Is it possible to use the courts - or rights instruments - to advance fair access to health care? This article examines this question within the context of the Norwegian public health care system - one special example of the Scandinavian welfare system. In particular, it asks four basic questions: What are the normative justifications for rights to health care? What were the political processes and concerns leading up to the current Patients Rights Act in Norway? What kind of legal status do these rights have? How can rights to access be implemented?

Patient rights do not only concern the right to access to health care; they also include the right to information, the right to participate in decision-making, and informed consent. This article examines only the former aspect, the use of the legal system to secure access to prioritized specialized health care services.

The words of Paul Simon capture the essence of what the courts are called upon to deal with when adjudicating matters of health. Wealthier and healthier neighbors living in the upstairs apartment are, all things being equal, not overly interested in raising the floor of their apartment in order to create more space for those in the apartment below. The floor is tangible, measurable and movable, and thus a subject where science can contribute much. However, where to locate the floor is a matter of values and thus largely in the realm of politics.

Resorting to the courts in matters of public policy can be seen as the residual of the inability of the remaining two branches of government, the legislature and the executive, to succeed in allocating resources and regulating the system. When the combination of science (bureaucracy) and politics (legislation) falters, enter the judiciary.

Most now recognize the inevitability of rationing in modern health care systems. The elastic nature of the concept of “health need,” our natural human sympathy for those in distress, the increased range of conditions for which treatment is available, the “greying” of the population; all expand demand for care in ways that exceed the supply of resources to provide it. UK governments, however, have found this truth difficult to present and have not encouraged open and candid public debate about choices in health care. Indeed, successive governments have presented the opposite view, that “if you are ill or injured there will be a national health service there to help; and access to it will be based on need and need alone.” And they have been rightly criticized for misleading the public and then blaming clinical and managerial staffin the National Health Service (NHS) when expectations have been disappointed.

Access to care has become a key and contentious issue in the Canadian health care system. In this article, I explore the role of Canadian courts in determining rights to access public health insurance (Medicare), beginning with a brief overview of the Canadian system and its distinguishing features, and then moving to discuss challenges to governmental limits on publicly-funded Medicare using the Canadian Charter of Rights and Freedoms. I argue that the Canadian courts are not, as is often charged, proactive in this area. I question whether the deference exhibited by courts to governmental limits on Medicare is justified given concerns about the fairness of the principles and processes followed by decision-makers. In sharp relief to the judiciary’s conservative approach to applications for better or timely access to publicly-funded Medicare is the recent Supreme Court of Canada’s decision in Chaoulli v. Quebec (Attorney General) which upheld a right to buy private health insurance for “medically necessary” hospital and physician services.

The amount allocated to publicly funded health care for 2005/06 in New Zealand, a small country of some four million people, is $NZ 9.68 billion, or 6.2% of GDP, an increase from the 5.7% of GDP in 2000/01. The Minister of Finance has recently signalled that spending in health and education has outpaced economic growth, and that the present rate of growth in health spending, which has grown at about 7% a year over the last decade, is unsustainable. Despite these big funding increases in recent years, the perception of New Zealanders is that the extra spending has made little difference, at least to hospital services and to people’s ability to access treatment. In surveys, health emerges as a leading concern for New Zealanders. Their concern is apparently less about the quality of services, than about their ability to access treatment - whether they will be able to access timely health care when they or their family members need it.

In the Netherlands, access to healthcare has been guaranteed by social health insurance legislation. But since the introduction of the Health Insurance Act (“Zikenfondswet”) in the 1960s, the health insurance system has been in a state of flux. Numerous reforms have changed the system gradually, of which the latest is the introduction of a competitive health insurance scheme for the entire population.

Cutting across the various reforms has, however, been the goal of access to healthcare services as defined by international treaty law, including European Union law. In particular the leverage of Community law in strengthening the patient’s right to healthcare is remarkable. Since the European Court of Justice (ECJ) has accepted that healthcare should be considered as a service in terms of the EC Treaty, rights to healthcare have become inextricably linked with the free movement principles and are no longer restricted to the jurisdiction of the country of origin.

Historically, judicial enforcement of constitutional rights to health care has played a fairly limited role in enabling access to health care, a trend particularly prevalent in North America, and reflected in many other regions. This trend is due in part to judicial resistance to recognizing socioeconomic rights like health as appropriately legal, or as appropriately enforceable in light of the doctrine of separation of powers. This resistance is evident in judicial deference to social and economic policy, a reluctance to view socioeconomic claims as invoking “fundamental values” that courts consider themselves authorized to protect: and a real reluctance to recognize and enforce “positive” obligations pertaining to social welfare. As a result, health has often fallen largely into the political rather than legal sphere, and domestic courts have been relatively reluctant to review health policies from a human rights perspective, given the belief that doing so would exceed the appropriate democratic function of the judiciary.

In 2004, the journal Health Matrix published a very interesting symposium volume titled “The Field of Health Law: Its Past and Future. As the title implies, the various commentators took both a retrospective and a prospective look at past trends and future prospects in health law. Some, including Clark Havighurst, Skip Rosoff and Walter Wadlington, wrote thoughtful essays on the development of health law over time and the implications of those trends. Others, including Rob Schwartz, Jim Blumstein, Rand Rosenblatt, and Mark Hall and Carl Schneider, wrote equally thoughtful essays that reflected on the past but focused more on future directions and prospects. And one, Kep Wing, wrote a semi-dyspeptic essay debunking the entire field of health law.

Taken together, these essays present a comprehensive view of how health law has developed so far and where its future might lie. Four themes emerge from the collected writings. First, there is considerable agreement on how and why health law has developed, but little agreement on where it is headed.

The problem of harmful, unnecessary and neglected pain has been studied extensively in many health care settings over the past decade. Research has documented the incidence of untreated pain, and scholars and advocates have given the problem several names: “public health crisis,” “oligoanalgesia, and “moral failing,” among them. Articles have identified a litany of now familiar “obstacles” or “barriers” to effective pain relief. Each of these individual obstacles or barriers has been the subject of targeted remedial action in at least some context.

The checklist approach to improving care for patients in pain, however, is likely to have only limited effect. What really appears to be operating is a complex ecosystem that supports ambivalence, denial, and even suspicion of the circumstance of patients in pain and efforts to treat them. Pain relief in emergency medicine, a relatively new setting for the study of challenges to treating pain, provides a revealing context for viewing discrete obstacles to effective pain management in medicine as part of an integrated environment into which patients with pain enter for treatment.

Pain is the single most common reason patients seek care in the emergency department. Given the prevalence of pain as a presenting complaint, one might expect emergency physicians to assign its treatment a high priority; however, pain is often seemingly invisible to the emergency physician. Multiple research studies have documented that the undertreatment of pain, or oligoanalgesia, is a frequent occurrence. Pain that is not acknowledged and managed appropriately causes dissatisfaction with medical care, hostility toward the physician, unscheduled returns to the emergency department, delayed return to full function, and potentially, an increased risk of litigation. Failure to recognize and treat pain may result in anxiety, depression, sleep disturbances, increased oxygen demands with the potential for end organ ischemia, and decreased movement with an increased risk of venous thrombosis.

The prevalence of pain in patients presenting to Emergency Departments (ED) has been well documented by both Cordell and Johnston. Equally well documented has been the apparent failure to adequately control that pain. In 1990 Selbst found that patients with long bone fractures received little analgesia in the ED, and Ngai, et al., showed that the under-treatment of pain continued after discharge. In a prospective study, Ducharme and Barber found that up to one third of patients presented with severe pain and were often unrelieved at discharge. Even though specific patient subgroups appear to be at greater risk, all patients are potential victims of oligoanalgesia - the under-treatment of pain. Despite an ever increasing volume of research about pain in emergency medicine, dissemination of relevant information with widespread change in practice patterns has not been witnessed. Recent studies continue to affirm that pain management in the ED is suboptimal.

Over the past thirty years, the doctrine of informed consent has become a focal point in discussions of medical ethics. The literature of informed consent explores the evolution of the principle of autonomy, purportedly emerging from the mists of 19th Century medical practice, and finding its earliest articulation in legal cases where wronged citizens asserted their rights against medical authority. A commonplace, if not obligatory, feature of that literature is a reference to the case of Mary Schloendorff and the opinion written by Judge Benjamin Cardozo by which the case is remembered. Commentators today applaud the prescience of Cardozo for an early articulation of what eventually would become bioethical orthodoxy concerning informed consent and its place as a bulwark of patient autonomy. They inevitably quote Cardozo's famous statement, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”

There is a stark difference between American and British policy on embryo science and research cloning. The following survey of the discourse offered both in support of and in opposition to research cloning and embryo science in the United States and Great Britain will show that the same arguments were made in both countries. The fact that similar ethical argumentation occurred in environments where different policy was set is an indicator that current frames for ethical discourse on embryonic stem cell research and human cloning do not effectively capture the debate in the form that politicians and possible consumers of services to be derived from embryo science face.

The ethics surrounding embryo research and human cloning have been presented from virtually every possible viewpoint in all forms of medium. It is impossible to reprise every argument made on embryo science and research cloning; therefore, this survey will focus on some of the arguments made during the time leading up to the enactment of Great Britain's Human Fertilisation and Embryology Act of 1990 and the Human Fertilisation and Embryology regulations added to it in 2001.

Several high-profile episodes have recently thrust drug safety and the pharmaceutical industry's practices into the spotlight. Merck's recall of the drug Vioxx, for instance, was a major news event. GlaxoSmithKline's suppression of data linking suicidal behavior among children to Paxil also galvanized tremendous public attention. What differentiates these events from the usual evolving process of scientific knowledge, and marks them with an aura of “scandal,” are questions about the propriety of corporate behavior. Who knew what, and when did they know it? Concerns are growing about the potential for industry sponsors to suppress negative results from clinical trials research. Scientists, medical journal editors, legislators, and the public have called for greater transparency in the conduct of clinical trials and the drug approval process.