1. Introduction

a) Background

Costa Rica’s Constitution does not include an explicit right to health (RtH). However, in 1989, a judicial reform founded a constitutional chamber of the Supreme Court (i.e., the Sala IV), which has derived an expansive RtH from the right to human life’s protection (Article 21), the right to social security protection (Article 73) and international human rights treaties (Loaiza et al. 2018). As a signatory of the International Covenant on Economic, Social and Cultural Rights, the country recognises the RtH for citizens’ ‘enjoyment of the highest attainable standard of health’ (Article 12, 1966). This has guided Costa Rica’s progress towards universal health coverage, including the full spectrum of prophylaxis, treatments, rehabilitation, and palliative care (Wilson 2011).

b) Objectives

I start by discussing William Easterly’s criticism of the Sala IV’s health rights rulings, which: i) undermine priority-setting[1] by the health administrator; and ii) divert resources away from efficient uses (2009). This argument relies on a specific interpretation of the RtH, which does not account for resource constraints.

In response, I propose to understand the RtH as the right to a fair and accountable priority-setting process, wherein the Sala IV needs to consider cost-effectiveness while assessing health rights claims. This is hindered in practice because the utilitarian measure of efficiency in resource allocation departs from the court’s concerns about health equity[2]. I offer a solution by formulating an alternative calculation of cost-effectiveness that gives extra weights to health benefits for the worst-off.

2. Problems with the Sala IV’s health rights rulings

Easterly (2009) argues the RtH is problematic for two reasons.

Firstly, the state budget is insufficient to fulfil everyone’s claims on healthcare services. Consider three elderly patients A, B and C in critical condition. A can be saved by a lung transplant priced at $160,000 (Ramsey et al. 1995). Meanwhile, the tricuspid-valves of both B and C need to be replaced. Each surgery costs $80,000 (Nooten et al. 1995). A decision-maker has a limited budget of $160,000 that prevents him from curing all patients. Easterly argues for prioritisation to occur in a way that achieves the maximum amount of health gains. Assuming all patients can return to full health for 20 years if they are treated. Compared to a lung transplant, two tricuspid-valve replacements double the amount of health gains, and hence should be funded. However, A ought to be treated on the basis of her RtH. Implicitly, Easterly assumes the ‘highest attainable standard of health’ is when a patient can access any needed treatments irrespective of cost. Consequently, there is no basis for B and C to be prioritised against A. The problem is that unless the decision-maker manages to find extra funding, he cannot fulfil everyone’s health rights claims. This exemplifies a tension between the RtH and the imperative of priority-setting.

Costa Rica provides a case study that empirically supports this argument. The Costa Rican Social Security Fund (CCSS) is responsible for priority-setting in healthcare. The key criterion is cost-effectiveness, which is about getting the most value for money (Fraser 2008). The value of a treatment is measured in terms of Quality-Adjusted Life-Years (QALYs)[3]. Medications with the lowest cost per QALY are chosen to be funded by the (CCSS) (Matamoros 2010). In other words, the health administrator follows Easterly’s utilitarian approach to prioritise the most economical treatments that maximises the sum total of QALYs. However, this priority-setting is frequently undermined by the Sala IV’s health rights rulings. By analysing lawsuits filed in 2008, Norheim and Wilson (2014) estimated that while 9% of the (CCSS)’s spending was court-mandated, less than 3% of that would be considered as high priority in accordance with cost-effectiveness.

Easterly’s second concern is about the judicialisation of healthcare (i.e., the use of rights-based litigation to demand treatments) (Andia and Lamprea 2019). He argues this practice to be better managed by the relatively wealthy and well-connected advocates of the RtH. Consequently, resources are skewed towards causes favouring them, instead of the most efficient uses. For example, a pharmaceutical company funded lawyers to defend the RtH of a young patient in 2003. It took the Sala IV only one hour to rule against medical experts and force the (CCSS) to pay $175,000 annually for the company’s new drug. This amounts to 38x the country’s GDP per capita. However, the medication only treats the rare Gaucher’s disease suffered by 2 out of 4 million Costa Ricans (Heuser 2009). This illustrates how the advocacy of the RtH leads to inefficient allocation of resources. 

3. An alternative interpretation of the RtH

a) Conceptualisation

The Sala IV’s rulings resemble Easterly’s implicit understanding of the RtH (i.e. a human right to access treatments regardless of cost). Despite its ideal, it is not feasible to realise it in the context of scarcity. I argue for a different interpretation, accounting for resource constraints. Accordingly, the RtH entitles everyone to a priority-setting process that satisfies four conditions (Daniels 2000; Rid 2009):

  • Publicity Condition: the (CCSS)’s decisions and underlying rationales are publicly accessible;
  • Fairness Condition: the (CCSS) considers all relevant interests in deliberating a just allocation of resources;
  • Accountability Condition: the Sala IV provides a legal mechanism to scrutinise the (CCSS)’s decision-making;
  • Enforcement Condition: the public can engage in ensuring the above conditions are met by means of democratic representatives and citizens’ panels.

This interpretation has two virtues. Firstly, contra Easterly’s first disputation, the RtH is no longer contradictory, but dependent on the realisation of priority-setting. In our previous example, if utilitarianism is deemed the fairest principle to allocate resources, then the refusal of A’s treatment is not a violation of her RtH. Secondly, it preserves the RtH’s recognition of everyone as equal. Prioritisation is only initiated because everyone has an equal claim of limited resources (Rumbold et al. 2017). The above conditions enable citizens to understand how claims are assessed by the (CCSS) while making use of democratic and legal institutions if they wish to question its rationales. This in turn gives everyone an equal right to influence priority-setting.

b) Implementation

This understanding of the RtH requires the Sala IV to account for cost-effectiveness in its rulings. This claim is justified by two reasons.

Firstly, the Accountability Condition requires the Sala IV’s scrutiny of the (CCSS)’s decision-making. In 2014, the Cochrane Collaboration allows the court to access a global database, which allows its examination of whether the (CCSS)’s judgment on the efficacy of medications is accurate (Loaiza et al. 2018). The reform is shown to lower the success rate of litigations claiming experimental drugs, whose efficacy is unproven. However, 65.6% of granted claims are still for cost-ineffective treatments (Luciano and Voorhoeve 2019). As mentioned previously, cost-effectiveness is the key criteria used in the (CCSS)’s priority-setting. Therefore, to fulfil the Accountability Condition, the Sala IV needs to better understand how it is applied by the health administrator.

Secondly, my proposal demands the Sala IV’s consideration of resource constraints, which are binding on two dimensions: the state budget and the market prices of treatments. If the latter fall, the (CCSS) can expand the provision of healthcare without increasing its funding. However, the court’s favourable decisions for costly medications might limit the (CCSS)’s bargaining power with pharmaceutical companies. If health rights judicialisation allows them to claim the (CCSS)’s payments, they are disincentivised to negotiate reductions in drug prices. Therefore, without considering cost-effectiveness, the Sala IV’s generous rulings can end up restricting the availability of healthcare services.

Conversely, a case study of Brazil casts doubts on my proposal. In 2011, the Federal Law 12401 establishes a new entity – the National Commission for the Incorporation of Health Technologies (CONITEC), which is responsible for reporting the cost-effectiveness of medications (AGU 2018). However, Daniel Wang and colleagues (2020) find no evidence the (CONITEC)’s reports promote courts’ deference to the government’s priority-setting. Indeed, they are rarely cited in court decisions. Therefore, my proposal is not robust to Easterly’s second criticism that health rights rulings divert resources away from efficient uses.

In response, I argue this challenge should not hinder the implementation of my proposal. Instead, it provides insight into how to do so successfully. At present, both the (CONITEC) and the (CCSS) are following Easterly’s utilitarian approach to measure cost-effectiveness. They regard a just allocation of resources as one in which total QALYs are maximised. Meanwhile, the Sala IV’s creation aims at abandoning the Superior Court’s tradition of ignoring rights claims by socially marginalised and politically powerless groups (Wilson and Rodríguez 2006). Indeed, the first successful litigation was by three seriously ill patients demanding HIV/AIDS treatments in 1992 (Resolution No.5934-97). In the court’s view of justice, extra weights are given to health benefits for individuals in situations of greater vulnerability (Duarte 2000). By contrast, the utilitarian fashion of calculating cost-effectiveness ignores the relative distribution of welfare. Because the (CCSS)’s current analyses fail to address the Sala IV’s concerns about health equity, they are not well considered in health rights rulings.

The Fairness Condition requires the (CCSS) to comprehend other relevant views of justice in priority-setting. In addition to its existing approach, the institution should develop other measures of cost-effectiveness, accounting for equity concerns. This can unite the (CCSS)’s focus on efficiency with the Sala IV’s mission to defend the worst-off. By reinforcing mutual understanding between two institutions, cost-effectiveness can be incorporated into the assessment of health rights claims. Based on the work of Ana Boniac and colleagues (2012), I propose an equity-weighted measure of cost-effectiveness.

c over cap V equals c over sum from I equals 1 to n w sub I v sub I

 (unit: $ per QALY), in which:

  • c: the cost of a given treatment, measured in dollars;
  • V: total health gains when the treatment is publicly funded, measured in QALYs;
  • i ∈ {1,...,n} denotes subgroups in the population, whose social characteristics (i.e. sex, income, and so on) differentiate the potential QALYs gained from the treatment;
  • vi: the QALYs gained by subgroup i if the treatment is publicly accessible; 
  • wi: the weight attached to each QALY gained by subgroup i.

This improves the (CCSS)’s analyses in two aspects. Firstly, the utilitarian measure does not recognise variations in QALYs gained by different subgroups. For example, Costa Ricans living in poor neighbourhood are at higher cryptosporidiosis risk because of their limited access to clean water. Therefore, the public provision of a treatment like Nitazoxanide generates greater health benefits for them compared to those living in the richer region (Becker et al. 2015). Secondly, while the current measure weighs each QALY equally, the proposal can vary to give more weights to the benefits for the worst-off. Therefore, it promotes an efficient allocation of resources while addressing the Sala IV’s equity concerns.

However, it is possible to disagree about which characteristics of citizens are perceived to make them worse off and thus more deserving of health improvements (Olson et al. 2003). The Publicity and Enforcement conditions enable the (CCSS) to publish its calculations and facilitate public discourse. This helps identify an overlapping consensus on the optimal weights attached to different subgroups. Instead of being derived from the (CCSS)’s implicit judgements, an open and inclusive way of measuring cost-effectiveness can reflect public opinions, which in turn puts more democratic pressure on the court to align its rulings with the (CCSS)’s priority-setting.

4. Conclusion

Responding to Easterly’s criticism, I interpret the RtH as the right to a fair and accountable priority-setting process, wherein the Sala IV and the (CCSS) reach a common understanding of resource constraints. By respecting the administrator’s focus on efficiency, the Sala IV aims not to distort priority-setting by health rights rulings. Meanwhile, the (CCSS)’s acknowledgement of the court’s concerns about health equity motivates an equity-weighted measure of cost-effectiveness. This opens a new pathway for engaging the public to deliberate on the extra weights given to health benefits for the worst-off. By representing a view of justice that achieves the status of public consensus, the (CCSS)’s priority-setting can eventually command more of the Sala IV’s allegiance.

Acknowledgements

I want to thank Professor Alex Voorhoeve, Paloma Morales and three anonymous reviewers for constructive feedbacks to the first two drafts of this paper. I am also grateful to Yuanxi (Ellen) Jia for her invaluable comments to improve this final version.

Notes

[1] the process of using pre-defined principles to assess competing claims on resources.

[2] the absence of unfair and avoidable or remediable differences in health among population groups (WHO 2021).

[3] 1 QALY=one year in full health (Bognar and Hirose 2014).

References

AGU. 2018. Parecer No. 01377/2018/CONJUR-MS/CGU/AGU. Advocacia Geral da União, URL: https://www.jota.info/wp-content/uploads/2019/01/3a943589db4092d821cc1810e19daa2f.pdf

Andia, T.S. and E. Lamprea. 2019. Is the judicialization of health care bad for equity? A scoping review. International Journal for Equity in Health,

URL: https://doi.org/10.1186/s12939-019-0961-y

Atkinson, A.B. 1970. On the measurement of inequalityJournal of Economic Theory 2: 244--263.

Becker, D.J., J. Oloya and A.E. Ezeamama. 2015. Household Socioeconomic and Demographic Correlates of Cryptosporidium Seropositivity in the United States. PLoS neglected tropical diseases, URL: https://doi.org/10.1371/journal.pntd.0004080

Boniac, A., N.J.A. van Exel, F. Rutten and W.B.F. Brouwer. 2012. Inquiry into the Relationship between Equity Weights and the Value of the QALY. Value in Health 15: 1119--1126, URL: https://doi.org/10.1016/j.jval.2012.07.002

Bognar, G. and I. Hirose. 2014. The Ethics of Health Care Rationing: An Introduction. London: Taylor & Francis.

Cookson, R., A. Mirelman and S. Griffin. 2017. Using cost-effectiveness analysis to address health equity concerns. Value in Health 20: 206--212.

Duarte, C.M.R. 2000. Equidade na legislação: um princípio do sistema de saúde brasileiro?. Ciência & Saúde Coletiva 5: 443--463, URL: https://doi.org/10.1590/S1413-81232000000200016

Easterly, W. 2009. Human Rights Are the Wrong Basis for Healthcare. Financial Times, URL: https://www.ft.com/content/89bbbda2-b763-11de-9812-00144feab49a

Ferraz, O. 2011. Health Inequalities, Rights, and Courts: The Social Impact of the Judicialization of Health. Litigating Health Rights: Can Courts Bring More Justice to Health?, S. Gloppen and A. Yamin (ed.). Cambridge, Massachusetts: Human Rights Program, Harvard Law School, Freedom House, Costa Rica.

Fraser, I., W. Encinosa and S. Glied. 2008. Improving efficiency and value in health care: introduction. Health services research 43: 1781--1786, URL: https://doi.org/10.1111/j.1475-6773.2008.00904.x

Heuser, S. 2009. One girl's hope, a nation's dilemma. Boston.com, URL: https://www.boston.com/news/world/latinamerica/articles/2009/06/14/one_girls_hope_a_nations_dil emma/

Kolm, S. 1976. Unequal Inequalities. Journal of Economic Theory 12: 416--442.

Loaiza, O., S. Morales, S., O. Norheim and B. Wilson. 2018. Revisiting Health Rights Litigation and Access to Medications in Costa Rica: Preliminary Evidence from the Cochrane Collaboration Reform. Health and human rights 20: 79--91.

Luciano, A. and A. Voorhoeve. 2019. Have Reforms Reconciled Health Rights Litigation and Priority Setting in Costa Rica?. Health and human rights 21: 283--293.

Matamoros, A.C. 2010. Medicine Selection Criteria and Treatment Protocol Development, Costa Rican Social Security Fund, Costa Rica. Access to High-Cost Medicines in the Americas 1: 63--68.

Nooten, G. J. et al. 1995, Tricuspid valve replacement: Postoperative and long-term results. The Journal of Thoraic and Cardiovascular Surgery 110: 672--679.

Olsen, J. A., J. Richardson, P. Dolan and P. Menzel. 2003. The moral relevance of personal characteristics in setting healthcare priorities. Social Science and Medicine 57: 1163--1172.

General Assembly resolution 2200A (XXI). 1966. International Covenant on Economic, Social and Cultural Rights.

URL: https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

Pellissier, A. 2021. A Defence of the Human Right to Health. Studies in Philosophy, Politics and Economics 3: 27--31.

Ramsey, S.D. et al. 1995. The cost-effectiveness of lung transplantation. A pilot study. University of Washington Medical Center Lung Transplant Study Group 108: 1594--1601.

Sala Constitucional de la Corte Suprema de Justicia (Costa Rica). 1992. Resolution No. 5934-97.1992.

Rid, A.J. 2009. How does "accountability for reasonableness" result in fair limit-setting decisions? Journal in Medical Ethics 35: 6--12.

Rumbold, B. et al. 2017. Universal Health Coverage, Priority Setting, and the Human Right to Health. Lancet 390: 712--714.

Wang, D. et al. 2020. Health Technology Assessment and Judicial Deference to Priority-setting Decisions in Healthcare: Quasi-experimental Analysis of Right-to-health Litigation in Brazil. Social Science and Medicine 265.

Wilson, B.M. 2009. Institutional Reform and Rights Revolutions in Latin America: The Cases of Costa Rica and Colombia. Journal of Politics in Latin America 1: 59--85.

Wilson, B. M. and J.C.C. Rodríguez. 2006. Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics. Comparative Political Studies 39: 325--351.

Wolff, J. 2012. The Demands of the Human Right to Health. Aristotelian Society Supplementary Volume 86: 217--237.

World Health Organisation (WHO). 2021. Definition of health equity. URL: https://www.who.int/health-topics/social-determinants-of-health