A Healthy Conception of Rights?: Thinking Relationally About Rights in a Health Care Context
Canadian Health Care, Universal Health Care Access, Supreme Court of Canada, Charter of Rights and Freedoms, Auton v British Columbia, Chaoulli v Quebec (Attorney General), Liberal Individualism, Relational Rights Theory
The nature and future of the Canadian health care system and its commitment to universal access has been the subject of intense public attention and concern in recent years. Amid the political and social debate, some have renewed efforts to establish the existence of a right to state-provided health care as a basic human right deserving of legal protection.' Such advocates point to the recognition of such a right in international treaties and agreements to which Canada is a party. Others have looked to the Canadian Charter of Rights and Freedoms' to resolve debates over access to health care, interestingly using it both to seek access and entitlement* and to challenge the core commitment of the current system to public provision of services as expressed through its restrictions on private services. Bids to establish entitlement to services or to protect the core commitment to public services grounded in the Charter have met with significant defeats in recent judicial decisions. These decisions will have significant implications for the political and social debates over our health care system.
They are also significant for what they reveal about the Supreme Court's conception of the nature and role of rights more generally and their application to the health care context specifically. Their approach to and understanding of rights thus has serious implications for the capacity of the Charter to offer just and full responses to claims in the health care context. This article examines the conception of rights underpinning the Supreme Court's decision in two recent key health law cases: Auton and Chaoulli. It argues that the Supreme Court's implicit embrace of a traditional liberal individualist conception of rights° prevents it from fully appreciating and appropriately responding to claims in the health care context. In contrast, it is suggested that a relational conception of rights would offer a more appropriate lens through which to view and respond to claims related to the health care system.
Jennifer Llewellyn, "A Healthy Conception of Rights? Thinking Relationally About Rights in a Health Care Context" in Jocelyn Downie & Elaine Gibson, eds, Health Law at the Supreme Court of Canada (Toronto: Irwin Law, 2007) 57.