Realizing the Right to Health Care in Canada

International and domestic laws increasingly recognize health rights; international law clearly recognizes a right to health that includes health care entitlements and approximately 69% of domestic constitutions include a right to health care. Recognition of a positive right to health care has been slower to emerge in Canada, but there are nascent signs that the judiciary is receptive to the idea in principle. Challenges nonetheless remain – existing articulations of rights to health care do not easily fit the traditional ‘claim-right’ model of rights and questions remain over how to operationalize health rights, including how to do so without overwhelming the public fisc. It is difficult to resolve these issues in a manner that accounts for the structure of health rights in domestic constitutional laws, international human rights law, and philosophy. This work addresses these challenges and offers an account of the right to health care that is philosophically sound and operationalizable by courts and policymakers. I argue that a positive right to health care is best understood as a set of claims to related morally important goals. This pluralist understanding of the right can fit a modified version of the claim-right model and is independently justifiable. It is also consistent with the structure of health rights in international human rights law and some existing positive constitutional health rights. I next explain how to measure compliance with this pluralist right, providing an account of what the right to health care must accomplish in concrete terms. I then apply the metrics that I developed to the Canadian health care system and explore how three branches of public law (constitutional law, human rights law, and administrative law) can improve Canada’s scores on those metrics. I ultimately argue that all three branches can be reformed to better realize the pluralist right to health care.

Department dc:contributor.department

Law

Year dc:date.issued

2018

Author dc:creator

• Da Silva, Michael Edward

Advisor dc:contributor.advisor

• Flood, Colleen M

• Economic
• social
• and cultural rights
• Health law
• Health rights
• Human rights
• Philosophy of law
• The right to health care

Handle dc:identifier.uri

http://hdl.handle.net/1807/101640

OAI identifier oai:identifier

oai:utoronto.scholaris.ca:1807/101640