Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-jbqgn Total loading time: 0 Render date: 2024-07-01T01:46:12.587Z Has data issue: false hasContentIssue false

5 - Rationing and the Courts: Theoretical Perspectives

Published online by Cambridge University Press:  27 July 2009

Keith Syrett
Affiliation:
University of Bristol
Get access

Summary

What's law got to do with it?

The title of a report produced by the Canadian Bar Association neatly captures the attitude of scepticism, prevailing among many who work in this field, towards involvement of the legal process in questions of the rationing of scarce healthcare resources. Law, and in particular litigation, is seen as inimical to the task of establishment of priorities for healthcare expenditure. The consequence is that there has been a failure to consider the potential of legal mechanisms and, specifically, the application of legal principles in an adjudicative setting, to assist in the resolution of the ‘legitimacy problem’ delineated in the previous chapter. This chapter will canvass the theoretical and jurisprudential arguments for and against an expanded role for law in this context, focussing mainly, but not exclusively, upon the part played by the courts. The three subsequent chapters will consider the degree to which existing case law from England, Canada and South Africa suggests that potential exists to develop an approach to the judicial function in rationing cases along the lines of that which is outlined here.

Mistrust of the legal process

Perhaps the most pointed expression of antipathy towards a perceived intrusion by law into this field of public policy is that of Hunter, who argues baldly that ‘there is no place for the courts in rationing healthcare. The law is too blunt a weapon in an area of moral and ethical choices that are heavily contingent upon the circumstances prevailing in a particular case’.

Type
Chapter
Information
Law, Legitimacy and the Rationing of Health Care
A Contextual and Comparative Perspective
, pp. 120 - 158
Publisher: Cambridge University Press
Print publication year: 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×