Rationing healthcare: Ethical principles and legal practice

As demand for healthcare continues to outstrip available public funding, healthcare rationing has become inevitable. Care rationing fundamentally is an ethical issue, which must respect moral principles to be publicly legitimate. In the face of a growing ‘rights culture’ within society, citizens are increasingly turning to the courts to claim care, invoking the right to health. Public law relating to healthcare rationing can prove valuable in achieving public legitimacy of allocative policy. Rationing in healthcare thus is in its core an ethical policy issue that could gain in legitimacy through public law adjudication. In this paper the underlying principles in ethics and European public law at the level of the UN, the Council of Europe and the EU on the subject of healthcare rationing are studied. Though much overlap between these principles exits, certain criteria for public legitimacy differ. As the judiciary serves an important role in providing the moral principle of accountability, the individual’s access to justice is assessed. It is concluded that this must be expanded for European citizens from what is currently possible. More countries must allow the individual complaints procedure under the ICESCR Optional Protocol through ratification and the ECSR must expands its complaints procedures to include an option for the individual citizen.