From Patient Rights to Health Justice: Securing the Public's Interest in Affordable, High-Quality Health Care
57 Pages Posted: 21 Oct 2015 Last revised: 8 Oct 2016
Date Written: July 1, 2015
As health law’s focus has broadened from the individual doctor-patient encounter to encompass access to care and protection of common resources, the individualistic professional autonomy, patient rights, market power, and health consumerism models are no longer adequate to address the increasingly social, collective nature of health law institutions, instruments, and norms. Social justice concerns have been reflected, from time to time, in the establishment and reform of public insurance programs and regulation of private insurance and the treatment relationship. And the patient rights model sometimes accommodates a communitarian strand emphasizing collective concerns. But the social justice strand in health law too frequently loses out to dominant — nearly exclusive — individualistic approaches. What is needed is a new model that expressly recognizes the public — alongside the patient, the provider, and the payer — as an important stakeholder and active participant in decisions about treatment, coverage, and allocation of scarce resources. This Article proposes a “health justice” model as an alternative to existing models or a supplement to the now-dominant patient rights model and articulates four of its key commitments: First, the health justice model asserts the importance of collective interests, alongside individual interests, in decisions about medical treatment. Second, the health justice model recognizes that available, affordable, accessible health care protects collective, as well as individual, interests. Third, because “upstream” prevention strategies have greater population-level impact, the health justice model prioritizes prevention and integration of health care with public health. Fourth, the health justice model asserts the role of collective oversight through democratic governance — much in the same way that the market power model champions the role of private payers and market dynamics — in managing resources and securing common goods.
Keywords: health law, population health, public health, patient rights, market power, professional autonomy, social justice
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