Sabrina Germain – Justice and Profit in Health Care Law: A Comparative Analysis of the United States and United Kingdom (Hart Publishing 2019)

The COVID-19 pandemic has provided us with yet another example of the moral significance of health care resources in our societies. The indisputable seriousness of health care needs makes the distribution of health care resources stand out from any other good and mandates that it follows principles of justice. Unfortunately, even before the public health crisis generated by the spread of COVID-19, available resources were already out of sync with modern societies’ needs. Even though political philosophers had developed multiple models to justly allocate scarce resources, problems of availability and access to care remained major challenges. One may ask whether it was a mismatch between the theory and the practice of law making that was responsible for failing health care systems; or was it that ideas of justice did not informed the decisions of actors involved in the crafting of health care laws?

Justice and Profit in Health Care Law sheds light on these questions by looking at the place of theories of distributive justice in the health care law-making process. By providing a greater understanding of competing notions of justice in systemic health care reforms, the book addresses the rationale behind the construction of health care systems. This analysis is central to establishing the place that should be given to justice theories in the crafting of future reforms, as these ideas should provide patterns to design laws to ration, finance and provide health care services.

A deeply interdisciplinary approach is adopted in this book, engaging with literature in political philosophy and law as well as historical sources relating to the evolution of health care reforms in the United States and the United Kingdom as case studies. The United States remains the only western democracy without a universal health care system, and the United Kingdom is the first country to offer free comprehensive health-care services to its entire population. The differences in the organisation and objectives of these systems make the comparison most interesting and relevant. Looking at these contexts together also provides valuable evidence that normative thinking in health care policy is not just the reflection of national preferences.

Despite fundamental differences, both countries have developed mature health care systems and have seen the drafting of health care reforms impacted by specific actors other than the State. The analysis provides a novel understanding of the role of for-profit actors in the health care law making process. In the United States, doctors, employers and insurers are considered. In the United Kingdom (until devolution and later in England only), general practitioners as general contractors and consultants permitted to engage in the private practice of medicine are examined. The book argues that strategic and rhetorical use of language has been crucial to the law-making process. For-profit actors have relayed their interests to the sphere of law and policy making through discourses presented in political and legislative institutions. Setting and framing issues with language establishes precise conceptual boundaries that have a significant impact on legislative outcomes.

The book’s main original contribution is its application of the discourse analysis methodology to determine whether for-profit actors in the United States and the United Kingdom have used ideas of justice to lobby their interests in health care law. The inquiry examines the concrete linguistic occurrences made by these for-profit stakeholders during the negotiation of important health care reforms. As these for-profit actors are typically deemed least sensitive to ideas of justice, the findings of the book are all the more thought provoking. The book shows that American and British for-profit actors have used discourses of justice to support or oppose health care reforms. At times, they have also been successful in having their position reflected into legislation.

The first substantial chapter of the book, Chapter Two, comprehensively presents theories of political philosophy that outline methods for the just allocation of health care resources while addressing the fundamental philosophical, political and legal debate on universality of care as a requirement for the attainment of justice. Some of these conceptions of justice (egalitarian, utilitarian and communitarian) confer a special status to health care and argue in favour of a universal system. Others (libertarian and neo-liberal) value individual freedom or a certain laissez-faire, which should not be infringed to promote free access to health care. All theories are fleshed out in order to understand their potential influence on health care policy-making. The chapter sets the table for subsequent discussions on the impact of normative schemes (distributive justice theories) in setting goals or organising the financing and provision of health care services in the United States and the United Kingdom.

The book posits that health care policy must also be understood as part of a political, economic and social context. The comparative history surrounding the enactment of major health care reforms brings about a different perspective on the connection between political philosophy and institutional outcomes. Chapter Three meticulously presents these historical developments and the main policy trends in the United States. Attention is given to the role of leading actors in the construction of this unique system. The part played by employers in the creation of risk-pooling systems, by insurers in the creation of third-party payer schemes and by the medical profession in the consolidation of the privately run health services are explained with a historical narrative. This brief panorama is most useful in understanding issues of cost and access affecting health care in the United States and the solutions that have been so far provided in an effort to manage and contain these problems.

Major reforms for the financing and provisions of health care services in the United States are brought to light in Chapter Four. The chapter focuses on four crucial turning points, beginning with the enactment of the Kerr-Mills Act (1960) finishing with the Affordable Care Act (Obamacare) (2010), without omitting the amendments to the Social Security Act (1965) that created the federal programmes of Medicare and Medicaid, and the Health Maintenance Organisation (HMO) Act (1973). The systematic analysis of the language and discourse used by actors belonging to the medical profession, insurance industry and corporate employers during Congressional formal and specialised committees convincingly brings forward the existing overlap between concrete policy-making choices and theoretical normative patterns. The reports of these hearings constitute influential information used to draft legislative proposals. For some reforms these documents were hard to locate, yet for others they were extremely voluminous. Nonetheless, they were crucial in making sense of the controversies arising in the early stages of the American health care law-making process.

In United Kingdom, the role of the private sector is different as the for-profit stakeholders have not been as hostile to a government-led health care system. In some respect, the medical profession has presented itself as the shield protecting the NHS’s core values. Chapter Five peruse the historical foundations of the universal health care system and the role played by for-profit actors in the unfolding of crucial milestones for the NHS. The focus of this presentation is purposely put on the evolving role of the private sector in the delivery of health care services and its impact on the organisation of the national system of care.

Chapter Six focuses on key health care reforms in the United Kingdom. Attention is given to the indirect participation of the medical profession, through its dialogue and confrontation of various governments’ health care policy, in the elaboration of the following legislation: the NHS Foundational Act (1946), the reform brought by Margaret Thatcher with the NHS Community Care Act (1990) and the most recent overhaul of the system brought by the Health and Social Care Act (2012). For each of these systemic reforms, particular attention is given to the White Paper policy proposal and the Second Reading of the draft law. The book centres its analysis on these documents as they are fora within which for-profit actors use rhetoric of justice to assert their position on proposed law even though they may only indirectly relay their views to Lords or members of the Commons that act as their unofficial spokespersons in Parliament.

In Chapter Seven, concluding remarks bridge both case studies. Undeniably different ideas of justice have made their way into health care law and policy in both countries. However, the dominance of a particular theory of justice over time is linked to the role played by for-profit actors in the process. The book closes on the hopeful expectation that revealing a link between different perspectives on health care allocation issues and offering a novel comparative and philosophical analytical framework will help elaborate more just policies and norms needed to allocate these resources.

Hart Publishing has put forward Justice and Profit in Health Care Law for the Society of Legal Scholars’ Peter Birks Prize for Outstanding Legal Scholarship and the Hart-SLSA Prize for Early Career Academic in 2019.

Posted by Dr Sabrina Germain, Senior Lecturer, City Law School.