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Essay question (30 points)Individuals are increasingly attempting to (2) challenge healthcare rationing decisions of
policy-makers through litigation based on human rights. This raises questions about the role
of courts in such disputes. Some commentators argue that courts should refrain from
reviewing healthcare rationing decisions taken by policy-makers whereas other
commentators emphasize the role of courts in actively safeguarding human rights in such
cases.
Task: In a MAXIMUM of 500 words, please discuss whether (or not) courts should engage
in a human rights-based review of healthcare rationing decisions taken by policy-makers.
In your answer, (1) explain what is meant by healthcare rationing; (2) explain, using
concrete examples, why healthcare rationing is relevant for human rights; and (3) discuss
whether (or not) courts should engage in reviewing, based on human rights law,
healthcare rationing decisions taken by policy-makers. Substantiate your arguments with
relevant scholarly and legal sources discussed during the course and indicated in the
course literature.
(1): ICESCR Art.12 & General Comment 14.
Use other case laws
European Court of Human Rights & European Convention of Human Rights
(3): No right or wrong answer. It is up to the state (large margin of appreciation)
Or the other way around, health care is a very important human right etc.
Case question 1 (30 points)
Facts:
Further to a road accident, Mr K was transported to an emergency clinic located in country
X. At the clinic, the doctors concluded that he had experienced a traumatic musculoskeletal
injury (an open fracture of his lower limb). The doctors at the clinic decided to include him in
a clinical trial comparing standard post-surgery wound management with a new therapy
called Negative Pressure Wound Therapy (hereafter: NPWT). Having determined that Mr K
was conscious, the doctors asked him to sign a document consenting to be recruited for the
study. Mr K signed the document.
After a surgery was performed, Mr K received from the doctors a written information sheet,
which included a diagram of the NPWT supported by verbal instructions on his role during
the continuation of the study. When he read the information sheet, Mr K claimed that he
was very unpleasantly surprised to realize that he was included in the NPWT group. He said
that when he was taken to the hospital, although he was conscious, his state was
compromised by the traumatic injury he had suffered, and he had limited ability to function
and understand what was in his best interest in terms of treatment and care. He accused the
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