Legal limitations of health care rationing: a comparative study between Germany's and New Zealand's public health care system

Abstract

On the basis of a comparative study between Germany and New Zealand this paper analyses the legal limitations of health care rationing. With the constantly rising promises of the medical progress and the increasing life-expectancy, no public health care scheme is capable of meeting every demand of every patient. Scarcity is therefore a fundamental feature of health systems. In order to guarantee their sustainability governments are forced to limit access to publicly funded health provision. In doing so, Germany pursues a policy of hidden rationing that is camouflaged by measures to improve the scheme's efficiency, whereas New Zealand follows an open and explicit approach. However, both policies conflict with patients' interests to receive appropriate health care in each case of need. It is argued that governments' discretion to ration may not solely depend on economic and medical considerations but is rather restricted by patients' human rights, especially the right to life and the right to be free from discrimination. Patients' claims to receive health care may also be protected by property rights as long as these are not based on general tax-payments but instead on earmarked contributions or levies that are paid for the specific purpose of health care. This argument has more force in Germany than in New Zealand. Although the availability of resources confines their effectiveness, patients' human rights nevertheless influence health care rationing since every violation has to be justified on substantial grounds of public interest. A human rights-based approach has impact on the health policies of both Germany and New Zealand by demanding a transparent decision-making process on the basis of legal and publicly consented to criteria. This also ensures that patients receive proper information and prevents arbitrariness. Thus, priority setting may be guided not only by the egalitarian, the utilitarian and the need principles but also by the legal concept of the 'less likely infringement of human rights'. Moreover, when reviewing health authorities' rationing decisions courts are called to scrutinise from a human rights perspective their justification, economic necessity and proportionality. A human rights-based approach to health care rationing is consequently essential for the protection of German and New Zealand patients in the face of scarce medical resources.