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Lindsay F. Wiley, From Patient Rights to Health Justice: Securing the Public’s Interest in Affordable, High-Quality Health Care, Cardozo L. Rev. (forthcoming), available at SSRN.

One of the challenges of teaching Health Law is that the course covers so many distinct areas of law that it can be hard for students to find an overarching theme, beyond the obvious one that all of the issues have something to do with doctors, patients, or hospitals. I was therefore very pleased to come across Lindsay Wiley’s new article, From Patient Rights to Health Justice: Securing the Public’s Interest in Affordable, High-Quality Health Care. In this article, Wiley examines analytical models previously developed by health law scholars and proposes a new model designed to place greater emphasis on collectivist concerns. The article should appeal not only to health law scholars, but also to anyone interested in how legal analytical frameworks can be used both to explain past developments and to reshape the terms of ongoing policy debates.

Wiley begins by examining four main models of health law, which she calls “professional autonomy,” “patient rights,” “market power,” and “health consumerism.” Under the professional autonomy model, which was dominant in the first half of the twentieth century, most legal and policy questions about health care were considered to be within the exclusive competence of professionals. This model eventually gave way to the patient rights approach, which sought to use the law to protect patients’ ability to make autonomous decisions, to improve quality, and to facilitate access. The market power model, which emerged in the 1970s, began to look at health care as an economic system, with a particular focus on the unique characteristics of health care markets that can distort the normal application of market forces, such as information asymmetries and the ubiquity of insurance. Finally, the health consumerism model, which Wiley describes as a “melding” of the patient rights and market power models, aims to draw on the power of markets in the service of empowering patients and improving the quality of care.

Despite the differences between each of these models, Wiley argues that they are similar in their underlying individualistic focus. By this she means that the models’ primary object of concern is the providers and patients involved in particular health care transactions, with little or no attention to the interests of the community at large. Although the market power model “represents collectivist impulses to some extent,” the model is primarily concerned with shoring up health care markets in order to increase overall social utility, rather than to address distributional inequalities or other communitarian concerns.

Wiley argues that a variety of developments in health law have challenged the continued relevance of the four primary models by promoting greater attention to the impact of decisions about health care on collective social well-being. For example, she notes that the insurance provisions in the Affordable Care Act, including the prohibition on most types of risk-based underwriting in the individual and small group insurance markets, “represent a major shift from an actuarial fairness approach to health care financing to one premised largely on mutual aid.” Likewise, growing concerns about issues such as the cost of health care, declining immunity for vaccine-preventable diseases, increasing antibiotic resistance, and mutual vulnerability in the face of public health emergencies, has led to increasing efforts to integrate public health considerations into day-to-day clinical practice.

These and other developments, Wiley argues, create conditions for “a new approach 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.” Wiley calls this new approach the “health justice” framework. Like other “justice” movements – e.g., environmental justice, reproductive justice, and food justice – health justice is concerned about the fairness of the distributional consequences of laws and policies, in addition to their impact on individual rights and welfare. Specific characteristics of the health justice framework include the prioritization of prevention, the integration of health care and public health, and an emphasis on the role of government enforcement of rights and responsibilities of individuals and institutions.

Wiley demonstrates how the health justice model can be used both to explain new developments in health law and policy and to argue for the reinterpretation of existing doctrine to incorporate greater collectivist concerns. For example, the health justice framework helps us understand the emergence of pay-for-performance measures that focus on public health outcomes such as vaccinations or the reduction of hospital-acquired infections. Examples of its use in scholarship include Wendy Parmet’s proposal to harness informed consent doctrine to establish a provider duty to inform patients about the population consequences of antibiotic resistance, and Elizabeth Weeks Leonard’s effort to justify limits on the use of experimental treatments outside of clinical trials by appealing to the public’s interest in developing reliable knowledge about the safety and efficacy of unapproved drugs.

Wiley recognizes that the health justice approach is not the first attempt to incorporate greater collective considerations into health law analytical frameworks. In fact, she justifies her model in part by noting that it is consistent with a broader scholarly move towards recognizing collective interests in health care, particularly in the fields of bioethics and public health. However, the value of the health justice formulation is that it does not simply call for greater attention to collectivist considerations, but that it emphasizes a particular kind of collectivist approach – i.e., one in which the distribution of health benefits is at least as important as their aggregate amount.

The health justice framework offers a useful tool for reframing health law issues to highlight the long-term impact of laws and policies on larger social structures. While these collectivist considerations will not always be the decisive factors in resolving particular policy dilemmas, they deserve to be factored into the analysis alongside the traditional individualistic focus. I look forward to future scholarship applying this model to new health law proposals, as well as to further analysis of mechanisms for resolving situations in which individual and collectivist interests conflict.

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Cite as: Carl Coleman, Reconceptualizing Health Law to Incorporate Justice-Based Concerns, JOTWELL (December 4, 2015) (reviewing Lindsay F. Wiley, From Patient Rights to Health Justice: Securing the Public’s Interest in Affordable, High-Quality Health Care, Cardozo L. Rev. (forthcoming), available at SSRN),