Project Team: Siri Gloppen (project leader), Bruce Wilson, Alicia Yamin, Roberto Gargarella, Ottar Mæstad, Lise Rakner, Camila Gianella, Kristi Staveland-Sæter, Ole Frithjof Norheim (Faculty of Medicine, University of Bergen), Mindy Roseman (Harvard Law School), Carole Cooper (Advocate, South Africa), Octavio Ferraz (University of Warwick), Paola Bergallo (San André University), Namita Wahi (Harvard Law School), Sharanjeet Parmar (Harvard Law School), Oscar Parra Vera (Inter-American Court)
Timeframe: 01/01/2008 - 01/01/2012
Abstract: The project investigates whether litigation can make health policies and -systems in poor countries more equitable by forcing policy-makers and administrators to take seriously their human rights obligations. Cases regarding the right to health care are increasingly brought before the courts. In a number of low- and middle-income countries – first in Latin America, later also in Africa and Asia, court decisions have granted access to medical treatment. These are decisions with potentially great implications for how health sector resources are prioritized and allocated, but so far there is little systematic knowledge of the actual effect of such cases on health policy formation and spending.
Background and purpose
This multidisciplinary project aims to systematically investigate whether litigation can make health policies and -systems in poor countries more equitable by forcing policymakers and administrators to take seriously their human rights obligations. A majority of the world’s governments are obliged through international treaties or national constitutions, or both, to respect, protect, promote and fulfill the human right to health. In most cases, this has not been an enforceable legal right. However, cases regarding the right to health care are increasingly brought before the courts. In a number of low- and middle-income countries – first in Latin America, later in Africa and Asia, court decisions have granted access to certain forms of medical treatment. These are decisions with potentially great implications for how health sector resources are prioritized and allocated, but so far there is little systematic knowledge of the actual effect of such cases on health policy formation, implementation and spending. To know more about consequences of health rights litigation under different circumstances is important from the perspective of health sector reform. Both because of its constructive potential – the possibility of developing and facilitating health litigation as an instrument for health policy reform – but also for ‘defensive purposes’. Health litigation already takes place, and increasingly so, in poor countries. It has implications for policy and spending. This may be positive from the perspective of justice in health care, but it could also represent a threat to systematic priority setting and equity, and raises difficult ethical issues.
Research questions
(1) How does health rights litigation affect health budgets, health policy formation and –implementation? (2) Does health rights litigation lead to more or less fairness in treatment of various groups of patients? (3) How do courts negotiate this technically complex and often politically sensitive terrain? And how do international human rights norms enter into domestic litigation in these cases? (4) What drives the increase in litigation on health rights? And what does it take for such litigation to be successful?
Methods and Case Selection
Given the multidisciplinary nature of the study, it involves a range of different methods of data collection and analysis, from medical and epidemiological analysis of morbidity patterns and treatment options and effects, and ethical analysis on fairness in health care; via economic analysis of budgets, resource flows, cost-effectiveness of interventions and economic modeling; socio-legal analysis of litigation processes and policy processes; to legal analysis of judgments. Throughout the analysis, documents and secondary material will be combined with interviews of policymakers, activists, judges, lawyers and bureaucrats.
In terms of cases, we start with Latin-American cases with the most experience from health right litigation, both in terms of time and volume. We also want to include cases with a variety in institutional set-up, socioeconomic conditions and legal traditions. Colombia, Costa Rica, Peru, Argentina and Brazil are interesting cases in this regard, and the team has been assembled with a view to include in-depth insight in these country cases. Beyond Latin-America, we want to include African and Asian cases where health litigation has taken place or is in the pipeline. This includes South Africa, as the African county with most relevant cases, and possibly Nigeria and Uganda, and from South-East Asia, India, With several interesting health rights cases, as well as Bangladesh, where such litigation is now being developed.
Outputs/findings:
2008: One internationally published review article, one theoretical article “Right to health through litigation?” Review of health rights litigation in poor and middle-income countries in Latin America, Sub Saharan Africa and Asia, and the literature on the political and economic implications of health rights litigation. “Making sense of health right litigation” Concept paper refining the theoretical framework and developing the interdisciplinary methodology for the study.
2009: At least seven internationally published articles;, Seven free-standing, but related, internationally published articles, preferably a special issue of a peer-reviewed journal: “Policy- and budget implications of health rights litigation: the case of Costa- Rica” (Based on the pilot study on health policy- and budget analysis). “Health rights litigation in South Africa and Brazil: how it has shaped Health policy formation and implementation” (Based on the pilot studies on health policyand budget analysis) “Do rights bring justice to health care?” Reflections on the distributional outcomes of health litigation in the cases of Costa Rica, Brazil and South Africa, from the perspective of the ethics of priority setting in health. ” “Dictate or dialogue? Court policy relations in health rights jurisprudence” A comparative study of how judges engage processes of health policy formation and implementation in three Latin American cases. “The role of international human rights norms in domestic health rights litigation.” A systematic survey of health rights litigation in six countries, from three continents: Latin America; Africa; and Asia, “What drives the international ‘wave’ of health rights litigation?” An analysis of five landmark health rights cases, mapping international interactions, resource streams and jurisprudential influences. (Based on the sub-study on litigation dynamics.) “When does health rights litigation succeed?” An analysis of what distinguishes litigation processes where health right litigation is successful in terms of winning in our based on five successful landmark cases, and two unsuccessful cases.
2010: Four internationally published articles placed in high-impact journals.
“Health rights litigation: implications for health spending, policy formation and implementation in poor countries” A comparative study of policy and budget implications of health litigation in middle-income countries in Latin-America and Africa. Uses economic modelling to analyse implications of a similar development in the poorest countries. (Based on the sub-study on health policy- and budget analysis)
“Do rights bring justice to health care in poor countries?” An evaluation of the distributional outcomes of health right litigation with respect to essential drugs in poor countries. (Based on the pilot study on access and equity analysis)
“Dialogic justice – new developments in health rights jurisprudence in the South”A comparative study of how judges engage processes of health policy formation and implementation in Latin America, Africa and Asia, with emphasis on dialogic forms of justice delivery, and on the role of international human rights norms in domestic health rights litigation. (Based on the pilot study on health jurisprudence analysis).
“When does health rights litigation succeed in shaping health policy and implementation: Latin American, African and Asian cases compared ” – An analysis of what distinguishes health right litigation which is successful – not only in terms of winning in court, but in terms of actually influencing policy processes, litigation and implementation of health care delivery. The focus is not only on the judgment but also on the litigation process, taking account of domestic as well as international factors and resources. (Based on the pilot study on litigation dynamics).
http://www.cmi.no/research/project/?1128=right-to-health-through-litigation