Litigating the right to health: What can we learn from a comparative law and health care systems approach

Colleen M. Flood, Aeyal Gross*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


This article presents research demonstrating that the right to health plays different roles in different types of health systems. In high-income countries with tax-funded health systems, we usually encounter a lack of an enforceable right to heath. In contrast, rights play a more significant role in social health insurance/managed competition systems (which are present in a mixture of high-income and middle-income countries). There is concern, for example in Colombia, that a high volume of rights litigation can challenge the very sustainability of a public health care system and distort resources away from those most in need. Finally, in middle-income countries with big gaps between a poor public health system and a rich private one, we are more likely to find an express constitutional right to health care (or one is inferred from, for example, the right to life). In some of these countries, constitutional rights were included as part of the transition to democracy and an attempt to address huge inequities within society. Here the scale of health inequities suggests that courts need to be bolder in their interpretation of health care rights. We conclude that in adjudicating health rights, courts should scrutinize decision-making through the lens of health equity and equality to better achieve the inherent values of health human rights.

Original languageEnglish
Pages (from-to)62-72
Number of pages11
JournalHealth and Human Rights
Issue number2
StatePublished - 1 Dec 2014
Externally publishedYes


Dive into the research topics of 'Litigating the right to health: What can we learn from a comparative law and health care systems approach'. Together they form a unique fingerprint.

Cite this