Using Law to Fight a Silent Epidemic: The Role of Health Literacy in Health Care Access, Quality, and Cost
Brietta R. Clark
Loyola Law School Los Angeles
June 9, 2011
Annals of Health Law, Vol. 20, No. 253, 2011
Loyola-LA Legal Studies Paper No. 2011-17
The dominant rhetoric in the health care policy debate about cost has assumed an inherent tension between access and quality on the one hand, and cost effectiveness on the other; but an emerging discourse has challenged this narrative by presenting a more nuanced relationship between access, quality, and cost. This is reflected in the discourse surrounding health literacy, which is viewed as an important tool for achieving all three goals. Health literacy refers to one’s ability to obtain, understand and use health information to make appropriate health decisions. Research shows that improving patients’ health literacy can help overcome access barriers and empower patients to be better health care partners, which should lead to better health outcomes. Promoting health literacy can also reduce expenditures for unnecessary or inappropriate treatment. This explains why, as a policy matter, improving health literacy is an objective that has been embraced by almost every sector of the health care system.
As a legal matter, however, the role of health literacy in ensuring quality and access is not as prominent. Although the health literacy movement is relatively young, it has roots in longstanding bioethical principles of patient autonomy, beneficence, and justice as well as the corresponding legal principles of informed consent, the right to quality care, and anti-discrimination. Assumptions and concerns about health literacy seem to do important, yet subtle work in these legal doctrines - influencing conclusions about patient understanding in informed consent cases, animating decisions about patient responsibility in malpractice cases, and underlying regulatory guidance concerning the quality of language assistance services that are necessary for meaningful access to care. Nonetheless, health literacy is not explicitly treated as a legally relevant factor in these doctrines. Moreover, there is no coherent legal framework for incorporating health literacy research that challenges traditional assumptions about patient comprehension and decision-making, and that emphasizes the need for providers to improve communication and take affirmative steps to assess patient understanding.
The absence of a clear and robust consideration of health literacy in these doctrines undermines core access and quality aims, and it means that such laws are of limited efficacy in promoting health literacy. Returning to the theme that the health literacy problem reveals a more compatible relationship between access, quality and cost, it is likely that the cost implications of this problem (and not quality or access concerns) will motivate the kind of reform that ultimately strengthens existing quality and access standards. One recent example of this can be seen in reforms linked to government, insurer and provider attempts to reduce costly medication errors.
Number of Pages in PDF File: 56
Keywords: health care, health care policy, reform, health literacy, health lawsAccepted Paper Series
Date posted: June 11, 2011 ; Last revised: February 17, 2012
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