“This work offers a rare perspective of the interplay between the judiciary on one hand and institutions responsible for making decisions about healthcare investments, on the other. Studying real examples of priority setting institutions and of court rulings from Latin America and the UK, it offers valuable lessons for policy makers, legal experts and human rights advocates, demonstrating rather clearly that all decisions carry trade-offs and that in the strive to realise health as a human right, good intentions alone may result into perverse outcomes for the poorest and sickest amongst us”. Kalipso Chalkidou, Professor of Public Health, Imperial College London and founder of NICE International, UK “A challenging dissection of the impact of courts on health care decision- making. Learned, well-researched and written in a clear style, this book’s close scrutiny of three jurisdictions leads it to ask some very hard questions about whether judges – even well-meaning ones – might not be doing more harm than good in this vital arena”. Conor Gearty, Professor of Human Rights Law, Department of Law, LSE, UK “Resource limits in health care generate agonizing dilemmas for health care providers. They also create challenges for the idea that everyone has a right to health, and difficulties in designing institutions that do justice to individu- als’ claims. In this book, Daniel Wang offers a clear-headed and empirically informed look at these problems and how they may be resolved. He stands apart in his ability to master and integrate theories of health care justice, legal theory and practice, and social science. The result is a landmark analysis of how to conceive of, and institutionalize, the right to health”. Alex Voorhoeve, Professor of Philosophy, Department of Philosophy, Logic and Scientific Method, LSE, UK Health Technology Assessment, Courts, and the Right to Healthcare Both developing and developed countries face an increasing mismatch between what patients expect to receive and what healthcare systems can afford to provide. In countries where the entitlement to receive healthcare is recognized in the law, the patients frustrated expectations have led to lawsuits challenging the denial of funding for health treatments by health systems. Based on the case study of three jurisdictions – Brazil, Colombia, and England, this book analyses the impact of courts and litigation on the way health systems set priorities and make rationing decisions. In particular, it focuses on how the judicial protection of the right to healthcare can impact the institutionalization, functioning, and centrality of health technology assessment (HTA) for decisions about the funding of treatment. These case studies show the paradoxes of judicial control, which can promote accountability and impair it, demand administrative competence and undermine bureaucratic capacities. They offer a nuanced and evidence-informed understanding of these paradoxes in the context of healthcare by showing how the judicial control of priority-setting decisions can be used to require and control an explicit scheme for health technology assessment but can also limit and circumvent it. This book will be essential for those working in the areas of Medical Law, Healthcare Policy, Human Rights Law, and Ethics. Daniel Wei Liang Wang is Associate Professor at Fundação Getúlio Vargas (FGV) School of Law. Before joining FGV, he was a Lecturer (Assistant Professor) in Health and Human Rights at the Queen Mary University of London and a Law Fellow at the London School of Economics, where he taught Human Rights Law. Daniel holds a PhD in Law (LSE), an MSc in Philosophy and Public Policies (LSE), a Master in Law (University of São Paulo), a BA in Social Sciences (University of São Paulo), and a BA in Law (University of São Paulo). He was a member of the National Health Service (NHS) Central London Research Ethics Committee (2017–2019). Health Technology Assessment, Courts, and the Right to Healthcare Daniel Wei Liang Wang First published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 Daniel Wei Liang Wang The right of Daniel Wei Liang Wang to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Wang, Daniel Wei Liang, author. Title: Health technology assessment, courts and the right to healthcare/ Daniel Wei Liang Wang. Description: Abingdon, Oxon; New York, NY: Routledge, 2022. | Includes bibliographical references and index. Identifiers: LCCN 2021039816 (print) | LCCN 2021039817 (ebook) | ISBN 9781138554757 (hardback) | ISBN 9781032184913 (paperback) | ISBN 9781315149165 (ebook) Subjects: LCSH: Medical care–Lawand legislation–England. | Medical care–Lawand legislation–Brazil. | Medical care–Lawand legislation–Colombia. | Medical care–England–Decision making. | Medical care–Brazil–Decision making. | Medical care–Colombia–Decision making. | Judicial process–England. | Judicial process–Brazil. | Judicial process–Colombia. | Right to health care–Cases. Classification: LCC K3601 .W3639 2022(print) | LCC K3601(ebook) | DDC 344.04/1–dc23 LC record available at https://lccn .loc .gov /2021039816 LC ebook record available at https://lccn .loc .gov /2021039817 ISBN: 978-1-138-55475-7 (hbk) ISBN: 978-1-032-18491-3 (pbk) ISBN: 978-1-315-14916-5 (ebk) DOI: 10.4324/9781315149165 Typeset in Galliard by Deanta Global Publishing Services, Chennai, India For Thaysa Sarmento Pereira Contents Acknowledgements x 1 Introduction 1 2 Priority-setting and the right to healthcare: Synergies and tensions on the path to universal health coverage 12 3 Priority-setting and health technology assessment 36 4 Brazil: Right to healthcare litigation: the problem and the institutional responses 64 5 Colombia: Demanding but undermining fair priority-setting via courts 97 6 England: From Wednesbury unreasonableness to accountability for reasonableness 126 7 Conclusion: Institutionalizing, controlling, limiting, and circumventing HTA via courts 158 Bibliography 165 Index 197