rethinking Indivisibility: Towards a Teory of Supporting Relations between Human Rights” (2008) 30 Human Rights Quarterly 984; Daniel J Whelan, Indivisible Human Rights: A History (Philadelphia: U Pennsylvania P, 2010); Patrick Macklem, Te Sovereignty of Human Rights (Oxford: Oxford UP, 2015) at 63–4. On the international right, see Wolf, supra note 4. But see note 53 on Wolf and justifcation. GC 14 supra note 12 at para 10.

Introduction

7

rights to particular health care goods as part of the international right to health. Constitutional rights are usually rights to health care or to health care services rather than to health: 68 per cent of constitutions include a right to health care or health care services, whereas rights to many other social determinants are less common.17 Philosophical work on the narrower right to health care remains necessary. Even leading scholars of the health rights–related field of health justice, like Norman Daniels, began their efforts by looking at the narrower topic of health care justice.18 This is, I think, a good starting point. Colleen M. Flood and Aeyal Gross, for instance, recognize that focusing on access to health care may distract us from other important goals inherent in the international right to health, but they also state that “access to care is certainly a contributing factor to health outcomes … [and] issues of access to care are important independent of health itself because of issues associated with dignity and security.”19 Such a limited focus is, moreover, easier to address in a single work. As many scholars note, that “health care” is easier to measure does not justify focusing on “health care” to the exclusion of the social determinants of health: one could easily miss morally important considerations by focusing on easily measurable ones.20 Yet it is not only the case that, as I just noted, health care remains important even if social determinants are more important. It is also the case that analysis of the broader “right to health care” introduces several difficulties that do not attach to the right to health care, further justifying a narrower focus. Among other concerns, making all causal contributors to health part of a health right (1) makes health an amorphous concept without clear boundaries, which could make “health” a catchall that fails to distinguish moral concerns,21 (2) risks making a health right overly demanding,22 (3) does not allow for the weighing of health-related concerns against other relevant values when making policy decisions about social determinants of health, such as housing,23 and (4) does not attend to the way in 17 Jung, Hirschl & Rosevear, supra note 2. 18 Compare Daniels, JHC, supra note 5, and Norman Daniels, Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge UP, 2008) [Daniels, Just Health]. 19 “Marrying Human Rights and Health Care Systems: Contexts for a Power to Improve Access & Equity” in Colleen M Flood & Aeyal Gross, Te Right to Health at the Public–Private Divide: A Global Comparative Study (Cambridge: Cambridge UP, 2014) 1 at 13. 20 E.g., Daniels, Just Health, note 18; Sridhar Venkatapuram, Health Justice: An Argument from the Capabilities Approach (Cambridge: Polity, 2011). 21 See e.g., Daniel Weinstock, “Health Justice afer the Social Determinants of Health Revolution” (2015) 13 Social Teory & Health 437 [Weinstock, “Health”]; chapter 3 on ‘health imperialism’ (drawing on Jennifer Prah Ruger, “Toward a Teory of a Right to Health: Capability and Incompletely Teorized Agreements” (2006) 18 Yale JL & Human 273; Leticia Morales, “Te Discontent of Social and Economic Rights” (2018) 24 Res Publica 257). 22 See e.g., chapter 3’s discussion of the “Content Dilemma.” 23 See e.g., Weinstock, “Health,” supra note 21. Daniel Weinstock, “Integrating Intermediate Goods to Teories of Distributive Justice: Te Importance of Platforms” (2015) 21 Res Publica 171.

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which the lack of clarity on how social determinants impact health creates risks for any attempt to address those causes not present in the health care case and the manner in which those risks are problematic in health-related fields in which reckless behaviour can have grave consequences.24 This work accordingly follows in the tradition of the early Daniels, Flood, Gross, and others, in that it focuses on defining the narrower contours of a right to health care. In so doing, I acknowledge that international human rights law’s commitment to the indivisibility of human rights and the fact that there is no free-standing right to health care may require that other components of the right to health should have priority over the right to health care components. Likewise, access to health care’s status as a less important predictor of good health than access to, for example, water may make it a lower priority good.25 Yet even then, if we can first articulate the contours of a right to health care, we may be better able to articulate the contours of a broader right to health in the future. If social determinants of health are ultimately more important than health care, this work will remain a good starting point for a broader inquiry and thus a contribution to the literature. Each health right comes in two forms: moral and legal. As detailed in the next chapter, these forms themselves have several variations, and the relationships between moral and legal health rights and different variations thereof are contested. Several questions about the nature of health rights – both legal and moral – thus remain unanswered. One central question considers whether we can understand these different kinds of rights as part of the same phenomenon or whether the terms “right to health” and “right to health care” each refer to a variety of things. Philosophers try to provide accounts of the moral justification(s) for international and constitutional health rights. Even if these legal rights are morally justified, questions remain about whether they reflect moral rights. Diving into the philosophical literature,26 one also sees that positive health rights tend not to fit the classic model of rights in which every right entails a clear duty-holder with easily specifiable duties that he or she must achieve. Given limited resources, no one person or even government can provide any other person with all the health care he or she needs, and it can be 24 See e.g., Daniel Weinstock, « Les déterminants sociaux de la santé : Un déf pour l’ethique de la décision dans le domaine des politiques de santé » (2018) 20(2) Éthique Publique, online: Open Edition . 25 Daniel Callahan, “Ends and Means: Te Goals of Health Care,” in Marion Danis, Carolyn Clancy & Larry R Churchill, eds, Ethical Dimensions of Health Policy (Oxford: Oxford UP, 2002) 3 at 15. See Michael Da Silva, “Te International Right to Health Care: A Legal and Moral Defense” (2018) 39(3) Michigan J Int’l L 343, for more discussion of both these challenges to the existence of an international right to health care and my responses thereto. 26 See chapter 3 for more on the issues discussed in this paragraph. Citations for these statements appear there.

Introduction

9

hard to determine who owes duties to provide any health care goods. Moral rights to health care thus may refer to a category error even if legal health rights exist. This raises a new set of questions: Is there a relationship between legal and moral rights? How is either kind of right justified? Moreover, even if such a right can be philosophically justified, obvious questions remain about how to realize that right. Proponents of moral and legal health rights must answer more questions still: What is the scope of the right to health or health care? A right to full health or to all health care seems unachievable: there may be no limit on the claims one could make on health care resources in pursuit of health. How, then, should we measure realization of the right to health or health care? How can we improve realization of that right? These questions are important, for without satisfactory answers, rights to health care can be denied in morality and/or law. For instance, Gopal Sreenivasan addresses questions about moral justification and scope and argues that the broader right to health is potentially all-encompassing and cannot fit the traditional model of rights in which a right must have a clearly identifiable duty-bearer with a specified duty he or she can and must fulfil.27 A related concern – that such a right is not practically realizable – gains support from evidence that legal rights can lead to measurable outcomes contrary to what any moral right would seek to protect.28 That is, legal health rights may create health care injustice in the real world. These problems (detailed in chapter 2) not only challenge all existing models of the right to health care but also create adequacy conditions for a new theory. Three of the most pressing problems relate to the scope of the right to health care. A fourth focuses on measurement of realization of the right. A fifth relates to “correlativity,” that is, the idea that all rights must have attendant duties. Regarding the three scope-related problems, we confront (a) the Problem of Scope: the right to health care must have some content in order to be a right on any model of rights, and it is difficult to non-arbitrarily set the content of this duty; (b) the Problem of Principles of Scope: it is difficult to even nonarbitrarily set a principle of good selection; and (c) the Problem of Time and Space: the list of goods required to fulfil a right to health will vary over time and space as new drugs, devices and services are developed and locales face different concerns, and the right needs to be able to reflect these variations. Many further issues can arise when a right fails to resolve these problems. For instance, a right 27 Sreenivasan, “Human,” supra note 6. Sreenivasan elsewhere argues that the right to health and the right to health care cannot be separated, which suggests that he views his critique as applying to all health rights; “Health Care and Human Rights: Against the Split Duty Gambit” (2016) 37(4) Teoretical Medicine and Bioethics 343. 28 Consider the “co-opting” of the right by the middle class identifed in Hofman & Bentes, supra note 7 at 145.

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can be all-encompassing in a way that is implausible and impractical, or it can be narrow or static in a way that does not achieve health care justice. These issues relate to the fourth problem, (d) the Problem of Measurement: any right to health care must be concrete enough to measure realization that is achievable in a world resembling our own. Where a right is too broad, the fifth and final concern arises: (e) the Problem of Correlativity: it is difficult to identify who owes a duty to provide health care or the exact contours of their duty. This final problem can also arise when, for instance, it is unclear why particular individuals should be duty-bound to help promote others’ health. An adequate theory of the right to health care should be able to address these concerns. For it to do so, the right must be independently morally justifiable and, as the Problem of Measurement makes clear, action-guiding for law- and policy-makers. To these “independent moral justification” and “action-guiding” criteria for an adequate model of the right to health care, I will add an “explanatoriness” criterion: a model should be able to explain the claimed and existing rights we see in the real world. Otherwise, the breaks between theory and practice will remain. This work explores how one would answer the preceding questions and concerns if one sought to explain the health right phenomenon in international and domestic law and in philosophy as part of a coherent whole furthering a philosophically justified and practically realizable project. The specific problem I seek to address is that the various instantiations of the transnational phenomenon of recognizing rights to health care in international and domestic law are not clearly related and there are questions about how best to understand these rights, whether such rights can ever be realized, and how best to measure and improve such realization. I accordingly seek an account of the right to health care that makes it a unique and justifiable contribution to our moral ontology and that can explain the roles it already plays in various normative domains and why controversies persist about those roles while helping to resolve those controversies. My main theoretical posit is that any “right to health care” deserving of the name must have basic substantive content, ensure procedural fairness in decision-making about other health care allocation decisions, and be embedded in a health care system capable of securing the other components. As detailed in my discussion of competing models below, focusing solely on substance would leave the right’s scope indeterminate and potentially leave the right incapable of being realized, while focusing solely on fair procedures would make the right redundant. A right to health care must accordingly include both substantive and procedural content. Certain institutional or ‘systemic’ guarantees are then instrumentally necessary to protect both. Any right to health care deserving of the name must therefore be “pluralist” in nature. This finding alone is theoretically important. For instance,

Introduction

11

as detailed in chapter 4, the international human right to health care shares this form. This counts in favour of the international understanding of health rights. But this theoretical structure alone is insufficient action, for it leaves much of the content of the right indeterminate. I accordingly go on to argue for a conception of a pluralist right that can meet the challenges facing a plausible account of the right to health care. In what follows, I argue that critical analysis of the relevant legal phenomena and philosophical arguments suggests that the right to health care is a set of related claims to (1) the goods necessary for a dignified existence, (2) procedural fairness in determining what other goods will be provided and in the provision of goods, and (3) a functioning health care system. I call this “the pluralist right to health care” because it uniquely avoids the problems facing competing models. But the following can be read as an argument for the necessarily pluralist nature of a right to health care even if one is ultimately unconvinced that my account of how to fill in the content can succeed. The pluralist right to health care that I promote is a “master conception” that seeks to be applicable as a moral right or a legal right. In this work, I will discuss it primarily as a moral phenomenon that has been recognized as something that should be protected in law. But it can also be understood as an explanation of what existing legal rights would have to do in order to be justified. I do not assume that any form of legal right – constitutional or otherwise – is justified or will actually realize the goals that a plausible right to health care must be designed to promote. Indeed, my later empirical analysis suggests that direct recognition of even a pluralist right to health care may not be the best method of fulfilling the ends that a pluralist right is meant to promote. Of course, I accept that my account must be capable of guiding interpretation of legal health rights in order to be adequately action-guiding in the domains in which “health rights” currently exist. But my pluralist right can meet this lesser burden. Indeed, if a constitutional right to health care exists, it should likely take a pluralist form so as to be plausible and avoid scope problems. Moreover, the value of the pluralist right to health care extends beyond constitutional law alone. Such a right’s interests are more fundamental: specifying what a right would have to look like to play its purported normative roles in law and ethics while avoiding challenges facing competing views. The Existing Literature This work builds on, but is distinct from, existing work in several related literatures. It is the first sustained single-authored analysis of the right to health care that includes a philosophical account of the right and metrics scholars can apply to test and improve realization thereof. There are existing works on (1) the content and realization of international social, economic, and cultural

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Te Pluralist Right to Health Care

rights, which include the right to health care;29 (2) how to understand and justify the content and structure of human rights from a theoretical perspective;30 (3) health care justice;31 (4) the Canadian health care system;32 and (5) how to use the law to improve health outcomes.33 Many of these works focus on law and policy or on philosophy without synthesizing the two.34 These are valuable works, but they are also distinct from the present project, which synthesizes existing work in multiple fields and then builds on that work to provide original theoretical and empirical insights. Nearly every existing text on related rights either focuses on human rights as a general class, on social, cultural, and economic rights as a more limited class, or on the international right to health alone. To my knowledge, the only existing single volume on the right to health care generally is a dated, multi-authored essay collection from a non–academically affiliated publisher.35 Several more broadly focused 29 E.g., Malcolm Langford, ed, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge UP, 2008); Gauri & Brinks, supra note 7; Lanse Minkler, ed, Te State of Economic and Social Human Rights: A Global Overview (Cambridge: Cambridge UP, 2013); Malcolm Langford, César Rodríguez-Garavito & Julieta Rossi, eds, Social Rights Judgments and the Politics of Compliance: Making It Stick (Cambridge: Cambridge UP, 2017); Young, Future, supra note 2. Martha Jackman & Bruce Porter, eds, Advancing Social Rights in Canada (Irwin Law, 2014), is a Canadian case study. 30 E.g., Shue, supra note 3; Sunstein & Holmes, supra note 3; Macklem, supra note 14; Jef King, Judging Social Rights (Cambridge: Cambridge UP, 2012); Allen Buchanan, Te Heart of Human Rights (Oxford: Oxford UP, 2013); Rowan Cruf, S Matthew Liao & Massimo Renzo, eds, Philosophical Foundations of Human Rights (Oxford: Oxford UP, 2015). For an account focused on economic and social rights, see e.g., Katharine G Young, Constituting Economic and Social Rights (Oxford: Oxford UP, 2012) [Young, Constituting]. 31 E.g., Daniels, JHC, supra note 5; Prah Ruger, Health, supra note 5. 32 E.g., Katherine Fierlbeck & William Lahey, eds, Health Care Federalism in Canada (Montreal & Kingston: McGill–Queen’s UP, 2013); Joanna Erdman, Vanessa Gruben & Erin Nelson eds, Canadian Health Law and Policy, 5th ed (Toronto: LexisNexis, 2017). For work that blends theoretical and policy insights in this domain, see e.g., Colleen M Flood, ed, Just Medicare: What’s In, What’s Out, How We Decide (Toronto: U Toronto P, 2006). 33 Tis is a plausible reading of e.g., Gauri & Brinks, supra note 7, and Yamin & Gloppen, supra note 7, though both take sceptical views of law at times. It is also a common focus of the health and human rights literature. Jonathan Mann et al., eds, Health and Human Rights: A Reader (New York: Routledge, 1999), is representative. See also e.g., Andrew Clapham et al., eds, Realizing the Right to Health, Swiss Human Rights Book Vol. 3 (Berne: rüfer & rub, 2009). For related Canadian work, see e.g., Colleen M Flood, Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: Te Legal Debate Over Private Health Insurance in Canada (Toronto: U Toronto P, 2005); Jocelyn Downie & Elaine Gibson, eds, Health Law at the Supreme Court of Canada (Toronto: Irwin Law, 2007). 34 But see e.g., Danis, Clancy & Churchill, supra note 25. 35 Tomas J Bole III & WB Bondeson, Rights to Health Care (New York: Springer, 1991/2013). John Tasioulas, Te Minimum Core of the Human Right to Health Care (Washington: Te World Bank Group Nordic Trust Fund, 2017), could also arguably qualify, though it only concerns the content of a controversial international right.

Introduction

13

books are essay collections that apply existing frameworks to case studies.36 The best of these blend the normative with the empirical by applying philosophical frameworks to case studies. For instance, several good, related works defend a procedural account of health care justice – Norman Daniels and James E. Sabin’s accountability-for-reasonableness framework – and explore its implications for legal and health care systems design in particular states.37 But the framework and metrics are still separated. My work builds on insights generated by a multitude of disciplines, contributing to scholarship by providing a model of rights that reconciles and develops competing procedural and substantive conceptions of a right to health care in a way that addresses the problems facing existing models. My work thereby establishes a normative justification for many existing laws in addition to explaining how to operationalize the relevant right. Understanding the state of the health rights literature will help place my own contribution and indebtedness to earlier work in perspective. To begin, positive law scholarship on the right to health care is a valuable resource for any analysis of health rights, and it is particularly valuable for works like my own that seek to explain existing law. A vast legal scholarship has analysed the current scope of international economic, social, and cultural rights, including the right to health, and how we should understand these rights now and in the future. Lawrence O. Gostin,38 Sofia Gruskin,39 Paul Hunt,40 Jonathan Mann,41 36 Langford, supra note 29; Gauri & Brinks, supra note 7; Minkler, supra note 29; Yamin & Gloppen, supra note 7; Flood & Gross, supra note 19; Brigit Toebes et al., eds, Te Right to Health: A Multi-Country Study of Law, Policy, and Practice (New York: Springer, 2014). 37 Tis is, e.g., a key component of the excellent work of Flood, supra note 32. For Daniels & Sabin’s work, see e.g., Norman Daniels & James E Sabin, Setting Limits Fairly: Learning to Share Resources for Health, 2nd ed (Oxford: Oxford UP, 2008). Keith Syrett, Law, Legitimacy, and the Rationing of Health Care: A Contextual and Comparative Perspective (Cambridge: Cambridge UP, 2007), also fruitfully applies some philosophical frameworks to assess the contribution of courts to some health outcomes, but theory is not his focus and his metrics difer. 38 Gostin’s work on this issue and his Framework Convention for Global Health to further realization of the right is widely known and appears in many texts, including e.g., Jose M Zuniga, Stephen P Marks & Lawrence O Gostin, eds, Advancing the Human Right to Health (Oxford: Oxford UP, 2013), and, on the Framework Convention, Lawrence O Gostin & Eric A Friedman, “Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice” (2013) 13(1) Yale Journal of Health Policy, Law, and Ethics 1. Gostin is also a contributor to Jonathan M Mann et al., “Human Rights and Public Health” in Mann et al., supra note 33, 4. All scholars in the list are widely published. I provide one exemplary publication for each for the sake of space. 39 See e.g., Mann et al., ibid, and further note that she co-edited the reader in which it appears. 40 See e.g., “Interpreting the International Right to Health in a Human Rights-Based Approach to Health” (2016) 18(2) Health and Human Rights Journal 109. 41 See e.g., Mann et al., supra note 33, and further note that he co-edited the reader in which it appears.

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Te Pluralist Right to Health Care

Alicia Ely Yamin,42 and others have ably examined and critically engaged with the positive international law related to the right to health. This scholarship often does not focus on the right to health care, but almost all scholars recognize that the right to health includes rights to certain health entitlements. The literature on domestic social and economic rights, including leading collections edited by Malcolm Langford and Katharine G. Young that also address international components, also often features details on the right to health care.43 Leading comparative law texts edited by Flood and Gross,44 Yamin and Siri Gloppen,45 and Varun Gauri and Daniel M. Brinks46 detail the impact of domestic health rights, including constitutional health rights, on a variety of states. Some contributors to those volumes also analyse international and domestic health rights, including regional patterns of domestic rights.47 Most states, then, have scholars examining the nature of their domestic rights. For instance, Lisa Forman’s work on South Africa’s right to health care services is illuminating.48 My own work seeks explain the important findings in the preceding (and related) works. It also seeks to build on this literature by developing metrics for determining whether states are realizing the positive right to health care and whether legal interventions are valuable means of improving realization of the right. I then apply those metrics to Canada as a case study. A central issue in the philosophical analysis of health rights focuses on the moral issue of the nature of the justification for legal health rights. While there 42 See e.g., “Te Right to Health Under International Law and Its Relevance to the United States” (2005) 95(7) American Journal of Public Health 1156. 43 Langford, supra note 29; Young, Future, supra note 2. Young’s volume actually features a very good chapter devoted to the Canadian case study I address in this book, though it has a narrow, constitutional law–based focus; Colleen M Flood, Bryan Tomas & David Rodriguez, “Canada’s Confounding Experience with Health Rights Litigation and the Search for a Silver Lining” in Young, Future, supra note 2, 353. 44 Flood & Gross, supra note 19. 45 Yamin & Gloppen, supra note 7. 46 Gauri & Brinks, supra note 7. 47 Compare e.g., Lisa Forman et al., “Conceptualising Minimum Core Obligations under the Right to Health: How Should We Defne and Implement the ‘Morality of the Depths’” (2016) 20(4) Te International Journal of Human Rights 531; Everaldo Lamprea, “Colombia’s Rightto-Health Litigation in a Context of Health Care Reform” in Flood & Gross, supra note 19, 131; and Everaldo Lamprea, “Te Judicialization of Health Care: A Global South Perspective” (2017) 13 Annual Review of Law and Social Science 1. 48 E.g., Lisa Forman, “Justice and Justiciability: Evaluating Right to Health Jurisprudence in South Africa” (2008) 27 Journal of Medicine and Law 661 or, more recently, Lisa Forman & Jerome Amir Singh, “Te Role of Rights and Litigation in Assuring More Equitable Access to Health Care in South Africa” in Flood & Gross, ibid, 288. For an infuential account of that state’s broader social rights jurisprudence, which includes some discussion of the health right there, see Brian Ray, Engaging with Social Rights (Cambridge: Cambridge UP, 2016).

Introduction

15

are many approaches to this issue, the central tension is between scholars who believe that all health rights must have a non-legal moral justification and scholars who believe that law has its own normativity that can ground recognition of claims. Daniels does not explicitly argue in the language of rights or seek to explain legal phenomena, but his commitment to political morality as the primary starting point for analysis of health care entitlements, which function as health rights, makes him an exemplar of the moral approach to health rights.49 Jennifer Prah Ruger’s justice-based commitment to health care entitlements takes a similar tack.50 Those who deny the existence of or justification for health rights also often focus on the lack of moral health rights as determinative of the question of whether any health rights are justified. Onora O’Neill provides the classic argument of this form, stating that rights must have clear identifiable duty-holders with achievable duties, and that “social” (or, better, “socio-economic”) rights, a subset of positive rights that includes the right to health care, lack these features.51 This is the paradigmatic Problem of Correlativity challenge.52 Jonathan Wolff, by contrast, is a proponent of the view that international human rights law has its own normativity and that independent moral justification for health rights is unnecessary.53 Wolff ’s work builds on a long tradition that examines the internal morality of international human rights law practice. Charles Beitz, Joseph Raz, Henry Shue, and Patrick Macklem are exemplary of this approach to the philosophy of human rights.54 Debates about the proper scope of the right to health care also persist in the relevant legal and philosophical literatures. King summarizes the literature to suggest that the international right takes the following form: “Everyone has the right to adequate . . . [health care and t]he state shall take reasonable measures, within available resources, to implement the right.”55 Yet serious debates continue about which health care goods one must provide in order for them to be “adequate” and about how this is to be decided. Perhaps chief among the sub-debates in this literature is the one about whether the international 49 Daniels, JHC, supra note 5. 50 Prah Ruger, Health, note 5. 51 She argues against social rights, which she takes to include the right to health, generally. See the works in note 6. 52 Sreenivasan, “II,” supra note 6, provides a more contemporary update of that classic work 53 Wolf, supra note 4. Indeed, at 179, Wolf states that philosophers’ focus on justifcation for international rights is unwarranted and defects attention from the important task of explaining international practice. 54 For Beitz, see e.g., Te Idea of Human Rights (Princeton: Princeton UP, 2009). For Raz, see e.g., “Human Rights Without Foundations” in Samantha Besson & John Tasioulas, eds, Te Philosophy of International Law (Oxford: Oxford UP, 2010) 321. I already cited Shue in note 3 and Macklem in note 14. 55 King, supra note 52 at 98.

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Te Pluralist Right to Health Care

right to health care has a “minimum core” that states must provide immediately before progressively realizing other parts of the right or whether states can simply take reasonable measures to provide adequate health care. Forman and her colleagues defend a minimum core approach to the content of the right but also observe a shift toward a reasonableness standard as a matter of positive international law.56 Katharine G. Young, a leading scholar of economic, social, and cultural rights generally with special expertise on the purported minimum core, criticizes the minimum core but finds some value in the fact that interpreters of that notion recognize an overlapping consensus on what goods should be prioritized in international law.57 Constitutional jurisdictions vary in their approaches to the right to health care. South Africa famously adopted a reasonableness standard for social rights claims, which leaves open the possibility of a limited resources–based defence to a governmental failure to achieve a minimum core.58 Other states, like Brazil and Colombia, recognize expansive rights to many health care goods, including non-core goods; these rights are sometimes so expansive as to make the attendant government duties overwhelming and unreasonable.59 The literature clearly recognizes the Problem of Scope. Other scope-related problems are nearby. Another primary division in the existing literature on health rights is between scholars who view health rights as primarily procedural and scholars who view health rights as necessarily including substantive components. As with any stylized account of a vast field, this distinction relies on a measure of simplification. Most procedural accounts of health rights argue that perfect procedural justice will also achieve valuable substantive ends, while most proponents of substantive health rights argue for procedural fairness in the distribution of the substantive ends they promote. Nevertheless, some scholars clearly value procedure over substance and vice versa. For example, while Daniels builds 56 See e.g., Forman et al., supra note 47. 57 “Te Minimum Core of Social and Economic Rights: A Concept in Search of Content” (2008) 33 Yale J Int’l L 113. See also her book, Young, Constituting, supra note 30. 58 Tiagraj Soobramoney v Minister of Health (Kwa-Zulu Natal), 1998 (1) SA 765 (CC) (S Afr); Government of the Republic of South Africa and Others v Irene Grootboom and Others, 2000 (11) BCLR 1169 (CC) (S Afr). 59 See note 7, which includes chapters based on each. Notably, the existence of these expansive duties also does not serve as an efective tool against massive retrogression in the quality of the health care systems in those states. E.g., legal health rights in Brazil were insufcient avoid a massive downturn in the basic quality of that state’s health care system that has lef many Brazilians unable to access basic health care goods – or even service centres. Tough much of that retrogression was due to a lack of health care providers, the consequences, such as defciencies in primary health care for children, are clear right to health care failures; Shasta Darlington & Leticia Casado, “Brazil Fails to Replace Cuban Doctors, Hurting Health Care of 28 Million” Te New York Times (11 June 2019), online: Te New York Times .

Introduction

17

on a tradition that highlights the importance of “primary goods,”60 the health care entitlements he promotes are predominantly procedural.61 Scholars who seek the promotion of particular ends, by contrast, promote rights to substantive goods that achieve those ends. Ruger’s and Amartya Sen’s respective commitments to equality of “capabilities” as a precursor to any procedural justice leads them to prioritize entitlements to substantive goods needed to exercise one’s capabilities.62 Wolff ’s international law–focused right includes substantive entitlements included in the international right. For instance, he highlights increased access to treatment for HIV/AIDS as a substantive success in rights realization.63 Regardless, both substantive and procedural models of the right to health care raise (at least) some of the problems identified earlier. For instance, procedural approaches can be understood as a response to scope-related problems but do not solve them. Any substantive conception will raise questions about how to non-arbitrarily differentiate what is covered from what is not covered. A fair procedure is necessary to fairly adjudicate between claims. One may argue that such a procedure should, more generally, exhaust the content of the right, since the Problem of Principles of Scope makes even a starting point for content hard to identify. Yet this just raises questions about the scope of the right’s procedural guarantees and, given that procedural rights already exist elsewhere in law and morality, whether there is anything special about procedural guarantees in the health care arena that justifies calling their combination a right to health care. A purely procedural right, then, faces its own Problem of Scope and appears redundant. These legal and philosophical debates and concerns are related. If the philosophical right to health care is strictly procedural, then the international right to health care’s substantive commitments require some other explanation and the minimum core’s specific entitlements to particular health care goods are at odds with the best account of the structure of a health right. Moreover, even if international human rights law has its own normativity, some moral justification for the international legal system remains necessary. Finding some means to help realize the best moral understanding of the right would be one way of providing the international right with partial justification. But this presupposes identification of the nature of the right. Existing debates also bear on questions of how to measure realization of the right to health care and how to collect data for use in improving and/or 60 John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Belknap Press, 2003) at 58–59. 61 See e.g., Daniels, JHC, supra note 5 62 Prah Ruger, Health; Sen, Development, supra note 4; Sen, Idea, supra note 5. 63 Wolf, supra note 4 at e.g., 53–59.

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Te Pluralist Right to Health Care

maximizing such realization. A strictly procedural right to health care may only measure the existence and strength of procedural safeguards for health care justice. It could, in theory, fail to measure access to the health care goods that contribute to increased health, an important moral good. A substantive right will need to measure entitlements and access to substantive ends. That may require specifying particular health care goods that are part of the scope of the right, which is difficult to do in a non-arbitrary fashion. These different tests will lead to different results regarding how particular health care systems perform from a health rights perspective and what measures one should take to improve realization. These standards can even help us better understand which forms of legal health rights best achieve the ends we seek to promote through particular conceptions of health rights. It may be the case that states with constitutional health rights do not best fulfil the minimum core. For instance, constitutional health rights may be co-opted for the pursuit of expensive non-core goods and/ or require so much funding for health care that programs necessary to fulfil the minimum core of other social determinants of health (and thus the right to health) cannot also be funded.64 These are empirical questions that require empirical analysis. Good metrics are necessary to perform that analysis. This is, in the end, simply a more detailed way of articulating the need for an actionguiding criterion for a model of the right. I thus defend a set of metrics in chapter 5. I then apply them and demonstrate how they can be action-guiding in chapters 6 to 8. The Current Project Answering lingering questions about the right to health care and resolving some of the related debates is not only important for making sense of a transnational phenomenon. Insofar as access to health care contributes to health outcomes and properly developed health rights could increase access to health care, the right to health care is potentially important for global health and for our understanding of the relationship between human rights and health. Adequately modelling a right to health care, then, is more than an interesting theoretical exercise – it is also practically relevant. This work attempts to contribute to this important endeavour, building on the literature discussed earlier and attempting to find common ground in as many debates as possible while seeking a philosophically justifiable and practically realizable version of the right to health care. In the process, I challenge some common views about the nature of rights generally, thereby contributing also to the philosophy of rights. 64 See note 28 and surrounding.

Introduction

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I believe that both (broadly) procedural and substantive right to health care theorists recognize important insights that can be synthesized in a pluralist conception of the right to health care and that only a pluralist conception of the right to health care is explanatory of the variety of health rights theories and the international and transnational legal health rights phenomenon. In what follows, I argue that moral and legal health rights seek to further the same important moral ends. Neither model perfectly fits the traditional model of human rights, in which there is a clear duty-holder and a small set of correlative duties; rather, the right is best understood as a set of independently justified claims that can fall under a more plausible modification of that traditional rubric. To avoid problems of too broad or narrow a scope and to explain existing law, I will specifically argue that the right to health care is best understood as a set of claims to (1) the goods necessary for a dignified existence, (2) procedural fairness in determining what other goods will be provided and in the provision of goods, and (3) a functioning health care system – claims that governments should fulfil. I will argue that unlike competing models, this approach clearly fulfils the explanatoriness and independent moral justification criteria for an adequate theory of rights. I will then explore the implications of this picture for other questions about the right to health care, such as how to measure and improve realization of that right. By applying the metrics that follow from my theory, I will establish that my theory can be action-guiding. I will also demonstrate the utility of my work by showing how scholars can use it to measure rights realization in their own states. I believe that wide application is necessary in order to understand how best to fulfil the aims of the right to health care. I only begin to attempt a response to that issue here, focusing on a case study. Scholars who question my general picture can read this text as an analysis of the implications of my model for measurements and realization questions. If one finds the metrics valuable, this may lead one to reconsider my theoretical contribution. The book has two parts. Part I defends an original account of the content of and justification for the right to health care. Part II applies the new theory of the right to health care to the Canadian health care system. It thereby demonstrates how to operationalize the theory and provides insight into Canadian health care. A Conclusion outlines directions for future research. In Part I, I argue that a positive right to health care is best understood as a “pluralist” right where pluralist rights are rights with multiple related, but irreducible, morally valuable components. The right to health care is, again more specifically, best understood as a series of claims to (1) the goods necessary for a dignified existence, (2) procedural fairness in determining what other goods will be provided and in the provision of goods, and (3) a functioning health care system understood as a means of determining what is covered by a system, a means of providing those goods, and data collection on how those means are

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Te Pluralist Right to Health Care

fulfilled. This pluralist understanding of the right can fit a modified version of the claim right model. It is also independently justifiable and consistent with the structure of health rights in international human rights law and some existing positive constitutional health rights. Only the pluralist version of the right to health care can fit the traditional claim right model, explain the structure of existing rights and rights claims, precisely specify the minimal content of the right in a way that makes the right practically realizable yet contributes to improved health outcomes, resolve borderline cases regarding what must be covered, and allow for variations in coverage in different states. In achieving these aims, my account links existing moral and legal forms of health rights and explains how they are related to one another as well as part of a broader justifiable normative phenomenon. To demonstrate how my pluralist right to health care is action-guiding and realizable, I also show how this conception provides metrics for realization of the right, providing an account of what a right to health care must accomplish in concrete terms. This argument demonstrates the empirical implications of theoretical work on the right to health care and provides health law and policy scholars with a tool for determining how best to realize the right to health care. I argue for six sets of metrics related to the parts of my pluralist right to health care and reflected in international law. Each relates to components of the pluralist right to health care. For instance, metrics related to “essential” (in the sense outlined in chapters 2 to 5 below) good coverage help measure (1) the goods necessary for a dignified existence, while the administrative justice metrics help measure (2) procedural fairness in health care allocation and systemic metrics follow directly from a commitment to (3) a functioning health care system.65 In chapter 3, I defend my original account of the nature and scope of the right to health care. My account of (1) builds on important work on dignity by Jeremy Waldron,66 Michael Rosen,67 and others.68 My defence of (2) builds primarily on the work of Daniels and Sabin. I then argue that (3) is instrumentally necessary 65 I proscribe applying the metrics not only to general populations but also to groups whose members are less likely to have the means to enjoy a dignifed existence. Tis is necessary to refect the moral priority of the groups and international law’s commitment thereto. Te terms “marginalized groups” and “vulnerable groups” below refer to groups whose members are less likely to have the means to enjoy a dignifed existence. I am aware of issues with the use of both terms. Yet international law uses both, dignity-based stipulated defnitions of each avoid the worst issues, and alternative terms for identifying those groups face similar or new problems. 66 E.g., Jeremy Waldron, Dignity, Rank, and Rights, ed Meir-Dan Cohen (Oxford: Oxford UP, 2012). 67 E.g., Dignity: Its History and Meaning (Cambridge, MA: Harvard UP, 2012). 68 E.g., historical work by Immanuel Kant, Te Metaphysics of Morals, trans Mary Gregor (New York: Cambridge UP, 1996).

Introduction

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to realize (1) and (2). In chapter 4, I argue that international human rights law supports my model. This supports the explanatoriness of my model. In chapter 5, I argue that critical analysis of the relevant international law precisifies the scope of the right and provides metrics for realization, making my work more justifiable and action-guiding. In Part II, I apply my framework and its attendant metrics to the Canadian health care system in order to demonstrate how my theory can help guide health care system design as well as health law and policy-makers. I apply the metrics I have developed to core elements of the Canadian health care system and explore how three branches of public law (constitutional, human rights, and administrative) can improve Canada’s scores on those metrics. In chapters 6 and 7, I apply my metrics to the mainstream Canadian health care system and to two programs for specific marginalized/vulnerable populations – the refugee claimant-focused Interim Federal Health Program and the Indigenousfocused Non-Insured Health Benefits Program – and, in doing so, identify gaps in realization of the right. Chapter 8 looks at the legal options for remedying deficiencies. I argue that all three branches of public law can be reformed to better realize the pluralist right to health care but that law alone may not maximize rights realization. I thereby provide insight into how to reform Canadian health care and how to realize the right to health care generally. In the Conclusion, I summarize my findings and explain how the metrics need to be applied more broadly to understand which forms of health care system design and which legal interventions will maximize realization of the pluralist right to health care. I further explain how empirical findings highlight the need for other conceptual analyses. I then identify directions for future research and propose a collaborative and international research project. No text will definitively end debate on this topic. But this work synthesizes and builds on an existing literature to motivate a philosophically justifiable account of a right to health care that is explanatory of existing law and philosophical debates and is measurable and achievable in the real world. I will now explain the relevant phenomena in more detail and articulate the contours of my analysis. Substantive argument begins in chapter 3 and continues to the end of the work.

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Chapter Two

Health Rights: A Taxonomy

Introduction The current project sets out to explain how a right to health care can be independently morally justifiable, explanatory of the existing health rights phenomenon, and action-guiding for health care policy and law. This is, admittedly, an ambitious task. Achieving this goal requires that I first explain the relevant phenomena in more detail, thus setting the contours of an “explanatoriness” criterion for an adequate theory of the right to health care, and then explain the problems facing existing models of the rights, thereby establishing “moral justification” and “action-guiding” criteria for a right to health care that exists in the real world. This chapter begins this task, providing necessary background information for the positive argument that begins in chapter 3. This chapter consists of an overview of different types of health rights and an explanation of the problems facing existing models of “the” right to health care. It first provides basic information about “rights” and some implications for the present analysis. I discuss how scholars view “rights” and present a stylized taxonomy of entities that purport to provide “rights” to health or health care. These components of the chapter are functional, simply seeking to provide information that is relevant to the present issue. They cannot replace broader accounts of the nature of rights found in philosophy of rights textbooks. But their basic points suffice to describe and evaluate the health rights phenomenon at issue here. Moreover, the sources cited below can be used to develop the more robust taxonomy of “rights” that one might expect in such a textbook. The second part of this chapter explains how the present work relates to existing accounts. In short, I seek a “master conception” that is explanatory of the justified versions of all the health care rights. Such a concept is presently lacking, due to theoretical problems with existing models that I outline at the end of the chapter. These include the difficulty of specifying the content of duties correlative to moral rights; practical problems with implementation such

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as the “co-opting” or “hijacking” of legal health rights to fund goods that are not strictly necessary for even an above-average life and that are merely desired by wealthy individuals; and the prospect that legal health rights recognition will lead to overspending on health care to the detriment of other important social goods. A justifiable account of the right to health care should explain how these phenomena relate to one another and how to avoid the problems facing each. Later chapters will detail how my own account of the right can do all this, thereby meeting the “explanatoriness,” “moral justification,” and “actionguidingness” criteria for a plausible account. Rights and Duties Understanding the variety of forms that “rights” in general can take is helpful for understanding possible forms that a right to health care may take. This section accordingly provides some idealized distinctions between the kinds of rights that are claimed and recognized. As with all idealizations, it elides some important distinctions in the literature. Moreover, some distinctions it highlights may not be ones we should accept. Yet the distinctions here are a useful introduction to the issues surrounding different rights projects, including the present project. Throughout the section, I try to flag some complications that are orthogonal to my project. But this section still will not completely replace an in-depth study of the structure of rights one can find elsewhere. To begin, rights entail corresponding duties. For there to be a right, in other words, there must be some way to fulfil it and someone who has an obligation to fulfil it.1 This is largely axiomatic. Perhaps the most famous articulation of this point appears in Wesley Newcomb Hohfeld, who further distinguishes between “claim rights” and “liberty rights.”2 According to Hohfeld, claim rights correspond to duties to provide particular entitlements to rights-holders while liberty rights provide an individual with freedom to act absent obligations to others.3 While Hohfeld’s own liberty rights do not correspond to duties,4 we 1 Obligations and duties likely difer, but any distinctions are not relevant to this project and I will accordingly treat them as largely synonymous here. Tis is consistent with many works, including Michael J Zimmerman, “Duty and Obligation,” in Hugh LaFollette, ed, Te International Encyclopedia of Ethics (Hoboken: Blackwell, 2013) 1483. 2 See e.g., Wesley N Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23(1) Yale LJ 16 at 31 [Hohfeld, 1913]; Wesley N Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710 [Hohfeld, 1917]. He also distinguishes “privileges” and “immunities.” Tat further distinction is not germane to the present issue but is important for a full understanding of rights. 3 See especially Hohfeld, 1913, ibid. 4 “Liberty rights” are seen as not directly imposing duties in both works in note 2. Heidi M Hurd & Michael S Moore, “Te Hohfeldian Analysis of Rights” (2018) 63(2) Am J Juris 295 at 295,

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can understand both claim rights and liberty rights in terms of the “duties” they impose. Freedom to exercise one’s liberty requires that others refrain from doing certain acts. Others are bound to refrain regardless of whether we understand the constraints as “duty” or “obligation” based. A claim right corresponds to duties to provide particular entitlements to rights-holders. A liberty right corresponds to duties not to interfere with a rights-holder’s decisions or actions. The former are often viewed as the paradigmatic “rights.”5 Rights “properly so-called” are accordingly understood to be “correlative” with duties such that proper rights bind particular duty-bearers to provide particular goods to rights-holders.6 Liberty “rights,” in turn, use “rights” language but are characterized by the lack of obligations imposed.7 They may, for instance, correspond only to general duties of non-interference and so may not really impose specific “duties” or “obligations” on specific individuals so much as constraints on the actions of all persons.8 The literature accordingly sometimes distinguishes between “rights” and “freedoms,” with only the former supposed to create specific obligations and so create specific duties.9 Yet “freedoms” too can only be operationalized when recognized as imposing duties on others. It is accordingly appropriate that claim rights and liberty rights are both historically understood as “rights” – and “human rights” as a class are understood as capturing both

5

6 7 8

9

thus identify this orthodoxy: “Hohfeld is seen as distinguishing rights to do things (liberties or privileges) from rights to have things done for or to one (claim rights). Only the second have correlative duties, the frst having as its correlative only the absence of a right that the actor not do that which he has a privilege to do.” Some (e.g., Gopal Sreenivasan, “A Human Right to Health? Some Inconclusive Scepticism” (2012) 86(1) Aristotelian Society Supplementary Volume 239) take Hohfeld’s observation that in “ordinary legal discourse,” rights tend to be viewed as correlative with duties, to be a feature of rights. Hohfeld is also commonly invoked in moral domains; see e.g., Jeremy Waldron, ed, Teories of Rights (Oxford: Oxford UP, 1984) at 8, or Hugh Upton, “Right-Based Morality and Hohfeld’s Relations” (2000) 4(3) Te Journal of Ethics 237. See Michael Da Silva “Correlativity and the Case Against a Common Presumption About the Structure of Rights” (2020) 54 Journal of Value Inquiry 289 [Da Silva, “Correlativity”] for more detail. Hohfeld, 1913, supra note 2; Hurd & Moore, supra note 4. Hurd & Moore, ibid, make a strong case that Hohfeld’s interest goes beyond non-interference. But sources cited therein have been used to fashion the claim that the liberty rights–claim rights distinction tracks a right of non-interference-right to an entitlement distinction is inherent to the Hohfeldian scheme, if not to Hohfeld himself. Of course, “liberty” too is understood as having both positive and negative variants, with only the latter concerning noninterference alone, on one of the most infuential accounts; see e.g. (and most famously), Isiah Berlin, Four Essays on Liberty (Oxford: Oxford UP, 1969). Debates about which forms of liberty should be protected – and/or to what extent each should be protected – ofen mirror debates about positive and negative rights discussed below. Sources in Hurd & Moore, supra note 4, and Da Silva, “Correlativity,” supra note 6, further clarify the distinctions.

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“rights and freedoms.”10 While claim rights alone create specific entitlements, liberty rights too can be cashed out in terms of the requirements they place on others. Performance of those requirements can be understood as entitlements belonging to the rights-holder. A “right” is thus a claim to some entitlement. The content of A’s right can be defined as “A’s entitlement to X from B.” X could be a good or a service. One could have a right to payment for services. The service-recipient would then have a duty to give the rights-holder money. This would be a traditional claim right. One could also have a right to picnic on a public lawn. Everyone would have a (defeasible) duty not to stop the picnicker from laying down her blanket. Hohfeld’s own distinctions are based entirely on an analysis of private law rights and accordingly should not be taken as dispositive of the “nature” of rights in general.11 Resolving debates about whether liberty rights correspond with duties is accordingly beyond the scope of this work. Yet Hohfeld’s basic distinctions remain important. Indeed, even if we can recast liberty rights in terms of entitlements, the “claim right”/“liberty right” distinction likely tracks an important moral distinction between rights that create specific entitlements to specific goods or services from specific individuals and “rights” or freedoms that create general duties not to interfere with others’ actions. Scholars accordingly distinguish between “positive rights” to particular goods or services and “negative rights” of non-interference.12 In the health care context, a right to receive a given health care good is a paradigmatic example of a positive right to health care. A right (or “freedom”) not to face criminal sanction for taking a health care good is a negative right. Practical realities raise questions about the positive rights/negative rights distinction, but that distinction has merit and there is reason to examine the case for a “positive” right to health care where that distinction remains. The distinction between positive and negative rights may strike some as ad hoc. After all, fulfilling a negative right can require positive action by a duty-bearer. Even the right to liberty requires the creation of state mechanisms needed to secure that liberty, such as a police force, for instance. One may even think that all negative rights require some positive action. Labelling some “rights” as

10 As Onora O’Neill, “Te Dark Side of Human Rights” 81(2) International Afairs 427 at 430 notes, modern liberty rights (largely non-interference rights) and rights to entitlements are now standardly called claim rights. On the law, note, e.g., the title of Canada’s constitutional human rights document: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 11 Da Silva, “Correlativity,” supra note 6. 12 E.g., Jan Narveson, Te Libertarian Idea (Peterborough: Broadview Press, 2001), provides a textbook account. See also e.g., Charles Fried, “Positive Rights” in Right and Wrong (Cambridge, MA: Harvard UP, 1978) 108.

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positive may accordingly simply be a rhetorical tool meant to limit state responsibility for more progressive actions. Health rights theorists may then find that denying the distinction is the best rhetorical response to persistent concerns about socio-economic rights. If all rights raise the same questions about which specific “positive” actions a government must take to fulfil them and why, socio-economic rights may appear less mysterious to many.13 Yet maintaining a distinction between the “positive” and “negative” can be morally valuable in other domains.14 Maintaining it here to distinguish between different kinds of rights also appears appropriate, particularly where the distinction largely tracks the claim right/liberty right distinction. Doing so allows us to view Hohfeldian claim rights and Hohfeldian liberty rights or freedoms as existing under a common entitlement-based rubric even while tracking an important distinction within it. These theoretical concerns suggest that the distinction can – and likely should – be maintained. It is, moreover, likely to remain in place. Demonstrating the plausibility of a right to health care as a positive right could help vindicate “positive rights” as a class, regardless of whether that class was created in an ad hoc manner. It is far from clear whether access to social goods would be better served by advocating against the positive rights/negative rights distinction in general, rather than arguing for the plausibility of particular positive rights. Exploring the latter possibility seems wise where the distinction has some merit. Duties also come in various forms. The distinction between perfect duties and imperfect duties is particularly common and controversial. The original definitions distinguish a perfect duty, which specifies a particular thing owed by a particular person to another particular person, from an imperfect duty, which “does not specify precisely in what way one is to act and how much one is to do by the action for an end that is also a duty.”15 The classical imperfect duties 13 Te point about positive action being necessary to realize positive rights appears in several sources. See e.g., the aforementioned Henry Shue, Basic Rights: Subsistence, Afuence, and U.S. Foreign Policy, 2d ed (Princeton: Princeton UP, 1996); Stephen Holmes & Cass Sunstein, Te Costs of Rights (WW Norton, 1999); or a later work by Sunstein, Te Second Bill of Rights: FDR’s Unfnished Revolution – And Why We Need It More Tan Ever (New York: Basic Books, 2004). I draw on these works and some basic critical concerns to develop the arguments here. See also Amartya Sen, “Elements of a Teory of Human Rights” (2004) 32(4) Philosophy & Public Afairs 315. 14 I make this point in Michael Da Silva, “Review Essay: Jef King, Judging Social Rights, Cambridge University Press, 2012” (2015) 9(3) ICL Journal: Vienna Journal on International Constitutional Law 463 at 470n47. 15 Immanuel Kant, Te Metaphysics of Morals, trans Mary Gregor (New York: Cambridge UP, 1797/1996) at 390 [Kant, Metaphysics]. Kant’s discussion of the distinction between imperfect and perfect duties is brief and appears to reduce to a recognition that some imperfect duties admit of “latitude” that potentially permit one to perform the acts with diferent motives and with diferent forms; Grounding for a Metaphysics of Morals, trans James W Ellington

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are those of self-improvement and beneficence.16 These duties are owed to particular individuals and admit of multiple means of fulfilment. But it is difficult to specify the precise relationship between the duty-holder and those bound to enforce the duty in any given case. While I may have a duty of beneficence, the extent to which I must aid any particular individual and the extent to which one can call on me over any other for aid is famously vexing. Controversies persist as to whether imperfect duties even exist and how we should understand them if they do exist. An “imperfect duty” could, in turn, refer to a duty that can be performed in many ways, a duty owed to a variety of persons, a duty that can only be partly fulfilled, or some combination of these distinctions.17 The basic idea is that there may be a class of duties that do not specify what the dutyholder must do in order to fulfil his or her duty or the precise person to whom the duty is owed or the precise person who holds the duty or the precise person who can uniquely command performance thereof. But which of these features, or combinations thereof, characterize imperfect duties is unclear. The preceding distinctions help explain some of the controversies surrounding the concept of a right to health care. For instance, health rights are often challenged for failing to specify perfect corresponding duties.18 They fail to provide what I elsewhere describe as “strong correlativity,” the requirement that X is a right if and only if X meets the following demands: (1) X is held by a clearly specifiable individual, A; (2) X has a clear correlative duty, Y; (3) Y has a clearly specified duty-bearer, B; and (4) A can demand performance of Y from B.19 It is, critics charge, hard to identify the duty-bearer who should be forced to provide others with health care or what they have to do to fulfil their duty. Now, as I also detail elsewhere, the case that rights must be strongly correlative remains underdeveloped.20 Many scholars move too quickly from the fact that Hohfeld and his predecessors, like Jeremy Bentham and John Austin, identified strong

16

17 18 19 20

(Indianapolis: Hackett, 1785/1983) at e.g., 398, 423, 430, 441. Some connect these points; e.g., David Cummiskey, Kantian Consequentialism (Oxford: Oxford UP, 1996) at 109. We can specify imperfect duties without appealing to motive and characterize them according to their multiple means of fulflment and difuse duty-holders. Tis is clear in numerous passages in both the Kant texts cited in ibid. Recognition of these duties is by no means limited to Kantians. E.g., WD Ross, Te Right and the Good, ed Philip Stratton-Lake (Oxford: Oxford UP, 1930/2002), at 21–22, also recognizes these duties, which may be imperfect in nature, as fundamental. For an account of the diferent meaning of “imperfect duty” (and a sceptical argument that no account is plausible), see Daniel Statman, “Who Needs Imperfect Duties?” (1996) 22(2) American Philosophical Quarterly 211. Sreenivasan, supra note 5. For similar arguments, see Fried, supra note 12; Onora O’Neill, Towards Justice and Virtue (Cambridge: Cambridge UP, 1996); Onora O’Neill, Bounds of Justice (Cambridge: Cambridge UP, 2000). Da Silva, “Correlativity,” supra note 6. Ibid.

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correlativity as a feature of private law rights to the view that all rights must be strongly correlative.21 But it is equally difficult to specify an alternative to strong correlativity.22 Explaining what an alternative form of correlativity might mean, why anyone should be duty-bound to act thereunder, and how such duties will operate is very difficult. These underlying concerns help explain the persistence of the five problems facing existing models of the right to health care that I introduced in chapter 1 and explain in further detail in a section below. I take an ecumenical view of rights here. On all accounts of which I am aware, “rights” entail entitlements of some kind (be they literal entitlements or mere non-interference) and create valid expectations of performance of the entitlements as well as second-order entitlements to censure non-performers.23 The question is whether a “right to health care” can create entitlements that persons should be able to claim from some specifiable class. Given that my own account seeks to explain the practice of health rights, my question is whether the concept of a right can plausibly ground one’s ability to make claims on a government to some set of health care–related entitlements and to censure the government for failure to secure those entitlements. A positive answer plausibly requires some moral reason to think that the government in particular is duty-bound to provide some health care–related entitlements to some specifiable class of individuals. There should also be some way of specifying, even if “imperfectly,” the content of those entitlements that stem from the reasons the government is bound to provide any entitlements. I am thus cognizant of the need to identify some correlativity between a right to health care and some duties, as well as to identify the content and scope of those duties. Rights can be further distinguished as moral or legal. While law is arguably a domain of morality, the distinction here is between rights that exist as a matter of ethics or political morality regardless of their recognition by any legal system, which I will call moral rights, and rights that exist in the law regardless of whether they are justified by some pre-existing moral or political system, which I will call legal rights. Ideally, there will be at least some relationship between these two kinds of rights.24 Legal rights without 21 Ibid, also discussing the form of strong correlativity promoted for legal rights found in Jeremy Bentham, Of Laws in General (London: Athlone Press, 1970); John Austin, Lectures on Jurisprudence: Volume I (Toemmes Press, 1879/1996); John Austin, Lectures of Jurisprudence: Volume II (Toemmes Press, 1879/1996). 22 Da Silva, “Correlativity,” ibid. 23 Again, I defend this position at length in ibid. 24 As detailed in later chapters, however, actual constitutional rights may not be the best means of realizing the intended ends of a plausible moral right to health care. Tere is actually reason to question whether constitutional rights can fulfl the intended ends of plausible constitutional rights to health care. Interpreting constitutional rights as pluralist rights nonetheless maximizes their potential for serving valuable moral ends, as I also detail later.

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any other moral justification appear prima facie problematic. Moral rights without any legal recognition may be difficult to fulfil through the law. Scholars who think the law must reflect morality will, of course, demand closer relationships between these kinds of rights, but they can exist apart from each other. For instance, international human rights law recognizes a right to a paid vacation. Many find this right morally problematic.25 But it still clearly exists as a matter of law. It is unsurprising that moral rights come in various forms. The primary distinction is between ethical rights that one possesses as a matter of basic interpersonal interactions and rights of political morality that one possesses as a matter of one’s larger sociopolitical context. This distinction may collapse if, for instance, all rights are understood as rights of non-interference and one’s political rights are just a subspecies of other rights against non-interference.26 If, moreover, rights only exist in the context of political arrangements, ethical rights are derivative from rights that exist as a matter of political morality. Yet a distinction in the literature remains between rights people claim as a matter of basic ethical principle and rights people claim as a consequence of some political authority. The further distinction between innate rights, which belong to persons by virtue of their humanity, and extrinsic rights, which one gains through recognition from other persons, is likely a variation of this broader distinction (though, of course, one could conceptually state that, for instance, innate rights require recognition to really exist). Whether moral rights must be strongly correlative and/or entail perfect duties remains debatable. Legal rights also differ in form. A primary distinction is between private law rights and public law rights. Private law rights are rights held by individuals against other individuals.27 Governments secure these rights through law. But private law relationships are fundamentally bilateral, with private law rights being held by one person and creating perfect duties binding other specified persons.28 These are the rights found in contract law, torts, and property law.29 The fundamentally bilateral nature of private law relationships makes them particularly 25 Jef King, Judging Social Rights (Cambridge: Cambridge UP, 2012) at 21n8 [King, Judging], citing Maurice Cranston, What Are Human Rights? (London: Bodley Head, 1969). 26 Samantha Brennan, “Tresholds for Rights” (1995) XXXIII Southern Journal for Philosophy 143. 27 My understanding of the public/private divide is inspired by Ernest Weinrib, Te Idea of Private Law (Oxford: Oxford UP, 1995). But the bilateral nature of private law is clear in most introductory textbooks, including Andrew Burrows, English Private Law (Oxford: Oxford UP, 2013), and historical accounts, including RC van Caenegem, An Historical Introduction to Private Law, trans EL Johnston (Cambridge: Cambridge UP, 1992). 28 See e.g., Weinrib, ibid. 29 See each source in note 27, though none are specifcally rights-based.

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amenable to the classical claim right model.30 There is also good inductive evidence that private law rights have traditionally fit that model (though the recent use of private law to fulfil public ends, exemplified in the law and economics movement, for instance, admittedly complicates matters).31 Public law rights, for their part, are rights against public entities, usually governments. It is debatable whether there are conceptual reasons why these rights should be strongly correlative: whether there is good reason to relax the rules of strong correlativity is partly what is at issue here. But there is little inductive reason to think that public law rights must be strongly correlative.32 International human rights law and most domestic constitutions now recognize a variety of social, economic, and cultural rights, including not only the right to health care but also rights to a healthy environment and education, for instance.33 The precise contours of the corresponding duties are difficult to specify. Indeed, existing law seems to allow multiple means of fulfilling these rights. At least international law recognizes both public and private holders of these corresponding duties. But a complete explanation of the relevant rights phenomenon must account for the fact that these rights are not clearly strongly correlative. Public law rights, at least, can then be further distinguished. One distinction arises from the level of government that creates the relevant law. An international legal right exists as a matter of international law. It binds all state parties from the perspective of international law but may not form part of a state’s domestic law and so may not create direct entitlements within that state.34 Domestic rights are rights recognized by the law of the state in question. These can exist at the state level or at sub-state (viz., provincial or even municipal) levels.35 Each form of domestic right then may be further distinguished in terms of the parties on which 30 Ibid. I defend Weinrib’s view in Michael Da Silva, “Formalising Formalism: Weinrib, Aristotle, and the Nature of Private Law” (2018) 9(3) Jurisprudence 486. But cf., e.g., Andrew Halpin, “Correlativity and Its Logic: Asymmetry not Equality in the Law” (2019) 32(1) Canadian JL Juris 83. 31 Indeed, the works of Bentham, Austin, and Hohfeld cited in notes 2 and 21 establish this much. Weinrib, ibid’s claims are more conceptual in nature, but he also presents some inductive support for this position. 32 Again, see Da Silva, “Correlativity,” supra note 6. 33 See chapter 4 for the relevant international law. On constitutional law, see e.g., Evan Rosevear, Ran Hirschl & Courtney Jung, “Justiciable and Aspirational Economic and Social Rights in National Constitutions” in Katharine G Young, ed, Te Future of Economic and Social Rights (Cambridge: Cambridge UP, 2019) 37. 34 It is only directly applicable in “monist” states. “Dualist” states incorporate international law only through domestic law. Tis distinction dates back at least to JG Starke, “Monism and Dualism in the Teory of International Law” (1936) 17 British Year Book IL 66, and remains in modern texts like Janne E Nijman & André Nollkaemper, eds, New Perspectives on the Divide Between National and International Law (Oxford: Oxford UP, 2009). 35 Ronald L Watts, Comparing Federal Systems, 3rd ed (Montreal and Kingston: McGill–Queen’s UP, 2008), provides the classic account of diferent constitutional arrangements that can

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it imposes duties. A national right may bind all governments within a jurisdiction or only bind the federal government, for instance.36 Domestic rights also come in a variety of legal forms. The most pertinent distinction is between constitutional rights, which form part of the “basic law” of a society, and statutory rights, which are found in basic legislation and can be altered through regular amendment procedures.37 I further distinguish statutory rights in the next section. Another distinction is between binding and non-binding legal rights. Failure to fulfil the duties corresponding to binding laws uncontroversially constitutes a violation of the law and creates a second-order entitlement in the form of a legal remedy. Binding laws are, in other words, enforceable through institutional (usually judicial) systems that guarantee at least second-order rights fulfilment. Duty-holders’ failure to fulfil their duties directly provides rights-holders with a claim that courts will recognize and enforce, either by ordering provision of the good or by providing for some sanction for failure to do so. Non-binding rights, by contrast, do not require fulfilment as a matter of law. The law may recognize such rights, but no directly remediable legal wrong follows from failure to fulfil them. This distinction can also be understood as a distinction between justiciable and non-justiciable rights since a justiciable claim is simply a claim that courts will recognize and enforce. Yet some scholars think that even a nonjusticiable right is binding – states must fulfil it even if failure to conform will not produce a direct legal remedy at present.38 The possibility of binding rights being enforced by non-judicial institutional actors supports this view. Absent strong enforcement of international human rights law at the international level and the existence of states that accept those rights as binding but do not enforce them in domestic courts, some international rights are thus binding yet nonjusticiable. Some constitutions distinguish aspirational rights from “precise” rights, placing a set of rights that they hope states will fulfil in different sections of the constitution than rights that states must fulfil now or risk legal sanction. This distinction traditionally tracks the distinction between binding and nonbinding law. Yet aspirational rights have become binding rights in some states.39

36 37 38 39

exist between state-wide and sub-state entitlements. Te fact that rights can be recognized by bodies at diferent levels is clear from even a cursory glance at the relevant jurisdictions. Indeed, the case study in Part II identifes “rights” recognized at both levels. Compare e.g., Canada’s Charter, supra note 10, which binds all government actors in that state, and its earlier Canadian Bill of Rights, SC 1960, c 44, which only bound the federal government. But note the existence of “quasi-constitutional” statutes with some hierarchical status discussed below. Recall e.g., King, Judging, supra note 25; Jef King, “Te Future of Social Rights: Social Rights as Capstone” in Young, supra note 33, 289 [King, “Capstone”]. Distinctions here are imported in the socio-economic rights context in e.g., King, Judging, ibid; Courtney Jung, Ran Hirschl & Evan Rosevear, “Economic and Social Rights in National

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A complete explanation of health rights requires attending to these distinctions and how they constrain our ability to “make sense” of the idea of a right to health care.40 All existing models of rights accordingly require that we explain why and when one could plausibly possess some specified set of health care entitlements that could ground a claim on others, with secondorder entitlements to censure non-performers. It is less clear that the relevant right must be strongly correlative to a duty, though a complete account should ensure some correlativity. There must be some reason to think the right entails placing some specifiable duties on some specifiable duty-bearers. I now turn to detailing some of the claimed health rights that exist in the law and the literature, so as to provide a more complete account of the phenomenon I seek to explain. A Brief Taxonomy of Health Rights (and Health Rights Projects) Unsurprisingly, as noted in chapter 1, health rights come in various forms. There are legal rights to health and to health care. There can also be moral rights to both. There are multiple kinds of legal and moral health rights. In this section, I explain the (plausible) logical space available for the forms that rights to health care in particular may take. I thereby present an idealized taxonomy of potential rights to health care that future scholars can use. Health rights are a species of social, economic, or cultural rights. This is clear in international human rights law.41 Analysis of the related constitutional phenomena assumes this is true.42 The social or economic nature of health rights is also uncontested in the philosophical literature.43 Jeff King’s typology of social rights is accordingly instructive here. King identifies two moral senses of social rights: social human rights, which exist “as a matter of political morality,” and social citizenship rights, which exist as a matter of “a more egalitarian vision of social citizenship.”44 These distinctions differ

40 41 42 43 44

Constitutions” (2014) 62 Am J Comp L 1034. On the aspirational/justiciable distinction in particular, see also Evan Rosevear, Ran Hirschl & Courtney Jung, “Justiciable and Aspirational Economic and Social Rights in National Constitutions,” in Young, ibid, 37. I borrow this phrase from James W Nickel, Making Sense of Human Rights: Philosophical Refections on the Universal Declaration of Human Rights (Berkeley: U California P, 1987). His project is more moralistic than mine. Te right to health is thus recognized in article 12 of the United Nations, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 [ICESCR]. See e.g., King, Judging, supra note 25. Tere is some debate about which of the social or economic descriptors is more apt for these rights. Mainstream thinkers who recognize the existence of these rights do not deny that one of the descriptors fts. King, Judging, supra note 25 at 18–19.

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slightly from my own in that I view both of these distinctions as part of political morality as I define it. While King’s related distinction is mildly opaque as presented, I take his general point and charitably think that it is simply the kind of political community that differs. One originates in the system itself and the other in the norms of being in the system. King then identifies three legal senses of social rights: international social rights, which exist as a matter of international human rights law; legislative social rights, which exist in general public law legislation; and constitutional social rights, which are (now widely) recognized in constitutions.45 While King rightly recognizes some overlap,46 his typology suggests that there can be at least ten types of health rights, including five rights to health care. King’s brief typology makes clear the transnational and multidisciplinary nature of the health rights phenomenon. Yet his typology is not specific to the right to health care and is likely non-exhaustive as an account of the forms the right to health care may take.47 Other moral rights complicate the picture, creating more kinds of health rights. Such rights could conceivably also stem from ethical commitments. Indeed, there are also two major types of theoretical models of the right to health care. Ethical theories seek to identify reasons why people have a moral right to health care (and explain why it should be fulfilled through the law), while political theories explain why legal authority must be used to recognize a right to health care.48 Relevant legal facts also complicate matters. The form of legal rights can change over time. For instance, India’s constitutional right began as an aspirational ideal, but India’s judiciary interpreted

45 Ibid at 19. For an alternative taxonomy of legal social rights, see Mark Tushnet, “Social Welfare Rights and the Forms of Judicial Review” (2004) 82 Texas LR 1895 at 1896–1909. 46 E.g., constitutional social rights can protect social human rights; King, Judging, ibid. 47 Te following also suggests that it is non-exhaustive as an account of the forms that economic, social, and cultural rights can take generally, but I fnd King’s taxonomy very helpful and so do not wish to denigrate it. Indeed, my own taxonomy likely does not capture all logical space, but only a large part of plausible logical space. Other works carve up the territory somewhat diferently. E.g., Eleanor D Kinney & Brian Alexander Clark, “Provisions for Health and Health Care in the Constitutions of the Countries of the World” (2004) 87 Cornell Int’l LJ 285 at 294, identifes fve diferent kinds of constitutional rights that do not perfectly mirror my own distinctions. 48 Not all theories easily ft this idealized rubric. Arguments for forms of health care distribution on political philosophy grounds ofen bridge the divide; e.g., Norman Daniels, Just Health Care (Cambridge: Cambridge UP, 1985) [Daniels, JHC]; Norman Daniels, Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge UP, 2008); Jennifer Prah Ruger, Health and Social Justice (New York: Oxford UP, 2009). Some theories are based in legal practice, linking theory and practice; e.g., Shue, supra note 13; Charles Beitz, Te Idea of Human Rights (Princeton: Princeton UP, 2009); Joseph Raz, “Human Rights Without Foundations” in Samantha Besson & John Tasioulas, eds, Te Philosophy of International Law (Oxford: Oxford UP, 2010) 321.

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the right in a manner that made it a justiciable right that can ground claims in court.49 This brief introduction presents a general outline of the forms that a right to health care might take: (1) legal rights to health care can be (a) international, (b) domestic constitutional, or (c) domestic statutory, while (2) moral rights to health care can be (a) ethical or (b) political, with (b) admitting of two variants: sources in (i) social citizenship or (ii) the political system.50 Yet we know that each of these rights can also take a variety of forms. Things can get very complicated very fast. The sources of the ethical duty to provide health care can be numerous in ways that impact the institutional form such rights might take. For instance, rights sourced in basic moral duties of beneficence may end up being considerably weaker than those sourced in a contractual duty to support others. Political morality itself then can lead to a variety of kinds of health rights, depending on whether political morality is fundamentally contractualist in nature or not. The fact that there are both ethical and political social contract models then further complicates the picture as it becomes unclear whether a contractualist right is ethical or moral. Unpacking all these distinctions likely requires another book. I propose using King’s typology as a starting point and supplementing it with insights from the discussion of rights and duties in the previous section. One can use the tools in both sections to create a more detailed taxonomy, but this simplified (albeit still complex) model can help move health rights analysis forward. Bringing the preceding distinctions together, one can recognize that legal rights can be (a) international, (b) domestic constitutional, or (c) domestic statutory and that each can come in forms that are binding or non-binding, justiciable or non-justiciable, and aspirational or precise. As a matter of logical space, nearly every sub-distinction can then pair to create, for instance, a non-binding aspirational statutory right. Whether we can have a non-binding justiciable right is, at best, questionable. Formally, this appears problematic. Yet as noted previously, non-binding rights can at least combine with binding ones to ground a claim and so be at least quasi-justiciable in nature not only in logical space but also in the real world. Likewise, whether we can have binding nonjusticiable rights may be questionable since what it means to be binding seems to be defined by being capable of creating a claim in court. But an international 49 Francis Coralie Mullin v Union Territory of Delhi, (1981) 2 SCR 516 (Ind); Paschim Banga Khet Mazdoor Samity v State of West Bengal, (1996) 4 SCR 37 (Ind); State of Punjab v Mohinder Singh Chawla, (1997) 2 SCC 83 (Ind). 50 “Common law rights” are also recognized in some states. Tese rights are recognized by the judiciary of the state. Tey serve the same functional role as statutory rights here and will be treated as a species thereof. But a complete taxonomy of rights would carefully distinguish common law rights and statutory rights.

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right at least can be binding without being justiciable insofar as it creates an international legal wrong that no existing court will enforce, so practical realities too bear out this possibility. Domestic statutory rights, in turn, come in multiple forms. I am primarily interested here in public statutory rights, but this does not mean that private law rights will not impact realization of the right to health care that I develop. Of course, people have contractual rights against one another for health care services. Contracts between health care providers and payers also exist and can impact the amount and quality of care available in a state.51 Other private law rights, most notably including intellectual property rights and rights to collect medical debt but also including tort law to rescue and non-interference with one’s body without informed consent, are at least health care–related rights. They can certainly impact whether other rights are realized – and can weigh against the case for realizing a defeasible right.52 States may choose to weigh property and health care rights against one another. Doing so in favour of property rights could leave the right to health care underdeveloped. As one early reader notes, formal “rights to health care” may not mean much against background economic injustice and private law rights could maintain such injustice.53 Yet I am not aware of work in which “the right to health care” refers to these private law entitlements. The fact that many of these rights can weigh against increasing access to health care suggests that they are health care–related rights but not best understood as rights to “health care.” Moreover, the right to health care as I understand it is a right against a government and governments are only private law actors in exceptional circumstances.54 Governments should secure private law rights – and may weigh their duty to do so against other duties they owe correlative to public rights in some cases – but that does not mean they are duty-bound to fulfil them. I accordingly think that one can explain the right to health care without a detailed explanation of health care–related domestic private law rights. Private law may be necessary to fulfil the right to health care, but it is likely not constitutive of that right.55 51 See e.g., Axel C. Mühlbacher, Volker E Amelung & Christin Juhnke, “Contract Design: Financial Options and Risk” (2018) 18(1) International Journal of Integrated Care 2. 52 Consider, e.g., the way that intellectual property rights impact access to health care services as discussed in work by the Health Impact Fund, including Tomas Pogge, “Te Health Impact Fund: Enhancing Justice and Efciency in Global Health” (2012) 13(4) Journal of Human Development and Capabilities 437. 53 Tank you to an anonymous reviewer for pushing me on this point. 54 Weinrib, supra note 27, is good on how private law difers. Rights to payments for health care services are admittedly private law rights against some states; recall e.g., Mühlbacher, Amelung & Juhnke, supra note 51. 55 I return to this point when discussing my methodology in chapter 8. It is also worth noting that the international law I seek to model largely separates private law concerns and health

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Domestic public statutory rights also come in multiple forms. The key distinction is between “human rights” and general statutory rights. States and even sub-state entities like provinces can recognize “human rights” even if those rights do not form part of the constitution of the state. Such “human rights” are not subject to special constitutional amendment formulas and do not form part of the basic law of the state. They may nonetheless be viewed as appropriate tools for interpreting other laws. They may even, more controversially, be viewed as hierarchically superior to other statutory laws such that they can be used to deem other law invalid in a state (and so qualify as “quasi-constitutional” in nature).56 There is little reason to think that statutory human rights documents could not include a right to health care. General statutory rights, in turn, are simply the rights provided to subjects in regular legislation. States and/or sub-state governmental entities sometimes do provide statutory entitlements to health care goods in regular legislation.57 These rights can technically be eliminated through regular statutory amendment norms. They cannot be used to “strike down” other statutes. They can nonetheless ground claims for and potentially improve access to health care goods for many subjects. Politics may then make regular statutory amendment that

care concerns and is supposed to be consistent with any form of private law ordering. But states cannot use their chosen private law ordering as an excuse for failing to fulfl duties correlative to the international right to health care, and exceptions to intellectual property norms do appear tailored to improving health outcomes. I return to some of these points later too. See also Michael Da Silva, “Te International Right to Health Care: A Legal and Moral Defense” (2018) 39(3) Michigan J Int’l L 343.Tere is, of course, a way to interpret a right to health care that implicates private law rights. Tis is particularly plausible with respect to the international right to health but could also apply in domestic settings. I believe that the question of how to prioritize the “public” law rights on which I focus when realization implicates these private rights – and private law rights more generally – is an important one. A complete account of whether recognizing a legal right to health care and/or prioritizing a moral right to health care is morally permissible, required, or even a good idea likely requires exploration of the relationship between the predominantly public right to health care envisioned here and various private law rights. Yet securing a clear understanding of what a public right to health care would look like is necessary to make these larger calculations. Tis work does that (very difcult) more preliminary work. For some discussions of the relationship between public and private rights in the health care setting, see work by Tomas Pogge (including Pogge, supra note 52), William Fisher (including William W Fisher & Talha Syed, “Global Justice in Healthcare: Developing Drugs for the Developing World” (2007) 40 UC Davis LR 581), Amy Kapczynski (including the recent “Te Right to Medicines in an Age of Neoliberalism” (2019) 10(1) Humanity 79), and others. My framework does not directly address the private law aspects of the relevant debates. 56 See e.g., Quebec’s Charter of Human Rights and Freedoms, CQLR c C–12, which I discuss further in Part II. 57 Consider, e.g., the comparative data in Colleen M Flood & Aeyal Gross, Te Right to Health at the Public–Private Divide: A Global Comparative Study (Cambridge: Cambridge UP, 2014).

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would minimize realization – or even elimination recognition – of those rights practically impossible in many states. We can further divide all these legal rights into those that are morally justified and those that are recognized by law but morally unjustified. Overlap with a moral right to health care may support moral justification of the legal right. Yet a legal right may be justified by political morality and/or authority even if it does not perfectly mirror our best concept of a moral right to health care. However, a legal right completely divorced from the aims of a moral right to health care is problematic insofar as it creates a clear tension between the explanatoriness and independent moral justification criteria for an adequate right to health care. Moral rights can, in turn, be (at least) (a) ethical or (b) political. Ethical rights can themselves be strongly “deontological” in that they create defeasible duties of compliance in nearly all cases or weakly “deontological” because they are sourced in duties that create duties of compliance. The term “deontological duties” can then refer to the class of acts whose members all create prima facie duties. The somewhat paradoxical phrase “non-deontological duties” can refer to the combination of classes of acts that contain members that do not uniformly create prima facie duties because at least some acts within each subclass would be supererogatory even absent defeaters. So, a right to health care sourced in a universal duty to fulfil the social contract will be quasi-political but also deontological while such a right sourced in beneficence will be non-deontological. Ethical rights can also be more distinguished by their ethical sources. One could use headers such as (α) contractualist and (β) beneficence-based to model a similar structure. Political rights then include, but are likely not limited to, King’s rights based in (1) political morality and (2) social citizenship. They can be (α) contractualist but also (β) justice-based or even (γ) sovereign force-based (viz., the government can use discretion to recognize then) or, ultimately, (δ…n) sourced in nearly any plausible account of the roots of political morality. Each of these rights also likely admits of strongly deontological and weakly deontological forms. The kinds of rights therein can relate in multiple ways. Ethical rights may be derivable from rights sourced in political morality, and vice versa, but they are understood as fundamentally concerning different ends: basic interpersonal interactions in the ethical case and state-related (most notably including statemediated) interactions in the political one. Both ethical rights and rights based in political morality can then either be instantiated in law or exist independent from law. Alternatively, connections between ethical, political, and legal rights may not exist. Regardless of which forms of moral or legal right one is discussing, one arguably must take some stand on the relationship between moral and legal rights. This relates to another question: What type of project is a given health rights

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analysis supposed to serve? Legal projects that focus on human rights often seek to explain existing law and/or to articulate what the law could or should look like.58 The strictly explanatory projects then subdivide into those that seek to describe the actual content of a right and those that seek a moral justification for it, either from an internal view of the morality of human rights – granting that the legal human rights system is normative and trying to explain its inner workings – or from an external view – seeking independent reasons that a body of law is actually morally acceptable. Other projects seek to outline what a right to health care should look like in the future, sometimes by addressing what a law or legal system would have to look like or otherwise contain for a right’s normative ends to be fulfilled. One could also try to provide an account of what the right, the law, or the legal system would have to look like for a legal right to health care to exist and/or be properly operationalized. Doing so could provide an ideal standard against which existing legal rights can be based. Such projects may even question whether laws in existing systems are the best tools for fulfilling ideal forms of legal rights. In philosophy, in turn, there are projects that seek to explain why provision of health care is necessary as a matter of ethical principle, as well as projects that seek to explain why political morality does or does not demand provision of (some) health care. Such projects can exist independent of legal implications. Yet they too can serve the role of a standard independent of law with which we can compare existing legal rights to health care and attempts to realize health justice generally. The contours of one’s project will help determine which health rights one needs to account for in one’s analysis. A project that simply seeks to explain the content of the right to health care in international human rights law, for instance, need not worry about whether that right is achieving the ends that some ideal moral right sourced in a contractualist political morality says rights to health care should achieve. One who seeks a strictly moral right may not be bothered by the fact that his or her right cannot explain existing law, especially if he or she does not think the law should share content with other rights. Yet I think that a view that can account for a variety of different kinds of rights is preferable to all alternatives and suggests an approach to the right to health care that is neither strictly legal nor strictly ethical but bridges the moral divide. The Present Project’s Place in the Taxonomy The right to health care, as I understand it, accordingly need not be a strictly moral or legal phenomenon. This work seeks to explain the variety of

58 Te text here summarizes the sources cited in “Te Existing Literature” in chapter 1. I avoid repeating citations.

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phenomena that fit under the right to health care banner. More specifically, I set out to unpack not only commonalities and possible relationships between the different models, but also the fact(s) of variety (and, perhaps, the controversies surrounding the competing views). This is, I think, the widest version of the explanatoriness criterion for an adequate theory of a right to health care. I take it that, all else being equal, a model that is explanatory of most of these things is preferable to alternatives, though I recognize that all else may not be equal and that there may be reason to prefer a less explanatory model.59 Indeed, even at its best, explanatoriness alone does not fully answer the question of where the right I promote fits into the preceding taxonomy. The right I promote is clearly not simply a legal right. I will not even prejudge the question of whether a legal right to health care is the best tool for fulfilling what we would want a right to health care to fulfil. Also, I will not be taking a definitive stand on whether health rights must have independent moral status. It is beyond the scope of this work to address whether legal rights can be valuable even if they do not further the ends that are only good from the internal view of a legal system.60 I seek balance between perspectives, for I assume that it is better, all else being equal, if a claimed right to health care is independently morally justifiable and explanatory of law. But this work is ultimately agnostic about the precise relationship between law and morality. My agnosticism extends to the question of which existing rights project is best. The variety of projects related to the right to health care may seem inconsistent with one another insofar as they discuss different kinds of rights and assume different kinds of relationships between moral and legal rights. I accordingly take my agnosticism about the relationship between the legal and the moral to be a benefit of my view. My project is to develop an account of a moral right to health care that is as explanatory, independently morally justifiable, and action-guiding as possible. This approach is inconsistent with simply accepting the law as given as morally justifiable, end of story. But it is consistent with a variety of approaches to the relationship between law and the broader domain of morality – including the view that laws should reflect 59 Afer all, independent moral justifcation may oppose explanatoriness if we were asked to explain a right to kill indiscriminately. In such cases, we would favour fulflling the independent moral justifcation criterion. Something similar could happen in this context. Indeed, I think that the strongest version of the correlativity thesis is one thing that we need to abandon for independent moral reasons. But that works in my favour, since abandoning that view helps justify a model that is most explanatory – existing legal rights do not conform to strong correlativity. 60 I think any claims in a just legal system should achieve some moral good. Even Jonathan Wolf, Te Human Right to Health (New York: WW Norton, 2012), a champion of understanding international rights on their own terms, thinks they are moral claims backed by international law.

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an independent moral standard and the view that moral concepts are valuable even if they cannot be reflected in legal concepts and must instead be fulfilled in the world through different legal architecture. This consistency with a variety of relationships allows me to produce something that can be read in multiple ways. One’s approach to this text can differ depending on which of these projects one finds best. This work is, first, a description of what health rights ought to achieve. The analysis of what legal health rights ought to achieve comes from both an internal perspective and an external one. This work clearly contains a description of the law. I spend a considerable amount of time explaining common features of the relevant international law and some time discussing the relevant constitutional laws. Even this component contains an internal critique. The descriptive component of this work includes descriptions of the failures of some domestic laws to meet the demands of the international right and even the failures of some domestic laws to fulfil their intended functions in their own health care systems. More broadly, I also assess whether these rights are achieving what we would ideally want a right to achieve. I use international human rights law as a starting point for analysis, but the standards I identify are also justified on independent moral grounds. The standards can be used to improve international legal understanding of health rights, but they also apply independent of international law. So, this work can also be read as containing an external standard for analysis and thus as an account of what a right to health care should achieve from a moral perspective and an application of those standards to existing laws. But again, I do not assume that legal health rights are a moral ideal even by their own lights of what a right to health care ought to achieve. The broader search for the standards can instead be read either as an explanation for how health rights can make sense of and thus as a moral justification for some existing laws (and an explanation of where they fall short); as an account of what an ideal moral right to health care would achieve and description of whether and how legal health rights achieve that aim; or as an account of what a legal right to health care would need to look like to be actually fully justifiable in an ideal system. One can, in other words, either read me as explaining why and when a right to health care makes sense and so can be incorporated into our laws or as explaining what it would need to look like in order to be incorporated into our laws. One may also read me as trying to make sense of and justify the moral concept of the right. The work can be read as an explanation of what a right to health care must look like to fit into existing legal or moral structures. It can, finally, be read as a prescription for law- and policy-makers, identifying the aims that a right to health care ought to achieve and steps that can be taken to meet the demands of a plausible right to health care.

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This work is thus consistent with a variety of projects related to the right to health care, and at its best, it connects several of them. But I think my account is the best account of what a right to health care could or should offer on any of these alternative readings. The output here is an account of what a right to health care ought to look like in order to make sense in ethics and political morality. This account explains why existing law does not reflect a category error, but as I lay out in the next chapter, it also examines the confusion about and deficiencies with existing rights and so does accept the legal as automatically acceptable. Any legal right should share some basic features with the moral right that I propose, including the pluralist structure that I will defend in the next chapter. Any legal right should also achieve the ends I take to be constitutive of an adequate right to health care. So my account can guide those deciding on how to fulfil the right and sets limits on what legal rights can look like that are fulfilled by most, but not all, rights. I thereby also explain what a right to health care would need to look like to be justified in future laws. Further research on whether legal rights achieve the ends presented in my account of the right to health care will help us understand the conditions under which recognition of legal health rights can be justified. The legal and moral projects are thus linked in my view, and my right can aid many projects. The pluralist right to health care, then, is ultimately a proposal for a “master conception” that is applicable as a moral right or a legal right. As noted in chapter 1, I will discuss that right primarily as a moral phenomenon that has been recognized as something that should be protected in law, but it could also be read as an explanation of what existing legal rights would have to do in order to be justified. The current project does not, however, purport to answer all outstanding questions about the right to health (or its implementation in Canada). I focus on the form and scope of the right to health care and how to measure and improve realization of that right. My discussion of the relationship between the legal and the moral will be solely in the service of these broader aims. This is partly because my work on these issues is preliminary to further work on the relationship between legal and moral health rights. I am committed to the view that an account of health rights that can explain both legal and moral health rights is preferable to one that cannot. This will lead me to argue for a relationship between moral and legal rights. I will argue that both moral and legal rights to health care share a similar form and content and gain at least partial justification from their prima facie plausibility for furthering the important moral ends that are constitutive of that form and content. I will not be arguing that legal rights must perfectly mirror moral rights or even that legal rights should only be used to further moral rights. Even if, counterfactually, my picture of the right to health care could not fit the best moral picture of health rights, it could still be worthwhile to recognize a legal right that furthers the important ends

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that my picture seeks to capture or other important moral ends. Whether legal rights best realize the right to health care as I conceive it is an empirical matter that cannot be assumed at the outset and that I seek to test. This work is the beginning of an answer to that question. Problems Facing Existing Health Rights The independent moral justification and action-guiding criteria for an adequate answer then require that I avoid at least the worst implications of problems facing any candidate right to health care. In short, any plausible account should clearly identify the right’s content in a non-arbitrary, measurable, and not overly demanding way. Otherwise, the right will lack either content or moral foundation for its content, have very bad implications, and/or will not provide standards that law- and policy-makers can use to determine whether the right is being fulfilled. I can clarify these concerns by explaining the problems from chapter 1 in more detail. These problems are, again, the scope-related problems, the Problem of Measurement, and the Problem of Correlativity. In the next chapter, I explain how my approach responds to each. To begin, the scope-related problems challenge both the justification for and the action-guidingness of many models of the right to health care. A series of problems plague any abstract search for the ideal content of the right to health care. First, there is the Problem of Scope: an overly expansive set of entitlements threatens to make the right to health care either a force for state instability or a hollow aspirational ideal, while an overly narrow set of entitlements makes the right meaningless. It is hard to non-arbitrarily identify proper content between these extremes. The right to health care must be understood against a backdrop of scarce resources.61 At one extreme, if the right to health care means that individuals are be entitled to all (or even a large number) of (expensive) health care goods, states that attempt to fulfil their right-to-health-care obligations risk financial ruin.62 Government budgets are limited, and a heavy burden 61 Tis is a core assumption of Norman Daniels’s argument for health care justice; Daniels, JHC, supra note 48 at 19. Te other assumption, “that we cannot or should not rely on just market mechanisms to allocate these resources,” is more controversial. Libertarians, for instance, will likely reject that assumption. 62 E.g., the government of Colombia claimed that their domestic right to health care crippled them fnancially; Alicia Ely Yamin, Oscar Parra-Vera & Camilla Gianella, “Colombia: Judicial Protection of the Right to Health: An Elusive Promise?” in Alicia Ely Yamin & Siri Gloppen, eds, Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge, MA: International Human Rights Clinic, Human Rights Program, Harvard Law School, 2011) 103 at 121. Tis is persuasive given facts about health care costs. E.g., an entitlement to provide the drug peglyated interferon to just 25 per cent of the population of Brazil who required it to treat chronic hepatitis C alone would cost the government 64 per cent of its health budget;

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of successful health claims could create debts that governments are unable to repay, in addition to restricting states’ abilities to realize other rights. When health care budgets can no longer grow, health care funding will have to come from other areas designed to fulfil rights, such as the right to education.63 At the other extreme, a right to a single health care good is not easily described as a right to health care. Such a right is best described as a right to that good. “The right to health care” is then empty. Identifying where to land between these extremes is – again – at best very difficult. This relates to the second problem, which we can call the Problem of Principles of Scope: it is difficult to articulate a principle for selecting which goods ought to be covered. Attempts to solve this problem of what to cover often raise more questions than they solve. For instance, Lawrence O. Gostin and Eric A. Friedman suggest that “full coverage of ‘key’ health interventions should be an initial benchmark towards universal coverage.”64 But rather than solving problems about how to identify what ought to be covered, this shifts the problem to determining what is “key.” Identifying the goods necessary to ensure that all individuals have “equality of opportunity” is likewise difficult.65 Similar problems plague most candidate principles. One recent study concludes that all mainstream principle-based accounts of how best to specify the otherwise “indeterminate” content of socio-economic rights face significant issues.66 The third main problem is the Problem of Time and Space: the list of goods required to fulfil a right to health will vary over time and space as new drugs, devices, and services are developed, and the content for the right needs to be able

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Ottar Maested, Lise Rakner & Octavio L Motta Ferraz, “Assessing the Impact of Health Rights Litigation: A Comparative Analysis of Argentina, Brazil, Colombia, Costa Rica, India, and South Africa” in Yamin & Gloppen, ibid, 273 at 273–274. See also Joao Biehl et al., “Between the Court and the Clinic: Lawsuits for Medicines and the Right to Health in Brazil” (2012) 14(1) Health and Human Rights 36. Fried, supra note 12, is the locus classicus for the concern that positive rights could leave governments unable to provide other important social functions. A narrow enough right could avoid this concern but raises the spectre of impotence. Wolf, supra note 60 at 10, 14 suggests that this concern animates the progressive realization standard discussed in chapter 4 but then criticizes arguments that the right to health cannot exist due to its potential expense. “Towards a Framework Convention on Global Health: A Transformative Agenda for Global Health Justice” (2013) 13(1) Yale Journal of Health Policy, Law, and Ethics 1 at 40. Tis is particularly true where the nature of “equality of opportunity” is itself contested. It has at least three forms; see e.g., Gerry Cohen, Why Not Socialism (Princeton: Princeton UP, 2009). Leticia Morales, “Te Discontent of Social and Economic Rights” (2018) 24 Res Publica 257. Morales describes a “Problem of Indeterminacy” that can be usefully disaggregated into the Problems of Scope and Principles of Scope.

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to reflect these variations.67 International human rights law provides some clues as to what ought to be covered under the right to health care. While the foundational Universal Declaration of Human Rights leaves open what is included in its “medical care” guarantee,68 other documents explicitly list goods or types of goods that should be covered.69 Such lists can hardly be ironclad. The advent of penicillin and other antibiotics rendered earlier scarlet fever treatments obsolete and introduced new goods to the list of those with claims to “necessity.”70 More recently, Ebola outbreaks in West Africa first highlighted the need for a vaccine and then raised questions about how to ration new vaccines.71 The vaccine used during one recent outbreak should generate passionate debate if the data continue to support its effectiveness.72 Outside the pharmaceutical innovation context, new technologies and surgeries are creating new desires for innovative health care services and leading to new standards for health care. Some new drugs are only effective when paired with other services, further complicating matters.73 Different states then have different health care needs. Demography and geography make these differences nearly inevitable: a state with many 67 Tis is consistent with Daniel Callahan’s claim that “defnitions and interpretations of ‘need’ will be a function of available technologies and cultural visions of health care. It is something that will also be determined by the way people understand the world, the extent of their available resources, and their understanding of science in relation to their needs”; “What is a Reasonable Demand on Health Care Resources? Designing a Basic Package of Benefts” (1992) 8(1) 8 Journal of Contemporary Health Law and Policy 1 at 3 [Callahan, “Reasonable”]. 68 Universal Declaration of Human Rights, GA Res 217 (111), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810, (1948), art 25. 69 See chapter 4. 70 Colleen M Flood, “Conclusion” in Colleen M Flood, ed, Just Medicare: What’s In, What’s Out, How We Decide (Toronto: U Toronto P, 2006) 449 at 449. 71 For an opinion on how to approach the surrounding issues, see Lawrence O Gostin, “Ethical Allocation of Drugs and Vaccines in the West African Ebola Epidemic” (2014) 92(4) Milbank Quarterly 662. Ebola outbreaks continue since the publication of Gostin’s work, raising moral issues even beyond the rationing concern here. For one of many articles outlining the helpfulness of the vaccine and issues that continue even afer the development of the vaccine – and new anti-retrovirals – see Denise Grady, “Te Battle against One of the Worst Ebola Epidemics Ever Is in Trouble,” New York Times (7 March 2019), online: Te New York Times . Rationing questions also persist. See also scholarly work in debates about ‘compassionate use’ protocols that have been used to permit the use of vaccines that arguably have not been fully validated. 72 See e.g., Ana Maria Henao Restrepo et al., “Efcacy and efectiveness of an rVSV-vectored vaccine in preventing Ebola virus disease: Final results from the Guinea ring vaccination, open-label, cluster-randomised trial (Ebola Ça Suft!)” (2017) 389 Te Lancet 505. Again, see Grady, ibid, for discussion of its use in a more recent outbreak. Since the time I wrote this work, the development of COVID-19 vaccines have made this issue more globally acute. 73 Consider e.g., the new post-partum depression treatment discussed in Pam Belluck, “F.D.A. Approves First Drug for Postpartum Depression,” New York Times (19 March 2019), online:

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members of a group with a high risk for breast cancer may have greater screening needs than a state with few members of any high-risk group, while a tropical rainforest climate requires greater anti-malarial interventions. Economic differences between states make this problem acute. If the right to health care only covers essential medicines, it is of little value for the people of well-developed states who are already entitled to those goods.74 The right to health care must be sensitive to these variations in needs and circumstances.75 These three scope-related problems raise serious concerns about any right to health care framework that focuses primarily on access to specific, enumerated goods. It should already be clear that existing substantive models of the right to health care will struggle to meet the demands of an adequate right to health care. As I explained in Chapter 1, purely procedural accounts face similar concerns. I now add that outcome-based approaches highlighting “standards” of health face their own problems. First, the international right to health is the legal guarantee of “the enjoyment of the highest attainable standard of physical and mental health,”76 but it is unclear whether the highest attainable standard ought to be understood on a state-by-state basis. The standard is discussed in terms of resource constraints, and the relevant duty-holders are usually states.77 Yet a state-specific standard undermines the sense in which the right belongs to “everyone” rather than collapsing into different rights for specific groups.78 Second, it is not clear whether the “highest attainable” standard is always going to be sufficiently high. In theory, the highest “attainable” standard of well-being in a very poor state could be below the level of well-being required for a dignified existence. Finally, many of the problems with identifying the basket of

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Te New York Times , which may also render other treatments unnecessary if it is proven efective and can be provided in a more afordable manner than at present. Tis criticism applies to the list of essential medicines currently recognized by most scholars and agencies. Of course, a broad view of what counts as “essential” could produce a broader list, but questions about how to justify this broader scope will arise. If it includes more advanced medicines, the right could go unfulflled in poorer states. In the international legal arena, part of this problem is avoided by the international right to health care’s built-in resource constraint. Te right is only to the “highest attainable” standard of health. Poor states are not obligated to (immediately) provide all health care goods (though the relevant right may trigger third-party duties of assistance in securing provision on some interpretations of the right). But this fact about resource constraints does not exhaust the question of which goods the right to health care should guarantee. Callahan, “Reasonable,” supra note 26 at 3, suggests that the difculty of identifying a basic package of benefts in the United States is partly a function of the fact that attempts to identify the package there took place afer a period of vast economic and technological growth. ICESCR, supra note 41, art 12. See chapter 4. ICESCR, supra note 41, art 12.

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goods inherent in a right to health are likely to arise when attempting to identify outputs such as well-being and its cousins “flourishing” and “capability.” All of these problems/concerns explain why the right to health is a right to the “enjoyment” of a “standard” of health, not individual levels of health or other forms of well-being.79 None of this proves that all outcome-based approaches are doomed. But these problems suggest that using the highest attainable standard as a method for identifying all the relevant goods is unlikely to succeed, and given the many differences between states, nor is it likely to properly identify outcomes that can serve as meaningful bases of comparison. Some new model is necessary to address these concerns. The foregoing concerns also bear on questions of how to measure realization of the right to health care and collect the data necessary to answer questions about how to improve such realization. A strictly procedural right to health care may only measure the existence and strength of procedural safeguards for health care justice. It could fail to measure access to the health care goods that contribute to improved health, an important moral good. A substantive right will need to measure entitlements and access to substantive ends. That may require specifying particular health care goods that are part of the scope of the right – something that is difficult to do in a non-arbitrary fashion. These different tests will lead to different results with regard to how particular health care systems perform from a health rights perspective and what measures ought to be undertaken to improve realization. These standards can even help us better understand which forms of legal health rights best achieve the ends we seek to promote with our particular conceptions of health rights. A right we cannot measure is not going to be helpful for global health generally. This aspect of the Problem of Scope could amount to its own (fourth) problem: the Problem of Measurement. Any model of the right will also face the Problem of Correlativity. The “claim right” framework purportedly suggests that there cannot be a moral right to health because one cannot identify particular individuals who could fulfil the right and thus cannot identify even candidate duty-bearers.80 Recognition of legal rights then seems conceptually confused. Governments are plausible dutybearers for health rights, but granting that much leaves open questions about what the duties entail (or should entail), again raising scope-related concerns. Even if rights do not need to be “strongly” correlative, it remains necessary to specify the duties that correspond to the right to health care and identify those

79 Ibid. Te enjoyment criterion guarantees that this standard will be at a sufcient (albeit likely suboptimal) level. Only absurdists and masochists can “enjoy” a level of well-being below the dignity level. It remains difcult to precisify the standard in a non-arbitrary manner. 80 Sreenivasan, supra note 5. Again, see also the works of O’Neill cited in notes 10 and 18.

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who must fulfil that right. This imposes scope and action-guidingness problems if the duties demand too much of too many. These problems lead to related practical problems with health rights. These concerns have arisen with existing legal health rights, creating scepticism about whether legal health rights are the best means of fulfilling what we would want the right to health care to achieve. In practice, it is difficult to set the scope of a right to health care narrowly enough that the right is achievable by all states and yet expansively enough that it is more than just lip service. The right can be so expansive that it undermines access to other social goods. While limitations on rights can help avoid this problem and can take cost concerns into account, they must not be so strong or so deferential to cost concerns that the right creates entitlements that are always swamped, turning the right into a practical nullity. In practice, moreover, such rights need to be attentive to differences between states and (preferably) action-guiding in each. Creating a right that is not so expansive that a poor nation could never achieve it yet not so limited that any nation with a hospital will achieve it is very difficult to do. These scoping issues can create real problems, especially when combined with the fact that the ability to secure one’s rights will differ from one nation to the next and that the rich are often better able to do so than others. Models of the right to health care ought to have some mechanism to avoid social hijacking – the process whereby an aim meant to help one group is used to promote the ends of another. Existing legal rights in Brazil, for instance, were meant to help the poor access essential goods but instead helped the middle class access very expensive goods that are unnecessary for minimally good lives.81 This history may give us pause when we are confronted with claims that legal rights are the best method for fulfilling any plausible moral account of the right to health care.82 They at least demand 81 See e.g., Octavio Luiz Motta Ferraz, “Te Right to Health in the Courts of Brazil: Worsening Health Inequities?” (2009) 11(2) Health and Human Rights 33 at 34; Florian F Hofman & Fernando RNM Bentes, “Accountability for Social and Economic Rights in Brazil” in Varun Gauri & Daniel M Brinks, eds, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge UP, 2008/2010) 100 at 102–103; Virgilio Alfonso da Silva & Fernanda Vargas Terrazas, “Claiming the Right to Health in Brazilian Courts: Te Exclusion of the Already Excluded?” (2011) 36 Law & Soc Inquiry 825. For a nuanced account of who benefts from social and economic rights in diferent states, which does identify instances of middle- and upper-class capture in some states, see David Landau & Rosalind Dixon, “Constitutional Non-Transformation? Socioeconomic Rights Beyond the Poor” in Young, supra note 33, 110. Daniel M Brinks & Varun Gauri, “Te Law’s Majestic Equality? Te Distributive Impact of Judicializing Social and Economic Rights” (2014) 12(2) Perspectives on Politics 375’s claim that these results could produce benefts for less well-of individuals is contestable, as noted in e.g., King, “Capstone”, supra note 38 at 317–319. 82 See e.g., Lawrence O Gostin et al., “Te Legal Determinants of Health: Harnessing the Power of Law for Global Health and Sustainable Development” (2019) 393(110183) Te Lancet 1857.

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an account of how appeals to health rights do not necessarily provide a starting point for social hijacking. These familiar concerns are legitimate. As detailed in the next chapter, existing models of the right – including substantive models seeking to provide a set basket of health care goods, procedural models only seeking to secure fairness in health care allocation decisions, and purely legal (or otherwise systemic) models simply seeking to ensure enforcement of existing health rights law – all face at least one of them. The present task is to defend a conception of the right to health care that blunts the force of these concerns. Conclusion There are, then, many forms that a right to health care may take, and many of these forms have been realized in existing legal rights. Yet there are also many problems facing claimed health rights. Attempts to resolve these concerns should, all else being equal, also explain the relevant health rights phenomenon. While many believe that all health rights must have a non-legal moral justification and others believe that law has its own normativity that can ground recognition of claims,83 a claimed right to health care that is independently morally justifiable and explanatory of existing law is, all else being equal, best. Only such models can make sense of existing rights and resolve the tension between theory and practice. Existing models struggle here too. Some new approach appears necessary. While one may argue that the demand for a model of a right to health care that can unify the phenomena in the preceding sections and avoid the problems in this section is too strong, the next chapter will argue that the pluralist model I introduced in chapter 1 can in fact meet this strong demand. A “master conception” is thus possible. It is also desirable insofar as it helps us understand what a right to health care might mean and what existing legal rights would have to do to be justified – and provides us with legal tests we can apply where states choose to recognize legal rights and we want those rights to be interpreted in a coherent manner that avoids problems facing existing models and fulfils important moral ends.

83 I take no defnitive stand here on whether health rights need to have independent moral status. I instead seek a balance between these perspectives, assuming that an ability to provide an independent moral status and an explanation of the relevant phenomenon is better than an ability to only do one or neither. Scholars who argue for the moral justifcation of the human rights system include Shue, supra note 13; Raz, supra note 48; Wolf, supra note 60; Patrick Macklem, Te Sovereignty of Human Rights (Oxford: Oxford UP, 2015).

Chapter Three

The Case for a Pluralist Conception of the Right to Health Care

Introduction The best understanding of the right to health care, which I defend here, states that the term is shorthand for a set of goals governments can and should achieve and that we can use these goals to assess health care systems. This is a pluralist approach to the right to health care. “The right to health care” is best understood as an umbrella term for a series of important related goals. While it can be formulated as a traditional claim right with clear correlative duties and dutybearers, it does not immediately present itself as such, which explains why the right is so controversial. On the formulation offered here, the right to health care is, more specifically, a set of claims to (1) the goods necessary for a dignified existence, (2) procedural fairness in determining what other goods will be provided and in the provision of goods, and (3) a functioning health care system. This is a non-traditional view of a right, but it is a defensible one that also fits with the related contemporary ethics and legal practice better than the alternatives. In this chapter, I defend my pluralist model of the right to health care as a set of related claims to (1) the goods necessary for a dignified existence, (2)  procedural fairness in determining what other goods will be provided and in the provision of goods, and (3) a functioning health care system. This model alone meets the adequacy criteria for an account of the right to health care, explaining the relevant legal and moral phenomenon in an independently justifiable manner while providing metrics that persons can use to assess rights realization and avoiding the worst implications of the aforementioned problems facing other models. In this chapter, I primarily address the independent moral justification and explanatoriness of the pluralist model, arguing that only a pluralist model can explain what should be and is part of any right to health care.

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A Pluralist Model Is Necessary to Account for the Right’s Uncontroversial Features I begin my positive case for a pluralist right by providing independent arguments for each of (1) to (3), explaining why none can exhaust the content of a right to health care but all three are necessary to account for its uncontroversial content and features. These three goal-based aspects of the right to health care are related. There are several ways of understanding them as parts of a unified whole. Each is required for persons to live dignified lives. Each could be grounded in reciprocity for government power over their lives (particularly the aspects concerning their health). All require some of the same outcomes. Some argue that (2) without (1) is not truly just.1 The three aspects are nonetheless unique. For instance, (3) is a collective right held by persons in concert, whereas the content of (1) more closely resembles the types of goods that individuals could claim on a traditional model. One can achieve a single aspect without achieving the others, and each aspect implies different metrics for success. Yet the right to health care is only fully realized when (3) includes (2) and (2) maximizes individuals’ access to (1).2 These connections make the pluralist right to health care a unity in which all parts are related and should be described as part of a whole rather than a disparate list of goods that do not cohere. I now turn to the case for each component of this pluralist model of the right to health care. In the process, I explain why each is a necessary component of the right to health care, but none is sufficient for a normatively desirable conception thereof. (a) The Goods Necessary for a Dignified Existence Jointly Constitute a Necessary Component of the Right to Health Care The first component of the pluralist right to health care requires the provision of the goods necessary for a dignified existence. One can make a plausible case for a right to particular health care goods, and a right focused on particular goods most easily fits the traditional model of rights. Focusing on a set list of goods is also consistent with the aims of many proponents of health rights and

1 But see Alana Klein, “So Long as You Have Your Health: Health Care Distribution in Canada and Proceduralist Human Rights” (2012) 30 Windsor Yearbook of Access to Justice 247 at 286 for surrounding controversies. 2 All these claims are made in the service of a broader claim to (iv) improved health, though recognizing a right to health, rather than a right to health care, faces similar problems to a right to health care as well as its own problems.

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with international human rights law’s right to health. Indeed, it is required to address those aims and that right. It is plausible that some right to health care is necessary as a correlative of state power over health care and that this right will focus on particular health care goods. States have the power to regulate health care. In most jurisdictions, the state decides which items go on the market, who can provide health care, what qualifies as health care, and how to address many other important health care issues. Yet if the state does not resolve these issues in a way that better promotes health than alternatives, it is unclear why individuals should grant the state the authority to regulate in this area. A state that offers no new items on the market and consequently fails to provide even minimally satisfactory health care arguably lacks legitimate authority over health care. More realistically, a state that does not allow drugs that could help solve a health crisis to enter the country at no cost to the government arguably also lacks legitimate authority over health care.3 Indeed, a state that fails to protect health more generally may lack broader authority to regulate lives in general. Recall that rights are, traditionally, correlatives of duties.4 One does not normally think of authority as being correlative with duty. Yet the state’s authority to act can be understood as a right to interfere with the rights of others beyond a threshold.5 Such a right requires some correlative. Providing some necessities for minimal health is a reasonable candidate correlative duty. Providing the health care goods necessary for that minimal level of health would be a component of that broader duty. However one conceptualizes authority, authority must be justified. Even outside the rights framework, it is hard to see how it can be justified absent the provision of some health care. A contractualist framework requiring hypothetical consent to justify authority is particularly difficult to justify absent the provision of some health care, since no one should agree to, for instance, give up widespread access to many effective health care goods in exchange for poor health care for some.6 But nearly any account of justified authority over health

3 Tis is the factual background behind the famous Minister of Health and Another v Treatment Action Campaign and Others, 2002 (5) SA 721 (CC) (S Afr) case [TAC]. 4 Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23(1) Yale LJ 16 at 31 [Hohfeld, 1913]; Wesley Newcomb Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710 [Hohfeld, 1917]. 5 Samantha Brennan, “Tresholds for Rights” (1995) XXXIII Southern Journal for Philosophy 143. 6 For similar arguments justifying the state’s duty to protect persons to justify its authority, see e.g., Alan Brudner, Punishment and Freedom: A Liberal Teory of Penal Justice (New York: Oxford UP, 2009), and Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge, MA: Harvard UP, 2009). I build on both in the criminal law context in Michael Da Silva, “Quantifying Desert Prior to the Rightful Condition: Towards a Teoretical

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care will likely require the state to at least ensure some health care delivery. For instance, if authority is justified instrumentally, perhaps due to its ability to better coordinate moral obligations,7 then authority over health care is justified only where it better fulfils the relevant instrumental end. This would likely mean that it is justified only where it can ensure just access to health care better than alternatives. Governmental duties to ensure access will follow. Failure to protect even the basic well-being of citizens is thus best understood as a basic failure of governance.8 That well-being cannot be ensured without access to at least some health care. It is plausible to view this requirement as a duty that has a correlative right – and to understand the duty as also entailing some minimal health care provision. Such a right gains further support from international and global constitutional recognition of health rights.9 The traditional claim right model can be easily augmented to account for a right to particular health care goods by adding imperfect duties; this would

Understanding of the Provocation Defence” (2013) 26 Can JL & Juris 49. For a recent, arguably more direct argument for state authority relying on the provision of basic subsistence, which likely requires basic health care, see Anna Stilz, Territorial Sovereignty: A Philosophical Exploration (Oxford: Oxford UP, 2019) at 113–114. 7 On authority in general, see e.g., Joseph Raz, Practical Reason and Norms, 2nd ed (Princeton: Princeton UP, 1990); Joseph Raz, “Te Problem of Authority: Revisiting in the Service Conception” in Joseph Raz, Between Teory of and Interpretation: On the Teory of Law and Practical Reason (Oxford: Oxford UP, 2009) 126. For a good account of the general grounds of authority in general, see A John Simmons, “Authority” in David Estlund, ed, Te Oxford Handbook of Political Philosophy (Oxford: Oxford UP, 2012) 23. As outlined in that piece, the main competing grounds are democracy, fair play, and the obligation-imposing nature of associations. A full account of how each requires state provision is complicated and likely best addressed elsewhere. It sufces here to note that democratic procedures will likely always select health care provision as something the state should do, that fair play is itself grounded in the kind of distributive justice norms undergirding just distribution norms here, and that associative relations likely lose their obligation-imposing force when the relationship entails threats to one’s well-being. But each of these claims can only be defended in its own chapter in another book more closely focused on this issue. 8 It is accordingly treated as such in the media. See e.g., Shasta Darlington & Leticia Casado, “Brazil Fails to Replace Cuban Doctors, Hurting Health Care of 28 Million,” New York Times (11 June 2019), online: Te New York Times . 9 See e.g., Stephen P Marks, “Te Emergence and Scope of the Human Right to Health” in Jose M Zuniga, Stephen P Marks & Lawrence O Gostin, eds, Advancing the Human Right to Health (Oxford: Oxford UP, 2013) 3 at 20; Jef King, Judging Social Rights (Cambridge: Cambridge UP, 2012); Courtney Jung, Ran Hirschl & Evan Rosevear, “Economic and Social Rights in National Constitutions” (2014) 62 Am J Comp L 1034; Evan Rosevear, Ran Hirschl & Courtney Jung, “Justiciable and Aspirational Economic and Social Rights in National Constitutions” in Katharine G Young, ed, Te Future of Economic and Social Rights (Cambridge: Cambridge UP, 2019) 37.

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further establish the plausibility of a component of the right to health care focused on the provision of essential health care goods. As noted in the previous chapter, the case for strong correlativity as a necessary feature of rights is weak.10 Modifying the claim right model such that a right can correspond to less “perfect” duties need not drastically depart from the correlative structure of rights. If there is a right to health care, it must be a right to some goods. This approach would establish governmental duties to secure access to those goods and second-order entitlements to censure governments that fail to do so. Where the case for strong correlativity is weak and the case for less “perfect” governmental duties is stronger, there is little reason to maintain the traditional model and ample reason to modify it. Moreover, the right to health care must have some scope if it is to be a right on any model. Dignity provides an imperfect but plausible way of filling out the scope of the right. The fact that the right must be a right to something raises the Problem of Scope, but it is hard to imagine a right to health care that does not at least aim to improve health outcomes across the population or guarantee at least a minimal level of cheap, effective care. It is much harder to agree on the content of the right or even on guiding principles for identifying that content than it is to agree on some basic aims of the right. Furthermore, most people will agree that if there is a right to health care, there must be a minimal content of that right that allows us to identify claims under the right, and that whatever a right to health care may be, it is supposed to achieve certain ends, such as improved access to some form of health care. Dignity is a widely recognized value, and providing health care is widely viewed as a means of ensuring it, which makes dignity a good, less controversial candidate guidepost for identifying this content. A right to health care focused primarily on dignity-enhancing health care goods also specifies measurable steps necessary to fulfil the right. The number of goods absolutely required for dignity may be sufficiently small as to be potentially realizable.11 This raises questions about what goods are necessary for a dignified existence, but imperfect but plausible answers are available. Those imperfect responses, which I will now outline, support the action-guidingness of my approach. Outlining a perfect and complete list of goods necessary for dignity is likely impossible. This is partly because it is difficult to identify what counts as dignity.

10 Again, I present this argument in more detail in Michael Da Silva “Correlativity and the Case Against a Common Presumption About the Structure of Rights” (2020) 54 Journal of Value Inquiry 289. 11 I make a similar point regarding the international right to health care in Michael Da Silva, “Te International Right to Health Care: A Legal and Moral Defense” (2018) 39(3) Michigan J Int’l L 343.

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I adopt a broad definition of dignity here to avoid unnecessary theoretical commitments central to debates on dignity. A broad definition of dignity is as follows: it is the property all persons must hold in order to be recognized and act as free and equal members of a global community bound by international human rights law and organized into nations. This definition is suitably expansive to account for the foundational role dignity plays in international human rights law and modern constitutions and to account for dignity as a now universal status or as a universal characteristic that always should have been recognized but that many ignored in the past. Yet even this does not point to a full and complete list of the goods necessary to achieve dignity. It is probably impossible to precisely establish the “dignity level” persons must reach to hold the property of dignity. It is even more difficult to determine which goods are necessary to ensure that level. This component of the right to health care, then, does not perfectly identify dignity’s scope, which on its own suggests that it may not be the full right to health care even if it is a component thereof. Even so, my definition is justifiable and functionally valuable. After all, there are clear examples of goods necessary for a dignified existence, which help precisify the scope and content of this component. Essential medicines, immunizations, basic maternal and infant care, and treatments for (at least some) major diseases are clearly necessary for a dignified existence. If one cannot access basic essential medicines or treatments for disease, one’s quality of life is likely to diminish below a de minimus acceptable threshold; if it does so, one must have access to these goods to rise back above the threshold. International human rights law, which is also concerned with dignity, thus recognizes these goods as necessary.12 While this list of goods necessary for a dignified existence is incomplete, it is, at minimum, a useful heuristic for the types of concerns animating the right to health care. It further helps ensure that the right to health care has a largely, if imperfectly, determinable scope. Chapter 5 provides more detail on this. Some readers may think that appeals to dignity will raise more problems than they solve, but (a) most general criticisms of the concept to dignity do not undermine its value as a means to help establish the content of the right to health care, and (b) even an imperfect account of dignity remains the strongest candidate for specifying the content of the right to health care, so outlining its implications for the potential content remains important, even if only as a test for determining whether a plausible account of that content is possible. Dignity, of course, is itself a controversial concept. Some call it “useless,” “arbitrary,” “elusive,” “a fog-inducing drug,” and “without reference point.”13 Others

12 See chapter 4. 13 Doris Schroeder, “Human Rights and Human Dignity: An Appeal to Separate the Conjoined Twins” (2012) 15(3) Ethical Teory and Moral Practice 323 at 325–326 [Schroder, “Human”].

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add that it appears redundant, lacks a “coherent meaning of its own” (contrary to expectations), is not universal when plausibly rendered,14 is “inescapably religious,”15 and/or is non-observable.16 Relatedly, critics charge, we cannot know who possesses it or when it is morally present in a situation.17 Even fundamental facts about dignity – such as its foundations (and whether it is innate or contingent) – engender debate.18 A uncontroversial definition is lacking. Historically, dignity referred to (a) a status (in a society, the “order of reality,” etc.), (b) a manner (and/ or an attribute of people who act on the basis of manners), and (c) an attribute or value (and/or a way of attributing a value to something).19 These three meanings, “dignity as a valuable characteristic, dignity as high social status, and dignity as behavior with a certain respect-worthy character,” persist.20 But “dignity” is also used to refer to the modern concepts of “honour” and “worth.”21 Dignity as honour suggests that one deserves respect by virtue of one’s status. Dignity as worth suggests that one deserves respect by virtue of a characteristic. Jeremy Waldron’s influential work on “dignity-as-status,” in turn, reclaims the earlier honour-based conception of the term in response to a modern interpretation of worth-based accounts inspired by Immanuel Kant.22 Per Waldron, dignity traditionally held that a person deserves honour by virtue of his or her status, and modern law simply expands who counts as dignified and as deserving of honour universally, thus making it seem that all persons enjoy equal status by virtue of their inherent worth.23 Which of these approaches is the best account of dignity or can most plausibly or justifiably guide law or policy-makers remains fiercely contested.24 Many have accordingly give up on the concept of dignity altogether.

14 15 16 17 18 19 20 21 22 23

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Michael Rosen, Dignity: Its History and Meaning (Cambridge, MA: Harvard UP, 2012) at 4–6. Michael J Perry, Te Idea of Human Rights: Four Inquiries (Oxford: Oxford UP, 1998) at 13. Alan Gewirth, “Te Epistemology of Human Rights” 2(1) 1984 Social Philosophy & Policy 1. Doris Schroeder, “Dignity: One, Two, Tree, Four, Five, Still Counting” (2010) 19 Cambridge Quarterly of Healthcare Ethics 118 at 118 [Schroeder, “One”]. E.g., Schroeder, “One”, ibid at 26; Jan-Willem van der Rijt, “Inherent Dignity, Contingent Dignity and Human Rights: Solving the Puzzle of the Protection of Dignity” (2017) 82(6) Erkenntis 1321. Rosen, supra note 14 at 11–19. Ibid at 16. Meir Dan-Cohen, “Introduction: Dignity and Its (Dis)content” in Jeremy Waldron, Dignity, Rank, and Rights, ed Meir-Dan Cohen (Oxford: Oxford UP, 2012) [Waldron, Dignity] 3 at 4. Ibid. See especially Jeremy Waldron, “Dignity, Ranks, and Rights: Lecture 2: Law, Dignity, and Self-Control” in Waldron, Dignity, supra note 21, 47 [Waldron, “Dignity 2”]. Waldron has elsewhere written philosophical work on social rights, though he does not focus on health care; e.g., Jeremy Waldron, “Socioeconomic Rights and Teories of Justice” (2011) 48 San Diego LR 773. His dignity- and rights-based arguments could be connected. Even defenders of the use of the concept in law grant that it admits of diferent meanings in diferent philosophies and areas of law. Some go on to explain that this is a sign not of

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The underlying concerns have an impact on the practical use of dignity. For example, while dignity was once a popular term in bioethics,25 debates within the interdisciplinary field’s constituent parts – law and philosophy – now threaten its prominence.26 Legal scholars thus question whether dignity can serve its purported role as the value undergirding international human rights.27 Dignity as an innate right, critics charge, remains metaphysically dubious, while dignity as the result of a contract reduces dignity to the product of international relations, which itself requires justification and merely places dignity on a par with human rights in the source of its foundations.28 Indeed, many theoretical problems have legal analogues. For instance, dignity is approached differently across legal systems – and even within them.29 For another example, the Supreme Court of Canada (SCC) contends that attempts to “employ human dignity as a legal test” in the discrimination law context problematically lead to the creation of subjective and inapplicable legal tests and new burdens for vulnerable litigants.30 Dignity is ultimately controversial in “practice” as well.31 Given these concerns, dignity could be a poor candidate for a concept that can help specify the content of the right to health care. Absent a clear understanding of the contours of dignity, it is difficult to specify what its implication may be for the content of the right to health care – and, so, difficult to determine whether it sets a minimum floor of content or a very high

25

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27 28 29 30 31

dignity’s inherent ambiguity but of its rich and multifaceted nature. See Jeremy Waldron, “Dignity, Ranks, and Rights: Lecture 1: Dignity and Rank” in Waldron, Dignity, supra note 21, 13 at 15–16 [Waldron, “Dignity 1”]. E.g., Jonathan Mann, “Dignity and Health: Te UDHR’s Revolutionary First Article” (1998) 3(2) Health and Human Rights 30; Nora Jacobson, “Dignity and Health: A Review” (2007) 64 Social Science & Medicine 292; Nora Jacobson, “A Taxonomy of Dignity: A Grounded Teory Study” (2009) 9(3) BMC International Health and Human Rights 1; Martha Nussbaum, “Human Dignity and Political Entitlement” in Human Dignity and Bioethics, Commissioned by the President’s Council on Bioethics (Washington: President’s Council on Bioethics, 2008) 351. See e.g., Matti Häyry, “Another Look at Dignity” (2004) 13 Cambridge Quarterly of Healthcare Ethics 7–14; Søren Holm, “Undignifed Arguments: A Critique” (2016) 25 Cambridge Quarterly of Healthcare Ethics 228; Ruth Horn & Angeliki Kerasidou, “Te Concept of Dignity and Its Use in End-of-Life Debates in England and France” (2016) Cambridge Quarterly of Healthcare Ethics 404. Rosen, supra note 14; Oliver Sensen, “Human Dignity in Historical Perspective: Te Contemporary and Traditional Paradigms” (2011) 10 European Journal of Political Teory 71. Schroeder, “Human”, supra note 13; Schroeder, “One,” supra note 17; van der Rijt, supra note 18. Compare Germany’s Aviation Security Case, BVerfGE 115, 118 (2006) and Canada’s Carter v Canada (AG), [2015] 1 SCR 331. Ten compare Carter and Canada’s Rodriguez v British Columbia (AG), [1993] 3 SCR 519. R v Kapp, [2008] 2 SCR 483 [Kapp]. Rosen, supra note 14 is particularly good on this.

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ceiling that raises Problem of Scope concerns. A familiar challenge to other candidates for specifying the content of social rights may accordingly apply equally to dignity. Leticia Morales states that “basic needs” accounts of social rights are particularly susceptible to the Problem of Scope: the list is either grounded in a “shared understanding of what is urgent and pressing for individuals to subsist … [that produces a shared content that] is too minimal and for that reason hardly appealing for social rights advocates” or broad enough to leave theorists “unable to tell us where to stop the expansion of claims.”32 This problem can only be avoided by invoking some “independent standard” for specifying basic needs, and any such principle may raise the Problem of the Principles of Scope or otherwise introduce indeterminacy as to the content.33 Similar problems attend to attempts to specify rights using a standard of “minimal decency” in which all persons have rights to the goods needed for a minimally decent life.34 Either what is needed for a minimally decent life is going to be very broad, raising Problem of Scope concerns, or we need another principle to limit the scope and minimal decency no longer specifies the content of the right. Let us call this Problem of Scope–adjacent problem the “Content Dilemma.” Where dignity admits of multiple interpretations – some of which may mirror basic needs or basic decency standards (viz., the status protected could be the status of one who possesses basic needs or dignity or the status needed to protect same) – it seems susceptible to the charge that it raises the Content Dilemma. Even if dignity could overcome these challenges, whether it can ground any human rights and/or serve as a guideline for the legal content of the right remains contestable. Dignity nonetheless provides the best account of the minimum content of the right to health care. Any lingering concerns that it cannot do so may prove that we cannot specify a principled manner of setting the minimal substantive content of the right, which I consider an unwelcome result. The primary concerns with dignity as a concept do not appear to undermine its ability to set minimal content of the right to health care. Those concerns can be summarized by stating that dignity (a) lacks a single uncontroversial, stable, and action-guiding meaning, (b) could raise the Content Dilemma, and (c) is inappropriate as a legal test for rights fulfilment. Yet the commonalties between the leading accounts of dignity all specify a limited number of goods that would be covered. One thus does not need a single uncontroversial definition of “dignity” to specify the concept’s content in a way that avoids the Principle of Scope. Challenges (a) and (b) thus miss their mark even if my own definition of dignity

32 Leticia Morales, “Te Discontent of Social and Economic Rights” (2018) 24 Res Publica 257 at 262. 33 Ibid at 263. 34 Ibid at 264.

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is ultimately uncompelling. Where, in turn, we are only specifying the content of the right to health care in conceptual terms, dignity’s inability to provide an ideal legal test is unproblematic, blunting the concern in (c). It is unclear at this point whether health rights are best realized through judicial action, so worries about judicial competence to specify what counts as necessary for dignity are premature. But where we know enough about dignity to specify the paradigmatic examples of health care goods that states must provide as part of the right to health care, judges should interpret any legal rights that do exist in light of commitments to ensuring those goods – and can assess new claims about what should be covered by analogizing to those paradigmatic examples. The remainder of this section and chapter 5 further identify how multiple views on dignity uncover such paradigms. A full account of dignity requires its own book, but attending to some basic features of my own account and other modern accounts suffices to explain how and why it can serve the role envisioned here. I do not think that dignity is more difficult to interpret than equality, autonomy, or other contentious moral concepts that many are happy to accept as bases for ethical and legal posits. Even purportedly amoral medical concepts, such as “pain,” admit of varying interpretations with very different consequences.35 But little here turns on that claim, so I will not defend it in full now. Dignity can be helpful here even if problematic elsewhere. One simply does not require a complete account of dignity that can avoid all challenges to the use of the concept in all cases to use dignity to specify the minimal and basic substantive content of the right to health care. Plausible modern accounts converge on which health care goods are minimally required for dignity, and those goods help set the basic substantive content in an intuitively compelling way that explains both the existing practice of health rights and how one can identify and update the substantive content over time. Where that content also avoids the scope-related problems facing other accounts in a principled manner, there is reason to contend that “goods necessary for a dignified existence” articulates the substantive content needed to distinguish the right to health care from other rights (such as procedural justice rights). This is so regardless of whether one agrees with all my examples of what I take to be “goods necessary for a dignified existence.” Even if one thinks that epinephrine should not qualify, for instance, using dignity to specify the basic content is valuable both due to the right’s connection to dignity in multiple spheres and

35 Tis issue is raised in numerous disciplines, with scholars difering in the extent to which the problem can be overcome. Compare e.g., JT Farrar, “Advances in Clinical Research Methodology for Pain Clinical Trials” (2010) 16(11) Nature Medicine 1284, and Murat Aydede, “Pain” (2005/2009) Te Stanford Encyclopedia of Philosophy, online:

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due to the way in which dignity can play the necessary functional role of identifying (here other) goods that should be part of the right’s substantive content in a principled, appropriately circumscribed way. My preferred approach to dignity views dignity as a fundamentally political concept. It does not seek to provide a master conception of “dignity.” It simply treats the term as a placeholder for important functional roles. My approach begins by noting that we need a concept that can serve as a foundation for transnational human rights practice, and dignity purports to play that role. It then asks, “What would dignity need to be for it to play its claimed foundational role in grounding those rights, and what implications would this have for the content of the right?” My proposal is that it would be the property held by all persons that they require if they are to be recognized and act as free and equal members of a global community. There is, I think, reason to prefer this conception to alternatives. Not only is it consistent with the understanding of dignity as a ground-norm for human rights, but it also captures the insights of traditional philosophical approaches in Waldron, Michael Rosen, and Immanuel Kant: dignity is a property of individuals that requires that we treat them with respect and as having equal status at least in the political realm. It also accounts for legal views on dignity. To the extent that there is a post–Second World War understanding of the term in international human rights law and comparative constitutional law, it is consistent with this definition.36 International human rights law and a multitude of domestic constitutions now recognize dignity as a foundational component of the human rights regime and (in some instances) as a stand-alone right. The nature of the relevant rights in both legal regimes is contested, but, rather than undermining my view, this explains why my broad definition is necessary as a means to account for multiple practices.37 But one does not need to accept the general plausibility of this approach to see how it can specify the content of the right to health care in an intuitively plausible and circumscribed way that conforms to the basic content of international laws. Moreover, its implications for the basic content of the right converge with those of other plausible objective conceptions of dignity. This convergence is sufficient to support adopting the implications of this view of dignity for the right to health care even if one

36 See chapter 4 of this text and Adeno Addis, “Human Dignity in Comparative Constitutional Context: In Search of an Overlapping Consensus” (2015) 2(1) Journal of International & Comparative Law 1 respectively. 37 I admit that the contentious conception of dignity used by proponents of medical aid in dying may be inconsistent with my broad defnition. Addressing why I do not fnd this problematic is part of a separate argument for this conception. Where one does not need to address this conception for “dignity” to play its role here, I do not think it is useful to spend much time here defending the view and/or its relationship to medical aid in dying.

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jettisons the general account of dignity on offer. I accordingly will not fully defend this view. I will simply provide a brief explanation of its implications for the substantive content of the right to health care. If my “political” conception of dignity is plausible, the basic content of the right to health care will be politically oriented. It can be specified by pointing to the goods necessary to have the basic level of well-being required to be a political actor capable of having one’s interests known in the global community. Scholars concerned with the Content Dilemma suggest that such a political approach may be best positioned to resolve it. For instance, Leticia Morales writes that, notwithstanding some indeterminacy regarding what one needs to be part of a civic community, specifying the goods one needs to even engage in democratic politics is less difficult than specifying other needs.38 Essential medicines, immunizations, basic maternal and infant care, and treatments for (at least some) major diseases again seem like plausible candidates. One cannot engage in politics without a threshold level of well-being, and that threshold cannot be met unless certain basic health care goods are provided. Indeed, this likely explains why those goods are the kinds of things that are already protected by the existing dignity-focused international legal community.39 That transnational legal phenomenon is evidence of the political salience of these goods. An alternative functional approach to dignity tailored to the right to health care produces the same result. If the right to health care is to have any independent existence, it must have some substantive content. If we ask “What could that content be?,” the pervasiveness of appeals to “dignity” within human rights discourse could justify using the term “dignity” to refer to the answer. If we ask it from the perspective of the general need to specify content in a way that avoids the aforementioned scope-related problems and the Content Dilemma, rather than from the perspective of transnational politics, the question becomes “What is the content of our shared understanding of what the right must cover?” The “goods necessary for dignity” are simply those for which there is broad consensus that they should be covered by a right. Many different accounts identify the same goods – essential medicines, immunizations, basic maternal and infant care, and treatments for (at least some) major diseases – and there is global agreement in international human rights law that those goods should be captured. So this approach produces the same result as the earlier one(s). Plausible mainstream modern views of dignity also converge on the importance of these goods. This convergence too is evidence that the goods should be part of the basic substantive content of the right to health care. This is

38 Morales, supra note 32 at 269–270. 39 Again, see Chapter 4 for details.

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particularly clear where they overlap with substantive entitlements under the relevant international law. The goods can also help us further specify the substantive content of the right by providing paradigmatic examples of goods necessary for dignity – goods with which one must analogize when adding another good to the substantive content (regardless of which view on dignity one prefers). Attending to the shared characteristics of the plausible views makes this clear. Most notably, dignity is an objective characteristic according to all plausible conceptualizations. Regardless of whether we are discussing if one has the attribute of dignity or the status of the dignified (or is acting in the manner of one who possesses that attribute or status), that decision is not made by the candidate dignity-bearer alone. Whether something is necessary for that attribute/ status and/or whether something undermines same is likewise beyond the candidate dignity-bearer’s competence. While one can complain about an “affront to one’s dignity” on the basis of shared experience alone, whether one’s statement qualifies as valid depends on whether it is accepted as such using objective (or at least intersubjective) criteria.40 There are, of course, accounts of dignity that state that what counts as an affront to dignity depends on one’s subjective experience.41 One may feel that one has no worth, or is being treated like one who has no worth, on the basis of treatment that others would not experience in the same way. But what qualifies as the value or standing remains objective. Whether an idiosyncratic reaction actually undermines that value or standing is a further question. Addressing it is not necessary for the present task. Attending to the goods needed for an objective standard of value or status meriting the term “dignity” can identify paradigmatic examples of the necessary substantive content of the right to health care. Idiosyncrasies do not speak to the paradigmatic features of dignity or to its implications for the right to health care. They instead qualify as borderline cases of the relevant phenomenon that require that the right to health care be pluralist. Modern conceptions of dignity also share a focus on a baseline common to all (at least human) persons, rather than a unique feature that makes some persons special. On such accounts, dignity is an attribute or status demanding respect that belongs to all persons.42 It thus can no longer be the literal level

40 Failure to recognize this point may explain why Canada was unable to use dignity as part of an applicable legal standard; Sophia Moreau, “Te Wrongs of Unequal Treatment” (2004) 54(3) U Toronto LJ 291. Objective conceptions do not have the same problem, as Moreau rightly notes. See also Aharon Barak, Human Dignity: Te Constitutional Value and the Constitutional Right, ed Daniel Kayros (Cambridge: Cambridge UP, 2015). 41 See e.g., David J Mattson & Susan G Clark, “Human Dignity in Concept and Practice” (2011) 44 Policy Sciences 303. Notably, however, even they suggest that dignity secures its ultimate meaning intersubjectively. 42 See generally Waldron, Dignity, supra note 21, and other works by the contributors thereto.

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of well-being of a nobleman. At most, it is an attribute or status requiring the respect that noblemen once received.43 To act dignified is to act like one deserving of respect.44 These commonalties specify basic features of dignity that can help identify what kinds of health care goods are necessary for a dignified existence and so plausibly part of the right. One might think that all traditional accounts raise the Content Dilemma, yet that dilemma does not arise on modern conceptions of dignity that share those basic features. Differences between accounts of dignity will admittedly produce different accounts of the goods necessary for dignity beyond these basic points of commonality, and some of these accounts could raise Problem of Scope concerns. For instance, if “dignity” still referred to the high rank of a nobleman,45 the goods necessary for dignity would be extensive. Modern accounts dodge this point by stating that dignity must be at least potentially possessable by all persons, which is not possible if the benchmark is the high rank of nobles. While one may worry that modern accounts only do so at the expense of raising the Content Dilemma, that dilemma does not arise in the unique confines of the health care context. On all views that share the aforementioned features, “dignity” entails the protection of a minimal level of well-being. This has clear implications for what the right to health care should entail. If dignity is a value or a means of attributing value to something, and if that something does not belong to humans (or, perhaps, to other beings with human-like features), then protection of basic human functioning will be necessary. The lower bounds of the range of goods necessary for said protection will clearly include essential medicines, immunizations, basic maternal and infant care, and treatments for (at least some) major diseases. These are uncontroversially needed to fulfil basic needs or maintain minimal decency. If, in turn, dignity is a status one should desire, it must at least be the status of one who can act as a free and equal member of society. This is what modern dignity-as-status is meant to capture.46 Here too the necessities of a minimally decent life are prerequisite to that end. While one may, in turn, worry that dignity will cash out in the very “basic needs” or “minimal decency” that raised the Content Dilemma, that dilemma does not obviously apply in the narrow confines of the health care context. The Content Dilemma applies where there is always more that could be done to ensure a minimally decent life.47 This is always the case with, for instance,

43 44 45 46 47

Tis is the tack taken by Waldron, “Dignity 1,” supra note 24; Waldron, “Dignity 2,” supra note 23. Again, see generally Waldron, Dignity, supra note 21, especially the main essays cited in ibid. On this historical rank, see e.g., Waldron, “Dignity 1,” ibid; Waldron, “Dignity 2,” ibid. Waldron, Dignity, supra note 21. Recall e.g., Morales, supra note 32.

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environmental action. But it is not clear that there is a wide range of additional health care measures that are broadly required to fulfil one’s basic needs and/ or live a minimally decent life. More health care may be needed to live a good life, and justice likely demands that people have access to many more goods where this is feasible; but it is unclear which goods, if any, people need beyond this small basket to fulfil this lesser standard. There are, of course, reasons to suggest that the right to health care should be understood as broader in scope, which I return to below. But those reasons do not prevent dignity from playing its present role. Dignity is widely recognized as important in ethics, political philosophy, and domestic and international law(s).48 Where several plausible accounts of dignity converge on a shared understanding of its implications for the minimal content of the right to health care, and where that shared understanding captures plausible intuitions regarding what goods such a right must cover while avoiding scope-related concerns, there is good reason to adopt that shared understanding as the basis of the right – and to call that shared understanding “dignity-based.” So understood, “dignity” provides a floor of content, not a ceiling. Essential medicines, immunizations, basic maternal and infant care, and treatments for (at least some) major diseases are the most plausible candidates for the goods necessary for an objective standard of value or standing deserving of the name “dignity.” Whether other goods qualify is at best contestable – and likely better resolved through the procedural components of the right to health care. If there are content concerns here, they are more likely to come from those who believe that the right should capture more goods, not those concerned with a slippery slope to overdemandingness charges. But if states provided these largely affordable goods, it could vastly improve the well-being of many people. Ensuring that all persons can live at least a minimally decent life seems like an important moral goal. It is, I further contend, the kind of thing that anything that merits the title “right to health care” should prioritize as a goal, especially given widespread recognition of its importance. Recognizing a right to the health care goods necessary for a dignified existence is also explanatory of domestic and international legal practice. Litigants make claims to these goods.49 Laws recognize them. International human rights law clearly recognizes a right to health care as part of its broader right to

48 Barak, supra note 40, is good on domestic legal rights. See chapter 4 for relevant international law. Jeremy Waldron, Dignity, supra note 21, and Rosen, supra note 14, are two of many important recent philosophical works. 49 See TAC, supra note 3, and Auton (Guardian ad litem of) v British Columbia (Attorney General), [2004] 3 SCR 657, 2004 SCC 78, for two of many examples of domestic claims (these from South Africa and Canada respectively).

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health.50 Domestic constitutions also recognize health rights.51 Constitutional health rights, passages in international human rights law specifying a right to health care, and moral arguments for a right to health care could simply refer to different things. Yet this “different kinds of rights” approach ignores an important sense in which all actors are engaged in, at the very least, a related set of conversations, and each of those conversations identifies truths that are important for many others as well. The shared aims and structural features of these rights and the fact that arguments for and against the different types of rights seem to apply, with varying strengths, to each suggests that all appeals to a right to health care are in the service of the same project. International and domestic health rights admittedly differ in form and content. But some basic features of the right are common to all schemes. The provision of some essential bundle of goods is one basic feature. While that bundle of goods differs across jurisdictions, a commitment to dignity is a plausible explanation for any provisional list of the minimal content of existing rights. Thus, while international human rights law recognizes a minimum core of content in its right to health care52 and South Africa has adopted a reasonableness standard for determining whether states are fulfilling the duties correlative to South Africa’s constitutional right to health care services,53 both recognize that the provision of HIV/AIDS drugs is a necessary component of a right to health care.54 This form of convergence can also be understood in light of a shared concern with dignity, further bolstering my view. The present approach is imperfect but nonetheless preferable to alternatives. Nothing here likely suffices to show that any account of “dignity” is unproblematic. “Dignity” may not justify all existing international human rights law as claimed.55 The preceding simply shows that there are multiple paths to the

50 United Nations, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 12 [ICESCR]. See chapter 4 for detailed discussion of these rights. 51 See e.g., Jung, Hirschl, & Rosevear, supra note 9. 52 United Nations, Committee on Economic, Social and Cultural Rights, General Comment 14: Te Right to the Highest Attainable Standard of Health, 22nd Sess, UN Doc E/C.12/2000/4, (2000) [GC 14]; United Nations, Committee on Economic, Social and Cultural Rights, General Comment 3: Te Nature of States Parties’ Obligations, 5th Sess, UN Doc E/1991/23, (1990) at para 1 [GC 3]. 53 Tiagraj Soobramoney v Minister of Health (Kwa-Zulu Natal), 1998 (1) SA 765 (CC) (S Afr). 54 See TAC, supra note 3; World Health Organization, “WHO Model List of Essential Medicines: 21st List (2019)” (2019), online: World Health Organization [WHO]. 55 Whether it could was once a topic of live debate. Notably, however, even many proponents of dignity as a ground norm for international human rights law no longer think it can justify all existing laws; see e.g., Deryck Beyleveld, “Human Dignity and Human Rights in Alan Gewirth’s Moral Philosophy,” in Marcus Düwell et al., eds, Te Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (Oxford: Oxford UP, 2014) 230 at 230–231.

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same answer to the question of what a right to health care should cover in order to have substantive content and explains why appeals to dignity to identify that content – such as those seen in international human rights law – make sense. This is enough to justify the content-based claims here even if one finds “dignity” problematic. One may still worry that different accounts of dignity can have different results and that failing to specify which account of dignity is best amounts to leaving the Problem of Principles of Scope open and so fails to identify content beyond the basic goods on which all plausible accounts of dignity converge. The goods necessary for moral “standing” and political “standing” may differ. But “Cover the goods necessary for dignity” has proven to be a useful principle for resolving the scope absent a complete account of dignity. Fully specifying the content that a substantive right should cover may require choosing between competing conceptions of dignity. But the pluralist approach does not require specifying complete transparency in the substantive content of a justified right. Rather, it states that attempts to fully articulate the content are likely to be quixotic and to raise more problems than they solve. Alternative principles do not seem to clearly converge on a plausible basic substantive content of the right like the present account. One should not let the perfect be the enemy of the very good result produced in the foregoing. All dignity-based responses also leave open the charge that the goods necessary for a dignified existence can change over time. This, however, does not mean that dignity is susceptible to the Problem of Time and Space. Rather, it is evidence that appealing to “the goods necessary for a dignified existence” is a better means of filling out the content of the right to health care than attending to specific goods and that that category too will require updating. Attending to empirical realities thus remains necessary on the present view.56 But this is entirely appropriate. The content of the right should be capable of adapting to changes. The basic content is going to be what is needed for all persons to share basic features connected to dignity. Those needs will change over time. The concern with a small set of goods required for even a de minimus level of well-being will remain central. To avoid the Problem of Time and Space, it will always be necessary to attend to empirical realities. But what counts as “dignity” should remain reasonably stable over time. Indeed, existing empirical data demonstrate that the categories of goods needed to secure it has remained stable. Penicillin may have replaced other scarlet fever remedies, but the need for a remedy to address that basic threat to the health of humans has remained constant over time. Ultimately, “the goods necessary for a dignified existence” serves as a useful category for specifying the basic substantive content of the right to health care regardless of whether one adopts any particular account of “dignity” or accepts 56 Morales, supra note 32 at 269–270, states that this is so of political views in general.

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a particular good as necessary for dignity. Reasonable people can disagree on some point without undermining the view’s general plausibility. Yet essential medicines, immunizations, basic maternal and infant care, and treatments for (at least some) major diseases seem like they should qualify as “goods necessary for a dignified existence” on any account. There is ample independent reason to think that they should be part of the basic substantive content of the right to health care. They can and should accordingly serve as the paradigmatic examples of goods that the right must cover. An appeal to dignity thus provides an action-guiding account of the substantive content of the right. Essential medicines, immunizations, basic maternal and infant care, and treatments for (at least some) major diseases are themselves broad categories and need to be further specified, but even attending to the paradigmatic examples demonstrates the action-guidingness of the present view, as well as the need for a procedural component to complete our account of the right to health care. As discussed in chapters 4 and 5, perfectly specifying what is necessary for dignity is likely impossible ex ante, but international human rights law provides good proxies for those goods that are themselves identified as necessary for right to health care realization through a procedurally fair process and thus are further justified from a right to health care perspective. Those chapters answer questions about how to identify the content of the right to heath care in particular circumstances. It would be unwise to repeat that material in this theoretical chapter. But attending to paradigmatic cases of covered goods and “hard” cases helps motivate the view on offer and its action-guidingness. It also helps explain why dignity alone cannot specify the full content of the right to health care. I accordingly briefly canvass that point here. Paradigmatic examples of goods to which one has a direct right can easily be identified on this view. Goods recognized as “essential” by the World Health Organization (WHO) will qualify as basic entitlements under the proposed right to health care.57 The WHO identifies a list of “essential medicines” whose incorporation into a right to health care would entail that states must ensure that all persons who need them can access penicillin or epinephrine, for example, as well as basic pain medications. Holding back goods necessary for people to treat a severe staph infection or manage an anaphylactic allergy or severe chronic pain fails to meet the dignity standard. Treatments for widespread treatable diseases, such as HIV/AIDS, will likewise be captured. Most states should be able to provide access to this narrow set of health care goods, at least over time in a manner consistent with progressive realization

57 WHO, supra note 54.

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norms, but potentially earlier.58 Yet such access is not so narrow as to have no prospect of improving actual health outcomes. Scope-related concerns are thus largely avoided with respect to these goods. That there is widespread support for the idea that all persons should have access to these goods suggests that including these goods within the basic content of the right accords with common intuitions over what a right should include.59 While international law is less concrete in terms of its treatment of basic maternal and infant care, paradigmatic examples of these services are also easily identifiable. Indeed, the WHO already recognizes “emergency” obstetrical care as part of a “global consensus” on the goods necessary to combat preventable maternal mortality.60 Routine prenatal care following the standard of care should qualify under the same condition. “Skilled birth attendance” is also viewed as central under international law.61 It benefits both the mother and the infant. The fact that multiple categories of health care providers can provide this service suggests that the costs of providing it need not be exorbitant. The lack of international consensus as to what qualifies as “essential primary health care” may, in turn, lead some to identify the need for a procedurally fair global process for selecting particular goods,62 but treatment of common infections (e.g., strep throat) surely qualifies. These uncontroversial examples of goods necessary for a dignified existence provide a basis for measuring state compliance with the right to health care, as well as examples we can use to evaluate other claims about what goods are necessary for a dignified existence. We can avoid the Problem of Time and Space and guide future interpreters of health rights by pointing to these paradigmatic 58 I discuss “progressive realization” and the time at which the content of a right to health care must be fulflled in international law and as a general matter in the next two chapters. For now, just note that states being unable to aford to provide all the goods at a time does not undermine the idea that realizing a right to health care can be afordable and/or a valuable guide for decision-making with the funds a state has at a given time. 59 Te international law in chapter 4 and general coverage of these goods in constitutional orders – and even in many public health systems that do not recognize health rights – are sufcient evidence of this claim. 60 United Nations Human Rights Ofce of the High Commissioner, Preventable Maternal Mortality and Morbidity and Human Rights (New York, 2010) at 14. It is thus prioritized in United Nations Human Rights Council, Preventable Maternal Mortality and Morbidity and Human Rights, UN HRC Res 33/18, UNHRC, 33rd Sess, UN DOC A/HRC/RES/33/18, (2016) 1 at 3. 61 Alicia Ely Yamin, “Towards Transformative Accountability: Applying a Rights-Based Approach to Fulfll Maternal Health Obligations” (2010) 7(10) Sur International Journal of Human Rights 95 at 99 (also highlighting the importance of emergency obstetric care). Yamin is sceptical of a traditional rights framework in this piece, but largely due to the lack of the procedural and substantive safeguards for individual entitlements. My pluralist right directly responds to Yamin’s underlying concern with traditional approaches. 62 John Tobin, Te Right to Health in International Law (Oxford: Oxford UP, 2012) at 251.

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examples and stating that the basic substantive content of the right to health care consists of goods that share medically and morally relevant features with these paradigms (while remaining alive to the fact that even these paradigms may not be necessary for dignity in the future). So, new goods on the market need not only impact the procedural component of the right to health care. Evidence that the new goods share features with these paradigmatic examples could change the content of these substantive components, expanding the entitlements thereunder (and, again, potentially resulting in some of the paradigmatic examples no longer being necessary).63 Paradigmatic examples of goods that will not be covered can also be identified, further demonstrating the intuitive plausibility of the present proposal’s implications and the pluralist right’s general action-guidingness. Not covering some of these goods may fall short of what many would desire from a right to health care. But such goods also raise controversies about health rights, suggesting that the intuitive case for their inclusion as part of the basic content is at best contestable and that their non-inclusion is principled and helps avoids the Problem of Scope in a manner that protects the basic concept of the right to health care. For instance, removal of a benign mass that has no impact on bodily function – or even aesthetics – surely qualifies. A small lipoma in one’s leg that does not protrude is a paradigmatic example here. Perhaps more controversially, purely cosmetic procedures (viz., procedures that solve an aesthetic issue with no impact on functioning) will likely not fall under the scope of the substantive component of the right. Even more controversially, fertility treatments also likely will not qualify. Of course, many people likely consider aesthetic normality (or superiority) and the ability to have children as parts of the good life. There will be circumstances where states should publicly fund these goods. It may impact people’s subjective feelings of whether they are living dignified lives. But it is at best unclear whether these goods are necessary for any objective conception of dignity – and any lack of clarity should be resolved through procedurally fair decision-making rather than ex ante hypotheses. A system could err in failing to select those goods. So, making a right to health care claim to fertility treatments may be warranted in some cases; but so too can political and judicial decisions not to cover those goods.64 The basic substantive content

63 I am, for now, agnostic about whether the cost of these new goods should go into a determination of whether the goods are part of the basic substantive content or into a discussion of when and how a duty to provide that basic substantive content can be defeated. Te outcome will likely be the same in practice in most cases. 64 Te political controversies surrounding in vitro fertilization [IVF] and the minimal success of claims that Canadians have rights to IVF services discussed in Part II is accordingly unsurprising.

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of the right to health care is narrowly circumscribed and does not immediately include such goods. Experimental treatments also will not be captured, even when they offer the only possible solution to an ongoing medical problem. This may, again, be less than many would hope to find in a right to health care. But it avoids the extreme ends of the Problem of Scope in a principled manner. And a right to even the narrower goods delineated earlier has serious transformative potential. Non-coverage of some goods that some people think a right to health care should cover can generate “hard cases” in the right to health care. Non-paradigmatic cases can generate still “harder” cases that demonstrate the limits of a purely procedural account. It is, for instance, unclear whether some goods even qualify as health care despite being recognized as “essential medicines” by WHO, let alone whether they qualify as goods necessary for a dignified existence. Consider condoms, for example.65 Justice likely demands that persons have access to condoms. But are they plausibly part of the basic content of the right to health care? Still other cases are located on the border of goods necessary for a dignified existence. The borders of “purely cosmetic surgery” are likewise potentially porous. A cleft palate that impacts speech in a minimal way may present a harder case. Moreover, this approach may produce results with which many could be uncomfortable. “Borderline” cases can also be “hard” cases from an intuitive perspective. Failing to provide cosmetic surgery to persons whose appearance has a major impact on their subjective sense of value and so causes them not to engage in public, rendering them unable to use their default status, seems prima facie problematic. An appeal to the goods necessary for a dignified existence seems silent in such a case. One must develop a complex account of how this subjective dignity is coextensive with objective dignity, and do so in a principled manner so as to keep the basic substantive content from raising the extreme end of the Problem of Scope. But these types of cases are likely to be addressed by procedurally fair public decision-making. That may, admittedly, be a hard result for many rights advocates to accept. But it appears to be a desideratum of my view. The existence of “hard,” “harder,” and “borderline” cases does not, however, undermine my proposal. First, the competing models with substantive content also do not capture all examples of the goods some would want a right to health care to capture – or they do so only at the expense of hitting an extreme end of the Problem of Scope – and none of them perfectly specifies which goods should be covered ex ante. Second, the fact that all accounts of basic substantive content, including my own, admit of “harder” and “borderline” cases is simply evidence of the need for a procedurally just system for determining 65 Tey are included in WHO, supra note 54.

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what to do with “harder” cases and where to draw the “borders.” Difficulties in applying any strictly substantive account, including a dignity-based one, to non-paradigmatic cases simply bolster pluralism. At worst, then, dignity is on a par with the alternatives in its ability to meet the scope-related problems noted earlier, while at best, dignity can help identify a discrete set of goods that constitute the floor of the right to health care. As described in later chapters, the practices of an international legal system purportedly grounded in the kind of pervasive equality approach to dignity that I champion identify many plausible candidates for dignity-enhancing goods that could be useful proxies for what is necessary for dignity. Finally, one does not need to accept all of my determinations about particular goods for dignity to serve its intended role here. Dignity simply needs to be able to identify some goods that should be included and some goods that cannot to set minimal content for the right to heath care. It can do so even if one disagrees about how it applies to particular predominantly cosmetic procedures on my schema. Moreover, even if this and other defences of dignity fail, the fact that alternatives encounter the same issues suggests that a strictly content-focused right will be problematic. This further bolsters my pluralist model. Other aspects of the pluralist right to health care, namely the procedural and substantive components, avoid these problems, thus minimizing their threat, but other aspects require some minimal content for the right to account for all intuitions about the purpose of health rights. Any model must set a floor. Dignity is, again, no worse than the alternatives in its ability to set that floor and likely better than most. The foundational role of dignity in some forms of ethics and domestic and international law (see below) suggests it could be the latter. Even access to all the goods necessary for a dignified existence may not guarantee basic well-being where health care access is just one aspect of well-being, let alone a dignified life, and economic and other forms of injustice can coexist with rights realization. But this is simply evidence that the right to health care is not a panacea. How to remedy all injustice or make people live their best lives requires far more work than I can do here. Even fulfilling this basic substantive content of the right to health care would greatly improve the lives of many people living today. (b) The Goods Necessary for a Dignified Existence Alone Do Not Capture All That Should Be under the Right to Health Care Yet even a right to the goods necessary for a dignified existence remains conceptually incomplete and does not capture all the aims of litigants or relevant international laws. For instance, any right to health care grounded primarily in dignity requires a procedural supplement to address borderline cases. Given the Problem of Scope, a commitment to procedural fairness is also required

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to specify the content of the right to the goods necessary for a dignified existence in the real world. Thus, some system is required to guarantee fairness and fair distribution according to those norms. If we cannot know what goods are necessary for a dignified existence ex ante, we need a process for specifying the proper content of a right to those goods. A process must be procedurally fair to be legitimate and to attract public support. Some system of enforcement is therefore instrumentally necessary to guarantee the fairness and the actual distribution of the goods that are part of the right. Relatedly, even if a right to procedural fairness were not required to specify the goods necessary for a dignified existence, the commitment to dignity that undergirds the purported right to the goods necessary for a dignified existence requires more than the provision of goods necessary to secure it. The broad account of dignity links (1) to (2) and (3) and requires (2) and (3). It should be clear that pervasive equality, for instance, also requires fair distribution of goods. Societies must then justify non-identical divisions among equal persons. Dignity concerns thus link with procedural fairness and health care system requirements. A commitment to dignity, then, does more than ground the floor. It also requires that the right to health care include other components. Procedural fairness is also necessary to ensure that the content of the right to health care is responsive to the Problem of Time and Space. What counts as necessary for a dignified existence will change over time and may differ from state to state or within one state – for instance, one population or part of a population may be particularly susceptible to a particular disease. In such circumstances, some fair process is necessary to update when required the list of goods a state provides. The problem becomes acute if one wants to specify content of the right beyond the goods necessary for a dignified existence. Changes to the content of health rights above the floor can only be reason-responsive and justifiable when they attend to differences between or within states. A right to goods necessary for a dignified existence may not do so on its own. It says nothing about sur-floor content. Procedural fairness requires reason-responsiveness. Some system is, yet again, necessary to guarantee the requisite fairness. So, the right to health care cannot simply be a right to the goods necessary for a dignified existence. Even by its own lights, a right focused on component (1) of my pluralist right also requires components (2) and (3). There are then other reasons to think that (1) alone cannot constitute a full account of the relevant right. For instance, beyond the positive cases for components (2) and (3) presented below, it is worth noting that only a pluralist model explains conduct within the competing “monist” frameworks that view the right as fundamentally concerned with one thing. A focus on the goods necessary for a dignified existence fails to account for all the claims made in the name of the right to health care in actual practice. Legal practice suggests that (at least) (1) to (3) are existing aims of health rights litigants. In the Canadian context, for one

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example, many challenges stem from allocation decisions, claims to essential services, and attempted cuts to the health care system.66 On the goal-oriented pluralist model here, scholars, litigants, and other persons who invoke the language of the right to health care are not misguided. Many seek important ends, including the fulfilment of pre-existing rights such as the right to fairness in the distribution of public goods. While discussion of a “right” to health care suggests that the right will resemble traditional individual claim rights, the right to health care in legal practice is an umbrella term for a variety of interests, including individual claim rights, collective claim rights, and concerns with broader consequential outcomes. Likewise, as detailed in chapter 4, international human rights law recognizes that providing a set list of specified goods should not exhaust the commitments under the right to health care. Most of the goods necessary for a dignified existence listed earlier are only part of the minimum core that states must provide immediately in order to meet their international right to health obligations. The provision of other goods is then necessary to progressively (and preferably, eventually, fully) realize the right in its entirety. “Progressive realization” requires the provision of other health care goods that do not easily fit under the description “necessary for dignity.” Even if one could fit all the specified goods under the international right to health care under the dignity umbrella, international human rights law also clearly includes commitments beyond the provision of health care goods. Various passages explicitly require procedural fairness in the health care allocation context and a functioning health care system as part of the right to health.67 As I will now explain, this requirement for procedural fairness is independently justified but also insufficient on its own. (c) Procedural Fairness in Health Care Allocation Is a Necessary Component of the Right to Health Care Procedural fairness is, for instance, required as a matter of health justice. Norman Daniels and James E. Sabin’s accountability for reasonableness is integral to my conception of this component of the right to health care.68 They persuasively argue that health care goods are a public good and that government

66 See and compare e.g., Auton, supra note 49; Cameron v Nova Scotia (Attorney General) (1999), 177 DLR (4th) 611 (NS CA); Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651. 67 See chapter 4 for citations justifying all the claims in this paragraph. 68 While I think the right itself is best understood as including two other components that Daniels and Sabin do not recognize, I build on their work here. See e.g., Norman Daniels & James E Sabin, Setting Limits Fairly: Learning to Share Resources for Health, 2nd ed (Oxford: Oxford UP, 2008) at 1–2 [Daniels & Sabin, Setting Limits].

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authority over such goods is only justified when governments make decisions that are responsive to reasons citizens could accept.69 Such responsiveness is only possible when reasons for decisions are public and open to challenge. All three requirements are basic norms of procedural fairness. Absent such procedural norms, decisions are unjust. I provide a detailed summary of Daniels and Sabin’s account and why it best specifies the procedural content of the right to health care in chapter 6. It suffices here to explain why people should be understood as having health care–related procedural fairness rights and why those procedural rights should be understood as part of a larger pluralist right to health care. Of course, saying that procedural fairness is necessary for health care justice does not entail that there is a right to procedural fairness in health care, but there is good reason to think that the right to health care must include a right to procedural fairness in determining which health care goods will be provided in a jurisdiction. Procedural fairness helps blunt the force of existing problems with models of the right to health care. The right to procedural fairness is a widely recognized right with a clear duty-bearer: the governmental decision-maker. The attendant duties are widely accepted.70 The Problem of Correlativity is thus blunted. Scope-related problems are also partially vitiated by procedural fairness. Where fair decisionmaking procedures exist, there is no need to define an exclusive, eternal basket of goods that will serve as the content of the right to health care. The Problem of Scope is solved by decision-makers in a fair system. Those decision-makers can alter the composition of the basket as circumstances change, helping avoid the Problem of Time and Space. (Fair procedures can not only help examine whether goods are necessary to ensure dignity in specific times and places but also help account for changes in what will be provided above the floor.) One needs an account of what fairness entails in order to define the set of acceptable principles for identifying those goods, but fairness can allow for a variety of principles for decision-making, avoiding the worst aspects of that concern. Recognizing a right to procedural fairness is also independently advisable. Procedural fairness is something people expect from their health care system. Existing laws thus already recognize the importance of procedural fairness in the health care allocation context. Daniels and Sabin’s metrics for procedural fairness accordingly map onto general requirements of procedural fairness in law and in the health care context.71 International standards further establish this need.72 69 I detail their argument in chapter 5. 70 Again, Colleen M Flood, “Conclusion” in Colleen M Flood, ed, Just Medicare: What’s In, What’s Out, How We Decide (Toronto: U Toronto P, 2006) 449n. 71 Flood, ibid at 452. See also Michael Da Silva, “Medicare and the Non-Insured Health Benefts and Interim Federal Health Programs: A Procedural Justice Analysis” (2017) 10(2) McGill J of Law and Health 101. 72 See chapter 4.

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This could, of course, simply establish that there is a right to procedural fairness in health care that is independent of any substantive right to health care. “The right to health care” would then refer to different things. But the substantive right to health care is, again, incomplete without a procedural component, and there is reason to think that the substantive and procedural health care–related rights here should be understood as connected parts of a unity. Procedural fairness is still necessary to determine the content of the right to health care above the dignity-based floor. Even if dignity could set the minimal floor, it cannot account for all that the right purports to provide in law and all that parties desire when invoking rights to health care. Scholars and litigants believe – and domestic and international laws clearly establish – that the right to health care should have content above the floor. A commitment to dignity requires the same. Given the possibility of a duty to provide health care correlative to rights, and given the actual practices of modern health care, all states will provide some health care above the floor (even if they do not provide everything required to reach the floor, resulting in a hodgepodge of coverage). Procedural fairness ensures they will do so in a justifiable and acceptable fashion. More broadly, the Problems of Scope, Principles of Scope, and Time and Space make it nearly impossible to abstractly identify all of the right’s substantive content in a non-arbitrary way. This justifies a procedural approach to identifying the content of the right. If one cannot identify the goods to which all persons ought to be entitled, one should at least try to ensure that a fair process for selecting those goods exists in every state. Since an appeal to dignity does not provide a complete account of what goods are necessary for dignity, cannot account for all that the right to health care traditionally entails, and arguably requires procedural fairness in health care allocation decisions in any case, adding a right to procedural fairness as a component of the right to health care is necessary to keep that right from running into these three problems, which face all existing models of the right. Thus, even where dignity alone specifies content of the right to health care, procedural fairness is needed for borderline cases. However, such a limited scope is implausible, for existing purported rights have wider scope and procedural fairness is necessary to more fully specify the content of the right above the floor. At the very least, then, domestic and international laws recognize procedural fairness as components of the right to health care, proponents of the right to health care share this commitment, and procedural fairness is necessary to resolve borderline cases regarding what goods are necessary for a dignified existence. Those proponents view the rights as connected and so discuss a “right to health” in international law, for instance, as having substantive and procedural components; or they simultaneously make substantive and procedural

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arguments for health care entitlements before domestic courts.73 This provides further support for the idea that these rights should be connected. Moreover, at least some forms of procedural fairness may be instrumentally necessary to realize the substantive components of the right to health care, which further supports the connection between these spheres. Application of one of the best sets of metrics for social rights realization in general suggests that democratic accountability is a strong predictor of substantive social rights fulfilment.74 Accountability measures are key to the kind of procedural fairness on offer here.75 Empirically, then, there is reason to think that procedural fairness of some kind is connected to, if not necessary for, realization of the right to health care. This alone would not make procedural fairness part of a plausible right to health care. But it supports the other reasons to think that the right must have a procedural component – and that there is a pluralist right to health care, rather than separate substantive rights to health care and general procedural rights without any substantive content. (d) Procedural Fairness Alone Does Not Capture All That Should Be under the Right to Health Care Unfortunately, an uncontroversial right to procedural fairness in the health care context does not account for everything that is and should be recognized as part of the right to health care. A strictly procedural approach to the right to health care fails to account for the fact that proponents of the right to health care seek to improve access to particular health care goods. A strictly procedural right to health care could produce content for the right below the provision of even the minimal content that any right to health care is designed to produce. While procedural fairness provides criteria for adding goods to the basket covered by the right and thereby accounts for proponents’ desires to expand coverage even beyond a floor, the content of a strictly procedural right to health care can

73 On the international law, see e.g., Lisa Forman et al., “Conceptualising Minimum Core Obligations under the Right to Health: How Should We Defne and Implement the ‘Morality of the Depths’” (2016) 20(4) Te International Journal of Human Rights 531. For examples of dual arguments in domestic courts, see Part II. 74 Sakiko Fukuda-Parr et al., Fulflling Social and Economic Rights (Oxford: Oxford UP, 2015) c 6. While Fukuda-Parr et al.’s metrics difer from my own – they focus primarily on health in general rather than access to health care in the specifc case now at issue – their metrics arguably refect a concern with the necessities for a dignifed life and so remain relevant here. Parr et al. explicitly do not attempt to study the procedural components of any social rights. 75 Daniels & Sabin, Setting Limits, supra note 68, is an explicitly accountability-based account of procedural fairness that is central to my understanding. Again, I defend my use of their conception at length in the next chapter.

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also fall below the floor. A strictly procedural account also fails to account for the actual practice of international and constitutional health rights litigation. International law recognizes that the right to health care has a minimum core of content.76 Many constitutional rights guarantee more than just fair procedures in decision-making.77 A strictly procedural account solves many of the problems related to the right, but it does so at the expense of some explanatory power. In addition, procedural guarantees cannot account for all relevant law. A strictly procedural right to health care is thus not the type of thing people are referring to when they refer to a right to health care. A right to health care without a minimal floor of goods that must be included seems at odds with the meaning of the “right to health care.” Moreover, if the right to health care were just a pre-existing, uncontroversial right to procedural fairness, the right to health care would be redundant. It would then be difficult to explain why that right is so controversial. It would be even more difficult to explain why health rights litigants demand more than fair procedures without accusing them of confusion. A moral right to health care must have unique content, and practical versions of the right to health care seek more than fair procedures. An exclusively procedural right to health care, then, cannot account for all uncontroversial features of the right or avoid all problems with existing models of the right. Recognizing a floor for the right avoids this concern, but the floor alone does not capture everything or avoid all problems. This alone suffices to justify a pluralist understanding of the right to health care; nonetheless, I give more reasons to support the pluralist approach below. (e) A Functioning Health Care System Is a Necessary Component of the Right to Health Care Instrumentally, in turn, a functioning health care system is necessary to guarantee the other components of the right to health care. That system can be plausibly understood as a stand-alone subject of a right. A functioning health care system is necessary to select which goods a state will provide. It is also necessary to distribute the selected goods, and some guarantees are necessary to ensure that the goods are distributed.78 Yet a fully functioning system will not only provide health care but also collect data and measure the impact of health care interventions. This information is necessary to provide the evidence

76 See note 52 and surrounding. 77 Consider e.g., the cases cited in notes 53–54. 78 Legal entrenchment of the health care system is thus preferable to non-entrenchment, which helps explain international human rights law’s preference for entrenched health care system guarantees. See chapter 4.

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base for fair decision-making. Some institutional guarantees of fairness are then required to ensure that decisions are made based on the collected evidence as well as fundamental moral commitments such as dignity and equality. This component of the right to health care is primarily instrumental, but it is not fully reducible to the other components. A health care system that does not fully realize the other components is arguably not fully functioning. Nevertheless, even if one lives in a state that does not provide the goods necessary for a dignified existence, one should be able to make a claim for basic hospital services as a precursor to the realization of other components of the right. Likewise, even if the processes for determining which goods are covered in a system are radically deficient, one should be able to go to a hospital and receive the goods selected. Everyone should be able to access some health care goods and services as a matter of basic morality. These requirements too appear to emerge from the justification for government regulation over health care. A right to a functioning health care system, in other words, is a guarantee of the basic institutional necessities of providing health care and assessing the ability to provide it in a competent manner. This minimally consists of a sufficient number of health care providers as well as locations where stakeholders in a jurisdiction can access health care goods and services. One should not be rendered unable to access health care to which one is entitled simply because the government has failed to build enough hospitals to serve a population. This should not be confused with a requirement that all states have strong health care systems with minimal wait times. It is merely a requirement that there be a sufficient number of health care providers in a sufficient number of health care facilities to ensure reasonable access to the health care goods to which people are entitled within that state. A functioning health care system requirement also requires a broader apparatus for making decisions about how those health care institutions will function and evaluating how well they are functioning. The procedural fairness components of the right cannot be realized if the health care system does not also include fair processes for deciding whether one has an entitlement to a given health care good in a state – and opportunities for challenging those decisions on procedural fairness grounds. I specify these requirements in greater detail in chapter 5. Absent mechanisms for collecting data on the health care system, there will be no way of knowing whether the other components of the right are being realized, which in turn will forestall attempts to hold governments accountable for realizing rights as well as governmental attempts to improve realization by evaluating which measures work. These requirements are not over-demanding. They simply reflect bare minimum requirements for state action if the right to health care is going to be a right. States already endeavour to ensure that there are enough health care providers and health care facilities within their borders. If they fail to do so (which some do), that should be seen as a governance failure, not evidence that

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the requirement is too “demanding.”79 Failures to provide basic procedural fairness and to collect data should be viewed the same way, given the importance of procedural fairness detailed elsewhere in this book and the need for data collection to even understand whether a state has a sufficient number of health care providers, for instance. Moreover, whether these guarantees actually constitute strong and expensive “demands” on states is an empirical question, the answers to which should not be assumed ex ante. If there is reason to think that states have duties to provide the other components of the right, these additional requirements will follow. We should not deem them ‘over-demanding’ and give up on a strong theoretical case for the right to health care absent adequate evidence of demandingness. The institutional dimension of the right to health care is not unique to that right; indeed, it is common to modern human rights theory and practice. If adding institutional components necessarily threatens over-demandingness, then much of modern human rights practice will be rendered over-demanding. As Charles Beitz notes, many modern human rights, including less controversial ones, at least presume that just institutions can or could exist to instantiate the rights: “Some human rights are only comprehensible against a background assumption that certain types of institutions either do or can be brought to exist – for example, the rule of law, elections for public office, a public capacity for taxation and welfare provision, at least a rudimentary administrative state.”80 This is not a problem for Beitz; it simply demonstrates that modern human rights protections speak to “the conditions of modern life” in which these institutions are possible.81 We should not accept that all institutional dimensions are objectionably overly demanding absent further argument. If Beitz is correct, then doing so would require giving up on many modern rights – and their applicability in the modern world. This is unwise, particularly where the claim that such institutions are impossible is at best empirically questionable. The “modern conditions of life” demonstrate that states can provide the institutional guarantees for rights, even when they fail to actually realize those rights. We accordingly should not accept the over-demandingness challenge as evidence against any modern rights, including the right to health care. While strong data that the right to health care is uniquely over-demanding could constitute a challenge, that evidence is currently lacking. Except for health care facilities, which must be built on any plausible conception of the right to health care, nothing I have discussed so far goes beyond a rudimentary administrative state. Much of it is likely cheaper than a broad electoral system.

79 Recall note 8 and surrounding. 80 Charles Beitz, Te Idea of Human Rights (Princeton: Princeton UP, 2009) at 30. 81 Ibid at 30–31.

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The institutions necessary to realize the procedural and data-related requirements likely already exist in most states such that this component only requires that additional duties be placed on existing actors, not that expensive new entities be created. But states should likely bear any costs of creating new agencies in any case, given the importance of basic health facilities for the functioning of a state, the need to establish continued legitimacy of authority claims, and the importance of a basic administrative state for many other goods the state ought to provide, including other rights they are duty-bound to fulfil. One could, of course question whether the system itself should be part of the content of the right or merely a presupposition for the grounding of the right, but the right to health care will fail to apply where no functioning health care system is even possible. It is accordingly difficult to disentangle a right to health care from a system needed to instantiate it in a non–ad hoc manner. In such circumstances, I submit, it is better to understand the system as part of the right. Where, moreover, a functioning health care system is necessary to ensure access to any basically sufficient health care and/or just distribution of same, a right to that system is plausible regardless of how one understands the further content of any “right to health care.” I accordingly prefer to make it part of the right. One can do so without saying anything bizarre about the structure of human rights. After all, we can articulate this third component of the right in a manner consistent with the variation of the claim right model allowing imperfect correlative duties. The right would likely be collective rather than individual. The duties would clearly belong to the government and include the provision of health care simpliciter as a starting point, fair selection of which goods will be provided, provision of the goods necessary for a dignified existence and other goods selected by a fair process, and data collection about the system. Yet these minor variations to the claim right model are weak-correlativity compliant. There is reason to think that governments should provide a functioning health care system – and that this explains why they try to do so. People should be able to make claims on their governments when they fail to even provide a functioning health care system. That failure is a basic governance failure and so can ground claims for explanation and improvement. (f) A Functioning Health Care System Alone Does Not Capture All That Should Be under the Right to Health Care While a fully functioning health care system could provide everything guaranteed by the other components of the right to health care, a right to a functioning health care system does not capture everything that should be under the right to health care. First, a lay understanding of the term “right to a functioning health care system” entails far less than the full realization of the right to health care

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on any plausible understanding thereof. Second, this component’s justification is primarily instrumental. It would be odd to consider the right to health care as primarily instrumental to the provision of different rights, especially where one would be a right to specific health care goods. Third, again, actual people and actual legal systems do not seem to think of the right to health care solely as the right to a functioning health care system. People want actual health care goods. Legal systems recognize the health care system as one element of a broader right. A monist right focused on (3) is simply implausible and non-explanatory. The Pluralist Model Has Further Advantages The pluralist model, then, presents a moral unity. It can avoid the worst potential implications of monist views. It also has other benefits. For one, it can account for the existence of, insights into, and controversies surrounding other models of the right. The pluralist approach accounts for the existence and prima facie plausibility of other views. When referring to economic or social rights such as the right to health care, either as a class or individually, one may be referring to one of several things.82 It is tempting to suggest that proponents of these varying views are talking past one another. Yet an account that understands all appeals to a right to health care as part of the same project is preferable to alternatives. It is more explanatory of the actual moral and political claims made under the banner. The pluralist model accounts for uncontroversial facts about the right to health care better than alternatives. It explains the existence of constitutional and international rights to health care. It explains how they can be philosophically justified and why philosophical arguments for the right remain subject to critique. It explains the minimal content of the right that everyone who believes in a right seems to recognize regardless of how they approach the Problem of Scope. In so doing, it explains insights from monist models of the right. A pluralist model like the one here also explains conduct within the other frameworks. As detailed earlier, the model accounts for the actual desires of health care litigants (and of many health rights scholars). The goal-oriented model of the right to health care gains further support from its consistency with legal practice. The law can and does recognize the pluralist version of the right to health care. This point is, again, further detailed in chapter 4. If this model is philosophically justified by the preceding factors, this suggests that the philosophically justified model can be recognized in law. This is non-dispositive of the question of whether it is the type of thing that the law should recognize, but no model is going to avoid all concerns in the area. 82 See the taxonomy in chapter 2.

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This approach also explains how the philosophical accounts relate to the facts of modern legal recognition of health rights. This suggests that the facts about the right reinforce one another and thus do all relate to the same phenomenon. Governments can and should recognize the claims that constitute the right to health care. As described in chapter 4, international law recognizes this fact, linking the philosophical account to the existence of the international right to health care. The fact that many constitutional rights exist in states with substandard health care provision makes sense where the right to health care is understood as a claim to a functioning health care system and the goods necessary for a dignified existence; the right is instrumentally necessary to ensure that the substandard health care systems become minimally acceptable.83 Where the right to health care is also understood as a claim to a fair process for distributing goods, the right can better distribute goods where resources are scarce. Where a state can afford these additional goods, demands for fair distribution thereof are warranted by the fact that (at least) all citizens of that state have a right to equal treatment and, consequently, to procedural fairness in health care decision-making procedures. How to allocate these goods is a question of distributive justice, and the state can help secure just distribution by treating all persons equally in distributive decision-making. This understanding also explains why proponents of the right to health care often seek to expand the basket of goods covered under the scope of the right beyond a minimum floor. But the underlying concerns do not entail that states must always publicly fund all the goods they can theoretically afford – or even place strong restrictions on markets. This explains why claims that people have rights to those goods independent of the outputs of just procedures often fail. The pluralist model can, furthermore, explain philosophical and political disagreement on the power of appeals to right. The foregoing makes sense of persistent clashing intuitions about the status of health rights by arguing that one can philosophically defend the right to health care, but it may not be the type of thing philosophers traditionally recognize as a right. This explains why moral intuitions about the purported right vary widely. The right to health care is a set of claims. Those claims are justifiable. But they are also independently compelling, so placing them under the shared rubric of a singular right to health care is confusing. One should then expect diverse responses. My model thus explains controversies surrounding other views as well.

83 For the states with constitutional rights, see the sources in note 2 of Chapter 1.

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To summarize the preceding, the pluralist goal-oriented right to health care best avoids recognized problems with existing models by recognizing that it has a procedural component, but the concept of the right to health care only has its intended benefits when it has minimal substantive content. Providing that content likely requires a functioning health care system. Such a system may also be necessary as the subject of fair decision-making. The goal-oriented right to health care, then, ultimately reflects the insights of competing model types and, by recognizing insights from both, avoids many criticisms that attach to each. This counts in its favour. Chapters 4 and 5 detail further benefits. The fact that the pluralist approach is consistent with and best explains the plausible features of international human rights law’s articulation of the right to health care is a further argument for adopting the pluralist approach. Some external standard is necessary to assess whether interventions best realize the right to health care. Given the widespread acceptance of treaties recognizing health rights,84 it is natural to turn to international human rights law to develop this standard. As I detail in chapters 4 and 5, the pluralist model provides a way of reading international human rights law in a way that not only is normatively coherent but also provides clear metrics for determining the extent to which states realize the right to health care and how interventions contribute to that task. Even at this early stage, it should be clear that a pluralist approach to the right to health care allows for a variety of metrics that capture the variety of important interests captured by everyday legal and lay discussion of the right to health care. The pluralist approach to the right to health care is not committed to the view that brute measures of access to specified things exhaust analyses of whether states are realizing the right to health care. The metrics will also include markers of procedural fairness and the existence of a functioning health care system. Application thereof provides action-guidance for rights realization. Ultimately, then, the right here is morally justified, explanatory, and actionguiding. There is reason to accept rights to (1) to (3) individually, yet there is also reason to question rights to each as full accounts of the right to health care. The unity of the three is itself justified and also helps avoid many problems facing existing views. The pluralist account is also explanatory of and helps justify existing laws, besides providing action-guiding metrics for an achievable right. These points, some of which are detailed more in later chapters, provide a strong case for a pluralist right.

84 Marks, supra note 9 at 20.

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The Pluralist Model Can Withstand (Other) Serious Criticisms One May Raise against It Like any model of a controversial concept, the pluralist right to health care is subject to forceful criticisms. I addressed several of these earlier. I will now address five more before moving on. (a) Objection 1: The Minimum Floor Remains Subject to Problems Plaguing Any Attempt at Specifying Content To begin, one may charge that my pluralist model of the right to health care does not actually avoid or resolve the Problems of Scope and Time and Space. While a strictly procedural model of the right can avoid these concerns, the problems threaten to recur when one requires a floor for the content of the right. While I provided some reason to accept a dignity-based understanding of the right’s core, one may argue that I did not sufficiently justify that understanding to solve the Problem of Principles of Scope. Others worry that dignity faces its own Problem of Scope. The SCC thus highlighted limitations of the concept in the equality context and removed a dignity analysis from its test for constitutional equality rights compliance.85 Many are doubtful that dignity can solve the Problems of Scope or Time and Space if less contentious concepts fail.86 It is, of course, possible that any conception of a health-related “right” will be subject to scope concerns, but this does not mean we should abandon the right. The right to health care could be subject to the common charge that social and economic rights as a class are potentially “insatiable,” always remaining possible to fulfil to a greater degree and so never fully satisfied and thus open to infinite expansion.87 Indeed, the right to health is considered a particularly good example of an insatiable right.88 Concerns about “health imperialism” whereby all issues concerning well-being become health issues, threatening to capture all components of life, also linger.89 This kind of imperialism could again raise the

85 Kapp, supra note 30. 86 Tis criticism is a health rights–specifc variant of a general argument that dignity is a contextspecifc concept that cannot ground universal human rights claims. Tis variant appears in e.g., Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights” (2008) 19(4) European J of Int’l L 655 (though even McCrudden recognizes it may have some value in the minimum core context) and arguably underlies pleadings in Kapp, ibid. 87 Morales, supra note 32 at 262, applying a concept in Joseph Raz, Te Morality of Freedom (Oxford: Oxford UP, 1986), to social and economic rights. 88 Morales, ibid at 262. 89 See e.g., Jennifer Prah Ruger, “Toward a Teory of a Right to Health: Capability and Incompletely Teorized Agreements” (2006) 18 Yale JL & Human 273 at 315n166.

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Problem of Scope. As noted previously, a single-minded focus on health could leave states unable to realize other important goods. These concerns are, however, overstated in the case of the right to health care and do not warrant abandoning the concept. While one can always do more to improve one’s health and all aspects of our lives do plausibly implicate health in some way, this is not obviously true of health care in general and is likely false when applied to the dignity-based conception on offer. Whatever the context, one can only ever try a set number of health care goods. Moreover, where the basic substantive content of the right is linked to a minimal level of well-being, as it is on my dignity-based approach, many health care goods will not be part of the bare substantive content because they will only place one above the dignity level (however defined). The right’s basic substantive content will be “sated” when people can access all the goods that are uncontroversially needed to meet that standard. Imperialism concerns are, in turn, avoided by focusing on health care and admitting that the right to health care is just one good among many that states ought to realize. I focus on health care, rather than health, partly due to concerns about health imperialism. Health care concerns are easier to identify and circumscribe. My earlier articulation of the right suggests that the substantive component of a right to health care is not going to be so extensive as to leave states unable to fulfil other goods; this should allay adjacent Problem of Scope concerns. But even if, counterfactually, health care could also be imperial, it is worth noting that the right to health care can be a defeasible right. If the right to health care were to become truly monolithic, this could override the right’s attendant duties, thus providing sufficient reason not to realize the right. The charge that “dignity” is “insatiable” or “imperial” also misses its mark. Despite my earlier arguments, one may still worry that appeals to dignity in the health care context can have deleterious consequences for health care and other policy areas. Dignitarian approaches to constitutional rights in general and health rights in particular have, after all, produced bad consequences. The SCC’s aforementioned decision was sourced in a perception that the concept is too vague and could potentially encompass any value.90 Colombia appealed to dignity-like concerns to help specify the content of its health rights and produced a system that led to economic disaster.91 Simply stating that these cases provide evidence that constitutional rights are not the best method of realizing the right to health care specified here will not suffice as a response since dignity

90 Kapp, supra note 30. 91 See e.g., Alicia Ely Yamin, Oscar Parra-Vera & Camilla Gianella, “Colombia: Judicial Protection of the Right to Health: An Elusive Promise?” in Alicia Ely Yamin & Siri Gloppen, eds, Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge, MA:

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could be a broad concept independent of those norms. But this does not appear to be a problem in the case at hand. All mainstream views of dignity on offer appeared to create specifiable and limited substantive entitlements in the preceding analysis, so those cases do not appear to stem from concerns with dignity alone, but from analyses of the concept particular to their contexts of use. “Dignity” need not be “insatiable” or “imperial” in this context. An alternative criticism would grant that my view sets a “floor,” rather than a “ceiling,” but state that the floor is too low and will not ensure that health care entitlements rise above it. According to this approach, providing more health care than the dignity level allows is a good thing, the “right” should have a broader scope to deserve the name, or existing law already recognizes broader content. But “the right to health care” has transformative potential deserving of the honorific “right” even if narrowly tailored, and the few states that recognize rights to goods beyond those necessary for dignity demonstrate that a higher “floor” raises the Problem of Scope.92 Providing more thus may not be a good thing, all things considered. And even if provision of more health care is a good thing, that does not give anyone a right to that care.93 Given the reasons to recognize the pluralist right to health care offered in this text and our ability to specify the basic substantive content of that right using a dignity-based standard, there is little reason to give up on the concept of a right to health care. While scope problems may remain on any plausible view of the right to health care, this simply bolsters pluralism. Dignity will not solve all scope-related problems.94 Even a pluralist model will face these concerns. But that is because any account of the right to health care that has substantive content will face these concerns. My account avoids their worst implications better than alternatives. Identifying clear cases of the goods necessary for a

International Human Rights Clinic, Human Rights Program, Harvard Law School, 2011) 103. Cf. Everaldo Lamprea, “Colombia’s Right-to-Health Litigation in a Context of Health Care Reform,” in Colleen M Flood & Aeyal Gross, eds, Te Right to Health at the Public–Private Divide: A Global Comparative Study (Cambridge: Cambridge UP, 2014) 131, who presents a more positive story suggesting that economic ruin need not take place. I contrast these texts again in a diferent context in chapter 8 of this book. 92 Consider e.g., how widespread access to the goods identifed by WHO, supra note 54, could improve the well-being of persons in Canada or Colombia if ensuring access to those goods did not require also ensuring access to a wider variety of expensive goods that is only possible when paired with cuts to other important services. 93 I return to concerns that the right I promote is so expansive as to be practically undesirable in chapter 5. 94 My approach minimizes the Problem of Time and Space since (i) the goods necessary for a dignifed existence will not greatly vary across space and will slowly change over time, and (ii) fair procedures will be attentive to changes in what is necessary. I grant, however, that the approach may not fully solve the problem.

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dignified existence is easy. As detailed in chapter 4, international human rights law provides a heuristic that helps avoid getting bogged down in debates about borderline cases.95 The dignity-based floor for the right to health care is accordingly not mysterious. A broad definition of dignity allows for a small floor for the right to health care, helping to minimize the worst, scope-based problems facing the right. Unless one wishes to reject the existence of a right to health care, scope-related problems will arise. Given our other reasons for admitting the right to health care into our moral ontology, adopting the pluralist model that best avoids concerns with the right is preferable to abandoning the concept. (b) Objection 2: The Pluralist Model Cannot Identify a Traditional Right Next, a critic may argue that this understanding of the right to health care means that the right to health care is not a “right” at all. My goal-oriented model of the right to health care may seem to concede the status of the right to health care to the rights sceptic. It suggests that the model is not a model of a right, but a model of a rhetorical placeholder for a variety of important claims, only some of which qualify as stand-alone “rights” on even expansive models of rights that recognize that there can be imperfect duties to fulfil rights. The pluralist model, in other words, does not fit the traditional model because (a) no one can fulfil it (viz., a governmental duty to provide all three components is too demanding); (b) the components are not the types of things we can have rights to, individually or jointly; and/or (c) rights just do not have multiple components. The general concern here is that my account cannot adequately respond to the Problem of Correlativity. There is then a new specific concern that claim rights must be unitary. Yet responding to prongs (a) and (b) of this objection is relatively easy. I already argued that each part of the pluralist right to health care can be a standalone right that fits the traditional model. Saying that one cannot add them together to create a right because it is too demanding is an empirical claim that I suspect will prove unfounded and that the sceptic bears the burden of proving. If the Problem of Scope for the minimum content of the right is avoidable, further requirements for procedural fairness and a functioning health care system do not demand much. Responding to (c) is also possible. Most importantly, I earlier gave ample reason to think that the right is a unity. So, the right as I understand it may have multiple parts, but it is still one thing and so not a great departure from the animating spirit of the concern. Even if one thinks that the claim right model 95 See chapter 4, which highlights WHO, supra note 54, as an example.

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cannot admit multi-component rights, the traditional model has its own problems. It developed from formalist study of a list of private law cases from common law jurisdictions.96 It is not clear why it should be a default in public and/ or international law, let alone ethics. Strict adherence to the strong correlativity that grounds (c) is thus problematic. Moreover, even if we accepted strong correlativity, (c) proves too much. It is simply unclear why one would think that the traditional model cannot accommodate a right with multiple parts. The canonical right to property includes multiple parts; one can have a property right without full property rights. A version of (c) that captures my pluralist right may end up having to deny property rights too. That is going to be unpalatable to anyone working in modern rights theory. If my claimed consistency with the traditional model proves false, I am happy to abandon the language of a right to health care here so long as one recognizes that the goals I am referring to are legitimately important moral ends (though I think the language of the right to health care is valuable even in this context and is not misleading). Critics of the philosophical concept of a right to health care grant that their attacks may not apply to persons who “are happy to use the language of rights in a looser fashion than philosophical strictures require.”97 Even if the pluralist right does not fit the traditional model, that does not mean that the phrase does not identify important moral ends. Theorists who believe in the right to health care are not wholly mistaken in their prioritization of goals and values. Such persons are pursuing valuable ends. There may even be good practical reason to use the language of health rights to pursue them. The right to health care framework helps highlight the connections between these important interests, provides rhetorical power for claims to fulfilment of the important interests, and fits with the (sometimes confused) language of international human rights law. If my model forces me to abandon the rights framework for these claims, it does not undermine the fact that the (now improperly named) pluralist right to health care models important moral interests and their relations and provides a rhetorically valuable language for discussing those interests. Yet I provided ample reason to think that this second objection and the Problem of Correlativity underlying it are not genuine concerns in my previous substantive arguments as well as those in this section. I will accordingly continue to use the term “right to health care” here. But “‘right’ to health care” serves the same purpose. Read the former as the latter throughout if you find the objection here overwhelmingly persuasive. But I suspect the objection is far from fatal for my view.

96 Hohfeld, 1913, supra note 4; Hohfeld, 1917, supra note 4. 97 Gopal Sreenivasan, “A Human Right to Health? Some Inconclusive Scepticism” (2012) 86(1) Aristotelian Society Supplementary Volume 239 at 240.

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(c) Objection 3: Dignity Cannot Form the Basis of a Justiciable Right Alternatively, one might grant that that the foregoing is a plausible account of a theoretical construct but charge that it fails to provide proper guidance in the legal arena it seeks to structure. The right to health care here is supposed to explain the legal rights phenomenon and should provide some guidance as to how those rights should be structured and operate. One may charge that an appeal to dignity will leave it unable to do so. This line of objection can take at least two forms. It can state either that dignity provides no discernible standard for legal analysis or that a dignity-based legal analysis will raise one of the problems facing all other existing models of the right to health care. Comparative law admittedly provides some support for both positions. The Canadian and Colombian examples are again representative.98 But their findings now ground a claim that focusing on dignity makes the right to health care inapplicable in the legal domain, rather than a claim that focusing on dignity will make the right insatiable.99 If the pluralist right cannot be action-guiding in the legal domain, as Canada and Colombia may suggest, this constitutes a challenge to the model. If dignity cannot form the basis of a justiciable right, the pluralist right may not be capable of being instantiated as a constitutional right at all, reopening the break between theory and practice that the pluralist right was designed to avoid. With respect, however, the present proposal provides guidance for how to realize a right to health care. Far from being inapplicable as a legal test, as the SCC suggests, dignity serves not only as the basis of applicable legal tests in some states but also as a stand-alone right subject to its own tests.100 The pluralist conception of the right to health care also provides guidance on what “dignity” means in the health care context that allows it to form the basis of a legal test for compliance. Courts could adopt my test for identifying the basic substantive content of the right. But they need not do so to create a justiciable right. Rather, they can begin by recognizing the outputs of my analysis as the basic content and draw on analogies to determine whether additional goods should be added to the content of the relevant constitutional right. As I detail at greater length in chapter 8, gradualism in interpreting the content of the constitutional right should keep the right from growing so large as to raise the problems in Colombia. Practical limitations on judges’ abilities to frame the content of rights and keep them from growing too large – for example, their limited

98 See notes 90–91 and surrounding. 99 Tank you to an anonymous reviewer for raising this point and pushing me on it. 100 See e.g., Germany’s aforementioned Aviation Security Case, supra note 29. See also Barak, supra note 40.

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control over which litigants go before them and the limits on their capacity to address concerns beyond those pertaining to the litigants at hand, such as the cumulative effects of decisions – may then exist without undermining the applicability of the present test or the value of applying it. Yet those factors go to whether constitutional health rights are practically valuable, not whether they are conceptually coherent and containable. (d) Objection 4: Health Outcomes Should Be Primary One may then argue that I fail to highlight the importance of improved health outcomes in my description of the pluralist account. Few would be interested in right to health care goals that did not bear some relation to health outcomes. Proponents of this challenge will suggest that while health rights litigation and other forms of the right to health care realization will not always improve health outcomes, improving some of the health outcomes must be a goal that the right to health care is designed to achieve. It was on this basis that Daniels later shifted the focus of his analysis to the social determinants of health.101 Where, moreover, international human rights law’s right to health primarily concerns social determinants of health and many health care goods do not contribute to health as strongly as social determinants, focus on health care may seem at odds with the international human rights law that focuses much of my argument.102 I can grant this much. Improving health care outcomes may even be the primary purpose of the right to health care. Improved health outcomes should be and are a constitutive goal of the right to health care. I do not emphasize them here for strategic purposes. “Health” is an amorphous concept and even less apt to the proper object of a right. The Problem of Scope for a right to health is even more acute than the Problem of Scope for a right to health care. Fulfilling many of even the imperfect duties that such a right would imply is potentially astronomically expensive. It is also more difficult to measure health and the extent to which interventions, including legal interventions, impact health outcomes. The Social Rights and Economic Rights Fulfillment Index is a promising tool for measuring the extent to which states fulfil the broader right to health, but it remains controversial; moreover, even its authors are reluctant to make causal claims concerning the matters at issue here.103 My hope is that future scholars

101 Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge UP, 2008). 102 I discuss this critique and my response in detail in the text highlighted in note 11. 103 Fukuda-Parr et al., supra note 74. Fukuda- Parr et al. are nonetheless to be commended for their important contributions to the quantitative study of socio-economic rights fulflment. For another important text on quantitative study of socio-economic rights with which one co-editor was involved, see the special journal issue Fukuda-Parr co-edited with Malcolm

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will be able to make these causal claims. In the meantime, I focus on three other aspects of the right to health care. I can also grant that social determinants of health are more consistently emphasized in international human rights law and better accord with that body of law’s commitment to improved health without getting rid of the right to health care. Health care goods do contribute to health in absolute terms, and health care commitments are consistent with other international law norms. (e) Objection 5: Applying Constitutional Standards Is Preferable Finally, one may think that developing a new theory of the right to health care is not necessary for examining whether states are realizing the right. I discuss the possibility of applying international legal norms in chapter 4. It is worth addressing the following, related question now: Why create a new theory of the right to health care to account for uncontroversial facts about health rights when we already have constitutional law standards?104 We have constitutional standards for assessing states’ realization of at least domestic variants of the right to health care. A conservative theoretical ontology would support sticking to existing constitutional standards. So too would the fact that states already commit themselves to those standards, so there should not be a problem with establishing the legitimacy of applying their own standards to them. There are, however, good reasons not to take this tack. First, existing constitutional standards remain contested.105 It is simply unclear whether any existing constitutional standard can be applied without creating at least as many opportunities for criticism as the present proposal. While uncontroversial constitutional standards could support a conservative ontology by establishing a widely accepted norm that already guides our actions and leaves us without the need for a new standard, contestable constitutional standards likely do not do so. Constitutional standards thus may not suffice to uncontroversially guide analysis

Langford: (2012) 30(3) Nordic JHR 222. Tis is just one of many recent and important related works. But causal problems persist. I accordingly still focus on my narrower important issue. 104 As noted in Jung, Hirschl & Rosevear, supra note 9, a majority of states now recognize a right to health care. Over 40 per cent of states have justiciable rights. Each of those rights is the potential subject of judicial interpretation. 105 Compare, for just a few examples, the diferent accounts of the rights in Brazil, Colombia, and South Africa and the value of their respective approaches to the law in the works cited throughout this text. Ten note that the move from aspirational to justiciable rights in India discussed throughout this text required additional steps in the development of the justiciable right to health (care) that make the test inapplicable in other states.

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even within the states in which they operate.106 Second, no country agrees to be bound by the constitution of another country, so any legitimacy concerns about international standards are amplified for constitutional standards. Third, there is a real question as to whether a uniform constitutional standard exists. If countries use different constitutional tests, it will be difficult to determine which countries’ standards ought to be applied. Fourth, using constitutional standards may beg the question where we are assessing whether constitutional interventions best realize the salutary effects of the right to health care. Fifth, relatedly and most importantly, in a comparative analysis of types of interventions, a subject of comparison cannot also be a basis for comparison. So if we want to assess whether constitutional law will best realize the right, we need a different standard. I think that is an interesting question we should leave open here. I begin to answer it in chapter 8.107 Beginning with constitutional laws then runs into the further problem that constitutional rights take a variety of forms.108 Given this variety, it is difficult to establish a unique constitutional standard for right to health care recognition that generalizes across contexts. As noted earlier, all constitutional rights appear to attempt to fulfil at least some minimal ends. These ends could be used as a standard for assessing whether the right to health care is being fulfilled. Yet many constitutional rights try to establish more than these ends, and one needs to appeal to a non-constitutional standard to establish which approach is most easily justified. Also, constitutional rights differ not only from one another but also from international human rights law, undermining the ability for a constitutional standard to explain the existence of the international right.109 Moral justification for a right to health care is thus necessary to ground the right even on accounts that begin with legal recognition as a brute fact about rights to health care. I provide a standard in this work. Conclusion Each of the three components of the pluralist right to health care is necessary but insufficient to explain existing health rights or what a morally justifiable

106 Ibid. See Brian Ray, Engaging with Social Rights (Cambridge: Cambridge UP, 2016), or Yamin, Parra-Vera & Gianella, supra note 91, for examples of two diferent local standards and their attendant controversies. 107 Appealing to constitutional laws to ground a right to health care begs the question of whether constitutional recognition of a right is worthwhile. Constitutional standards can be useful for examining whether constitutional provisions meet their self-identifed goals. Yet assuming that constitutional rights are justifed prior to analysing whether they fulfl their self-identifed ends begs important questions about their general value. 108 See chapter 2. 109 Tis is so notwithstanding note 55 and the surrounding text.

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right to health care ought to achieve. Only a pluralist conception of the right that combines the three components into a unity is both explanatory of existing law and independently morally justifiable. In the next chapter, I further address the explanatory point by going into greater detail about the content of the international right to health care and its pluralist nature. In the process, I begin to identify measurements for right to health care realization that are independently justifiable and that can help guide decision-makers seeking to create laws and policies that best realize the aims of a plausible right to health care. I then expand upon and further justify these measures in chapter 5.

Chapter Four

The Pluralist Right to Health Care and International Human Rights Law

Introduction The parts of the international right to health devoted to health care goods can be understood as a right to health care. The relevant international right is a pluralist right with (at worst nearly) the same components as the pluralist right to health care in chapter 3. Each of the core components of the international right to health care can be understood as aspects or combinations of the three components of that independently justified pluralist right to health care. International human rights law thus supports the case for a pluralist right to health care made in the previous chapter. This chapter demonstrates that international right to health care already requires realization of all three components of my pluralist right to health care. I first argue that an international right to health care can be identified through consideration of the relevant materials specifying the content of the broader right to health recognized in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR).1 I then explain how those provisions are justified by a commitment to dignity, how dignity sets the floor of content for the international right, and how they specify procedural justice and systemic requirements that reflect the second and third components of my right. I also introduce some measures I detail further in chapter 5.

1 United Nations, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, art 12 [ICESCR]. Given the scope of this chapter, it is worth noting that similar phrasing appears in United Nations, Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, art 24(1) [CRC]; United Nations General Assembly, Declaration on the Elimination of Violence against Women, GA Res 48/104, UNGAOR, 48th Sess, UN Doc A/ RES/108/44, (1993) 1, art 3(f) [DEVW]; United Nations, Convention on the Rights of Persons with Disabilities, 3 May 2008, 2515 UNTS 3, art 25 [CRPD].

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Methodology My arguments in this chapter rest on a belief that international human rights law identifies core components of a right to health care. While international right to health is broader than a right to health care, the components of the right devoted to health care goods clearly constitute an international right to health care.2 In attempting to identify the components of the right to health devoted to health care goods, I first needed to identify the relevant materials. No one could adequately survey the enormous international legal literature on health care in one chapter, so I enforced relevance criteria to narrow my focus. First, while the international right to health guarantees health care and the social determinants of health,3 I confined my analysis to materials that mentioned health care or specific health care goods. This ensured focus on a manageable subject matter that can be measured by looking at a discrete set of goods that are not as expensive as (other) social determinants of health.4 Second, I limited my analysis to recognized sources of international positive (or “hard”) law, authoritative interpretations thereof, and “soft” law documents specifically referred to in the positive law and interpretations thereof. This focus on documents that have received widespread assent should help defuse arguments that the international right to health care lacks a recognized core or is unduly biased toward the “West.”5 This is important where international human rights law is supposed to support a universal right and where I go on to use it as a starting point for an analysis of the empirical implications of the pluralist right to health care that I believe is universal. I considered all the paradigm cases of positive international law, viz., the sources of law listed in Article 38 of the Statute of the International Court of

2 I identify passages concerned with health care throughout the chapter. See also Michael Da Silva, “Te International Right to Health Care: A Legal and Moral Defense” (2018) 39(3) Michigan J Int’l L 343 for a more thorough argument for the existence of an international right to health care. 3 Social determinants of health are legion and include safe and healthy working conditions, a healthy environment, and housing. For a longer list of social determinants and a discussion of their status in international human rights law, see Barbara Wilson, “Social Determinants of Health from a Rights-Based Perspective” in Andrew Clapham et al., eds, Realizing the Right to Health, Swiss Human Rights Book Vol. 3 (Berne: rüfer & rub, 2009) 60 at 62. 4 For the meaning of health care, see note 8 of chapter 1. 5 While I am generally sceptical of cultural relativism, it sufces at present to note that the international right to health care is not subject to the relativist’s charge. See e.g., John Tobin, Te Right to Health in International Law (Oxford: Oxford UP, 2012) at 26–27; Mary Ann Glendon, “Te Forgotten Crucible: Te Latin American Infuence on the Universal Human Rights Idea” (2003) 16 Harvard Human Rights Journal 27. (But see Jonathan Wolf, Te Human Right to Health [New York: W.W. Norton, 2012] at 23 for limitations.)

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Justice.6 This includes customary international law, general principles of law, treaties, and “subsidiary sources” (judicial decisions and scholarly works).7 There are no general principles of law directly pertaining to the right to health care (though many principles are, of course relevant to whether the right will be realized (e.g., basic tort principles, the medical duty of care, and humanitarian principles)). An exhaustive list of customary international laws is lacking, but one candidate is relevant for present purposes (beyond the customs that are only relevant to realization of the right, which are similar to the principle discussed in the last parenthetical and also arguably include humanitarian norms). United Nations General Assembly declarations are usually non-binding, but the Universal Declaration of Human Rights (UDHR) is widely recognized as binding customary law and Article 25 of that document is one the earliest provisions suggesting there is an international right to health care.8 Indeed, the substantial majority of the positive international law on the right to health care appears in treaties. The large number of treaties required a third relevance criterion.9 The international right to health care is a useful framing mechanism only to the extent that it allows us to identify what a large segment of the international community deems valuable about the right

6 Statute of the International Court of Justice, 26 June 1945, 33 UNTS 993, art 38 [ICJ Statute]. Technically, domestic decisions are binding international law under this provision only insofar as they help set the contours of customary international law. But recent scholarship suggests that “international law” does not have a stable meaning across jurisdictions such that we can neatly separate the “international” and “domestic” realms; see e.g., Anthea Roberts et al., Comparative International Law (Cambridge: Cambridge UP, 2018). I stick to positive international law outside the domestic context of application for two reasons: (1) the same comparative law data could suggest that there is no single unique international human rights law, eliminating our ability to identify a single topic of study, and (2) (more importantly for our purposes), the international right to health care at issue here has an existence independent from domestic health rights and it is not clear that constitutional health rights are meant to instantiate the international right in a way that would make domestic decisions a plausible interpretation of international commitments. But I do not mean to make any stronger general methodological commitments, and I grant that domestic interpretations could impact our understanding of international rights under some plausible frameworks. 7 Ibid. For the “subsidiary sources” language, see Hugh Tirlway, “Te Sources of International Law” in Malcolm D Evans, ed, International Law, 4th ed (Oxford: Oxford UP, 2014) 91 at 91. 8 Universal Declaration of Human Rights, GA Res 217 (111), UNOR, 3d Sess, Supp No 13, UN Doc A/810, (1948), art 25 [UDHR], discussed in e.g., Tirlway, ibid at 101; Hurst Hannum, “Te Status of the Universal Declaration of Human Rights in National and International Law” (1995/1996) 25 Ga J Int’l & Comp L 287. (Note, however, that one may contest whether article 25 in particular is customary international law.) 9 Tere are more than 200,000 post-Charter treaties currently registered in the United Nations Treaty Series, including more than 560 “major” multilateral treaties; see United Nations, “United Nations Treaty Collection – Overview,” online: United Nations .

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to health care. My analysis of the international right was accordingly limited to multilateral treaties that aim to present universal norms. Conventions that begin in the General Assembly received special consideration.10 These include the Charter of the United Nations, which provides the mandate that allows the international legal community to develop rights to health and health care at international law;11 the Constitution of the World Health Organization, which recognizes, but does not guarantee, a right to health;12 the International Convention on the Elimination of All Forms of Racial Discrimination and ICESCR, both of which guarantee the right;13 and conventions that merely guarantee non-discrimination in health care.14 I also considered subsidiary sources, but there are few international judicial decisions related to the right to health care and international law provides little guidance as to which scholarly decisions one ought to consider. Strict focus on subsidiary sources is too limiting. I accordingly cite relevant scholarship as needed below and, eliding the fact that the non-binding nature of subsidiary sources means they are best classified as soft law documents, go on to consider documents that have at least as much persuasive force as subsidiary sources in international relations, including General Assembly declarations and resolutions, highlighting unanimously recognized documents since they have better claims to universal recognition. Expanding analysis to account for other widely recognized soft law sources provides further insight into the nature of the international right to health care. I thus considered related soft law documents, namely the authoritative interpretations of the materials noted earlier and the documents cited therein.15 Given the lack of clarity as to which scholarly

10 I am, however, aware of debates about the relative status of diferent kinds of treaties. 11 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, ss 55(2). 12 Constitution of the World Health Organization, 22 July 1946, 14 UNTS 185, Preamble [WHO Constitution]. 13 21 December 1964, 660 UNTS 195, art 5 [Racial Discrimination]; ICESCR, supra note 1, art 12. Te Human Rights Committee is a possible forum for some social rights claims (Martin Scheinin, “Human Rights Committee” in Malcolm Langford, ed, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law [Cambridge: Cambridge UP, 2008], 540). Also forums such as the International Covenant on Civil and Political Rights (ICCPR) could possess a system of health care-related entitlements; 16 December 1966, 999 UNTS 171. Te ICCPR only mentions health as a possible reason for restricting rights within it. It creates no health entitlements. 14 E.g., United Nations, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 13, art 12 [CEDAW]. 15 Sof law can play a variety of roles in international law. It can serve as evidence of the elements of customary law, as the frst step in a treaty-making process, or as an authoritative interpretation of a positive law source; Dinah Shelton, “International Law and ‘Relative Normativity’” in Evans, supra note 7, 137 at 161. Sof law also establishes expectations

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documents qualify as sources of international law that would be persuasive before international courts, these soft law documents may be more persuasive than scholarship (though the scholarly nature of the present enterprise means that I have been using international human rights law scholarship throughout this text and continue doing so below). Appendix 1 presents the most important results of my search for relevant documents.16 I generally take a positivistic view of those documents here. Yet where there are conflicts or equivocations in the positive law, I seek to avoid inconsistencies and increase the normative value of the right. This means that I seek to read the law in a manner that is consistent with international human rights law’s wider commitments to the foundational values of human dignity, equality, and non-discrimination. Dignity is the linchpin of international human rights law.17 Equality and non-discrimination serve similar foundational roles in international human rights law.18 I thus use these three values as interpretative tools for analysis of the core components of the right to health care, resolving inconsistencies between and equivocations within provisions by favouring the provision that is consistent with these foundational values. In the case of inconsistencies between provisions and broader values, I read the

of compliance; ibid at 163. Tese expectations are stronger when placed in international agreements. If sof law is produced by bodies that have been delegated the authority to do so by a recognized international treaty, it should be accorded greater authority than other sof law documents. Tis justifes my focus on authoritative interpretations. E.g., United Nations, Committee on Economic, Social and Cultural Rights, General Comment 14: Te Right to the Highest Attainable Standard of Health, 22d Sess, UN Doc E/C.12/2000/4, (2000) at paras 12, 38 [GC 14], uses Fourth World Conference on Women, Beijing Declaration and Platform for Action, Fourth World Conference on Women, UN Docs A/CONF.177/20, (1995) and A/ CONF.177/20/Add.1, (1995) [Beijing Declaration] as part of its authoritative interpretation of the ICESCR (supra note 1) and refers to the Declaration of Alma-Ata, International Conference on Primary Health Care, 6–12 September 1978, Alma-Ata, USSR, UN Doc CF/ HST/1985–034/Anx.04/07 [Declaration of Alma-Ata]. Both are relevant here. 16 It includes two types of documents not listed here that may be relevant: drafing histories and reports of the Special Rapporteur on the right to health. I will not systematically survey these sources but will cite them as necessary. 17 Te UDHR supra note 8 begins with “recognition of the inherent dignity” of all persons. Dignity is referred to again in the fourth paragraph of its preface and in its frst article. Te importance of dignity is also recognized in nearly every relevant international human rights law document; see e.g., Aharon Barak, Human Dignity: Te Constitutional Value and the Constitutional Right, ed Daniel Kayros (Cambridge: Cambridge UP, 2015) at 38–43. 18 Allen Buchanan, Te Heart of Human Rights (Oxford: Oxford UP, 2013) at 28, 30 states that promoting equality (in the sense of equal standing) is a primary function of international human rights law. Equality and non-discrimination guarantees in the body of international law are legion. See e.g., UDHR, ibid, Preamble, arts 1–2; ICESCR, supra note 1, art 3; Beijing Declaration, supra note 15, arts 30, 44, 89; CEDAW, supra note 14, art 11; WHO Constitution, supra note 12, Preamble; Racial Discrimination, supra note 13, art 5(e)(iv).

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provisions as mistaken and attempt to make them consistent with the values. I only move outside international human rights law in the event of conflicts between values. I then favour the more normatively justifiable alternative. So, my work is explanatory of law but also independently justifiable. At times, it builds normative justification into positive law analysis, merging the explanatoriness and independent moral justification criteria into a unity whose union better supports both. With these preliminaries out of the way, I can begin analysis of the international right to health care. The Core Components of the International Right to Health Reflect Concerns with Each Element of the Pluralist Right to Health Care and Instantiate the Pluralist Right Critically engaging the health care–related passages in the UDHR, a discrete set of multilateral treaties, authoritative interpretations thereof, documents specifically mentioned in the treaties and interpretations, and well-regarded scholarly works reveals six core components of the international right to health care: (a) universal access to health care, (b) prioritization of certain goods and peoples, (c) progressive realization, (d) modes of domestic implementation, (e) remedies, and (f) improved health outcomes. Each component of this international right to health care is an aspect or combination of the three components of the pluralist right to health care promoted here. (a), (b) and perhaps (c) justify the pluralist right to health care’s concern with the goods necessary to live a dignified existence. (a), (c), (d) and (e) relate to fair allocation of health care goods. All components of the international right at least presuppose a functioning health care system. (f) then undergirds the normative case for all three aspects of the pluralist right. I refer to the international legal materials that establish the six core components as parts of the international right to health care below and critically engage them to demonstrate that they support my pluralist understanding of the right and imply that the international right to health care is a pluralist one. International human rights law specifies some goods that should be covered under the international right to health care and some structural features of the health care system needed to secure them. But it also supports a procedural approach to the broader right to health. It is thus at worst consistent with a pluralist understanding of the right to health care. The following demonstrates that the international right supports my pluralist account. (a) Universal Access to Health Care I begin this analysis with the ICESCR’s canonical statement of the international right to health, which guarantees “the enjoyment of the highest attainable

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standard of physical and mental health.”19 This right belongs to “everyone.”20 It is thus a universal right. But this universal right cannot be a right to a high level of health. No one can fulfil a correlative duty of such a right. Factors beyond the control of any person – including basic biology – make even imperfect fulfilment impossible for some. The Committee on Economic, Social and Cultural Rights (CESCR)’s authoritative interpretation of the ICESCR, General Comment 14: The Right to the Highest Attainable Standard of Health (GC 14), thus clarifies that the right “is not to be understood as a right to be healthy.”21 It is instead a set of freedoms and entitlements to goods, namely those “necessary for the realization of the highest attainable standard of health.”22 This universal access criterion entails a minimum floor as well as procedural fairness in decisions about what to cover above that floor. On its face, the canonical and authoritative constructions of the right to health and its health care-related components on their own justify a concern with the goods necessary for a dignified existence. Yet “the highest attainable standard of health” may be far above the dignity level. The content of the international right to health care, then, includes less than the goods necessary for anyone to be perfectly healthy and more than the goods necessary for a dignified existence. Positive international human rights law uses dignity to set that floor but goes on to support a pluralist understanding of the right. Passages specifying the need to provide dignity-enhancing goods as soon as possible support the existence of a dignity-based floor.23 But other provisions require goods that are not obviously dignity-enhancing. Even the WHO’s Essential Medicines List, which is largely representative of the goods necessary for a dignified existence, includes controversial examples, such as condoms, that are questionably medicinal and questionably dignity-enhancing (albeit important from a health perspective).24 Something else is necessary to determine which goods above that floor should form part of the international right to health care. Where we do not know exactly what the scope of the international right to health care should be yet are concerned with universal access to some health care goods, a procedural component is a necessary precursor to realizing the proposed substantive right to health care. While problems from chapter 2 also impact a strictly procedural approach to the content of the right, it is

19 20 21 22 23 24

ICESCR, ibid, art 12. Ibid. GC 14, supra note 15 at para 7. Ibid at para 9. See the discussion of prioritized goods below. See also Da Silva, supra note 2. World Health Organization, “WHO Model List of Essential Medicines: 21st List (2019)” (2019), online: World Health Organization [WHO].

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thus unsurprising that the international right to health care also clearly has a procedural component. The universal access requirement requires a procedural component to determine the goods to which people should have universal access. The entitlements in GC 14 thus “include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.”25 The further requirement for a fair system for health care allocation is derivable from international human rights law’s commitment to nondiscrimination in decision-making. For example, on the standard reading, the ICESCR’s references to “equal and inalienable rights of all” and the rights of “everyone” reflect the foundational values of equality and non-discrimination.26 This has implications for the structure of the selection process and its implementation. A fair process for identifying the rights to which one should be entitled must ensure that decisions are made free from discriminatory intent and do not have discriminatory effects.27 Then it must ensure that whatever goods it selects are distributed in a way that ensures equality of opportunity. Whatever the result of the process in terms of the range of goods covered, persons must have an equal opportunity to receive their fair share of those goods. This does not mean that everyone will receive the same goods. A fair share is not an equal share of generally covered goods one does not need. Non-discrimination requires that all individuals have equal opportunity to access the goods they need such that one’s ability to access goods will be linked to one’s level of need. The fairness requirement for health care decision-making is clearly a proceduralist dimension to its articulation of the international right to health care.28 The text of the international right to health care detailed above and below suggests

25 26 27 28

GC 14, supra note 15 at para 7. ICESCR, supra note 1, Preamble. GC 14, supra note 15 at para 19. International human rights law also provides guidance for decision-makers in a fair system. Fair decision-making in a system ought to account for these directives. Te so-called Availability, Accessibility, Acceptability, and Quality framework is a notable example. It requires states to provide a sufcient quantity of culturally sensitive, ethically and scientifcally appropriate, and quality goods in an accessible manner; ibid at para 12. Tese conditions provide criteria for assessing the goods selected. E.g., they bar the selection of a good that has not been properly vetted by health authorities and/or the scientifc community. Tese are reasonable guiding principles. Te fairness of a system may partly depend on the extent to which decision-makers therein select culturally acceptable and high-quality goods. AAAQ guidance may thus afect fairness ratings. Tis may extend to the more substantive AAAQ guidance as well. Te requirement for “[f]unctioning public health and health-care facilities, goods and services” admits that “[t]he precise nature of the facilities, goods and services will vary depending on numerous factors … [but requires that t]hey will include … essential drugs, as defned by the WHO Action Programme on Essential Drugs.” Availability, in turn,

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that the international right is more than just a right to fair procedures (and any strictly procedural right will face the problems outlined in chapter 2), but the international right has a procedural part. The initial universal access criterion, then, demonstrates a concern with ensuring universal access to essential goods, which should include goods necessary for a dignified existence, and with procedural fairness in determining what goods will be provided in a state. This is a pluralist view. The international right to health care thus instantiates the pluralist right to health care. I further argue that the international right should be understood as an instantiation of the pluralist right to health care. Doing so would, for instance, help specify the content of the procedural guarantees in the relevant international human rights law. “Procedural fairness” in international human rights law is a thin concept that lacks action-guiding detail. But if a state is to justify its authority over health care, it cannot merely fail to discriminate in its health care decisions; it must also ensure that its decisions are consistent with the reasons given for that authority. For a fair process to meet these demands, it must be free from structural or systematic biases, responsive to its citizenry, and, accordingly, subject to scrutiny through some form of challenge and capable of correction. I explain this point in further detail in the next chapter, in which I further explain how these conditions provide helpful metrics for rights realization. To summarize the preceding, then, the right to health care’s commitment to universalism alone entails that all persons should be able to make claims to the goods necessary for a dignified existence and a functioning health care system that will provide them. But there is no non-arbitrary way to identify the other goods to which all persons should be able to make claims as part of the right. This justifies a procedural approach to identifying the remaining content of the right. To say that this reduces the right to health care to existing procedural guarantees and makes it redundant ignores the minimal floor and health care system guaranteed by other parts of the right. Moreover, applying the proceduralist framework to the specific health care context is necessary to identify the scope of the right: the concomitant guarantee of a fair share of the goods selected by the process makes even the procedural aspect of the right to health care more than just existing administrative justice rights. International human rights law is concerned with universal access to one’s fair share of health care goods, not just fair means of identifying them.

is structured in terms of “[p]rimary health care” in the adolescent context; United Nations, Committee on the Rights of the Child, General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, 33d Sess, UN Doc CRC/GC/2003/4, (2003) at para 40(a) [GC 4].

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(b) Prioritization of Certain Goods and Peoples A concern with the goods necessary for a dignified existence also helps explain and justify another core component of the international right to health care: its prioritization of essential goods and marginalized/vulnerable populations most likely to find themselves below the dignity level. GC 14 prioritizes a set of obligations that “are of immediate effect” for any economic, social, or cultural right duty-bearer: the “minimum core.”29 While there is reason to question the coherence of the minimum core,30 its concerns with essential goods and marginalized/vulnerable populations are appropriate in the context of the right to health care. Both address the import of dignity. Understanding the minimum core as fundamentally concerned with the goods necessary for a dignified existence helps explain its content. The first listed minimum core obligation is to “ensure satisfaction of, at the very least, minimum essential levels of each of the rights.”31 Failure to provide “essential primary” health care is one of five examples of a consequent prima facie failure of obligation.32 Primary health care is a plausible candidate for the goods necessary for a dignified existence. International human rights law clearly and consistently prioritizes it.33 Provision of essential medicines is prioritized in GC 14.34 It too could be part of the minimum core.35 It is plausible that the 29 GC 14, ibid at para 30, repeating United Nations, Committee on Economic, Social and Cultural Rights, General Comment 3: Te Nature of States Parties’ Obligations, 5th Sess, UN Doc E/1991/23, (1990) at para 1 [GC 3]. 30 Per Katharine G Young, “Te Minimum Core of Social and Economic Rights: A Concept in Search of Content” (2008) 33 Yale J Int’l L 113, the minimum core lacks an uncontroversial, unproblematic defnition. It also lacks long historical acceptance that grounds acceptance of other components of the international right to health care. Te core only gained academic traction in the 1980s, with widespread legal recognition following in the 1990s/early 2000s; Lisa Forman et al., “Conceptualising Minimum Core Obligations under the Right to Health: How Should We Defne and Implement the ‘Morality of the Depths’” (2016) 20(4) Te International Journal of Human Rights 531. 31 GC 3, supra note 29 at para 10. 32 Ibid. 33 E.g., primary health care provision is also a core obligation under children’s right to health; United Nations, Committee on the Rights of the Child, General Comment No. 15 (2013) on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (art. 24), 62d Sess, UN Doc CRC/C/GC/15, (2013) at para 73 [GC 15]. See also Paul Beetham, “What Future for Social and Economic Rights?” (1995) XLIII Political Studies 40. 34 GC 14, supra note 15 at para 17. 35 ICESCR, supra note 1, s 15 grants a right to beneft from scientifc advances that also supports a right to essential medicines; Stephen P Marks, “Access to Essential Medicines as a Component of the Right to Health” in Clapham et al., supra note 3, 80 at 87. As Marks notes, international intellectual property law may be at odds with international human rights law’s commitment to essential medicines in some respects. But see Da Silva, supra note 2.

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definition of “essential” tracks “necessary for a dignified existence.” Some level of well-being is necessary to live a dignified life. It is hard to know how one can pursue one’s conception of the good if one is debilitated by disease that can easily be prevented by basic primary health care. The content of the minimum core is plausibly dignity-based. The fact that many goods that form part of the content of the international right to health care are also goods that all plausible accounts of dignity would pick out as paradigmatic examples of goods necessary for a dignified existence then explains international law’s decision to ground the international human rights law system in which the right is recognized in an appeal to dignity.36 International human rights law provides reason to believe that the prioritization of primary health care is also tied to a concern with ensuring at least minimally decent well-being, which further supports the idea that international human rights law is concerned with preserving dignity and should focus on the goods needed to achieve it. The Declaration of Alma-Ata set global attainment of “a level of health that will permit … [all persons] to lead a socially and economically productive life” as a main social goal and stated that “[p]rimary health care is the key to attaining this target as part of development in the spirit of social justice.”37 While the goal was not met by the declaration’s stated deadline year (2000), international human rights law’s commitments in this passage and elsewhere support the claim that there is a level of well-being that all persons require to pursue even a minimally good level of well-being. Just as certain health care goods are required to reach the higher level of well-being described in the Declaration of Alma-Ata, certain goods are required to reach this minimal level of well-being. Other texts suggest that this is the dignity level. For instance, the authoritative interpretation of the right to health begins by stating that the right is to the “enjoyment of the highest attainable standard of health conducive to living a life in dignity.”38 Where government is supposed to be, at least in part, a mechanism for protecting rights, it makes sense that it should aim at ensuring that people can live the dignified existence prerequisite for those rights. However we choose to ration our scarce resources, we should endeavour to ensure that all people reach the dignity level. This is a plausible correlative imperfect duty to the right to health care. Asking states to at least

36 Recall “Te Goods Necessary for a Dignifed Existence Jointly Constitute a Necessary Component of the Right to Health Care” in chapter 3. Citations in that section and in this chapter support the idea that the paradigmatic examples of goods necessary for a dignifed existence identifed in chapter 3 are also protected in international law. 37 Declaration of Alma-Ata, supra note 15, art V. 38 GC 14, supra note 15 at para 1.

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endeavour to provide minimal care is less than many would demand from a true authority.39 A concern with dignity also partly explains the prioritization of (at least potentially) marginalized/vulnerable groups in the laws specifying the international right to health care. International human rights law is consistently concerned with the protection and assistance of “vulnerable” or “marginalized” populations.40 Such prioritization could be justified as a means to maximize the number of persons above the dignity level. Certain groups may be more likely to be below the dignity level. This is most likely true of marginalized/ vulnerable groups (especially in resource-poor states). If a group receives very few of a state’s resources and resources are scarce to begin with, it is more likely that members of that group will be below the dignity level. While governments ought to prioritize getting all persons above the dignity level, prioritizing certain groups may be an effective method of maximizing the number of persons above it. Group members are presumably more likely than non-group members to share characteristics keeping them below the dignity level. While the relevant legal materials could also express concern for the worstoff members of society regardless of whether they are below the dignity level or could reflect concern for restorative justice, these reasons for prioritizing groups may not be mutually exclusive.41 Indeed, justifications for prioritizing such groups jointly provide reason to believe that the value of a process for determining what is included in a health care right can be partly measured by the extent to which the process is attentive to marginalized/vulnerable groups. Both prioritization requirements suggest substantive goods that a right to health care must achieve that are plausibly grounded in dignity. Yet both also 39 Indeed, it may be less than the international minimum for rich states capable of providing more if that standard is understood as the highest attainable standard of health, consistent with the norms specifed in ibid. 40 E.g., UDHR, supra note 8, s 25; GC 14, supra note 15 at paras 12, 18, 21; GC 15, supra note 33 at para 98; United Nations General Assembly, Te Principles for the Protection of Persons with Mental Illness and for the Improvement of Health Care, UNGA, 75th Plenary Meeting, GA Res 46/119, UN Doc A/RES/46/119, (1991), Principle 2; United Nations, Committee on the Rights of Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, 32d Sess, UN Doc CRC/GC/2003/3, (2003) at paras 1, 3. I am not committed to groups existing as more than collections of individuals, but “[f]or the purposes of policy, it is valuable to understand the full population of society as made up of various subgroups, each of which will have … overlapping … [and] diferent health-care needs”; Daniel Callahan, “Ends and Means: Te Goals of Health Care” in Marion Danis, Carolyn Clancy & Larry R Churchill, eds, Ethical Dimensions of Health Policy (Oxford: Oxford UP, 2002) 3 at 14. 41 E.g., the second and third reasons for prioritization seem to merge in World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (1993), endorsed by United Nations General Assembly, World Conference on Human Rights, GA Res 48/121, UNGA, 85th Plenary Meeting, UN Doc A/RES/48/121, (1993), art 24.

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require certain procedural guarantees – to ensure just distribution of those goods, to ensure fair treatment of and input from marginalized/vulnerable groups, and so on. Both also require institutional guarantees of these ends. Both thus ultimately entail further requirements of all three components of the pluralist right. (c) Progressive Realization of Other Aspects of the Right As noted previously, the scope of the content of the right to health care appears wider than the goods necessary for a dignified existence. It also contains rights to other goods and to procedural fairness in health care–rationing decisions, including determinations of what other goods (if any) will be publicly funded in a state. To avoid demandingness objections (and charges that they are at an extreme end of the Problem of Scope), international human rights law invokes a principle of progressive realization to suggest that states ought to continue expanding their right to health care coverage unless they are in danger of reaching the extreme end of the continuum of possible scopes where additional coverage would lead to severe (e.g., economic) problems. A similar process can and should be used to assess fulfilment of other parts of the pluralist right. Progressive realization is a core component of all social international rights, including the right to health care.42 In international human rights law, one does not need to fulfil all elements of the right to health care immediately. States can gradually fulfil some obligations over time. On its own, progressive realization does not actually require pluralism. Yet once one acknowledges that the international right to health care is pluralist and includes a progressive realization standard, one should apply the standard to each component of the right. Progressive realization is thus, at minimum, consistent with the international rights’ pluralism (even if it does not directly support it). (d) Modes of Domestic Implementation International human rights law is largely agnostic on modes of domestic implementation and remedies. This agnosticism could be part of the reason why even the international right to health cannot secure health justice. Human rights implementation, being consistent with all forms of government, arguably allows background conditions of economic injustice to operate in ways that limit access to some forms of care and unjustly distribute health, if not health care, burdens.43

42 GC 3, supra note 29 at para 2. 43 Challenges to this feature of ibid at para 8, are discussed in Katharine G Young, “Introduction” in Katharine G Young, ed, Te Future of Economic and Social Rights (Cambridge: Cambridge UP, 2019) 1.

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Yet this agnosticism does mean that one’s form of government can serve as a justified limitation on one’s duty to realize the (international) right to health care. So, one cannot appeal to the fact that one has a free market economy to justify failure to ensure access to essential medicines.44 Exceptions to this agnosticism then further specify content of the international right that mirrors that of my pluralist view. Most notably, exceptions bolster the claim that it contains a right to a functioning health care system and provide further content for the procedural requirement of the international right to health care. International human rights law is, for instance, agnostic about whether constitutional or sub-constitutional legal entitlements best respect, protect, and fulfil the right. Legislative enactments are emphasized as a particularly appropriate means of implementing the right to health, but there is little guidance as to whether the legislation should be regular statutory legislation or special (e.g., constitutional) legislation. The content of the legislation is largely left open. Thus, while ICESCR lists “the adoption of legislative measures” as its only explicit example of a means of fulfilling economic, social, and cultural rights,45 per General Comment 3: The Nature of States Parties’ Obligations, the relevant provision of the ICESCR “neither requires nor precludes any particular form of government.”46 This agnosticism is useful insofar as it does not precondition our selection of a given mode of implementation and allows comparative analysis of modes of implementation of international rights.47 Yet the explicit obligations and underlying norms of international human rights law require a national health care system and forums for participating in its design and administration as well as a national health care policy, including a national strategy with clear benchmarks and indicators. This is an exception to the agnosticism outlined in the previous paragraph. It requires component (3) of my pluralist right to health care. The Declaration of Alma-Ata states that “governments should formulate national policies, strategies and plans of action

44 Te other rules of international law also may not provide exceptions. Indeed, the exceptions to international trade rules suggest that the international system prioritizes health care over many other important goods; Da Silva, supra note 2. International trade law nonetheless does serve as a practical limitation on states’ ability to realize the international right to health or health care justice more broadly. Consult the Health Impact Fund for an explanation of how those trade laws undermine health care justice and for a proposal for how to reconcile the international interests. 45 ICESCR, supra note 1, art 2. 46 GC 3, supra note 29 at para 8. 47 Of course, as Young, supra note 43 at 14–15, notes, the broader claim that the right should be agnostic about economic and political systems may create additional problems. Moreover, even this narrower form of agnosticism may eventually be rendered unnecessary if empirical data demonstrate that the right can only be realized by certain forms of governance. But the narrower agnosticism championed here is currently justifable and valuable.

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to launch and sustain primary health care as part of a comprehensive national health system.”48 The Rio Political Declaration on the Social Determinants of Health includes “effective systems of preventing and treating ill health” among the social factors that cause health inequities and explicitly highlights “a universal, comprehensive, equitable, effective, responsive and accessible health care system” as a requirement for good health.49 GC 14 takes this further, stating that the obligation to fulfil the right to health care includes a requirement to “give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation, and to adopt a national health policy with a detailed plan for realizing the right to health.”50 This national health policy must include a “national strategy” for implementation with “indicators and benchmarks”.51 No explicit requirement to measure access for marginalized/vulnerable groups in particular appears in this portion of GC 14, but the policy required by GC 14 must ensure “equal access to health care” to fulfil the obligation to protect the right to health care.52 These passages jointly require a health care system that fairly provides selected health care goods in an equal manner. The system must be legally entrenched, though the form of legislation establishing it is left open.53 This requirement is consistent with passages establishing the right’s universality and supports the right to a functioning health care system. International legal documents on modes of domestic implementation also promote a participation requirement in the context of marginalized/vulnerable populations that is plausibly linked to both fairness and systemic functioning. Scrutiny of the health care policy requirement for any mode of domestic implementation of the right to health care suggests that a more general right of participation may need to be present for a system to be fair. The Declaration of Alma-Ata states that “people have the right and duty to participate individually and collectively in the planning and implementation of their health care.”54 GC 14 formalizes this right in the context of implementing the international rights to health and health care: “the right of individuals and groups to participate in decision-making processes, which may affect their development, must be

48 Declaration of Alma-Ata, supra note 15, art VIII. 49 World Health Organization, Meeting Report: All for Equity: World Conference on the Social Determinants of Health (2012) at 48. 50 GC 14, supra note 15 at para 36. 51 Ibid at para 53. 52 Ibid at para 35. 53 While legislation is just one option among many for most social rights, the CESCR states that “[i]n felds such as health … legislation may also be an indispensable element for many purposes”; GC 3, supra note 29 at para 3. Some statutory protection of the health care system seems necessary. See also GC 15, supra note 33 at para 94. 54 Declaration of Alma-Ata, supra note 15, art III. See also art VII(5).

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an integral component of any policy, programme or strategy developed to discharge governmental obligations under Article 12.”55 This broad right does not negate specific participation rights for marginalized/vulnerable populations. It states that broader participation in decision-making by all relevant stakeholders is an aspect of fair decision-making. These requirements reaffirm that a variety of modes of implementation can achieve the intended effects of the right to health care and demand comparative analysis of how these modes add to it. Yet requirements to develop a national health strategy with benchmarks and indicators for success and to legally recognize the strategy limit the modes of implementation. If a health care system is achieving many of the goals of the right to health care, but the larger legal system provides no protections for the continued existence of the health care system, the lack of protection counts as a failure to achieve a goal. The requirement that (at least) citizens be able to participate in the development of their states’ health care policies then further limits modes of implementation. Selection of an otherwise objectively admirable strategy is non-ideal if it is completely unresponsive to the reasonable, subjective demands of the citizenry. A functioning health care system, then, must have fair procedures within it. Pluralism remains the norm. (e) Remedies The remedial component of the international right to health care is also primarily characterized by agnosticism yet also includes an exception bolstering (2) and (3). Instead of specifying an international law remedy, international human rights law requires states to provide remedies.56 It is agnostic about the form that a domestic remedy must take. Some believe that the remedy must be judicial,57 but that claim is at odds with the UDHR’s statement that any “competent national tribunals” could provide the necessary remedy and other subsequent interpretations of the remedial requirement of the right to health care.58 In most relevant international legal documents, judicial remedies are acceptable but not required.59 As with modes of domestic implementation, agnosticism about

55 GC 14, supra note 15 at para 54. 56 On social rights, see United Nations, Committee on Economic, Social and Cultural Rights, General Comment 9: Te Domestic Application of the Covenant, 19th Sess, UN Doc E/C.12/1998/24, (1998) at paras 2, 4 [GC 9] (including discussion of how any international remedies are only supplementary to national ones). 57 United Nations, Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Article 12 of the Convention (Women and Health), 22nd Sess, UN Doc A/54/38/Rev.1, ch I, (1999) at para 23 [GR 24]. 58 UDHR, supra note 8, art 8. 59 E.g., GC 14, supra note 15 at para 59; GC 3, supra note 29 at para 5; GC 9, supra note 56 at paras 1, 5, 9.

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remedial mechanisms is helpful. Constitutional, statutory, administrative, and other legal frameworks each have their own remedial processes. Agnosticism allows one to compare modes of implementation with different remedial processes. On the agnostic view, the remedial component of the right to health care is simply a requirement for a fair process: there must be some forum, judicial or otherwise, where a rights-holder can complain about the process and/or make claims for further services. Consistent with the priority for marginalized/ vulnerable populations, international human rights law suggests that the value of this aspect is partly a function of its responsiveness to the needs of the worstoff members of society. Easy access for marginalized/vulnerable populations is emphasized as an important aspect of any remedial service;60 this should help ensure their broader access to justice. There is, however, an exception to this agnosticism. It suggests that judicial review is necessary at some point in the process. While the CESCR shares responsibility for international legal agnosticism about remedial forums, it grants that judicial remedies seem “indispensable” for non-discrimination.61 This does not require that judicial review be a first-resort complaints forum. Administrative tribunals could address discrimination concerns, at least in the first instance. Human rights tribunals are designed to play this role. International human rights law merely requires judicial review at some point. This requirement is consonant with accountability for reasonableness’s review requirements.62 International human rights law largely limits this requirement to the non-discrimination context. Yet it is unclear why these claims require a judicial forum while others do not. Forums that fail to respect the dignity of those who come before it can be just as unfair as those that are discriminatory. Judicial review procedures should be available for complaints on any ground.63 An international right to health care thus requires procedural and systemic components to ensure remedies for its violation. (f) Improved Health Outcomes The components of the right to health care, then, are consistent with a pluralist understanding of the right and provide metrics for assessing whether states are 60 E.g., GC 4, supra note 28 at para 9; GC 15, supra note 33 at paras 119–120. 61 GC 9, supra note 56 at para 9. 62 But see Keith Syrett, “Impotence or Importance? Judicial Review in an Era of Explicit NHS Rationing” (2004) 67(2) Modern LR 289. 63 Te Committee on Economic, Social and Cultural Rights seems open to this when they note that the list of violations requiring judicial remedies is not exhausted by discrimination; GC 9, supra note 56.

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realizing the right to health care. Yet I suspect that few people would be interested in these measures if they did not bear some relation to another intended salutary effect of the right to health care: improved health outcomes. The international right to health care reflects this concern. For instance, the Declaration of Alma-Ata came in response to concerns about inequalities in “health status.”64 Per the CESCR, all social rights create “obligations of result” in addition to “obligation of conduct.”65 Social rights obligations are not merely obligations to act in certain (e.g., fair) ways, but also obligations to bring about certain ends. In the right to health context, improved health outcomes should serve as one of those ends. Some international legal documents explicitly note that states are obliged to bring about certain outcomes.66 Others provide guidance on the metrics that should be used to measure these goals.67 They suggest that international human rights law endeavours not only to improve health outcomes but also to provide metrics for measuring improvement. Yet, perhaps recognizing the difficulties in identifying how to measure these results, GC 14 allows states to “identify appropriate right to health indicators and benchmarks” on their own. Indeed, it calls on them to do so.68 This final component is a challenge to my conception of the right to health care, but not an overwhelming one. Indeed, I already responded to this challenge in my discussion of Objection 3 in chapter 3. The international right is no different from my pluralist right here. At this point, I will simply add that while I suspect that actually fulfilling these aims will require all three components of the pluralist right, it is difficult to confirm this, though I hope to do so in the future. It is admittedly also difficult to find measures for identifying whether this is the case at present. Unfortunately, causation concerns make it difficult to attribute health outcomes to right to health care implementation schemes and interventions, legal or otherwise. For instance, the Committee on the Elimination of Discrimination against Women calls on states to keep records on maternal mortality rates,69 but those rates depend on such a wide variety of factors that it is difficult to isolate the impact of right to health care–related projects and endeavours thereon. This is, again, part of the reason why I narrowed the scope of my analysis to begin with. I then address part of the motivation for that “call” by focusing on health care that is causally tied to maternal mortality.70

64 65 66 67 68 69 70

Declaration of Alma-Ata, supra note 15, arts II–III. GC 3, supra note 29 at para 1. E.g., reducing child mortality is a goal of GC 15, supra note 33 at paras 33–35. E.g., GR 24, supra note 57 at para 26. GC 14, supra note 15 at para 57. GR 24, supra note 57 at para 26. See “Te Goods Necessary for a Dignifed Existence Jointly Constitute a Necessary Component of the Right to Health Care” in chapter 3; Alicia Ely Yamin, “Towards

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As I develop my own metrics in the next chapter, I will thus find myself in the non-ideal position of being unable to compare modes of implementation along a potentially relevant axis. As causal metrics develop, I hope others will fill this gap in my initial analysis.71 Yet as I will demonstrate in chapter 5, there are many helpful metrics that we can already use to guide our health-related decision-making. The international law–supported pluralist right can thus be action-guiding. This remains the case even if it does not provide us with ideally epistemically transparent reasons for action. Conclusion The most plausible understanding of the core components of international human rights law, then, supports my pluralist understanding of the right to health care. Scrutiny of the relevant legal materials confirms that international human rights law is consistent with the view that that right is best understood as a unified set of sub-rights: to the goods necessary to live a dignified existence, to procedural fairness in health care allocation, and to a functioning health care system. It also supports the view that the right aims at improving health outcomes, though whether it achieves that aim is questionable. To answer questions about whether the aims of the right to health care are generally achieved, and to guide decision-makers who want to maximize realization of the right, some empirical metrics for rights realization are necessary. The next chapter further scrutinizes the international right to health care to identify independently justifiable metrics for realizing a plausible pluralist right to health care (international or otherwise). The fact that these metrics are applicable and can guide decision-makers suggests that my pluralist model is action-guiding.

Transformative Accountability: Applying a Rights-Based Approach to Fulfll Maternal Health Obligations” (2010) 7(10) Sur International Journal of Human Rights 95 at 99. 71 I am open to evidence that improved health outcomes generally are best brought about by highlighting one or two of the components of the pluralist right to health care. Admittedly, this might undermine my argument for a pluralist right to health care. But further study is necessary to determine whether this is the case. Indeed, future evidence may show that the components of the right to health care generally do not track improved health outcomes. Tis would challenge the idea of a right to health care altogether. Given the other, independent reasons to support both the idea of the right to health care and that right’s pluralism as identifed in this chapter and the preceding one, it is worth frst studying how to achieve that pluralist right to health care.

Appendix 1

A (Non-Exhaustive)1 List of Key Sources for Identifying the International Right to Health Care

Positive Law

Article 38 Sources Customary International Law2 Universal Declaration of Human Rights, GA Res 217 (111), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810, (1948) Treaties Charter of the United Nations, 24 October 1945, 1 UNTS XVI3 Constitution of the World Health Organization, 22 July 1946, 14 UNTS 185 United Nations, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1964, 660 UNTS 195 (Continued )

1

2

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Tis appendix also includes materials cited in chapter 5 and explicitly used to develop the metrics therein. I read other clearly relevant sources when writing the chapter. Tis background material, including the Millennium Development Goals, the Sustainable Development Goals, and the Declaration on HIV/AIDS, may implicitly inform my analysis. However, a full list of potentially relevant materials would distract from the main analysis. Tere is no hierarchy of sources in Article 38; e.g., Dinah Shelton, “International Law and ‘Relative Normativity’” in Malcolm D Evans, ed, International Law, 4th ed (Oxford: Oxford, UP) 137 at 137. Tere is non-dispositive reason to place subsidiary sources lower in the hierarchy (e.g., judicial decisions at international law only bind parties to the case (Statute of the International Court of Justice, 26 June 1945, 33 UNTS 993, art 59), domestic decisions may not bind at international law, and even the most learned scholarship does not bind makers of international law). Treaties and customary international law are equivalent for the purposes of Article 38–based decisions. Customary international law is placed frst here because the Universal Declaration of Human Rights set the legal framework for the later treaties in which the right to health care was developed, but that declaration’s authority is dependent on the Charter of the United Nations, so any apparent priority implied from this ordering is artifcial. Tis document is primary among treaties; Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art 103 [VCLT]. Of course, this primacy itself relies on the VCLT having a high place in the legal hierarchy.

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(Continued ) United Nations, International Convention on Civil and Political Rights, 16 December 1966, 999 UNTS 171 United Nations, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 United Nations, Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 United Nations, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 134 United Nations, Convention on the Rights of Persons with Disabilities, 3 May 2008, 2515 UNTS 3 General Principles of Law N/A5 Liminal Cases

Article 38 Sources Judicial Decisions N/A6 The Teachings of the Most Highly Qualified Publicists of the Various Nations Other Sources General Assembly Resolutions United Nations General Assembly, Declaration on the Elimination of Violence against Women, GA Res 48/104, UNGAOR, 48th Sess, UN Doc A/RES/108/44, (1993) General Assembly Resolutions (Continued) United Nations General Assembly, The Principles for the Protection of Persons with Mental Illness and for the Improvement of Health Care, UNGA, 75th Plenary Meeting, GA Res 46/119, UN Doc A/RES/46/119, (1991)

4 5

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Tis document only creates an entitlement to non-discriminatory treatment in health care provision. Tere are, of course, many general principles of law that are relevant to the realization of the right to health care and/or implicate health care in important ways. Tese include basic principles of tort law and humanitarian law. One could include them here if one took a more ecumenical view of what qualifes as a right to health care. But the principles exist independent of the right to health care and appear outside the social, economic, and cultural rights register. I thus treat them as independent of right itself despite their being clearly relevant to our understanding of health rights and socio-economic rights more generally. Te same is true of customary international law. Many customs are clearly relevant to the actual realization of the relevant right. But they are independent of the right itself. International case law is lacking. Domestic case law exists and falls under the ambit of Article 38, but it is the subject of study and thus cannot frame the metrics for study in this work.

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General Assembly Resolutions (continued) United Nations General Assembly, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UNGA, 63d Sess, GA Res 63/117, UN Doc A/RES/63/117, (2008) United Nations General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 107th Sess, UN Doc A/RES/61/295, (2007) Other Resolutions United Nations Commission on Human Rights, Non-Discrimination in the Field of Health, Res 1989/11, United Nations Commission on Human Rights, UN Doc E/CN.4/RES/1989/11, (1989) Soft Law

Via Delegated Authority Authoritative Interpretations United Nations, Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of States Parties’ Obligations, 5th Sess, UN Doc E/1991/23, (1990) United Nations, Committee on Economic, Social and Cultural Rights General Comment 9: The Domestic Application of the Covenant, 19th Sess, UN Doc E/C.12/1998/24, (1998) United Nations, Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health, 22d Sess, UN Doc E/C.12/2000/4, (2000) United Nations, Committee on Economic, Social and Cultural Rights, General Comment No. 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), 57th Sess, UN Doc E/C.12/GC/22, (2016) United Nations, Committee on the Rights of Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, 32d Sess, UN Doc CRC/ GC/2003/3, (2003) United Nations, Committee on the Rights of the Child, General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, 33d Sess, UN Doc CRC/GC/2003/4, (2003) United Nations, Committee on the Rights of the Child, General Comment No. 15 (2013) on the Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (art. 24), 62d Sess, UN Doc CRC/C/ GC/15, (2013) Authoritative Interpretations (continued) United Nations, Committee on the Elimination of Discrimination against Women, General Recommendation 15: Avoidance of Discrimination against Women in National Strategies for the Prevention and Control of Acquired Immunodeficiency Syndrome (AIDS), 9th Sess, UN Doc A/45/38, (1990) United Nations, Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Article 12 of the Convention (Women and Health), 22d Sess, UN Doc A/54/38/Rev.1, ch I, (1999) (Continued )

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(Continued ) Other Declarations Declaration of Alma-Ata, International Conference on Primary Health Care, 6-12 September 1978, Alma-Ata, USSR, UN Doc CF/HST/1985034/Anx.04/07 World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (1993), endorsed by United Nations General Assembly, World Conference on Human Rights, GA Res 48/121, UNGA, 85th Plenary Meeting, UN Doc A/RES/48/121, (1993) Fourth World Conference on Women, Beijing Declaration and Platform for Action, Fourth World Conference on Women, UN Docs A/CONF.177/20, (1995) and A/CONF.177/20/Add.1, (1995) Reports Special Rapporteur on the Right to Health Reports Other Drafting Histories Other Academic Works

Chapter Five

Metrics for Realization of the Right to Health Care

Introduction Metrics for the realization of the right to health care help prove the actionguidingness of that right, for they indicate ways in which one can improve realization, be it directly (by responding to a clear gap) or indirectly (by creating laws and policies that applications of the metrics have shown will lead to increased realization of the right). The best metrics identify the relevant dutyholders and the content of their duties, thus helping avoid the challenges facing existing models and buttressing the case for the right’s independent moral justification. Achievable metrics also support a conception of the right by demonstrating that it need not be overdemanding. This chapter identifies and defends metrics for right to health care realization, thereby demonstrating that the pluralist right to health care is measurable and achievable and providing further reason to support it. I explain how critical analysis of the requirements in the previous two chapters identified six sets of metrics and how each relates to aspects of the pluralist right to health care. The metrics I propose are: (a) the presence of legal protection of a health care system, of a national health care policy, and of participation forums for developing and administering the policy, (b) a state’s self-defined benchmarks and indicators of success, (c) the extent to which certain essential goods are covered by a system, (d) Norman Daniels and James E. Sabin’s procedural fairness (viz., accountability for reasonableness) metrics, (e) rates of access to essential goods and the goods selected in (d), and (f) progressive realization indicators. I argue that these should be applied to the general population and to specified “marginalized” or “vulnerable” groups to reflect the priority of protecting the vulnerable required by international human rights law and common commitments to dignity as a foundational norm.

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International Law and Empirical Metrics Action-guidingness requires a standard by which we can judge whether actions are fulfilling the right to health care (or some component thereof) or, contrary to our aims, hindering realization. To facilitate analysis of how states realize the right to health care and how interventions impact that realization, one needs a standard for comparing health care systems and interventions. A perfect basis of comparison may be impossible, but some shared understanding of what the right to health care should achieve is necessary in order to make comparisons from a right to health care perspective. I identify my metrics through a critical scrutiny of the components of the international right from chapter 4 and their relationship to the broader pluralist right generally. I do not directly adopt international standards because international human rights law is too controversial to ground the right to health care on its own and because the international right is plausibly something that should be subject to analysis. Regarding that controversy, international human rights law’s moral status is generally contested with, for instance, the belief that international legal documents that states have not directly agreed to are not binding (so international human rights law alone also cannot be agnostic about the relationship between legal and moral rights, as we desire of a versatile account of the right to health care). Moreover, international human rights law contains highly contestable rights – such as a right to a paid vacation – that provide grounds for questioning the content of international human rights law generally.1 International human rights law’s claimed metrics should thus only be used when paired with independent moral justification and/or aligned with an independently morally justified concept. Regarding critiques of international law, international human rights law – like the constitutional laws discussed in chapter 2 – is plausibly a method of realizing the right to health care. We could analyse whether international human rights law succeeds in fulfilling its own aims, but direct application of those standards at least requires some explanation. Providing that explanation in a satisfactory manner requires modification of the international metrics. For instance, as discussed below, the international standard for procedural fairness in this area is underdeveloped. This necessitates new sets of metrics. International human rights law nonetheless serves as a helpful starting point for identifying metrics for assessing realization of the pluralist right to health care. Picking out concrete metrics from thin air is very difficult and creates the unnecessary risk of undermining links between explanatoriness and

1 Jef King, Judging Social Rights (Cambridge: Cambridge UP, 2012) at 21n8, citing Maurice Cranston, What Are Human Rights? (London: Bodley Head, 1969).

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action-guidingness. Critical analysis of international human rights law provides (at worst reasonably) clear standards for assessing whether countries are meeting their pluralist right to health care commitments. The fact that there is widespread agreement in international law regarding some of the goods that must be included in the content of a right to health care helps us pick out some paradigm cases for the purposes of comparison. The further fact that these goods have been identified through global consultation means that arguments that the paradigm cases are ad hoc or culturally bounded are unlikely to hit their mark. Moreover, the still further fact that the metrics are related to international human rights law means they are not wholly divorced from the relevant legal phenomenon, which aids the case that these action-guiding standards are also explanatory – at least of what one form of health right is trying to achieve (and, given structural overlap with constitutional rights discussed in chapters 1 and 2, likely also what legal health rights try to achieve generally). Overlap with metrics used to identify whether legal rights to health care are being achieved is helpful where morally justified, for it increases the scope of the explanatoriness of one’s posits. I thus start with international law here. Methodologically, then, I use international law as a starting point for my analysis, but I do so instrumentally in order to have a starting point for analysis of the implications of my own view, which shares features with international law but claims to capture it under a broader model. I accordingly modify international metrics to fill gaps in and remedy errors in those metrics. The output provides a unique framework for analysing state compliance that can leverage existing databases and metrics. Existing reports either focus on socio-economic rights as a whole (e.g., the United Nations’ reports) or apply metrics unique to a given nation’s issues, often focusing on a single issue (e.g., myriad reports on the Canadian health care system, which is the subject of my case study in Part II).2 The former are conducted regularly but do not always address health care concerns in detail, nor do they address all aspects of

2 For a representative United Nations report, see United Nations, Committee on Economic, Social and Cultural Rights, Review of the 6th Periodic Reports: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, 20th Meetings, UN Doc E/C.12/ CAN/CO/6 [Concluding]. For representative reports on Canada, see e.g., Commission on the Future of Health Care in Canada (Roy J Romanow, Commissioner), Building on Values; Te Future of Health Care in Canada: Final Report (Ottawa: Commission on the Future of Health Care in Canada, 2002); Te Standing Senate Committee on Social Afairs, Science and Technology (Michael J Kirby, Chair), Te Health of Canadians – Te Federal Role: Time to Act (Ottawa: Government of Canada, 2003); Advisory Council on the Implementation of National Pharmacare, A Prescription for Canada: Achieving Pharmacare for All – Final Report of the Advisory Council on the Implementation of National Pharmacare (Ottawa: Minister of Health, 2019).

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existing rights.3 The latter are not specifically rights-based, are rarely repeated, and do not apply the same metrics to a variety of states in a way that would help us ascertain how best to realize the rights over time.4 Academics too often focus on the broader right to health or on socio-economic rights in general, not the narrower right to health care addressed here.5 My work leverages findings in these helpful empirical texts but focuses on a narrower issue in more depth. Like the pluralist right they are meant to measure, then, these metrics both synthesize and build on important existing work. For instance, the mix of qualitative and quantitative measures distinguishes the metrics from those of many WHO and/or domestic health care governance studies, thus allowing one to identify nuances that could be missed by a purely quantitative analysis, but the quantitative data that have been collected by those groups is necessary to answer some of the questions that follow.6 The procedural justice metrics, in turn, build on an existing literature that so far has not been directly invoked by international legal analyses. The procedural fairness metrics below can help us develop a more complete account of a state’s right to health care bona fides than is provided by existing reports by international bodies.7 These metrics uniquely focus on the right to health care and demand more detail on states’ realization than existing texts. The broader focus of existing works makes the fact that most provide less detail on health care in particular than the present proposal unsurprising: quite simply, they need to cover a lot more ground. My metrics focus on a narrower issue but demand more detail on more phenomena than existing metrics used by the international community. My pluralist right to health care is interested in monitoring more aspects of a nation’s health care system than do international legal bodies, for instance. This is so not only with respect to qualitative measures and procedural fairness measures, though both are significant. For instance, I am specifically interested in applying my metrics to vulnerable populations and collecting brute facts about the existence of

3 Concluding, ibid refers to “health” only twelve times and makes proscriptions for only two health care concerns. Even “regular” application only occurs each decade. Te prior report was United Nations, Committee on Economic, Social and Cultural Rights, Review of the 4th and 5th Periodic Reports: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, 36th Sess, UN Doc E/C.12/CAN/CO/4, E/C.12/CAN/Co/5, (2006). Much can change in a decade that will not be addressed in a few paragraphs. 4 E.g., none of the Canadian studies in note 2 are explicitly rights-based. Te latter two were “one of ” studies unique to their times. Te last focuses only on a single issue (albeit an important one). 5 See “Te Existing Literature” in Chapter 1. 6 Compare e.g., the primarily quantitative work by the World Health Organization’s Department of Reproductive Health and Research or the Canadian Institute for Health Information’s Health Indicators Interactive Tool. 7 Indeed, Concluding, supra note 2, is silent on the procedural concerns addressed below.

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certain structural features of health care systems; international reports do not focus on either.8 As the case study in Part II will demonstrate, focusing on these measures can allow one to identify – and hopefully eventually remedy – failings in health care systems that international bodies have not recognized. Health care is central to human well-being. My metrics have a practical value that makes them worth applying, however demanding they are. Moreover, where existing databases contain much of this information in disaggregated form, collecting the data will often be less demanding than one might think. I do not believe that these metrics are useful only to official bodies charged with monitoring compliance with the right to health care. The data collection necessary in order to apply the metrics may go beyond that which would interest official bodies. Failing such interest, widespread and repeated application of the metrics by scholars can provide nuanced and detailed accounts of states’ health care systems. Such findings should highlight previously unseen deficiencies and difficulties with implementing a right to health care. These metrics can accordingly be used to evaluate the health care laws and policies of individual states and how health rights can and should operate in practice. As chapters 6 to 8 will demonstrate, the metrics also identify steps states must take to improve their respective health care systems. We can then evaluate laws and policies in light of their ability to ensure that those steps are taken. Repeating this process should allow us to identify best practices for realizing the right to health care, but much needs to be done before those practices are identified. Simple application of these metrics is first needed to understand the practical implications of the pluralist right and the “blind spots” in right to health care realization they identify. Metrics for Right to Health Care Realization Scrutiny of the core components of the international right to health care from chapter 4 allowed me to identify metrics for studying whether states are realizing the right and how interventions impact that realization. In reverse of the preceding but in logical order of how one would apply them, these metrics focus on the following: (a) legal protection for health care systems, (b) the adoption of national health care policies, (c) any metrics in those policies, (d) procedural fairness, and (e) access to some health care goods, including priority for the goods necessary for a dignified existence, but also those selected in the fair process. International legal standards also examine (f) progressive realization of other goods, procedural safeguards, and structural elements of a well-functioning health care system. This section summarizes and adds to the 8 Again, ibid only focuses on two issues: Indigenous health and reproductive health.

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articulation of those core components from chapter 4 to more precisely specify concrete and morally acceptable metrics for right to health care realization. In the process, I also identify other metrics and assess which ones are usable given existing extenuating factors (e.g., data deficits) that limit applicability. Appendix 2 summarizes the metrics and the questions one can pose to apply them. (a) Health Care System/Policy Markers First, recall that the pluralist right to health care requires a functioning health care system to guarantee access to the goods necessary for a dignified existence and procedurally fair health care allocation decisions more generally. Then note that whether such a system is achieving its proper ends requires recordkeeping about the system’s functioning. Note further that some public participation in decisions is likely necessary to ensure both that states know what is necessary for dignity and that decision-making is actually on the basis of reasons the public might accept. Then also recall that international human rights law requires that a state have at minimum a national health care strategy with benchmarks and indicators for success in achieving its aims, as well as public participation in at least some health care allocation decisions.9 These facts point to systemic requirements for a functioning health care system and national health care policy – requirements that themselves suggest clear metrics for meeting them. Bare facts about the existence of a health care system provide metrics for determining the extent to which claims to a functioning health care system are being fulfilled. On the view offered here, a state must have a legally protected health care system if it is to count as fulfilling its right to health care obligations. The mere presence of such a system serves as a marker of right to health care implementation. This is a plausible first step – after all, a state without any health care system cannot be viewed as fulfilling even the bare minimum requirements of health justice, let alone a full-on right to health care. If, moreover, that system can easily be dismantled, the level of protection for the minimal health care guarantees is problematic. Determining whether a state has a functioning health care system covering all its members and whether the system is legally protected and, if so, how, is thus a useful first step, but all else being

9 Tere is also some transnational law suggesting that social and economic rights such as the right to health care should include a participatory component, though the relevant jurisprudence is nascent and not health care–focused and it is unclear whether constitutionalizing the participation requirements is wise. See e.g., Sandra Liebenberg, “Te Participatory Democratic Turn in South Africa’s Social Rights Jurisprudence” in Katharine G Young, ed, Te Future of Economic and Social Rights (Cambridge: Cambridge UP, 2019) 187. As I discuss in chapter 8, moreover, the precise level of participation required by this metric or the relevant laws is contestable.

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equal, legislative protection of a mode of implementation is a positive. Legislative protection is not the only acceptable legal protection, but international human rights law’s preference for some form of it is worth noting. For now, we should keep track of which states legislatively protect their health care systems, while being open to the idea that the presence of such protection is not necessary to realize other aspects of the right to health care if data warrants. To determine whether the systemic components of the right as currently understood are being fulfilled, one must also look at a health care system’s features. Recordkeeping is necessary for a system to truly function – and as we will see below, it is also required for a health care system to comply with the procedural demands of the right to health care. The extent to which systems keep data on their own functioning is thus a further metric for success. To be consistent with international norms, one can then assess whether a given mode of implementation includes a national health care policy, rights to participate in the creation of that policy (and, where possible, in the processes created by that policy), and benchmarks and indicators for gauging how the state defines success for its chosen mode of implementation. Per international human rights law norms, the health care system should include a national health care policy with indicators and benchmarks. The bare existence of these features is thus a further metric for realization. Given the account in the opening paragraph of this subsection, people then have a right to participate in the creation of that policy. The presence of systematic recordkeeping, a national health care policy, and forums for further participation in the administration of that policy (respectively) accordingly serve as further metrics for assessing realization of and modes of implementing the right to health care. Where a requirement is consistent with international human rights law claims and the accountability for reasonableness framework, this is a reason to include the requirement in one’s metrics. The concern with judicial review in the discrimination context provides a measure for assessing the fairness of processes: the presence or non-presence of a judicial review forum at some point. Agnosticism about the form of the review should persist – building a commitment to particular judicial remedies into my concept of the right to health care risks begging the question of how best to implement it – but the existence of any forum that is consistent with the norms of accountability for reasonableness (viz., transparency, acceptability, and reviewability) should count in favour of the system in which it is available. (b) Self-Defined Benchmarks and Indicators The indicators and benchmarks within any existing national policy serve as selfdefined metrics. One can easily identify the bare presence of a national policy within a state and participation forums therein. If a state has benchmarks and/

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or indicators for success, one can also assess the extent to which it is achieving its benchmarks and/or improving its indicators. This internal assessment can address some of the difficulties of creating universal metrics where health needs and resources differ greatly between (and even within) states. For instance, turning a state’s self-defined metrics into universal metrics helps combat concerns about the universality of the right to health care. Whether one can also identify the extent to which a state is meeting its indicators and benchmarks will be a case-by-case determination. Much will depend on a state’s transparency. But there are potential benefits to at least trying to attend to state-identified concerns. For instance, the Problem of Space and Time is somewhat minimized if we have data on what states think is necessary. We may even alter our view on minimal content if it turns out that all states end up selecting the same benchmarks for success and if there is independent moral reason to accept them. Requiring benchmarks and indicators also helps address some of the problems with identifying the relevant health care outcomes. Where we cannot develop objective standards that resolve causation concerns, we may wish to rely on experts in particular states to identify relevant outcome measures at a given point in time. Attending to state concerns may thus help remedy a potential deficiency with my pluralist conception of the right to health care.10 At present, further assessments of the quality of these features are beyond the scope of this work. I cannot assume that attending to these metrics will provide independently morally justifiable outcomes. Yet the acceptable benchmarks and indicators are not a complete free-for-all, so this metric does not relativize the right to health care to the point of irrelevance. Other core components constrain which indicators and benchmarks a given state can select (e.g., a benchmark set below the dignity level is unacceptable, and a system of indicators without any reference to marginalized/vulnerable populations is

10 Interestingly, David Bilchitz, Poverty and Fundamental Rights: Te Justifcation and Enforcement of Socio-Economic Rights (Oxford: Oxford UP, 2007) at 223–225 argues that international “minimum core” obligations can only be specifed in particular contexts by the relevant government since the core must be indexed to local needs that the local government alone can justifably weigh against one another. Tis is likely due to the fact that the minimum core would ask states to “do the impossible” if it demanded entitlements without respecting contextual constraints; David Bilchitz, “Towards a Reasonable Approach to the Minimum Core: Laying the Foundation for Future Socio-Economic Rights Jurisprudence” (2003) 19 S African J R 1 at 2. In the book, Bilchitz goes on to state that self-defned benchmarks and indicators are accordingly needed to measure realization of those obligations. If so, this provides further support for the present metrics: these metrics are also needed in order to develop a more plausible account of international human rights law. But the present argument does not depend on Bilchitz’s substantive view about the minimum core, which relies on a substantive view on domestic implementation that is beyond the scope of this work.

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similarly problematic), and even if nationally selected metrics are unduly relativized, other, more universal metrics remain relevant.11 (c) Coverage of and Access to Essential Goods Coverage of essential goods within the system (where “essential” means “necessary for a dignified existence”) and rates of access to those goods serve as good metrics for assessing the extent to which states are fulfilling right to health care commitments to ensure access to the goods necessary for a dignified existence. Recall that international human rights law prioritizes primary health care, basic maternal and infant care, and essential medicines, including provision of these to marginalized/vulnerable populations. Then recall that this can best be understood as part of a broader commitment to minimally decent well-being. Further note that these prioritizations and the commitments that underlie them are justified by a concern for dignity that we ought to embrace regardless of whether we commit to international human rights norms. This understanding of the reasons for prioritizing certain goods as part of the minimum core of the international right to health care also provides useful metrics for right to health care realization. On this understanding, the success of right to health care implementation regimes and interventions can be measured in part by their ability to ensure that all persons have the goods it is reasonable to believe all persons will require to reach the de minimus level of well-being. The international “minimum core” is potentially over- and under-inclusive from this perspective if one has a broad understanding of what is necessary for a dignified existence, but the presence of most of the goods in the international minimum core can be explained. There is a reason why the paradigmatic goods identified in chapter 3 tend to be covered by the international right.12 The value of a selection mechanism is thus partly a function of its ability to correctly select items as goods to be prioritized. Access to these goods can serve as a measure of an implementation regime’s ability to achieve the goals of the right to health care. Ideally, the number of persons living below the

11 Understanding (b) in the context of a broader set of metrics accordingly avoids problems with the exclusive use of self-defned “benchmarks” by some international human rights law bodies described in e.g., Eitan Felner, “Closing the ‘Escape Hatch’: A Toolkit to Monitor the Progressive Realization of Economic, Social, and Cultural Rights” (2009) 1(3) Journal of Human Rights Practice 402 at 410–411. It arguably also explains the practice of international human rights law described in that piece, which includes self-defned benchmarks and objective indicators. 12 See previous chapters, especially “Te Goods Necessary for a Dignifed Existence Jointly Constitute a Necessary Component of the Right to Health Care” in chapter 3 and subsections (a) and (b) of chapter 4.

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dignity level would provide a further partial measure of the ability of interventions to realize the right to health care.13 Where we cannot precisely identify the dignity level, access to the goods necessary to reach it on any specification can be a heuristic for the right to health care’s ability to fulfil its commitment to dignity. Analysing states’ abilities to realize the right on narrow and broad specifications of “goods necessary for a dignified existence” also dulls this epistemic worry. If the right to health care leaves many persons below the dignity level, it is not fulfilling its aims. Where we cannot identify the dignity level and thus cannot identify the number of persons below it in a given state, we can only measure whether a process aims at ensuring that people have access to the goods they need to live at the dignity level. A full list of goods required for a dignified existence is unavailable, but internationally recognized essential goods, such as primary health care, are useful here. In this regard, the WHO offers a Model List of Essential Medicines, which forms part of the minimum core.14 That list is imperfect, for the organization has not defined “essential” or provided clear criteria for inclusion on the list, which undermines the transparency component of its accountability for reasonableness. However, one may be able to identify a working understanding of what counts as “essential” by identifying the common traits of all items on the list. Necessity for a dignified existence is a good candidate for the trait common to all items on the list. The list items, in turn, then help us identify precisely which kinds of goods share this trait. The dignity-based approach that I promoted in chapter 3 (including my preferred account) and the international essential goods list can clarify each other. At minimum, the international list of essential goods is the result of a fair process for identifying the goods to which one ought to be entitled and thereby meets the other criteria for reasonableness. It is also constantly updated, which ensures that it addresses changes over time, as well as broad enough to address problems concerning differences between states.15 The list thus fulfils demands 13 Other factors afecting health will skew these numbers slightly. Strict causation between nonprovision of these goods and living below the dignity level cannot be observed. Tis number is helpful as an approximation of success. Te focus on more common illnesses still leaves a gap in knowledge as to whether rare disorders cause individuals to live below the dignity level and whether entitlements to other health care goods could bring them up to the dignity level. 14 Goods are added and removed at diferent times. See World Health Organization, “WHO Model List of Essential Medicines: 21th List (2019)” (2019), online: World Health Organization [WHO] for the most recent list. 15 While the present “essential drugs” list is expansive, it is difcult to get a frm grasp on the underlying principles of what is currently listed. I think that it is a reasonable approximation of the goods needed for a dignifed life.. If the goods are eventually found not to be efective, I suspect that the WHO’s reasonably fair processes would be responsive to this fact and the WHO would begin delisting.

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for a procedural understanding of a right to health care, helps identify plausible candidates for a minimum content of the right, and avoids the worst excesses of other attempts to fill out the content thereof. While the focus on medicines rather than other health care goods makes the list incomplete, access to goods on the list could serve as a heuristic for achieving the medicine-based components of the right to health care. We can hold that whether a system covers these goods is an indicator of its success.16 In the absence of agreement on their precise meaning, the paradigmatic examples of primary health care can serve as similar metrics. Other non-medicinal health care goods are similarly recognized as being universally required. Maternal and infant care, another minimum core good whose value is consistently emphasized elsewhere,17 serves as a notable example. These goods may not perfectly mirror the goods required to meet the dignity level, but they provide a reasonable approximation. The fact that several different accounts of dignity identify the same goods suggests as much.18 Rates of access to these goods also ought to serve as metrics for assessing a state’s right to health care interventions. Who can access primary health care, essential drugs, and essential services, and whether they do so in the absence of barriers (such as co-payments), should be studied in some detail. As part of this analysis, one should examine what, if anything, individuals must pay to access these goods.19 States may be justified in not providing (affordable) access to specific WHOidentified goods if, for instance, they prove cost-prohibitive or ineffective in the

16 One may think it impacts the fairness of the system, but recall Alana Klein, “So Long as You Have Your Health: Health Care Distribution in Canada and Proceduralist Human Rights” (2012) 30 Windsor Yearbook of Access to Justice 247 at 286. Te last paragraph of this subsection suggests that taking a side in that debate is unnecessary. 17 See e.g., United Nations, Committee on Economic, Social and Cultural Rights, General Comment 14: Te Right to the Highest Attainable Standard of Health, 22nd Sess, UN Doc E/C.12/2000/4, (2000) at paras 43–44; United Nations, Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Article 12 of the Convention (Women and Health), 22nd Sess, UN Doc A/54/38/Rev.1, ch I, (1999) at para 26; Te Millennium Development Goals, MDG 5: Improve Maternal Health (2015), online: World Health Organization . 18 Tis point was discussed in detail in chapter 3. 19 Tis requirement too may be part of the international right to health. Per the Committee on Economic, Cultural and Social Rights, it entails a “a duty to prevent unreasonably high costs for access to essential medicines”; United Nations, Committee on Economic, Social and Cultural Rights, General Comment No. 17 (2005): Te Right of Everyone to Beneft from the Protection of the Moral and Material Interests Resulting from Any Scientifc, Literary or Artistic Production of Which He or She Is the Author, 35th Sess, UN Doc E/C.12/GC/17, (2006) at para 35.

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circumstances. But one should first study whether they are provided and then explore any reasons for non-coverage. These metrics also help clarify the proper content of rights to health care. Studying the results over time may provide data that will lead the WHO to change the goods on its list if, for instance, all states that provide the good encounter financial issues as a result (thus creating a right that is unachievable – a clear instance of the Problem of Scope). Where, moreover, there is genuine debate over whether something qualifies as a good necessary for a dignified existence, one can study whether states would realize the right by applying a narrower definition of what is required for dignity that does not include that good, as opposed to a broader definition that does. This could help us better understand what is truly necessary. Fair processes may be necessary to apply this metric to marginalized/vulnerable groups that international law has plausibly identified. Indeed, such processes arguably support adoption of my participation metrics, given that international law is largely silent on what these groups require and application of international standards absent input from those groups would likely violate the equity norms of international law in any case. Given that the concern with dignity animating this view plausibly supports prioritizing marginalized/vulnerable groups’ needs and that international rights law actually requires such prioritization, and given lingering worries about the application of the Problem of Time and Space to marginalized/vulnerable groups (viz., what is necessary for dignity may be slightly different in some contexts), the essential goods that are selected should also include goods that marginalized/vulnerable groups identify as necessary for their dignity. I return to this when discussing “dual application” of the metrics later in this chapter.20 Regardless, it is also plausible that a fair process for selecting goods ought to prioritize certain goods over others as a matter of justice. This provides a way to

20 Considering the needs of vulnerable populations is also consistent with the original accountability for reasonableness framework. Daniels’s commitment to John Rawls’s two principles of justice suggests he should be open to at least the prioritization of the worst-of members of society. A Daniels-inspired view of the procedural dimension of the right to health care’s universalism component thus should not bar one from explaining how and why the right also contains a component that is oriented toward the prioritization of certain persons and goods. Where an expanded accountability for reasonableness standard better explains elements of the international right to health care, Daniels should accept it. Daniels’s Rawlsian roots are well-known, though at least his early work on this topic was not supposed to rely on a substantive commitment to Rawls’s justice as fairness; Norman Daniels, Just Health Care (Cambridge: Cambridge UP, 1985) at 42 [Daniels, JHC]. For the principles of justice, see John Rawls, Justice as Fairness: A Restatement (Cambridge: Belknap Press, 2003) at 42–43.

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further analyse selection mechanisms. The requirement that a fair system pick out the goods necessary for a dignified level of well-being may move beyond mere process and add substance to create a new pluralist model. Whether such a view is generally advisable is contestable. But concern for the marginalized/ vulnerable can be accounted for in process-specific and pluralist views.21 Of course, even a perfect score on these metrics will not negate vulnerability or even ensure the just distribution of health outcomes. Basic economic and even health outcome injustices could persist. But this does not mean that one should not try to ensure that vulnerable populations have adequate access to health care. The persistence of one form of injustice does not undermine the need to remedy another. The right to health care simply remains an imperfect means of realizing health justice. (d) Daniels and Sabin’s Fairness Markers The fairness of health care allocation decisions can be measured in part by the presence of a fair process of goods distribution. The mere existence of such a process counts in a state’s favour. Yet the fairness of a process admits of degrees, and national right to health care assessments should be tied to these processes. International human rights law provides little guidance on how we should understand these demands in the health care context. Measures of the procedural component of the right to health care are thus less developed than for other components. In this subsection, I use the work of Norman Daniels and James E. Sabin to specify how we can concretize and measure procedural fairness in the health care context. Their accountability for reasonableness framework helps fill gaps in international human rights law, which requires procedural justice but says too little about what this entails. Their framework is consistent with these normative ideals and, in addition, translates general metrics for procedural fairness into the health care context. Daniels and Sabin’s framework is thus the best means for understanding the right to health care’s procedural demands in a manner consistent with international human rights law’s underlying values. It is also independently morally justifiable. While the international right to health care and the right to health care generally also have substantive content, the accountability for reasonableness framework provides measures of the extent to which states are meeting the procedural demands of both rights.

21 Independent reasons to apply substantive and procedural metrics provided throughout this text mean that the types of concerns that motivate the alternative vision of procedure as necessarily requiring substance will be captured here too.

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Daniels and Sabin desire distribution of health care goods in conformity with basic demands of political justice. Their approach, briefly introduced in chapter 3, rests on an argument like this: [P1] Te distribution of health care goods is a concern of distributive justice.22 [P2] Authority for distributive justice vests in the public. [P3] Authority for the distribution of health care goods vests in the public.23 [From P1, P2] [P4] Where public authority is given to a representative body, such as the government, the representative body’s decisions must still be responsive to the public entity from whom the body receives its delegated authority. [P5] Distributive decisions about health care goods are made by some form of representative body. [C] Tus, distributive decisions with respect to health care goods must be responsive to the public. [from P3–P5] Daniels in particular adopts [P1] because health care is required for fair equality of opportunity,24 but it can just as easily be derived from the fact that health care goods are a bounded, valuable resource25 and/or that there is a social obligation to meet people’s health needs and that rationing is required to maximally meet that obligation.26 [P2] follows from a complicated account of public authority that I cannot detail here.27 It rests in part on claims about the conditions under which people will accept decisions made by others on their behalf. Where the account is consistent with my claims about government authority in earlier chapters, [P2] is granted for the sake of argument. [P5] is complicated by the fact that in practice, many decisions are made by non-representative bodies, including authoritative rulers or their proxies. Yet where one takes [P3]

22 Daniels, at least, made this claim far before he developed the accountability for reasonableness framework with Sabin. See e.g., Daniels, JHC, supra note 20. 23 Daniels & Sabin make this clear in e.g., “Te Ethics of Accountability in Managed Care Reform” (1998) 17(5) Health Afairs 50 at 58 [Daniels & Sabin, “Ethics”]. 24 See generally, Daniels, JHC, supra note 20. 25 Tis point is suggested by Norman Daniels & James E Sabin, Setting Limits Fairly: Learning to Share Resources for Health, 2nd ed (Oxford: Oxford UP, 2008) at 12, 45 [Daniels & Sabin, Setting Limits]. 26 Daniels & Sabin explicitly make this claim in “Limits to Health Care: Fair Procedures, Democratic Deliberation, and the Legitimacy Problem for Insurers” (1997) 26(4) Philosophy & Public Afairs 303 at 310–312 [Daniels & Sabin, “Limits to Health Care”]. 27 E.g., Daniels & Sabin suggest that the public must view distributive decisions as legitimate and fair to accept them; ibid at 304–305. But it is not strictly based on a consent-based model of authority; ibid at 306.

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seriously, just health care decision-making is only possible where the conditions in [P5] obtain. All legitimate authority for health care decision-making is delegated from the public. Thus, all health care decision-making should be responsive to the public. This explains why Daniels and Sabin claim that their framework ought to spell out principles for decision-making by private entities that arguably do not derive their authority from the public. For Daniels and Sabin, the responsiveness to the public that justifies state authority over health care has three components: decision-makers must make decisions that the public would (and perhaps do) accept, make these decisions known to the public, and provide an opportunity for the public to challenge those decisions. The conditions necessary for fulfilling these demands of distributive justice fall under the title of “accountability for reasonableness.” There are four basic conditions. The “Publicity Condition” requires reasons for decisions that must be made public.28 The “Relevancy Condition” requires that those reasons be relevant to health care decision-making.29 The “Revision and Appeals Condition” requires that decisions be subject to challenge and/or appeal and open to revision in light of these challenges.30 The “Regulative Condition” requires “some form of regulation to ensure that the other conditions are met.”31 These conditions are jointly supposed to provide fairness in health care decision-making processes. I think they provide the best account of health care justice on offer. In the absence of a thorough account of what justice should look like at the international level, it is justifiable and wise to read international human rights law in a manner that enhances our best account of justice. The conditions also provide metrics for measuring fairness. The Publicity, Relevancy, and Revision and Appeals Conditions require metrics for fairness that make sense of the procedural elements of international human rights law (and address my own concerns). A fair method for selecting what goods a state’s health care system will provide should include: (a) the public display of the product of and reasons for decision-making, (b) the use of publicly accepted (or at least publicly acceptable) rationales in those decisions, and (c) procedures for challenging and/or appealing the initial decisions. When specifying criteria for rights realization, we can call (a) “the transparency condition,” call (b) “the acceptance/acceptability condition,” and call (c) “the reviewability condition.” The presence of (a)–(c) then constitutes a brute metric for right to health care 28 Daniels & Sabin, Setting Limits, supra note 25 at 12, 45. 29 Ibid at 12. It is the “Relevance Condition” in ibid at 45, 169, etc.; Daniels & Sabin, “Ethics,” supra note 23 at 57. 30 Daniels & Sabin, Setting Limits, ibid at 45. Tis condition was originally just the “Appeals Condition”; Daniels & Sabin, “Ethics,” ibid at 57. 31 Daniels & Sabin, Setting Limits, ibid at 45, 12. Tis condition was once the “Enforcement” condition; Daniels & Sabin, “Ethics,” ibid at 57.

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realization, the requirement of which conforms to the demands of international human rights law. The Regulative Condition could, in turn, require (d) legal protection of (a)–(c) (through, e.g., binding legislation). Yet Daniels states that the condition can be met by (d*) “voluntary or public recognition of the process” short of full legal protection.32 I am not sure how to measure (d*). International human rights law’s preference for (d)-like entrenchment provides a brute metric that is easier to apply.33 We thus accepted it as a systemic metric earlier in the text. Procedural metrics that follow from Daniels and Sabin’s account, then, include the presence of public display of reasons for decision-making, the use of publicly acceptable rationales in those decisions, and the presence of challenge and/or appeal procedures. All three serve as metrics for the fairness of a health care entitlement selection procedure. Decision-making must be transparent, publicly reasonable and reviewable. Evaluations of the transparency of a decision-making procedure ought to include whether the process is open to the public, whether reasons are publicly disseminated, and whether the decisionmakers are properly impartial. Review can take any form, but judicial review must be present at some point in a process. Conceivably, the number of successful reviews could serve as a measure of the system’s relative fairness. Yet while extreme variations affect the system’s fairness (viz., a system in which reviews never succeed might as well be a system in which review is unavailable), reviews can fail or succeed for a variety of reasons. Whether a high (or low) review success rate is a sign of systematic or procedural success will depend on a variety of factors, including the value of lower-level decision-making. Rates of access to judicial and non-judicial forums are also useful when available. Publicly accepted or acceptable criteria are difficult, but not impossible, to measure. Identifying the full range of publicly available rationales is an onerous and perhaps impossible task. For now, whether a state publicly disseminates substantive reasons for its decisions will be a heuristic metric for acting based on publicly accepted rationales if there is no widespread outcry against the reasons. A lack of public outcry against a claim is non-dispositive of acceptance since there may be good reason not to publicly criticize decisions, from political repression to strategic choices to try to affect change in private. Analyses will thus need to be contextual and look to the political history in the state that is being studied. But the heuristic is a good starting point for analysis. One should eventually at least attempt to analyse as many of these reasons as possible through a rights-based lens.

32 Norman Daniels, Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge UP, 2008) at 119. 33 See chapter 4 on international human law’s preference for legislative recognition of social rights.

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There are admittedly reasons to question whether Daniels and Sabin’s accountability for reasonableness framework best captures the concerns at the heart of this component of the right to health care. First, international human rights law does not explicitly endorse it. Second, one may think that the philosophical model cannot directly apply to real world contexts. Third, one may worry that the conditions were designed for Western-style decisions and reflect Western values. Daniels and Sabin operate within a framework in which decision-making must be “compatible with the values of a particular society.”34 This argument could extend to the values of accountability for reasonableness. The fact of reasonable pluralism at the centre of their work is part of liberal political philosophy and may not be recognized everywhere.35 Furthermore, where the accountability for reasonableness conditions were developed owing to concerns about managed care organizations36 and framed as conditions on decision-making for “insured patients,”37 one may think that they are only appropriate for deciding which goods people ought to be entitled to in a health insurance regime. Using them as standards outside those regimes would seem odd. Notwithstanding these concerns, accountability for reasonableness offers the best prospects for measuring the procedural fairness component of the right to health care measurement, which must be performed in tandem with measurement of the universal access component. Accountability for reasonableness may not perfectly mirror international norms, and Daniels and Sabin’s use of the fact of reasonable pluralism as a starting point may be unique to liberal societies. Even so, the accountability for reasonableness framework reflects commitments to administrative justice and non-discrimination (as an aspect of administrative justice and a stand-alone value) shared by and applied in many states. Indeed, the centrality of non-discrimination in international human rights law is clear.38 Administrative justice also has a transnational, if not international, pedigree. Administrative justice demands that administrative decisions be made on the basis of reasons. The accountability for reasonableness framework provides resources for assessing the extent to which these reasons are given in a particular context as well as metrics for assessing the extent to which decision-makers

34 Tis phrasing appears in a prologue with unclear authorship; Daniels & Sabin, “Ethics,” supra note 23 at 50. 35 See e.g., Norman Daniels, “Accountability for Reasonableness: Establishing a Fair Process for Priority Setting Is Easier Tan Agreeing on Principles” (2000) 321(7272) British Medical Journal 1300; Daniels & Sabin, Setting Limits, supra note 25 at 10; Daniels & Sabin, “Limits to Health Care,” supra note 26 at 307. 36 Daniels & Sabin, “Limits to Health Care,” ibid. 37 Daniels & Sabin, “Ethics,” supra note 23 at 52. 38 See chapter 4.

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are accountable for their commitment to this aspect of administrative justice.39 As Colleen M. Flood notes, the accountability for reasonableness “factors map onto our understanding of the basic requirements for procedural fairness.”40 Furthermore, while accountability for reasonableness was developed in a specific context, it helps solve a more general problem. Limit-setting is required in states with varying socio-economic systems and health care delivery designs.41 Where this problem is universal and international norms require procedural fairness, accountability for reasonableness’s attempt to solve the problem for liberal societies by ensuring procedural justice may provide guidance in any context, liberal or otherwise. Finally, where existing studies suggest that accountability for decisions is a good predictor of substantive social rights fulfilment, building accountability into the framework helpfully links components of the right.42 Linking the components makes sense of claims that procedural fairness must be part of the right because it is instrumentally necessary for the other components. Separating the metrics helpfully leaves open the possibility that these factors could cease to correlate in the future, allowing us to revise our metrics or policies in light of the new findings. The markers of fairness in Daniels and Sabin’s accountability for reasonableness framework are thus important metrics. Where a fair system exists, it will help set content for the right to health care, which will include but not be limited to the goods necessary for a dignified existence. The extent to which persons can access the selected goods is a further metric for rights realization. (e) Rates of Access to the Goods Selected in the Process from (d) Measuring the right to health care requires metrics for determining whether individuals are receiving their fair share of the goods selected by the (preferably fair) process. These metrics are easy to state and reflect the extent to which nations are achieving their own stated goals of providing the goods they have selected, in addition to reflecting demands of the right to health care. Where a fair system must cover essential goods, these metrics will partly mirror the essential goods metrics in the ideal case but will also address non-essential goods selected through a fair process. To fulfil the universality requirements of

39 E.g., Klein, supra note 16 at 265, ofers Daniels and Sabin as a token example of a then-new proceduralist human rights law framework whose key “themes” are consistent with Canadian and international health policy standards. 40 Colleen M Flood, “Conclusion” in Colleen M Flood, ed, Just Medicare: What’s In, What’s Out, How We Decide (Toronto: U Toronto P, 2006) 449 at 452. 41 Daniels & Sabin, Setting Limits, supra note 25 at vii. 42 Sakiko Fukuda-Parr et al., Fulflling Social and Economic Rights (Oxford: Oxford UP, 2015) ch. 6.

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the right to health care, a health care system must present all persons with an equal opportunity to access the goods selected through fair procedures. Since one cannot measure opportunities directly, one should focus instead on the extent to which persons are accounted for in a process and the extent to which they are free from barriers to their fair share of the selected goods. Thus, the relevant metrics for this aspect of the right to health care’s universalism are the proportion of the population qualified to receive goods and the number of barriers to one’s share of those goods in a state (e.g., the number of user charges and other payments in a health care system). Where there are data on who is entitled to health care in a state and what one must do to access the goods, we can compare states along these metrics. Where data are unavailable, this fact will count against the transparency score. We should at least attempt to collect the data. (f) Progressive Realization Finally, the right to health care is not static, so progressive realization of the right to health care is necessary. Progressive realization comes in two forms: substantive and procedural. Each provides metrics for analysing whether states are better fulfilling the right to health care over time. One should look not only at access to health care goods, including those necessary for a dignified existence, over time, but also at whether there are more (or fewer) necessary structural elements of a functioning health care system over time. Call both substantive progressive realization. One should also look at whether states add procedural safeguards and markers of fairness to the system over time. Call this procedural progressive realization. While international law does not highlight the procedural element, there is no other reason to think that progressive realization should not have both substantive and procedural forms. Progressive realization implies metrics for assessing realization of the right to health care. At minimum, one should gauge whether states are covering more essential goods over time. While essential goods are part of the claimed minimum core that must be provided immediately and thus are not subject to progressive realization in international human rights law, in practice many states do not provide them. Gauging whether states are increasing or decreasing the number of essential goods covered or number of people eligible for those goods over time can at least serve as a metric as to whether states are improving their scores on another metric. The picture becomes more complicated when one tries to measure more traditional progressive realization of non-essential goods, but metrics are still available. Where the progressive realization standard is justified by worries about resource constraints, it may appear that progressive realization should entail further coverage of non-essential goods if resources improve. Calculating

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the number of types of goods added to the basket of covered goods and the number of goods in the basket a state provides over time could then help measure whether progress is being made in expanding the size of the basket and the provision thereof. Marking the unjustified subtraction of substantive goods and procedural mechanisms and the addition of procedural mechanisms provides better metrics for assessing progressive realization of aspects of the right to health care unrelated to the dignity level. General Comment 14: The Right to the Highest Attainable Standard of Health states that steps taken in the health care provision context cannot be “deliberately retrogressive.”43 Failure to provide goods necessary to achieve the dignity level arguably violates the progressivity standard. Removing coverage of those goods is, in turn, clearly deliberately retrogressive. One can also be retrogressive in one’s provision of less essential goods. A removal of goods rate can thus be a useful proxy for whether a state is being deliberately retrogressive. Yet there may be good reasons to remove goods from the basket of entitlements and to add others such that the total number of goods to which one should be entitled will shrink without running afoul of the basic principles of progressive realization. Since needs change over time, different goods will be needed at different times. The more relevant number is thus the number of goods removed from the basket without warrant and/or replacement by another good. This is a substantive metric. The number of barriers to access added to a system is also relevant to account for the fact that the basket is often shrunk by adding co-payments to services so that only those who can pay can access them. Any act that removes entire groups of people – particularly marginalized/vulnerable groups – from coverage and/or creates new barriers for them is also retrogressive. One should thus examine whether any groups have been removed from coverage and/or face additional barriers to coverage not experienced by others. These markers of substantive retrogression also relate to the fairness of the system: a fair system will not shrink the basket without good reason. One can measure procedural retrogression more directly by tallying the procedural mechanisms added to and subtracted from the system. This also

43 United Nations, Committee on Economic, Social and Cultural Rights, General Comment 14: Te Right to the Highest Attainable Standard of Health, 22nd Sess, UN Doc E/C.12/2000/4, (2000) [GC 14]; United Nations, Committee on Economic, Social and Cultural Rights, General Comment 3: Te Nature of States Parties’ Obligations, 5th Sess, UN Doc E/1991/23, (1990) at para 3. Te meaning of this is, of course, contested, but the following comments accord with plausible interpretations and their implications for health care policy. Ben TC Warwick, “Unwinding Retrogression: Examining the Practice of the Committee on Economic, Social and Cultural Rights” (2019) 19 Human Rights LR 467, provides an overview of retrogression as an international legal concept.

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speaks to the substantive component of the progressive realization standard related to structural features of the health care system, suggesting some blurring between substantive and procedural progressive realization. Where right to health care obligations include procedural fairness obligations, progressive realization should ensure that states improve their fairness metrics. This means that the addition of new modes of accountability counts in a state’s favour while the removal of accountability programs (e.g., the elimination of a public feedback forum) counts against a state’s progressivity score. Access to accountability mechanisms also ought to increase over time. Prioritizing access for the worst-off members of society at the beginning of a program – as the right plausibly demands – should not undermine the longterm value of ensuring that all people have access to fair proceedings, which is part of what it means for the right to be universal. Increases/decreases in the system’s fairness and in access to that fair system are thus relevant metrics for assessing the procedural components of progressive realization. When this procedural progressive realization is complete, and the system is completely fair, it is possible that substantive progressive realization will follow. A completely fair system will ensure coverage of essential goods and forestall the removal of any goods without warrant or proper replacement. Until then, the preceding jointly provide metrics for procedural and substantive progressive realization.44 Where a state does not score well on any other metric, tied to any component of the right, the extent to which the state takes steps to improve counts in its favour. Any deliberately retrogressive removals of required features will count against a state. Per the progressive realization standard, removal of any procedural markers of fairness and/or failure to add these safeguards within a reasonable time counts against a state. Likewise, removing people from coverage and/or failing to cover a wide breadth of the population and/or prioritize marginalized/vulnerable members of that population will count against the system. Failure to increase coverage of goods can also be problematic in certain circumstances, particularly where those goods are essential. Dual Application of the Metrics There are, then, six concrete and justifiable sets of metrics for right to health care realization. Notably, each set relates to a component of the pluralist right to health care. (a) and (b) clearly relate to the systemic component. (c) relates

44 Klein, supra note 16 at 251–252, argues that international human rights law’s focus on a retrogression standard causes international bodies to mischaracterize the fairness of domestic health care systems. Yet international human rights law need not prioritize non-retrogression, and non-retrogression is less problematic if one of many standards.

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to the substantive dignity-based component, while (d) and (e) create further substantive components and (d) alone reflects the procedural component. (f) addresses all three components. The pluralist right to health care thus appears concrete and measurable. It thereby appears action-guiding and avoids the problems facing some competing views. Notably, these metrics are also related to – and, indeed, are at least initially sourced in – international norms, which helps support the explanatoriness of my view. One may worry that the preceding does not sufficiently account for a core component of the international right to health care: the prioritization of certain goods and peoples. That component is independently morally justified by my animating concern for dignity. I mentioned how this requirement impacts the application of metrics related to all three components of the pluralist right to health care. One may nonetheless think that this component should entail its own metrics. I think this commitment of international law and health care justice instead requires applying all of my metrics both to the general population and to marginalized/vulnerable groups. Fairness and dignity concerns require metrics for determining the extent to which states prioritize the needs of marginalized/ vulnerable populations when designing and implementing the health care allocation process. The requirement to prioritize the marginalized/vulnerable further suggests that the metrics must be studied not only with reference to the general population but also with respect to marginalized/vulnerable populations. Conducting such dual application may require alteration of the metrics in the case of marginalized/vulnerable groups. It is not, for instance, enough to measure the traditional procedural fairness of a given selection regime. One must measure the extent to which it correctly selects a set of essential goods and the extent to which it is responsive to the needs of the worst-off members of society.45 International human rights law thus seems to require a substantive commitment to prioritizing goods that are necessary for a dignified existence and goods required by marginalized/vulnerable groups. To gauge whether marginalized/vulnerable populations’ right to health care needs are being met, one should measure the extent to which (a) their health

45 Tis responsiveness may be a further measure of the fairness of a system. It is difcult to see how an otherwise procedurally fair system that only entitles one to a single item can be fair. It certainly cannot achieve the efects we expect when we invoke the right to health care. Focus on substantive goods as an aspect of fairness also helps avoid the Problem of Scope by ensuring that a multiplicity of goods must be provided while allowing the process to limit the number of goods to which one is entitled and thereby avoiding a “blank cheque” (or “social hijacking” [to use Daniels, JHC, supra note 20 at 53’s gloss of Charles Fried, Right and Wrong (Cambridge: Harvard UP, 1978) ch 5]) approach to right to health care entitlements. But again, recall Klein, supra note 16 and surrounding debates.

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care needs are reflected in the list of selected entitlement goods, (b) they are involved in the selection process, and (c) they are able to access the selected health care goods.46 International human rights law consistently affirms the need for (a). For instance, priority-setting for special groups is often paired with prescriptions for how to give special attention to the unique needs of marginalized/vulnerable groups.47 International human rights law recognizes the need for (b) in its recognition of a specific right of participation in decision-making for such groups (and domestic regimes may recognize the same).48 (c) follows from the right’s non-discrimination aspect and from the prioritization of relevant groups. This modification application would ideally lead one to look at the extent to which processes are responsive to the needs of the marginalized/ vulnerable. Defining the extent to which a process selects goods that marginalized/vulnerable populations have identified as needs and/or the extent to which a process picks out goods that we can reasonably believe marginalized/vulnerable populations need would then serve as useful metrics. There are limits on the extent to which this ideal comparison can be conducted. For instance, it is difficult to determine ex ante what goods will be required. Unless the goods identified in different states are sufficiently comparable, comparisons across states will be difficult. Luckily, one can more easily develop other metrics for states’ commitments to marginalized/vulnerable populations by identifying their rates of access to chosen goods, avenues for participation in health care policy design and implementation, and health care coverage rates. I demonstrate how dual application is possible in chapters 6 and 7. That application will also serve as an example of a common practical 46 Identifying the vulnerable is, of course, difcult. Hazel Biggs & Caroline James, “Legally Vulnerable: What Is Vulnerability and Who Is Vulnerable?” in Michael Freeman, Sarah Hawkes & Belinda Bennett, eds, Law and Global Health: Current Legal Issues, vol. 16 (Oxford: Oxford UP, 2014), 133, explore some approaches. I think there are, ultimately, degrees of vulnerability that should be accounted for in priority-setting decisions. 47 E.g., United Nations, Committee on the Elimination of Discrimination against Women, General Recommendation 15: Avoidance of Discrimination against Women in National Strategies for the Prevention and Control of Acquired Immunodefciency Syndrome (AIDS), 9th Sess, UN Doc A/45/38, (1990). 48 For the international law, see e.g., World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (1993), endorsed by United Nations General Assembly, World Conference on Human Rights, GA Res 48/121, UNGA, 85th Plenary Meeting, UN Doc A/RES/48/121, (1993), art 24; United Nations, Committee on the Rights of the Child, General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, 33rd Sess, UN Doc CRC/GC/2003/4, (2003) at para 39(d). Scholars link dignity, protection of the vulnerable, and rights of participation; e.g., Anand Grover, Brian Citro & Mihir Mankad, “Te Consequences of Failure” in Jose M Zuniga, Stephen P Marks & Lawrence O Gostin, eds, Advancing the Human Right to Health (Oxford: Oxford UP, 2013) 425 at 437. See note 2 on some domestic reports.

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problem: data deficiencies that block access to the relevant information. But, I will now explain, this is true of most health rights metrics applications and is non-fatal to my view. Putting the Metrics to Work Data deficiencies more generally plague attempts to apply these metrics, but this is a problem with the current state of recordkeeping in many states, not a problem with the metrics themselves. Some metrics cannot be adequately applied to some states at present given the current state of recordkeeping and data collection. This does not negate the importance of the metrics. They were independently justified earlier in this text. Indeed, the very recordkeeping that leads to these problems was itself justified as a necessary systemic component of the right to health care not only in this chapter but in prior chapters as well. The kinds of measures states would need to take to fulfil these requirements – such as simply logging how many claims for certain goods are demanded in a year – are far less demanding than many other metrics for right to health care realization, particularly those proffered by more liberal right to health care theorists. Moreover, where states are making decisions about health care, knowing how their system is working is independently advisable and requires the kind of state that my metrics demand. While I understand state desires for non-transparency, they are not acceptable from a right to health care perspective. Some other moral reason would need to swamp the right to excuse the recordkeeping failures that are currently undermining application of my right to health care metrics. I am not aware of such reasons. As I discuss in Objection 3 below, the most initially compelling reason does not undermine my view. Yet even the challenges to current application of my metrics do not greatly undermine the extent to which my pluralist right to health care is actionguiding and avoids some of the problems facing existing models of the right. As I demonstrate in later chapters, these limitations do not undermine the fact that one can apply many of my metrics to existing health care systems, and findings that there is insufficient recordkeeping are themselves important for future health law and policy development that aims to help realize a plausible version of the right to health care. My metrics synthesize and build on existing empirical frameworks. Application of those frameworks has produced a fair amount of data that can also apply here. While my metrics demand additional scrutiny, there are sufficient data to apply many of my metrics in many states now. Indeed, only slight variations of my model – such as the adoption of qualitative measures where quantitative measures would be preferable – would allow for nearly every metric to be applied to at least some extent. For instance, some countries do not keep precise data on who is covered by their system and instead provide information as to why coverage should be “universal” as a

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matter of law or policy. In these and similar cases, quantitative data will often be incomplete and qualitative information will need to take its place. It too may provide an incomplete picture of the state’s health care system and its outcomes. But it can still be a helpful guide for those trying to make reasonable decisions in the health care sector. The study of Canada in Part II of this book is subject to some of these datadriven limitations but also demonstrates that application of most of my metrics is possible now and can provide unique insight into the nature of health care policy in a state – and how to improve it. To the extent that data deficiencies remain in Canada or elsewhere, future scholars should be able to transcend my limitations and complete analyses using all of my metrics. In the interim, simply answering the questions in Appendix 2 with the best (quantitative or qualitative) data available can provide data that should help lawmakers and policymakers better realize the right to health care now. Responses to recordkeeping concerns could then pave the way for more thorough and even more actionguiding application of these metrics and thus even better-informed attempts at realization of the right to health care. To say that my metrics cannot be achieved now is not to say that they are useless, but only to admit that identification of how best to realize the right will take time. This is hardly surprising and true of any plausible view. The metrics themselves may end up requiring modification once applied if it turns out that high scores on (d), for example, do not correlate with high scores on any other metrics. But this is a benefit of the view rather than a detriment. The pluralist right to health care is responsive to data. Moreover, one can remove an implausible metric from a pluralist right without making one’s set of metrics implausibly simplistic, so responsiveness need not come at the expense of being explanatory of a variety of aims or accounting for numerous important ends. Objections and Replies Like the pluralist model itself, these metrics for realizing the pluralist right to health care can be subjected to several good faith (and even compelling) criticisms. It is accordingly again necessary for me to reply to some of the most pressing objections one could raise to the present view. I will address four before moving on to apply the metrics in a case study in Part II. (a) Objection 1: These Metrics Do Not Easily Map onto the Components of the Pluralist Right First, one might argue that these metrics are insufficiently linked to the components of the right that I identified in chapters 3 and 4. Access to the goods I identify here may have a positive impact on the dignity of those who receive the

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care, but one may think that the goods are not necessary for dignity – or that they are not the only goods necessary for dignity. If so, the claim that my view is action-guiding again appears suspect. Whether dignity provides guidance in defining the scope of the right and of the goods that fall within it is, again, contestable. Moreover, the procedural metrics I identify here stem from an account of health justice that is not rights-based and does not form part of the related international law I partly model. Perhaps other metrics could better specify procedural fairness guarantees specific to a rights-based lens. One may also challenge whether the systemic metrics mirror what is instrumentally necessary to secure other parts of the right. This challenge will be particularly strong if my claims about the substantive and procedural components fail. Assessing whether there are legal protections for certain entitlements may seem less important if the content is best protected without law and if there is no need to ensure that decisions about coverage are reviewable by legal actors. With respect, much of the force of this argument constitutes a blanket denial of positions I have argued for at length throughout Part I. This response seems less like a challenge to my metrics than another opportunity to challenge the general view. My response is accordingly bound to be repetitive, so I will be brief. But I have heard variants of this challenge at several venues in which I have promoted this view and thus think it is worth addressing here. First, with respect to the metrics related to the basic substantive content of the right, I already explained at length why the goods I identified here are plausibly picked out. I also explained how an appeal to dignity plausibly sets that basic substantive content. I thereby demonstrated that it is not simply the case that a right to health care that ensures access to these goods will allow one to live a dignified life. The need for a dignified life also helps establish what a right to health care should minimally provide. Dignity is the best candidate for a concept that can serve the necessary functional role of setting a plausible right to health care’s basic substantive content. All plausible accounts thereof converge on the list of goods outlined earlier, and in any case, international law picks them out as plausible metrics for right to health care realization. The procedural metrics that I identify, in turn, were admittedly developed within a justice-based framework and go beyond the specific requirements of international law. But the requirements therein mirror procedural “rights” found in other areas, so importing them into the current “rights”-based context is hardly unique.49 Moreover, international law clearly requires some procedural

49 Recall notes 39–40 and surrounding text on procedural fairness norms. Ten note that there are procedural rights to fairness in the administrative law context in which both authors cited therein are writing. Constitutional discrimination norms are just one other example of legal phenomena with procedural fairness components.

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content for any health rights within it. The preceding only “goes beyond” what is found there insofar as it provides a plausible account of what that content should be. I am prepared to be challenged with specific alternatives for the procedural component of the right to health care’s basic form and empirical desiderata. I will gladly respond to any argument that the alternative is better than the present view. But I have provided ample reason to accept my view. In both cases, then, I have defended my accounts of different components of the pluralist right to health care at length and gone on to explain how and why they suggest that the present metrics should be used to assess state realization of the right to health care. Blanket statements of a disconnect between the components and the metrics constitute blanket denials of the arguments in the preceding chapters. It is better to respond to more direct challenge to the metrics here, rather than repeating my prior arguments. It suffices to note that the same general tack can also apply to my empirical metrics for realization of the systemic components of the right. (b) Objection 2: No State Can or Should Be Expected to Score Well on All These Metrics Second, one might suggest that these metrics actually highlight problems with my underlying theory: it is practically impossible to score well on all these metrics, so the theory makes the right effectively non-realizable. While realizing a subset of components of the right to health care may be possible, scoring well on all these metrics will be beyond the capacity of any state (or at least most states). This is particularly worrisome if fulfilling the right to health care should be consistent with fulfilling other important moral goods: fulfilling all the metrics will again leave one unable to afford to fulfil those goods. We know that other substantive rights have been over-demanding.50 Perhaps this could be evidence that a view that goes beyond substance and demands procedural and systemic change will do the same. The Problem of Scope lingers. If so, the pluralist model is also likely not as action-guiding as claimed. In practice, the pluralist model becomes too demanding, raising the Problem of Scope. When one is unable to realize all parts of the right, in turn, the pluralist right seems silent on which aspects one ought to fulfil. This objection loses its force outside the armchair. While it is possible that no state can realistically score well on all of these metrics, that is an empirical matter that needs to be tested. The proposal currently lacks supports. The fact that some constitutional health rights with broader substantive content are over-demanding

50 For health care–specifc examples, recall e.g., the discussions of Brazil and Colombia in other chapters.

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in particular states is hardly evidence that many states could not fulfil the pluralist right to health care. We should use the present metrics as an analytic lens now because our underlying theory demands it and because there is no evidence that the practical problem at the core of the present objection is a real one. If it turns out that many states cannot actually realize the right, this may require us to change our theory or metrics. But the metrics developed in this work are often tailored to the realities of different jurisdictions. In any event, the case study in Part II demonstrates that a modern health care system could fulfil even the more demanding objective requirements (even if Canada does not actually do so). It is simply premature to change my metrics due to over-demandingness concerns. The same response applies to the related charge that fulfilling these metrics is undesirable. This objection likewise states that the metrics necessary to implement the pluralist right to health care demonstrate that the pluralist right will be very expensive to implement – potentially “insatiable” or “imperializing” – even prior to any litigation. The history of litigating health rights with similar “dignitarian” concerns may admittedly support this view.51 While those cases could simply be evidence that constitutional rights can be very expensive and produce overlitigation and other forms of implementing the pluralist right are preferable, the concern that the metrics here will always be overly expensive and/or that the metrics here can always grow larger could apply to the pluralist right to health care in general, not only specific constitutional health rights. Providing the goods and the bureaucracy necessary for health care will always be expensive. But, as with Objection 1 in chapter 3, it is simply not clear that any right to health care is “insatiable” or “imperializing” like the broader right to health, and my pluralist right seems particularly well-suited to avoid the relevant charges. The onus is on critics of my view to provide data that the pluralist right will be insatiable or imperial in practice. If a general appeal to “dignity” did not render the pluralist right insatiable on conceptual grounds in chapter 3, then the narrowly circumscribed content outlined here is unlikely to do so now. We cannot assume that states should attempt to score well on all of these metrics. In fact, doing so would render them unable to do other important things. Empirical findings that this is the case may lead us to change our account later, but the possibility of future empirical challenges does not suffice to undermine a current search for empirical data. Indeed, it appears to require that search.52 51 Te sources in ‘Objection 3’ in chapter 3 also provide the basis for the present objection. 52 One may also argue that the possibility of scoring well on some metrics and not others demonstrates that the pluralist right is not actually a unity. But that argument does not merit sustained analysis here. Te components of the right are necessarily conceptually linked here and so constitute a unity. Te fact that some parts can be realized in practice while other remain unrealized is simply evidence that rights realization can be imperfect in practice. Tis is true of any rights, including complex rights we take to be paradigmatic unity, such as the right to property.

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(c) Objection 3: These Metrics Break with An Important Development in International Law Third, one may argue that this does not sufficiently account for an important development in international human rights law, namely the idea that the percentage of one’s gross domestic product spent on health care could be a proxy for realization of the right to health. International human rights law demands that states use the “maximum available resources” to progressively realize rights. This suggests that resource use, if not spending, is a relevant criterion, and that spending on specific policy areas has been fruitfully used as a proxy for rights fulfilment, in that it can identify when states begin to prioritize defence over health care, for instance.53 Any proxy will, of course, be imperfect. For instance, states can fulfil rights using a wide variety of percentages if their economies are strong enough and if focusing the sheer amount of spending without regard to its composition – for example, as to who gets the funds – ignores the redistribution intent of social rights.54 But a more technically robust GDP-based approach is possible.55 Similarly, debates continue over what counts as a reasonable amount of a budget to spend on health care, but this problem is surmountable. As Kent Buse, Lawrence O. Gostin, & Eric A. Friedman note, African heads of states’ proposal of 15 per cent of the budget as an appropriate standard may be controversial but it is “is at least an important starting point for determining a proper standard.”56 The preceding is silent on this. GDP-based metrics are not, however, part of positive international law, so failing to account for those metrics does not undermine the explanatoriness of my view. There is then ample reason not to accept academic arguments for their use in international law or elsewhere. Most importantly, the value of spending as a proxy for commitment to the right to health care is limited by the lack of fit between spending and outcomes that one observes in practice.57 There are simply not enough data linking the proportion of GDP spent on health care to anything

53 Eitan Felner, “Closing the ‘Escape Hatch’: A Toolkit to Monitor the Progressive Realization of Economic, Social, and Cultural Rights” (2009) 1(3) Journal of Human Rights at 410–411. 54 Ibid at 413–414. 55 See the positive proposal in ibid. 56 “Pathways towards a Framework Convention on Global Health: Political Mobilization for the Human Right to Health” in Freeman, Hawkes & Bennett, supra note 46, 37 at 40–41. 57 E.g., the United States spends more on health care per capita than all other states with limited results; William Lahey, “Medicare and the Law: Contours of an Evolving Relationship” in Jocelyn Downie, Timothy Caulfeld & Colleen M Flood, eds, Canadian Health Law and Policy, 4th ed (Toronto: LexisNexis, 2011) 1 at 5–6. Charles Kenny, Getting Better: Why Global Development Is Succeeding – And How We Can Improve the World Even More (New York: Basic Books, 2011) at 127 makes an even stronger negative statement on expenditures and health outcomes.

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we would want the right to health care to bring about to adopt that proportion as a metric for realization of the right to health care. Perhaps spending could serve as a limited heuristic if data on other measures were lacking (so long as the limits were identified). But the technical problems facing GDP-based metrics raise questions about whether any existing GDP-based metric can serve this more limited role – and the current metrics can already be widely applied in any case. One may, of course, argue that the aforementioned data deficiencies undermining the present application of my metrics are endemic problems that justify focusing instead on proxies for realization of the right to health care for which data are already being widely taken, such as GDP. As Part II demonstrates, even a developed state like Canada does not keep all the data necessary to apply my metrics, so one might think that most states will lack sufficient data to apply them, thus undermining the action-guidingness of my view. But GDP in particular is a problematic proxy for the relevant moral concerns, and the empirical case that even resource-poor states cannot collect the data needed for my metrics has yet to be made, so there is no reason to adopt another proxy. The preceding demonstrates instead that states should keep the data necessary to apply my metrics. There is little reason to think they cannot. Moreover, even if they cannot at present, the pluralist view identifies the data they should keep when able. Given this, there is little reason to think that focusing on proxies like GDP solves a real problem. As with all the objections I address in this book, I understand the impulse here. The challenge is fairly made. After all, a commitment to spending can serve as some measure of commitment to the right to health care. Chequebook commitments are commitments. If the additional spending is misallocated, this sign of progress will be offset by other measures. One might even say that if there is any lack of fit between spending and health care outcomes, we will want to see if it continues as we implement different modes of realizing the right to health care. Yet the lack of fit is simply too obvious for us to think that spending is conceptually linked to right to health care realization in any important way. I do not begrudge anyone who wishes to develop and apply a more technically accurate version of the GDP-based metrics. That is a fine project. I remain open to modifying my metrics to account for them if future studies can demonstrate the conceptual link that I deny here. But I do not yet see reason to think that my metrics must include proportion of GDP spent on health care in order to qualify as right to health care measures. (d) Objection 4: These Metrics Ignore the Perspective of Rights-Holders Finally, one may object that the present view focuses too strongly on governmental duties and fails to account for the perspective of rights-holders. This objection states that whether people feel that their rights are being fulfilled should be an important component of any rights analysis. To focus on whether people

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are objectively fulfilling their duties alone fails to account for important aspects of the relevant phenomenon; it also makes the most important moral actor, the rights-holder, secondary in any rights analysis. The Social and Economic Rights Fulfillment (SERF) Index is thus preferable to the present set of metrics insofar as it draws on robust survey data to capture the perspectives of rights-holders,58 even if its scope of analysis is narrower. Other metrics could also be developed to better account for qualitative analogues thereof. Where my view claims to benefit from its mix of relevant metrics, this gap in coverage is notable. I admit that my metrics do not account for the subjective perspectives of rightsholders in detail, but I do not think that makes my metrics any less compelling than alternative proposals. The focus on objective characteristics here is largely a product of the use of objective standards for specifying the content of the pluralist right to health care. The adoption of those standards was motivated by several important concerns in previous chapters. The fact that they entail a set of metrics that does not address subjective concerns of rights-holders likely does not suffice to outweigh the reasons to adopt that model. We should instead accept the implications of our otherwise morally valuable pluralist model, particularly where the metrics it does provide are independently compelling. This is especially true where alternatives come with their own weaknesses. For instance, the SERF Index admittedly ignores procedural elements of rights fulfilment.59 It is thus open to the challenge that it ignores important qualitative components of rights.60 My approach avoids those concerns with the otherwise compelling SERF Index. Ultimately, no set of metrics can capture everything that may be morally relevant to a decision. Everyone eventually needs to make choices about what matters most to them in a choice context. My metrics follow from a principled stance regarding what a pluralist right to health care must be. They also present a plausible account of how to measure rights realization, one that faces no more problems than the alternatives. This alone likely suffices to blunt the force of the final objection. It is, however, also worth noting that these metrics can coexist with others to provide a more thorough account of what one ought to do when making health care–related decisions. What it is best to do from the perspective of the right to health care is, of course, not equivalent to what it is best to do all things considered. It may also be the case that different metrics apply to different aspects of a choice scenario. The idea that different metrics are appropriate to different evaluations is hardly unorthodox.61 We might even think that the perspective

58 See generally Fukuda-Parr et al., supra note 42. 59 Ibid at 15–17. 60 See e.g., David Cingranelli, “Book Review: Fulflling Social and Economic Rights” (2018) 17(3) Journal of Human Rights 396. 61 See e.g., Felner, supra note 53 at 414.

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of “the right to health care” may take different forms depending on the evaluation. The pluralist component can then focus on the objective component that is distinctive of the right while being supplemented by a subjective measure focused on whether rights realization tracks perceived rights realization. Those with interests in both the pluralist perspective and the views of rights-holders can then apply different metrics simultaneously. Scoring well on both is likely a very good thing! There is, again, much to like about the SERF Index even if I prefer my own metrics as general measures. The metrics here are most closely connected with the best available account of the right to health care model and so most deserve the title “metrics for right to health care realization.” But they can be jointly applied with other metrics to provide a deeper and broader understanding of particular health care decisions. This final objection too thus misses its mark. Conclusion My specification of the pluralist right to health care ultimately provides six sets of metrics for comparing right to health care interventions: (a) the presence of legal protection of a health care system, of a national health care policy, and of participation forums in the development and administration of the policy, (b) a state’s self-defined benchmarks and indicators of success, (c) the extent to which certain essential goods are covered by a system, (d) Daniels and Sabin’s fairness metrics, (e) rates of access to essential goods and the goods selected in the (preferably fair) system, and (f) progressive realization indicators. One should ideally apply each set to the general population and to identifiable marginalized/vulnerable populations, and variations on (c) and (d) would look at the goods required by marginalized/vulnerable groups. These metrics comprise a program for future right to health care research, particularly with regard to modes of implementation, but also to interventions that seek to improve rights realization. In Part II of this book, I begin identifying how to maximize scores on these right to health care metrics. In the process, I further demonstrate the actionguidingness of my pluralist view. Where states can score well on these metrics, I thereby demonstrate that in practice, my pluralist right to health care does not run afoul of scope- and correlativity-concerns. While some metrics are currently inapplicable at present, this is due not to fatal flaws with my models or the attendant metrics, but to a problematic failure to perform basic recordkeeping.

Appendix 2

Metrics for Comparative Analysis of Right to Health Care Implementation1

Metric

Questions to Answer

(A) Health Care System/Policy Markers

• • • • •

(B) Self-Defined Benchmarks and Indicators

• If a state has a national health care strategy with self-defined benchmarks and indicators for success, how does it fare on those metrics? • Does the state self-report how it fares?

(C) Coverage of and Access to Essential Goods

• Are the goods on the WHO Model List of Essential Medicines available in the state? Are they guaranteed? What (if anything) do they cost individuals? • Are maternal and child health care, immunizations and treatment of major diseases covered and/or guaranteed? • What about analogous goods that seem necessary for a dignified existence? • What proportion of the population is qualified to receive these goods? • What is the rate of access to those goods?

(D) Daniels and Sabin’s Fairness Markers

• Are there forums for the public to participate in the decisionmaking process? • Are the reasons for decisions about what goods are covered in a system publicly available? Are there barriers to actually accessing them?

Does the state have a health care system? Does the state legally protect its health care system? How?2 Does the state have a national health policy? Does it include benchmarks and indicators for success? Are there forums for participation in the development and administration of the system and/or the policy?

(Continued ) 1 2

All metrics should be applied to the general population and marginalized/vulnerable populations. Legislative measures may be preferred.

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(Continued ) Metric

Questions to Answer • Are the reasons provided publicly accepted or acceptable? • Are there challenge and/or appeal procedures for those decisions? Is there a path to judicial review in those procedures? • Can those procedures lead to changes in coverage? Are there other remedies for pro tanto right to health care violations? • What are the rates of access to the challenge and/or appeal mechanisms? • To what extent are people successful in their challenges?

(E) Rates of Access to the Goods Selected in the Process from (D)

• What proportion of the population is qualified to receive the goods selected in the fair process outlined in (D)? • What is the rate of access to the goods selected in the process in (D)?3 • What barriers to accessing the selected goods exist in the health care system?

(F) Progressive Realization Indicators4

• How many essential goods have been added to or removed from the list of covered goods? • How many non-essential goods have been added to the list of covered goods? • How many non-essential goods have been removed from the basket without warrant and/or being replaced by another good? • How many barriers to access have been added to a system? • Have any groups been removed from coverage or now face additional barriers to coverage not experienced by others? • Have any accountability mechanisms been added or removed? Has the rate of access to those mechanisms improved or declined?

3 4

Te goods in these two questions would preferably include the essential goods in (C), creating overlap with some of the data there. Each of these metrics can only be applied when indexed to a prior analysis.

Chapter Six

The Mainstream Canadian Health Care System and the Pluralist Right to Health Care

Introduction The pluralist conception of the right to health care, then, is the best model available and provides metrics one can use to study the extent to which states are currently realizing the right and the extent to which interventions can and do contribute to improved realization of the right. In this chapter and the next, I examine the extent to which Canada already realizes the pluralist right to health care. I thereby identify gaps in realization. In chapter 8, I examine how some legal tools could be used to fill those gaps and better realize the right in Canada. The application of these metrics and demonstration of how they can be used to identify the relative value of different interventions further establishes the action-guidingness of my pluralist view. As promised in chapter 5, the output provides a more detailed account of the health care system than existing domestic or international analyses of Canada’s right to health care bona fides, and thereby identifies deficiencies in the Canadian system that are minimized or ignored in those analyses. Most notably, it identifies procedural and systemic deficiencies in the system that many international and domestic reports fail to address and provides more detail on programs for vulnerable populations than existing studies.1 Its focus on the “right to health care” distinguishes it from most existing studies, most of which focus either on discrete health care issues or on broader concerns such as Canada’s realization of the right to health or socio-economic rights in general.2 This chapter focuses on the mainstream of the Canadian health care system – the provincial health care programs designed to implement the federal 1 See especially “International Law and Empirical Metrics” in Chapter 5. Tat subsection contains citations to specifc example of the kinds of considerations existing work choose not to address. Te following demonstrates how application of my metrics flls what I took to be gaps in existing analyses of the right to health care. 2 Ibid. See also “Te Existing Literature” in Chapter 1.

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Canada Health Act (CHA) and to provide additional health care services that are not required under that act but that nonetheless are publicly funded under related (primarily) public health insurance regimes.3 This examination naturally lends itself to further discussion of the joint public/private arrangements used to supplement those regimes. My analysis suggests that Canada realizes parts of the right to health care. The mainstream Canadian health care system has a quasi-national public component that covers most essential goods provided in hospitals or direct physician care, provides avenues for appealing decisions in that system, and scores well on some important health outcome metrics. Yet the mainstream system could score better on some right to health care metrics. Its lack of transparency in health care decision-making, insufficient opportunities for participation, lack of a national health care strategy or policy with self-defined benchmarks and indicators, inconsistent coverage of essential goods outside of hospitals and direct physician care settings, and access barriers need to be improved/remedied if Canada is going to maximize realization of the right to health care.4 An Introduction to the Canadian Health Care System Canada has a multitude of distinct health care programs that together comprise the Canadian health care system. The constitutional authority over federal– provincial cooperation in the primary, public, and CHA-based components of the mainstream system is the result of a complex federalist division of powers over health care. In the original constitutional division of powers, “health” and “health care” are not explicitly under the purview of either level of government.5 The listed powers instead suggest that the federal and provincial governments each have authority over certain aspects of health care.6 Case law does not endorse the strongest arguments for the supremacy of either level of

3 For the CHA text, see Canada Health Act, RSC, 1985, c C–6 [CHA]. 4 I provide more detail on these successes and failures when exploring remedies for existing problems in chapter 8. Tis requires more detail on the problems. Chapter 7 examines two federal programs that provide services to vulnerable populations, providing a more complete account of Canada’s right to health care credentials and of whether this country adequately prioritizes vulnerable groups. Te result is another mix of successes and defciencies. 5 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, ss 91–92 [1867]. Martha Jackman, “Constitutional Jurisdiction over Health in Canada” (2000) 8 Health LJ 95 [Jackman, Jurisdiction”] contains more history and a hypothesis on why this division took place. 6 1867, ibid, ss 91–92. Provincial powers include powers over the “Management of Hospitals” and “Property and Civil Rights.” Te federal government has powers over particular persons who require health care (e.g., Indigenous peoples, immigrants, some prisoners, and veterans) and places where health care must be delivered (e.g., marine hospitals). Chapter 7 will discuss two programs that exercise these federal powers: the Indigenous peoples–specifc Non-Insured Health Benefts Program and the refugee claimant–specifc Interim Federal Health Program.

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government. For instance, if the federal and provincial governments both enact conflicting but otherwise valid laws concerning health care, a doctrine of paramountcy technically holds that the federal law prevails. Yet while this doctrine has arisen in the context of certain health policies,7 it has not been applied in major health care cases.8 A province’s claim for exclusive jurisdiction over health care service delivery then rests on the claim that such delivery is part of the “protected core” of its health care–related powers and therefore its exclusive domain by virtue of the doctrine of “inter-jurisdictional immunity,” but the Supreme Court of Canada (SCC) has consistently rejected this argument.9 While SCC jurisprudence suggests that the provinces possess “the general authority over health,”10 health’s status as an area of “concurrent jurisdiction” is an established doctrinal norm.11 At the very least, funding of the Canadian health care system is an area of concurrent jurisdiction. The Canadian health care system is thus a mix of federal, provincial, joint federal–provincial, and joint public–private programs, some of which are arguably subsystems in their own right. This has led some scholars to suggest that there is no single Canadian health care system, but a collection thereof.12 Even so, many programs are related and can be studied together, which I do in the next two chapters. The mainstream Canadian health care system, which provides health care to most of the population, is a sectoral system. The federal spending power and provincial authority over hospitals, property and civil rights, and “private” or “local” matters ground a joint federal–provincial publicly funded health care regime.13 Under this regime, a set of core services provided in hospitals or under the care of physicians are publicly funded.14 While the legislation establishing these requirements – the CHA – is federal, the provinces’ general authority over

7 E.g., Rothmans, Benson & Hedges v Saskatchewan, [2005] 1 SCR 188, 2005 SCC 13. 8 E.g., Canada (Attorney General) v PHS Community Services Society, [2011] 3 SCR, 2011 SCC 44 [Insite]. 9 E.g., Insite, ibid at para 68; Carter v Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5 at paras 50–53 [Carter]). 10 Schneider v Te Queen, [1982] 2 SCR 112 at 137 [Schneider]. 11 William Lahey, “Medicare and the Law: Contours of an Evolving Relationship” in Jocelyn Downie, Timothy Caulfeld & Colleen M Flood, eds, Canadian Health Law and Policy, 4th ed (Toronto: LexisNexis, 2011) 1 at 29 described “divided” jurisdiction. For the doctrinal norm, see Carter, supra note 9 at para 53. 12 E.g., David Haardt, “Economic Trends and Challenges” in Katherine Fierlbeck & William Lahey, eds, Health Care Federalism in Canada (Montreal and Kingston: McGill–Queen’s UP, 2013) 101 at 112. 13 1867, supra note 5, ss 92(7), 92(13), 92(16). Te spending power is not in the constitutional text. It is “inferred” from various enumerated powers; Jackman, “Jurisdiction,” supra note 5 at 97–98 (also describing the CHA, supra note 3, as “a classic exercise of ” the power). 14 Auton (Guardian ad litem of) v British Columbia (Attorney General), [2004] 3 SCR 657, 2004 SCC 78 at para 32 [Auton].

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health and specific authority over hospitals means that the federal act can only be properly implemented by provincial legislation. Each province has its own health insurance act, which establishes how health care provision works in the province.15 In practice, the federal government transfers funds to the provinces, which then fund delivery of most health care goods. The CHA establishes the framework within which the federal government transfers funds to the provinces for the provision of health care through an insurance regime.16 To receive federal funds, provinces must provide “hospital services … [that] are medically necessary” and “medically required services rendered by medical practitioners” (“physician services”) to “one hundred per cent of insured persons.”17 Generally, private practitioners provide health care in every province and are reimbursed for the provision of insured services.18 To receive federal funds, provinces must ensure that practitioners do not subject patients to additional fees for insured services.19 Provincial governments must, in other words, bar extra billing and user fees. The federal government must withhold transfers to provinces that fail to ensure free point-of-service provision of insured services and has withheld transfers to the provinces due to extra billing.20 The federal government can also withhold transfer payments to provinces that fail to meet the other transfer criteria.21 Per the terms of the CHA, then, the federal government transfers funds to the provinces if and only if the provinces provide and fund a set of medically

15 Alberta Health Care Insurance Act, RSA 2000, c A–20 [AHCIA]; Hospital Insurance Act, RSBC 1996, c 204 [HIA – BC]; Te Health Services Insurance Act, CCSM c H35 [HSIA – MN]; Hospital Services Act, RSNB 1973, c H–9; Medical Care Insurance Act, 1999, SNL 1999, c M–5.1; Health Services and Insurance Act, RSNS 1989, c 197; Health Insurance Act, RSO 1990, c H.6 [HIA – ON]; Health Services Act, RSPEI 1988, c H–1.6; Health Insurance Act, CQLR c A–29 [HIA – QC]; Saskatchewan Medical Care Insurance Act, RSS 1978, c S–29. Te territorial acts are Health Care Insurance Plan Act, RSY 2002, c 107; Hospital Insurance and Health and Social Services Administration Act, RSNWT 1988, c T–3; and Hospital Insurance and Health and Social Services Administration Act, RSNWT (Nu) 1988, c T–3. 16 CHA, supra note 3. 17 Ibid, ss 5, 7–12. 18 Te CHA, ibid does not require this arrangement. Even the defnition of “insured services” does not entail that insured services are provided by private providers; ibid, ss 2f. Yet the provincial plans generally take this form and spell out the criteria for reimbursement; see e.g., HIA – ON, supra note 15, ss 15–18. Lahey, supra note 11 at 28f, thus describes Medicare as a “single payer” system. Others (e.g., Haardt, supra note 12) suggest that the diferences between the provinces are such that we have fourteen single-payer systems in Canada. 19 CHA, ibid, s 18. 20 Colleen M Flood & Sujit Choudhry, Strengthening the Foundations: Modernizing the Canada Health Act (Discussion Paper No. 13, Royal Commission on the Future of Health Care in Canada) (Ottawa, 2002) at 17. 21 CHA, supra note 3, ss 15–17.

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necessary hospital services and medically required physician services to all insured persons, and such persons are not subject to extra billing or user charges at the point of service. But each province sets its own criteria for what qualifies as medically necessary or required, so coverage of even hospital and physician services varies.22 While federal guidelines should require coverage of some specific goods across all provinces, the federal government rarely withholds funds from the provinces for failing to cover specific health care goods and services.23 The SCC thus recognizes that only a core set of necessary and required hospital and physician services must be funded.24 Provinces can fund non-core hospital and physician services but are not required to do so.25 Differences in provincial CHA implementation schemes lead to differences in health care coverage, and the rules on how coverage works consequently differ between provinces. This has resulted in differences in health care provision across the provinces, creating subsystems of CHA implementation. Provinces enjoy even wider latitude when it comes to funding for health care goods and services that fall outside the hospital and physician services sector. Provinces differ in how they approach these; generally, though, other sectors are funded through a mix of public and private funds. Under the CHA and other federal acts, there is not even a theoretical requirement for full coverage of health care provided outside of the ambit of hospitals and physicians. Some provinces provide such services for some populations, but private funds are necessary to fulfil many persons’ health care needs, particularly outside the hospital and physician settings. For instance, the CHA does not require prescription drug coverage. Funding for prescription drugs thus “varies from province to province.”26 Some provincial governments provide supplemental prescription drug insurance,27 but no province includes full coverage for prescription drugs for all persons eligible for the provincial health insurance plan that implements the CHA. Rather, additional prescription coverage is available for particular populations, such as the aged and the destitute in most provinces, through related programs exercising non-CHA–based, avowedly discretionary powers. In Ontario, for instance, the Ontario Drug Benefit Act provides provincial funds

22 “Medically necessary” and “medically required” are not in the “Interpretation” section of the CHA, ibid, s 2. 23 Lahey, supra note 11 at 48. Tis is true even in the face of seeming provincial failures to meet the transfer criteria; Flood & Choudhry, supra note 20 at 17. 24 Auton, supra note 14 at para 32. 25 Ibid at para 33. 26 Lahey, supra note 11 at 18. 27 E.g., New Brunswick’s Prescription and Catastrophic Drug Insurance Act, SNB 2014, c 4 [PCDIA]. For a full, if somewhat dated, overview of provincial plans, see Karin Phillips, Library of Parliament, “Catastrophic Drug Coverage in Canada” (Ottawa, 2016) at 8.

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for drugs for persons aged sixty-five or older, persons on social assistance, and persons who qualify for disability insurance; that province recently extended this coverage to persons under twenty-five, only to then contract it so as to include only those under twenty-four who lack any private insurance.28 The pharmaceutical sector is still generally not publicly funded. As William Lahey succinctly puts it, “access to prescription drugs continues to depend on private means for many Canadians.”29 Private programs, such as employment-related health insurance programs, often fill gaps in coverage. Similar phenomena occur in other health care sectors, such as the home care setting.30 Public funding is available for some, but not all, Canadians, and the terms and extent of

28 RSO 1990, c O.10. See also its attendant regulations. Note that eligibility for the disability and social insurance benefts is specifed in the Family Benefts Act, RSO 1990, c F.2; the Ontario Works Act, 1997, SO 1997, c 25, Sch A; and the Ontario Disability Support Program Act, 1997, SO 1997, c 25, Sch B and incorporated into the Ontario Drug Beneft Act in its second section. For the expansion of coverage for youth, see e.g., Laura Fraser, “Ontario Budget 2017: Free Prescription Drugs for Anyone under 25, A First of Its Kind, Liberals Say” (28 April 2017), online: CBC News . For the subsequent retraction, see the Canadian Press, “OHIP+ to No Longer Give Kids, Young Adults with Private Insurance Free Medication” (30 June 2018), online: Toronto Star . Te most recent webpage notes that the age has been lowered to twenty-four; Ontario, “Learn About OHIP+” (2017/2021), online: . 29 Lahey, supra note 11 at 7. See Colleen M Flood et al., “Universal Pharmacare and Federalism: Policy Options for Canada” (2018) 68 IRPP Study 1, online: Institute for Research on Public Policy , for a detailed and updated overview of the issue (that also advocates universal public health insurance coverage for pharmaceuticals). Even full implementation of the proposed national pharmaceutical coverage plan detailed in the Advisory Council on the Implementation of National Pharmacare, A Prescription for Canada: Achieving Pharmacare for All – Final Report of the Advisory Council on the Implementation of National Pharmacare (Ottawa: Minister of Health, 2019), will maintain signifcant private funding, and as Colleen Flood, “Proposed Pharmacare Plan Is a Diferent Beast from Medicare” Policy Options (14 June 2019), online: Policy Options notes, whether that plan can/will be implemented, and if so, when and how, remains questionable. Te proposed plan explicitly does not intend to be as extensive as “Medicare”; see e.g., Bruce Campion-Smith, “Bill Morneau Downplays a Universal Pharmacare Program” (28 February 2018), online: Toronto Star . Te program’s supplementary nature seems inadequate to ensure universal access. 30 For the relevant Ontario act, see Home Care and Community Services Act, 1994, SO 1994, c 2. For a discussion of the history of dental care coverage in CHA implementation programs, see Carlos Quinonez, “Why Was Dental Care Excluded from Canadian Health Care?” (2013) 1 NCOHR Working Papers Series 1.

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coverage differ across the provinces (though there is general agreement on the importance of providing funding for the elderly and the poor). Private funds fill the gaps in coverage. The mainstream Canadian health care system, then, is a public/tax-financed system in which “public financing, based on taxation revenues, is a defining feature of the health care system,” rather than a social health insurance/ managed competition regime in which “universal coverage for health care” is financed “primarily through mandatory contributions from employers and employees” to insurers or a mixed public/private health care system “in which a private health system fulfills a central role alongside a public system.”31 But private funding continues to be an important component of health care provision in most sectors of the mainstream Canadian health care system. The programs in that system exist on a continuum between full public/tax-financed programs and mixed public/private programs. This further supports the thesis that “Canada has many health care systems.” Yet the fact that all sectors across the provinces share similar structural features justifies analysing all sectors in a single evaluation. I accordingly turn to analyse these programs to determine the extent to which Canada is realizing the right to health care and the extent to which these programs contribute to and limit Canada’s realization thereof.32 The Mainstream Canadian Health Care System Does Not Ensure Access to Many Goods Necessary for a Dignified Existence As discussed in Part I, the pluralist right to health care, as I understand it, first requires that states ensure access to a set list of health care goods that are necessary for a dignified existence. As a starting point, I identify goods that are consistently required by international human rights law; I then address whether they are plausibly understood as required for a dignified existence and use the goods that are plausibly so understood as “core cases”; from these, I analogize to establish a list of goods necessary for a dignified existence. I focus primarily on WHOidentified essential medicines and basic maternal and infant care. I also examine basic primary health care and immunizations, which are also internationally

31 Colleen M Flood & Aeyal Gross, “Marrying Human Rights and Health Care Systems: Contexts for a Power to Improve Access & Equity” in Colleen M Flood & Aeyal Gross, Te Right to Health at the Public–Private Divide: A Global Comparative Study (Cambridge: Cambridge UP, 2014) 1 at 5–6. 32 Te federal government completely funds a series of programs for specifc individuals. Tese programs sometimes rely on provincial programs for implementation. Tese programs are not in the mainstream of care and are only available for specifed populations, so I will not detail them here. I detail two in the next chapter.

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recognized as important, albeit in a more coarse-grained fashion, and which seem analogous in their centrality to living a dignified life in any state. My metrics require that we address whether there is public funding for those goods, the number of people who qualify for the publicly funded programs, what people need to pay for the goods, rates of access to the goods, and any barriers to accessing them in a given nation. The public component of the mainstream Canadian health care system focuses on medically necessary and required hospital and physician services; it is not designed to guarantee universal coverage for health care provided outside hospital and physician settings. This means the system specifically does not aim to provide the goods necessary for a dignified existence outside those settings. While some goods and services are provided to marginalized/vulnerable populations through supplementary programs, many persons are required to pay for the goods necessary for a dignified existence and may be unable to do so. The public component of the mainstream health care system may not cover all necessary services even in hospital and physician settings, and the lack of coverage for goods outside those settings clearly undermines Canada’s provision of the goods necessary for a dignified existence. Even in the hospital and physician context(s), there is no guarantee that all goods necessary for a dignified existence will be publicly funded in Canada. Provincial discretion regarding what to cover can limit coverage of, and indeed access to, such goods in the mainstream system. The CHA places some minimum requirements on provinces’ service provision. Provinces must meet federal transfer criteria in order to receive federal funding,33 but the provinces maintain discretion on a variety of issues. For instance, CHA transfer payments are conditional on provincial plans entitling all of the province’s “insured persons … to the insured health services provided for by the plan on uniform terms and conditions.”34 Yet the criteria for being an insured person are subject to provincial discretion. Residency requirements are an example of the provinces’ authority to determine eligibility for insurance. For instance, in Ontario, people generally must reside in Canada for three consecutive months before qualifying as residents.35 Provinces also maintain discretion as to which goods count as insured health services. The CHA does not define what is medically necessary or medically required, and this

33 CHA, supra note 3, s 7f. 34 CHA, ibid, s 10. 35 HIA – ON, supra note 15, s 11; General, RRO 1990, Reg 552, s 5(1) [Reg 552]. For complications and exemptions, see ss 5(2), 6–6.3. Further requirements appear in ibid, ss 1.2–1.14.

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gives the provinces latitude when it comes to what they cover.36 Provinces can delegate representatives to decide what medically necessary and medically required goods are insured in their respective health care systems. It is open to the provinces not to cover goods necessary for a dignified existence even in hospital and physician services settings if they can make a good faith and reasonable argument that such goods are not medically necessary. The federal government remains reluctant to exercise its discretionary powers to withhold federal transfer funds,37 so the provinces feel little actual pressure not to adopt government-friendly definitions of “necessity” or “requirement.” Provinces can use those definitions to justify not publicly funding the provision of dignity-enhancing goods. There is then some question of who can access the system and secure medically necessary and required hospital and physician services therein. Canada theoretically provides universal access to its health care system, but data on actual coverage are lacking. The CHA and its provincial enabling statutes require publicly funded health insurance coverage for all residents of Canada.38 Every resident of a Canadian province should be eligible for public health insurance and for his or her fair share of the goods covered by the program. This on-paper commitment to universal access led Lahey to suggest that “Canada does not have a population of people without any health insurance.”39 Yet quantitative data confirming that this is the case are lacking.40 Moreover, eligibility requirements amount to a barrier to access for many. Again, residency requirements provide an example. Public health care coverage is dependent on residency in a Canadian province, which may be dependent on another type of legal status that is difficult for many to obtain.41 This alone presents a barrier to the system for many new immigrants, including those who otherwise would easily clear immigration hurdles. It can bar access to services for

36 Tis is clear from the text of the relevant legislation. See also Colleen M Flood & YY B Chen, “Charter Rights & Health Care Funding: A Typology of Canadian Health Rights Litigation” (2010) 19 Annals Health L 479 at 479; Nola M Ries, “Charter Challenges” in Downie, Caulfeld & Flood, supra note 11, 615 at 616. 37 Lahey, supra note 11 at 48; Flood & Choudhry, supra note 20 at 17. 38 CHA, supra note 3. For the implementing legislation, see note 15. 39 Lahey, supra note 11 at 24. 40 Te limited, dated data on immigrant coverage does suggest that those who secure legal status in Canada gain coverage shortly afer the three-month period; see Statistics Canada, Housing, Family and Social Statistics Division, Longitudinal Survey of Immigrants to Canada: Process, Progress, and Prospects (Ottawa: Minister of Industry, 2003) at 21. But more robust data are lacking and barriers to access remain. 41 See e.g., Irshad (Litigation Guardian of) v Ontario (Minister of Health), 55 OR (3d) 43; 197 DLR (4th) 103; [2001] OJ No 648 (QL) (CA).

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new immigrants who cannot afford the services they require during, say, their first three months in the province. New immigrants are a population without mainstream public health care coverage in Canada. They may not be eligible for the supplementary programs outlined in chapter 7, and they may not be able to afford private health care. This undermines access to the goods necessary for a dignified existence.42 Outside hospital and physician services settings, coverage of many goods that are arguably necessary for a dignified existence is discretionary and nonuniversal, undermining rights realization. The SCC has ruled that the CHA and the provincial acts that implement it do not provide a “benefit” of non-“core” goods in any context.43 Provincial discretion regarding which non-essential services to cover in the hospital and physician context and where to cover services outside those contexts limits coverage. Provinces retain the discretion not to cover necessary services outside of hospital or direct physician care. For instance, Ontario’s key provision on insured services states that services are insured “only if they are provided in or by designated hospitals or health facilities” and “provided to insured persons in prescribed age groups.”44 Many WHO-identified essential medicines are commonly offered as prescription (e.g., lorazepam) or over-the-counter (e.g., ibuprofen) medicines.45 Provincial discretion outside the hospital and physician services context can allow some WHO-identified essential medicines to go uncovered throughout a province. Insulin is just one example of an essential medicine that “is not consistently funded” across the country.46 Some groups receive coverage for some of these essential medicines through other programs, but even those programs only cover prescription drugs listed on provincial formularies and purchased within the province of coverage from a pharmacy or specified health care provider. The Ontario Drug Benefit Program, which has expanded coverage for persons younger than sixtyfive who live in long-term or special care homes or are enrolled in certain social assistance programs (or special programs for those with high health care costs

42 Te application process for new immigrants presents another barrier to access even in the simplest cases. Where residency requirements depend on legal status in the country, immigration laws present barriers for some. 43 Auton, supra note 14 at e.g., paras 36–44. 44 HIA – ON, supra note 15, ss 11.2(3)-(4). 45 World Health Organization, “WHO Model List of Essential Medicines: 21st List (2019)” (2019), online: World Health Organization . As noted in previous chapters, one may debate whether certain over-the-counter items are even medicines, but a wide variety of prescription and over-the -counter WHO-identifed essential goods are clearly medicinal. 46 Colleen M Flood, “Conclusion” in Colleen Flood, ed, Just Medicare (Toronto: U Toronto P, 2006) 449 at 449 [Flood, “Conclusion”].

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relative to their needs), is an example.47 Lahey’s point about most Canadians’ reliance on private funds for access to pharmaceuticals remains true:48 A 2015 study noted that “36% of Canada’s prescription drug costs are [now] funded through private insurance plans … and 22% are funded out-of-pocket by patients.”49 Little has changed since. These required private expenditures count against Canada’s essential goods score. There is also a non–rights-based reason to question this lack of coverage: limiting coverage to members of particular groups cannot be economically justified.50 The extent to which a proposed federal plan to expand public funding for some pharmaceuticals will improve these scores even if it is implemented remains the subject of debate.51 Medicines are not the only goods that are arguably necessary for a dignified existence yet are not covered by the public component of Canada’s mainstream health care system. As Alana Klein notes, “Canadians are relying increasingly on services that fall outside the ambit of the [CHA’s] user fee ban, such as mental health care, palliative care, post-acute care, home care and pharmaceuticals.”52 Whether these goods must be covered as a matter of morality or international law is less clear than for the essential medicines case. But at least some of them plausibly qualify as goods necessary for a dignified existence and/or essential

47 See e.g., Government of Ontario, “Get Coverage for Prescription Drugs” (2019), online: Government of Ontario for more details on that program. Tat program does allow for some coverage for goods outside the formulary through the Exceptional Access Program. As noted in note 29, persons under the age of twenty-four now also receive limited prescription drug coverage in Ontario – but only if they do not already have private health insurance, a retraction from earlier coverage under same. 48 Lahey, supra note 11 at 7. 49 Steven G Morgan et al., “Estimated Cost of Universal Public Coverage of Prescription Drugs in Canada” (2015) 187(7) CMAJ 491 at 491–492. 50 Te common governmental concern with cost that justifed limiting coverage to members of those groups does not always withstand scrutiny. For instance, universal publicly funded provision of World Health Organization–identifed essential goods in Canada would decrease health care costs in Canada. Universal coverage of essential medicines not currently covered outside of the hospital and physician care contexts would save “$4.27 billion per year … for patients and private drug plan sponsors, at an incremental government cost of $1.23 billion per year”; Steven G Morgan et al., “Estimated Efects of Adding Universal Public Coverage of an Essential Medicines List to Existing Public Drug Plans in Canada” (2017) 189 CMAJ E295 at E295. See also Michael S Taglione et al., “Development of a Preliminary Essential Medicines List for Canada” (2017) 5(1) CMAJ Open E137. Tere is little to suggest that Canada has reason to limit its realization of this component of the pluralist right to health care. 51 Recall note 29, and see the burgeoning commentary on the sources in same. 52 Alana Klein, “So Long as You Have Your Health: Health Care Distribution in Canada and Proceduralist Human Rights” (2012) 30 Windsor Yearbook of Access to Justice 247 at 249–250.

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goods per the definition(s) in Part I.53 Many mental health services seem necessary insofar as basic mental health is required for one to be able to have a reasonable prospect of success in his or her pursuit of his or her own conception of the good. National mental health care strategies have been developed in the past but have never been fully implemented.54 A patchwork of coverage remains. Other health care goods identified by Klein could also qualify. Despite some public support for dental care coverage, dental services – which Klein does not mention – could fit a broad definition of “essential”; yet they are not generally covered outside the hospital setting in the public component of the mainstream system.55 Provinces are not required to fully cover any of these potentially essential or dignity-enhancing goods to receive federal transfers, and there is no general federal program available to even a majority of Canadians that fills the gaps in coverage for these essential goods. Canada’s mixed public/private funding of health care outside hospital and physician services settings, then, has resulted in a lack of universal coverage for all goods necessary for a dignified existence. In practice, private funding requirements have undermined access to such goods. Despite these deficiencies, the mainstream Canadian health care system ensures coverage for many goods necessary for a dignified existence, particularly in the hospital and physician service context. Whatever its failings, the public component of Canada’s mainstream system covers many essential goods. Coverage varies from province to province, but essential medicines provided through physician or hospital care are usually covered. So too is hospital- and physician-based basic maternal and infant care. I am unaware of problems securing access to treatment for basic infections or diseases such as HIV/AIDS in those sectors. These facts count in favour of Canada’s essential good scores. Immunizations are generally good candidates for essential goods,56 so Canada’s high vaccination rates count in its favour.57 Vaccines can be provided by physicians and are then often covered by CHA-implementation regimes. 53 See chapters 3 and 4. 54 See the discussion of the Mental Health Commission of Canada’s ongoing attempts elsewhere in this chapter. 55 For a dated but representative survey, see Carlos R Quinonez & David Locker, “Canadian Opinions on Publicly Financed Dental Care” (2007) 98(6) Canadian Journal of Public Health 495. 56 Stephen P Marks & Adriana L Benedict, “Access to Medical Products, Vaccines, and Medical Technologies” in Jose M Zuniga, Stephen P Marks & Lawrence O Gostin, eds, Advancing the Human Right to Health (Oxford: Oxford UP, 2013) 305. 57 Te child vaccination rate in Canada for diphtheria, tetanus, and pertussis in particular in 2018 was 91 per cent; Organisation for Economic Co-operation and Development, “OECD Health Data: Health Care Utilisation: Child Vaccination Rate” (2015), online: Organisation for Economic Co-operation and Development . Tis shows considerable growth since the late 1980s, when the rate was between 85 and 87 per cent; Organisation for Economic Co-operation and Development, “Health

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On paper, then, Canada has realized one part of the first component of the pluralist right to health care: the one related to essential goods. This likely (partly) explains some of Canada’s good scores on health-outcome metrics. Canada is, historically, placed above the regional and global averages in life expectancy at birth and age sixty and in healthy life expectancy at birth.58 Its under-five mortality rate, maternal mortality ratio, and male and female adult mortality rates are well below regional and global averages.59 Canada’s system thus furthers substantive rights realization. However, data are limited regarding whether individuals actually do access even the essential goods to which they are entitled. The aforementioned high immunization rates suggest that access to these services is strong. Yet details on actual access to immunizations are scarce. The same problem applies to essential medicines. Statistics Canada and the Canadian Institute on Health Information join the WHO in silence on Canada’s essential goods access rates. The limited data available suggest that many Canadians face structural barriers to primary health care and maternal and infant care. Most famously, Canada clearly fails to ensure that all persons can access primary health providers. Per the most recent survey, 14.5 per cent of Canadians aged twelve and over do not have a regular medical doctor.60 Access can be particularly poor for some marginalized/vulnerable populations. For instance, a reasonably recent commentary on the Canadian health care system described access to family physicians and to primary care as a “major issue across Canada” and noted that most seniors cannot get an appointment within twenty-four hours of requiring one; this has led to continued use of hospital services by seniors.61

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Care Utilisation: Immunisation” (2015), online: OECD Stat Extracts . Yet it is below the 96 per cent rate found in 2013. Te 90 per cent rate for measles vaccinations (which was consistent in both 2013 and 2018) is also well above 1980s rates, but is also the lowest rate in Canada since 1989; ibid. Te Hepatitis B vaccination rate has been at 70 per cent or above since 2011, a marked increase from 56 per cent in 2010 and especially the 14per cent of 2007; ibid. World Health Organization, “Canada: Health Profle” (2015), online: World Health Organization . Te OECD tool in the previous note provides more recent information on these data that confrms that trends continue. Ibid. Te average annual percentage change in the ratio suggests minor retrogression at the most, but this data is not overwhelming. A recent report on maternal mortality rates is silent on Canada’s progress or regression; World Health Organization, Department of Reproductive Health and Research, Trends in Maternal Mortality: 2000 to 2017: Estimates by WHO, UNICEF, UNFPA, the World Bank and the United Nations Population Division (Geneva, 2019) at 37. Statistics Canada, “Primary Health Care Providers, 2019” (2020), online: Statistics Canada . Yves Bergevin et al., “Transforming Regions into High-Performing Health Systems toward the Triple Aim of Better Health, Better Care and Better Value for Canadians” (2016) 16(1) Healthcare Papers 35 at 37–38, 40–43.

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It is especially difficult to provide primary health care in remote communities in northern Canada. The difficulties can have an especially strong impact on Indigenous Canadians: the plain fact of geography has helped render particular Indigenous communities marginalized/vulnerable. While Indigenous service users in the Northwest Territories are generally happy with the primary health care provided there, Indigenous persons in remote northern communities face a variety of barriers to care, including an inadequate number of full-time service providers and the distances between residences and those providers.62 The Non-Insured Health Benefits Program is meant to remedy these issues by providing funds for transportation.63 Yet inequitable access to primary health care persists: stakeholders in the North suggest that reliance on expensive air travel is contributing to poor access to care.64 The barriers to care arising from Canada’s geography have not been overcome by existing programs. Even where persons have access to primary health care providers, not all persons access the same levels of health care. For instance, studies suggest that low-income, urban, and immigrant populations in Ontario are more likely to receive services under the traditional fee-for-service model – rather than a newer “medical home” model whereby persons can receive care for a variety of ailments for a single fee per visit – than other populations. As a consequence, they receive poorer-quality primary health care.65 Low Canadian maternal and infant mortality rates suggest that specialized care for pregnant women, new mothers, and infants is better in Canada than in many other countries. Access to maternal and infant health care likely benefits from the variety of health care professionals who can provide these services, including family physicians, obstetricians, midwives, and nurse practitioners.66 “Skilled birth attendants” are accessible for most births. Access to prenatal care for persons insured under the mainstream health care system is also nearly

62 See e.g., Tim Michael Oosterveer & T Kue Young, “Primary Health Care Accessibility Challenges in Remote Indigenous Communities in Canada’s North” (2015) 74 International Journal of Circumpolar Health 1. 63 See chapter 7. 64 Oosterveer & Young, supra note 62 at 4. 65 Tara Kiran, Alexander Kopp & Richard H Glazier, “Tose Lef Behind from Voluntary Medical Home Reforms in Ontario, Canada” (2016) 14(6) Annals of Family Medicine 517. A related study found an income gap in access to cancer-screening tests, before and afer the reforms; Tara Kiran et al., “Efect of Payment Incentives on Cancer Screening in Ontario Primary Care” (2014) 12(4) Annals of Family Medicine 317 at 322. 66 See generally, Canadian Institute for Health Information, Giving Birth in Canada: Providers of Maternal and Infant Care (Ottawa, 2004) [CIHI], a dated but still useful text.

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universal.67 I am not aware of a Canadian jurisdiction that does not publicly fund emergency obstetrical care. Canada is not viewed as deficient in the provision of such care.68 Yet some systemic issues may undermine access to maternal and infant health care. For instance, the length of post-partum hospitalization declined in the late 1990s and early 2000s.69 Some studies suggest that this has increased the rate of readmissions for common illnesses, including jaundice and dehydration.70 Women were instead encouraged to attend early outpatient appointments,71 which may present a challenge to new mothers. Access to services that would minimize readmissions was thus suboptimal at the time of the last major report: subsets of the Canadian population were particularly disadvantaged when it came to accessing general maternal and infant care as the number of rural Canadian hospitals providing obstetrics care declined, forcing many Canadian women to travel outside their communities for adequate perinatal care.72 This lack of service providers in a given geographic area presented a systemic barrier to services. This issue has not been fully remedied. Available data suggest that access to several clearly essential services is lacking. Data on the rates of access to the goods selected for coverage are lacking. Persons who require insured services should theoretically receive them, but the precise rates at which those who need the goods – be they vulnerable, marginalized, or otherwise – can access them is largely unknown. I can nonetheless identify clear barriers to accessing even insured services in Canada. These undermine the system’s universality. For instance, Ontario’s insurance entitlement is “subject to such conditions and co-payments as are prescribed.”73 This nuancing of the entitlements in the provincial program leaves open the possibility of co-payments as a possible barrier to goods to which one would otherwise be entitled. These barriers can exist in the absence of fees for insured services, which are barred by the CHA (though such fees are a barrier to assessing essential goods that are not currently covered for most publicly funded health care program users). For instance, co-payments are required for “accommodation

67 Karline Wilson-Mitchell & Joanna Anneke Rummens, “Perinatal Outcomes of Uninsured Immigrant, Refugee, and Migrant Mothers and Newborns Living in Toronto, Canada” (2013) 10 Int J Environ Res Public Health 2198. 68 E.g., no report citing data on maternal health or Canada’s socio-economic rights bona fdes cited in this work highlights access to emergency obstetrical care as a particular problem in Canada. 69 CIHI, supra note 66 at 23. 70 Ibid. 71 Ibid. 72 Ibid at 19–20. 73 HIA – ON, supra note 15, ss 12(1).

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and meals [required by a patient who] requires chronic care and is more or less permanently resident in a hospital or other institution.”74 These expenses can present a barrier to accessing the in-hospital insured services patients require and that the mainstream health care system claims to provide for free at the point of service. Barriers can even apply to essential goods. The concern about rural health care services in the maternal and infant care context also generalizes. A lack of adequate service providers can be a barrier to accessing goods that are supposed to be covered. Even when a fair process selects the correct goods, barriers to access may undermine access to them. CHA-implementation regimes often correctly select essential goods only to leave barriers to accessing them in place. Canada, then, universally covers essential medicines necessary for a dignified existence if and only if they are provided in a hospital or physician setting, but many are assigned outside those contexts, undermining the provision of care. Discretionary supplemental programs do not consistently provide drug coverage for all Canadians. The public component of the mainstream health care system generally funds maternal and infant and some primary health care, which is arguably necessary for a dignified existence. Yet greater transparency regarding whether Canada actually provides any of these goods necessary for a dignified existence would be useful. The few clear indicators available to us do not paint a rosy picture of primary health care provision. Access to maternal and infant health care seems to vary across populations, and available data suggest that new mothers generally do not receive hospital stays that are long enough to limit readmissions. The lack of coverage for other plausible-candidate essential goods is a potential failure in Canada’s realization of the right to health care. The current absence of a national “Pharmacare” policy, one that would require coverage in all provinces or provide coverage for all through a supplemental federal program, and the failure of mental health strategies to gain political traction and realize their potential, are two obvious other failures in Canada’s realization of the substantive right. If the federal government implements a national Pharmacare program as planned, this will count in its favour and improve its score.75 Yet there are questions about whether that program can be implemented, and even a fully implemented plan will leave room for improvement (e.g., less reliance on private funds, more goods on the formulary).76 If and when that program is implemented, its implications for Canada’s right to health care score will remain unclear until it has been subjected to accountability for reasonableness

74 Reg 552, supra note 35, s 10. 75 Again, see note 29 for relevant sources on this potential forthcoming development. 76 Ibid.

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and systemic analyses. Until the program is implemented, I can only subject the mainstream system to those analyses. The Mainstream Canadian Health Care System Fulfils Some, but Not All, Aspects of Accountability for Reasonableness There are, then, deficiencies in the mainstream Canadian health care system’s ability to fulfil substantive components of the right to health care. There are also issues with its ability to fulfil the procedural component of the right. The public component of the mainstream Canadian health care system fulfils some aspects of Daniels and Sabin’s accountability for reasonableness framework, which I adopt as my primary source of metrics for realizing the procedural component of the right to health care. It does not fulfil any criterion (transparency, acceptance/acceptability, or reviewability) completely. The legal system regulating the mainstream health care system has only a few of the features required by the accountability for reasonableness framework.77 First, Canadian health care decision-making is insufficiently transparent. The reasons for decisions on what health care goods are covered in a province are generally not publicly available. Committees that decide what is covered under provincial health insurance regimes generally do not need to provide reasons for their decisions, let alone make them public,78 and do not exercise discretion to provide such reasons. To the extent that the underlying principles for these decisions are public, the principles are too coarse-grained to provide proper accountability. Recall that “medically necessary” and “medically required” remain undefined in the relevant legal materials. This places a black box around the details of decision-making. Attempts to open the general black box on decision-making by offering “key guiding principles” for decisionmaking failed: the principles were undefined and the black box remained shut.79 While requiring reasons for every coverage decision on an item-by-item basis 77 Parts of the following appear in Michael Da Silva, “Medicare and the Non-Insured Health Benefts and Interim Federal Health Programs: A Procedural Justice Analysis” (2017) 10(2) McGill J of Law and Health 101. Te present text modifes and updates the work in that earlier analysis, which did not touch on other parts of the right. 78 E.g., Ontario legislation establishes rules for the composition of the Physician Services Committee but does not suggest that the committee needs to provide reasons for action under those powers; HIA – ON, supra note 15. Te only clear exception is that denial of particular claims for coverage by the General Manager of the health insurance regime must be reported to the Ministry of Health and the report must include an account of the grounds for that decision; these decisions do not explicitly need to be made public; ibid, s 25. 79 Colleen M Flood & Michelle Zimmerman, “Judicious Choices: Health Care Resource Decisions and the Supreme Court” in Jocelyn Downie & Elaine Gibson, eds, Health Law at the Supreme Court of Canada (Toronto: Irwin Law 2007) 25 at 27–28 at 30.

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is too demanding, a system that leaves its principles for decision-making undefined and that does not provide general reasons for decisions fails any acceptable reasonable-provision standard. Decision-makers in the public component of the mainstream system do not provide reasons for particular decisions or define the key principles that are supposed to guide their decisions and could serve as indicators of the bases for decisions. In some jurisdictions, problems of reason-giving extend to appeals processes. Administrative appeal bodies are not always required to provide reasons for their decisions, and there may be impediments to accessing decisions that are supposed to be public. There have been recent improvements on this front. The rule that administrative decisions must be reasonable or correct (and thus cannot be arbitrary) entails that at least some public decisions must be based on reasons. Yet the circumstances in which these reasons must be publicly available are limited.80 If one takes seriously Daniels and Sabin’s claims that health care is a public good in the domain of distributive justice, the health insurance coverage context is arguably a context in which the provision of written reasons for decisions should be required. So it is heartening that the body charged with hearing appeals in Ontario, the Health Services Appeal and Review Board [HSARB], provides written reasons in many cases despite not being explicitly required to do so. Even so, the fact that health care-related tribunals should provide reasons has not led Canadian courts to require those tribunals to do so.81 Even when the reason-production condition is fulfilled, impediments to the public announcement of reasons may remain.82 Happily, however, recent digitization of appeal decisions in Ontario and Quebec is expanding publicity

80 Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at 848, 174 DLR (4th) 193. Further reason giving requirements were established in e.g., Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. Dunsmuir was also the leading case on the standard of review for administrative decisions until Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Its reason-giving point likely remains valid law. 81 Te circumstances addressed in Baker, ibid are limited, and subsequent case law suggests that the requirement to give reasons may be exceptional rather than a wide-ranging duty for many Canadian tribunals, creating a distinction between the requirements of Canadian administrative law and Daniels and Sabin’s framework. For an overview of cases in which courts recognized and extended their ability to supplement/introduce reasoning where administrative decisions do not include reasons, see Paul A Warchuk, “Te Role of Administrative Reasons in Judicial Review: Adequacy and Reasonableness” (2016) 29 Can J Admin L & Prac 87 at 89–95. 82 E.g., Ontario’s Health Services Appeal and Review Board provides written reasons in numerous cases despite not being explicitly required to provide reasons, but access to the building housing Ontario’s decisions used to be available by appointment only and the fles there were not indexed; Flood & Zimmerman, supra note 79 at 35.

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in those provinces. HSARB decisions are now indexed on CanLII (aka the Canadian Legal Information Institute), an online not-for-profit managed by the Federation of Law Societies of Canada. Initial indexing took place in 2010; digitization of the backlog of decisions continues.83 Quebec’s main administrative tribunal, the site of first instance for insurance decision appeals, similarly maintains an online database of its decisions.84 While indirect reason provision on appeal falls short of the first instance decision-maker reason-giving requirement envisioned by Daniels and Sabin,85 online provision of appeal decisions is a small sign of progress toward transparency in an otherwise opaque system. Next, there are two ways of understanding the second requirement of accountability for reasonableness. It is difficult, though, to determine how Canada fares on either. On one interpretation, the “Relevancy Condition” requires that “the grounds for decisions must be ones that fair-minded people can agree are relevant to meeting health care needs fairly under reasonable resource constraints.”86 Elsewhere, it is formulated such that decisions must be based on “evidence, reasons, and principles that are accepted” by fair-minded people.87 Whether the reasons for decisions need to be accepted or merely acceptable is unclear. This condition could place an acceptance or acceptability condition on the reasons for decisions in a fair process. Lack of transparency makes it difficult to measure Canada on either reading of the acceptance/acceptability criterion. The problem with the first interpretation is that access to reasons is prerequisite for acceptance of reasons. Many Canadians do not accept health insurance coverage decisions. The constitutional challenges in chapter 8 are just one illustration of Canadians showing a lack of acceptance of decisions about health care rationing. Frequent demands for greater long-term care coverage are another. This could be read

83 See https://www.canlii.org/en/on/onhsarb. 84 See http://citoyens.soquij.qc.ca/. Not all jurisdictions provide reasons online. E.g., at last check, Manitoba Health Appeal Board does not post its decisions on its website, http://www.gov .mb.ca/health/appealboard/, or CanLII. 85 A systematic review of these decisions is unlikely to allow one to understand frst-instance decisions, given the limited jurisdiction of the appeal bodies. Even if such a systematic review of appeal decisions could provide insight as to what reasons decision-makers use to decide what is covered under the health insurance regimes of at least two provinces, the transparency requirement would not be met. Te reasons for decisions are supposed to create something analogous to a case law; Norman Daniels & James Sabin, “Limits to Health Care: Fair Procedures, Democratic Deliberation, and the Legitimacy Problem for Insurers” (1997) 26(4) Philosophy & Public Afairs 303 at 327–328. Going to case law to get the reasons gets things backwards. 86 Norman Daniels & James E Sabin, Setting Limits Fairly: Learning to Share Resources for Health, 2nd ed (Oxford: Oxford UP 2008) at 12 [Daniels & Sabin, Setting Limits] (emphasis added). 87 Ibid at 45 (emphasis added).

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as an implicit rejection of the reasons for the decisions, raising weak evidence against Canada’s fulfilment of the “acceptance,” rather than “acceptability,” of the reasons-based version of this requirement.88 But better access to reasons is needed before one can make stronger claims about whether the public accepts them. Even a survey on whether people accept reasons for decisions will require reason provision first. The hypothetical acceptability of reasons used to make decisions about Canadian health care distribution is similarly difficult to parse. Daniels and Sabin structure their analysis around the views of fair-minded people.89 Yet information about who must accept reasons is unhelpful if we do not know what reasons they are being asked to hypothetically accept. While it is reasonable to assume that fair-minded persons could accept that decisions have been made on the basis of what is medically necessary, the threat of arbitrary decisionmaking looms when that term remains undefined.90 Fair-minded individuals cannot accept arbitrary decision-making. They are defined by their commitment to relevant reasons, and arbitrary decisions are, by definition, not based on relevant reasons. If medical necessity is a proxy for political expediency, as scholars worry,91 hypothetical agreement is unlikely. Even if these decisions are non-arbitrary, the medical necessity/requirement criteria do not get one far in the absence of greater definition and precision. Fair-minded individuals are unlikely to agree that appeals to broad concepts that could be used to justify most decisions that decision-makers may make constitute a justification for any particular decision. Absent further specification, “medical necessity” or “medical requirement” is broad enough to be used in this way. The public component of the mainstream health care system fares better on Daniels and Sabin’s third metric, reviewability. The law provides multiple forums for challenges to or appeals from some decisions made in that system. Constitutional law and administrative law provide judicial means of challenging or appealing decisions. Administrative tribunals, including human rights tribunals, also provide non-judicial appeal mechanisms. Ombudspersons present a 88 Americans worry that “the litigious public will accept no limits” on health care provision; Norman Daniels & James E Sabin, “Te Ethics of Accountability in Managed Care Reform” (1998) 17(5) Health Afairs 50 at 58 [Daniels & Sabin, “Ethics”]. I grant that no public will accept all decisions made by a rationing body, but rejections remain weak evidence of nonacceptance. 89 Tey are “people who in principle seek to cooperate with others on terms they can justify to one another … [People who] seek reasons … they can accept as relevant to meeting consumers’ or citizens’ needs fairly under resource constraints”; Daniels & Sabin, Setting Limits, supra note 86 at 44. Elsewhere, Daniels and Sabin suggest that fair-minded people seek cooperation on “mutually justifable” terms; Daniels & Sabin, “Ethics,” ibid at 51. 90 Flood & Zimmerman, supra note 79 at 27 suggest that this threat has been realized. 91 Ibid.

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non-judicial challenge mechanism. The variety of non-judicial formal avenues for challenging or appealing public health care decisions does not undermine the judicial review that is explicitly required by Daniels and Sabin’s system. The judicial and non-judicial systems are supposed to act in concert. Existing appeal boards do not explicitly bar judicial review.92 While ombudspersons promote themselves as alternatives to expensive judicial proceedings,93 they can act in concert with the judiciary. The fact that health care decisions can be reviewed by judges using a reasonableness or correctness standard suggests that the process is designed to ensure reasonableness throughout the decision-making process.94 The existence and consistency of judicial and non-judicial challenge/ review mechanisms establishes Canada’s provision of formal reviewability. Yet the formal remedies for pro tanto right to health care violations in Canadian law and the tools for revising public health care rationing decisions do not fit. The limited jurisdiction of many entities empowered to discharge the relevant laws and the wait times associated with several entities suggest that they may not be tools for the actual revision of challenged decisions required by Daniels and Sabin’s framework. While Canada provides many challenge and appeal mechanisms and thus fulfils part of the reviewability criterion for accountability for reasonableness, only human rights law and ombudspersons appear to consistently meet the substantive demands of reviewability (and then only to a limited degree). Criminal laws barring access to health care goods are invalidated using constitutional law, but constitutional law and several domains of administrative law are otherwise largely ineffective.95 Barriers to accessing challenge or appeal forums may also undermine those forums’ ability to meet Daniels and Sabin’s reviewability criterion. Judicial review can be time-consuming. The SCC recently acknowledged that wait times for decisions in criminal cases have grown unacceptably long.96 Such

92 HIA – ON, supra note 15, s 24; HSIA – MN, supra note 15; Card v Alberta (Minister of Health), 2014 ABQB 763, [2015] AWLD 285, [2015] AWLD, 247 ACWS (3d) 931; HIA – QC, supra note 15, s 54f. 93 See e.g., Le Protecteur du Citoyen, “Roles and Mandates” (2019), online: Le Protecteur du Citoyen [“Roles”]. 94 See Vavilov, supra note 80. Tat case establishes that the reasonableness presumption is the presumptive one. 95 As detailed in chapter 8, the jurisdiction of health care appeal bodies makes substantive change difcult. Tose who go before these boards thus face low rates of success. Judicial review of these cases does not appear to provide greater chances of success. In fact, a lack of formal remedies may produce the best chances of revision. If Quebec’s experience generalizes, then ombudspersons will have the highest rate of successful revision. Per “Roles,” supra note 93, 98 per cent of recommendations provided by that province’s general ombudsperson are accepted. 96 R v Jordan, 2016 SCC 27, [2016] 1 SCR 631.

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waits cause further delays in civil and judicial review proceedings. Wait times in all three contexts are frequent fodder for newspaper articles raising access-tojustice alarms. Even if concerns about trial-level wait times prove unwarranted, some of the wait times at the nation’s highest courts are suggestive of possible timelines facing those who take appeals to the highest level. For instance, by the SCC’s own measures, the average wait time for a decision on an application for leave hovered between three and four months between 2007 and 2017; if leave was granted, it took an average of seven to nine months to receive a hearing, and judgment after the hearing tended to take four to seven months.97 Some wait times for administrative appeal bodies also raise concerns. Human rights tribunals were once notorious for long wait times, and provinces are working to improve those times.98 Health services appeal boards, for their part, vary in the time they take to review cases and provide reasons for their decisions.99 To the extent that formal forums for complaints are available in Canada, it seems that actual access to the boards varies.100 The presence of a variety of challenge or appeal challenge mechanisms, then, counts in favour of Canada’s legal regulation of health care, but the prospects for substantive change appear dim in many cases, undermining Canada’s claimed success. Precise datasets for rate of access and for success (e.g., how many claims are made in a year, how many succeed in each forum) are incomplete.

97 Supreme Court of Canada, “Average Time Lapses,” online: (2018) . Even then, less than 4 per cent of cases between 1995 and 2000 dealt with health issues; Angela Campbell, “Pathways to and from the Supreme Court of Canada for Health Law Litigants” in Downie & Gibson, supra note 79, 365 at 371. Tere is little indication that anything has changed since. 98 See e.g., Andrew Pinto, Report of the Human Rights Review 2012 (Toronto: Queen’s Printer for Ontario, 2012), online: Attorney General of Ontario . 99 Compare HIA – QC, supra note 15, s 18.3; Health Professionals Appeal and Review Board, Health Services Appeal and Review Board, Transitional Physician Audit Panel, and Ontario Hepatitis C Assistance Plan Review Committee, Annual Report: 2012–2013 (Toronto, 2013) at 68 at 1, 6; and Manitoba Health Appeal Board, Manitoba Health Appeal Board – Annual Report 2013–14 (Winnipeg, 2014) at 22. Newer reports show similar variance. 100 Calls for a better “safety valve” for health care allocation decision-making thus focus on appeal mechanisms as a site for reform. E.g., Caroline Pitfeld & Colleen M Flood, “Section 7 ‘Safety Valves’: Appealing Wait Times within a One-Tier System” in Colleen M Flood, Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: Te Legal Debate Over Private Health Insurance in Canada (Toronto: U Toronto P, 2005) 477 focuses on constitutional law, but note that the court in Chaoulli v Quebec, [2005] 1 SCR 791, 2005 SCC 35 and a report released not long before that judgment, Te Standing Senate Committee on Social Afairs, Science and Technology (Michael J Kirby, Chair), Te Health of Canadians – Te Federal Role: Time to Act (Ottawa: Government of Canada, 2003), both highlight the importance of appeal mechanisms for constitutional legitimacy.

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The Mainstream Canadian Health Care System Does Not Have All the Systemic Elements Demanded by the Pluralist Right to Health Care Canada, then, fulfils parts of the first two components of the right to health care but does not realize either fully. The same is true of the third, systemic or “structural” component of the right. This component requires a national health care system and policies, both of which must include data collection and reasons based on collected data as well as opportunities for the public to participate in the development of health care strategies and policies. Canada has a functioning health care system and some policies, recordkeeping, and opportunities for participation. But Canada’s federalism-compliant health care system does not fully meet the demands of the systemic component of the right to health care. Its health care system is not national and, partly as a consequence, fails to secure other components of the right. National health care policies with proper recordkeeping are lacking. As already detailed, too many decisions in the public part of the mainstream system are not clearly grounded in proper reasons. More opportunities for participation could help better fulfil this component of the right. I will address each point in turn. Canada does not have a national health care system as required by international human rights law and the pluralist right to health care. It is attempting to overcome this deficiency, and there is some reason to overlook this criterion in the Canadian case, but the lack then raises further issues. While Canadian federalism precludes a truly national health care system, the CHA’s transfer regime counts as a national response to some health care needs. The CHA’s focus on hospital and physician services keeps it from being a comprehensive national health care system, but the provinces’ implementation plans exist within a CHA framework that forces them to share structural features and thereby jointly constitute something resembling a national health care program for hospital and physician services. The CHA purports to set out the purpose of Canadian health care policy.101 All provinces must cover medically necessary or required goods in those sectors and provide the goods they cover using a system that applies to all insured persons on uniform terms and conditions. The mainstream system then combines with other health care programs, some of which are detailed in chapter 7, to produce something like a Canadian health care system. The public component of the mainstream system is protected by legislation, which accords with international human rights law preferences (though it is not constitutionally protected, as some would prefer). On paper, the system appears at least quasi-national. Given international human rights law’s purported consistency 101 CHA, supra note 3, s 3.

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with any form of government, there is reason not to apply this right to health care realization metric to federalist states or to excuse non-compliance until it is shown that federalism generally decreases realization of other components of the right. Unfortunately, Canada’s lack of a national health care system is contributing to its broader failures to realize the systemic component of the right to health care, thus undermining the case for excusing failure to realize the national health care requirement. Recall from chapter 3 that the systemic component of the right to health care is partly justified by its instrumental ability to secure the substantive components of the right related to the provision of the goods necessary for a dignified existence as well as the procedural components of the right. Then note the vast differences in what is covered and in discretionary programs across provinces, which keep the mainstream system from even approximating a truly national one. Further note that recordkeeping is diffuse in this system and that provincial governments are not required to keep data or to make it public in the ways demanded by accountability for reasonableness. From all this, it should be clear that Canada’s failure to create a national health care system is a failure to realize the right to health care. Failure to realize the systemic component has partly contributed to failure to realize other components, as one would expect, given the analysis in Part I. Moreover, Canada could have a more national system even under its current federalist structure, so the case for non-compliance from consistency with different forms of government fails. The available tools are not being used to create national standards or a more national system that would better realize this aspect of the right. Provincial discretion should be bounded. Otherwise, the federal government will lack real authority over health care and could end up funding dysfunctional health care systems. Yet the federal mechanisms for ensuring that the provinces stay within their discretion are limited and rarely used. For instance, transfer criteria should limit provincial discretion to the reasonable interpretation of those criteria and bar provinces from instituting dysfunctional systems, and the federal government rarely exercises the discretionary withholding powers it does have.102 The federal government’s reluctance to use its withholding powers to enforce national standards is undermining a national approach to health care provision. Even if we allow that a state does not require a national health care system to fulfil the right to health care or could be excused for failing to fulfil that requirement, Canada’s lack of a national health care strategy inexcusably contributes to its failure to realize the right to health care. The systemic component of the right to health care requires clear policies and recordkeeping on the state’s

102 Lahey, supra note 11 at 48; Flood & Choudhry, supra note 20 at 17.

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ability to fulfil those policies, and in this, Canada again comes up short. Canada more clearly lacks a comprehensive national health care policy. A 2002 report of the Royal Commission on the Future of Health Care in Canada emphasized the need for a national health policy in Canada,103 and this led to the creation of a body designed to produce such a policy: the Health Council of Canada.104 Unfortunately, the Council did not produce a national strategy and was later disbanded. A comprehensive strategy remains elusive. Steps to provide a national strategy on aspects of health care have not fully realized the systemic component of the right to health care. Those steps include a national strategy for a large area of health care that international human rights law explicitly notes is important: mental health. In 2012 the federal government created the Mental Health Commission of Canada (MHCC), funded by Health Canada, after a Senate Standing Committee report identified the need for such a commission.105 The MHCC published the nation’s first national mental health strategy,106 which contained a wide number of recommendations for reform clustered around six “Strategic Directives.” Two of those directives focused on marginalized/vulnerable populations, consistent with the concerns at the core of the right to health care.107 While the report was primarily concerned with mental health outcomes,108 it also demonstrated a clear commitment to greater access to care with its recommendations for increased access to specific health care goods,109 as well as a general commitment to ensuring access to mental health care in primary health care settings,110 the community,111 and elsewhere.112 The national mental health policy was the result of vast public interaction; the report followed consultation not only with researchers, policy 103 Commission on the Future of Health Care in Canada (Roy J Romanow, Commissioner) Building on Values; Te Future of Health Care in Canada: Final Report (Ottawa, 2002) at 51. 104 Ibid at 53–59; Health Canada, “2003 First Ministers’ Accord on Health Care Renewal” (2003) online: Health Canada . 105 For the original Senate Committee report, see Standing Senate Committee on Social Afairs, Science and Technology (Michael J Kirby & Wilbert Joseph Keon, Chairs), Out of the Shadows at Last: Transforming Mental Health, Mental Illness, and Addiction Services in Canada (Ottawa, 2006). Te recommendation for the Commission appears at s 16.1.3. An interim framework was released in 2009; Mental Health Commission of Canada, Toward Recovery & Well-being: A Framework for a Mental Health Strategy for Canada (Calgary, 2009). 106 Mental Health Commission of Canada, Changing Directions, Changing Lives: Te Mental Health Strategy for Canada (Calgary, 2012) [Changing Directions]. 107 Ibid at 11. 108 Ibid at 5. 109 See e.g., ibid at 27, 63. 110 Ibid at 56. 111 Ibid at 60–63 112 E.g., it recommends mental health services in “the youth and adult criminal justice system”; ibid at 49.

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experts, and service providers but also with “thousands of people living with mental health problems and illnesses” and their families.113 Yet it called for even greater public participation in Canadian mental health care,114 thus presenting another area for reform. Note that a national mental health care policy is not a national health care policy. A series of policies could be as comprehensive as a single national health care policy, but as things stand, the extant policies do not cover all relevant aspects of health care. Whether such a series would/could be as effective as a national policy is questionable. Regardless, Canada does not have a national health care policy. Since Canada lacks a national health care policy with self-defined benchmarks and indicators for success, one cannot use its self-defined metrics to assess the extent to which it realizes the right to health care. Canada provides some data that can be used to examine how it is meeting its self-identified mental health care goals, but it is not as extensive as the MHCC envisioned in its initial report. The MHCC lists eight candidate indicators related to the right to health in addition to “potential data sources” for these indicators, each of which is supposed to be kept by the government. These potential sources are of questionable value. Half of them require unavailable data.115 In only two instances are clear data publicly available from MHCC-identified sources, and even then in a less than systematic way: “[i]ncrease in the proportion of people with mood or anxiety disorders in the past year who consult a professional” and “[i]ncrease in the percentages of First Nations, Inuit or Métis adults who have access to traditional medicine, healing or wellness practices.”116 Diagnoses of mood disorders among individuals older than twelve have risen consistently since 2009, from 1,812,086 in 2009 to 2,802,000 in 2018.117 Data on how many Canadians consulted health care professionals within a twelve-month period are lacking, but 3,068,942 persons older than fifteen consulted a mental health

113 Ibid at 4. 114 Ibid at 12, 41, 121, 103. 115 Te MHCC suggests that one should measure the “[d]ecrease in the prevalence of aggression, anxiety, and hyperactivity in 5-year-olds” and recommends using the Early Development Instrument to measure this indicator; ibid at 128. Tat instrument is only used at the provincial, regional and local levels. National data are lacking. Data are also lacking for three other suggested measurements: the “[i]ncrease in the life expectancy of people living with severe mental illnesses,” the “[i]ncrease in the proportion of immigrants experiencing emotional problems who are getting help from someone other than a family member or friend,” and “[i]ncrease in the percentages of First Nations, Inuit or Métis adults who have accessed mental health professionals in the past year”; ibid at 129. 116 Ibid at 128–129. 117 Statistics Canada, “Health characteristics, annual estimates” (2018), online: Statistics Canada .

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professional in 2012, the last year data were released.118 This provides a more limited benchmark for non-mood- or non-anxiety-disorder–specific analysis. Also, the First Nations Information Governance Centre, which runs the First Nations Regional Longitudinal Health Survey, provides some benchmarks for future study. It reports that 65.1 per cent of respondents in the most recent survey reported that they did not use traditional medicine.119 This suggests that 34.9 per cent do use it, a decrease from earlier 39.6 per cent and 38.3 per cent usage rates (though 30 per cent reported no interest in using traditional medicine in the most recent survey).120 The more relevant benchmark is the number of users who report barriers or obstacles to “accessing traditional medicine”:121 34.9 per cent reported difficulties in the most recent survey,122 a stark increase from the 23.5 per cent who reported these issues in 2008–10.123 These data were not collected in the 2002–3 survey.124 There are, ultimately, benchmarks for barriers to traditional medicine access (if not for access itself), but no indicators of whether the barriers have persisted over time and no benchmarks/indicators for other traditional practices. Data from non–MHCC-identified sources then fills some gaps in data collection regarding the “[i]ncrease in the percentage of people who report positive mental health” and the “[d]ecrease in hospital readmission rates for mental illness within seven and 30 days.”125 Canada has mixed results on the first datum: while 68.6 per cent of respondents reported positively

118 Statistics Canada, “Mental Health Profle, Canadian Community Health Survey – Mental Health (CCHS), by age group and sex, Canada and provinces” (2013), online: Statistics Canada . 119 First Nations Information Governance Centre (FNIGC), National Report of the First Nations Regional Health Survey – Phase 3: Volume Two (Ottawa: FNIGC, 2018) at 27 [FNIGC 2018]. 120 Compare ibid with First Nations Information Governance Centre (FNIGC), First Nations Regional Health Survey (RHS) 2002/03: National Report on Adults, Youth, and Children Living in First Nations Communities (Ottawa, 2005) at 68 [FNIGC 2002/2003] and First Nations Information Governance Centre (FNIGC), First Nations Regional Health Survey (RHS) 2008/10: National Report on Adults, Youth and Children Living in First Nations Communities (Ottawa, 2012) at 63 [FNIGC 2008/2010]. Only 36 per cent of Métis in a 2006 survey said that “traditional medicines or wellness practices were available in their community”; Statistics Canada, “Aboriginal Peoples Survey, 2006: An Overview of the Health of the Métis Population: Fact Sheet” (Ottawa: Statistics Canada Social and Aboriginal Statistics Division, 2006) at 3. More recent data on Métis-specifc access is needed. 121 FNIGC 2018, supra note 119 at 15–16, 27. 122 Ibid at 27. 123 FNIGC 2008/2010, supra note 120 at 66. 124 FNIGC 2002/2003, supra note 120. 125 Ibid at 128–129.

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in the most recent report, this was a slight decrease from recent norms.126 Increases in the latter are minimal, though readmission numbers are stable.127 Canada, then, does not define indicators and benchmarks for general health care success. Indicators and benchmarks exist in the national mental health strategy, but the suggested sources for data on those indicators and benchmarks are limited at best, which makes it difficult to determine how Canada is faring on many of its self-defined mental health indicators and benchmarks. There has been a slight decline in perceived well-being. Readmission rates appear steady. The best remaining data sources only provide benchmarks for future comparison. Canada ultimately lacks national policies and does not keep adequate records on its ability to meet the self-defined indicators and benchmarks for the success of existing policies. This has resulted in a lack of proper data on which to base decisions within the public component of the mainstream system. This is of a piece with the phenomenon of inadequate reasons and inadequacy transparency of reasons in Canada. Overall, Canada has failed to produce or act on data in the manner required by the pluralist right to health care as set out in Part I. Canada could also provide greater opportunities for public participation in its health care system and the legal regulation thereof. There are few participation forums related to the development and administration of the CHAbased transfer regime. A commission that consulted the public suggested the basic structure of the regime.128 Further studies on how the system is faring have also consulted the public.129 Yet day-to-day decision-making largely does not include public consultation. For instance, the body charged with making physician-based health care allocation decisions in Ontario is not required to have any public members.130 That committee has no non-physicians, and the government appoints all physician members. Half the members are nominated by the Ontario Medical Association, but this consultation with a professional organization hardly constitutes genuine public participation.131 The committee 126 Statistics Canada, “Perceived mental health, by age group” (2019), online: Statistics Canada . 127 Tese data were collected using the Institute’s Health Indicators Interactive Tool, online: Canadian Institute for Health Information . Te results are on fle with the author. 128 See e.g., Virginia A Leary, “Health Care in Canada: Does a Health Care System Based on Shared Values Ensure Respect for the Right to Health?” in Andrew Clapham et al., eds, Realizing the Right to Health, Swiss Human Rights Book, vol 3 (Berne: rüfer & rub, 2009) 472 at 474. 129 Commission on the Future of Health Care in Canada, supra note 103. 130 HIA – ON, supra note 15, s 5. 131 Ibid.

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does not need to consult the public when making its decisions.132 This nonparticipation phenomenon is not limited to Ontario. The committee charged with reviewing what benefits are covered in Alberta likewise does not need to consult the public.133 Only Quebec includes public consultation as part of the process of making appointments to “Regional Health Authorities” and requires public consultation in the creation of annual health plans. Nova Scotia is the only other province with the former participation opportunity, and New Brunswick is the only other province with the latter, and even these opportunities are limited.134 Some argue that Section 7 of the Canadian Charter of Rights and Freedoms, which protects life, liberty, and security of the person, could be used to expand participation in health care decision-making, but this argument is not yet judicially recognized.135 A number of provinces currently limit public participation and even consultation in the development and administration of the public component of the CHA-based mainstream health care system. The public component of the mainstream system’s overarching legal framework offers only limited opportunities for participation in the processes for challenging or reviewing decisions. For instance, the committee that initially proposed a patients’ bill of rights in Alberta’s health care act consulted the public.136 Now, regulations related to the provincial bill can (with few exceptions) only be passed after a period for public comments.137 Similarly, patients and caregivers must be involved in “designing, reviewing and maintaining” Ontario health care organizations’ patient and caregiver complaints processes.138 Despite these developments, public participation in first instance health care decisionmaking continues to be weak. Canada’s Progressive Realization of the Right Is Difficult to Assess and Substantive Progress Appears Minimal The preceding outlined the current state of Canada’s realization of the three components of the pluralist right to health care. Full assessments of states’ right to health care realization requires examination of how realization changes over 132 See e.g., Flood & Zimmerman, supra note 79 at 30. 133 AHCIA, supra note 15, s 37. 134 Klein, supra note 52 at 275–276. At 276, she says that Community Health Councils designed to provide a citizen’s voice in regional planning may be superfcial opportunities for participation. See also 283–284 on participation forums. 135 E.g., Martha Jackman, “Te Right to Participate in Health Care and Health Resource Allocation Decisions under Section 7 of the Canadian Charter” (1995) 4 Health LR 3. 136 Mark Ammann & Tracey Bailey, “Alberta’s Patient Charter: Is It a Course Worth Charting?” (2011) 19(2) Health LR 17 at 17. 137 Alberta Health Act, SA 2010, c A–19.5, s 14. 138 Ontario, O Reg 188/15, s 2.

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time. States should continually expand the number of rights components they fulfil in a process of progressive realization and should avoid deliberate retrogression. Recall that progressive realization comes in two forms. Substantive progressive realization examines whether states are ensuring access to more health care goods that fall under the scope of the right to health care and more structural elements thereof over time (or removing same without warrant). Procedural progressive realization examines whether a state is adding or subtracting markers of procedural fairness from its system and whether it is improving or decreasing access to that (preferably fair) system. Data on substantive progressive realization in Canada are largely lacking. In the absence of a comprehensive list of which goods are covered by the Canadian health care system, it is difficult to identify whether essential goods have been added to the list or, conversely, whether non-essential goods have been removed from the list without warrant and/or have been replaced by other goods. It is hard to even set a baseline with which to compare future coverage lists. Some minimal signs of progress are evident. Provincial legislation providing funding for pharmaceuticals in emergency or catastrophic situations constitutes some progress in the provision of essential goods.139 A proposed federal program could, again, further improve things, but universal coverage for pharmaceuticals remains lacking – and is likely to stay that way even if the federal program constitutes improvement.140 Occasional promises for public funding for other currently uninsured goods that one could argue are essential, such as dental care, remain unfulfilled.141 Substantive progress in right to health care realization appears minimal even where we can identify it. By contrast, procedurally progressive measures in the legal regulation of Canada’s health care system can be identified. Data production improved between 2003 and 2013, let alone the present day, and public reporting requirements for federal transfers that began in 2000 show progress, though the value of these data are contested since not all provinces publish comparable health indicators and federal data focus primarily on wait times, readmission, life expectancy, and similar indicators that are not all right to health care metrics.142 Health care ombudsperson offices have been established in Alberta and Ontario, and this

139 E.g., PCDIA, supra note 27. 140 Again, recall note 29 and commentary on the sources within it. 141 Whether this is a right to health care problem requires argument about dentistry and dignity that I will not open here. I raise dental care only as a candidate essential good that is frequently promised by Canadian politicians. 142 Katherine Fierlbeck, “Introduction: Renewing Federalism, Improving Health Care: Can Tis Marriage Be Saved?” in Fierlbeck & Lahey, supra note 12, 3 at 11, 15. Public reporting on those metrics unfortunately does not increase reason-giving and may not increase transparency about right to health care realization.

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has clearly improved reviewability in those provinces.143 The online forums for health care appeal decisions in Ontario and Quebec constitute progressive steps toward transparency. Still, the provision of public reasons for original decisions about which health care goods are covered needs to be made mandatory (in all relevant Canadian jurisdictions) before the progressive realization of accountability for reasonableness measures can be considered to have reached a point where we can properly gauge acceptability. Where the transparency condition is unfulfilled and the acceptability criterion consequently cannot be properly studied, Canada has yet to make sufficient progress in its fulfilment of the accountability for reasonableness conditions to even complete the accountability for reasonableness analysis. The story of deliberate retrogression in Canada is similarly focused on procedural aspects of the mainstream health care system. The recent history of CHA implementation does not offer many instances of substantive deliberate retrogression. It rarely happens that groups of people are removed from coverage or that individuals are removed from coverage without warrant.144 Large-scale cuts to the list of insured goods are relatively rare. More common is deliberate retrogression of the procedural protections. For instance, HSARB’s jurisdiction was limited in recent years; it can no longer review the constitutionality of laws.145 This minimizes HSARB’s ability to secure procedural justice in health care and makes it more difficult for people to use that tribunal to secure or expand their health care entitlements. This deliberate retrogression in procedural fairness thus serves as a bar to increased access to goods. Data deficiencies, then, make it difficult to apply some progressive realization metrics to Canada. Canada is showing signs of progress in its emergency pharmaceutical coverage, creation of health care ombudspersons, and expanded provision of reasons for health care allocation appeal decisions. But this progress is not extensive, and much remains to be done. Provincial limiting of the jurisdiction and/or disbanding of appeal bodies is deliberate retrogression. Conclusion Canada’s mainstream health care system ultimately realizes some, but not all, aspects of all three components of the pluralist right to health care. The system provides public funding for some goods necessary for a dignified existence and 143 See chapter 8. 144 But see chapter 7 for an example of people being removed from health care coverage outside the mainstream health care system. 145 Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, SO 1998, c 18, Sch H, ss 6(3).

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some other goods selected by the system for all persons who qualify as residents of Canada in some contexts. It also provides coverage for more goods, including others necessary for a dignified existence, for some marginalized/ vulnerable groups in other contexts. But it fails to ensure universal coverage for all goods necessary for a dignified existence in the hospital and physician services contexts, let alone other contexts, and there are questions about whether persons are even able to access the system that should provide the goods that are covered, including those necessary for dignity. The system has some markers of procedural fairness, scoring particularly well on reviewability metrics, but it is insufficiently transparent, and decisions are often made based on reasons that are neither accepted nor acceptable even when they are not opaque. Canada has a health care system, but it is not a national one, does not collect sufficient data or base decisions on those data, and does not ensure realization of the other components of the right. Progressive realization of elements of the right that it has not fully realized is difficult to assess given the transparency concerns and appears minimal. Given the continuing deficiencies in Canada’s realization of the pluralist right to health care and the federal and provincial governments’ continuing reluctance to take measures to improve realization, it is worth examining whether and how public law tools could compel governments to better realize the right. I provide this analysis in chapter 8. First, though, I will examine two other programs to better test Canada’s commitment to components of the right to health care specific to marginalized/vulnerable populations and whether other nonmainstream programs already fill gaps in Canada’s realization of the pluralist right to health care.

Chapter Seven

Vulnerable Populations in Canada and the Pluralist Right to Health Care

Introduction The mainstream Canadian health care system alone, then, does not fully realize the pluralist right to health care. The Canadian federal government also directly manages several group-specific health care programs, which often focus on marginalized/vulnerable populations directly under federal constitutional purview. In this chapter, I apply my right to health care metrics to two of these programs: the refugee and refugee claimant–focused Interim Federal Health Program (IFHP) and the Indigenous persons-focused Non-Insured Health Benefits Program (NIHBP).1 This is the first sustained analysis of the extent to which these programs contribute to health rights realization – or health care justice generally – in Canada. The programs themselves are occasionally studied, but rarely in the detail I provide in this chapter.2 The present study should help determine whether federal health care programs fill the gaps in the

1 Te standard “short form” for the Non-Insured Health Benefts Program is “NIHB,” but I use “NIHBP” for grammatical reasons. I will use “Indigenous persons” or “Indigenous peoples” to refer to the original peoples of Canada wherever possible. Tis term may not be perfectly coextensive with the phrase “Aboriginals,” which appears in the constitution and sometimes, though not always, encompasses “Indians,” “Inuit,” and “Métis.” When referring to technical terms of art in the constitution, such as “Aboriginal rights” and “Aboriginal title,” I will use the word “Aboriginal.” I will attempt to avoid it whenever possible. For more on this issue and on the fact that “Aboriginal” is not a term used outside of Canada and Australia, see Constance MacIntosh, “Indigenous Peoples and Health Law and Policy: Responsibilities and Obligations” in Jocelyn Downie, Timothy Caulfeld & Colleen M Flood, eds, Canadian Health Law and Policy, 4th ed (Toronto: LexisNexis, 2011) 575. 2 Te procedural analysis of the groups I provide in Michael Da Silva, “Medicare and the NonInsured Health Benefts and Interim Federal Health Programs: A Procedural Justice Analysis” (2017) 10(2) McGill J of Law and Health 101 is an exception. I update and expand on that analysis here, though I use some of the same language.

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mainstream Canadian health care system’s realization of the pluralist right to health care and whether Canada prioritizes marginalized/vulnerable populations as demanded by the pluralist right to health care and international human rights law’s instantiation thereof. Insofar as it provides a new collection of data on often overlooked programs and identifies unique deficiencies in the Canadian health care system, it also serves as evidence of how my metrics for right to health care realization go beyond the requirements of existing models and consequently highlight new areas for reform.3 My analysis suggests that the IFHP and NIHBP fill some gaps in Canada’s realization of the right to health care but that deficiencies in realization remain. The IFHP improves Canadian health care’s universalism by covering individuals who are not eligible for funding under Canada Health Act (CHA) implementation programs, provides some essential goods, and is subject to reasonable review procedures. The NIHBP fills gaps in the universalism of the public component of the mainstream system, covers a wide range of essential goods, and appears to be progressively improving in the substantive and procedural senses. But barriers to accessing essential goods remain in both the IFHP and the NIHBP, and neither program fully meets all the demands of Norman Daniels and James E. Sabin’s accountability for reasonableness framework. Canada appears to prioritize marginalized/vulnerable groups by creating additional entitlements to health care goods for members of those groups, but members continue to face barriers to accessing goods to which they are entitled. Programs that provide additional goods create new problems. Canada thus incompletely fulfils the right to health care’s vulnerability-enhancing component. An Introduction to Two Vulnerable Population-Specific Programs: The IFHP and the NIHBP Canada’s constitution grants the federal government authority over and responsibility for “Militia, Military and Naval Service, and Defence,”4 “The Establishment, Maintenance, and Management of Penitentiaries,”5 “Indians, and Lands reserved for the Indians,”6 and “Naturalization and Aliens.”7 While the provinces 3 To its credit, United Nations, Committee on Economic, Social and Cultural Rights, Review of the 6th Periodic Reports: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, 20th Meetings, UN Doc E/C.12/CAN/CO/6, (2016), recognized that proposed cuts to the IHFP below were problematic. 4 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, ss 91(7) [1867]. 5 Ibid, ss 91(28). 6 Ibid, ss 91(24). “Indians” here includes Métis; see Daniels v Canada (Indian Afairs and Northern Development), 2016 SCC 12 [Daniels]. 7 1867, supra note 4, ss 91(25).

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maintain jurisdiction over health care provision generally,8 the federal government’s spending power and powers over specific groups and locations justify several federal health programs. The Correctional Service of Canada provides health care service to federal prisoners.9 Veterans Affairs Canada provides health care benefits to veterans and some members of the armed forces.10 In both cases, the programs fill gaps in the mainstream since Canadian Forces members and federal prisoners are barred from CHA coverage.11 Citizenship and Immigration Canada likewise fills a gap in coverage by providing health care services to refugees, refugee claimants, and other new immigrants “seeking the protection of Canada.”12 The federal government also funds health care services on First Nations reserves and provides on-reserve services in some remote regions.13 The First Nations and Inuit Health Branch of Health Canada

8 Many immigrants, Indigenous persons, and veterans are thus covered by the public component of the mainstream system. Some provinces even historically provided health care to refugee claimants; Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 at para 40 [Refugee Care]. Particular institutions can move from the authority of one level of government to that of the other, as in the controversial case of a Montreal hospital that was moved under provincial authority and then became the subject of a class action lawsuit sourced in claimed inadequacies in care for veterans; e.g., Anne Leclair, “Quebec Superior Judge Authorizes Veteran’s Class Action Lawsuit over Deteriorating Care at Ste-Anne’s Hospital” Global News (20 February 2019), online: Global News . For a critique of the standard view that health care system design and delivery is or should be primarily under provincial authority, see e.g., Sujit Choudhry, “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy” (2002) 52 UTLJ 163. 9 Corrections and Conditional Release Act, SC 1992, c 20, ss 85–89. 10 See e.g., Veterans Afairs Canada, “Health Care Benefts (Treatment Benefts)” (2019), online: Veterans Afairs Canada and its associated links for details. 11 Canada Health Act, RSC, 1985, c C–6, s 2 [CHA]. 12 Te phrase “individuals ‘seeking the protection of Canada’” is a catchall for refugees, refugee claimants, failed refugee claimants, individuals only entitled to a “Pre-Removal Risk Assessment,” victims of human trafcking, or immigration detainees in Refugee Care, supra note 8 at para 60. I adopt that phrasing or the more generic “refugee claimants” when referring to all IFHP claimants. 13 Crown–Indigenous Relations and Northern Afairs Canada, “Indigenous Peoples” (2019), online: Crown-Indigenous Relations and Northern Afairs Canada [CIRNAC]. For a broader list of Aboriginal health-related services funded by CIRNAC (then Aboriginal Afairs and Northern Development Canada) or Health Canada, see the Jordan’s Principle Working Group, Assembly of First Nations, Without Denial, Delay, or Disruption: Ensuring First Nations Children’s Access to Equitable Services through Jordan’s Principle (Ottawa, 2015) at 62 [AFN]. Te federal government can “authorize the use of [reserve] lands” for “Indian health projects” under the Indian Act, RSC 1985, c I–5, ss 18(2). Section 73 grants it the authority to create regulations “to provide medical treatment and health services for Indians.”

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further supplements CHA implementation regimes through the NIHBP by providing health care services that are not insured by provincial insurance programs (e.g., prescription drugs, dental benefits) to (at least) First Nations and Inuit persons.14 Although there are several marginalized/vulnerable groups that one could focus on in this chapter, I will focus on persons seeking the protection of Canada and Indigenous peoples. The history of colonialism and forced migration and ongoing inequities between Indigenous persons and other Canadians in economic and health outcomes render many Indigenous persons vulnerable. Refugees are, by definition, vulnerable. Refugee claimants are also vulnerable, at least in the typical case. Refugees and others seeking the protection of Canada were forced to migrate. They have come to Canada with no guarantee of legal status and often lack the social and economic goods required to thrive here if they attain legal status. The IFHP and the NIHBP are thus good proxies for Canada’s commitment to marginalized/vulnerable populations. The IFHP is, fundamentally, a supplementary program that funds health care services for refugees and others seeking the protection of Canada who do not (yet) qualify for CHA-based insurance in any province.15 Successful refugee claimants secure eligibility for provincial health insurance; other claimants do not. Those uninsured by the provinces include refugees who have applied for refugee status but whose claims have not yet been heard; refugee applicants whose claims have been denied and are awaiting return to their country of origin; and (a variation on the latter theme) refugees whose claims have been denied but who cannot be deported because their countries of origin are deemed unsafe.16 The IFHP is meant to fill this gap. Historically, the IFHP was intended to only provide emergency and essential health care,17 but pre-2012 coverage for all qualified claimants was “comparable

14 See e.g., CIRNAC, ibid; MacIntosh, supra note 1 at 605; Health Canada, Non-Insured Health Benefts Program: First Nations and Inuit Health Branch Annual Report 2018 to 2019 (Ottawa, 2020) [2018]. Recognition of Métis as “Indians” for constitutional purposes in Daniels, supra note 6 has yet to change anything about Métis NIHBP coverage. But Nunavut, for one, remedies this potential issue through a diferent program with the same coverage formulary for Prescription Drugs and Dental Care, albeit with small variations in other coverage and program features; Health and Social Services, “Supplemental Health Benefts: Métis Health Benefts” (2018), online: Health and Social Services . 15 Te IFHP predated the CHA (Refugee Care, supra note 8 at paras 35–36) but now plays this supplementary role. 16 Te process for determining refugee status appears in the Immigration and Refugee Protection Act, SC 2001, c 27 and its attendant regulations. 17 Lisa A Merry et al., “Refugee Claimant Women and Barriers to Health and Social Services Post-Birth” (2011) 102(4) Can J Public Health 286 at 286.

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to that which Canadians receive through provincial health care plans.”18 Furthermore, it went beyond the requirements of the CHA (viz., hospital and physician services) in that it funded some prescriptions, dental care, and psychological services.19 In 2012, the federal government attempted to restructure the IFHP, introducing different tiers of coverage to severely limit obligations to fund health care for refugees.20 Most notably, the tiered coverage denied “funding for life-saving medications such as insulin and cardiac drugs to impoverished refugee claimants from war-torn countries such as Afghanistan and Iraq” and “for basic pre-natal, obstetrical and paediatric care to women and children seeking the protection of Canada from “Designated Countries of Origin” such as Mexico and Hungary.”21 The Federal Court of Canada (FCC) then ruled that these cuts in coverage violated Section 12 of the Charter of Rights and Freedoms’ right to be free from cruel and unusual treatment by “[setting] out to make the lives of disadvantaged individuals even more difficult than they already are in an effort to force those who have sought the protection of this country to leave Canada more quickly, and to deter others from coming here” and, as a consequence, also potentially jeopardizing “the health, and indeed the very lives, of … innocent and vulnerable children.”22 It also held that limiting the coverage of claimants from Designated Countries of Origin to services required for “Public Health or Public Safety” violated Section 15 of the Charter’s right to equality and freedom from discrimination on the basis of national origin by risking the lives of those claimants and perpetuating the stereotype that they were “cheats.”23 Neither rights violations could be justified in a free and democratic society,24 so Orders in Council instituting the changes were deemed to be of no force and effect.25 After a 2015 election, the new federal government

18 Robert Vineberg, “Healthy Enough to Get In: Te Evolution of Canadian Immigration Policy Related to Immigrant Health” (2015) 16 Int Migration & Integration 279 at 294. 19 Te IFHP explicitly provided coverage for “prenatal, contraception and obstetrical care; essential prescription medications; emergency dental treatments; and treatment and prevention of serious medical conditions,” and other services were available with prior approval; Merry et al., supra note 17 at 286. See also ibid at 294. 20 Order Respecting the Interim Federal Health Program, 2012, PC 2012–433, (2012) C Gaz II, 146. 21 Refugee Care, supra note 8 at paras 2–3. 22 Ibid at paras 689–91, relying on Canadian Charter of Rights and Freedoms, s 12, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. Notably, some provinces expanded their insurance coverage for some immigrants or created new temporary coverage in the time between the Order-in-Council and the Federal Court decisions; see Refugee Care, ibid at paras 257–263. 23 Charter, ibid, s 15; Refugee Care, ibid at paras 692–872. 24 Refugee Care, ibid at para 1075. 25 Ibid at para 1116.

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decided not to continue legal proceedings concerning the 2012 cuts. In April 2016, that government restored coverage for all eligible persons to pre-2012 levels. Since that time, eligible claimants have received basic coverage “similar to health-care coverage from provincial or territorial health insurance plans” on a temporary basis, supplemental coverage “similar to the coverage given to social assistance recipients by provincial and territorial governments,” and prescription drug coverage, including “most prescription medications and other products listed on provincial/territorial public drug plan formularies” (though one remaining distinction is that only some categories of claimants receive a diagnostic test required to legally immigrate to Canada).26 The NIHBP supplements provincial programs and federally funded onreserve services by insuring prescription and over-the-counter drugs, dental and vision care, mental health services, and some medical equipment and transportation costs for members of registered First Nations and Inuit groups.27 It provides coverage as a matter of last resort (viz., when the goods or services are not otherwise covered by private health insurance, provincial plans, or other public [provincial] programs). Like the public component of the mainstream system (and the IFHP), the NIHBP reimburses health care professionals for services. Patients should receive NIHBP-covered services for free at the point of service. Indigenous groups claim rights to federal health care provision through the NIHBP and on-reserve health care service programs, reflecting federal obligations under treaty and fiduciary law.28 The federal government grants that it has some duties to fund health care on-reserve but contends that the federal service provision through the NIHBP is discretionary.29 Case law has not yet settled this dispute. More broadly, it is a live question “whether Canada has legal discretion to not address the health care needs of Indigenous peoples.”30 The federal government views its health care programs as valid exercises of its powers, not fulfilments of specific rights. With this background information on the IFHP and the NIHBP in mind, I can apply my right to health care realization metrics to the programs and thereby assess the extent to which the IFHP and the NIHBP, as elements of

26 Citizenship and Immigration Canada, “Interim Federal Health Program: Summary of Coverage” (2017), online: Citizenship and Immigration Canada [“Summary of Coverage”]. 27 See e.g., 2018, supra note 14. For the First Nations registration process, see Indian Act, supra note 13. While that act does not apply to Inuit or Métis, both are subject to similar registration processes. 28 MacIntosh, supra note 1 at 608. 29 Ibid at 608. 30 Ibid at 576.

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the Canadian health care system, contribute to Canada’s realization of the right, including the right’s prioritization of marginalized/vulnerable populations. I will, of course, provide more detail on each program as I discuss its contributions. The IFHP and NIHBP Fill Some Gaps in Essential Goods Coverage for Some Persons, but Barriers to Access Remain The pluralist right to health includes a right to the goods necessary for a dignified existence. The mainstream health care system does not provide universal publicly funded coverage for all such goods. The IFHP and NIHBP are not universal programs and thus do not fill all gaps in coverage in the mainstream health care system. They provide on-paper entitlements to some goods necessary for a dignified existence that persons would be otherwise unable to freely access in the mainstream health care system, but barriers to actual access remain. The IFHP provides persons who would not be eligible for publicly funded health care in the mainstream health care system with publicly funded entitlements to the goods necessary for a dignified existence available in the mainstream system (and to other goods covered by that system). It also creates entitlements to other goods necessary for a dignified existence that are not covered in the public part of the mainstream system. Coverage for prescription drugs and for “supplemental” health care fills holes in essential good coverage that I identified in chapter 6. The list of additional prescription good benefits is limited. Provincial formularies are the main source of standards for prescription drug coverage. Only sixty-three goods appear on the insurance provider’s “IFHP Additional Drug Benefits” list.31 But IFHP users clearly have entitlements to more prescription drugs than mainstream system users, and the IFHP gives people without CHA-based public health insurance entitlements to some dignity-enhancing goods they would otherwise have to pay for completely outof-pocket in circumstances of great vulnerability. More controversially, some dental and vision care and psychological services are arguably required for a dignified existence and fall under supplemental coverage.32 The IFHP thus fills gaps in who is covered by CHA-implementation regimes and grants additional entitlements to eligible persons seeking the protection of Canada. On paper, it helps better realize the right to health care’s minimum content component and commitment to prioritizing marginalized/vulnerable persons. 31 Blue Cross, “Prescription Drug Coverage” (2017), online: Blue Cross . 32 “Summary of Coverage”, supra note 26.

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There are some indications that the IFHP provides greater access to essential services than vulnerable immigrants would receive without any form of insurance, but barriers to access persist. For instance, in one study, “6.5% of uninsured women received no prenatal care at all. By contrast, all insured women [viz., women with Ontario Health Insurance Program, IFHP, or private insurance] received care.”33 But there are also indications that the turmoil from 2012 to 2016 reduced access to the program and the goods therein, and it is not clear whether the program has since rebounded. Fine-grained data on access to goods in the IFHP are difficult to compile. Existing data focus on utilization rates. Publicly available data suggest that the 2012 changes to the program greatly undermined utilization of the IFHP among those detainees and “Public Health [&] Public Safety” users least capable of using the services – the latter of course because they were not permitted to access any service unless they posed a public health risk (e.g., they could seek treatment for a contagious disease but not for cancer).34 More recent data suggest that the 2016 restoration of entitlements to previously barred groups increased access to the program. The total number of program beneficiaries jumped considerably between 2016 and 2018 (from 90,387 to 177,257). So too did the number of persons who were actually able to use the system (from 51,542 to 121,888). Yet these figures are imprecise. It is unclear which goods users are actually accessing. Moreover, the lack of data on pre-2011 entitlements makes it unclear whether the 2016 restoration of previous coverage increased access beyond the level that was already in place prior to attempts to cut that coverage. Even if the IFHP improves access to the goods necessary for a dignified existence, barriers to accessing those goods remain, and the program could better realize the right to health care if those barriers were removed. Prior to the retrogressive changes to the IFHP in 2012, qualitative analyses suggested that stakeholders perceived barriers to accessing health care through the IFHP.35 The return to 2012 levels of coverage did not solve this problem. For instance, a 2008 New Brunswick–based study found that family physicians often did not

33 Karline Wilson-Mitchell & Joanna Anneke Rummens, “Perinatal Outcomes of Uninsured Immigrant, Refugee, and Migrant Mothers and Newborns Living in Toronto, Canada” (2013) 10 Int J Environ Res Public Health 2198 at 2204. 34 Citizenship and Immigration Canada lacks basic data on utilization of the service prior to 2011. Data from Access to Information Requests on fle with the author provides the basis for the claims throughout this paragraph. 35 See e.g., Merry et al., supra note 17; Sonia ter Kuile et al., “Te Universality of the Canadian Health Care System in Question: Barriers to Services for Immigrants and Refugees” (2007) 3(1) International Journal of Migration, Health and Social Care 15. Notably, both studies focus on major metropolitan cities (Montreal in the former and Toronto and Montreal in the latter).

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recognize IFHP certificates as they were unfamiliar with the program or found the paperwork for reimbursement burdensome.36 Some family physicians billed refugees when IFHP reimbursement was delayed, causing considerable stress.37 Administrative hurdles of this type are not unique to New Brunswick. Studies also report cases of people being rejected for care because they have only IFHP coverage.38 Other barriers are not caused by the IFHP, but it seems that neither does the IFHP adequately address them. For instance, the inability to access goods and services that are not themselves essential for a dignified existence can serve as a barrier to accessing essential goods. Lack of interpreters’ services39 and a shortage of “health care practitioners with appropriate knowledge of the refugee experience” are identified barriers to proper care for refugees.40 These barriers exist in both the mainstream health care system and the IFHP. A patient who is unable to understand his or her doctor or to properly explain his or her symptoms may be unable to receive a proper diagnosis and consequent prescription for a good necessary for a dignified existence or to understand how to secure access to goods to which he or she is entitled. Those seeking the protection of Canada face clear barriers to accessing services to which they are entitled through the mainstream health care system or the IFHP. The IFHP on its own fails to remove them. All things considered, these barriers may be justified for a variety of reasons, including Problem of Scope concerns. But, all else being equal, removing them would be rightsimproving insofar as they improve access to essential health care goods. The NIHBP is designed to support access to health care for Indigenous peoples. It provides coverage for those ineligible for provincial CHA-implementation regimes. That coverage meets and exceeds coverage under those programs and secures supplemental coverage for those enrolled in the public component

36 Baukje Miedema, Ryan Hamilton & Julie Easley, “Climbing the Walls: Structural Barriers to Accessing Primary Care for Refugee Newcomers in Canada” (2008) 54(3) Canadian Family Physician 335 at 335. 37 Ibid at 336. 38 Ellen Olive Wahoush, “Equitable Health-Care Access: Te Experiences of Refugee and Refugee Claimant Mothers with an Ill Preschooler” (2009) 41(3) CJNR 186 at 197, 200; Merry et al., supra note 17 at e.g., 290. 39 For an overview of studies, see Fern Brunger, Pauline S Duke & Robyn Kenny, “Matching Physicians to Newly Arrived Refugees in a Context of Physician Shortage: Innovation through Advocacy” (2014) 10(1) International Journal of Migration, Health and Social Care 36 at 47–48. Wahoush, ibid at 197 and M Campbell et al., “A Comparison of Health Access between Permanent Residents, Undocumented Immigrants, and Refugee Claimants in Toronto, Canada” (2014) 16 J Immigrant Minority Health 165 at 172 identifed this problem for immigrants generally. 40 Josephine McMurray et al., “Integrated Primary Care Improves Access to Health Care for Newly Arrived Refugees in Canada” (2014) 16 J Immigrant Minority Health 576 at 578.

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of the mainstream system that provides such persons with additional entitlements to goods necessary for a dignified existence. It thus also fills gaps in who and what the CHA-based public component of the mainstream system covers. The NIHBP increases public funding for and on-paper entitlements to the goods necessary for a dignified existence on narrow and broad definitions of the relevant phrase. For instance, the NIHBP covers a range of prescription and over-the-counter drugs regardless of where they are administered; these include WHO-recognized essential medicines that are clear examples of goods necessary for a dignified existence, such as insulin, ibuprofen, and lorazepam.41 It also covers a variety of more controversial essential goods that could fall under a broad definition of “good necessary for a dignified existence,” such as antihistamines, hormones, contraceptives, vitamins, antidepressants, and antipsychotics.42 The NIHBP’s prescription drug coverage clearly funds some goods that the WHO classifies as essential but that the public component of the mainstream system does not cover outside of the hospital and physician services contexts. The NIHBP’s coverage of many goods that are clearly necessary for a dignified existence, in addition to some candidate goods, supports on-paper realization of the right to health care. The additional entitlements for Indigenous persons in the program are also evidence of some prioritization of potentially vulnerable people in Canada. The NIHBP also covers services required to access essential goods, such as transportation services, so that Indigenous people can access services unavailable in their home communities as needed.43 This eliminates potential barriers to accessing care available in the mainstream health care system and should, in theory, result in greater access to goods. The NIHBP does not, however, fill all gaps in coverage. Most notably, one class of excluded goods under the program can contain goods necessary for a dignified existence. Most of these explicitly excluded goods, namely “antiobesity drugs, household products, cosmetics, hair growth stimulants, and megavitamins,”44 do not easily fit under any definition of “goods necessary for a dignified existence.” But vaccines are also part of this class of excluded goods though they appear necessary for a dignified existence.45 The IFHP’s 41

42 43 44

45

Summary of Coverage, supra note 26; Health Canada, Non-Insured Health Benefts: First Nations and Inuit Health Branch: Drug Beneft List 2019 (Ottawa, 2019) at v, online: Health Canada [DBL 2019]. DBL 2019, ibid. Ibid at iii. Tis language appears in Health Canada, “Provider Guide for Pharmacy Benefts: Non-Insured Health Benefts” (2016), online: Health Canada . See DBL 2019, ibid at viii for a list of excluded goods. DBL 2019, ibid at viii.

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prescription drug coverage only includes goods not covered under provincial health insurance schemes yet recognized as essential, and among these goods are several vaccines.46 This suggests that some vaccines are recognized as essential but not covered by provincial insurance regimes in any location. The IFHP fills this gap in coverage in the hospital and physician settings and in the otherwise largely privately funded other health care provision settings. The NIHBP does not similarly fill that gap, and thus it does not create entitlements to all goods necessary for a dignified existence even on a narrow definition of the term “necessary for a dignified existence” that would not face the Problem of Scope.47 Traditional Indigenous services may, in turn, count as essential goods for Indigenous persons, but not all Indigenous services are covered under the NIHBP. Recognizing that such services may be essential, the Truth and Reconciliation Commission of Canada has called on stakeholders “to recognize the value of Aboriginal healing practices and use them in the treatment of Aboriginal patients … where requested by Aboriginal patients.”48 Transportation to tests and transportation to medical procedures provided by traditional healers are covered by the NIHBP.49 But the procedures themselves may not be covered, particularly where all benefits must be provided by NIHBP-recognized health professionals.50 As with the IFHP, it is unclear whether the NIHBP has resulted in increased access to health care goods for the population in question. Precise numbers are lacking on how many claimants can access goods through the NIHBP. It is unclear whether utilization rates accurately identify whether people can access the goods they require and/or to which they are entitled.51 But rates appear 46 Blue Cross, supra note 31. 47 More controversially, broader defnitions of “goods necessary for a dignifed existence” or “essential goods” may view long-term mental health counselling as essential, but the NIHBP only covers twenty-two hours of sessions each year absent special approval that qualifes as a barrier to care; Health Canada, “Mental Health Counselling Benefts” (2019), online: Health Canada . Te First Nations and Inuit Hope for Wellness Help Line assists with emergency measures. 48 Truth and Reconciliation Commission of Canada, Calls to Action (Winnipeg, 2015) at 3; Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg, 2015) at 209 [TRCC, Summary]. 49 2018, supra note 14. 50 Ibid. See also Health Canada, “Benefts Information” (2019), online: Health Canada and its associated links. 51 Ibid.

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stable over time. The 61 per cent national utilization rate for the pharmacy program from 2018 is the same as the rate of use five years prior.52 We also know that utilization rates vary across Canada.53 National dental utilization rates are at 36 to 37 per cent, but that utilization varies across regions.54 These are limited data for determining whether the NIHBP provides the access to goods it promises, be they essential or otherwise,. The relevant reports do not provide the depth of data necessary to determine whether the right people are able to access all the goods and services to which they are entitled, let alone require, without undue hardship. Utilization rates could simply capture access to a small number of cheap goods; the same users’ inabilities to access greater entitlements would be masked by these statistics. Access rates remain, unfortunately, hidden. As with the IFHP, barriers to accessing health care through the NIHBP clearly persist. The NIHBP does not present the same array of transportationbased barriers as the IFHP. Barriers to accessing services through the NIHBP nonetheless remain. For instance, as with the IFHP, some service providers violate NIHBP policies and charge up-front fees for NIHBP-covered services.55 This undermines the actual access to essential goods that the NIHBP claims to provide. One may argue that these barriers relate to how the NIHBP is being implemented and are not endemic to the program, but the design of the NIHBP introduces further systemic barriers to access. Securing status as an Indigenous person is one such barrier. The Métis, a large segment of the Indigenous population, were not traditionally eligible for services. Recent case law, however, suggests that for constitutional purposes the term “Indian” includes Métis.56 52 Compare 2018, ibid and Health Canada, “Non-Insured Health Benefts Program – 2012/2013 Annual Report Summary” (2014), online: Health Canada [2012/2013 Summary], summarizing Health Canada, Non-Insured Health Benefts Program: First Nations and Inuit Health Branch: Annual Report 2012/2013 (Ottawa, 2014) at 31, 49 [2012/2013]; Health Canada, “Non-Insured Health Benefts Program – 2013/2014 Annual Report Summary” (2015), online: Health Canada [2013/2014 Summary], summarizing Health Canada, Non-Insured Health Benefts Program: First Nations and Inuit Health Branch: Annual Report 2013/2014 (Ottawa, 2015) at 31, 48 [2013/2014]. Tis rate may “understate the actual level of service as the data do not include pharmacy services provided through contribution agreements and benefts provided through community health facilities or provided completely via alternate health coverage”; ibid at 31. 53 Ibid. 54 Ibid. Tese rates face the same issues at those in note 52. 55 Te Canadian Association of Orthodontists actually endorsed a common pay-up-front approach despite the Non-Insured Health Benefts Program barring up-front costs for services; MacIntosh, supra note 1 at 607. 56 Daniels, supra note 6. See also note 14. Note, however, that the “Aboriginal rights” test difers slightly in the Métis case; R v Powley, [2003] 2 SCR 207, 2003 SCC 43.

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Indigenous benefits thus should include Métis. But it is not yet clear whether Métis will qualify for full Indigenous health care entitlements in practice. The purported discretionary status of the NIHBP suggests that its entitlements are not constitutionally required and thus do not need to include the Métis, though again, Indigenous peoples view the NIHBP as necessary. Even if one sets that issue aside, status remains a barrier to access. Among the First Nations, who are the NIHBP’s primary users,57 one must register in a band to qualify as an eligible “Status Indian.”58 The need to exhaust all other sources of coverage before accessing NIHBP coverage is a further systemic barrier to accessing the program. That barrier becomes problematic where there is a dispute between levels of government over whether an individual is qualified to receive services from a given program (e.g., when the NIHBP thinks something is covered by provincial insurance and a province denies that the person in question is eligible for the required good). Other barriers persist even once the last resort barrier is overcome and the NIHBP acknowledges that it should cover the services. There are reports of health care providers, in defiance of the NIHBP’s rules, requiring payment over and above what the NIHBP pays.59 In addition, over-the-counter drugs “require a prescription from a recognized health professional who has the authority to prescribe in their [sic] province or territory.”60 This presents a logistical hurdle for those seeking NIHBP coverage who have limited access to a primary care physician. The IFHP and NIHBP Do Not Fulfil All Procedural Demands of the Pluralist Right to Health Care As discussed in the preceding chapters, Norman Daniels and James E. Sabin identify three markers of a procedurally fair health care allocation decisionmaking process: transparency, acceptance/acceptability of reasons, and reviewability. Reasons for decisions must be publicized, accepted or acceptable to the public, and open to challenge and/or appeal that can result in substantive change. These requirements serve as metrics for analysing the extent to which states realize the procedural components of the right to health care. The IFHP

57 Per 2018, supra note 14, 94.5 per cent of eligible users are First Nations. 58 Te process for registration is detailed in the Indian Act, supra note 13, ss 5–7. Similar distinctions limit access to health care on-reserve services. Tese services are only available to those who live on reserves. Such lodgings require permission from a band, which also must be registered with the Canadian government. See ss 8–13.3, 18–28. 59 See note 55. 60 2018, supra note 14.

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and NIHBP do not achieve perfect scores on any accountability for reasonableness metric. The IFHP has not fared well on the transparency and accepted/acceptable reasons metrics, but it allows substantive reviewability. The issues surrounding the 2012 changes demonstrated problems with the transparency and reasonableness of those decisions. The saga of the proposed 2012 cuts suggests that the IFHP not only makes its decisions without adequate public consultation but also fails to publicize the reasons for those decisions. For instance, beyond suggesting that drugs at the lowest level of coverage are only to be available where they are necessary to “prevent or treat a disease posing a risk to public health or to treat a condition of public safety concern,” the summary of benefits that listed the levels of coverage in the post-FCC decision interim program did not explain why different levels existed or why particular groups of claimants fit into them.61 The opacity of reasons for coverage is sometimes mirrored by opacity with regard to what goods are covered. When the federal government first tried to implement the budget cuts in 2012, doctors were unclear as to which goods were still covered following the supposedly money-saving changes.62 Where the reasons for the proposed cuts to the program were widely criticized by the public (who protested63) and found inadequate to justify rights violations in Canada, the reasons for those changes clearly were not accepted. The IFHP’s coverage was restored to pre-2012 levels in 2016, but transparency issues remain. The government is transparent about its reasons for implementing the program. It states that the purpose of the program is to provide “short term, interim medical care.”64 Yet this is, at best, a severely limited guide to understanding the reasons why certain goods are covered. It explains why certain long-term health interventions are not covered by the program, but it does not explain why certain long-term goods (such as eyeglasses) are covered or how the government decides whether a good that can be provided on a

61 Citizenship and Immigration Canada, “Interim Federal Health Program: Summary of Benefts” (2014), online: Citizenship and Immigration Canada [“Summary of Benefts”]. 62 Merry et al., supra note 17 at 289; Steve Barnes, Te Real Cost of Cutting the Interim Federal Health Program (Toronto: Te Wellesley Institute, 2013) at 6. Te Federal Court of Canada heard similar testimony, including reports that the administrative problems led to doctors requesting up-front payments from or refusing services for people who are qualifed for particular services; Refugee Care, supra note 8 at paras 133–141. 63 See e.g., CTVNews.ca Staf, “‘Day of Action’: Doctors, activists protest refugee health care cuts” CTV News (15 June 2015), online: CTV News , which details protests that continued afer the Federal Court of Canada decision, when the federal government initially refused to restore funding to the Interim Federal Health Program. 64 Refugee Care, supra note 8 at para 50.

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short-term or interim basis will be covered under the program. Likewise, understanding the program as filling the gaps in coverage for non-residents does not explain why the IFHP exists as currently constituted. Such an explanation would only justify coverage equivalent to public coverage in the mainstream. Both rationales are as broad as medical “necessity” and “requirement” and thus as open to interpretation as those reasons for mainstream public rationing decisions, which I earlier argued were insufficiently fine-grained to meet the reason-giving elements of transparency required by health care justice. Given this apparent lack of transparency in the IFHP, it is difficult to even apply the accepted/acceptable reasons metrics to the program. While most would agree that the need for “short term, interim medical care” is an acceptable reason for government action, it is likely too vague to guide specific decisions on what to cover. The same is true of “equivalent coverage for vulnerable non-citizens.” As noted in the last paragraph, neither explains present coverage. With respect to reviewability, the IFHP does not appear to have its own program-specific appeal process, but on the other hand, it does not attempt to further preclude judicial review. One can, for instance, go directly to the FCC for judicial review of a coverage denial and can theoretically invoke administrative law and constitutional arguments in one’s challenge.65 Many Charter rights are not limited to citizens of Canada. There is a small jurisprudence suggesting that all persons physically present in Canada are supposed to be able to make at least some Charter claims.66 In practice, Charter remedies are rarely available for non-citizens.67 The lack of recognition of immigration status as an analogous ground under Section 15 of the Charter is just one reason for this phenomenon.68 IFHP decisions rarely lead to judicial cases.69 Yet the aforementioned challenge to the proposed 2012 changes suggests that constitutional law can, in rare circumstances, help bring about substantive changes to the IFHP.

65 E.g., Toussaint v Canada (Attorney General), 2011 FCA 213 (an ultimately unsuccessful challenge). 66 Singh v Canada (Minister of Employment and Immigration, [1985] 1 SCR 177; Andrews v Law Society of British Columbia, [1989] 1 SCR 143. Catherine Dauvergne, “How the Charter Has Failed Non-Citizens in Canada: Reviewing Tirty Years of Supreme Court of Canada Jurisprudence” (2013) 58(3) McGill LJ 663 questions whether these cases expand the rights as broadly as is ofen assumed. 67 Dauvergne, ibid. 68 Ibid. Toussaint, supra note 65 was largely decided on the analogous grounds question. For more on constitutional law, non-citizens, and health care, see YY Brandon Chen, “Te Future of Precarious Status Migrants’ Right to Health Care in Canada” (2017) 54(3) Alberta LR 649. I return to this point in chapter 8. 69 E.g., a Westlaw search for “Interim Federal Health” unearthed only twenty-two judicial, board, or tribunal decisions, several of which were just diferent-level decisions in the same cases.

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The IFHP, then, lacks program-specific review procedures, and besides that, general coverage decisions rarely receive judicial review. Even so, the major instance of judicial review suggests that there are powerful legal tools for challenging decisions made about the program. However, getting a hearing to make such claims will be a challenge wherever constitutional arguments are necessary. The NIHBP fares somewhat better on the transparency metric. In its annual reports, it provides the criteria it applies when selecting the goods it will cover.70 Thus, every quarter, the program updates the list of drugs deemed necessary for the purposes of the NIHBP.71 Annual reports then explain the types of goods that are covered, set out the program’s guiding principles (including principles on how goods are selected), and state how much is spent providing the covered goods.72 I once had to request these reports from the government, but I can now find them online, which suggests that program transparency is improving over time.73 Oddly, however, a recent report removed its statement of guiding allocative principles, eliminating one of the key elements of the NIHBP’s historically notable transparency.74 Complete annual drug benefit lists are also available online without request and provide more fine-grained reasons for coverage than the general NIHBP annual reports – helping to offset some of the recent reasongiving retrogression. A recent example states that the NIHBP, the Canadian Drug Expert Committee, and the Drugs and Therapeutics Advisory Committee balance several factors when making changes to the Drug Benefit List, such as: • • • • • •

The needs of First Nations and Inuit clients; Accumulated scientific and clinical research on currently-listed drugs; Cost-benefit analysis; Availability of alternatives; Current health practices; and Policies and listings in provincial drug formularies.75

70 2018, supra note 14. 71 DBL 2019, supra note 41 at ix. See also e.g., Health Canada, “Non-Insured Health Benefts – Reports and Publications” (2019), online: HC . 72 See e.g., DBL 2019, ibid. 73 Te one drawback to the electronic reports is that they do not include the page numbers found in the documents I used to receive on request. 74 Cf. 2018, supra note 14; and Health Canada, Non-Insured Health Benefts Program: Annual Report 2016/2017 (Ottawa: Health Canada, 2018) [2016/2017]. 75 DBL 2019, supra note 41 at v.

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It also explains the process for removing goods from the program, including the reasons for doing so.76 While the NIHBP does not explain each of its coverage decisions on a good-by-good basis, it clearly publicizes the principles guiding its decision-making. The NIHBP’s acceptance scores are difficult to measure, but it seems to fare reasonably well on acceptability. There has been no clear backlash against NIHBP decision-making, which is a small sign of tacit acceptance of its reasons for decisions. At minimum, the reasons are broadly acceptable, though more detail would be helpful to better assess acceptability. If one accepts the principles outlined in the preceding paragraph as reasons for the NIHBP’s decisions, then the program fares reasonably well in this regard. Costs, the needs of relevant stakeholders, the use of scientific research, and attentiveness to relevant alternatives all seem like acceptable reasons in the abstract. Yet the acceptability of these reasons for particular decisions will, of course, ultimately depend on context. As the IFHP case made clear, cost containment can be an unacceptable reason for not insuring a good where there is insufficient evidence that non-insuring a specific good will reduce program costs. So it would be helpful to know more about the scientific research the government uses to ground particular decisions. With respect to reviewability, the NIHBP has some clear deficiencies. It does not bar judicial review of its decisions. Many of the legal tools for challenging decisions in the mainstream system identified in chapter 6 should be available to NIHBP claimants. But the NIHBP’s limitations on grounds for appeal and additional barriers to accessing judicial remedies undermine the program’s reviewability. Per the rules of the NIHBP, one cannot challenge the program’s decisions not to fund particular goods. Disputes over “excluded goods” cannot be appealed.77 This explicit bar on appeals for excluded goods clearly

76 It lists clear criteria for the removal of goods; ibid at vi. Further policies and rules follow until xi. 77 Ibid at viii. See also Government of Canada, “Appealing a decision under the NIHB Program – 3. Submit an appeal for drug benefts” (2017), online: Government of Canada ; Government of Canada, “Appealing a decision under the NIHB Program – 4. Submit an appeal for dental benefts (including orthodontics)” (2017), online: Government of Canada ; Government of Canada, Appealing a decision under the NIHB Program – 5. Submit an appeal for other eligible benefts” (2017), online: Government of Canada .

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undermines the NIHBP’s reviewability. It also undermines substantive realization of the right to health care by precluding review of the lack of coverage of essential vaccines and other goods.78 If traditional healing is a non-benefit, judicial review would also bar appeals concerning that potential set of goods necessary for a dignified existence. Reviewability is supposed to allow substantive changes in coverage that will better realize rights, so this is a serious concern. Barriers to judicial remedies for those whose claims to non-excluded goods are denied further undermine reviewability. People whose eligibility claims are denied and those who seek to add goods to the list covered by the program face three levels of interdepartmental administrative appeal before judicial review of their challenges.79 Individual claimants must exhaust interdepartmental administrative appeal channels before judicial review.80 This may delay access to judicial proceedings. When a member of Parliament recently reviewed 534 denials of orthodontic care for children under the NIHBP, he found that no claims were successful at the third level of review.81 One could read this as indicating either that the internal review process satisfied the concerns of appellants or that by this point they had run out of willingness to further contest the decision. It is equally, if not more, plausible that internal review procedures do not contribute to substantive reviewability. Challenges to the implementation of the program may not require initial interdepartmental appeals. Service providers could, in theory, challenge the implementation of the program directly before a human rights tribunal and receive judicial review of those decisions. Yet it is noteworthy that very few cases related to the NIHBP make it to judicial review and that even fewer of those cases concern individual claimants challenging coverage.82 This suggests that the substantive reviewability of the NIHBP, viz., the ability of appeal and/or challenges to affect actual changes in the program, is limited.

78 Vaccines are excluded goods in DBL 2019, ibid at viii. 79 See Government of Canada, “Appealing a Decision under the Non-Insured Health Benefts Program” (2017), online: GC and links within it. 80 Ibid. 81 CBC News, “Alberta mother’s battle puts spotlight on First Nations medical care rejections” (2016), online: CBC . 82 A Westlaw search for cases mentioning the “Non-Insured Health Benefts Program” only identifed twenty-fve. Even a search that did not require exact phrasing (omitting quotation marks) only returned seventy-two judicial cases and forty-one board or tribunal decisions, many of which involved insurance agencies rather than individual claimants. A search for “NIHB” only unearthed seven board or tribunal decisions and eleven judicial decisions.

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The IFHP and NIHBP Help Fill in Some Gaps in Canada’s Realization of the Systemic Component of the Pluralist Right to Health Care As smaller subsystems within a larger Canadian health care system, the IFHP and NIHBP are clearly not going to fulfil the pluralist right to health care’s national health care system requirement. But the programs are not wholly irrelevant to this component of the right to health care. As national programs, they establish national health care subsystems and thereby serve as small contributors to realization of this component of the right to health care. Even this small fulfilment is imperfect. International human rights law suggests that the international right to health care requires a legally entrenched health care system. The federal government views the IFHP and the NIHBP as acts of executive discretion and accordingly does not legislatively recognize either program. The IFHP was established by Orders in Council, and those orders can easily be changed without public consultation.83 The IFHP and NIHBP thus do not appear to contribute to the existence of a legally entrenched national health care system. Canada has also failed to create national policies related to the IFHP and NIHBP’s respective subject matters. There are provincial policies on Indigenous health care,84 but national policies on Indigenous or refugee and refugee claimant health care remain elusive.85 Canadian federalism does not preclude the existence of national policies on either topic, but governments seem reluctant to institute them. The attempt to institute “Jordan’s Principle” as a solution to gaps in Indigenous health care delivery is a weak form of national policy designed to solve disputes between federal and provincial governments as to payment responsibility. The principle was developed in the context of a dying Indigenous child who wished to spend his final days at home but died in hospital when neither level of government would pay for the home care he required. Under Jordan’s Principle, in the case of ambiguous jurisdiction over a service recipient, the first entity that the recipient contacts (i.e., whether it is the federal or provincial government) should pay for the service; where there is a dispute between governments on who should have provided and paid for the service,

83 Tere were also worries that the program has operated outside the boundaries of the orders, leading to a lack of ft between the orders and the actual operation of the program; Refugee Care, supra note 8 at para 52. 84 See e.g., Ontario’s Aboriginal Healing and Wellness Strategy. 85 Josée G Lavoie, “Policy Silences: Why Canada Needs a National First Nations, Inuit, and Métis Health Policy” (2013) International Journal of Circumpolar Health 22690 thus calls for a national Indigenous health care policy.

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governments can then go to dispute resolution.86 However, even that very limited policy initiative has had minimal impact and does not seem to be implemented as intended. Legal entrenchment of the principle across the provinces remains inconsistent at best,87 and the binding force of the principle is contested even when non-legislative agreements are reached.88 Other national policies are even less developed; indeed, few exist at all. The IFHP and NIHBP could, however, contribute more clearly to realization of the structural, system-wide requirements of the pluralist right to health care that relate to data collection and participation in the health care process. The NIHBP appears to fare better here than the IFHP. There is very limited public participation in the development and administration of the IFHP. The federal government could consult the public prior to making changes to the IFHP. It did not do so prior to the 2012 changes. After the initial backlash against those changes, the federal government began to consult with some relevant stakeholders.89 However, in 2013 the Wellesley Institute 86 Anne Blumenthal & Vandna Sinha, “No Jordan’s Principle Cases in Canada? A Review of the Administrative Response to Jordan’s Principle” (2015) 6(1) Te International Indigenous Policy Journal 1 at 5 present this as the traditional federal understanding (and criticize this understanding at 19–20). 87 Attempts to recognize the principle in federal or provincial legislation failed; Blumenthal & Sinha, ibid at 6; AFN, ibid at 29. Adam Nathanson, “Legislating Jordan’s Principle: An Indirect Success” (2011) 34(3) Man LJ 215 at 216 argues that Manitoba’s eforts were indirectly successful in that they raised awareness of the issue of funding disputes and put pressure on the government to fnd a solution to the problem. Yet even Manitoba legislators who have an agreement with the federal government show signs that they do not believe that the principle is fully recognized in the province. Te legislative assembly unanimously passed a private member’s resolution in 2015 stating that “Jordan’s Principle has yet to be formally recognized in the Legislative Assembly of Manitoba, despite the reality that Manitoba’s First Nations children continue to fall victim to government jurisdictional disputes” and resolving that “the provincial government be urged to formally support Jordan’s Principle and its implementation in order to provide necessary care for all children in Manitoba while reafrming the United Nations Convention on the Rights of the Child”; Resolution 8, Recognizing Jordan’s Principle, 4th Sess, 40th Leg, Manitoba, 2015; Manitoba, Legislative Assembly, Hansard 40th Leg, 4th Sess, Vol LXVII, No 42A (4 June 2015) at 1563. A more recent agreement between the federal government, Alberta, and one Indigenous group shows some promise, particularly given the Indigenous group’s role as signatories to the agreement, but it is too early to do a full academic analysis of the program. For an introduction to the agreement written for the popular press, see e.g., Slav Kornik, “Alberta Government Signs Jordan’s Principle Agreement with Feds, First Nations Group” Global News (16 November 2018), online: Global News . 88 Blumenthal & Sinha, ibid at 6–8, 10. Tere are some signs that claims have been more successful in recent years (viz., since the publication of Blumenthal & Sinha), and the federal government has set up a call centre in an attempt to resolve some of the issues. Yet the issues highlighted in this and the prior note and surrounding text remain. 89 Barnes, supra note 62 at 10.

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still worried that the federal government had “shown little interest in including refugees and health care service providers in their decision-making.”90 Public backlash partly contributed to the 2016 restoration of the pre-2012 program.91 There is little evidence that the federal government consults with the public before making program-related decisions today. Data collection in the IFHP is, in turn, difficult to assess. Few data are public.92 Governments claim that they make decisions based on evidence, but their past decisions were made based on questionable evidence. The 2012 cuts were based on questionable data, even as pertaining to cost, supposedly a key rationale for the purported changes.93 There is reason to question whether the data collected even up until last year were sufficient. Recall that only utilization rates are available and the limitations on those rates. The current government claims to be committed to evidence-based policy but does not at present provide the public with data necessary to remedy this concern. The NIHBP’s commitment to public reporting ensures that data on use are collected. Other government ministries collect data on Indigenous health outcomes. But it is clear that the program has not yet amassed sufficient data to minimize adverse Indigenous health outcomes.94 While not guaranteed in legislation, Indigenous participation in the NIHBP is helping realize the public participation requirement. There have been experiments in Indigenous administration of the NIHBP. Pilot projects allowed Indigenous administration of non-pharmaceutical and non-dental NIHBP components in some communities from the 1990s to the early 2010s, and “Contribution Agreements” began giving Indigenous communities powers to administer medical supply and equipment claims beginning in 2010.95 But there are limits to Indigenous participation in the development/administration of the NIHBP. For instance, decisions on what to cover remain in the hands of the NIHBP, which

90 Ibid. 91 See e.g., CTVNews.ca Staf, supra note 63. 92 E.g., I cannot fnd statistical data on the program website, Citizenship and Immigration Canada, “Health care – Refugees” (2017), online: Citizenship and Immigration Canada , which remains up to date in 2020, and its associated links. Access to Information requests only unearthed brute utilization rates for a limited number of time periods. 93 Barnes, supra note 62. 94 See the “Conclusion” below. 95 MacIntosh, supra note 1 at 608–609. At the time of MacIntosh’s text, Bigstone Cree First Nations housed the last pilot project. Tey are now party to a contribution agreement; Health Canada, Non-Insured Health Benefts Program: Annual Report 2014/2015 (Ottawa, 2016) at 26, 44. On-reserve health care service programs, in turn, present opportunities for Indigenous service delivery; see e.g., AFN, supra note 13 at 61. But this participation may not be concomitant with policy participation opportunities.

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makes its decisions “with assistance from” the Canadian Drug Expert Committee and the NIHB[P] Drugs and Therapeutics Advisory Committee, but not from Indigenous peoples (whose interests they are supposed to “balance” but need not canvass directly).96 Opportunities for greater participation remain. The NIHBP Is Gradually Progressively Realizing the Right As detailed in Part I, progressive realization has substantive and procedural components. Substantive progressive realization focuses on access to health care goods, including those necessary for a dignified existence, as well as the existence of the necessary structural elements of a functioning health care system. Both should increase over time, and there should be no unjustified decreases in the amount of either (viz., no substantive deliberate retrogression). Procedural progressive realization focuses on Daniels and Sabin’s markers of procedural fairness in health care decision-making. Health care systems should include more procedural safeguards over time, thereby more closely aligning with Daniels and Sabin’s accountability for reasonableness framework as time progresses. Retrogression is also discouraged here. The NIHBP is not retrogressing in its realizing the right to health care and may be making some progress. The program’s coverage of essential goods is stable. It is showing some progress in the coverage of non-essential goods. For instance, in 2015 the NIHBP began covering “some medications to treat common allergy symptoms … including some oral and nasal spray medications … [and] eye drops and oral medications.”97 More radically, the last few years have seen substantial new investments in mental health services; in 2017, the program only covered short-term mental health services preceding “transition” to other care but it now covers other services, leading to spending that has “grown more than other benefit areas.”98 At least some of these services are plausibly necessary for dignity. If so, this is clear progress in rights realization. Small changes to the NIHBP’s coverage population can be justified and do not constitute deliberate retrogression. The NIHBP’s client population (viz., the number of claimants using the program) grew in the ten years prior to 2014, yet the pool of eligible claimants has recently shrunk.99 This is a prima facie

96 DBL 2019, supra note 41 at v. 97 Health Canada, “Non-Insured Health Benefts Program Update” (2015), online: Health Canada . 98 Again, cf. 2018, supra note 14; and 2016/2017, supra note 74. 99 2013/2014, supra note 52 at 7; 2013/2014 Summary, supra note 52. See also Statistics Canada, Aboriginal Peoples in Canada: First Nations People, Métis, and Inuit (Ottawa: Minister of Industry, 2013) at 4, online: Statistics Canada, . Cf. 2018, ibid.

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sign of retrogression in coverage. However, moves toward self-governance may explain this declining eligibility pool.100 A growing number of Métis, who were ineligible for the NIHBP during the period, could also affect this number.101 In either case, the declining pool is likely due to changes in demographics and governance rather than a sign of deliberate retrogression regarding who to cover. These changes have arguably (at least partly) offset the progressive addition of new groups to the eligible population. For instance, the 2011 creation of new Indian bands and enactment of a bill giving “eligible grandchildren of women who lost status as a result of marrying non-Indian men, entitlement to become registered as an Indian” led to 26,142 newly registered First Nations clients between 2011 and 2013 and to 51, 267 becoming eligible by 2014.102 Métis may soon be eligible.103 More claimants are apparently becoming eligible over time. New ineligibilities are most easily explained by justifiable changes in demographics and governance. The NIHBP thus fares reasonably well on the goods-based substantive progress metrics. At minimum, there is little retrogression, and any retrogression has been offset by a greater progress, especially if ones view mental health services as key to dignity. New structural elements of the NIHBP are lacking in recent years, but there is no sign of retrogression in the structural components of the substantive progressive realization standard either. The NIHBP’s procedural progress is minimal, and one may debate the importance of its one sign of retrogression in recent years. Procedural progressive realization can be assessed by examining the number of procedural safeguards added to or removed from a program. There are signs of minor procedural progress in the NIHBP’s transparency. Since 2012, it has published an online newsletter for clients that is “intended to inform them about their coverage … [and] updates and changes to NIHB[P] policy and benefit information.”104 The price file introduced at that time, which explains how the program applies to incontinence-related goods, similarly tries to make the NIHBP more transparent to health care providers.105 The digitization of annual reports is another minor, but still helpful, addition to the program’s transparency. The removal of guiding allocative principles from annual reports appears retrogressive from a procedural fairness standpoint insofar as it reduces transparency. Yet the scope

100 Self-governance explained the end of most of the pilot programs in Indigenous selfadministration in the NIHBP; MacIntosh, supra note 1 at 608. 101 See the statistical data in the works cited in note 99. 102 2012/2013, supra note 52 at 5, 7; 2012/2013 Summary, supra note 52; 2013/2014 Summary, supra note 52. 103 See the discussion of Daniels, supra note 6. 104 2012/2013, supra note 52 at 94. 105 Ibid at 93.

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of this problem is debatable. The NIHBP’s procedural components otherwise remain stable. The IFHP Required Multiple Interventions to Avoid Serious Deliberate Retrogression in Right to Health Care Realization The IFHP’s 2016 decision to restore coverage to pre-2012 levels appears to constitute substantive progressive realization, but it is not major progress. The proposed changes to the IFHP were deliberately retrogressive with respect to the coverage of essential goods. They would have left claimants without funding for essential medicines and basic maternal care,106 both of which are obvious examples of goods required for a dignified existence. The changes clearly would have removed coverage for non-essential goods in many circumstances. Those changes also would have forestalled substantial progress in substantive right to health care realization over time. Someone looking only at the 2011 and 2019 incarnations of the IFHP would see little or no substantive progressive realization of the right to health care. There are no clear signs of recent progress in substantive progressive realization elements in the IFHP. Moreover, any purported progress in the IFHP’s coverage from the restoration of the program to pre-2012 levels took place only after widespread public outcry, a judicial intervention, and a change in government. Judicial intervention alone was insufficient to return the program to its prior level. Between the FCC decision and the Liberal government’s 2016 change in policy, an interim program retained tiered coverage: many claimants still received fewer entitlements than they would have received in 2011.107 Overcoming deliberate retrogression in the IFHP required multiple interventions. Those interventions were not enough to create actual progress in the IFHP’s realization of the right to health care. They merely returned the program to the old levels. Interviews with refugee service providers suggest that full restoration remains elusive, and pre-2012 concerns, such as doctors refusing to provide care to IFHP claimants, remain “live.”108 Despite the 2012 cuts’ threat to the IFHP’s potential to better fulfil the right to health care, no new procedural or structural safeguards have been put in place that would avoid another round of cuts. There are some signs of procedural progressive realization in the IFHP. There was no recordkeeping on beneficiary or user numbers prior to 2011, but I can

106 Refugee Care, supra note 8 at paras 2–3 107 “Summary of Benefts,” supra note 61. 108 YY Brandon Chen & Jamie Chai Yun Liew, “Refugees Once Again Have Full Health Benefts, but Some Practitioners Still Don’t Know Tat” (9 May 2017), online: CBC News .

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now access those numbers and the number of rejected health care claims for each year from 2012 to the present.109 These data have clearly increased transparency (albeit in a coarse-grained manner) and help better fulfil one of the structural elements of the pluralist right to health care defended here. There are few other signs of progress in rights realization in the IFHP. This is, perhaps, unsurprising given the hard work required simply to restore the IFHP to previous levels. It still means that the IFHP has not yet fully met its potential to enhance the right to health care. Conclusion The IFHP and NIHBP help realize parts of the pluralist right to health care, thus pointing to some Canadian prioritization of marginalized/vulnerable populations, but neither program has fully realized its potential to increase Canada’s fulfilment of the pluralist right to health care, and progressive realization of the right through either program is minimal. On paper, both programs fill gaps in coverage for the goods necessary for a dignified existence, but barriers to accessing health care goods through either program remain. Both programs fulfil some but not all of the procedural elements of the right to health care. The IFHP has long fared poorly on transparency and acceptance/acceptability metrics, and the NIHBP’s appeal procedures require reform. Neither program contains all of the elements of a fully functioning system. But again, both contain some elements, and the existence of national health care programs has contributed to national standards consistent with the pluralist right to health care’s demands. The foregoing is a reasonably complete analysis of the IFHP and NIHBP’s contributions to Canadian realization of the pluralist right to health care. Yet I would be remiss if I did not note that the NIHBP fails to fully address one aspect of realization that is difficult to measure: improved health outcomes. Canada scores well on many of the health outcome measures that are central to the right to health care, but those good health outcomes are not distributed equally across the populations. There is a wide disparity between Indigenous and nonIndigenous health outcomes across Canada.110 That disparity undermines any

109 Access to Information Requests prior to 2018 (in e.g., 2015) did not include information on the number of rejected claims in given years, but the response to a 2018 request included information dating back to 2012 and this data can now be collected more regularly. 110 E.g., MacIntosh, supra note 1 at 575; William Lahey, “Medicare and the Law: Contours of an Evolving Relationship” in Downie, Caulfeld & Flood, supra note 1, 1 at 10; TRCC, Summary, supra note 48 at e.g., 207–208.

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claims that marginalized/vulnerable groups are being prioritized.111 Indigenous leaders claim that this disparity, which constitutes a public health emergency in at least some regions, stems in part from unequal distribution. This implicitly undermines claims that the NIHBP properly secures essential goods for Indigenous Canadians.112 The reasons for this disparity extend beyond the health care system itself and encompass many social determinants; even so, that system’s failure to prevent inequities must be acknowledged.

111 Te Committee on Economic, Social and Cultural Rights accordingly and rightly suggests that Canada is not meeting its obligations to Indigenous Canadians and highlights the “health” disparity as a concern; United Nations, Committee on Economic, Social and Cultural Rights, Review of the 4th and 5th Periodic Reports: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, 36th Sess, UN Doc E/C.12 /CAN/CO/4, E/C.12/CAN/Co/5, (2006), also cited in MacIntosh, ibid at 597n121. 112 E.g., Julien Gignac, “Northern Ontario First Nations Declare Public-Health Emergency” Te Globe and Mail (24 February 2016), online: Globe and Mail .

Chapter Eight

Tools for Better Realizing the Pluralist Right to Health Care in Canada

Introduction To this point, I have demonstrated that my metrics for right to health care realization can be applied. In the process, I have identified several problems with Canada’s realization of the right to health care. This chapter examines the extent to which the tools of Canadian public law have improved realization of the pluralist right to health care in Canada in the past and how they could be reformed and implemented to better realize that right in the future. In so doing, I begin to provide action-guiding data on how to realize the right to health care. In this initial exploration of the policy implications of my view, I argue that the three main tools of Canadian public law have yet to fulfil their potential to better realize the right. I demonstrate that achievable reforms of these laws could help fill the gaps in realization identified in chapters 6 and 7. But, I argue, even these reforms may not maximize realization of the pluralist right. Before I make this case, however, a word on methodology is needed. I focus on public law here because public law appears to offer the most promising case for improving Canada’s realization of the right to health care. While private law could theoretically be used to improve realization of that right in Canada, the state’s large role in health care allocation decisions makes public law a more promising avenue for filling the gaps in right to health care realization identified in the previous chapters. It is possible, and perhaps even likely, that changes to the private law will also need to be made to maximize Canada’s realization of the right to health care. After all, Canadian property law, contract law, and torts all implicate the health care sector. It would be surprising if changes to some of those domains could not remedy some of the problems in the preceding chapters. Yet most of the deficiencies identified in chapters 7 and 8 implicate Canadian governments and the actions they take in the public law domain. So it is more likely that public law tools are going to be able to remedy them. Facts about social rights then further support my focus. One leading study

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found a statistical correlation between domestic (but not international) legal entrenchment of social rights and realization of those rights.1 This supports my claim that at least one public law tool has a prima facie case for being a promising means of improving rights realization. A major international report by The Lancet – O’Neill Institute, Georgetown University Commission on Global Health and the Law recently promoted constitutional and statutory rights as important components in realizing the international right to health.2 The current application can be justified in part as a means of testing his claim. Creating or developing a right to health care is not, of course, the purpose of any branch of Canadian public law, including those considered below. Canadian constitutional law does not include a right to health care, and as detailed below, the judiciary remains sceptical about attempts to use constitutional law to realize or fashion such a right.3 Analysing whether any branch of Canadian public law can successfully be marshalled to realize the right notwithstanding that it is not designed to do so is nonetheless worthwhile. Understanding whether the most prima facie promising legal tools can improve Canada’s realization of the right to health care should provide valuable insight into the relationship between law and rights realization and into the prospects for different legal interventions in the health care sector. For instance, whether constitutional litigation is a useful means of fulfilling the right to health care depends largely on the moral end such litigation is supposed to fulfil.4 Knowing if, how, and when constitutional

1 Sakiko Fukuda-Parr et al., Fulflling Social and Economic Rights (Oxford: Oxford UP, 2015) at 136. 2 Lawrence O Gostin et al., “Te Legal Determinants of Health: Harnessing the Power of Law for Global Health and Sustainable Development” (2019) 393(110183) Te Lancet 1857. See also Selina Lo & Richard Horton, “Legal Determinants of Health: Facing Global Health Challenges” (2019) 393(110183) Te Lancet 1781; Carmel Williams & Paul Hunt, “Health Rights Are the Bridge between Law and Health” (2019) 393(110183) Te Lancet 1782. 3 I provide details on this point in the section on “Constitutional Law.” As noted there, the starkest statements on this point appear in Chaoulli v Quebec, [2005] 1 SCR 791, 2005 SCC 35 at para 107. 4 See also Michael Da Silva, “A Goal-Oriented Understanding of the Claimed Right to Health Care and Its Implications for Future Health Rights Litigation” (2016) 39(2) Dalhousie LJ 377. Jef King, “Te Future of Social Rights: Social Rights as Capstone” in Katharine G Young, ed, Te Future of Economic and Social Rights (Cambridge: Cambridge UP, 2019) [Young, Future] 289 [King, “Capstone”] makes a similar but non-identical point on social rights in general. King’s identifcation of the ways in which protection of the (just) welfare state depends on many nonlegal factors and his argument for constitutional rights as a “capstone” in the realization of such a state, rather than a means of creating it, may be consistent with the view here. Data stating that socio-economic rights fulflment tends to be better where good governance already operates further support such a tack; e.g., Fukuda-Parr, supra note 1, c 6. Where King does not explicitly state that law is a non-ideal forum for realizing socio-economic rights, he may still ofer more support for constitutionalization than can be found below. But this King piece largely supports an administrative law–based approach that is also complicated by this analysis.

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litigation can fulfil the constitutive ends of the pluralist right to health care can help us evaluate whether constitutional litigation is advisable as a means of fulfilling that right. The present analysis can accordingly help us test The Lancet – O’Neill Institute, Georgetown University Commission on Global Health and the Law’s claim that constitutional health rights will produce good outcomes from a broader rights perspective. It can also help guide Canadian decision-makers who are interested in realizing the right by weighing the potential of available legal tools. (Moreover, to the extent that the fact that Canadian public law is not meant to fulfil a right to health care undermines the present inquiry, it undermines any legal analysis of the question. The purpose of private law is even further removed from right to health care concerns; indeed, there is good reason to question whether private law should be used to fulfil public law ends.5) In focusing on public law here, I in no way mean to suggest that the public law tools I identify here are the only or even the best means of (at least better) realizing the right to health care in Canada. I do not assume that the particular facets of the tools I address are the only available means of improving Canadian realization of the right. Application of constitutional law to private law could, for instance, be a means of realizing the right.6 I simply mean to restrict my analysis to the most promising tools available. This methodological choice is a common one. It is further motivated here by the considerations in the previous paragraphs. It is, of course, possible that the best tools for realizing the right to health care will be the result of legislative and/or political action. One does not need a thorough academic analysis to see the force of this claim. After all, the creation of the mainstream Canadian health care system detailed in chapter 6 was a legislative action, and it remains the most significant achievement in Canadian realization of the right to health care.7 But full analysis of legislative and political solutions is another project. I suspect that many legislative solutions will encounter problems similar to those facing many of the public law tools I discuss below. I also question whether the current political climate will favour measures to realize the right to health care, but I lack adequate space to determine whether this is so. Analysis of other governmental initiatives that could help realize the right is, of course, also important. But whether legal measures can also or better realize the right seems important even for those interested in 5 Te present work does not depend on this being true. I leave open the possibility that private law too has a role to play in realizing the right to health care. But see Michael Da Silva, “Formalizing Formalism: Weinrib, Aristotle, and the Nature of Private Law” (2018) 9(3) Jurisprudence 486. 6 King, “Capstone,” supra note 4 at 321. 7 Te Canada Health Act, RSC, 1985, c C–6 [CHA] and the provincial laws implementing are pieces of legislation.

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legislative and political solutions. It is, at minimum, necessary for determining the relative value of actions in different spheres. Ultimately, then, public law presents the best prima facie case(s) for being effective legal mechanisms for improving realization of the right to health care, and analysis thereof promises several benefits. My own analysis examines these tools from a new perspective and provides one of the most detailed studies of Canadian public law’s prospects for realizing “positive” rights. In the process, it identifies new legal arguments and policy tools that could be used to improve Canadian realization of the right to health care and/or to secure recognition of “positive” rights in Canadian law. But its conclusions also provide reasons to question the prima facie effectiveness of public law tools. It may thereby support the search for legislative and political solutions. Knowing the limitations of legal interventions could underscore the need for legislative or political change. Having an idea of what legal tools are available if those measures fail nonetheless seems equally valuable. I accordingly turn to my analysis. Three Branches of Canadian Public Law The three branches of Canadian public law with the best prospects for potentially improving Canada’s health rights realization have not fulfilled their potential to date and may not in the future. This section introduces the branches and their past and current limitations. Further sections explain how they could better fulfil their potential, but challenges remain on any view. (a) Constitutional Law To begin, the Canadian constitution is “the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”8 All laws, including the laws regulating the Canadian health care system and much of the administration and implementation of that system, must comply with Canadian constitutional law. The constitution contains both written and unwritten provisions. Three parts of the written text could theoretically be used to improve realization of the right to health care: the “federalism” provisions in the Constitution Act, 1867, which set out the powers of each level of government (combined with constitutional commitments in later documents that can be read in tandem with the federalism provisions to clarify the impact of governmental powers);9 Indigenous rights

8 Constitution Act, 1982, ss 52(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [1982]. 9 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, ss 91–92, reprinted in RSC 1985, Appendix II, No 5 [1867].

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guaranteed in the Constitution Act, 1982;10 and some rights in the Canadian Charter of Rights and Freedoms (the Charter), which is part of the Constitution Act, 1982.11 Each is subject to a “purposive” interpretation principle required by the Supreme Court of Canada (SCC) whereby the constitution is not a static document to be interpreted in light of the intent of its authors, but a “living tree” that can change as Canada changes.12 Furthermore, interpretations of the rights-based provisions should be “progressive” and “generous,” providing for changes in doctrine over time and preferring interpretations that give rights fulsome content.13 Yet all purposive interpretations remain limited by the constitution’s text and context of creation.14 Each relevant part of the constitution has some prospects of improving realization of the right to health care, but none has achieved its potential to date, and only Indigenous rights and Charter rights show even limited signs of being able to do so in the future. First, the federalism provisions of the constitution limit governments’ actions to those domains in which they are explicitly granted “powers” to legislate.15 Powers over “health” and “health care” are not explicitly given to either level of government in the 1867 text. Judicial interpretation has confirmed that health and health care are areas of concurrent jurisdiction but that primary powers over health care for most persons fall under provincial jurisdiction. The federal government has primary power over health only with respect to specific populations directly under its purview, such as the armed forces, some prisoners, Indigenous peoples, and persons immigrating to Canada. The diffuse nature of the powers over health care initially made the existence of the Canada Health Act (CHA)-based,16 joint federal–provincial, partly public, mainstream health care system somewhat surprising. Yet the joint federal–provincial CHA-based program, in which the federal government exercises its “spending” power to give money to provincial governments if and (theoretically) only if they meet certain criteria, is now a valid and popular exercise of powers under the constitution. Its existence is now an expectation of most Canadians. Beyond this entrenchment, the provisions have not yet been

10 Rights of the Aboriginal Peoples of Canada, s 35, Part II of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Rights of the Aboriginal Peoples]. 11 Canadian Charter of Rights and Freedoms, ss 7, 12, 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 12 Edwards v Canada (Attorney General), [1930] AC 124, 1929 UKPC 86 [Edwards]. 13 Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007), ch 36. 14 R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at para 117. 15 1867, supra note 9, ss 91–92. For the law supporting the claims in this paragraph, see Chapter 5. 16 CHA, supra note 7.

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successfully used to fill gaps in rights realization. Some arguments in the notes below aside, it is highly unlikely that this will change. Second, Part II of the Constitution Act, 1982, Rights of the Aboriginal Peoples, guarantees rights for Indigenous Canadians. The key subsection is 35(1): “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”17 Aboriginal rights are rights that belong to Indigenous groups and their members by virtue of historical dispossession and rectification, regardless of whether a treaty exists. Treaty rights are the rights explicitly negotiated for in historical agreements. Both sets of rights technically needed to exist prior to 1982 and to have remained operative up until that time to have constitutional status,18 but there is some indication that treaty rights accrued after 1982 could have constitutional status as well.19 These rights cannot be extinguished by operation of the Charter.20 To qualify as an Aboriginal right, an activity “must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.”21 Technically, such activities must be continuous with those the group engaged in prior to contact with European settlers;22 however, a land-related activity need only have been practised prior to Crown “sovereignty” for Aboriginal title rights to be in effect.23 That later period can serve to mark the starting point of the relevant continuity in other contexts. Treaty rights, then, exist where they are part of a treaty and were not extinguished prior to 1982. These rights too have not yet been used to secure many health care entitlements. But the next section outlines how Indigenous and Charter rights could still help improve health rights realization. Finally, Charter rights are commonly invoked in the health care context and could be interpreted in ways that increase realization of the right to health care in Canada; however, successful use of Charter rights for these aims has been limited to date. The Charter recognizes rights belonging to all Canadian citizens (and some non-citizens).24 Any government action subject to the Charter (including any law) that unjustifiably infringes a right or

17 Rights of the Aboriginal Peoples, supra note 10, ss 35(1). 18 R v Sparrow, [1990] 1 SCR 1075 at 1091 [Sparrow]. 19 Rights of the Aboriginal Peoples, supra note 10, ss 34(3) says that constitutional use of “‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.” At minimum, then, later land claims treaties can be constitutional documents. 20 Charter, supra note 11, s 25. Tis is consistent with a purposive approach to the constitution as a whole. 21 R v Van der Peet, [1996] 2 SCR 507 at para 46 [Van der Peet]. 22 Ibid at paras 60–65. 23 Delgamuukw v British Columbia, [1997] 3 SCR 1010 [Delgamuukw]. 24 For more on the scope of Charter rights-holders, see chapter 6.

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freedom guaranteed in the Charter is open to challenge. All Charter rights are subject to the general limitation clause in Section 1 of the Charter whereby all rights and freedoms are guaranteed “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”25 Infringements must accordingly be rationally connected to a pressing and substantial objective, minimally impair rights, and be proportionate.26 Where government action infringes a listed right and the infringement is not proscribed by law or cannot be demonstrably justified in a free and democratic society, it violates the right. The rights violation can lead to invalidation of the law or an order to cease the relevant government conduct. The CHA and the provincial enabling statutes are government statutes. All government statutes are subject to the Charter.27 Hospitals (but not individual health care providers) are arguably subject to the Charter.28 Governmental decision-makers in the CHA-based system should be subject to it.29 Thus, the Charter could be used to challenge the legal framework surrounding the mainstream Canadian health care system, administration of the system, or decision-making processes and service provision within it. Sections 7 and 15 of the Charter are the most popular candidates for rights that could be used to recognize a right to health care or otherwise secure entitlements that constitute the pluralist version of such a right, but they are rarely used successfully in this fashion. Section 7 guarantees “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”30 This provision has two components: the right and a built-in limitation clause. The provision first protects certain interests, including but not limited to fundamental democratic interests in autonomy. The principles of fundamental justice then serve as “a qualifier of the right not to be deprived” of those interests.31 While the scope of these principles is contested, the principles include bars on vague, overbroad, or arbitrary laws and violations of Sections 8 to 13 of the Charter.32 Many people believe that health care is necessary to preserve life and security of the person and/or for the enjoyment of all three Section 7 rights. Section 7

Charter, supra note 11, s 1. R v Oakes, [1986] 1 SCR 103 [Oakes]. Tis follows from the plain text of Charter, supra note 11, s 32. Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 [Eldridge]. Tey likely constitute “government” for the purposes set out in the Charter, supra note 11, s 32, but controversies over the meaning of that term persist. 30 Charter, ibid, s 7. 31 Re BC Motor Vehicle Act, [1985] 2 SCR 486 at para 24. 32 Hogg, supra note 13, ch 47. 25 26 27 28 29

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equivalents are used to fashion constitutional health rights elsewhere.33 Attempts to expand Section 7 beyond its traditional role as a “negative” right of noninterference so as to include a right to health care are thus unsurprising. Where Section 7 applies to unauthorized immigrants,34 it is a plausible starting point not only for using the constitution to expand CHA-based coverage but also for improving the condition of non-citizens, including those in the Interim Federal Health Program (IFHP). Section 15, in turn, guarantees equality rights and bars discrimination.35 It protects against discrimination based on an “arbitrary disadvantage.”36 Consistent with this, measures that benefit protected groups do not violate Section 15’s guarantee against discrimination.37 Section 15 guarantees procedural fairness and justice insofar as it requires equal treatment of all persons in procedural matters. Procedurally, Section 15 can be used to challenge health care rationing decisions based on discriminatory reasons. Section 15 bars decision-making on the basis of unacceptable reasons, even if it cannot ensure that decision-making is based on acceptable or accepted reasons (as is required by the procedural element of the right to health care).38 Section 15 also presents an at least prima facie case for a constitutional guarantee that persons will not be left unable to secure access to necessary health goods as a result of discrimination. Yet neither Section 7 nor Section 15 has increased Canadian realization of the right to health care. Procedural success is rare. Governments can easily protect against such challenges. For instance, where health care decision-making in Canada is insufficiently transparent and Canadian governments are aware of their Charter obligations, cases where governments admit to making decisions on the basis of stereotypes should be rare. Governments will likely raise prima facie non-discriminatory reasons for their decisions when so compelled. More will be required to unearth the actual reasons for decisions and to establish the grounds for a Section 15 claim. Substantive success is rarer still. Section 7 traditionally protects so-called “negative” rights of non-interference by the government in private affairs in the

33 India is the clearest example. See note 44 of chapter 2. Germany and Israel provide more controversial examples. See Luzon v Government of Israel, HCJ 3071/05 (July 28, 2008) (Isr), Asylum Seekers Benefts, BVerfG, 1 BvL 10/10, Judgment of 18 July 2012 (Germ), and discussions of each. 34 Singh v Minister of Employment and Immigration, [1985] 1 SCR 17. 35 Charter, supra note 11, s 15. 36 Quebec (Attorney General) v A, [2013] 1 SCR 6, 2013 SCC 5 [A]; Kahkewistahaw First Nation v Taypotat, [2015] 2 SCR 548, 2015 SCC 30 [Taypotat]. 37 Charter, supra note 11, ss 15(2). 38 E.g., Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651 at paras 849–851 [Refugee Care].

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health care context, but it is rarely invoked to grant or secure health care entitlements, for the judiciary believes that the Charter should not yet recognize socalled “positive” rights to specific state action. While Section 15 is understood as guaranteeing substantive equality, which arguably entails positive entitlements to substantive goods necessary for equal status in society, claims that Section 15 guarantees access to the substantive goods- and system-based components of the pluralist right to health care tend to lack judicial support. Courts rarely positively protect health care entitlements, and even successful negative rights claims rarely lead to increased access to the goods those claims seek, let alone health care simpliciter.39 Even judicial decisions that should increase access to care can be followed by federal “implementation” legislation that provides far narrower entitlements than required by the judicial decision.40 Scholars assert that Section 7 and 15 rights, “which might otherwise be classified as “civil and political,” are best understood in the Canadian context as including both civil and political and socio-economic dimensions.”41 The judiciary disagrees. Even Section 15’s apparent promises have not led to increased rights realization. In Eldridge v. British Columbia (Attorney General), the SCC held that Section 15 of the Charter guarantees access to translation services for the deaf in hospitals.42 All hearing persons received access to hospital services in the public 39 Abortion access is hindered long afer R v Morgentaler, [1988] 1 SCR 30; Rachael Johnstone & Emmett Macfarlane, “Public Policy, Rights, and Abortion Access in Canada” (2015) 51 International Journal of Canadian Studies at 106–110. Safe injection sites, at issue in Canada (Attorney General) v PHS Community Services Society, [2011] 3 SCR, 2011 SCC 44 [Insite], remain in Canada, perhaps due to restrictions on opening them under the later Respect for Communities Act, SC 2015, c 22. Tose that exist are sometimes subject to further legal challenges that threaten their long-term existence. See e.g., Laine Mitchell, “Legal Showdown Coming for Edmonton Supervised Injection Sites” CTV Edmonton (9 December 2018), online: CTV Edmonton . Interestingly from the perspective of the pluralist model of health rights that includes public participation requirements, a lack of public participation in decision-making played a role in the challenge. Questions about adequate access to assisted death post-Carter v Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5 [Carter] abound. Use of the service has increased in recent years, but challenges remain; see e.g., Kathleen Harris, “Number of Canadians Choosing Medically Assisted Death Jumps 30%” CBC News (21 June 2018), online: CBC News . Te current scheme is the subject of a new Charter challenge that has produced appellate decisions on procedural motions (Lamb v Canada (Attorney General), 2018 BCCA 266) prior to trial but has still not gone to trial. For details, see the non-governmental litigants’ webpage at https://bccla.org/our-work/blog/lamb. 40 Tis explains the need for the Lamb litigation mentioned in ibid. 41 Martha Jackman & Bruce Porter, “Canada: Socio-Economic Rights Under the Canadian Charter” in Malcolm Langford, ed, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge UP, 2008) 209 at 209. 42 Eldridge, supra note 28.

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health care system in British Columbia. A lack of sign language interpreters thus served as an effective bar on access for deaf persons. The SCC found the lack of public funding for sign language interpretation services to be a denial of a benefit available to all persons on the basis of a protected ground, physical disability. The denial of the benefit was viewed to be discriminatory and accordingly violated the section’s non-discrimination guarantee. This finding that Section 15 requires provision of certain health care–related goods seemed to provide an opening for using Canadian constitutional law to expand coverage of essential goods. If a particular health care good is required in order to enable access to the health care system, it fits the Eldridge schema directly and should be covered. Failing that, if a health care good is necessary in order to enable access other public goods, the logic of Eldridge suggests that the failure to provide the health care good is also a de facto denial of the public good. Not all health infirmities qualify as disabilities, but in some cases, the logic of the case could suggest that failures to provide health care goods that those with disabilities require to realize other rights constitute discrimination. Yet subsequent jurisprudence narrowed the scope of the holding in Eldridge, thus weakening Section 15’s already limited prospects of expanding the right to health care. Post-Eldridge attempts to use Section 15 to secure coverage of particular goods have largely failed. Most famously, in Auton (Guardian ad litem of) v. British Columbia (Attorney General), an attempt to ensure coverage of applied behavioural analysis (ABA) or intensive behavioural intervention (IBI) therapy for autistic children was categorized as a de facto claim for “funding for all medically required treatment,” which is not a benefit provided by law and thus cannot be distributed in a manner that violates Section 15.43 That case explicitly states that Section 15 does not require the provision of particular goods.44 More than twenty years later, Eldridge remains the only example of a Charter claim leading the SCC to require expanding entitlements to a health care–related good. There is then some controversy as to whether the service in question constitutes “health care.” Section 7, for its part, could actually be a tool for retrogression in the national health care system. It could be used to restrict or undermine the public component of the mainstream health care system. In Chaoulli v. Québec, the SCC held that a provincial prohibition on private health insurance combined with long wait times in the public health care system violated Quebecers’ rights; three judges upheld the claimants’ argument that “because delays in the public system place their health and security at risk, they should be allowed to take out

43 [2004] 3 SCR 657, 2004 SCC 78 [Auton]. 44 Ibid at para 41.

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insurance to permit them to access private services.”45 While the case is formally a provincial human rights law decision,46 it demonstrates that something like Section 7 could undermine the mainstream health care system’s fundamental commitment to public funding of services.47 Recent litigation in British Columbia attempted to use Chaoulli not only to permit private funding of health care but also to allow double billing for the same procedures whereby health care providers could charge patients for private care even while accepting public funds for the same care; appeals are ongoing.48 Explicit judicial constitutional recognition of the right to health care could avoid this outcome by creating a rights conflict between the liberty rights undergirding that argument and the right to health.49 But one must justify constitutional recognition of a right to health care before making this argument. Given the limited prospects of Sections 7 and 15 as tools for improving Canadian realization of the right to health care, constitutional health rights litigants may look for other provisions of the existing constitution that could potentially

45 Chaoulli, supra note 3 at para 103. Tis is not binding section 7 precedent for reasons in the next note. 46 Ibid was ultimately decided using Quebec’s local sub-constitutional equivalent to section 7, which guarantees a right to “personal inviolability”; Charter of Human Rights and Freedoms, CQLR c C–12, s7 [QC Charter]. Tis Charter can be used to invalidate legislation and thus is quasi-constitutional. Constitutional use of Chaoulli is at least understandable. Te court unanimously found that section 7 was infringed before splitting on whether there was a principles of fundamental justice violation, necessitating the provincial law–based decision. Chaoulli itself may have constitutional efect regardless of its technical legal pedigree. It is viewed by litigants as having constitutional efect and inspires constitutional cases. For an exploratory account of the potential impact of existing Chaoulli-based claims, see Colleen M Flood & Bryan Tomas, “A Successful Charter Challenge to Medicare? Policy Options for Canadian Provincial Governments” (2018) 13(3–4) Health Economics, Policy and Law 433. On Chaoulli and constitutional health rights’ retrogressive potential, see e.g., Colleen M Flood, Bryan Tomas & David Rodriguez, “Canada’s Confounding Experience with Health Rights Litigation and the Search for a Silver Lining” in Young, Future, supra note 4, 353. For a thorough overview of Chaoulli, written shortly afer the decision, see Colleen M Flood, Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: Te Legal Debate Over Private Health Insurance in Canada (Toronto: U Toronto P, 2005) 75, which includes four essays on what was decided in the case. 47 Chaoulli, ibid. As Flood, Tomas & Rodriguez, ibid note, some scholars believed that Chaoulli could lead to more progressive health care policy in Canada by spurring governments to reform their systems, but there is little indication that this has taken place since Chaoulli and even less indication that it will afer a new Chaoulli-like case. 48 Cambie Surgeries Corporation v British Columbia (Attorney General), 2020 BCSC 1310 followed years of litigation. It is likely to take years more to go through appellate review. Flood & Tomas, supra note 46 discuss this and other Chaoulli-like cases. Flood, Tomas & Rodriguez, ibid also briefy focus on the Cambie challenge as a threat, particularly at 362–363. 49 Colleen M Flood makes a similar point in conversation.

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expand Canadians’ right to health care coverage. Canadian Doctors for Refugee Care v. Canada (Attorney General) suggests that Section 12 of the Charter could be a promising option.50 Section 12 guarantees “the right not to be subjected to any cruel and unusual treatment or punishment.”51 In the relevant case, the Federal Court of Canada (FCC) found that proposed 2012 cuts to the IFHP violated the right to be free from cruel and unusual treatment. Similar cuts to other health care programs may similarly violate Section 12. If so, Section 12 could be developed into a tool for protecting other health care programs (thereby avoiding deliberate retrogression in health care provision) and for expanding coverage of essential health care goods where failure to provide them constitutes cruel and unusual treatment. Yet the content of that right remains unclear. Section 12 jurisprudence could develop in a manner that limits the right’s ability to contribute to Canada’s right to health care bona fides. (b) Human Rights Law The Canadian human rights law system is a statute-based legal regime. Human rights statutes apply in every Canadian jurisdiction and bind both levels of governmental and non-governmental agents. The Canadian Human Rights Act (CHRA), a post-Charter human rights statute, binds the federal government.52 This modern federal legislation primarily protects against discrimination.53 Every Canadian province and territory then has its own human rights legislation.54 Each act has “quasi-constitutional” status in at least some circumstances.55 Unlike Canadian constitutional law, which binds only state actors, provincial human rights statutes allow one to challenge decisions and actions by public or private actors.56 Theoretically, anyone who discriminates against 50 Refugee Care, supra note 38. 51 Charter, supra note 11, s 12. 52 RSC 1985, c H–6 [CHRA]. Prior to the enactment of the constitutional Charter, the federal, non-constitutional Canadian Bill of Rights, SC 1960, c 44 was the primary piece of human rights legislation in Canada. Controversy persists over whether it still binds governments. 53 See e.g., CHRA, ibid, s 2. 54 Each is an “act” or “code” with one exception: Quebec’s QC Charter, supra note 46 is formally listed as a “Charter.” See Alberta Human Rights Act, RSA 2000, c A–25.5; Human Rights Code, RSBC 1996, c 210 [HRC – BC]; Te Human Rights Code, CCSM c H175; Human Rights Act, RSNB 2011, c 171; Human Rights Act, 2010, SNL 2010, c H–13.1; Human Rights Act, RSNS 1989, c 214; Human Rights Act, SNWT 2002, c 18; Human Rights Act, SNu 2003, c 12; Human Rights Code, RSO 1990, c H.19 [HRC – ON]; Human Rights Act, RSPEI 1988, c H–12; Te Saskatchewan Human Rights Code, SS 1979, c S–24.1; Human Rights Act, RSY 2002, c 116. 55 First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Afairs Canada), 2016 CHRT 2 at para 43 [Family Caring] and cases cited therein. 56 See the legislation in note 54.

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another person can be subject to a complaint (though, of course, human rights law liability only actually exists subject to meeting the criteria for a valid claim, as discussed later in this chapter). Canadian human rights law is a species of administrative law and is enforced by administrative tribunals. In all provinces, one can go to a human rights tribunal to lodge a human rights complaint related to the administration of CHA-implementing health care programs.57 Claims can be brought against governmental agents, such as the provincial Ministry of Health and individual hospitals, as well as non-governmental agents, including health care providers and fellow patients. I will focus on governmental agents. The Canadian Human Rights Commission is responsible for administering the CHRA and can refer cases to the Canadian Human Rights Tribunal (CHRT), which hosts proceedings much like those of its provincial equivalents.58 One can only lodge tribunal-level human rights complaints concerning federally administered health care programs, including the IFHP and the Non-Insured Health Benefits Program [NIHBP], at the CHRT. Tribunal decisions at both levels are reviewable by courts using the general administrative law standard.59 Each human rights statute – whether federal or provincial – guarantees rights to freedom from discrimination on the basis of enumerated grounds (including sex, race, and disability) or analogous grounds (which included gender and sexual orientation prior to their adoption as enumerated grounds in some jurisdictions). Each statute then includes defences to prima facie infringements of the rights. Enforcement bodies are created and given powers in another section of each statute.60 The structural similarities between all Canadian human rights laws (and their enforcement mechanisms) have led to similar burdens for claimants who seek to lodge complaints under any of the acts. All claims undergo a two-stage analysis. Claimants first face the burden of establishing a prima facie case of discrimination; the burden then shifts so that respondents face the burden of establishing that the prima facie infringement is justified under one of the statutory defences.61 Prima facie discrimination can generally 57 Ibid. Other administrative bodies may have concurrent jurisdiction to apply the codes. I will not detail that issue. 58 Te Tribunal and its powers are established by CHRA, supra note 52, ss 48.1–49. 59 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Te cases below predate that case and thus feature diferent standards of review. Tey may still be persuasive statements of how a tribunal would or should decide a case. Broad consistency may even partly evidence their reasonable nature. 60 E.g., CHRA, supra note 52, Pt I; the sources in note 54. Te placement of rights provisions and defences difers in British Columbia: limitation clauses and/or defences are built into the rights provisions (HRC – BC, supra note 54, s 8), but the fundamental structure of the provincial human rights law remains the same. 61 Ontario (Human Rights Commission) v Simpsons-Sears Ltd, [1985] 2 SCR 536 at para 28 [O’Malley].

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be established where (A) a claimant has a characteristic that is protected as an enumerated or analogous ground under the provincial human rights statute, and (B) that claimant experiences a detriment or is denied a benefit (C) on the basis of the characteristic in (A).62 In the second stage of the analysis, the respondents face the burden of establishing that a statutory defence justifies the prima facie rights infringement.63 If they cannot meet the burden and the claimant rebuts the purported justification, the discrimination claim succeeds. Meeting the burden for a defence generally requires that detrimental conduct be (a) performed in good faith (b) in service of a recognized purpose that (c) could not be achieved through other conduct.64 The details of the tests may differ slightly across provinces, but slight procedural differences do not result in substantive differences in outcomes. This structure rarely leads to increased health care entitlements. Indeed, litigants seeking health care entitlements also generally face a further scientific burden for establishing their claims. Scientific evidence, including social scientific evidence, is important at both stages of human rights analysis.65 While prima facie discrimination “may be established without evidence,”66 many cases have been dismissed due to a lack of social science evidence.67 In cases where the good in question is covered by the health care program and only a restricted class of persons do not have access to it, the general medical necessity of the good should be acknowledged by the health care provider and, perhaps, by

62 Moore v British Columbia (Education), [2012] 3 SCR 360, 2012 SCC 61 at para 33 [Moore]. While the third step in Moore is the result of a “because of ” clause in British Columbia’s human rights code, it could apply to codes that use other language to establish this connection, including Ontario’s “on the basis of.” Moore formalizes a relationship that is necessary to establish prima facie discrimination in every Canadian province and the CHRT. 63 Ibid at para 33. 64 British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para 20, confrming that the test in British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 applies outside the employment context. As in Moore, ibid, this test is based in part on specifc statutory language but applies broadly to a variety of human rights statutes. 65 It may be necessary prior to the prima facie discrimination claim. Claims can be dismissed prior to a full tribunal hearing if the claimant has no reasonable prospects for success even if all allegations made were proved. Tere is some controversy over whether that test difers from the prima facie discrimination test; e.g., D(L) v A Health Authority, 80 CHRR 328 at para 107 [D(L)]. Regardless of how one views that relationship, health care–related claims fail to pass the frst stage(s) analysis/es due to a lack of science evidence. 66 O’Malley, supra note 61 at para 28. 67 E.g., Armstrong v British Columbia (Ministry of Health), 2010 BCCA 56, [2010] 5 WWR 210, 283 BCAC 167 at para 7; Turnbull v. British Columbia (Ministry of Health Services & Medical Services Commission), 2011 BCHRT 324, [2012] BCWLD 1492 at para 81; Ontario (Minister of Community & Social Services) v W, 2011 ONSC 288, 280 OAC 45 (especially at para 29).

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the courts. The claimant must then establish that he or she needs it. In cases where the good is not covered at all, the claimant must establish the general efficacy of the procedure in order to establish that it is medically necessary. Scientific evidence – sometimes including social scientific evidence – is necessary to establish these claims. It is also important at the second stage of the human rights analysis. If a complainant does not tender scientific evidence, respondents’ claims may go unchallenged.68 If one can establish a claim, one may receive a remedy, but human rights decisions rarely lead to systemic changes in health care delivery. Provincial and federal statutory enforcement bodies can appear to have wider remedial powers than some courts. For instance, the Human Rights Tribunal of Ontario (HRTO) has the power to issue “[a]n order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with” the local code.69 Yet all human rights decisions, including these decisions, only bind the parties before them. They do not have the precedential value of judicial decisions, which can bind other parties and limit future decision-makers. Human rights remedies can lead to systemic changes where one of the parties is a government actor,70 but human rights law rarely leads to broad systemic change in the health care context. An order “to do anything” could require government to provide goods more broadly. But the fact that decisions are only supposed to concern parties before the tribunals often leads tribunals to only order provision of the good to the person(s) raising the claim. The requirement to show that the claimant needs the good cannot be established for whole populations, further limiting the possibility of systemic remedies. These limitations in human rights law cannot be overcome by class actions. Class actions are unavailable in the human rights context.71 Remedies in the health care setting are also limited by the fact that human rights tribunals cannot directly require the government to “expend funds,” though rectifying discrimination may incidentally require more government spending.72

68 E.g., Finan v Cosmetic Surgicentre (Toronto), 2008 HRTO 47, 64 CHRR D/106 (especially at para 48). 69 HRC – ON, supra note 54, ss 54.2(1). 70 Cole v Northern Health Authority, 2014 BCHRT 26, [2014] BCWLD 1261, [2014] BCWLD 1266, [2014] BCWLD 1270, [2014] BCWLD 1282 [Cole]. Te dissent in Hogan v Ontario (Minister of Health & Long-Term Care), 2006 HRTO 32, [2006] OHRTD No 34, 58 CHRR D/317 at para 462 [Hogan] also would have recognized a systemic remedy. 71 Hogan, ibid at para 462. 72 McGrath v British Columbia (Ministry of Children & Family Development), 2009 BCSC 180, [2009] BCWLD 2409, [2009] BCWLD 2410, [2009] BCWLD 2411, [2009] BCWLD 2412 at paras 230–232 [McGrath].

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(c) Non–Human-Rights-Based Administrative Law Finally, administrative law is the branch of public law that regulates and reviews the operation of delegated governmental authority to, for instance, government officials and administrative tribunals. Statutes empower government officials and administrative tribunals to make decisions and take other actions that operationalize those decisions. They may also give administrative tribunals powers to review those decisions and remedy decisions beyond the government officials’ authority.73 Administrative tribunals may also be able to make rulings regarding the constitutionality of a decision or even of (provisions in) their own governing legislation.74 To understand the role of administrative law in the Canadian health care context, it is helpful to recall how decisions are made about coverage and the nature of the health care–related decisions that administrative bodies are to review. As noted in previous chapters, provinces have broad latitude regarding what they will publicly fund in their respective CHA-implementation systems. They only need to provide hospital and physician services that qualify as “medically necessary” or “medically required” and are largely free to define these terms themselves.75 They can provide other goods and services, such as prescription drug coverage outside of hospitals, but the CHA does not require them to do so.76 Multiple factors impact what will be covered, and multiple actors play a role in making coverage decisions. Provincial governments deciding what to fund sometimes make decisions directly. These decisions are often highly politicized. For instance, the Ontario Liberal government’s 2017 decision to extend pharmaceutical coverage to persons under twenty-five through the “OHIP+” program immediately followed a similarly planned policy announcement by their political rivals in the New Democratic Party (NDP) and was widely understood as a political manoeuvre to blunt the impact of the NDP proposal.77 Administrative law has little to say with respect to these kinds of policy choices. Another complication in the Canadian context is that decisions about what physician 73 For instance, Ontario’s Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, SO 1998, c 18, Sch H [MHLCARBA] gives the Health Services Appeal and Review Board [HSARB] the power to review government decisions on eligibility and payment for “insured services” that are publicly funded through the provincial CHA, supra note 9-implementation act (namely, the Health Insurance Act, RSO 1990, c H.6 [HIA – ON]), and to make determinations of who will receive funding for out-of-country health treatments. 74 See e.g., Evan Fox-Decent & Alexander Pless, “Te Charter and Administrative Law Part II: Substantive Review” in Colleen M Flood & Lorne Sossin, eds, Administrative Law in Context, 3rd ed (Toronto: Emond Montgomery, 2017) 237. 75 CHA, supra note 7 and the provincial acts that implement it outlined in chapter 6. 76 CHA, ibid. 77 See the sources in note 28 of chapter 6 (and surrounding).

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services to fund are largely not taken by an arm’s-length body; rather, they are left to labour law bargaining. Physicians are not generally government employees; instead they contract their services as part of a broader labour negotiation between their bargaining organization (e.g., in Ontario, the Ontario Medical Association) and the government. Those negotiations specify which goods will be publicly funded in the province.78 Some administrative decision-makers are delegated authority to make funding decisions (or are effectively able to do so since governments almost always act upon their “advice”) and are thus within the purview of administrative law. For example, provincial programs have managers who, among other tasks, make decisions on funding particular treatments not explicitly covered in the relevant laws and otherwise resolve borderline cases.79 Moreover, every province either has arm’s-length agencies making decisions regarding which drugs, diagnostic tests, and medical, dental, and surgical devices and procedures to adopt80 or relies upon the recommendations of an arm’s-length federal agency.81 As in any administrative law setting, administrative decisions in the health care context can be subject to judicial review, although as with other decisions viewed as “policy” decisions, decisions to, for instance, fund or not fund prescription drugs are likely not amenable to judicial review. Health care claimants begin by requesting public funding of health care goods from a decision-maker. This process is often indirect as questions of coverage often arise at the point of health care provision rather than in a direct conversation with the decisionmaker. At that point, it can be hard to identify the source of a barrier to coverage or access, let alone challenge that person. For example, it may be more difficult to challenge a “decision” (or, really, cluster of decisions) that ultimately result in a long waiting period for a hip operation. Where, however, coverage is explicitly denied (following, for example, a request for funding of a new cancer drug), one will often directly engage with the decision-maker to raise a complaint.

78 In Ontario, for instance, the “Physician Services Agreement” is the product of negotiations between the Ontario Medical Association and the Government Ontario. See e.g., the following government statement from a recent round of negotiations: Ofce of the Premier, “Statement of the Premier on Negotiations with the Ontario Medical Association” (18 May 2017), online: Ofce of the Premier . 79 See e.g., HIA – ON, supra note 73, s 4. 80 See e.g., Health Quality Ontario, “Ontario Health Technology Advisory Committee” (2019), online: Health Quality Ontario (also highlighting a “Genetics Advisory Committee” sub-group). 81 See e.g., Canadian Agency for Drugs and Technology Assessment, “About CADTH” (2019), online: Canadian Agency for Drugs and Technology Assessment .

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Where decision-makers continue to deny coverage, claimants may be required to exhaust internal review procedures before seeking administrative tribunal and/or judicial review. For instance, if one is denied coverage of a new therapy in Ontario, one must request a review by the Ontario Health Insurance Plan’s (OHIP) internal “Eligibility Review Committee” before launching a claim at the relevant administrative appeal tribunal, the Health Services Appeal and Review Board (HSARB).82 Specialized health care–specific appeal tribunals exist in Alberta, Manitoba, Ontario, New Brunswick, and Quebec.83 Where an administrative appeal body exists, one must generally initiate one’s appeal there. One can then request judicial review of the appeal body’s decision if there are concerns about the process followed or the reasonableness of the decision. The ability of existing tribunals to oversee decisions about which health care goods and services will attract public funding is, however, circumscribed by the ambit of the statute that establishes the tribunal. In most cases, health care–specific appeal tribunals have limited authority to reverse decisions. For instance, even where health appeal boards possess on-paper power to order coverage of some health care goods, their powers are severely constrained. Thus, Ontario’s HSARB has the power to hear appeals from persons who have been denied coverage under the insurance regime84 and those whose claims for “insured services” in or out of the province have been denied.85 On paper, it further possesses the power to “direct the General Manager to take such action as the Appeal Board considers the General Manager should take in accordance with this Act and the regulations,” and in the process, it “may amend a direction of the General Manager.”86 Yet HSARB lacks the authority to order the General Manager to act outside the boundaries of his discretion. The general manager of OHIP only makes decisions about the allocation of existing “insured services” in the province, and this means that HSARB cannot actually order the funding of new services in-province; the definition of what constitutes an insured service is decided prior to the kinds of decisions HSARB can review.87 Jurisdiction is similarly limited in other provinces. For instance, New Brunswick’s Insured

82 Ontario Ministry of Health and Long-Term Care, “Requesting a Review of Your OHIP Eligibility” (2017), online: . 83 Out-of-Country Health Services Regulation, Alta Reg 78/2006 [OHSR]; Te Health Services Insurance Act, CCSM c H35, ss 2, 9–10 [HSIA – MN]; MHLCARBA, supra note 73; General Regulation, NB Reg 84–20 [Gen Reg]; Health Insurance Act, CQLR c A–29, ss 1, 9–9.4, 18.1.18.4 [HIA – QC]. Nova Scotia took steps to create an appeal board but has not established one; Insured Health Services Act, SNS 2012, c 44, ss 39–51 (not in force). 84 HIA – ON, supra note 73, ss 20(1). 85 Ibid, ss 20(2). 86 Ibid, s 21. 87 See HIA – ON, supra note 73.

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Services Appeal Committee can only hear claims for seeking goods already covered by the system.88 Alberta’s board can only hear requests for out-of-country provision of goods not available there.89 Unsurprisingly, administrative tribunals have so far not been fruitful forums for increased access to health care. Appeals for out-of-country services have not been successful in the past.90 Success at HSARB more generally is sufficiently low as to draw public ire.91 Claimants rarely even try to secure funding for new services at HSARB. Between January and August 2017, for example, only one reported case before HSARB requested coverage of a new good by the public components of Ontario’s health care system.92 That request for dental implants was denied since the implants were excluded as insured services under the relevant act.93 Yet limited jurisdiction does not fully explain why appeal boards do not serve as a maximally valuable tool for increasing access to health care goods. While the relevant legislation in Manitoba and Quebec appears to provide broader authority for administrative tribunal review,94 those provinces’ relevant appeal tribunals also do not secure entitlements to otherwise uninsured health care goods. Where no appeal tribunals exist and/or after one exhausts administrative appeal opportunities, one can seek judicial review of the government and/or tribunal decision in a superior court. Superior courts have inherent judicial review jurisdiction over “decisions made by institutions and officials with responsibility for administering public programs.”95 Judicial review of administrative decision-making in any context, including the health care context, includes procedural fairness determinations and some substantive determinations.96 Administrative decisions must be procedurally fair, even when no fairness is guaranteed by statute, but the level of procedural fairness guaranteed varies with the context.97 Substantive review examines whether a decision-maker

88 Gen Reg, supra note 83, s 33.01. 89 OHSR, supra note 83, ss 11–12. 90 Caroline Pitfeld & Colleen M Flood, “Section 7 ‘Safety Valves’: Appealing Wait Times Within a One-Tier System” in Flood, Roach & Sossin, supra note 46, 477 at 485–488. 91 Jonathan Sher, “Successful Appeals Against OHIP are Rare” Toronto Sun (26 October 2014), online: Sun Media . 92 SO v Ontario (Health Insurance Plan), 2017 CanLII 32976 (ON HSARB). 93 Ibid. ML v Ontario (Health Insurance Plan), 2017 CanLII 44819 (ON HSARB) is also arguably relevant but was also an unsuccessful claim. 94 HSIA – MN, supra note 83, ss 9–10; HIA – QC, supra note 83, s 18.1. 95 Colleen M Flood & Jennifer Dolling, “An Introduction to Administrative Law: Some History and Signposts for a Twisted Path” in Flood & Sossin, supra note 74, 1 at 17. 96 Ibid at 24. 97 Ibid at 24–28.

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made “an error of the kind of magnitude that the court is willing to get involved in.”98 Yet the default position for judicial review is that tribunal decisions should be assessed using a reasonableness standard. Courts are only supposed to get “involved” where there is clear legislative intent that a correctness standard should apply on review or where the case raises a constitutional question, an issue that concerns the legal system as a whole, or questions about the jurisdiction of different tribunals that could address the issue.99 These circumstances will rarely arise in health care cases, so the standard of review will generally be a reasonableness standard. This more deferential standard is likely appropriate where judges lack special expertise about health care rationing and administrators are meant to possess it. Whether with respect to the procedures that are followed in making rationing decisions or with respect to judicial review of the decisions themselves, it seems that judicial review of health care-specific tribunal decisions is rare. Reviews that take place rarely lead to major change. Procedural fairness need not entail that reviews frequently result in substantive change, but the reviewability condition requires that decisions be subject to challenge and/or appeal and capable of revision in light of these challenges.100 The number of successful appeals raises questions about whether Canadian policy change indicative of revision is possible. The traditional path for challenging administrative decisions, then, begins with asking the original decision-maker to revise his or her decision, next goes through internal review procedures, can then lead to administrative tribunal review, and ends in judicial review. Yet administrative tribunals have little authority to enact change. Judicial review is also limited, and even when more broadly available raises the question of access to justice: Can ordinary individuals readily access the courts to challenge rationing decisions?101 Cost and standing requirements are just two barriers that could undermine access to courts. A newer administrative actor, the office of the ombudsperson, provides a non-judicial path for challenging decisions. This entity could be a quicker

98 Ibid at 24. 99 Vavilov, supra note 59. Prior to 2019, courts used the reasonableness standard where they were supposed to defer to decision-makers, which was the default, and used a corrected standard where less deference was warranted, as in cases concerning “questions of central importance to the legal system as a whole and outside the adjudicator’s special expertise”; ibid at 30, summarizing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. No changes between the cases are likely to impact how courts review health care allocationrelated decisions. 100 Norman Daniels & James E Sabin, Setting Limits Fairly: Learning to Share Resources for Health, 2nd ed (Oxford: Oxford UP, 2008) at 45. 101 See Flood, Roach & Sossin, supra note 46 for the classic text on this topic in Canada.

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and cheaper means to challenge rationing decisions and serve as a complement or alternative to appeals to administrative tribunals or judicial review. Ombudspersons receive complaints from the public about government action and/or study and report on possible governmental malfeasance. They offer recommendations on how the government can remedy the wrongs in legitimate complaints and/or write reports on the issues in question. An ombudsperson’s authority, like that of a government decision-maker, is constrained by the statute that created the office. Since enabling statutes do not give ombudspersons enforcement powers, governments are generally not bound to follow their recommendations.102 Where ombudspersons act beyond the scope of their authority, they too may be subject to judicial review by superior courts. Ombudspersons can influence health care allocation and/or funding decisions through their “recommendation” and “reporting” powers. Ombudspersons come in two relevant forms: general and health care–specific (viz., “health ombudspersons”). Legislation establishing ombudspersons to review and hear complaints concerning government action and to resolve outstanding issues has been enabled in Yukon and every province except Prince Edward Island.103 General ombudspersons can make recommendations to various entities about how to resolve issues. But they may not have authority over health104 and/or lack the special expertise needed to make decisions that would realize the pluralist right to health care. Quebec, Alberta, and Ontario all have health ombudspersons.105 Quebec’s health ombudsperson, for one, is charged with making recommendations about how best to realize that province’s legislative “patients’ bill of rights.”106 Patients’ bills of rights, which are sometimes discharged through ombudspersons’ recommendation and reporting powers, are pieces of “legislation enumerating and consolidating those patients’ rights that exist at common law as well as rights from other sources (e.g., duties that are described in

102 Ombudsman Act, RSA 2000, c O–8; Ombudsperson Act, RSBC 1996, c 340; Ombudsman Act, CCSM c O45; Ombudsman Act, RSNB 1973, c O–5; Citizens’ Representative Act, SNL 2001, c C–14.1; Ombudsman Act, RSNS 1989, c 327; Ombudsman Act, RSO 1990, c O.6 [OA – ON]; Public Protector Act, CQLR c P–32; Ombudsman Act, 2012, SS 2012, c O–3.2; Ombudsman Act, RSY 2002, c 163. 103 Ibid. 104 E.g., Ontario’s general ombudsperson specifcally cannot hear some health system–related claims; OA – ON, ibid, s 9. 105 Te relevant Alberta legislation includes Alberta Health Act, SA 2010, c A–19.5 [AHA] and Health Advocate Regulation, Alta Reg 49/2014. Te relevant legislation in Quebec includes An Act Respecting Health Services and Social Services, CQLR c S–4.2 and An Act Respecting the Health and Social Services Ombudsman, CQLR c P–31.1 [Health Ombudsman Act]. In 2015, Ontario appointed it frst patients’ ombudsperson under the Excellent Care for All Act, 2010, SO 2010, c 14, ss 13.1–13.7. 106 Health Ombudsman Act, ibid.

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medical codes of ethics).”107 Such bills, which also exist in jurisdictions without ombudspersons,108 could be enforced through traditional administrative law bodies, but in Canada they are usually paired with ombudspersons. At least some ombudspersons are tasked with ensuring that patients do not face barriers to accessing the services to which they are entitled in the mainstream system. They could, theoretically, get involved in disputes about coverage and recommend increased coverage of essential goods in provincial health care systems. For instance, Quebec’s health ombudsperson can get involved in a health care dispute if he or she “has reasonable grounds to believe that a natural person or a group of natural persons has been or may likely be wronged by an act or omission … [of anyone] to whom or which an institution has recourse for the provision of certain services.”109 There is no explicit bar on challenging coverage decisions in the mainstream CHA-based health care system. Indeed, Quebec’s health ombudsperson has specific authority to hear complaints about the services a patient (or his or her heirs) received or should have received from that system.110 If Quebec’s health ombudsperson were to use the full range of its (on-paper) powers, it could theoretically make recommendations about coverage of and barriers to accessing services. Public support for the ombudsperson could then lead to recommendations being followed and the right to health care being better realized. Ombudspersons in other provinces with similarly broad mandates could serve a similar substantive rights realization function. But at present, substantive success for claimants is still largely a promise. Possible Legal Paths Forward The reasons why the different branches of Canadian public law have not traditionally helped fill identified gaps in realization of the pluralist right to health care should now be clear. I will now explain how each branch could nonetheless help improve Canadian realization of the right, thereby also demonstrating the action-guidingness of my conception of the right to health care. Yet where the chances of successful implementation of some of my proposed changes may be low and there may be better non-legal avenues for improving rights realization, non-legal paths may still be needed to maximize the pluralist right to health care realization in Canada. 107 Colleen M Flood & Tracey Epps, “Waiting for Health Care: What Role for a Patients’ Bill of Rights?” (2004) 49 McGill LJ 515 at 517. 108 Mark Ammann & Tracey Bailey, “Alberta’s Patient Charter: Is It a Course Worth Charting?” (2011) 19(2) Health LR 17 at 19, 21–23; Patients’ Bill of Rights Regulation, BC Reg 37/2010 [BC Regulation]. 109 Health Ombudsman Act, supra note 105, s 20. 110 Ibid, s 8.

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(a) Constitutional Law Canadian constitutional law can and should realize a pluralist version of the right to health care. While one could attempt to use the law of Canadian federalism to adduce unique arguments for why the federal or provincial governments must do more to realize the right to health care,111 the “rights” provisions of the Canada’s constitution provide less contentious paths toward improvement in health rights realization. I accordingly focus on two types of rights here: the Indigenous rights recognized in Section 35 of the Constitution Act, 1982, and the rights recognized in the Canadian Charter of Rights and Freedoms (i.e., Charter rights). To begin, Section 35’s prospects as a tool for securing and/or expanding coverage and/or access to essential goods rely on the existence of specific Aboriginal or treaty rights securing those goods. Non-treaty Aboriginal rights to government provision of particular goods are not specifically included in Section 35(1) but have been recognized by courts and could ground a textual argument for an Aboriginal right to federally funded health care services. Aboriginal title is just one of the “generic” rights held by all Indigenous groups and protected under the constitution.112 These generic rights include rights to be treated in certain ways and to receive certain goods from the government.113 An influential “fair estimate” of judicially recognized generic rights may not include a right to health care or other essential services, but it includes rights to cultural integrity, honourable treatment by the Crown, and self-government.114

111 Te “federalism” provisions were once the primary means for making entitlement claims under Canadian constitutional law. A modern federalism-based argument could, for instance, state that the federal and provincial governments’ claimed authority over health care-related domains is only justifed where those governments actually provide the care: authority thus corresponds to duties to exercise that authority in a manner that will improve the subject’s health beyond the level provided absent regulation. In conjunction or alternatively, one could try to argue that Equalization and Regional Disparities, ss 36(1), Part III of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ERD] requires that Canadian governments provide some health care entitlements under Canadian constitutional law, building on arguments surveyed by Te Honourable Senator Noël Kinsella, “Can Canada Aford a Charter of Social and Economic Rights? Toward a Canadian Social Charter” (2008) Sask LR 7 at 11–13. While I think these arguments have more to favour them than many admit, they are viewed as unpersuasive by most readers and are even less likely to secure judicial support than other arguments canvassed here. 112 Brian Slattery, “Te Generative Structure of Aboriginal Rights” in Patrick Macklem & Douglas Sanderson, eds, From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (Toronto: U Toronto P, 2016) 100 at 103–115. 113 Ibid at 103–115. 114 Ibid at 103. While one may think self-governance and fduciary duties claims are inconsistent, see Kent McNeil, “Te Crown’s Fiduciary Obligations in an Era of Aboriginal Self-Government” (2009) 88(1) Can Bar Rev 1.

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At minimum, this should promote Indigenous public participation in health care and the protection of Indigenous health practices that could be understood as essential in those contexts. The constitution provides greater support for recognition of Indigenous health rights whose fulfilment would also help realize the pluralist right to health care. It clearly guarantees “Aboriginal” and treaty rights that existed under the law in 1982.115 While the federal government treats Indigenous health care programs as discretionary,116 its claimed authority over Indigenous health care may entail a duty to actually provide it that would require some programming. The federal constitutional power over Indigenous health care is not simply an implicit contract between the government and specific persons implicitly specifying rights and duties; it is, at least in the treaty bands case, the result of negotiations between actual recognized peoples, each of which may constitute a nation. The granting of federal powers over Indigenous persons was thus an explicit transfer of power between pre-existing nations. Where the federal government fails to provide better health care than Indigenous peoples would on their own and there are serious disparities in actual health care access and health outcomes for Indigenous peoples, there is reason to question whether the federal government is meeting its contractual duties under the constitution and can justify retaining authority in this domain. If the government were to cease funding the NIHBP without creating an equivalent program, the case for contractual breach would be stronger (and arguably also create grounds for a Section 15 argument). Indeed, the contractual duties sometimes include specific health care entitlements, such as a medicine chest for Treaty 6 parties,117 thus making the contractual duty explicit. The case for a duty to create a health care program for Indigenous peoples as a correlative over the right to govern their health care thus appears strong. It follows not only from the nature of all rights but also from the contractual nature of specific rights. Of course, jurisprudence suggesting that the government must exercise its authority under any head of power is lacking. Yet Aboriginal and treaty rights specify duties that could help realize my pluralist right that could stem from the claimed authority to regulate Indigenous health care.

115 Rights of Aboriginal Peoples, supra note 10. 116 Constance MacIntosh, “Indigenous Peoples and Health Law and Policy: Responsibilities and Obligations” in Jocelyn Downie, Timothy Caulfeld & Colleen M Flood, eds, Canadian Health Law and Policy, 4th ed (Toronto: LexisNexis, 2011) 575 [MacIntosh, “Indigenous”]. 117 Treaty 6, Between Her Majesty the Queen and the Plain and Wood Cree Indians and Other Tribes of Indians at Fort Carlton, Fort Pitt and Battle River with Adhesions, 1876, 1889, quoted in ibid at 589.

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Aboriginal rights jurisprudence thus provides an even stronger legal argument for Indigenous health rights. The rights to cultural integrity and selfgovernment could include (sub-)rights to practise certain forms of health care and to govern health care.118 Traditional medicinal practices existed presovereignty and continue to be practised. Indigenous governance over health care existed at the point of European contact. Where health is an important governmental concern with unique variations in the Indigenous context, recognition of Indigenous self-governance ought to entail at least limited health care jurisdiction and/or rights to participate in joint federal–Indigenous and/ or provincial–Indigenous health care systems and decision-making. The fact that many treaties do not contain extensive passages about health care supports the view that Indigenous powers over health and rights to practise traditional medicines are not extinguished and continue to operate. At minimum, existing Aboriginal rights include negative rights that could help realize positive ones. The original Aboriginal rights test developed in the context of possible criminal prosecution for participating in Indigenous fishing practices, limiting its potential impact.119 But the original Aboriginal rights test, which protects practices that existed prior to contact/sovereignty, could secure Indigenous rights to continue health care practices without sanction.120 Such non-criminalization could increase access to services, which may be essential in the cultural context, by increasing the number of persons willing to perform them.121 The fiduciary relationship between the Crown and Indigenous Canadians that the SCC recognizes as part of Section 35 could entail further rights to specific health care services and/or be used to secure the NIHBP and/or greater transparency in Indigenous health care services.122 The Aboriginal right to fair treatment by the Crown has its origins in an earlier doctrine of fiduciary law whereby Indigenous Canadians were placed under British Crown control but were deemed beneficiaries of a British Crown–led trust that was required to act 118 Michael Bryant, “Te State of the Crown–Aboriginal Fiduciary Relationship: Te Case for an Aboriginal Veto” in Macklem & Sanderson, supra note 112, 223 at 231. 119 Van der Peet, supra note 21. 120 Te rights may protect against non-criminal government sanction. See Hamilton Health Sciences Corp v DH, 2014 ONCJ 603 and Hamilton Health Sciences Corp v DH, 2015 ONCJ 229, but note the controversies, issues with reasoning, and procedural oddities in that case that required the latter “clarifcation” of the earlier ruling. 121 Of course, the scope of non-criminalization must be sufciently wide as to avoid the problems in Lamb, supra note 39. Simply decriminalizing a small number of services in limited circumstances may not sufciently increase access. Some criminalization of traditional practices or non-treatment may, in turn, remain justifed and necessary. 122 For recognition of Crown fduciary duties’ constitutional status, see Guerin v Te Queen, [1984] 2 SCR 335.

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in the best interests of Indigenous Canadians.123 This fiduciary duty supports the recognition of Aboriginal health rights but does not apply to all aspects of Crown–Indigenous relationships.124 It “depends on identification of a cognizable Indian interest, and the Crown’s undertaking of discretionary control in relation thereto in a way that invokes responsibility ‘in the nature of a private law duty.’”125 Given the duty’s origins in Canadian governments’ discretionary decisions to take control over aspects of Indigenous affairs, the duty continues as long as that discretion remains.126 Where a fiduciary duty exists, it creates “obligations of loyalty, good faith, full disclosure appropriate to the matter at hand and acting in what it reasonably and with diligence regards as the best interest of the beneficiary” and “opens access to an array of equitable remedies.”127 The content of these duties was largely developed in the title context, which means that lands once held by Indigenous persons are understood to be held in trust by the Crown. The SCC admits that the content varies even in that context.128 But the fiduciary duty owed to Indigenous peoples contains a (sub-) duty to consult.129 It may also create more substantive aims. It appears that the government took discretionary control over Indigenous health care and constitutionalized its continuing rule over that area through the federal division of powers. In her work on fiduciary duties in the context of the right to water, Constance MacIntosh has identified the following as evidence of a discretionary undertaking that grounds fiduciary duties: assertion over authority in the constitution, retaining authority over aspects of work after delegating authority, and creating policies over areas, particularly where they are inconsistent with self-governance.130 The same factual matrix arguably applies to the health care context. After all, the federal power over “Indians” clearly exists in the text of the Constitutional Act, 1867, and it developed in such a way as to include a power over Indigenous health care.131 This could

123 Te fduciary relationship is established by Sparrow, supra note 11 at para 59 and expanded to include discretionary powers over the lives of “Aboriginals” in e.g., Wewaykum Indian Band v Canada, [2002] 4 SCR 245, 2002 SCC 79 [Wewaykum]. 124 Wewaykum, ibid at para 81. 125 Ibid at para 85. 126 See e.g., McNeil, supra note 114 at 19. 127 Wewaykum, supra note 123 at para 94. 128 Ibid at paras 94–104. 129 Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, [2010] 2 SCR 650, 2010 SCC 43 at para 35 [Rio Tinto]. 130 Constance MacIntosh, “Te Right to Safe Water and Crown–Aboriginal Fiduciary Law: Litigating a Resolution to the Public Health Hazards of On-Reserve Water Problems” in Martha Jackman & Bruce Porter, eds, Advancing Social Rights in Canada (Irwin Law, 2014) 281. 131 See 1867, supra note 9, ss 91(24) and chapters 6–7.

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plausibly create corresponding governmental duties to the persons the government rules.132 As fiduciaries in the health care context, Canadian governments owe healthrelated duties to Indigenous Canadians. At a minimum, their fiduciary obligations include a duty to provide “full disclosure appropriate to the matter at hand.”133 Section 35 could thus be used to leverage greater transparency in the provision of Indigenous health care services. More broadly, while these undertakings likely do not create full rights to the NIHBP as such – an undertaking does not entail a duty to create a program in the first place or to continue one forever – they appear to create rights to essential goods in the existing NIHBP and to participation in Indigenous health care system design and delivery. The claim that insofar as the federal government runs the NIHBP, it must provide essential goods in it, is plausible even under restrictive understandings of when the Crown–Indigenous persons/groups fiduciary relationship applies. Any fiduciary relationship requires an undertaking. There are two approaches to the undertaking in the Crown–Indigenous fiduciary relationship: “articulate an omnibus undertaking, arising out of time of European contact and evidence by the Royal Proclamation of 1763 … [or] identify different undertakings for difference activities, as well as an undertaking respecting Aboriginal title.”134 The federal government agrees to provide certain services to a specific vulnerable population through various programs and plays an active role in implementing Indigenous health care services. At minimum, some of its specific programs, such as the NIHBP, appear to satisfy the definition of an undertaking and thus may be protected as part of the relevant fiduciary relationship even under the more restrictive understanding. More broadly, the federal government asserted sovereignty over Indigenous health and health care through the constitutional division of powers, thereby arguably establishing itself as fiduciary under the governing tests. The law exists to limit excesses of authority here. Section 35 thus offers an argument against deliberate retrogression in Indigenous health care: corresponding fiduciary duties are already constitutionally recognized. The duty to consult could, in turn, increase Indigenous participation in the Canadian health care system outside the self-governance context. The SCC recognizes the duty as part of Section 35. The relevant case law, which originally developed in the title context, states that the Crown must consult Indigenous

132 Section 35 and the fduciary law discussed throughout this section provide support for corresponding duties in the Indigenous context that is missing in the general context in which I dismissed this argument in note 111. 133 MacIntosh, “Indigenous,” supra note 116 at 596, quoting Wewaykum, supra note 123 at para 94. 134 Bryant, supra note 118 at 230–231.

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peoples on all matters that may impact their Aboriginal (and treaty) rights.135 While some right must be at least prima facie engaged to trigger the duty to consult, the duty exists even if specific health care–related rights do not. To comply with the duty, non-Indigenous stakeholders must not only consult with Indigenous stakeholders but also (sometimes) provide economic benefits to Indigenous stakeholders before a breach. At minimum, consultation duties can increase Indigenous participation in health care.136 Canada’s international commitments further suggest that Canada must recognize Indigenous health rights and help realize the pluralist right to health care for Indigenous persons. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) commits Canada to recognizing Indigenous peoples’ rights to “the improvement of their economic and social conditions, including … in the … health” domain,137 “their traditional medicines and … health practices, including the conservation of their vital medicinal plants, animals and minerals,” and “access [to] all social and health services.”138 It further binds the government to “take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.”139 These international commitments can only be fulfilled if Canada has a functioning health care system that is procedurally fair and provides adequate essential medicines as well as opportunities for Indigenous participation.

135 Rio Tinto, supra note 129 at para 35; Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 at para 35 [Haida Nation]. Nearly any health care decision could theoretically impact the treaty right to a medicine chest discussed below, so the duty to consult with Indigenous persons who are subject to that treaty is particularly strong. Yet regardless of whether there is a specifc Aboriginal or treaty right to health care services, the duty to consult test suggests that if health care decision-making could impact Aboriginal and treaty rights, Indigenous peoples have a right to be consulted in the health care decision-making process. 136 Te scope of consultation required depends on the strength of the claim to a right; Rio Tinto, ibid at para 36. If the claim is weak and Indigenous peoples already participate in some way in the decision-making process, the duty may be met. Raising it will not increase opportunities for Indigenous participation in health care decision-making processes. If it is strong, there are some indications that it may even create substantive sub-duties to provide particular services. Further note that I do not think that the “rights” test for the Métis in R v Powley, [2003] 2 SCR 207, 2003 SCC 43 substantially changes anything in this section. Te diference is in application, not output. Indeed, the fact that the point-of-contact test is less stringent in that case could make some rights claims easier for the Métis. 137 United Nations General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 107th Sess, UN Doc A/RES/61/295, (2007), art 21 [UNDRIP]. 138 Ibid, art 24. 139 Ibid, art 29.

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There is thus reason to interpret Section 35 in ways that would improve right to health care realization. Any time period commitments that limit Aboriginal or treaty-based arguments for health rights should be relaxed. Such impediments to a stronger treaty-based argument are at odds with the understanding of the Canadian constitution as a “living tree” that changes over time.140 Interpretative coherence and respect for Indigenous peoples as not merely historical but also contemporary actors demand that freezing treaty rights at the point of contract should be abandoned.141 The shift toward an “at sovereignty” date for title claims from an “at contact” test has already demonstrated judicial willingness to change tests that do not capture important ongoing interests. Insofar as Indigenous groups are contemporary peoples burdened by poor health outcomes as a result of past harms that need to be remedied using contemporary tools, the focus on the past in title cases has no real justification in the health care context. Abandoning the “at contact” test for health-related Aboriginal rights will open opportunities to improve Indigenous health care. This may require that Indigenous peoples be given opportunities to participate in the administration of the health care system consistent with the systemic component of the right. For instance, when divorced from a point-of-European-contact test, self-governance rights could support a right of taxation despite the lack of taxation mechanisms at the point of European contact, or a right to cultural integrity that entails a right to government funding necessary for performing Indigenous health care services that may be essential in their context. Self-governance would increase Indigenous participation in the health care system. If paired with revenue-raising rights,142 it could coexist with the ongoing coverage of essential goods on-reserve. Developing these arguments would avoid the concern that a focus on self-governance overlooks more important questions about securing funding for the services a government will supply. Even if these requirements run into other constitutional bars, some Indigenous health rights appear necessary. Section 35, then, offers tools for addressing deficiencies in Canada’s right to health care. Yet even if the preceding arguments fail, it is worth exploring whether Canadian governments would better realize the pluralist right to health care through new treaties, which could gain constitutional status if the claims about the status of post-1982 treaties are true. Given governments’ reluctance to recognize duties to Indigenous Canadians, I am sceptical as to whether these paths to increased health rights recognition will succeed any time soon.

140 Edwards, supra note 12. 141 See e.g., John Borrows, Indigenous Constitutionalism (Toronto: U Toronto P, 2016). 142 Douglas Sanderson, “Overlapping Consensus, Legislative Reform, and the Indian Act” in Macklem & Sanderson, supra note 111, 320.

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But this is also true of Charter rights. It does not fully undermine the theoretical value of either. Moving on to Charter rights, expansive interpretations of Sections 7, 15, and (perhaps) 12 could also improve rights realization. A rights-maximizing interpretation is consistent with international and transnational norms and does not require any great departure from the structure of existing Canadian legal norms. There are, of course, few signs that positive rights recognition is imminent in Canada. Constitutional prospects for such an expanded Section 7, including a positive right to health care, can be briefly summarized with two widely cited judicial statements. As noted by McLachlin CJ and Major J in Chaoulli (joined by Bastarache and concurring with Deschamps J in the Quebec human rights law–based final decision), the Charter “does not confer a freestanding constitutional right to health care,”143 but, as the SCC states in the welfare context of Gosselin v. Québec (Attorney General), “[o]ne day s. 7 may be interpreted to include positive obligations.”144 That day may be far off. Lower court decisions may recognize that the “door” to positive rights recognition remains “slightly ajar,”145 but they also continue to deny that there is a positive right to have a particular medical service covered under a health insurance regime or to otherwise have the government provide a particular health care service.146 Section 15’s commitment to substantive equality and procedural fairness may make it a more historically valuable tool for realizing the pluralist right to health care than Section 7. Yet jurisprudence will need to build on a more liberal reading of Eldridge, rather than Auton et al., if Section 15 is going to serve this function. There are few indications that a such a health rights–friendly test for Section 15 compliance is forthcoming. Section 12 arguments are very new. Attempts to create positive entitlements to reform the IFHP or the NIHBP also face issues. Yet the SCC has not faced a positive rights case in some time.147 In the lag between SCC cases, political and social circumstances changed substantially. It is now appropriate for the SCC to recognize positive rights. Recognition of positive elements of Charter rights would help realize the pluralist right to Chaoulli, supra note 3 at para 104. Gosselin v Québec (Attorney General), [2002] 4 SCR 429, 2002 SCC 84 at para 82 [Gosselin]. Tanudjaja v Canada, 2014 ONCA 852. E.g., Flora v Ontario (Health Insurance Plan, General Manager), 2008 ONCA 538. Courts deny this even when acknowledging that persons have a right of access to a health care regime; Refugee Care, supra note 38; Covarrubias v Canada (Minister of Citizenship and Immigration), [2007] 3 FCR 16 [Covarrubias]. Other cases deny any “rights” to access a good or regime; e.g., Toussaint v Canada (Attorney General), [2013] 1 FCR 374. 147 Many challenges do not reach the Supreme Court of Canada. Others that reach it do not address constitutional questions there. E.g., no constitutional arguments were adduced on appeal in one of the most famous recent health care–related Supreme Court of Canada cases, Cuthbertson v Rasouli, [2013] 3 SCR 341, 2013 SCC 53.

143 144 145 146

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health care. Contrary to the assumptions of many, doing so is consistent with the basic structure of Canadian constitutional law. A right to procedural fairness in health care decision-making and administration follows from Charter commitments to equality/non-discrimination.148 So do procedural dimensions of a right to a functioning health care system. There are also persuasive reasons to recognize positive rights to some health care goods as elements of existing Charter rights, and a right to a functioning health care system is necessary to realize those rights. To begin, there are no signs that the SCC is moving toward realizing Gosselin’s potential,149 but the judiciary can and should return to and build on Gosselin without creating interpretive problems. Justice Arbour’s dissent in Gosselin makes a strong case that Canadian constitutional law should recognize positive rights.150 While the other justices did not join Arbour J in her judgment, her reasoning in the case is compelling and examines the relevant material from a variety of perspectives that together overdetermine the case for recognition of positive components of rights. Changes in facts and some legal doctrines suggest the court would not be running afoul of the basic norms of SCC decisionmaking according to which the court does not overturn its own decisions absent major changes if it were to follow her reasoning. I will review her arguments for positive components of Section 7 and then provide arguments for positive constitutional rights in Canada and demonstrate why reluctance to recognize these arguments is misplaced. According to Arbour J, “every suitable approach to Charter interpretation … mandates the conclusion that the s. 7 rights of life, liberty and security of the person include a positive dimension.”151 First, Arbour J notes, many constitutional rights already include positive dimensions.152 The structure of Section 7 in particular suggests that it must have a positive dimension: where Sections 8 to 14 of the constitution outlined principles of fundamental justice, at least some of those provisions recognize positive rights, and the scope of Section 7 is

148 Charter, supra note 11, s 15. See also discussions of how equality and non-discrimination rights entail procedural fairness in previous chapters. 149 Gosselin, supra note 144. 150 While economic rights, the positive/negative rights distinction, and justiciability were preliminary issues in her decision, she made forceful arguments for recognition of positive and economic rights; ibid at paras 310–335. 151 Ibid at para 357. 152 Ibid at para 320, highlighting “rights to vote (s. 3), to trial within a reasonable time (s. 11(b)), to be presumed innocent (s. 11(d)), to trial by jury in certain cases (s. 11(f)), to an interpreter in penal proceedings (s. 14), and minority language education rights (s. 23)” as examples of rights that “impose positive obligations of performance on the state and are therefore best viewed as positive rights (at least in part).”

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such that it is only violated when an infringement does not conform to the principles of fundamental justice; thus, Section 7 is inextricably linked with positive rights.153 In fact, she suggests, case law already recognized positive dimensions to the right pre-Gosselin.154 Charter norms require some positive rights. Second, Arbour J argues, limiting the right to its negative elements renders the right purposeless by making its substance reducible to the principles of fundamental justice and a limited right of non-interference that arguably exists outside the provision and cannot plausibly express the full content of a right to life, liberty, and security of the person that should be understood as a fundamental right; Section 7 should be a “progenitor” of other rights that helps one access other rights; it has little independent purpose when it is simply negative in nature.155 Finally, Arbour J argues, the placement of Section 7 in the context of a document in which other rights are positive and the general limitation clause in Section 1 requires that states “arbitrate competing demands arising from the liberty and rights of others” suggests that the right to life, liberty, and security of the person can and does have a positive dimension.156 Justice Arbour’s arguments for positive components of Section 7 at least justify recognizing positive health entitlements as part of Section 7, which would help realize goods-based components of the pluralist right to health care; some forms of health care are plausibly necessary for life, liberty, and security of the person.157 There is reason to think that her then-dissenting arguments have greater salience today. For instance, changes in social facts since Gosselin suggest that the SCC can now follow Arbour J’s dissent without running afoul of the court’s basic commitment not to overturn its own decisions absent major changes. Courts overturn previous precedents when political and social facts change. The health care context offers one of the more compelling examples: Carter v. Canada (Attorney General)’s holding that the criminal prohibition on assisted death violated Section 7 and, contra the earlier decision in Rodriguez v. British Columbia (Attorney General), was non-compliant with Section 1 of the Charter, relied heavily on new social and political facts related to assisted 153 Ibid at para 323. 154 Ibid at para 324. 155 Ibid at paras 345–347. Justice Arbour also makes a linguistic argument for both elements at paras 337–338. Respectfully, I fnd that argument less persuasive and thus do not detail it here. 156 Ibid at para 350–351, 355. Te quoted material is at para 355. 157 Justice Arbour’s later statement that a principles of fundamental justice analysis is improper in positive rights cases is grounded in a narrow understanding of those principles as only applying to fundamental features of the legal system and leaves a lacuna in how the principles will apply in such section 7 cases; ibid at paras 386–387. Tis is a lacuna that should be flled, not an argument against the general validity or persuasiveness of Arbour J’s arguments.

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death.158 Social and political facts have changed since the SCC last stated that Section 7 does not include positive rights. Those changes are analogous to the changes in legislative and social facts in Carter, which focus on changes in academic and lay opinion and on developments in the policies of foreign states.159 Academics are continually questioning the positive rights/negative rights distinction in ethics and law that is crucial to non-recognition of health rights.160 Foreign legal experience (in India, for example) demonstrates that expanding a right to life to include a positive right to certain health care goods need not bankrupt countries or have other disastrous impacts.161 This parallels the SCC’s recognition that foreign legal experiences can count as evidence of changing social and legal facts in Canada in Carter.162 Increased recognition of social rights, including in the comparative context, could amount to a change in social facts that justifies legal changes.163 Canadian recognition of the UNDRIP could constitute an explicit change in the government’s understanding of its commitments, including its health care commitments.164 Changes in Indigenous rights, then, can also be evidence that changes in the structure of Charter rights are doctrinally justifiable and advisable to realize international commitments.165 158 Carter, supra note 39, overturning Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519. 159 Two of the most relevant changes for the holding are changes in legal doctrines, namely changes in the doctrines of overbreadth and grossly disproportionate efects. Tese facts are employed for the same reasons as the actual social facts in Carter, ibid at para 46. Tey are then actually applied in ibid at paras 85–90. 160 Recall e.g., Henry Shue, Basic Rights: Subsistence, Afuence, and U.S. Foreign Policy, 2nd ed (Princeton: Princeton UP, 1996); Stephen Holmes & Cass Sunstein, Te Costs of Rights (New York: WW Norton, 1999). Neither argues for constitutional rights to health care. Teir respective challenges to the positive rights/negative rights distinction nonetheless also challenge Charter orthodoxy (though, as noted previously, I see value in the distinction). 161 See e.g., Shylashri Shankar & Oratap Bhanu Mehta, “Courts and Socioeconomic Rights in India” in Varun Gauri & Daniel M Brinks, eds, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge UP, 2008/2010) 146 at 173, 155; Ottar Maested, Lise Rakner & Octavio L Motta Ferraz, “Assessing the Impact of Health Rights Litigation: A Comparative Analysis of Argentina, Brazil, Colombia, Costa Rica, India, and South Africa” in Alicia Ely Yamin & Siri Gloppen, eds, Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge: International Human Rights Clinic, Human Rights Program, Harvard Law School, 2011) 273. Both texts note that the right there is imperfectly realized. 162 Carter, supra note 39 (but note the importance of the trial judge’s cautious use at para 25). 163 Recall e.g., Courtney Jung, Ran Hirschl & Evan Rosevear, “Economic and Social Rights in National Constitutions” (2014) 62 Am J Comp L 1034 at 1054. 164 UNDRIP, supra note 137. 165 Gosselin, supra note 144 itself may have presented an appropriate time for positive rights recognition even if one does not accept Arbour J’s dissent in full. While I cannot argue this point in full, I think those who use Gosselin for the proposition that the time for positive rights has not yet come too easily ignore the poor evidentiary case made by Gosselin. Building on the logic of Gosselin with more reasonable facts should introduce positive rights.

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Comparative and international law further supports recognition, in the sense that recognition of some positive health rights would place Canada more firmly in the global normative mainstream. Other states recognize that their equivalent of Section 7 entails a right to health care. Though such claims often arise in the context of states in which health rights are aspirational ideals – which is not true in Canada – Section 36 of the Constitution Act, 1982, could be read as an aspirational ideal that is analogous to the aspirational “right” to health care that India’s Supreme Court combined with that country’s Section 7 equivalent to create a justiciable right to health care.166 As of writing, 41 per cent of states recognize justiciable health rights.167 Recognition of a positive right to health care would thus be consistent with emerging transnational constitutional norms. It would also be consistent with Canada’s international commitments. While Canada’s international right to health commitments do not explicitly require recognition of a constitutional right to health, explicit constitutional recognition would be a symbol of compliance. Similar arguments could be used to develop positive elements to Sections 12 and 15. Indeed, Arbour J’s dissent states that Section 15 is already recognized as containing positive elements.168 While Sections 12 and 15 lack the transnational support for building a positive right to health care out of their equivalents (support that is afforded to Section 7), international commitments also support building health rights components out of those provisions. Social facts also changed in those contexts. Changes in Section 15 doctrine, in turn, suggest that there are legal changes that can help justify courts departing from established doctrine on the possibility of using the provision to help realize the pluralist right to health care. The need to establish a clear comparator class that was given the benefit historically served as a barrier to establishing differential treatment and a denial of benefits that could ground a Section 15 claim;169 the need for a mirror group that received the benefits was often difficult to establish. But the SCC now allows more flexibility in the identification of comparator classes and does not require a clear mirror.170 The tests for compliance with Section 15 are also changing quickly. The last decade saw three new tests develop.171 These changes are sufficiently large to justify examination of other doctrines that were developed in tandem with the now-replaced Section 15 requirements and tests. Section 15 in particular would better protect the coverage of essential goods as well as accountability for reasonableness if the “benefit provided by the law” 166 167 168 169 170 171

Read ERD, supra note 111 in light of notes 33 and 161. Jung, Hirschl & Rosevear, supra note 163 at 1054. Gosselin, supra note 144 at para 323. As noted earlier, this was even a problem in ibid. Withler v Canada (Attorney General) , [2011] 1 SCR 396, 2011 SCC 12. Te current test is in A, supra note 36; Taypotat, supra note 36. It followed the new test in ibid, which replaced the test in R v Kapp, [2008] 2 SCR 483, 2008 SCC 41.

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criterion for non-compliance was loosened. Auton states that where a benefit is not “provided by law,” it cannot ground a claim.172 Since the “funding for all medically required services – was not provided for by the law,”173 the claim that “funding some non-core therapies while denying equally necessary ABA/IBI therapy” violates section 15 likewise could not succeed.174 No one has a right to all non-core services; the provision of non-core services is discretionary in the CHA-based scheme.175 The consequent “benefit provided by law” criterion currently serves as a barrier to the use of Section 15 to realize the right to health care, let alone to fashioning a right to health care. Past attempts to secure health care entitlements under Section 15 faced a burden of establishing that substantive equality violations were the result of a benefit being given to one group and not to another.176 This may no longer be doctrinally appropriate since new tests for Section 15 compliance now govern.177 But regardless of whether this is so, the “benefit provided by law” requirement was never theoretically appropriate. It is inconsistent with the spirit of Section 15 jurisprudence and can have absurd results from legal and health care policy perspectives. Auton is at odds with the spirit and the text of Eldridge. Eldridge granted its deaf claimant access to translation services even though translation services in general were not a benefit provided under law to the non-deaf.178 It at least provides a prima facie case for the use of Section 15 to secure entitlements to health care–related goods. While the benefit provided by law criterion was not obviously operative there,179 the benefit-granting scheme in Eldridge and Auton was the same: the mainstream CHA-based health care system. While Eldridge was read down post-Auton such that it only grants equal access to the health care system, the text of Eldridge even as distinguished in Auton requires the provision of benefits not granted by the system but necessary to access it. It is difficult to see why these cannot be positive entitlements. The spirit of the case, in fact, seems to require the provision of new benefits. These could include the coverage of essential goods needed to access the system as well as the removal of barriers to access. The spirit (and likely logic) of Eldridge requires the provision of certain goods that members of groups explicitly protected by Section 15 need in order to access the health care system. The same recognition of the fundamental importance

172 Auton, supra note 43 at para 47. A section 7 argument was also raised in lower-level proceedings but was barely mentioned at Supreme Court of Canada (see paras 64–67). 173 Ibid at para 36. 174 Ibid at para 39. 175 Ibid at para 44. 176 Ibid. 177 A, supra note 36; Taypotat, supra note 36. 178 Eldridge, supra note 28. 179 Auton, supra note 43 at para 38.

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of equal access to essential services could be used to suggest that current barriers to accessing the health care system that are disproportionately faced by members of particular groups – for example, co-payments for accommodation – need to be removed for the same reasons. Furthermore, the test in Auton threatens to freeze the content of Section 15. If Section 15 is always limited by existing statutes, rights within it appear legislatively frozen where the benefit under the law test remains operative. Section 15 cannot grow unless other laws change. The “soil” is too easily rendered barren. This test can also freeze the content of mainstream health care programs in a manner that has absurd consequences for Section 15 and health care policy purposes. Per Auton, if one fails to cover a good under a health insurance regime, there is no benefit under the law, so failure to provide it cannot constitute discrimination. The government can always choose not to include goods on their list. Auton specifically allows one not to cover non-core services. Many find this holding plausible in the context of controversial therapies with questionable efficacy such as ABA/IBI therapy. It seems less plausible in other cases. Failure to provide insulin, which many people require due to a recognized disability, does not run afoul of the Auton test either. Governments continue to exercise their “discretion” not to provide insulin absent any judicial mechanism for the disabled that would compel coverage or provision of insulin. People die as a result. This is clearly bad from a health care policy standpoint. Given the constitution’s broader commitment to life and to the well-being necessary to enjoy other rights – not to mention its formal superiority to the legislation that it is freezing here – reading Section 15 in a way that renders it unable to help in this case is also legally problematic. Indeed, even those who find the non-coverage of insulin acceptable should find other implications of Auton implausible. The government could choose to provide no benefits under a legislative scheme and still not run afoul of the Auton test. This has absurd consequences in the pharmaceutical context more generally. Absent some judicial intervention, it is unlikely that Canada and/or its provinces will ensure adequate access to essential medicines. Canada is “the only advanced economy with a universal health care system that excludes universal coverage of prescription drugs.”180 Governments and independent reports have been calling for universal “Pharmacare” since at least 1964.181 Even the current federal government’s proposed national pharmaceutical coverage program will not ensure universal care – and it may

180 Steven G Morgan et al., “Estimated Efects of Adding Universal Public Coverage of an Essential Medicines List to Existing Public Drug Plans in Canada” (2017) 189 CMAJ E295 at E295. 181 Ibid at E296. See also Colleen M Flood et al., “Universal Pharmacare and Federalism: Policy Options for Canada” (2018) 68 IRPP Study 1 at 7.

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not be implemented in any case.182 Section 15 cannot have the teeth necessary to resolve this health care policy failure under the logic of Auton. It could be nearly empty under that logic, creating good legal reason to abandon Auton’s benefit provided by law test. If the government were to eliminate the CHA, NIHBP, IFHP, and all other health care and provide no health care benefits at all to anyone, this would not create a Section 15 claim under the logic of Auton. Section 15 would – implausibly – be silent in such a case. The argument for using Section 12 to improve realization of at least parts of the right to health care is less developed by the judiciary (or academics), which means that it does not need to overcome major jurisprudence limiting its potential and that there are minimal jurisprudential building blocks that favour it. There is reason to think that an interpretation of Section 12 that could improve goods- and system-based components of the right to health care has merit. As noted earlier, Section 12 was recently used to develop a positive health right, though the implications of recognition remain to be seen. Refugee Care held that removing certain goods or persons from the IFHP violated Section 12. A similar logic could apply to other cases of removing goods or persons from health care programs. One may attempt to build on Refugee Care to suggest that failure to provide coverage in the first instance is similarly cruel and unusual where the health care goods in question are necessary for a dignified existence. Textual support for a narrower reading of the case limits but does not eliminate this potential. The holding in Refugee Care relied heavily on the fact that claimants were vulnerable persons. The court held that setting “out to make the lives of disadvantaged individuals even more difficult than they already are in an effort to force those who have sought the protection of this country to leave Canada more quickly, and to deter others from coming here,” potentially jeopardized “the health, and indeed the very lives, of … innocent and vulnerable” children in particular.183 A narrower reading of the case suggests that deliberate choices to make the lives of vulnerable persons under direct governmental control more difficult violates Section 12. Even this holding makes Section 12 a force for protecting the IFHP and avoiding deliberate retrogression. It suggests that Section 12 cannot serve a similar function for mainstream or NIHBP contexts (i.e., where the claimants are not under direct government control); but it

182 Advisory Council on the Implementation of National Pharmacare, A Prescription for Canada: Achieving Pharmacare for All – Final Report of the Advisory Council on the Implementation of National Pharmacare (Ottawa: Minister of Health, 2019) provides the details on the proposal. Again, see also Colleen Flood, “Proposed Pharmacare Plan Is a Diferent Beast from Medicare” Policy Options (14 June 2019), online: Policy Options . 183 Refugee Care, supra note 38 at paras 698–691. Te same logic applies to the potential impact on adults.

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does not suggest that Section 12 cannot be used to create some positive health care entitlements. There is, then, ample reason to recognize positive dimensions to Sections 7, 12, and 15 of the Charter and to eliminate the barriers to positive rights recognition under existing Section 15 doctrine. Despite these arguments, courts continue to state that the time for positive rights recognition has not yet come. There is also ample reason to question that claim. Part of the reason why courts refuse to recognize positive Section 7 or 15 rights even when faced with sympathetic litigants (and, perhaps, why Section 12 development is nascent at best) is a concern with the economic impact of positive rights recognition. Fiscal concerns clearly animate some of the arguments against positive rights elsewhere in this text. But, as I will now argue, the pluralist right to health care would be immune to this line of critique if properly implemented in Canada. The argument that realizing a right to health care in any form is a threat to the government purse takes at least two forms. First, constitutional health rights can reach an extreme end of the Problem of Scope. The list of goods necessary to access the health care system under Section 15, for instance, could be too narrow to fulfil the substantive demands of the right to health care to cover essential goods. The past experience of Colombia suggests that an overly broad right to health care can leave governments unable to provide even essential health care services.184 Such an inflated right could risk bankrupting the system and/or making the provision of other social services more difficult.185 The WHO-recognized list of essential goods provides a good metric for assessing whether states are fulfilling the right to health care, but it is not intended to serve as a test for health care goods that must be covered under national constitutional laws. It may face the Problem of Time and Space. States may cover too much, including inordinately expensive life-saving drugs. Second, the creation of new grounds for constitutional complaints may create additional legal costs for the health ministry and the wider legal system. After recognizing constitutional health rights, Brazil, Colombia, and Costa Rica all saw more cases than 184 Alicia Ely Yamin, Oscar Parra-Vera & Camilla Gianella, “Colombia: Judicial Protection of the Right to Health: An Elusive Promise?” in Yamin & Gloppen, supra note 111, 103. While Everaldo Lamprea, “Colombia’s Right-to-Health Litigation in a Context of Health Care Reform” in Colleen M Flood & Aeyal Gross, eds, Te Right to Health at the Public-Private Divide: A Global Comparative Study (Cambridge: Cambridge UP, 2014) 131 tells a more positive story about constitutional health rights in Colombia, even he acknowledges the severe fnancial strain of at least the pre-2008 implementation of these rights. 185 Even Jef King, a proponent of a “healthy subsistence threshold” and the constitutionalization of social rights as a means of ensuring this social minimum, notes that the threshold only avoids controversy if one can “bracket the notably vexed issue of funding life-saving drugs and rationing medical services for persons nearing the end of their lives”; Judging Social Rights (Oxford: Oxford UP, 2012) at 31 [King, Judging].

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their judicial and administrative systems could adequately address. Siri Gloppen and Mindy Jane Roseman describe these countries as facing an “epidemic” of litigation.186 A single Brazilian state faced more than 17,000 health-related claims in 2009 alone, 72 per cent of which concerned access to medicines.187 More than 600,000 claims were made between 1999 and 2008 in Colombia.188 All else being equal, additional legal costs could follow additional grounds for legal complaints in Canada. The Canadian legal system and Canadian constitutional law are structured so as to avoid both fiscal problems with realizing the right to health care, especially in the constitutional law context. Canada’s more stringent standing requirements and adoption of the principle of stare decisis will make any Canadian caseloads far more manageable than those in the problematic South American civil law states. Canada will not allow as many claimants into the courtroom as Brazil, Colombia, and Costa Rica. Once a legitimate claim arises and health care entitlements are granted, stare decisis means the case only needs to be litigated once before all persons who have constitutional claims to those goods will have their rights recognized.189 Commitments to gradualism and Section 1 of the Charter would thus stop any Canadian constitutional right to health care from reaching the extreme ends of the Problem of Scope. Jeff King suggests that incremental judicial interpretation can help Canada produce a feasible right to health care.190 Per King, incrementalism (viz., gradualism) allows complex data to be dealt with in a fragmented way and makes sure that the realization of rights by other organs of government is not impeded, providing “a set of techniques for controlling the 186 “Introduction: Can Litigation Bring Justice to Health?” in Yamin & Gloppen, supra note 161, 1 at 1. 187 Joao Biehl et al., “Between the Court and the Clinic: Lawsuits for Medicines and the Right to Health in Brazil” (2012) 14(1) Health and Human Rights 36. 188 Yamin, Parra-Vera & Gianella, supra note 184 at 104. For an update on this experience, see Alicia Ely Yamin, “Te Right to Health in Latin America: Te Challenges of Constructing Fair Limits” (2019) 40(3) U Penn J Int’l l 695. 189 Te costs of such litigation may still prove prohibitive. E.g., Florian F Hofman & Fernando RNM Bentes, who contribute to that volume, fnd a correlation between access and afuence; “Accountability for Social and Economic Rights in Brazil” in Gauri & Brinks, supra note 161, 100 at 145. Public defenders and/or public interest standing for groups representing poor health rights claimants could help assuage this concern. King, “Capstone,” supra note 4 at 318–319 suggests that stare decisis too can be more easily leveraged by the wealthy. I take King’s point, which could be evidence that constitutional law is not the best tool for realizing any social rights. I nonetheless believe that the empirical record on social rights realization supports a constitutional regime with stare decisis over a constitutional regime without it. I suspect that King does not see its relative value due to a more optimistic view of the Brazilian case, which he seems to read as less problematic than I do. 190 King, Judging, supra note 185 at 110.

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expansion of positive obligations” and thereby ensuring that they do not grow to “unsustainable levels.”191 The preceding suggests that health rights in Canada are more likely to fail to cover a sufficient number of goods than they are to bankrupt the system, but King’s concern about an overly expansive right is a legitimate one, and he identifies the correct solution to it. As he rightly notes, gradualism should avoid the worst excesses of scope. In particular, gradualism that begins with the essential goods specified earlier should minimize the potential for an unacceptably large Canadian right to health care. Starting with the WHO’s Model List of Essential Medicines limits the focus of the right. One specification of the list for the Canadian context limited Canada’s needs to a mere 125 medications.192 That list was admittedly based on the work of only a few scholars and a limited review process and omits cancer treatments and other medicines prescribed outside of primary care that could be plausible candidates for goods necessary for a dignified life.193 Even a gradualist approach to the right to health care may be more expansive than the 125 medications listed here. But focusing on a small list of goods, including at least those affordable goods listed on the revised Canadian-tailored essential medicine list, should allow the judiciary to begin recognizing the right in a way that does not threaten the public purse. As the judiciary sees the implications of recognition on health care outcomes and other government spending, it can better understand the implications of its decisions. As it gradually adds entitlements, it will accrue data on the impact of entitlements on health outcomes and government spending that it can use to tailor the scope of the right to health care for Canada in a fiscally responsible manner. One would hope that federal and provincial governments would cover the essential goods provided that they were effective and did not threaten the public purse, but they are unlikely to do so absent judicial intervention. The judiciary could begin by recognizing a right to a good that is on the tailored essential medicines list, inexpensive, and plausibly required for dignity. Beginning with goods not covered by provincial drug benefit plans for the aged, poor, and other marginalized/vulnerable groups would make for an even stronger starting point as it would impede a government from arguing that it made a justifiable decision after weighing vulnerability and cost concerns. (Certain goods are covered by,

191 Ibid at 1–2, 289, 316. 192 Michael S Taglione et al., “Development of a Preliminary Essential Medicines List for Canada” (2017) 5(1) CMAJ Open E137 at E142. Tat study tailored the WHO’s 2013 Model List of Essential Medicines to the needs of the Canadian population; see also Morgan et al., supra note 172. Te WHO subsequently updated the Model List of Essential Medicines (twice), but, as noted below, insofar as any change in fnancial implications for Canada can be expected, there is reason to think the costs would be lower with the current list. 193 Taglione et al., ibid at E140, E142.

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for instance, the Ontario Drug Benefit Plan, so the government may claim that such distinctions are based on need or an otherwise acceptable form of public rationing.) But, over time, the right could and should expand to ensure universal coverage of such goods under the mainstream health insurance system. Antipsychotics and antidepressants, for instance, are necessary for ensuring dignity regardless of whether one belongs to a marginalized/vulnerable group. They are a plausible starting point for gradually filling in the content of a constitutional right to health care. As we see the financial implications of granting these rights, we can begin to test whether they threaten the system’s viability. We can then tailor gradual recognition of the scope of the right over time, eventually recognizing other goods necessary for a dignified life, such as basic maternal and infant care, assessing each new claim in light of the actual real-world implications of prior rights recognitions in Canada. Governments appear unwilling to even test coverage at present, so judicial intervention appears necessary. Gradualism should avoid the worst potential financial implications of recognition. In fact, far from threatening the public purse, gradualist recognition could make sound economic sense. A recent study of the Canadian-tailored essential medicines list found that universal coverage of essential medicines not currently covered outside of the hospital and physician care contexts would save “$4.27 billion per year (range $2.72 billion to $5.83 billion; 28% reduction) for patients and private drug plan sponsors, at an incremental government cost of $1.23 billion per year (range $373 million to $1.98 billion; 11% reduction).”194 Scholars suggest that coverage for these essential goods could reduce the cost of pharmaceuticals and be a good starting point for a national pharmaceutical plan.195 Far from bankrupting the Canadian health care system, health insurance coverage for essential medicines would improve economic efficiency of general Canadian health care spending. Governments are unwilling or unable to provide universal insurance coverage for them. A right to the goods would correct this economic error. Gradualism as a general matter is not wholly unproblematic. If the “gradual” realization takes too long, failing to secure even the basic content of the right over a long period of time, this unwelcome outcome could constitute an effective denial of the right that chills other activities that could more effectively realize the right: “Waiting for rights may be an especially passive, disempowering and anti-solidaristic experience.”196 Gradualism in Canada may be particularly 194 Morgan et al., supra note 180. 195 Taglione et al., supra note 192. 196 Katharine G Young, “Introduction” in Young, Future, supra note 4, 1 at 33, building on arguments in Katharine G Young, “Rights and Queues: On Distributive Contests in the Modern State” (2016) 55 Colum J Transnat’l L 65. Portions of Katharine G Young, Constituting Economic and Social Rights (Oxford: Oxford UP, 2012) suggest she is not wholly opposed to gradualist decisions. But she identifes sources for a criticism of gradualism as general policy.

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susceptible to insufficient growth given that gradual constitutional entitlements in Canada have been followed by federal “implementation” legislation that only secured narrower entitlements than those provided by the judicial decision, requiring further litigation to even secure the initial entitlement, let alone continue “gradual” recognition of further components of the underlying right.197 There are, moreover, institutional barriers to courts adopting gradualism with respect to the content of a constitutional right to health care. The cost of litigation alone likely suffices to ensure that only claims by the wealthy will get before decision-makers.198 Whether courts can or should take notice of the profiles of these litigants and build that into their decisions is questionable. Courts may also lack the institutional capacity and jurisdiction to apply gradualist analysis tailored to the demands of the pluralist right to health care. Limits on their ability to control their own dockets, on the kinds of evidence that can go before courts, and on the kinds of consideration courts are generally expected to address when deciding cases may limit their ability to ensure that the right grows “gradually” over time. Many courts are only supposed to decide the particular case before them, applying legal reasoning to the facts of a particular circumstance so as to ensure justice between the parties before them. Courts may accordingly not be able to appeal to the cumulative effect of their decisions to decide any particular case. Questions remain about whether they are well-placed to assess those effects. Judicial decision-making is supposed to contrast with the discretionary political decision-making that weighs competing interests against one another to ensure the public good over time. Gradualism is, however, appropriate at least in the case study at issue here. The aforementioned paradigmatic examples of goods necessary for a dignified existence provides a test that courts could not appeal the effects of their past decisions when deciding particular cases. If courts interpret the right as only applying to the goods necessary for a dignified existence, this should limit the content initially to paradigmatic examples and only allow growth over time where common law reasoning finds sufficient similarities between the paradigmatic goods necessary for a dignified existence and the good that is the subject of a particular right to health care claim. Even if the costs of litigation mean that only wealthy litigants make it to court, then, their claims for expensive goods that are not necessary for basic dignity are likely to fail, maintaining gradualist 197 Recall e.g., the Lamb litigation mentioned in note 39. Te initial legislative response to Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 could have likewise led to relitigation of that case. 198 Recall the discussion of wait times for courts from chapter 6. Ten note that litigation at every stage is bound to be expensive. Te Court Challenges Program does mitigate costs for a very narrow band of constitutional challenges, but that program will not relieve the costs for many litigants and has been eliminated by governments in the past.

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expansion and avoiding the Problem of Scope. We do not need to resolve any questions about whether the profile of litigants matters to reach this result. A constitutional right to health care can thus grow gradually in Canada even if courts cannot appeal directly to the impact of past decisions when making new ones. But Canadian courts can appeal to the results of past decisions in some circumstances. Indeed, Canadian courts can change their tests for rights fulfilment when they reach results that are inimical to a plausible understanding of the purpose of the underlying right. This is why the test for compliance with Section 15 has changed so often. Also, the test for what qualifies as sufficiently similar to the paradigmatic goods could be refined over time as we better understand whether a particular decision is necessary for a dignified existence. And again, Canadian courts are able to go against past precedent when there are sufficient changes in the factual record.199 If it turns out that the factual claims that justified a particular decision erred or no longer apply, Canadian courts can issue a new decision that narrows the content of the right. Such a process will, of course, take time, which limits courts’ ability to ensure that the right does not have distorting effects on social policy, at least in the short term. But I remain hopeful that general commitments to gradualism will serve as barriers to such expansive decisions taking place. Even if this could not constrain the content of the right in the first instance, Canadian courts can attend to broader policy considerations (at least when they are raised as defences of rights infringements) when interpreting limitations on rights. This could ensure gradualist recognition of the entitlements that states cannot plausibly limit – albeit in a less straightforward fashion – so as to reach the same gradualist outcome in terms of the entitlements people must actually receive. In other words, where gradualism in recognizing the positive content of the right to health care fails to avoid creating an overly expansive right, Section 1 (either as an aspect of a broader commitment to gradualism or as a complement to gradualism in determining the positive scope of the right that can be reasonably limited) is a safeguard against overspending. Canadian constitutional law allows that Charter rights can be reasonably and justifiably limited. Cost alone does not trump rights, but it can be a factor in determining whether a limitation on a right is justifiable. So even if we grant that there is a right to the goods necessary for a dignified existence as a matter of Canadian constitutional law, and even if we recognize that this could have far-reaching financial implications, this need not require the government to spend unreasonable amounts ensuring access to those goods. The potential problem and its solution can both appear even early in the rights recognition process if we focus on the Canadian-tailored essential medicines 199 See notes 158–159 and surrounding.

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list. In the aforementioned study of the potential economic impact of national coverage of all essential medicines, “about half ($628 million) of the incremental cost to government of covering the essential medicines stemmed from increased public expenditure on just 1 drug: adalimumab (Humira).”200 This provides reason to grant both a right to all essential medicines and a limit on that right insofar as it guarantees access to Humira. The reason may be of limited value and the limitation may not be justifiable in a free and democratic society. That is for the judiciary to decide. The fact that neither adalimumab nor Humira appeared on the penultimate WHO Essential Medicines List suggests that a fair procedure can decide to remove that expensive drug from coverage (even though the most recent list does include adalimumab).201 The same fact can be used by both Canadian policy-makers and the judiciary to suggest that Canada is not and should not be bound to provide that expensive good. Yet regardless of how one views that international material, the judiciary’s ability to attend to cost as a factor in a limitations test should help avoid the excesses of health rights recognition. With respect to concerns about judicial competence, judges identify the scope of many existing rights and can apply common law reasoning to ensure that the right at issue grows only gradually. I am aware that judges may not be well-placed to set social policy as a general matter. That is part of the reason why the pluralist right to health care has such a significant procedural component. Yet this concern about judicial competence to set social policy is more of a concern with judicial interpretation of social rights in general than a concern with gradualism. To the extent that it is a general problem, my account avoids it better than most since courts are only interpreting the basic content of the positive right in question and must use a dignity-based analysis to identify that basic content. Much of the decision-making here remains in the hands of other branches of government. Judges need simply ensure that those branches make their decisions in a procedurally fair matter. They interpret substantive content only in light of the aforementioned dignitarian concerns. While dignity-based accounts raised the Problem of Scope in other states, those states did not use the test proposed here to set the content of the right. The current test is more gradualist. The claim that judges cannot interpret rights in a gradualist manner is more plausible as a claim about institutional constraints on courts than as a critique of judicial competence. But Canadian courts, at least, are also free from some 200 Morgan et al., supra note 180 at E300. 201 Cf. World Health Organization, “WHO Model List of Essential Medicines: 20th List (March 2017) (Amended August 2017)” (2017), online: World Health Organization and World Health Organization, “WHO Model List of Essential Medicines: 21st List (2019)” (2019), online: World Health Organization .

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institutional constraints on gradualist decision-making. For instance, they can use reasonable hypotheticals to decide cases – and those hypotheticals can speak to the impact that recognition of a particular good could have over time.202 Any fears about growth could plausibly be built into a reasonable hypothetical analysis. An argument of the form “If we recognize this right, it could have the following implausible outcomes” is appropriate in the present context. Also, many Canadian appellate courts exercise some control over their own dockets, which should limit the possibility of overlitigation and could serve as a limited means of restricting social hijacking by ensuring that only claims for goods plausibly understood as “necessary for a dignified existence” even make it to court. All of this, of course, leaves the challenge that the right will grow too slowly to improve health outcomes and could create a chilling effect on health rights litigation in place. But this is simply further evidence that constitutional law will not always be the best means of fulfilling the right to health care. To the extent that this plausible desideratum of a commitment to gradualism strikes some as problematic, it is a price that must be paid to ensure that a constitutional right to health care is narrow enough to avoid the Problem of Scope yet able to maximize the possibility that constitutional health rights will ensure access to the goods necessary for a dignified existence that any plausible right to health care should be interested in securing. Section 1 can also avoid a further problem with constitutional rights recognition seen in other jurisdictions: co-option of rights. Evidence from Latin America suggests that constitutional health rights litigation is often a vehicle for the middle class to increase their access to expensive health care goods rather than a vehicle for the poor to increase their access to essential, often less expensive health care.203 While the data are contested,204 the potential remains that the rights discourse will be co-opted.205 Chaoulli-style cases are common 202 See e.g., R v Nur, [2015] 1 SCR 773. 203 Octavio Luiz Motta Ferraz, “Te Right to Health in the Courts of Brazil: Worsening Health Inequities?” (2009) 11(2) Health and Human Rights 33 at 34; Hofman & Bentes, supra note 189 at 102–103; Virgilio Alfonso da Silva & Fernanda Vargas Terrazas, “Claiming the Right to Health in Brazilian Courts: Te Exclusion of the Already Excluded?” (2011) 36 Law & Soc Inquiry 825. Similar co-option of the right to education took place in India, where a gap in health care access between the rich and the poor persists despite recognition of a constitutional health right; Shankar & Mehta, supra note 161 at 173, 155. 204 Mariana Mota Prado, “Provision of Health Care Services and the Right to Health in Brazil: Te Long, Winding, and Uncertain Road to Equality” in Flood & Gross, supra note 184, 319 helpfully summarizes the debate. For an update on that debate, taking a somewhat critical position on health rights, see Yamin, supra note 188. 205 Tis helps explain why empirical analysis of the value of constitutional health rights litigation distinguishes success for claimants and success for the broader social community; Siri Gloppen, “Litigation as a Strategy to Hold Governments Accountable for Implementing the Right to Health” (2008) 10(2) Health and Human Rights 21.

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throughout states that recognize health rights. Gradualism should forestall cooption. The judiciary should initially stop short of recognizing goods that are not plausibly understood as necessary for dignity. But gradualism may not forestall co-option on its own. As the right grows, it may grow to include goods that are not necessary for a minimally decent life. Stipulating who a right to health care is supposed to benefit can provide judges with interpretive tools to avoid co-option, but this move is (or at least should be) unavailable when a right is judicially developed. Section 1 can play a functionally equivalent role. Where goods are not plausibly understood as necessary for dignity, they may receive less protection in a Section 1 analysis given the importance of dignity in establishing the rights (though goods that are grounded in other constitutional rights or values may secure an equivalent level of protection on other grounds). They can then be more easily limited, and cost concerns can be taken more seriously as reasons for limitation. Very expensive goods needed by the middle class alone will still require protection. But complete co-option can likely be avoided by attending to the relative value of these goods vis-à-vis already acknowledged parts of the right to health care, which, given a commitment to gradualism, should begin with more broadly acknowledged and necessary essential goods. So understood, Section 1 also helps avoid the resort to constitutional rights to undermine realization of the right to health care. If there is constitutional recognition of a right to health care or, what is more likely, constitutional interpretation of other rights in a way that evidences a fundamental commitment to health care as worthy of constitutional protection, the right and the fundamental value become important considerations in Section 1 analysis in Chaoulli-esque cases and could serve as counterweights to the claimed liberties undergirding constitutional claims that aim to dismantle the public health care system. Section 1 analysis thus not only protects against overly expansive negative rights entitlements but also can protect against an overly expansive negative right when positive considerations are also properly considered. Positive health care rights recognition under the Charter, then, is licit and need not threaten the public purse if paired with gradualism and continued use of Section 1 analysis. This solution to the finance-focused variant of the Problem of Scope faces at least four more challenges. First, while gradualism is advisable in the abstract, lower courts at least cannot choose which litigants will come before them, and no court can perfectly determine the order of claims before them, so there is no guarantee that right to health care claims will begin with the goods necessary for a dignified existence. Many past right to health care claims in Canada were for more expensive and controversial goods.206

206 Auton, supra note 43; Cameron v Nova Scotia (Attorney General) (1999), 177 DLR (4th) 611 (NS CA);

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This concern is legitimate, but defeasible. The judiciary may need to hear some claims to expensive goods, but it should not recognize positive rights thereto prior to recognizing more limited rights. Explicit commitments to gradualism in such cases will increase the transparency of this new judicial component of the health care decision-making process and should lead litigants to focus on essential goods. At minimum, the hearing of such cases will contribute to transparency and accountability in the health care allocation decision-making process even if judges do not hear cases where they can gradually grant rights. Second, my commitment to essential medicines as the starting point for analysis appears to create an asymmetry between positive and negative rights. Per Chaoulli, persons have a negative (at least quasi-)constitutional right to be free from undue wait times for elective procedures.207 Elective procedures are, by definition, not essential. Yet I suggest at least beginning with essential goods for the purposes of constructing a positive right to health care. If courts follow my advice, they will recognize a negative right to be free from wait times for elective goods but no positive right to those goods. This result is not aesthetically pleasing, but, respectfully, it stems from error in Chaoulli. If one builds positive rights to essential health care goods from other constitutional cases, one can use the rights as counterweights against claims for expanding Chaoulli. My hope is that the negative right recognized in that case may eventually diminish to the point that the asymmetry is no longer present, but I can live with asymmetry if it is the only means of rendering constitutional law’s commitments outside Chaoulli coherent and of maximizing Canada’s realization of the pluralist right to health care. Third, one may worry that creating the health care systems that I claim are necessary to fully realize the right to health care could still overwhelm the public purse. If such robust systems are necessary to guarantee other components of the right, as I claim, then the cost of realizing even the part of the right to health care committed to the goods necessary for a dignified existence will require a robust health care system, and these systemic costs are not included in the economic studies central to my argument. This concern can, in part, be addressed by noting that existing health care systems are already in place. Moreover, constitutional guarantees that existing systems will provide those goods need not create substantial additional costs for those systems over and above the cost of providing those goods. More data-keeping will be necessary to fully realize the right, but data-keeping costs should not threaten government stability. The commitment to systemic change I advocate admittedly runs afoul of gradualism to some degree. Where I also argue for a systemic right to the NIHBP (or its functional equivalent) on Indigenous rights grounds (and a right to participate 207 Chaoulli, supra note 3.

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in other programs could be built out of other positive rights),208 my right to health care cannot just be gradual; it seems to require full-scale entrenchment of an expensive program. But here too the NIHBP already exists and has not unduly threatened the public purse. My systemic right to health care requirements will not lead to government insolvency. The goods-based parts of the right can be introduced more gradually and with fewer cost concerns. Yet, fourth and finally, the lingering concern that constitutional rights may not be the ideal approach to maximizing the pluralist right to health care is a legitimate one. I have merely explained how positive rights in Canada can have positive benefits from a right to health care perspective. Whether such recognition is the best means of fulfilling the rights requires greater analysis. I explain what kind of analysis is necessary to make these claims in chapter 9. Canadian constitutional law, then, can develop in a way that should improve realization of the right to health care. Even such a development would not be a panacea, since constitutional recognition of a right to particular health care goods may not improve access to those goods.209 Yet even if judicial acceptance of my arguments would not or cannot currently increase realization of the right to health care, Canadian constitutional law would have an important role to play in realizing the right to health care in Canada: decision-makers and administrators throughout the health care allocation decision-making process should use constitutional values to guide their decisions. In addition, decisionmakers and judges should interpret laws in accordance with those values. Reading laws in conformity with constitutional values is already a doctrinal norm. The constitution is interpreted in light of its underlying values, which include dignity.210 Statutes are then interpreted to ensure conformity with the constitution whenever possible.211 Use of Charter values in the present context is advisable, for it can help (1) set criteria for fair distribution, filling in the content of vague terms and limiting interpretation thereof in rights-maximizing ways, (2) equalize coverage across the provinces and increase coverage of essential goods 208 Martha Jackman, “Te Right to Participate in Health Care and Health Resource Allocation Decisions under Section 7 of the Canadian Charter” (1995) 4 Health LR 3. 209 See note 39. Notably, a constitutional right to health need not improve access to health care to be valuable. Constitutional health rights can, for instance, foster creative problem-solving for technical problems (Nicole Hassoun, “Te Human Right to Health: A Defense” (2020) 51(2) Journal of Social Philosophy 158) or for health care reform more generally (S Katrina Perehudof, Nikita V Alexandrov & Hans V Hogerzeil, “Te Right to Health as the Basis for Universal Health Coverage: A Cross-National Analysis of National Medicine Policies of 71 Countries” (2019) 14(6) PLoS ONE e0215577). However, the benefts of recognition outside the pluralist framework are beyond the scope of this work, and a constitutional right is unlikely to secure all procedural and systemic elements of a pluralist right either. 210 E.g., Oakes, supra note 26; Reference Re Secession of Quebec, [1998] 2 SCR 217. 211 See e.g., Bell ExpressVu Limited Partnership v Rex, [2002] 2 SCR 559, 2002 SCC 42.

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throughout the provinces by establishing a common set of possible reasons for decisions that could lead to some common decisions on what to cover across the provinces, and (3) increase the transparency of at least one component of the CHA-based system insofar as the constitutional value of procedural fairness supports the claim that administrative decisions should not be non-arbitrary and public and that administrative interpreters – if not decision-makers – reading their authority in conformity with the demands of procedural justice may feel compelled to provide reasons. (b) Human Rights Law Canadian human rights law, in turn, requires substantial reform to better realize the right to health care. Insofar as human rights law bars discrimination in health care decision-making, it requires that that process be procedurally fair, but human rights law is historically only on a par with other forms of law in its ability to contribute to realization of the procedural dimensions of the pluralist right to health care. Just as constitutional law forces agents to give reasons for their decisions in court, human rights law forces agents to give reasons for their decisions in tribunals. This puts human rights law on a par with other forms of law from a transparency perspective: human rights law improves transparency, but it does so in the same way as Canadian constitutional law and the other forms of administrative law. As in other contexts, this transparency-enhancing requirement could force governments to make decisions on the basis of more publicly acceptable and/or accepted reasons, thus contributing to reasonableness. As well, document disclosure can lead to the provision of even “extensive” medical statistics and policy records.212 Yet this benefit too places human rights law on a par with other forms of law. Human rights law does not uniquely provide access to either of these forms of transparency.213 Human rights law, then, is unable to secure the right’s systemic component. In theory, Canadian human rights law may require a national health care system by establishing norms applying in all provinces, but its quasi-constitutional status places it below Canadian constitutional law in the hierarchy of Canadian

212 See e.g., Young v BC Cancer Agency, 2005 BCHRT 38, [2005] BCHRTD No 38. 213 While some jurisprudence suggests that one can use human rights law to directly challenge a lack of transparency in a manner unavailable under alternatives (e.g., the claim in Brown v British Columbia (Ministry of Health), 2011 BCHRT 339, [2012] BCWLD 2670, [2012] BCWLD 2671, [2012] BCWLD 2672 that was dismissed on timeliness grounds), subsequent jurisprudence has not followed up on that, holding that current human rights law will not require full accountability for reasonableness in any case. Human rights law tribunals themselves are not subject to reason-giving requirements and so will not always remedy Canada’s problematic non-transparency.

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laws. Human rights law thus cannot remove the constitutional federal division of powers that complicates pursuit of a completely national health care system. Moreover, it only applies to the administration of the existing health care system and so cannot directly require wholesale replacement of that system. In principle, appeals to differential coverage across the provinces as a basis for human rights complaints could lead to more standardized health care provisions across the provinces, but such a basis for comparison rarely grounds successful claims owing to the lack of identified ground of discrimination in such cases. So, Canadian human rights law could be used to ensure that implementation of the systemic component of the right through the creation of national entities is consistent with the other components of the right to health care and thus meets the demands of the pluralist right to health care. A future pan-Canadian health care strategy must comply with Canadian human rights laws: it cannot be discriminatory in intent or effect. Human rights law entails that implementation of the systemic component of the pluralist right must be procedurally fair under Canadian human rights law. Yet human rights law cannot require complete fulfilment of the systemic component of the right to health care. There is at best only limited evidence that human rights law could be used to enhance other structural elements of the right, such as participation forums. On the substantive front, human rights–based challenges provide a path to securing health care services to which one should already be entitled under law and to the provision of those services by particular individuals.214 This is particularly true of barriers that only specific groups face. For instance, in XY v. Ontario (Government and Consumer Services), the HRTO found that requiring someone to undergo “transsexual surgery” and provide two medical certificates confirming he or she received the surgery before he or she can “obtain a birth certificate with a sex designation other than the one assigned to him or her at birth” discriminated against that person with respect to services on the basis of sex and/or disability.215 This differential treatment in the barriers to securing access to services constituted prima facie discrimination and was not subject to a statutory defence. Similar barriers in the health care setting could be challenged in the future.216 Since human rights law also applies to non-governmental agencies, it can be used to undermine some of the barriers

214 Of course, the challenges can be based on any protected ground. Race-based challenges are legion. See the list of cases in Sinclair v Young, 2012 BCHRT 35, [2012] BCWLD 4134, [2012] BCWLD 4149 at para 49 [Sinclair] (some of which were unsuccessful). 215 XY v Ontario (Government and Consumer Services), 2012 HRTO 726. 216 One could even challenge the lack of service provision in one location as a barrier to accessing that service. A claim to this efect was not dismissed in Cole, supra note 70 at para 59, but did not receive a fnal hearing.

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to accessing goods selected for coverage (including essential goods) that are imposed by non-governmental agents. Physicians accordingly face successful challenges to their policies not to provide services to individuals. For instance, in Korn v. Potter, the BCHRT found that a physician’s refusal to provide artificial insemination to a lesbian couple on the basis of a policy whereby he did not provide the service to any lesbian couples constituted discrimination on the basis of sexual identity and violated provincial human rights law; the decision was upheld on judicial review.217 These cases confirm that human rights law can be used to remove barriers imposed by the health care system and by the practitioners therein. Human rights law will not, however, remove all barriers to accessing health care. It will not, for instance, compel doctors who refuse to serve persons with IFHP certificates to perform treatment, even though doctors are required to do so by statute. While a failure to recognize and/or accept an IFHP certificate arguably constitutes discrimination, it will most often take the form of discrimination on the basis of immigration status. Immigration status is not a protected ground under Canadian human rights law. If one can establish that the discrimination is on the basis of race, or place of origin, one could ground a human rights claim and remove this barrier to access. Yet meeting that bar will be difficult. Analogously, language-based concerns may not engage the right not to face discrimination on the basis of one’s place of origin. In Rubin v. Vancouver Coastal Health, there was no nexus between the decision not to fund translation services and the place of origin of the rights-holder.218 Finding that nexus in the IFHP context will be difficult.219 Indeed, the preceding notwithstanding, substantial reform is necessary to help human rights law improve the substantive component of the pluralist right to health care. Canadian human rights law as constituted is a very limited tool for securing coverage of or access to any particular health care good, even when that good is necessary for a dignified existence. Some of the reasons for these limitations follow from the burdens necessary to establish a claim and the remedies generally available when one has successfully established a claim. In order to ground a claim, human rights claimants in the health care setting need to find more than a failure to fund an essential good. They need to establish that (1) people receive a health care good, (2) another person or people do(es) not

217 [1996] BCJ No 692, 134 DLR (4th) 437 (BCSC) at paras 16–18 [Korn]. 218 Rubin v Vancouver Coastal Health, 2012 BCHRT 432, [2013] BCWLD 1343, [2013] BCWLD 1365. Te claimant was also found not to have faced adverse efects due to the lack of services. 219 Te FCC explicitly declined to protect discrimination on the basis of immigration status in the aforementioned Refugee Care, supra note 38.

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receive a similar health care good, and (3) there is some nexus between the denial of coverage and one of the grounds of discrimination that human rights law is supposed to address.220 Each step creates opportunities for human rights tribunals to dismiss a complaint. Simply failing to fund a service does not violate human rights law. Ontario’s human rights tribunal, for instance, clearly states that a human rights statute explicitly “does not require that the respondent fund every health care service that would benefit an individual.”221 It is often difficult to establish that others have received the desired entitlement. Claims for new goods are thus difficult to establish and require that rarely seen comparable entitlements be identified. Changes in government policy can easily undermine even plausible claims that others have received the entitlements. Also, it is often difficult to adduce the requisite social science evidence to establish that a good is medically necessary in general or for a person. Even if one can establish that one has been denied a benefit, claimants must show that the government has failed to meet its burden of establishing a statutory defence for these prima facie discriminatory differences. This creates further historical barriers to improving realization. Government discretion here is, historically, wide.222 Canadian human rights law’s prospects for better realizing the substantive components of the right are also limited by the fact that even individual successes do not ensure widespread access. Examples of claimants meeting all the criteria also suggest that tribunals are reluctant to use broad remedial powers in the health care context.223 Even when a claimant meets all these thresholds, the

220 E.g., these criteria are ofered as criteria for prima facie discrimination on the basis of ancestry in Sinclair, supra note 214 at para 19. 221 Brodeur v Ontario (Health and Long-Term Care), 2013 HRTO 1229 at para 22. Recall also McGrath, supra note 72 at paras 230–232. 222 E.g., in Ball v Ontario (Community and Social Services), 2010 HRTO 360 at para 76, the BCHRT quoted the constitutional law-based judgment in Auton, supra note 43 to note that governments are “free to target social programs it wishes to fund as a matter of public policy, provided the beneft itself is not conferred in a discriminatory manner” in denying one particular human rights law–based claim for a health care good. 223 Kavanagh v Canada (Attorney-General), [2001] CHRD no 21 (CHRT) [Kavanagh] and Waters v British Columbia, 2003 BCHRT 13 [Waters] are the best examples. In Kavanagh, the CHRT found that a blanket prohibition on access to sex reassignment surgery for federal prisoners was discriminatory on the basis of sex and disability and could not be justifed. Corrections Services Canada was ordered to cease applying their prohibition within six months, but the CHRT did not order coverage throughout the system. In Waters, reimbursing out-of-province phalloplasty at B.C. rates while funding out-of-province vaginoplasty at the full foreign rate was not found to be discriminatory. Te BCHRT ofered full reimbursement for the completed stages of the complainant and funding for the remaining stages, but it declined to ofer a systemic remedy for all persons in a similar position on the grounds that the issue of whether the province could reclassify the procedure as experimental and thus decline to fund it for new patients without violating human rights law was not before the tribunal.

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decision may only secure goods for a single individual, due to either the privity of the parties or the bar on ordering expending funds. This can fail to improve coverage or access to goods more generally. As the aforementioned Brazilian experience demonstrates, individual entitlements to many health care goods can undermine societal access to the goods necessary for a dignified existence by requiring spending on expensive goods for litigants who are wealthy enough to lodge claims (and also may not avoid retrogression in health care system quality).224 Human rights law is a limited tool for avoiding retrogression in the coverage of health care goods. While many successful health care–related human rights claims are in the context of the removal of goods from coverage, even the most famous cases of apparent “success” only secure non-prohibition of access to goods225 or funding for very small groups of people.226 Other cases do not provide sufficient additional support for human rights law’s potential. Where substantive deliberate retrogression is understood as the removal of goods without warrant, human rights law’s requirement that governments justify prima facie discriminatory removal of coverage is an additional mechanism for challenging moves toward substantive deliberate retrogression. Thus, human rights law can serve as a tool for barring deliberate retrogression in health care coverage. But where this justification procedure only takes place after a prima facie discrimination claim is established, the differential treatment requirement will again limit the circumstances of human rights law’s application. Reforms are necessary to address these concerns. First, expanding the grounds for human rights law complaints would likely strengthen Canadian human rights law’s ability to improve realization of the pluralist right to health care. Expansion can and should take two forms: (a) broadening the grounds of discriminatory conduct to recognize more conduct as potentially constituting human rights violations, and (b) broadening the grounds of offence to recognize more features of human beings as potentially distinguishing marks that can lead to unjust differential treatment. For improving Canadian realization of the right to health care, the most important expansion of the grounds of discriminatory conduct would recognize failures to ensure that certain groups meet objective standards of well-being as potential human rights violations. Focus on comparisons restricts human rights law’s ability to improve systemic and essential goods-based components of the right. Absent an existing entitlement to a good or one like it, one cannot use Canadian human rights law to secure a new 224 See discussions in chapters 1, 2, and 6. 225 Kavanagh, supra note 223 (securing non-prohibition of sexual reassignment surgery in federal prisons). 226 Hogan, supra note 70 (securing funding of sexual reassignment surgery only for the claimants involved).

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entitlement.227 The requirement to establish that one has been denied a good to which others are entitled based on an enumerated or analogous ground is difficult to establish in the case of essential goods, including essential medicines that are generally not covered by CHA implementation systems. Where human rights laws are jurisdiction-specific, moreover, one cannot point to differences in public coverage across provinces to ground a discrimination claim. Where drug coverage deficiencies constitute some of the broader gaps in Canada’s right to health care bona fides, the comparison class requirement is a serious limit to human rights law’s prospects for improving coverage of, let alone access to, a wide class of essential health care goods in Canada. Rather than require that any claimant identify a comparison class that possesses an entitlement to which the claimant has been denied, my proposed expansion would recognize that failures to provide certain individuals with some health care entitlements constitute substantive discrimination insofar as they keep groups from the level of well-being that all persons should be able to secure. The commitment to dignity underlying contemporary human rights norms and the right to health care justify such an approach. While many believe that this is inconsistent with the egalitarian basis of Canadian discrimination law, which focuses on remedying essentially comparative injustices, there is little reason to think that a law should focus solely on comparative goods. Equality theorists commonly recognize that other values should be realized as well and that equality can be an instrumental good in realizing those values.228 Some suggest that equality is only valuable insofar as it realizes another value.229 It is plausible that the law should try to realize an objective good for all persons. Canadian discrimination law more broadly already recognizes a variety of goods; failing to ensure that some individuals have enough of those goods constitutes one of the four wrongs of injustice already acknowledged by Canadian law.230 Exclusively comparative analyses undermine rectification of some of those wrongs. Moreover, insofar as one is committed to the necessity of a comparative scale for discrimination analyses, the proposed objective well-being I support here can be that comparative measure. I am partial to the dignity level as the standard for

227 But recall my challenge to the “beneft under the law” criterion. 228 E.g., Larry S Temkin, Inequality (Oxford: Oxford UP, 1993); Larry S Temkin, Rethinking the Good (Oxford: Oxford UP, 2012). 229 E.g., Shelly Kagan, “Equality and Desert” in Louis P Pojman & Owen McLeod, eds, What Do We Deserve? A Reader on Justice and Desert (Oxford: Oxford UP) 298. While I disagree with Kagan about this reducibility point, I think the general point about equality’s instrumental value remains. 230 Sophia Moreau, “Te Wrongs of Unequal Treatment” (2004) 54(3) U Toronto LJ 291 at 307–308.

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comparison insofar as it (1) reflects an underlying value of all human rights laws and (2) limits the scope of potential claims and thereby (3) avoids the extreme ends of the Problem of Scope identified in previous chapters. But a variety of lists of objective good could plausibly play this role and allow for greater realization of the right to health care. If the list furthers group-wide coverage of and access to essential goods, it can play the role. Inadequate spending for particular groups could be a proxy for failures to provide essential goods in some circumstances, notwithstanding the lack of fit between spending and health care outcomes. Spending below a certain level will necessarily fail to provide the goods necessary to meet a dignity level. Here too an objective standard is necessary.231 This proposed expansion of the grounds of discriminatory conduct also has advantages over a less drastic reform that could improve realization of the right to health care: allowing cross-border or even cross-jurisdictional comparative classes. If someone in a provincial program could point to entitlements in other provinces and use them as grounds of discriminatory conduct, then realizing that possibility could plausibly improve realization of the right to health care. Consider, for instance, what would transpire if in vitro fertilization (IVF) were necessary for a dignified existence, as it may be on subjective conceptions but likely cannot be here. A more subjectively oriented reform would increase access to a good necessary for a dignified existence if someone in Quebec could point to coverage in Ontario or in federal programs as a ground for a claim that Quebec’s decision to stop funding IVF services constituted unjust treatment. Yet such a reform (1) would require creating a ground of offence of provincial residence that is implausible and less important than alternatives, (2) seems at odds with the basic norms of federalism, which allow some differential entitlements across the provinces, (3) opens up the possibility of claims for inessential goods that other provinces cover in acts of bad policy-making, thereby leading to poor allocations and potentially running into the Problem of Scope, and (4) plausibly leaves it open to all provinces to agree to provide minimal services well below those necessary for a dignified existence as long as no others break the promise. My proposal lacks these deficiencies. Perhaps the most pressing reform of the grounds of offence relates to recognition of immigration status as a ground. Many Canadians without full status contribute to society and, on plausible moral grounds, should receive entitlements or at least status to make claims for entitlements.232 Those seeking the 231 Family Caring, supra note 55 (discussed below) could be part of an argument for this independent ground. 232 See e.g., Norman Daniels & Keren Ladin, “Immigration and Access to Health Care” in John D Arras, Elizabeth Fenton & Rebecca Kukla, eds, Te Routledge Companion to Bioethics (New York: Routledge, 2014) 56. Tough Daniels and Ladin write in the American context, their arguments generalize and apply in Canada.

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protection of Canada are deeply vulnerable, and Canada has made obligations to aid many of them.233 Canadian policy may even contribute to some of the reasons why people need to flee to Canada (as in the Afghanistan case). But the most germane reason to expand protection domestically to those seeking the protection of Canada is that it will plausibly increase realization of the international right to health care that Canada already recognizes. As detailed in chapters 5 and 6, immigration status can be an impediment to coverage of or access to the goods necessary for a dignified existence, and programs set up to provide services to some immigrants can fail to meet the demands of accountability for reasonableness. Where these deficiencies are based on immigration status and immigration status is not a ground of offence, human rights law claims cannot pass the second stage of human rights analyses: action on the basis of a protected ground. Recognition of immigration as a ground of offence would have several benefits related to the right to health care. At minimum, recognition could allow human rights law to more easily protect against deliberate retrogression, if not aid progress, in Canada’s realization of the right to health care. Allowing even persons seeking the protection of Canada to at least raise human rights complaints and argue that they should have access to some health care system could help protect the IFHP if a future government were to attempt to cut it without creating other health care entitlements for vulnerable immigrants. Such recognition could also plausibly require that any system set up for immigrants of any kind be procedurally fair. If my proposed reform to the grounds of complaint were accepted, moreover, this grounds of offence reform could further require that the system provide goods at least comparable to those in other programs. Doing so would improve Canadian realization of the right to health care. Recognition would also plausibly allow precarious migrants to challenge recognized barriers to their ability to access essential health care goods, including residency requirements that I identified as a barrier to right realization in chapters 5 and 6.234 It would clearly allow persons to challenge physicians who refuse to recognize IFHP certificates or otherwise refuse to provide services to non-citizens. Second, remedial reform could improve Canadian human rights law’s ability to help realize the right to health care. We know that even where one can establish that failures to cover and/or allow access to health care goods constitute

233 United Nations, Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150. 234 Indeed, my work in this paragraph is partly inspired by YY Brandon Chen’s argument that Charter protections for immigration status could help precarious migrants better enjoy health rights; e.g., “Te Future of Precarious Migrants’ Right to Health Care in Canada” (2017) 54(3) Alberta LR 649 at 661–662.

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illegal discrimination, available remedies may fall short of orders to provide systemic coverage of those goods and thus may not increase right to health care scores. Human rights tribunals’ incidental funding orders may only be put toward remedying a lack of coverage for the individual subject of discrimination. Establishing clear criteria for when systemic remedies are appropriate at human rights tribunals and explicit statutory language enabling those tribunals to provide systemic remedies would strengthen human rights law’s potential to improve the health care system without running into concerns that human rights tribunals are overstepping their bounds or promoting over-litigation at human rights bodies. Where human rights tribunals already make some systemic remedies, this change would not be drastic. A change that allows more systemic remedies could improve substantive realization by ensuring widespread, rather than individual, coverage of and access to health care services. It could also help avoid co-option by ensuring that individual claims do not come at the expense of societal needs: where systemic remedies are the default but implausible, this could provide reason not to grant an individual remedy in a particular case. Even a policy that clarified existing practices and maintained the status quo would improve transparency. Clarifying when systemic remedies are appropriate could improve realization of the right to health care; however, the best way forward would be to allow systemic remedies wherever (a) entitlements are denied on the basis of a characteristic, (b) such denial cannot be justified, (c) there is a clear way of identifying who else would qualify for the entitlement under the order, and (d) there are data supporting the idea that a systemic remedy would not undermine the public purse. Extensive social science data would be required to ground a claim. This would increase the cost of adjudication but would have this benefit: it would require identifiable recipients of potential funding, and it would do so in a way that would specify the remedy and avoid unexpected side effects of co-option by borderline members of the organization, thereby blunting one “lemma” of the dilemma at the centre of the Problem of Scope (i.e., by building in cost considerations).235

235 Allowing class actions in the health care setting could helpfully fulfl the identifcation criteria I propose from the outset and would have the further beneft of potentially difusing costs among multiple representative plaintifs. Class actions could more generally avoid the problem of individual remedies failing to enact necessary widespread change on any proposed systemic remedy reform. Party reform could thus aid remedy reform, with both contributing to increased realization of the right to health care. But neither systemic remedy reform in general nor the specifc systemic remedy requirement I propose requires class actions. Individual and/or individual parties representing wider communities can raise claims with systemic import on their own. Family Caring, supra note 55 again helps make this point clear. Yet these reforms have benefts even if human rights class actions remain unavailable.

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Relevant jurisprudence is unlikely to require the changes surveyed here. Absent new precedent supporting the proposed changes, such reforms may require that Canadian human rights law statutes be amended. That too may be unlikely, given past and present trends. Absent such statutory reforms, human rights law could still develop in a way that would increase realization of the right to health care for at least some groups. Human rights law could be used to ensure better health care coverage for Indigenous persons, and this could plausibly help reduce inequitably poor Indigenous health outcomes. Increased spending correlates poorly with improved health outcomes.236 Even so, the requirement that Canadian human rights law spend more on Indigenous social services could improve Indigenous health care. Human rights law was used recently to highlight deficiencies in the provision of social services for Indigenous Canadians. The federal government only gradually followed the human rights tribunal’s decision calling for reform, but its response to that decision has included increased funding for health care services. That decision could be used to challenge the Indigenous health care system on a systemic level and thereby improve Canada’s scores for its marginalized/vulnerable persons. Canada’s human rights system, then, presents an argument from analogy that could be used to expand the provision of essential health care services for at least Indigenous children and perhaps, consequently, narrow the health outcomes gap between Indigenous and non-Indigenous children. As noted in chapter 7, one cause of inequities in access to health care services among Indigenous persons is the failure to implement “Jordan’s Principle,” under which any dispute over which level of government should fund services for an Indigenous person leads to initial funding for the first body the patient encounters; the dispute is then resolved after the service is rendered. In First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), governmental failure to implement Jordan’s Principle in the child and family services context was found to constitute a human rights violation.237 In that case, the complainants challenged the federally funded child and family services programs for First Nations on reserves and in Yukon on the grounds that the federal government discriminates “on the basis of race and/or national or ethnic origin, by providing inequitable and insufficient funding for” those programs.238 The CHRT

236 Te United States spends more on health care per capita than other states with limited results; William Lahey, “Medicare and the Law: Contours of an Evolving Relationship” in Downie, Caulfeld & Flood, supra note 116, 1 at 5–6. 237 Family Caring, supra note 55. 238 Ibid at para 6.

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dismissed the claim due to a lack of jurisdiction; the FCC then overturned that decision.239 The reconstituted CHRT panel found that the complainants “presented sufficient evidence to establish a prima facie case of discrimination … insofar as First Nations children and families living on reserve and in the Yukon are denied … equal child and family services and/or differentiated adversely … in the provision of child and family services.”240 In short, the CHRT found that the federal government was a service provider for Indigenous persons in the family and child services context, even if it merely funded the program rather than delivering services directly,241 and that its inadequate funding for the programs, combined with the terms it set for service provision under those programs, led to inadequate service delivery for Indigenous persons.242 That constituted a prima facie violation of the CHRA. The federal government failed to establish a statutory defence before the CHRT, which thereby ordered it to reform its family and child services programs by increasing funding, reorienting its policies around human rights principles, and ensuring full compliance with Jordan’s Principle.243 Implementation of this order has been slow. This lag in full implementation is a reminder that success in litigation does not always lead to long-term systemic coverage, let alone immediate systemic coverage. Yet even if one acknowledges that increased spending on a given government program does not lead straight to increased performance, the increased government spending in the wake of the CHRT’s decision constitutes a notable change in government policy. Indeed, the claimants’ litigation success has provided tools for future litigation in the health care context.244 Failures to adequately provide funding for Indigenous children’s health care could now qualify as a human rights violations, even if the government were to claim that the NIHBP is discretionary. One can use all of this as a building block for an argument that on-reserve health care services require greater funding and/or greater coverage to ensure that Indigenous persons receive the same services as persons enrolled solely in the public components of provincial systems. Where a lack of funding or

239 240 241 242 243 244

Ibid at para 7. Ibid at para 456. Ibid at para 71. See ibid generally. Ibid at paras 481–482. Te federal government’s subsequent confrmation that it implemented Jordan’s Principle could afrm the decision’s practical consequences; Letter from Jonathan DN Tarlton, Senior Counsel, Civil Litigation and Advisory Service to Dragisa Adzic, Registry Ofcer, Canadian Human Rights Tribunal (10 May 2016), Department of Justice (File AR–800703). But there is reason to question whether full compliance took place, particularly given prior issues concerning compliance with orders in this case.

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coverage results in inadequate service provision for a group, it may constitute a human rights violation, particularly where a lack of service provision has a detrimental impact on the impacted parties. This finding does not need to be constrained to the paediatric setting. On-reserve services and the NIHBP are both Indigenous-specific programs, so all forms of service delivery linked to them are based on a protected ground. Inadequacies in those services are, by extension, plausible contributors to known Indigenous health inequities on the basis of a protected ground. So the deficiencies likely constitute prima facie discrimination and, in the absence of a statutory defence, could constitute a human rights violation. The BCHRT accepted that Indigenous health disparities can help ground a provable case for systemic adverse effects discrimination in Cole v. Northern Health Authority.245 The bar on human rights tribunals ordering governments to expend funds remains active, but the case of First Nations Child and Family Caring Society of Canada provides an early step along a path toward ensuring proper funding of and coverage under on-reserve health care programs as an incidental outcome and consequently offers an opportunity to improve Indigenous health outcomes. Expansion of Indigenous health care programs, or at least services in programs or hospitals heavily used by Indigenous persons, through human rights law seems like a plausible requirement of governmental First Nations Child and Family Caring Society of Canada–like human rights obligations where deficiencies in health care coverage and/or service provision have a detrimental impact on the Indigenous group. No major reform of the law is necessary to realize these values. Tribunals simply need to apply First Nations Child and Family Caring Society of Canada to the health care setting and acknowledge that funding gaps create outcome gaps. First Nations Child and Family Caring Society of Canada is important even if its prospects for effecting full right to health care realization are limited. The logic for expanding services we find in that case does not apply as easily to the NIHBP.246 Expanding that logic outside the Indigenous context faces

245 Cole, supra note 70 at paras 32–39. 246 Where the comparison class is persons covered by a provincial public health insurance regime and the NIHBP provides services over and above those provided in provincial programs, the NIHBP does not detrimentally deprive Indigenous persons of services rendered to others. Moreover, the CHRT may be reluctant to order expansion of the NIHBP even if it can do so. Te First Nations Child and Family Services [FNCFS] Program’s funding for goods that are not covered under the NIHBP was highlighted as an example of its “unsustainable” nature in Family Caring, supra note 55 at para 373. Te CHRT may likewise suggest that a NIHBP policy is unsustainable and could order a new policy, as it did for the FNCFS Program. Te NIHBP would remain unprotected and open to contraction absent other arguments to protect it.

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even greater hurdles.247 Even so, the case provides an opening for challenging other Canadian health care systems, including CHA implementation regimes. The CHRT found that even if Aboriginal Affairs and Northern Development Canada (AANDC; since renamed Crown-Indigenous Relations and Northern Affairs Canada) merely funded the social services at issue in the case, that funding could constitute service provision under the CHRA.248 It then found that the AANDC “plays a significant role in the effort to improve outcomes for First Nations children and families residing on reserve. … [T]he manner and extent of AANDC’s funding significantly shapes the child and family services provided by the FNCFS Agencies and/or the provinces/territory249 … through (among other things) its power to withhold funds from service providers for failure to comply with its terms.”250 This recognition could be a first step in overcoming the presumption that one cannot challenge the federal government’s role in CHA-based systems on human rights grounds. If one can show that insufficient funding is having a detrimental impact on the health care services of a group, that this failure is based on a protected ground, and that the federal transfer criteria constitute sufficient control over the system, one could plausibly begin a claim. If one finds that a provincial system is having a detrimental impact on the health of a specific group due to policy, one may be able to challenge the federal and provincial governments. The finding in First Nations Child and Family Caring Society of Canada is not based on anything unique to the CHRA, and one could plausibly use it in challenges under any Canadian human rights regime. (c) Non-Human-Rights–Based Administrative Law Finally, administrative law also needs to be modified to maximize realization of the right to health care in Canada. I will make this clear by addressing the tools I discussed earlier: (a) direct challenges, (b) tribunal appeals, and (c) ombudspersons. First, direct challenges to administrative decision-makers contribute to the procedural component of the pluralist right to health care but are not promising for realizing its goods-based and systemic components. In theory, principles of administrative law, namely procedural fairness and reasonableness in

247 Te holding in Family Caring, ibid relies heavily on the fduciary Crown–Indigenous peoples relationship. Similar relationships do not apply in most other contexts. Te judgment also frequently mentioned the legacy of the Residential School System as a contributory factor to the present human rights violation. Arguments for expansion of other programs may need to establish a similar historical legacy. 248 Ibid at paras 33–40. (But see Cole, supra note 70 at paras 113, 120 for nuances on this point.) 249 Family Caring, ibid at para 71. 250 Ibid at para 75.

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decision-making, map onto the requirements of Daniels and Sabin’s accountability for reasonableness framework and my pluralist account of the right to health that partly builds on that framework.251 The procedural fairness and reasonableness requirements provide building blocks for arguments that failure to fund goods necessary for a dignified existence is unreasonable and thus unacceptable under the terms of basic administrative decision-making and that failure to exercise authority to ensure that such goods are covered is unreasonable or procedurally suspect. These arguments could entail that provincial governments must fund hospital- and physician-specific essential goods in their CHA implementation programs, that the federal government should use its withholding powers to ensure that they do so, and that the federal government should expand coverage of essential goods in the IFHP and NIHBP. Even more judicial review, where available, contributes to reviewability by definition. In practice, however, the contribution of judicial review in administrative law to realizing the right to health is blunted by the limited scope for review in health care contexts. Judicial review is largely unable to secure access to any particular goods, including those necessary for a dignified existence. Part of the problem is that many health care funding decisions are not explicitly “yes or no”; rather, they result from a series of choices by many different decisionmakers around funding that cumulatively result in, for example, long wait times in emergency rooms or the inability to find a primary care physician.252 Where explicit decisions are made regarding public funding in the mainstream, CHAbased Canadian health care system – around, for example, decisions to fund new technologies or the ability to access out-of-country treatment – there is a greater possibility for judicial review.253 But again, in practice, administrative tribunals assigned this role have little leeway in their governing statutes to review funding decisions. Beyond that, there are physical and financial limitations restricting the ability of patients to bring actions in judicial review before a superior court.

251 For the ft, see Chapters 3–4. For the most detailed description of Daniels and Sabin’s framework, again see Daniels & Sabin, supra note 100. 252 See Colleen M Flood, ed, Just Medicare: What’s In, What’s Out, How We Decide (Toronto: U Toronto P, 2006) [Flood, Just Medicare]. See especially, Colleen M Flood, Carolyn Touhy & Mark Stabile, “What Is In and Out of Medicare? Who Decides?” in Flood, Just Medicare, ibid, 15 and Colleen M Flood, “Conclusion” in Flood, Just Medicare, ibid, 449. 253 For an example of a decision-making framework in the new technologies sector, see HQO Board of Directors, “Health Quality Ontario Ontario Health Technology Advisory Committee Terms of Reference” (28 June 2017), online: Health Quality Ontario , s 3, art 2 [“Terms of Reference”].

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Perhaps unsurprisingly, then, there is little Canadian case law in judicial review of administrative action in health care. One survey of the literature identified Quebec as home to the only “substantive administrative law challenge in health rationing.”254 That case merely secured reimbursement for the provision of a specific health care good; an updated case search found no further successes.255 There is little to suggest that this state of affairs will change soon. It remains difficult to identify which decision-maker one is challenging as unreasonable, given the complex mix of actors involved in the health care setting. It can be difficult to determine who exactly made the decision not to fund a particular service. Even if one identifies the general manager or the Minister of Health as ultimately responsible, the existence of the other actors in the process can be used as evidence that the decision was the reasonable product of a consultation-heavy and thus procedurally fair process. Once one finds one’s target for judicial review, it can be even more difficult to get standing to challenge the body that made the decisions. This could change if future decisions are more transparent and more clearly made by identifiable, preferably arm’s-length, decision-makers. The Ontario Health Technology Advisory Committee has clear responsibility for decisions about new health technologies in that province, and decisions by that committee not only are made public but also are partly the result of input by members of the committee who are also members of the public.256 If other new technologies, medicines, and health care developments are subject to a similar process, it will be easier to identify who made decisions and to directly challenge them (though public participation will suggest that the public member–supported decisions are reasonable to the public, which could be evidence that they are reasonable in the technical legal sense of the term). Even this development may not assist those seeking less cutting-edge health care, but it will count for something. In the meantime, one approach to achieving many of the goals of my pluralist right to health would be to see appropriate enforcement of the CHA. That would be hard to secure, though. Federal reluctance to alter the CHA or to use its withholding powers where quality of care dips in certain provinces has limited the federal government’s ability to ensure that its equal distribution of funding for health care services results in equal coverage of and access to essential 254 Colleen M Flood & Michelle Zimmerman, “Judicious Choices: Health Care Resource Decisions and the Supreme Court” in Jocelyn Downie & Elaine Gibson, eds, Health Law at the Supreme Court of Canada (Toronto: Irwin Law, 2007) 25 at 52–53. 255 Stein v Quebec (Regie de l’Assurance-maladie), [1999] QJ No 2724 (QC Sup Ct) is not commonly used as precedent. It was cited twice in the ffeen years following the decision (once to distinguish it). 256 “Terms of Reference”, supra note 253, s 3, art 2.

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health care goods. If the federal government were to create stronger criteria and exercise its withholding power, it could take greater control of health care allocation decision-making and provide more fine-grained guidance to the provinces regarding what they must cover. This could include required coverage of WHO-recognized essential goods. There would be clear political backlash against such a move from the provincial governments, but let us note that the federal government once unilaterally set the terms of the transfer criteria.257 Political realities continue to make the federal government reluctant to use its withholding powers to increase access to health care in provinces that fail to provide essential services. A legal challenge could potentially change that. Unfortunately, that promise is unlikely to be realized. As Sujit Choudhry ably demonstrates, it is difficult to secure a judicial order to force the federal government to enforce the terms of the CHA.258 While Choudhry believes that individual standing to make a claim can be secured, he rightly notes that meeting the terms of the test for such standing is difficult and that only sophisticated litigants could even frame their case in a manner that would meet the test.259 Furthermore, even if an individual can secure public interest standing to challenge the legislation, he or she is unlikely to receive an order of mandamus from the court to enforce the terms of the CHA and withhold payments.260 The only alternative remedy, a declaration that governmental failure to act was unlawful, would not create a legal requirement to act, but only public pressure to do so.261 A recent attempt to secure a writ of mandamus requiring the federal government to enforce the CHA’s double-billing provisions in Quebec secured its intended social success when Quebec banned double-billing due to public pressure,262 but litigation success in this matter remains hard to identify.263 Direct

257 Katherine Fierlbeck, “Introduction: Renewing Federalism, Improving Health Care: Can Tis Marriage Be Saved?” in Katherine Fierlbeck & William Lahey, eds, Health Care Federalism in Canada (Montreal & Kingston: McGill–Queen’s UP, 2013) 3 at 3–4. 258 “Te Enforcement of the Canada Health Act” (1996) 41 McGill LJ 461. 259 Ibid at 477–482. Te four-part test from the time of Choudhry’s piece no longer applies. Te leading test from Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 SCR 524 is a three-part test. Yet Choudhry’s point remains true. Passing the test remains onerous for many. 260 Choudhry, ibid at 498–500. 261 Ibid. Of course, other historical writs provide alternative administrative law remedies. Yet Choudhry is right to note that these are the only two remedies for which one has even a prima facie case in the health care rationing context we are discussing at present. E.g., habeas corpus is clearly irrelevant. 262 Réseau FADOQ, Media Release, “Accessory Fees: Te Battle with Gaétan Barrette Continues” (24 October 2016), online: Réseau FADOQ . 263 For the litigation success/social success distinction, again see Gloppen, supra note 205.

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legal challenges thus remain largely ineffectual here as well. Political pressure, not legal orders, still does the bulk of the work in requiring federal enforcement. Judicial review is, in other words, unlikely to compel the federal government to enforce its withholding powers under the CHA in a manner that will ensure greater continuity of coverage between the provinces even with respect to the goods necessary for a dignified existence that any acceptable definition of medical necessity or requirement ought to cover. This limits direct judicial review’s ability to improve Canada’s realization of the systemic component of the right to health care. While health care coverage should differ across the provinces based on provincial needs, the goods necessary for a dignified existence and coverage of those goods should be broadly consonant across provincial boundaries. The systemic component of the pluralist right to health care requires a system that can protect coverage of those goods. Yet the problems with using judicial review to more strongly enforce CHA standards that seem to support coverage of hospital- and physician-provided goods necessary for a dignified existence suggest that judicial review cannot easily be used to ensure, let alone protect, coverage of the goods across Canada. Other problems with judicial review are also clear. For instance, the limited access to the court proceedings outlined earlier suggests that direct administrative review before the courts is not a means of promoting more public participation in health care decision-making. In fact, given the costs of litigation and judicial review’s status as a very late stage in decision-making, direct judicial review is likely not the best forum for such participation in any case. Also, judicial review cannot be used to ensure that the health care system will produce data required by a functioning health care system absent explicit statutory data collection duties; unenforced existing duties are not the cause of the data insufficiencies identified in previous chapters. Direct judicial review of first-instance decision-making contributes to the procedural fairness component of the right to health care by definition. But it (perhaps surprisingly) ultimately does not maximize the acceptability and reviewability elements of the procedural fairness component of the right. Such direct judicial review is also unlikely to help realize the goods-based and systemic components of the pluralist right to health care. Legal reform here is likely unavailable, for this would require an exploration of whether tribunals or ombudsperson reform can aid rights realization. Moving on to another non-human-rights–based administrative law tool, administrative tribunals too contribute to the procedural components of the right to health care, but reforms are necessary to maximize those tribunals’ contribution to the pluralist right as I articulate it (viz., as a right with goods-based, procedural, and systemic parts). It is natural to begin an analysis of tribunals by noting that they contribute to two elements of the accountability for reasonableness framework that I argue provides

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best measures of the procedural component of the right to health care: tribunals not only improve reviewability by definition but also contribute to increased transparency by forcing some reasons into the open. Decision-making is opaque throughout the Canadian health care system, and administrative proceedings can compel the government and the administrative boards and tribunals empowered by them to explain their decisions. The expectation is that when administrative decisionmakers must publicly release their decisions with reasons, meeting this canon of procedural fairness will improve the substance of those decisions: it is more difficult to make an unreasonable decision when one must publicly justify its reasonableness. Well-constituted tribunals can help improve Canada’s scores in other ways as well. There is a need to attempt to shift decision-making regarding funding and coverage out of the hands of politicians and into arm’s-length agencies that can make choices on the basis of the best evidence and in accordance with constitutional law and values. Where funding of goods is discretionary due to ill-defined criteria for funding and this discretion is left to politicians, too many decisions are based on political concerns rather than on justice or even what the best evidence tells us will produce good health outcomes. Arm’s-length decision-makers who are bound to make decisions on the basis of evidence and justice-related constitutional law and values are more likely to make just decisions that produce good outcomes. Tribunals should be fulfilling and/or reviewing work conducted by these arm’s-length bodies. Decision-makers will then be required to provide reasons for their decisions. At present, administrative decision-makers are not always required to provide reasons for their decisions. Requiring them to do so to (at least) appeal tribunals, and the continuing digitization of the existing reasons for decisions, will increase the mainstream system’s transparency and procedural justice.264 It will also allow us to better check the acceptability of reasons in the health care system. Increased reason-giving requirements for all administrative health care decision-makers are likely advisable. Ontario and Quebec post their reasons digitally, and this provides a model for increasing reason-giving without running into serious resource constraint problems in this narrow setting. Statutory requirements for reasons for decisions with quick turnaround times will, in turn, increase the transparency and the actual reviewability of Canada’s mainstream health care system. Some provinces take much longer than others to address claims and provide reasons for decisions.265 These variations impact 264 Ontario and Quebec’s expansions into digital reason-giving can be a model. See notes 83–84 of chapter 6. 265 E.g., compare target and actual numbers in HIA – QC, supra note 83, s 18.3; Health Professionals Appeal and Review Board, Health Services Appeal and Review Board, Transitional Physician Audit Panel, and Ontario Hepatitis C Assistance Plan Review Committee, Annual Report: 2012–2013 (Toronto, 2013) at 59; Manitoba Health Appeal Board, Manitoba Health Appeal Board – Annual Report 2013–14 (Winnipeg, 2014) at 22.

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the extent to which persons can enjoy procedural fairness as well as the extent to which administrative appeal tribunals offer a more economical route than other forums for realizing the right to health care. Statutory requirements for quicker hearings in slower provinces can increase the economy of reviewability and, perhaps, the quality of review. More substantial reform is needed in order to maximize administrative tribunals’ ability to improve access to the goods necessary for a dignified existence. Recall that Canada’s health care–related administrative appeal bodies can only hear claims for in-province goods where those goods are already insured services. Thus they cannot order insurance of new goods, even those necessary for a dignified existence. Insulin, for example, can remain uncovered in a province. Even goods necessary for a dignified existence in hospital and physician care may be uncovered. In Ontario, HSARB can more clearly require reimbursement for out-of-province health care when the criteria concerning medical necessity and unavailability apply.266 But even if this power were interpreted broadly, it would do little to increase access to health care goods in Canada. Only those able to make it out-of-province in the first instance would secure funding. Health care tribunals, then, seem unable to secure access to health care goods generally. This raises questions about tribunals’ ability to secure the goods necessary for a dignified existence. Indeed, this lack of true opportunity for successful appeals of in-province denials of goods makes it unclear whether tribunals are even forums for substantive reviewability required by accountability for reasonableness and, thus, the pluralist right to health care’s procedural component. Addressing this issue requires statutory reform. Expanding the jurisdictions of these bodies to include explicit consideration of whether denials of public funding for in-province health care goods should be overturned is the most obvious reform that could help increase Canada’s right to health care scores. Turning tribunals into forums where one can make claims for specific goods not provided in the province will strengthen their ability to secure essential goods. It will also better ensure that reasons for health care rationing decisions in Canada are acceptable to the public by providing a forum to substantively challenge the reasons given by governments on multiple grounds. This is advisable from a right to health care perspective. Such statutory reform could push past the present limitations of the CHA, enabling administrative tribunals to consider, from a broad array of potential goods and services, what should be chosen for the publicly funded basket. A right-maximizing statutory reform would push public coverage in each province to include essential drugs and 266 See General, RRO 1990, Reg 552, s 28f for the sections setting out these criteria.

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devices, as opposed to focusing solely on hospital and physician services. This need not run into scope-related problems. On the most plausible approach to reform here, administrative boards and tribunals could be required to ensure that decisions are reasonable given the resources available; arbitrary decisions resulting in the funding of non-essential physician services (e.g., bunion removal) instead of essential drugs (e.g., insulin) would not be acceptable. Absent reform, tribunals will be unable to secure access to the goods necessary for a dignified existence for refugee claimants and NIHBP users.267 The available reviews of decisions in the immigration context face some of the same limitations as reviews of tribunal decisions in the mainstream system. For instance, Pre-Removal Risk Assessment officers, who make many decisions on refugee claimant care, do not have jurisdiction over constitutional questions.268 They thus cannot consider health care claims grounded in constitutional rights. Their decisions can be considered reasonable on review even if they do not consider basic constitutional norms (though they can appeal to constitutional values and should do so for the reasons discussed earlier). This can lead to persons failing to receive even care that would be provided in mainstream provincial programs. In a famous case, a decision to send a refugee claimant with end-stage renal failure back to his country of origin despite that country’s unwillingness to provide him with necessary medical care was deemed reasonable because the foreign government chose not to cover the relevant and requested services on the basis of acceptable reasons for rationing, and the statute enabling the deportation was found to be in conformity with Canada’s Charter.269 This was an uncomfortable result. Canada cannot pay for the health care of all persons, including those who require necessary care, so reform to allow all persons seeking care to enter the country is unwise. But the broader concern about the IFHP potentially not covering essential goods for many persons, which was nearly realized in the proposed 2012 cuts, and immigration law decision-makers’ lack of authority to consider the constitutional factors that led to the end of the proposed 2012 cuts, together leave a potential hole in coverage and means of securing coverage. 267 In the immigration context, one can challenge some decisions before the Immigration and Refugee Protection Board. Tese claims ofen do not focus on whether the person should receive health care services under the IFHP while in the country but rather on whether one should be sent back to one’s county of origin where that country lacks needed health care services and/or where returning someone to a country would cause detrimental mental health outcomes. See e.g., Covarrubias, supra note 146. Tere are more promising examples of decisions in the mental health context, though those cases tend to bypass the Immigration and Refugee Protection Boards and seek judicial review of Pre-Removal Risk Assessment decisions; see e.g., Level v Canada (Minister of Citizenship and Immigration), 2013 FC 1226; Ferreira v Canada (Minister of Citizenship and Immigration), 2014 FC 756. 268 Covarrubias, ibid. 269 See ibid generally.

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Setting up a clear statutory, rather than regulatory, framework for the IFHP along the lines of the proposed CHA-based framework for which I have argued can help avoid some of these concerns. Placing the bulk of the program in statute rather than Orders in Council would make subsequent, potentially regressive changes more difficult and less likely to be made at the whim of a political executive. This is an appropriate response to the FCC’s holding in the case concerning the proposed 2012 cuts that removing persons from care, solely on the basis of political whims, would violate the Charter.270 The IFHP should also include a clear duty to provide the goods necessary for a dignified existence and a fair, non-political process for deciding what range of benefits will be provided to refugee claimants. Those claimants deserve to enjoy a dignified existence while in Canada. Canada cannot be responsible for the world’s health and cannot be responsible for providing health care to claimants if they can return to their countries of origin, but it should be responsible for minimal care for the people already here. Ensuring that decision-makers can consider constitutional questions will also minimize the possibility that decision-makers will make inequitable claims that minimize realization of the right to health care. Where such decisions are still made, an arm’s-length review body should then be available to remedy constitutional violations. That body can also contribute to the procedural fairness of the IFHP process by, for example, addressing claims to additional care. Statutory procedural fairness guarantees, reviewable by an arm’s-length tribunal that is itself bound to be fair, would ensure that the program meets the demands of equality and the right to health care. While multilevel review could theoretically perform this task, a single-level review entity whose decisions are judicially reviewable would be best in terms of avoiding the problems of delayed access to final decisions present in the NIHBP context. An arm’s-length tribunal to review decisions of the NIHBP in a manner that maps onto my calls for a pluralist conception of the right to health care is also independently advisable. The many tiers of internal review and lack of an arm’slength review body in the NIHBP currently undermines the procedural fairness of that program and limits claimants’ ability to ensure that the program provides all goods necessary for a dignified existence. The NIHBP’s status as a supplementary program means that it already fills many gaps in the mainstream health care system’s realization of the substantive, dignity-enhancing, goods-based component of the right to health care. Statutorily guaranteeing some minimal coverage would be advisable here too, though the NIHBP has not encountered threats to its coverage that would make such statutory guarantees imminently necessary in the IFHP context. The need for a single appeal body is, however, even more pressing in the NIHBP context than in the IFHP 270 Refugee Care, supra note 38.

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context. The NIHBP does not offer third-party review of program decisionmaking except for judicial review before superior courts; one must nonetheless go through three levels of internal review before making a claim.271 Given that no alternative independent review forum has been provided, and that it delays access to judicial review, this undermines the program’s reviewability. There are no administrative tribunals for improving the NIBHP. Simplifying review proceedings to a single level of review by an arm’s-length entity would improve the impartiality and efficiency of reviews. Giving such a body the power to review whether the NIHBP is realizing the goods-based and systemic components of the right to health care would thus help ensure that the NIHBP is maximizing realization of the pluralist right. Where administrative tribunals in their allocation decisions are bound by procedural fairness demands and the norms of gradualism, they will not unduly expand federal programs or compel other decision-makers to do the same. Statutory recognition of such appeal bodies can require commitments so that tribunals are respectful of resource limitations but allocate resources fairly within such constraints. This too counts as a reason to place the programs within statute rather than Orders in Council: statutes allow a broader regulatory regime with explicit requirements that are more difficult to change and thus less likely to be subject to political fancy. One could argue that the additional regulatory framework I am proposing is itself likely to increase costs; however, Canadian decision-makers are bound by the demands of procedural fairness and Canada should be willing to incur the costs of ensuring such fairness. The demands of procedural fairness arguably include a requirement to ensure access to justice. The costs of providing these additional forums are, I suspect, likely to be lower than the costs of increasing access to courts and expanding the scope of judicial review of first-instance decision-makers. In any event, such expanded scope faces an expertise concern and other identified problems. Finally, reform is necessary to strengthen public participation so as to maximize public acceptance of the reasons for health care decisions and the system’s responsiveness to citizens. Administrative tribunals provide some (admittedly limited) opportunities for participation in the health care decision-making process that could contribute to the systemic component of the right to health care. All health care tribunals should provide and/or expand these opportunities in order to increase right to health care realization. Recall that international human rights law gives the public the right to participate in health care decisions. Tribunals can provide an opportunity for the public to participate in the system’s administration. More public participation in tribunals’ administration and/or decision-making would increase the systemic component of the right to 271 See Chapter 7.

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health care; it would also help tribunals ensure that their reasons are accepted by and acceptable to the public. Acceptance by a few tribunal members hardly ensures acceptance by even a large portion of the public, and the limited jurisdiction of tribunals limits even the public’s criteria for evaluating reasons; that said, when the public participates in the evaluation of reasons, tribunal decisions are more likely to inspire public acceptance of them. There are many possible forms of public participation in health care rationing, and it is difficult to identify which precise form would be most appropriate.272 I believe that at minimum, public consultation about tribunal rules and procedures is necessary. Such consultation will increase public confidence in the fairness of decision-making without allowing the public’s unscientific reasoning into the actual decision-making processes. It will thus properly weigh accountability for reasonableness’s potential public acceptance and public acceptability demands. Past practice suggests that such consultation will not unduly limit boards’ ability to function. At present, HSARB is required by statute to consult with the public when changing its rules or procedures.273 If this has posed any problems to date, I am unaware of them. Given the benefits and limited risks of this form of public participation, this minimal requirement should be adopted elsewhere. Adoption of these consultative measures in provinces with administrative appeal bodies would also be a step toward the more truly national health care system required by the right to health care. Participation is only one element of the right to health care, but reforming appeal bodies to allow greater participation would help realize it. Regarding the final relevant administrative law tool, ombudspersons could improve realization of at least the procedural and goods-based components of the right to health care and perhaps the third, systemic component as well. However, maximum realization of the pluralist right would require reform of the ombudspersons’ role as it presently exists. From a procedural perspective, ombudspersons can contribute to accountability for reasonableness. Ombudspersons provide direct forums for challenging decisions and thereby help address the reviewability criterion in the accountability for reasonableness framework. Because they do not face the formal strictures of judicial and administrative law, well-funded and well-trained

272 See e.g., Kathy K Li et al., “Conceptualizing the Use of Public Involvement in Health Policy Decision-Making” (2015) 138 Social Science & Medicine 14. As noted previously, Sandra Liebenberg, “Te Participatory Democratic Turn in South Africa’s Social Rights Jurisprudence” in Young, Future, supra note 4, 187 highlights the pitfalls of constitutionalizing participation norms in social policy. Tose could be pitfalls for the content of the norms here. 273 Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, SO 2009, c 33, Sch 5, s 3.

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ombudspersons should be able to provide this review function more efficiently than some alternatives. Also, an ombudsperson speaks for the public formally and can notify decision-makers when the public does not accept reasons for a decision. An ombudsperson should be a member of the public, for this ensures a role for public participation in the health care system (though Ontario’s first “Patient Ombudsperson” was a seasoned politician and political party insider who quickly left the job to run for office and later became Minister of Health and Long-Term Care in a controversial government). The fact that ombudspersons’ proceedings often occur after public complaints, which are a form of public participation in the health care system, suggests that ombudspersons’ claims reflect a (if not the) public interest. Where public participation is required as part of the systemic component of the pluralist right to health care, ombudspersons also contribute to that component of the right. Indeed, the fact that ombudspersons are not limited to hearing complaints from persons with justiciable claims means that they can consult with more persons than tribunals and courts. This allows more public persons to have their complaints heard, which could contribute to public acceptance of reasons. Public acceptance of reasons is more likely when public participation is available. Even when complaints do not lead to substantive change, persons are more likely to accept rejection of their claims when they feel that their voices have been heard. First-instance decision-makers could and should also consult the broader public; ombudspersons can complement that work. Ombudspersons also offer a path for securing essential goods by challenging barriers to service access and perhaps by challenging original decisions. The lack of clear, articulated powers to enforce laws provides a prima facie case that ombudspersons cannot contribute to substantive realization of the right to health care, but that case does not withstand scrutiny. If limited jurisdiction undermines health appeal tribunals’ ability to realize the substantive components of the right to health care, one may expect that the limited powers of ombudspersons will stifle ombudspersons’ ability to do the same. Yet the lack of explicit limits on ombudspersons’ jurisdiction to consider substantive claims means that ombudspersons can recommend substantive change, including coverage of goods necessary for a dignified existence. In the end, changes will require political rather than legal power. Yet there is some evidence that ombudspersons can have such power. For instance, Quebec’s non–health-care-specific ombudsman claims 98 per cent compliance with its recommendations.274 It is unclear whether health care–specific ombudspersons maintain this high level of compliance and whether they have sufficient public support to sustain it, but

274 Le Protecteur du Citoyen, “Roles and Mandates” (2019), online: Le Protecteur du Citoyen [“Roles”].

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these data suggest that well-designed ombudspersons can garner the political support necessary to secure change. Moreover, while ombudspersons cannot enact the changes on their own – as appeal tribunals can – they generally do not and need not face formal legal limits on their powers that prevent them from engaging with political actors to realize the substantive components of the right to health care. Ombudspersons may also possess other tools that free them to make unique contributions. One of these is the ability to report information without making a formal recommendation,275. Even where governments are reluctant to heed advice, ombudspersons can create pressure to increase access to the goods necessary for a dignified existence. As Colleen M. Flood and Tracey Epps note, ombudspersons’ access and timeliness reports could create public pressure on governments to provide essential health care goods, and reporting on maximum wait times could help address the timeliness of provision.276 Ombudsperson reports can provide information that generates political pressure to act even where ombudspersons do not make formal recommendations. This could help ensure coverage of and access to the goods necessary for a dignified existence. Also, information about the need for these goods could form the basis of reports. Reports stressing the need for certain goods to live even a minimally dignified existence could create pressure to publicly fund them, particularly if they include information about the economic benefits of doing so.277 An ombudsperson who secures sufficient public legitimacy could also help ensure that legislation is changed in ways that improve Canada’s scores on the right to health care metrics developed in prior chapters. He or she could, for instance, recommend expanding the jurisdiction of health care–specific appeal tribunals if this limited jurisdiction interferes with persons’ access to goods to which they ought to be entitled.278 A protective casing around this legal tool would prevent it from running into an extreme end of the Problem of Scope. High compliance rates with 275 Ombudspersons admittedly ofen lack jurisdiction over private actors (Flood & Epps, supra note 107 at 538), which bars them from addressing barriers created by private bodies. Tis is an argument for reform of ombudspersons’ role and for allowing ombudspersons to coexist with other entities, not an argument against them. 276 Ibid at 552–553. 277 Such additional economic information would be possible in, for instance, a report on the need for public funding of pharmaceuticals (Morgan et al., supra note 180; Taglione et al., supra note 192), though governments have been unresponsive to public pressure on that issue in the past. 278 Appeal tribunals are not the kind of bodies listed as under ombudspersons’ purview in Quebec’s existing legislation; “Roles,” supra note 274. But this could support reforming existing ombudspersons’ role(s). Whether a reformed body would have the same level of compliance as Quebec’s general ombudsperson is up for debate.

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ombudspersons’ recommendations in some jurisdictions suggest that they understand what governments can be expected to do and do not ask for overly expansive changes. They are also bound by a duty of fairness and explicitly cannot take on frivolous cases.279 The potential rights expansion that could take place if ombudspersons failed to meet this duty, and went beyond their authority so as to suggest changes with radical funding implications, is unlikely to happen. Governments retain the authority not to follow recommendations.280 Recommendation of coverage of an essential good for a complainant need not entail recommendation of a wholesale change in CHA-related decision-making criteria. If an ombudsperson requested full-scale health care system reform, or even widespread coverage of very expensive and/or ineffective health care goods, governments could ignore that advice. Finally, ombudspersons could at least in theory contribute to the systemic component of the right to health care by making common recommendations on coverage for all provinces that, if followed, would create more truly national standards of coverage of at least the goods necessary for a dignified existence. The international right to health care requires at least a quasi-national health care system and policy. Some differences in coverage across the provinces are justified by differences in needs and resources; even so, the nation as whole should ensure that all provinces at least cover the goods necessary for a dignified existence and that all provinces have procedurally fair processes for determining what to cover. Ombudspersons could theoretically ensure national norms protecting these other components of the right to the health care, but the mechanism for them to do so is unclear. Obviously, a national health ombudsperson could fill this role, but such an entity would amount to a radical change in the legal landscape and the constitution may not in fact allow the federal government to play such a strong role in health care.281 Provincial ombudsperson meetings

279 See e.g., Health Ombudsman Act, supra note 105, ss 21, 13. 280 Tis power also gives ombudspersons a comparative beneft over alternatives. Tribunals historically faced an accountability critique; Flood & Dolling, supra note 95 at 11. Unelected tribunal members make determinations that are enforced and have strong public impact, but they cannot be removed from their positions by the public and are not subject to public review proceedings. Ombudspersons are not a proper subject of this kind of critique. 281 For the root of the federalism concerns, see my descriptions of 1867, supra note 2 and its implications. Federal ombudspersons to oversee the NIHBP and the IFHP are conceptually possible and could have the same benefts as provincial ombudspersons. A joint federal– provincial program may also be accorded some deference by courts (see e.g., Reference re Agricultural Products Marketing, [1978] 2 SCR 1198), though its form is difcult to imagine and the creation of a national body to replace existing provincial ones is ofen found to be unconstitutional even where there is an indication that the national body would otherwise be constitutional (see e.g., Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837), which is likely not the case here.

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and other forms of consultation could provide a similar result. As ombudspersons respond to particular issues that arise in their jurisdictions, their recommendations could result in a patchwork of solutions that exacerbate differences between the provinces. This may be helpful from a problem-solving perspective and not run afoul of the right to health care’s commitments to ensuring access to essential goods and procedural fairness, but the threat of a lack of even minimal similarities across the provinces lingers nonetheless. Creating a national patients’ bill of rights for all ombudspersons to discharge could avoid these concerns, but this too would run into federalism issues.282 Even so, ombudspersons can produce positive changes without the threat of co-option by retrogressive forces present in the constitutional context. Chaoulli raises the possibility that a constitutional “right” to health care could lead to greater privatization of the Canadian health care system, thus undermining public funding of health care goods, including those necessary for a dignified existence, as well as the procedural fairness of health care distribution in Canada,283 but there is little risk of this with ombudspersons. A privatization recommendation would be beyond the mandate of ombudspersons, who are, by definition, calling on governments to do a better job with public resources, not examining claims for greater access to private services. There are practical reasons to focus on ombudspersons as a tool for improving Canada’s scores on the right to health care. Efficiency is one: ombudspersons are often required to exercise their powers in an efficient manner. Even absent that requirement, Canadian ombudspersons are not currently subject to the same complaints about wait times as courts and tribunals. Efficiency could be undermined if ombudspersons could respond only to individual claims. A focus that narrow could create something analogous to the situation with constitutional rights in Brazil, where a lack of stare decisis led to identical cases being brought multiple times, and where overlitigation was expensive for the health care and judicial systems.284 A process whereby ombudspersons make the same recommendation over and over would waste time and money. But ombudspersons need not be so constrained. The “main function” of ombudspersons is “the examination of complaints,”285 but ombudspersons are generally empowered by legislation to investigate in the absence of an individual

282 Even requiring provincial data collection could run into such federalism concerns, though recommending data collection as a condition of CHA funding is possible and ombudspersons could themselves collect data that could help inform future rationing decisions. 283 Chaoulli, supra note 3 and discussion thereof throughout this text. 284 See the sources in the earlier discussion of Latin American overlitigation. 285 Health Ombudsman Act, supra note 105, s 7.

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complaint and are not bound to make recommendations tailored to the needs of individual complainants.286 Ombudspersons can also face efficacy issues, but these can be vitiated through careful design. People will perceive these issues to some degree no matter how one structures a public entity like an ombudsperson, so they must be addressed if ombudspersons are to maximize their substantive impact. These issues are easily avoided/resolved in Canada and do not require drastic reforms. To maximize their potential, ombudspersons should have public reporting requirements, information-gathering powers, recommendation-based “enforcement” powers, timeline requirements, and duties of fairness, and they should not take frivolous cases. These requirements will ensure accountability to the public, maximize public support and pressure on political entities, keep ombudspersons from wasting resources, and allow them to act in concert with, rather than in opposition to, other potentially rights-improving legal tools. Such concerns will avoid the problems that undermined public confidence in the British health ombudsperson, such as overly complex processes, insufficient investigation, capture by elites, minimal reason-giving in reports, inconsistencies in reasoning, and long wait times.287 These requirements for Canadian ombudspersons can be put in new legislation and should not require major changes to the existing structure. Indeed, some are already necessary under current law. Recall, for instance, that ombudspersons are subject to judicial review. Then note that the duty not to take on frivolous cases already exists in at least one province.288 Ombudspersons must also be properly funded. The British ombudsperson lacked public support due to inefficiency, perceived ineptitude, and a lack of strong training and reasoning. Well-funded and well-trained Canadian ombudspersons subject to a duty to act according to publicly acceptable reasons and to provide reason-responsive recommendations and reports within a reasonable time frame would avoid the worst of the complaints levelled against their

286 See the sources in notes 102, 105, and 108. 287 Katherine Murphy & Jacqui Coles, Parliamentary and Health Service Ombudsperson: Te “Peoples” Ombudsman – How It Failed Us (Middlesex: Te Patients Association, 2014), online: Te Patients Association at e.g., 8–34; Millie Leigh-Wood, PHSO – Labyrinth of Bureaucracy: Follow-Up Report to the November 2014 Patients Association Report on the Parliamentary and Health Service Ombudsman, “Te Patients Ombudsman – How It Failed Us” (Middlesex: Te Patients Association, 2015), online: Te Patients Association ; Parliamentary and Health Service Ombudsman, Our Strategic Plan 2015–16 to 2017–18: Making a Diference (London: Parliamentary and Health Service Ombudsman, 2014). 288 See e.g., Health Ombudsman Act, supra note 105, ss 21, 13.

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British counterparts. Canadian ombudspersons subject to these requirements are likely to enjoy greater public support; this will help them pressure governments to follow their recommendations, thus avoiding the concern in Britain about ombudspersons being unable to bring about substantive change in that nation’s health care system.289 Provided that ombudspersons contribute to realization of the right to health care, concerns about the cost of funding them should be at least partly offset. It is less clear whether ombudspersons require a patients’ bill of rights to maximize realization of the right to health care, but such bills, where they exist, should include the components of the pluralist right to health care. Some scholars suggest that “an economical, easily accessible and independent complaints process,” which can amount to an ombudsperson review or reporting process, is necessary for a patients’ bill of rights to be “meaningful,”290 but health care–specific ombudspersons and patients’ bills of rights could formally exist apart.291 Where an ombudsperson has jurisdiction over a wide variety of health care rationing issues, the power to recommend redistribution based on explicitly legislated reasons, and government support such that recommendations are followed in a substantial number of cases, his or her authority grants claimants an implicit bill of health rights enforced by the ombudsperson’s recommendations. Whether this implicit bill can help realize the right as much as a wellcrafted explicit bill of rights is unclear. An unduly limited explicit bill of rights could hinder maximum realization of the right to health care. In many cases, explicit bills of rights do not add rights. In Canada and other jurisdictions, most patients’ bills of rights collect rights that exist elsewhere in the legal order.292 Such patients’ bills of rights thus “do not generally grant formal legal rights … [T]hey can act as a catalyst through which to resolve individual patient concerns quickly and economically.”293 They can be underinclusive of the concerns

289 Such political support alone would not, of course, fx all the perceived problems in the United Kingdom. 290 E.g., Colleen M Flood & Kathryn May, “A Patient Charter of Rights: How to Avoid a Toothless Tiger and Achieve System Improvement” (2012) 184(14) CMAJ 1583 at 1583. 291 British Columbia’s patients’ bill of rights, for instance, exists without anyone to discharge it, and ombudspersons exist elsewhere without bills of rights to discharge; BC Regulation, supra note 108. 292 See Flood & May, supra note 290 at 1583. 293 Ibid. On this reading, when the ombudsperson lacks a mechanism for enforcing his or her decision, new rights in a bill are mere aspirations. One could alternatively understand them as moral rights that are legally recognized but not legally enforced. Governments may see bills as legally enforceable even if they do not create entities to enforce them if the bills contain aspirational rights that can be used to interpret other laws and regulations but cannot ground claims on their own. Tere would then be a lack of ft between rights recognized in and duties imposed by the bills.

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addressed by the pluralist right to health care. If ombudspersons are going to realize explicit bills of rights, such bills should be crafted in a way that will realize the pluralist right to health care. From a right to health care perspective, then, there is a strong case to be made for well-constituted ombudspersons in Canada. Other provinces could follow Alberta, Manitoba, Ontario, New Brunswick, and Quebec and establish ombudspersons as forums for lodging complaints. Those named provinces, however, need to reform their ombudspersons to maximize realization of the right to health care, and other provinces should adopt the reformed model rather than copy existing ones. To maximize their role, ombudspersons should have broad powers that include the power to recommend changes in health care coverage and procedures, the power to launch investigations that may result in recommendations and reports even absent a complaint, broad public consultation mandates, information gathering powers, public reporting and timeline requirements, and duties of fairness and not to take frivolous cases. To avoid retrogressive suggestions, their recommendation powers should be limited how public funds are used. Also, they should grasp that their actions exist in a world of limited resources and act accordingly. To avoid competency concerns, ombudspersons should be well-trained and well-funded. Where recommendations fail to recognize resource constraints or seem to be the result of inadequate research, governments should not accept them. This flexibility in government response both protects democratic norms (i.e., by leaving ultimate decisions in the hands of legislators) and avoids the use of administrative law for unduly expansive ends. A specific pluralist right to health care in a patients’ bill of rights would likely be the easiest path toward ensuring that ombudspersons focus on realization of that right, but political support for such a move is unlikely. Absent such recognition, more work on whether existing bills of rights provide better guidance than implicit bills is necessary. Political opposition to ombudspersons and patients’ bills of rights may exist, but past failure need not presage future failure. In Alberta, a bill of rights proposal failed in the 1990s before succeeding in 2010.294 Having established an ombudsperson, Ontario is now undergoing a similar process of bill of rights recognition.295 Other provinces could create similar ombudspersons and/or

294 Bill 201, Alberta Patients’ Bill of Rights, 2nd Sess, 24th Leg, Alberta, 1998. 295 While Ontario’s past attempts to establish a patient’s bill of rights and to create an entity to protect those rights failed (Ammann & Bailey, supra note 108 at 20), seniors in Ontario possess codifed rights in the Long-Term Care Homes Act, SO 2007, c 8, s 3 and the Retirement Homes Act, 2010, SO 2010, c 11, s 5. Legislative recognition of patients’ rights outside the senior care settings could follow the 2015 recognition of the “Patient Ombudsman.”

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patients’ bills of rights with recommendation- and reporting-based “enforcement” mechanisms. Manitoba, New Brunswick, and Saskatchewan have considered creating patients bills of rights in the past.296 These and other provinces could create them in the future. The provinces should create ombudspersons even absent bills of rights, but explicit recognition of a pluralist right to health care is the most straightforward (if ultimately unlikely) method for ensuring that ombudspersons maximize rights realization. All three administrative law tools ultimately contribute to the procedural fairness component of the right to health care, though direct review is less useful. Direct review does not ensure acceptable reasons, and technical impediments such as standing requirements undermine its reviewability. Reform of tribunals and ombudspersons is also necessary to ensure that they comport maximally with the demands of accountability for reasonableness. Tribunals require expanded authority to maximize coverage of and access to the goods necessary for a dignified existence. Ombudspersons require public support for their recommendations to provide those goods. Both entities’ decisions about health care rationing should conform with constitutional values to ensure that decisions to increase coverage reflect commitments not only to equality and autonomy but also to procedural fairness within constrained resources.297 Conclusion Canada can take many steps to better realize the right to health care. Yet the sheer number of changes necessary to maximize realization that I identified should provide reason to question whether legal tools provide the best means of realizing the right. The changes I suggest here are not so great that my right is unrealizable in practice. A state could do everything I suggest without great cost. But some more efficient measure ought to be possible. The fact that many seemingly necessary legal changes are unlikely to be implemented in the current climate suggests that the law may not succeed in realizing the right. The economy and potential unexpected consequences of litigation may further auger against using the law to realize the right to health care. It may thus be worth trying to use non-legal measures to realize the right before litigating. But, as I will explain in the final chapter, more work needs to be done before we know which interventions – legal or otherwise – will maximize realization of the right.

296 Flood & Epps, supra note 107 at 517–518. 297 Greater judicial care is admittedly necessary to specify exactly how constitutional values should be used by administrative entities, but this issue is beyond the scope of this book.

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Chapter Nine

Concluding Thoughts and the Path(s) Forward

Introduction We can, then, produce a model of a right to health care that is independently morally justified, explanatory of existing health rights, and concrete in a way that will allow lawmakers and policy-makers to judge their actions against a “right to health care” standard. The pluralist model of the right to health care that I argued for in this work meets all the adequacy criteria for a plausible right to health care. It also avoids the worst implications of problems facing competing models. Yet the precise actions that lawmakers and policy-makers ought to take to maximize realization of this right in the real world remain unclear after a single study case analysis that demonstrates that the metrics realization can be applied and provide some insight into how one can practically and realistically realize the right in the real world. The first “action” this conception of the right to health care proposes thus ends up being further research. Multiple promising paths are open. In this final chapter, I summarize my findings and briefly outline those research paths. Summary Health rights are widely recognized yet hard to justify, particularly on a traditional, (“Hohfeldian”)1 claim right model of rights. This inconsistency between common legal phenomena and a traditional source of justification for such phenomena could be problematic. But if the right to health care is understood as an umbrella term for a variety of morally important and independently justifiable

1 Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23(1) Yale LJ 16 at 31; Wesley Newcomb Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710.

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ends, the problem will not arise. In this work, I argued that the right to health care is best understood as a series of claims to (1) the goods necessary for a dignified existence, (2) procedural fairness in determining what other goods will be provided and in the provision of goods, and (3) a functioning health care system understood as a means of determining what is covered by a system, a means of providing those goods, and data collection on how those means are fulfilled. These claims can be reframed under a more plausible modification of the traditional claim right model. But the right to health care on this understanding is fundamentally pluralistic and goal-based – and there is nothing wrong with that. In Part I, I made my case for a pluralist right to health care by arguing that any adequate model should be independently morally justifiable, explanatory of the relevant phenomena, and action-guiding (viz., concrete enough to guide decision-makers who want to realize the right) and that only a pluralist model can fulfil all three criteria. I also suggested that an adequate model should avoid problems facing existing models of the right concerned with setting the scope of the right to health care, with identifying the correlative duty and duty-bearer, with measuring implementation of the right, and with practically implementing the right. Chapter 2 was, primarily, an explanation of the relevant moral and legal phenomena and of the problems facing attempts to account for same. In the process, I introduced a new taxonomy of health rights and health rights project. Appendix 1 is an idealized visual representation of my findings. My hope is that the taxonomy will help future scholars identify the precise target of their analysis and that my description of the kinds of projects in which each right can be licitly used will likely avoid methodological errors such as adopting an unstated assumption that all legal rights must reflect moral ones. Such a claim may be justified, but, I suggested, must be argued for independently. I began laying out my own conception of the right to health care in chapter 3 and continued doing so in chapters 4 and 5. In chapter 3, I spoke directly to explanatoriness and independent moral justification by demonstrating that components (1) to (3) are both necessary but insufficient to address all relevant phenomena that are and/or should be part of a right to health care. The combination of (1) to (3) into a unified whole in my pluralist approach can account for them all. The appeal to dignity in component (1) helps justify the right to health care. Dignity is already recognized as a value in law and ethics. Jeremy Waldron, Michael Rosen, and others developed compelling, if competing, models of the historical and philosophical concept.2 Together, their works suggest a 2 Where I summarize entire sections of the text in this conclusion, I will cite to representative publications in these footnotes. Full citations appear in the original chapters. For instance, Jeremy Waldron, Dignity, Rank, and Rights, ed Meir-Dan Cohen (Oxford: Oxford UP, 2012) includes texts by each of the authors mentioned here. Full citations for all texts related to dignity that I directly cited are, in turn, available in the footnotes of chapter 2.

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continuity in modern conceptions of dignity whereby dignity is a property of persons that allows them to be recognized as free individuals and to act as such. This understanding is consistent with the version of dignity that serves as a linchpin of international human rights law. Adeno Addis’s work on the role of dignity in world constitutional law suggests that there is consensus that dignity has a similar structure in its global constitutional form.3 Dignity is thus a widely recognized value with a clear basic structure. It can play a foundational role in accounts of health care ethics and justice. In practical terms, this can also help clarify the proper scope of a claimed right to health care. This understanding of dignity can specify set content for the right that avoids making it overly expansive or a hollow inspirational ideal in a manner consistent with the minimal content of health rights identified in international human rights law and some domestic constitutions. Indeed, competing models agree on a basic set of goods that should be understood as necessary for dignity even if they do not cohere on what “dignity” requires. The right to health care is thus, first, a right to the goods necessary to be recognized and act as a free individual in the modern global order. It is a right to the goods necessary to reach that minimal level of well-being necessary to enjoy one’s other human rights. While this definition does not perfectly specify which individual goods form part of the content of the right to health care, it identifies numerous core cases that clearly fit. Basic maternal and infant care clearly qualifies. International human rights law recognizes this fact.4 The WHO’s Essential Medicine List, in turn, provides an imperfect proxy for the medicinal goods necessary for a dignified existence.5 Even if, like Katharine G. Young, one is sceptical about international human rights law’s articulation of the idea that all social, economic, and cultural rights must have a “minimum core” of content, all rights must have some minimal content, as Young also notes.6 Technical

3 “Human Dignity in Comparative Constitutional Context: In Search of an Overlapping Consensus” (2015) 2(1) Journal of International & Comparative Law 1. 4 E.g., United Nations, Committee on Economic, Social and Cultural Rights, General Comment 14: Te Right to the Highest Attainable Standard of Health, 22nd Sess, UN Doc E/C.12/2000/4, (2000) at paras 43–44. United Nations, Committee on the Elimination of Discrimination against Women, General Recommendation No. 24: Article 12 of the Convention (Women and Health), 22nd Sess, UN Doc A/54/38/Rev.1, ch I, (1999) generally supports this fact. 5 World Health Organization, “WHO Model List of Essential Medicines: 21st List (2019)” (2019), online: World Health Organization . 6 For the core, see United Nations, Committee on Economic, Social and Cultural Rights, General Comment 3: Te Nature of States Parties’ Obligations, 5th Sess, UN Doc E/1991/23, (1990) at para 1 [GC 3], as expressed in the right to health context in particular in GC 14, ibid at para 30. For Young’s criticism, see “Te Minimum Core of Social and Economic Rights: A Concept in Search of Content” (2008) 33 Yale J Int’l L 113. For a qualifed defence of a “modifed”

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concerns about what it means for a right to have core (or non-core) content do not vitiate the fact that a right without any content is not a right at all. Dignity helps set the minimal content in a way that explains the purported minimal core of the international right to health care without adopting the concept of the core. Health care goods recognized as part of the purported “minimum core” of the international right to health, such as the WHO-recognized goods, are plausibly understood as goods necessary for a dignified existence. Despite these benefits, (1) does not provide a complete account of the right to health care. It does not explain many domestic and international claims to goods that may not be necessary for a dignified existence, it cannot resolve borderline cases on its own, and it does not account for all elements of the international right. For instance, it cannot explain the fact that when litigants invoke a right to health care, they are making claims to a variety of different things. For instance, while many Canadian challenges are framed as claims to essential services, others are for services that are clearly not necessarily essential7 or that relate to issues of timeliness of treatment.8 This suggests that lay usage of the term “right to health care” captures a variety of different things. A right to only component (1) also struggles to explain the fact that international human rights law explicitly requires a functioning health care system as part of its right to health.9 A right to health care should also include a right to (2) procedural fairness in health care decision-making. The commitment to dignity in (1) alone appears to require (2) as a means of ensuring the pervasive equality characteristic of the preceding definition of dignity. Component (2) is necessary to solve borderline cases of essential goods and to explain and help one evaluate claims

minimum core, see e.g., David Bilchitz, Poverty and Fundamental Rights: Te Justifcation and Enforcement of Socio-Economic Rights (Oxford: Oxford UP, 2007), especially at 220–225. But note that even Bilchitz suggests that the health-related variant of the core must be “pragmatic” rather than “principled.” Bilchitz is arguably less circumspect in his support in “Giving SocioEconomic Rights Teeth: Te Minimum Core and Its Importance” (2002) 119 S African LJ 484 and “Towards a Reasonable Approach to the Minimum Core: Laying the Foundation for Future Socio-economic Rights Jurisprudence” (2003) 19 S African J R 1. But he raises the worry that the minimum core asks us to “do the impossible” even in the latter work from 2003 (at 2). 7 Cameron v Nova Scotia (Attorney General) (1999), 177 DLR (4th) 611 (NS CA); Auton (Guardian ad litem of) v British Columbia (Attorney General), [2004] 3 SCR 657, 2004 SCC 78. 8 Chaoulli v Quebec, [2005] 1 SCR 791, 2005 SCC 35. 9 Declaration of Alma-Ata, International Conference on Primary Health Care, 6–12 September 1978, Alma-Ata, USSR, UN Doc CF/HST/1985–034/Anx.04/07, art VIII; United Nations, Committee on Economic, Social and Cultural Rights, General Comment 14: Te Right to the Highest Attainable Standard of Health, 22d Sess, UN Doc E/C.12/2000/4, (2000) at para 36; World Health Organization, Meeting Report: All for Equity: World Conference on the Social Determinants of Health (2012) at 48.

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to health care goods that are not core cases of goods necessary for a dignified existence. Norman Daniels and James E. Sabin, Jennifer Prah Ruger, Colleen M. Flood, and others make strong cases that procedural fairness in health care allocation decisions is necessary as a matter of health care justice.10 Daniels and Sabin’s particular model also provides useful metrics for determining whether states are fulfilling the procedural dimensions of a right to health care.11 These demands are clearly consistent with the norms of basic administrative justice in some domestic legal systems.12 They are arguably also consistent with the demands of international law. I nonetheless argued that the right to health care is best understood as including substantive components beyond the procedural components in (2). Many right to health care claims are to particular goods, not just to procedural fairness in deciding whether to provide those goods. Moreover, in, for instance, a resource-constrained system, procedural fairness could result in funding decisions that produce results below the standard needed for a dignified existence. Finally, where people already have a right to procedural fairness as a matter of administrative justice or law, making the right to health care strictly procedural risks making the right to health care redundant. A pluralist right to health must also include (3) due to (3)’s instrumental necessity for fulfilling other components of the right and presence in international human rights law’s right to health.13 Yet a functioning health care system does not guarantee fulfilment of individuals’ health needs, and a right to a system does not conform to lay usage of the term “right to health care.” A pluralist model of the right to health care that views it as a set of claims to (1)–(3) can build on and incorporate the insights of people who worked on the right to (1)–(3) individually. Indeed, scholars working on procedural justice often do so in pursuit of substantive ends,14 so my pluralist account is not a radical departure from historical views, but a development of them. A pluralist version of the right to health care also explains conduct within existing monist legal and moral models. It can explain why constitutional and international

10 Norman Daniels, Just Health Care (Cambridge: Cambridge UP, 1985); Norman Daniels & James E Sabin, Setting Limits Fairly: Learning to Share Resources for Health, 2nd ed (Oxford: Oxford UP, 2008); Norman Daniels, Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge UP, 2008); Jennifer Prah Ruger, Health and Social Justice (New York: Oxford UP, 2009); Colleen M Flood, ed, Just Medicare: What’s In, What’s Out, How We Decide (Toronto: U Toronto P, 2006) [Flood, Just Medicare]. 11 Daniels & Sabin, ibid. See also chapter 3 and texts cited therein. 12 Colleen M Flood, “Conclusion” in Flood, Just Medicare, supra note 10, 449 at 452. 13 For some relevant international law, see note 9 and surrounding. 14 See note 48 of chapter 2.

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rights claims take a variety of forms, why monist models struggle to express themselves, and why philosophical and political disagreement on the power of appeals to the right to health care persists in many contexts. In chapter 4, I explained that international human rights law already recognizes a pluralist right to health care. This further supported my claim to explanatoriness, providing clear legal grounding for my approach. By addressing recognized sources of international positive (viz., hard) law that refer to health rights, authoritative interpretations thereof, and soft law documents that are specifically referred to in the positive law and interpretations thereof, I identified the core components of the international right to health (care), each of which relates to at least one of the three components of the pluralist right to health care. International human rights law’s commitment to universal access to health care, prioritization of certain goods and peoples, and perhaps its progressive realization standard articulate and help justify a focus on (1). Universal access to health care, progressive realization, modes of domestic implementation, and remedies are all related to (2). All components of the international right presuppose (3). After explaining how the international right to health care is a pluralist right, I further examined the international right to identify six sets of metrics for realizing a pluralist right to health care in chapter 5. The metrics are (a) the presence of legal protection of a health care system, of a national health care policy, and of participation forums in the development and administration of the policy, (b) a state’s self-defined benchmarks and indicators of success, (c) the extent to which certain essential goods are covered by a system, (d) Norman Daniels and James E. Sabin’s procedural fairness metrics, developed in their accountability for reasonableness framework, (e) rates of access to essential goods and the goods selected in (d), and (f) progressive realization indicators. Appendix 2 provided the details on how to apply these metrics. These all relate to components of the pluralist right to health care I defended in chapter 2. (c), (e), and (f) clearly relate to and help measure (1). (d) captures (2) at any given moment, and (f) does so over time; (e) may also be relevant to it. (a) and (b) follow directly from a commitment to (3). One should apply these metrics to the general population and to marginalized/vulnerable groups to reflect the general moral priority of marginalized/vulnerable populations and international human rights law’s commitments to them. I did this analysis in chapters 6 and 7 of this work, demonstrating how the right to health care and its attendant metrics can be practically applied in the real world. The analysis in Part I articulated a justifiable, practically measurable understanding of the right to health care that explains the variety of legal and philosophical phenomena placed under the right to health care banner. If adopted, my model could assist legal and policy scholars by providing an account of the right to health care that is justifiable and makes sense of international and

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domestic health rights and by providing measures that they can use to evaluate whether states are meeting their right to health care commitments. My conception is thus independently morally justifiable, explanatory, and action-guiding. Competing conceptions are not. Having justified the pluralist conception of the right to health care and explained how one can measure realization of the right, I applied the metrics to the Canadian health care system in Part II. I thereby demonstrated how one can apply my metrics and how application provides data that should guide decision-makers in the future, supporting action-guidingness. In chapters 6 and 7, I found that the Canadian health care system realizes some but not all aspects of the pluralist right to health care. The specific gaps in realization in the mainstream Canadian health care system include a lack of transparency in health care decision-making, insufficient participation opportunities, a lack of a national health care strategy or policy with self-defined benchmarks and indicators, inconsistent coverage of essential goods outside of hospital and direct physician care settings, and access barriers. Federal programs designed for specific marginalized/vulnerable groups also fail to realize the right. The Indigenous persons–based Non-Insured Health Benefits Program (NIHBP) has problematic review procedures, raises barriers to accessing care, does not cover many goods necessary for a dignified existence, and insufficiently reports access rates for other goods, while the immigrant claimant– based Interim Federal Health Program (IFHP) is insufficiently transparent and has made many decisions based on dubious reasons. Chapter 8 thus examined whether and how three branches of public law (namely constitutional law, human rights law, and administrative law) can fill the gaps in realization and improve Canada’s scores on my right to health care metrics. In each case, I argued that law reform is necessary to maximize Canada’s scores. I first argued that the judiciary can and should recognize a positive right to health care as a matter of constitutional law and that doing so can improve Canada’s scores on my metrics without violating any norms of Canadian constitutional law or creating expansive entitlements that undermine the public purse. I used the tools of purposive interpretation,15 comparative constitutional analysis,16 empirical work on health care by Steven G. Morgan

15 See e.g., Aharon Barak, Purposive Interpretation in Law (Princeton: Princeton UP, 2005). 16 E.g., I cite several authors in Alicia Ely Yamin & Siri Gloppen, eds, Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge: International Human Rights Clinic, Human Rights Program, Harvard Law School, 2011) 273, and Colleen M Flood & Aeyal Gross, eds, Te Right to Health at the Public–Private Divide: A Global Comparative Study (Cambridge: Cambridge UP, 2014).

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and others,17 and original readings of the constitutional record, including constitutional case law,18 to develop existing legal arguments for positive government duties to provide health care and fashion an original argument that constitutional law more broadly can be interpreted to realize the pluralist right to health care. Some components of procedural fairness in health care allocation decisions are already required under Canadian constitutional law. Charter and Indigenous rights could and should be interpreted in ways that create positive entitlements to some health care goods and some structural protections of health care entitlements. Yet there are clear barriers to interpreting constitutional law in a way that will maximize realization of the right to health care, most notably including traditional judicial reluctance to recognize “positive” elements of the relevant Charter rights and historical interpretations of Indigenous rights that treat Indigenous persons as people of the past. In addition, Canadian federalism presents potential obstacles to full realization of the right to health care in Canada. Questions about whether constitutional law is the best tool for ensuring the realization of health-related rights remain. Next, I examined Canadian human rights law’s prospects for realizing the right to health care. While Canadian human rights law is traditionally not a strong tool for securing health care entitlements for Canadians, I argued that it would better realize the right if it made greater use of systemic remedies and recognized immigration status as an analogous ground of discrimination and/ or inadequate spending as government action that can ground discrimination claims. Here too I found that necessary reforms were unlikely, undermining the case for law as the best tool for right to health care maximization – particularly in Canada and possibly more broadly. Yet I further argued that, absent necessary law reform, a recent decision in the child services context, First Nations Child and Family Caring Society of Canada et al v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada),19 provides tools for ensuring that at least some federal health care programs better realize aspects of the right to health care.

17 Steven G Morgan et al., “Estimated Effects of Adding Universal Public Coverage of an Essential Medicines List to Existing Public Drug Plans in Canada” (2017) 189 CMAJ E295; Michael S Taglione et al., “Development of a Preliminary Essential Medicines List for Canada” (2017) 5(1) CMAJ Open E137. 18 I focus on scholarship like Constance MacIntosh, “Te Right to Safe Water and Crown– Aboriginal Fiduciary Law: Litigating a Resolution to the Public Health Hazards of On-Reserve Water Problems” in Martha Jackman & Bruce Porter, eds, Advancing Social Rights in Canada (Irwin Law, 2014) 281 and legal judgments likes Arbour J’s dissent in Gosselin v Québec (Attorney General), [2002] 4 SCR 429, 2002 SCC 84. 19 2016 CHRT 2.

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Finally, I argued that administrative tribunals and ombudspersons are promising tools for improving realization of the pluralist right to health care. I first argued that existing health care appeal tribunals need to have expanded powers and scope to improve realization of the pluralist right and that tribunals should be created for the IFHP and NIHBP. Then, building on Canadian and comparative work,20 I argued for the creation of well-designed ombudspersons and reform of existing ombudspersons as a means of better realizing the right to health care in Canada. This argument highlighted their intrinsic contribution to accountability for reasonableness and, perhaps more importantly, their potential for improving access to essential goods and for bringing about structural reforms of the health care system in a manner consistent with democratically elected figures ultimately making final decisions on allocation and funding. The chief result of the analysis in Part II is that the pluralist right to health care is justifiable, explanatory, and action-guiding. While Canada fails to fully realize this right, public law reforms appear capable of improving Canada’s scores on the pluralist right to health care metrics. Application of my metrics to Canada and exploration of how Canadian public law can fill gaps in realization of the pluralist right to health care provide some data on how to realize the right. Directions for Future Research Future application of my metrics to other nations promises to provide understanding of how a right to health care can and does operate in the real world and whether particular kinds of health care systems or legal interventions best realize the right. Canadian data alone are insufficient to say much about what causes good realization of the right. Strictly legal data suggested that the use of law may not be ideal since Canadian law requires many reforms to ideally realize the right here. But more data on alternatives are necessary before even this claim can be firmly established. Further research remains necessary. Empirical research stemming from my analysis can take at least two forms. One line of research could focus on how other states realize the right to health care. The other could continue to analyse Canadian realization and prospects for improving it. Applying my metrics to Canada is just the beginning of what could be – and I hope will be – a lengthy study of states’ right to health care scores and prospects for improving them. Applying the metrics to a large number of countries should provide data that can better establish whether, when, and how law can be a valuable tool for

20 E.g., Colleen M Flood & Tracey Epps, “Waiting for Health Care: What Role for a Patients’ Bill of Rights?” (2004) 49 McGill LJ 515.

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improving realization of the right to health care. Establishing which forms of health care systems best realize the right likewise requires broader and more detailed comparative analysis. Country-by-country applications of my right to health care metrics would be a valuable research project for future scholars interested in health rights. Comparative data on how states with different health care system designs realize the right, how legal tools impact rights realization in other states, and/or what kinds of states best realize the right to health care would be particularly valuable for future health care and law reforms. This first line of future research should be collaborative and begin by focusing on states that represent typical approaches to health law and/or health care system design. Given the in-depth study required to apply my metrics to any jurisdiction, it is unlikely that any one person can apply them to all states in a lifetime, let alone a career. Even if one had several lifetimes to conduct this research, linguistic and cultural barriers would likely prevent a full analysis of every country. Input from and collaboration with foreign and comparative law specialists will be necessary to complete the study of the role of law and health care system design in improving the right to health care. Yet even a research team may not be able to analyse every country in sufficient detail, particularly where data deficiencies are even greater than those that currently exist in Canada. Barring completeness, focusing on states that are representative of approaches to health care system design, legal systems, and/or methods of implementing the right to health care would be most beneficial for studying whether health care or legal system designs and/or interventions are most likely to improve realization of the right to health care. One must take care to avoid focusing only on the “usual suspects” for comparative law research, repeating the same analyses ad infinitum and missing important data that can be gleaned from states that are not often studied by comparativists.21 Some usual suspects may be good candidates for early studies. For instance, South Africa’s explicit right to health care services is a distinctive mode of legal implementation and much has been written about the South African legal and health care systems, creating a vast data set for applying my metrics.22 More work on that country would be valuable. Yet representatives beyond the usual suspects should also be chosen early in the broader process of applying my metrics. Once these data are collected for many representative states, scholars in this line of research will be able to write works about states’ right to health care bona fides and how to improve them. They will also be able to draw some inferences

21 Ran Hirschl, Comparative Matters: Te Renaissance of Comparative Constitutional Law (Oxford: Oxford UP, 2014) at 267. 22 See e.g., the works of Lisa Forman cited in chapter 1.

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about whether, when, and how health care or legal system design or interventions impact realization of the right to health care. Future research on Canada is also appropriate and desirable. Country-bycountry analyses will help us better understand how Canada could improve its scores. Further analysis of the Canadian system is also necessary. The foregoing is a thorough account of the Canadian health care and legal systems and their right to health care implications, but it is not an exhaustive account. Data deficiencies help explain some gaps in this book. Future scholars should pursue collection of and access to important health care data, such as the reasons for decisions about what goods should be funded. Moreover, even if we had perfect access to information, the nature of my metrics, especially those related to progressive realization, would still require periodic updating of Canada’s right to health care scores. In an era of imperfect access to information, the fight for data collection and transparency can and should go together with the updating process. Further studies of Canada’s right to health care bona fides will benefit from more information. Future scholarship on Canada will also benefit from focusing on areas I did not address here. Examination of the benefits and deficiencies of other federal health care programs, such as those devoted to the armed forces, and of the right to health care improvement prospects of other areas of law that are not as obviously valuable for right to health care realization but could be potentially marshalled to improve Canada’s realization of the right, such as intellectual property law, would offer a more complete account of Canada’s right to health care scores and prospects. More in-depth study of areas I do focus on is also advisable (and will be more feasible as data become more complete). For instance, examining all the health appeals board decisions and the reasons given for government decisions about what to cover therein could be an indirect method of accessing government reasons, which would be valuable despite still failing Daniels and Sabin’s transparency condition for accountability for reasonableness. As Ontario and Quebec continue to post decisions, and if other provinces begin to post them in a more publicly accessible and complete manner, analysis of these decisions will become feasible and would make a real contribution to the literature on reasons for decisions in Canada by providing indirect evidence of how decisions are made, real data on how governments represent themselves before appeal boards, and information about how appeal boards accept decisions. Once ombudspersons are more widely in place, full analysis of compliance with health ombudspersons’ recommendations would help us better understand their potential. Filling in other lacunae in my analysis would also be important from a right to health care perspective. My proposed lines of inquiry should help refine the pluralist conception of the right to health care. More data on realization of the pluralist right to health

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care may provide reasons to revise my model or the metrics used to assess realization thereof. For instance, if it turns out that requiring access to several WHO-recognized essential medicines correlates with poor scores in all other aspects of pluralist right to health care recognition, this will provide reason to question use of the WHO’s list as a guide to whether people are fulfilling (1). Likewise, if federal structures that allow for variance in coverage across subnational units end up best realizing the right to health care, there will be reason to question the need for a national health care system or policy. Indeed, even if my proposed reform recommendations are implemented, realization of the right may remain unfulfilled. This explains in part why progressive realization measures are important. As states build institutional capacity to realize the right to health care, we will expect them to better realize it and better understand how to do so. Similarly, as academics learn more about how the components of the right to health care interact with one another and other phenomena in practice, we should expect to come to a better understanding of how to measure and realize the right. How best to realize the right to health care is something we will learn over time. Completing the proposed research will allow us to refine my model over time. The pluralist conception of the right to health care needs to be and can be perfected through application. The preceding application of my pluralist metrics actually already highlighted ways in which applying my metrics can challenge our conceptual toolkit, opening up still further, often conceptual, research paths. That Canadian case study raised other, more conceptual lines of research. A central finding of Part II is that an increased federal role in the Canadian health care system could well improve Canadian realization of the right. Yet proposed reforms must be consistent with Canadian federalism, and there are good reasons for primary provincial control over health care in any state. Given the large number of federal states in the world, federalism may present a challenge to rights realization more broadly. This raises questions about what a central federal responsibility over health care can and should look like in federal states and whether the issues that arise from such a regime outweigh the potential benefits. The intersection of the right to health care and federalism thus raises an important general question about conflicts between individual and collective rights. That question should form the basis of further philosophical work: How does one weigh individual health rights against competing “collective” rights and/or non–rights-based values? Existing law recognizes collective health rights, and there are plausible reasons to think that collective health rights should exist. Moreover, regardless of whether one recognizes collective rights, there will be conflicts between individual health rights and other broader collective goods, such as subsidiary, diversity, national self-determination, and cultural protections undergirding federalist social policy. These goods can also plausibly serve as limitations on individual health rights, if not as grounds for

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collective rights. My own interest is in issues raised by recognition of sub-state nations (e.g., Indigenous nations, Scotland). Such entities may possess rights that conflict with individual rights. Where national status is often developed through social policies, understanding whether sub-states’ nations can and should be recognized will have clear implications in multi-national states like Canada. If, by contrast, morally justified demands for control over social policies by such nations cannot be realized in states that protect individual rights, this bolsters secession claims even in rights-protecting states, possibly undermining rights realization. But this is far from the only philosophical issue raised by the preceding. Future work should attend to such issues, refining the right to health care and related concepts to maximize rights realization. This work, then, provides a logical next step in our understanding of how to conceptualize the right to health care and how to measure and improve realization of the right. Each aspect of my analysis will be improved as health right scholars collect more data on the relevant phenomena. Fully understanding how best to realize the right to health care thus requires many more case study applications of my metrics, which will likely require recalibration of these metrics over time, and reconfiguration of our conceptual apparatuses to address any unexpected research findings. I hope others will join this research program in the coming years.

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Index

accountability or reasonableness, 13, 75–6, 78, 112, 119, 125, 128, 131–6, 170–6, 178, 185, 188, 199–204, 208, 246, 268, 273–4, 277–9, 283–4, 291, 300, 303, 305 action-guiding, 10, 19, 25–6, 42, 45, 49–50, 60, 69, 91, 114, 119–21, 42, 144–5, 148, 150, 155, 214, 295–6, 301 administrative justice, 20, 104, 135–6, 225, 228–34, 261, 273–91, 299, 301, 303, 305 administrative law, 112, 144, 171–3, 182–5, 201–5. See also human rights law (domestic, sub-constitutional) aspirational right(s), 3, 33–8, 55, 93, 246, 289 basic maternal and infant care, 57, 63, 65–6, 69–70, 127, 129, 151, 161, 166–70, 175–6, 191, 194, 208, 253, 297; maternal mortality, 113, 167–9 borderline cases, 5, 20, 64, 72–4, 77–8, 89, 116, 229, 269, 298–9 Canada Health Act. See Medicare claim right(s), 4–5, 19–20, 26–9, 32–3, 49–50, 52, 55–6, 75, 82, 89–90, 195, 296 constitutional law, 5, 14, 21, 28, 31, 33, 43–6, 54–5, 57, 59–60, 62, 66–7, 77–9,

83–4, 86–8, 91–4, 109, 112, 120, 124, 145–6, 156–7, 163–4, 173–8, 183, 187–92, 198–9, 201, 205, 214–24, 231, 235–61, 268, 278, 280, 286–7, 291, 298–9, 300–2, 304 constitutional rights, 7–8, 11, 14, 16, 18, 20, 28, 31, 33–8, 55, 59, 66–7, 74–5, 83–4, 86–8, 91–4, 109, 145–6, 164, 183, 176, 191–2, 201, 214–15, 217–24, 231, 235–61, 280, 287, 298, 300–2, 304 consultation. See participation Content Dilemma, 7, 60, 63, 65–6 co-option, 9, 18, 26, 50–1, 140, 257, 269, 286; hijacking, 26, 50–1, 140, 257 correlativity, 5–6, 9–10, 19, 26–35, 48, 42, 49–50, 52, 54, 56, 76–7, 82, 89–90, 106, 296 Daniels, Norman, 4, 7–8, 13, 15–16, 18, 30, 45, 75–6, 78, 92, 119, 130–6, 105–1, 171–4, 188, 199, 207, 232, 267, 274, 299–300, 305 demandingness, 7–8, 45, 64–6, 80–2, 89, 108, 119, 146 dignity, 11, 19–20, 52–75, 77, 80, 84, 88, 96, 100–8, 112–14, 119, 123–4, 126–31, 138, 140–1, 143–4, 146, 161–71, 178, 184–6, 193–9, 210, 252–3, 255–7, 259, 263, 265–8, 274, 277, 279, 281, 284–7,

310

Index

296–9, 301; goods necessary for a dignified existence, 11, 19–20, 52–75, 67, 77, 80, 84, 88, 101–8, 113–14, 123–4, 127–31, 138, 144, 161–71, 18, 185–6, 193–9, 210, 252–3, 255, 257, 259, 263, 265, 267–8, 274, 277, 279, 281, 284–7, 291, 296–9, 301; political conception of, 62–6 discrimination, 59, 99–101, 103–4, 111–12, 115–17, 125, 135, 141 144, 191, 220–2, 224–7, 242–3, 246–9, 261–73 duty/duties, 4, 8–10, 15–16, 19, 25–40, 48–50, 52–6, 71, 76–7, 82, 87, 89, 92, 98, 106, 119, 148–9, 179, 184, 192, 233, 235–42, 277, 281, 286, 288–90, 296, 302; perfect vs imperfect, 29–30, 55–6, 82, 106; to consult (see participation) equality, 17, 33, 46, 50, 57–8, 61–5, 73–4, 80, 84, 86–7, 100–1, 103–4, 110, 113, 132, 191, 211, 220–2, 246–9, 266, 281, 291, 298; of opportunity, 46, 103, 132 equity, 7, 14, 50, 110, 130, 161, 168, 189–90, 195, 212, 238, 257, 270–2, 281, 298 essential medicines, 3, 48, 57, 63, 65–7, 69, 102–3, 105, 109, 123–31, 151, 161, 164–5, 167, 170, 196, 210, 248–9, 252–3, 255–6, 259, 266, 297–8, 302, 306 explanatoriness, 10, 19–21, 25–6, 42–3, 51–2, 66–7, 79, 83–5, 95, 101, 120–1, 295–6, 299–301, 303 federalism, 12, 156–8, 177–8, 205, 216– 18, 235–9, 248, 251, 262, 267, 276, 286–7, 302, 306–7. See also discussions of the federal and provincial roles throughout the text

freedoms, 26–9, 39, 102, 183, 191, 217–19, 223–5, 235 functioning health care system, 11, 19–20, 52, 79, 84, 101, 103–4, 109–11, 114, 123–5, 137, 208–9, 211, 240, 243, 296 General Comment 14, 6, 67, 100–6, 117, 138, 297 gradualism, 91, 251–9, 282 health justice, 4, 7, 9–10, 15, 75, 108, 124, 131–6, 144, 187, 297 hijacking. See co-option Hohfeld, W.N., 4, 26–31, 33, 54, 90, 295–7 human rights law (domestic, subconstitutional), 34, 39, 112, 175–6, 204, 223–9, 261–73, 301–2 IFHP. See Interim Federal Health Program immunization(s), 57, 63, 65–6, 69–71, 151, 161, 166–7; vaccine(s), 47, 166–7, 196–7, 204 independent moral justification, 10, 19, 25–6, 42–3, 45, 51–2, 95–6, 101, 120, 126, 140, 142, 195–6, 220, 224–5, 300–1, 303 infant care. See basic maternal and infant care Interim Federal Health Program, 21, 76, 156, 171, 187–8, 190–5, 197–202, 205–7, 210–11, 214, 225, 249, 263, 268, 280–1, 286, 301, 303 International Covenant on Economic, Social and Cultural Rights, 3, 6, 25, 35, 48, 67, 96, 99–105, 109–116 international human rights law. See international law international law, 3, 6–8, 10–17, 20–1, 32–8, 41–3, 47, 57, 62–3,

Index 65–70, 73, 75–9, 83–4, 89–90, 92–4, 96–141, 144–5, 147–52, 161–2, 165, 177–8, 188, 214, 240, 242, 245–6, 268, 282, 286, 297–301. See also international right to health care international right to health, 3, 5–8, 11–17, 48–9, 54, 75, 79, 214, 300–1 international right to health care, 8, 11–17, 37–9, 41, 47–8, 54, 66, 69–72, 75, 79, 83–5, 119, 130, 188, 268, 286, 300–1 judicial review, 36, 112, 125, 134, 152, 172, 175–6, 201–4, 229–33, 263, 274–7, 280–2, 288 justiciability, 3, 14, 33–8, 33–5, 45, 55, 91–3, 246, 246, 284 liberty right(s), 26–9 maternal care. See basic maternal and infant care measurement, vii, 7, 9–11, 17–21, 44–5, 49, 52, 79–82, 85, 95, 107, 112–14, 119–52, 213, 296, 300–1, 303–7 Medicare, 12, 47, 76, 155–96, 215–20, 225, 228–9, 234, 247–9, 261, 266, 273–7, 279–81, 286–7 metrics. See measurement minimum core, 12, 14–18, 67, 75, 78–9, 86, 105–6, 126–8, 137, 297–8 moral rights vs legal rights, 8–9, 15, 19, 31–3, 35–6, 40–5 national health care policy, 109–11, 119, 123–5, 150–1, 156, 177, 179–82, 205–6, 225, 272, 283, 286, 301, 206 NIHBP. See Non-Insured Health Benefits Program Non-Insured Health Benefits Program, 21, 76, 156, 168, 171, 187–90, 192–3,

311

195–200, 202–12, 236–7, 239, 249, 259–60, 272, 274, 280–2, 286, 301, 303 ombudspersons, 174–5, 184–5, 232–4, 273, 277, 283–91, 303, 305–6 participation, 109–11, 119, 124–5, 130, 141, 150–1, 156, 177, 180, 182–3, 206–8, 221, 238–41, 262, 275, 282–4; consultation, 179–180, 182–3, 200, 205–8, 236, 259, 275, 283–4, 286–7, 290, 300–1; duty to consult, 238–40 positive right(s), vii, 3, 8, 14–15, 19–20, 27–9, 46, 216, 220–1, 237, 242–6, 249–50, 256, 258–61, 302 primary health care, 16, 70, 100, 105–6, 109–10, 118, 127, 129, 161, 167–8, 170, 179 Problem of Correlativity, 10, 45, 49–50, 76, 89–90 Problem of Measurement, 10, 45, 49 Problem of Principles of Scope, 9, 17–18, 46, 48–50, 60 68, 77, 86 Problem of Scope, 9–11, 16–18, 25, 45–6, 48–50, 59–60, 65, 71–3, 76–7, 83, 86–9, 92, 108, 130, 140, 145, 95, 197, 250–1, 255–6, 266–7, 269, 285 Problem of Time and Space, 9, 46–50, 68, 70, 74, 76–7, 86, 88, 126, 130, 250 procedural fairness, 11, 20, 52, 71–80, 84, 86, 102–4, 107–8, 111–12, 114, 119–20, 122–5, 128–36, 138, 140, 144, 146, 149–52, 165, 171–6, 178, 184–6, 188, 199–204, 208–11, 220, 231–2, 242–3, 256, 260–2, 268, 273–6, 277–9, 281–3, 286–7, 291, 296, 298–9, 301–3 progressive realization, 16, 46, 69, 70–5, 101, 108, 119, 123, 127, 137–9, 150, 152, 183–6, 188, 208–11, 300, 305–6 procedural rights, 13, 16–17, 19–20, 48–9, 51–2, 61, 66, 71, 73–80, 84–5, 101–4, 107–9, 111–12, 114, 119–20,

312

Index

122–5, 128–36, 140, 144–5, 149–52, 165, 171–6, 178, 185–6, 188, 199–204, 208–11, 243, 256, 261–2, 273–4, 277–9, 281, 283, 291, 296, 298–9, 301–2 public law, 21, 32–6, 38–9, 90, 186, 213–91, 301. See also administrative law; constitutional law; human rights law (domestic, sub-constitutional) resource constraint(s), 48, 137–8, 282, 290–1, 299 retrogression, 16, 138–9, 167, 184–5, 202, 208–11, 222–4, 249, 265, 268, 281, 286, 290 social determinants of health, 6–8, 18, 92–3, 97, 110, 212 social rights, 3, 12, 14–15, 29, 33–6, 46, 54, 58, 78, 86, 92–4, 97, 99, 105, 110–13, 116–17, 120–2, 124, 126–7, 129, 138, 147, 149, 188, 212, 214–15,

221, 223, 248, 245, 250, 253, 283, 297–8, 303 socio-economic rights. See also social rights structural right(s). See systemic right(s) substantive rights, 3, 10–11, 13, 16–19, 48–9, 51, 61–4, 67–73, 77–8, 85–9, 91–2, 102–3, 107–8, 131, 136, 140, 145, 167, 184, 249, 262–5, 269, 273, 281, 283–6, 208–11, 296–9, 305–6. See also dignity: goods necessary for a dignified existence systemic right(s), 52, 96, 103, 112, 139, 142, 144–5, 151, 177–83, 205–9, 241, 249, 259–62, 265, 269, 273, 277, 282–4, 286, 299. See also functioning health care system unity, 5, 53, 77, 83, 85, 89–90, 95, 101, 146, 296 vaccines. See immunizations