Justice and Profit in Health Care Law: A Comparative Analysis of the United States and the United Kingdom by SABRINAGERMAIN (Oxford: Hart, 2019, 202 pp., £50.00)
| Date | 01 November 2020 |
| Published date | 01 November 2020 |
| DOI | http://doi.org/10.1111/jols.12262 |
| Author | KEITH SYRETT |
JUSTICE AND PROFIT IN HEALTH CARE LAW: A COMPARATIVE
ANALYSIS OF THE UNITED STATES AND THE UNITED KINGDOM by
SABRINA GERMAIN (Oxford: Hart, 2019, 202 pp., £50.00)
The centrality of justice to health care is now so widely acknowledged that
it scarcely warrants repetition. From Tom Beauchamp and James Childress’
famous four principles of health care ethics,1to Norman Daniels’ application
of Rawlsian theory to health care,2and more latterly, to the determinants of
health,3to Jennifer Prah Ruger’s and Sridhar Venkatapuram’s adoption of
Amartya Sen’s capability approach in the health context,4and to Lawrence
Gostin’s vision of ‘global health with justice’,5there is an extensive and
analytically rich literature upon which those working in medicine, bioethics,
health policy and health systems analysis, and medical law may profitably
draw.
Sabrina Germain’s monograph seeks to explore this juxtaposition through
an analysis of the extent to which notions of justice have permeated
the process of law making, with reference to key pieces of health care
legislation in the United States (US) and the United Kingdom (UK) enacted
between 1946 and 2012. While her claim that ‘the very existence of a
connection between moral philosophy and health care law has thus far been
underestimated and unappreciated by law and policy scholars’ (p. 3) is
contentious – one need only think of the work of John Coggon6–her approach
is novel insofar as it seeks to apply methodologies of discourse analysis to
determine the prevalence and influence of ideas of justice in the evolution
of laws reforming health systems. Germain characterizes this investigation as
‘propos[ing] a theory of legal development and advanc[ing] methodological
elements for the study of legal change’ (p. 13), citing in this context the work
of David Ibbetson on a methodology for comparative legal history,7a point of
reference to which this review will subsequently return.
While Germain is concerned to identify the place of principles of justice
in health care reform, this book (sensibly, in view of the weight of eminent
scholarship noted above) does not seek to advance a particular theory of
justice in this context. Nevertheless, following an introductory chapter in
which the author sets out her objectives and the structure of the subsequent
analysis, Chapter 2 offers a brief account of why health care – especially the
allocation of resources – engages questions of justice, before setting out five
1 T. Beauchamp and J. Childress, Principles of Biomedical Ethics (1979).
2 N. Daniels, Just Health Care (1985).
3 N. Daniels, Just Health: Meeting Health Needs Fairly (2008).
4 J. Prah Ruger, Health and Social Justice (2009); S. Venkatapuram, Health Justice: An
Argument from the Capabilities Approach (2013).
5 L. Gostin, Global Health Law (2014).
6 See especially J. Coggon,What Makes Health Public? A Critical Evaluation of Moral,
Legal, and PoliticalClaims in Public Health (2012).
7 D. Ibbetson, ‘Comparative Legal History: A Methodology’, in Making Legal History:
Approaches and Methodologies, eds A. Musson and C. Stebbings (2012) 131.
713
© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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