The Right to Health at the Public/Private Divide: Health Rights at the Juncture between State and Market

This chapter examines transformations in China’s health system and analyzes those changes alongside health litigation to conclude that health litigation is not equity-promoting in China and has mixed prospects for becoming so in the future. After market liberalization in 1978, decentralization of financial responsibility to the local government led to fee-charging and the crumbling of Mao’s barefoot doctor system. Unaffordable care produced stark inequality inciting protest and violence. The Chinese government has responded in recent years with comprehensive health reform that promises universal coverage by 2020. But curiously, the plans are ambivalent regarding the main policy debate leading up to reform, i.e. whether to pursue a market or government approach in the health system. The health reform plans do however signal an intention to separate and disaggregate certain functions among different public and quasi-public actors. The sources of law undergirding health entitlements in China were scant until the recent health reform-related laws and regulations. Yet even with the new reforms, there are reasons to believe that health-related claims will not be easily justiciable. A tool wielded by a privileged few to negotiate one-off benefits, litigation often serves as an outlet ultimately deflecting pressure from the core problems of the health system because courts are hard-pressed to hold government actors accountable. Instead, they defer to other government organs or privately negotiated rights. There is a strong Chinese norm favoring equity in health care, but the norm is expressed politically rather than judicially. Major efforts to achieve health equity have been pursued as collective policies rather than as individual rights. Litigation and equity do not correlate in recent Chinese history and may even bear an inverse relationship: greater government involvement in the health system reduces the likelihood that health actors can be sued. This might change with health reform, but the prospects are mixed. On the one hand health reform embraces “separation” of health functions, so not all health actors will be associated with one monolithic government entity. This increases the need for the pluralism in accountability that courts could provide, and may also create space for actors to be sued without directly threatening government. Moreover, health reform will better define duties and rights politically so that courts will have the easier job of preserving, rather than spearheading rights, though the laws and policies of health reform are deliberately vague and deferential to local government in the definition of benefits.On the other hand, courts are still flawed and cannot take on established interests. Also I caution that without institution building to make political-administrative decision-making processes more participatory in China, active health litigation in China’s courts could reinforce a “vulgar” conception of health rights. Such a conception would exacerbate China’s affinity for defined contribution health coverage, its overemphasis on pharmaceuticals, and an impersonal “cookie-cutter” approach to medicine which assumes fungible individuals while neglecting the care ethic and other norms important to health care.