4 Law, Globalisation and the NHS

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DOI: 10.1177/0309816807092001042007 31: 81Capital & Class

John A. HarringtonLaw, globalisation and the NHS

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81Law, globalisation and the NHS

Law, globalisation and theNHSJohn A. Harrington

The regulation of medical work in the has been

shaped by the post-war settlement, which lead to the

creation of the National Health Service in . The

removal of clinical care from the market was

supported over the following decades by prohibitions

of the sale of human organs and gametes. That

settlement is now being dismantled, with the

increasing privatisation of facilities. The recomm-

odification of medicine in Britain is achieved as part

of broader patterns of neoliberal globalisation. Cross-

border markets in health services are realized in law

through international (e.g. the General Agreement on

Trade in Services) and regional trade law (e.g.

European Community law).

Introduction

The globalisation of healthcare provision is having a

profound effect on the British National HealthService (). Founded as a state-run, taxpayer-

funded service in , it has endured in this form through

two-and-a-half decades of post-Keynesian restructuring. It

is only under the Labour government since that the

basic form of the has begun to change (Pollock, ).

The increasing takeover of service provision by corporate

interests can be seen as an instance of what has been called

roll-out neoliberalism, as distinguished from the roll-back

neoliberalism of the Thatcher years, which was largelycharacterised by cuts in expenditure (Peck & Tickell, ).

Current British reforms both draw on and contribute to a

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Capital & Class #9282

broader global trend toward the marketisation of healthcare,

and a fuller integration of medical work into the circuits of

capital (Whitfield, ). It could be argued that what was

imposed as structural adjustment on sub-Saharan Africa is

being rolled out voluntarily by British state managers.

My focus in this paper is on the implications of global-

isation for English medical law. In the first part of the paper,

I offer an outline of what I mean by globalisation in the con-

text of healthcare. I then consider the manifestations of this

process in two areas of medical practice: international

trafficking in organs, and so-called health tourism within

the European Union. In conclusion, I discuss the generic

stresses imposed upon the law by the uneven develop-ments

in the two areas considered. It will be seen that the tension

between relatively recent global economic liberalisation and

the more traditional welfarist paternalism of the nation state

is replicated in the changing case-loads and sometimes

incoherent doctrines of medical law.

What is globalisation in the context of healthcare?

In response to the enthusiastic evocation of globalisation by

politicians and scholars during the s (Giddens, ),

more recently commentators have questioned the extent anddepth of the phenomenon (Henwood, : ). They have

also doubted the novelty of globalisation, arguing that it is

merely a return to pre-First World War patterns of trade

(Petras, ; Sutcliffe, : ). The demise of the nation

state, predicted by some, is also unlikely. The state and its

law are vital to globalisation, guaranteeing a compliant labour

force and a benign fiscal regime for inward investors, as

well as opening up new opportunities for profit through the

privatisation of public assets and the protection of intellectualproperty (Wood, ).

Caution is well advised, therefore, in charting the effect

of globalisation on healthcare provision, and on medical

law in particular. Nonetheless, a number of contemporary

trends can be accommodated within the loose, descriptive

concept of globalisation: the transnationalisation of product-

ion; the growing free movement of consumers, if not of

workers; the commodification of the human body and of

formerly state-funded healthcare; persisting inequalitybetween core and periphery in the world economy; inade-

quate regulation due to the predominance of economic law



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over other branches at international level. Given that the

contemporary era is pre-eminently one of capitalist global-

isation, I adopt a consistent perspective on these phenomena

rooted in theories of political economy.

Production

The decomposition of formerly national systems of

production and their rearticulation across international

boundaries has marked the current phase of globalisation.

Unfettered and mobile capital seeks out cheap and flexible

labour around the globe. This trend has been most marked

in manufacturing, but it is increasingly true of service

provision too. Not only is customer-service and back-office

work sent offshore, but Northern capital also seeks increased

returns from providing services to locals in the target

country, whether that be the broad population of the

developed nations or the new middle classes of the developing

world (, ). For example, the provision of health-

care, from hospitals to diagnostic teams, comes increasingly

from external sources. This investment is facilitated by the

removal of barriers to the free movement of capital into and

out of states, and by the privatisation of public assets. The

General Agreement on Trade in Services () of the WorldTrade Organisation () commits states to allowing un-

restricted inward investment and the full repatriation of

profits by non-national service providers. The transnation-

alisation of healthcare provision benefits still more directly

from the work of the World Bank, which actively invests in

private medical businesses in countries such as India and

Brazil.

Consumption

Capital invested requires a return. That is only possible where

there is a functioning market with effective demand for

private medical services. Under the prevailing neoliberal

order, when state funders will not cover privately provided

treatment, patients should be left with enough income after

taxation to pay for it themselves. This is increasingly the

case in most nation states: fiscal constraints, driven by fear

of disinvestment, have the dual effect of degrading publicservices and freeing up private resources (Leys, : ).

The erosion of public services is furthered by rhetoric



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disparaging state provision as irredeemably inefficient and

inadequate. Private providers and senior professionals strive

to make a plausible case for privatisation in the name of

choice and quality.

Consumption of healthcare, just like its provision, is no

longer confined by national borders. Again, is set to

aid this process. It requires states not only to allow foreign

service providers in, but also that they permit their own

nationals to travel in order to access services abroad, and to

export sufficient funds to pay for this. As will be seen later

in this paper, these developments have been anticipated in

law. Where the service cannot come to the consumer, the

consumer is to be assisted in her journey to the service.

Capital flight, once seen as the bane of Third World develop-

ment, is now enshrined as a right in international and

domestic law, enjoyed by the healthcare industry and its

wealthy clients (Adelman & Espiritu, ).

Thus, networks of both production and consumption are

established. A global market is being constituted as trans-

national service providers attract nomadic patient

consumers. Economic globalisation, driven by the relentless

quest for profit of corporations in the developed countries

and enforced by international economic law, inevitably acts

to decompose the bounded and solidaristic basis of nationalhealthcare systems (Whitfield, ). In the , for example,

the s monopoly of provision has been broken up. Foreign

as well as domestic companies now contract with the

government for the provision of services (Pollock, ). In

developing countries, an expanded market for private health

insurance and cherry-picking by the relevant companies

draws the upper and middle classes away from the state

system, decreasing the national pool of patients while the

poor and lower middle classes are thrown upon an under-funded rump system of public healthcare.

Commodification and the new medicine

Another dynamic feature of the contemporary scene is the

development of what has been called the new medicine:

organ transplantation, assisted reproduction and human

genetics (Richardson & Turner, ). Body parts (e.g.

kidneys) and particles (e.g. stem cells) are the basic materialof these therapies. Demand for them has opened up new

opportunities for primitive accumulation or accumulation



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by dispossession. The latter term originally described the

often violent phase of expropriation preceding more orderly

regimes of capitalist accumulation. Thus, during the indust-

rial revolution in Britain, peasants were dislodged from their

smallholdings by reforming landowners, and compelled by

economic necessity to seek waged work in the new factories

(Marx, : ).

However, this was not a one-offevent. Primitive accum-

ulation has remained a feature of capitalism up to the

present globalised era (Harvey, ). As Rosa Luxemburg

put it, Historically, the accumulation of capital is a kind

of metabolism between capitalist economy and those pre-

capitalist methods of production without which it cannot

go on and which in this light it corrodes and assimilates

(: ). Seeking an outlet for investment, a market for

its products and a source of labour and raw material,

capitalism has always been forced beyond its own geographic

and social limits. Imperial conquest has been interpreted

in this way (Arendt, ). In the current era, capitalism

continues to cross the frontiers separating it from non-

market realms such as the welfare state and its Third World

counterpart, the developmental state. It also penetrates the

taboos sur-rounding the human body, commodifying organs,

human tissue and genetic material (Leibowitz-Dori, ).These are acquired for money as inputs in the production

of health-care. Their processing (e.g. through trans-

plantation) creates further value, which is realised in the

form of fees earned for the service.

The introduction of means of transport, such as railways,

was vital to the spread of the commodity economy under

pre-First World War imperialism (Hill, ). Similarly, the

extension of advanced Western medical technology is

essential to the accumulation of capital in the healthcaresector. Standard techniques and internationally valid

protocols make for a uniform medicine practicable across

the globe (Mol & Law, ), enabling its primary produce

to be extracted and to circulate in the global market. As

Britains nineteenth-century Opium Wars show, the intro-

duction of the commodity economy has often been far from

peaceful. Similarly, the marketisation of human organs and

the depletion of public healthcare provision has not gone

uncontested. In particular, resistance to structural adjustmentand privatisation programmes has been sporadic, but often

intense (Bond, ).



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Globalised localism localised globalism

Boaventura de Sousa Santos offers a further, useful per-

spective on globalisation, which may be adapted to healthcare

(Santos, : ). He argues that there is no such thing as

a pure globalism. What we encounter are in fact globalised

localisms: the practices of a specific state or region that

have extended across the globe, gaining the power to define

their rivals as merely local. The asymmetric relationship

between scientific, Western medicine and the traditional

therapies of African peoples is a good example of this.

Globalised localisms find their counterparts in localised

globalisms. Just as the former cannot be understood as

abstractly universal, so the latter do not correspond to the

merely particular. Localised globalism connotes instead the

specific impact of transnational practices and imperatives

on local conditions. The enforcement in African jurisdictions,

at a time of crisis in public health, of patents held by

European pharmaceutical companies provides an instance

of this (Nagan, ).

The pattern that Santos describes is significantly

conditioned by the historical inequalities of the world

system. The different trajectories to modernity of different

countries determine their relative positions in this system.The former metropolitan powers of Europe, as well as the

settler nations of North America and Australasia, form the

core; the former colonies of Africa, South Asia and Latin

America, the periphery. It is argued that East Asian nations,

with their commonly autarkic route to modernity, are moving

from the former towards the latter. Santos points out that

countries at the core specialise in producing globalised

localisms, while those at the periphery are commonly forced

to bear the costs of localised globalisms (Santos, : ).Since ours is a capitalist globalisation, this polarity can be

represented as a hierarchical division of labour on a world

scale. The specific practices of capitalist industrialism, service

provision, financial governance and legal ordering are

exported from the strong states as globalisms, to be localised

in the weaker states, reshaping their material and normative

prospects.

Latterly, the achievements of the core nations have been

mediated through institutions of global governance such asthe World Bank, the and the . These compel develop-

ing countries to reform (i.e. privatise) their public sectors,



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and to implement the rule of law within their territories.

Yet such programmes have their origins in the practices and

reforms of specific Western nations. Indeed, their implemen-

tation in the developing world boosts invisible export

earnings by developed-country academics, s, civil

servants and management consultants (Sassen, ; Wallace,

). It is, of course, incorrect to view any developing

country as the undifferentiated recipient of external diktats.

A substantial section of the ruling group will be active, acting

as the local steward of globalisation (Burnham, ). A

cadre of bureaucrats will identify with the reform project,

and ensure its legislative and administrative implementation.

Hosts of s take over the states welfare functions, and

answer directly to foreign agencies for the expenditure of

grant monies (Albo, ). Localised globalisms take effect,

therefore, not simply in material terms. They also reshape

social and political structures within developing countries.

The followingdrawn from Harrington ()may

serve as an example. British health economists, working

within the paradigm of that discipline in the late-s,

develop models of healthcare funding. In particular, they

recommend the imposition of user fees on patients in order

to discourage the unnecessary use of facilities (Lawson,

). This is the localism. It achieves the status ofglobalism through the powerful agency of the World Bank.

The Bank adopts user fees as part of its strategy for

promoting efficiency in public health services (World Bank,

: ). It imposes the policy on developing countries,

such as Tanzania, as a condition of further loans (Kiwara,

). The policy is adopted into Tanzanian law and imple-

mented by officials at the ministries of finance and health.

They are advised by British academics and civil servants.

The policy is experienced as a localised globalism by existingusers of clinics around the country. They bear its costs,

refraining from necessaryuse of health facilities, and suffering

an increase in conditions such as anaemia, seemingly as a

result (Hussein, ).

Uneven normative convergence

Chase-Dunn has argued that the capitalist world economy

is integrated more by politicalmilitary power and marketinterdependence than by normative consensus (Chase-Dunn,

: ). Of course, arguments are made for both new and



9/25


revived normative universalisms, either functionally, in

response to economic globalisation, or on a priori grounds

(Aginam, ). But their realisation, thus far, has been only

partial in geographic and sectoral terms (Santos, : ).

This is of especial significance in the area of medical law.

Legal commentators routinely use the canon of Western ethics

as a meta-discourse for the articulation and resolution of

regulatory problems (Singer, ). Yet the historically

contingent and geographically specific pedigrees of

Kantianism, utilitarianism and so on is obvious; as is the

lack of consensus on a range of substantive issues like

abortion or the right to healthcare. In fact, it is argued that

far from being mere survivals, normative and cultural

particularisms are adaptive responses to economic

globalisation (Amin, ). As states withdraw from prod-

uctive and welfare activities that ameliorate the effects of

the free market, legitimacy is renewed via ethnic, national-

istic and religious mobilisations (Betz, ). These can, on

occasion, accentuate differences in the legal treatment of

ethically sensitive medical issues. However, the dialectical

progress of capitalist globalisation means that these

legitimation strategies are undermined at the same time as

they are promoted by commodification and the decline of

pre-capitalist social structures. We shall see that preciselythis has been true of the commodification of organ sales in

the developing world.

Norms are not absent from capitalist globalisation. No

matter that the chain of production and consumption now

crosses multiple borders, value is still created and realised

within the territorially defined jurisdictions of nation states.

Orderly accumulation, thus, requires the stability provided

by a dependable and suitably oriented national system of

contract, property, labour and commercial law. The globalmoment of this legal regime is found in the normative output

of the , the World Bank and the International Monetary

Fund (), as well as in that of regional bodies such as the

European Union (). Treaty obligations (e.g. ) and

loan conditionalities, backed up by formal and informal

sanctions, compel nation states to develop and maintain

essentially similar pro-market legal regimes (Koivusalo &

Ollila, ). Broad convergence on privatised healthcare

and the global protection of pharmaceutical company rentsare the fruit of national legislation mandated by international

economic law (Shaffer & Brenner, ). We find normative



10/25


consensus to be most advanced where it most intimately

regulates and protects the globalised system of accumulation.

Legal harmonisation or unification proves to be more

difficult to achieve in non-economic sectors, or where the

issue cannot be reformulated as a matter of economic liberties

(Fidler, ).

English medical law and the market

In the period from until the early s, economic

struggles within nation states concerned the way in which

the social product would be distributed between labour and

capital (Harvey, ). Their growing intensity in the s

reflected the declining profitability of companies in the

Western countries. These struggles were commonly centred

on the workplace, but they also found a limited outlet in

litigation attempting to compel governments to maintain

and expand welfare provision (Offe, ). The general crisis

of the s was resolved through the liberalisation of

transnational capital flows in the manner discussed above.

With labour decisively weakened by job insecurity and state

compulsion, contemporary social struggles are now more

likely to involve the defence of natural endowments, trad-

itional knowledge and extant systems of public welfare, aswell as the valorisation of minority identities and lifestyles.

With the rise of human-rights law, the effects of this capitalist

globalisation are increasingly felt in the courts. Disputes

about intellectual property in life-saving drugs, attempts to

hold private healthcare providers to account, and struggles

over the commodification of traditional knowledge, have

marked out the new medical law jurisprudence (Koivusalo,

).

These changes can also be tracked in the case-law of theEnglish courts. Since the foundation of the National Health

Service in , English healthcare law has been shaped by a

number of key assumptions regarding the nature and aims of

medical work in a state-funded and publicly delivered systems

(Harrington, , ). These effectively created a zone of

professional autonomy within which the medical profession

was allowed to deliver healthcare free from the compulsions

of the market and the demands of patients. Judges routinely

deferred to clinical judgement in decisions on medicalmalpractice and in adjudicating the healthcare entitlements

of patients denied access to treatment (Brazier, ). The



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standard of information disclosure was determined by medical

expert opinion, not by the patients right to self-determination

(Jones, ). Legislation permitting abortion was passed in

, but access to termination would ultimately depend on

clinical judgment, and not on womens rights. There was a

further presumption, embodied in a range of legislation, that

the human body should not be commodified. Organ trafficking

and commercial surrogacy were prohibited. In judicial

rhetoric as well as in statute law, doctors were thus valorised

as the near-sovereign custodians of a precious and scarce

national resource. This image was informed by an inherited

Victorian prejudice in favour of the doctor as gentleman

practitioner, and a faith in the medical profession as the agent

of social progress (Lawrence, ).

The effect of this ideological formation in law was to in-

sulate doctors from external scrutiny. It also served to conceal

behind a veil of clinical discretion the increasingly acute

rationing implemented under neoliberalism from the mid-

s owards. Challenges to the post-war orientation of

medical law have taken two main forms (Boltanski &

Chiapello, ). The first kind, resting on a social critique,

are those that have sought the redistribution of healthcare

or general resources towards favoured medical causes. While

legal challenges are necessarily individual, they summate toa demand for increased funding of the National Health

Service. As has been noted, such challenges are generally

rejected on grounds of justiciability (Whitty, ). The

scarcity of healthcare resources is naturaliseda matter of

fate that no judge could set right. The second set of challenges,

resting on an artistic critique, has sought the emancipation

of patients from the patriarchal dominance of medical

practitioners (Kennedy, ). The infusion of human-rights

discourse and bioethics into medico-legal practice testifiesto the success of this critique. These challenges have also

re-valorised market models of healthcare, even where they

were originally inspired by the anticapitalist movements of

the late-s (Doyal, ). Thus, the radical demand for

patient autonomy can be seen as a justification for increasing

patient choice and the adoption of market systems in the

delivery of healthcare (Jacob, ). In the following two

sections, we will examine the effects of these tendenciesa

re-commodification of medical practice, with the patient roletransformed from passive recipient to active, mobile

consumer.



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International organ traffiffiffiffifficking and English law

Under the Human Tissue Act , a punishment of up to

three years imprisonment may be imposed on persons giving

or receiving rewards for the supply of organs, seeking to find

others willing to supply organs, or managing a company

involved in the negotiation or initiation of organ sales. The

publication and distribution of advertisements in this

connection are punishable by up to fifty-one weeks

imprisonment. To this extent, this new Act continues the

explicit ban on organ trading first introduced into British

law by the Human Organ Transplantation Act . The

latter was passed in response to a scandal involving the

extraction of organs from Turkish men for the benefit of British

patients. The Act, thus, reinforces the general orientation

of English medical law towards non-market values: in this

case, the taboo against the commodification of the human

body. Restrictions on payment for surrogacy arrangements,

blood donation and the supply of human gametes are consistent

with this. The ethic of altruism founded on gift relationships

remains at the ideological heart of healthcare law in Britain

(Titmuss, ). Similar measures have been enacted by most

other developed, and indeed, many less-developed nations.

At a global level, the United Nations Educational, Scientificand Cultural Organisation (, ), the World Health

Organisation () and the World Medical Association ()

are all opposed to the creation of markets in organs.

Notwithstanding these measures, organ trafficking

continues to grow. An exact quantification is, of course,

impossible. Nonetheless, the anecdotal evidence for its

growth is strong (Scheper-Hughes, ). The extensive

development of illegal organ markets in, for example, India

is well documented (Goyal, ). In the , a number ofdoctors have been disciplined by the General Medical

Council for performing broker functions, creating markets

for the Indian transplantation business (, ). A number

of possible reasons for this growth, linked to the preceding

discussion of globalisation, can be suggested:

) The globalisation of healthcare production combined

with the falling costs of transport. Western patients can travel

relatively cheaply to countries such as Turkey or the

Philippines. There, they can stay in hospitals of a Westernstandard and receive treatment at least as good as that in

their home countries (Reddy, ).



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) Effective demand on the part of wealthy patients is

met by supply from people who are sufficiently desperate to

undergo the risks of operation and the removal of organs.

Market impediments are easily circumvented. In fact, legal

prohibitions themselves become the objects of a parallel

market in bribes and favours.

) Since the s, immunosuppressant drugs have

greatly increased the success rate for transplantation. Usable

body parts are now available for circulation in the inter-

national medical market.

These developments have begun to erode the taboo against

commodification at the national level, in Britain and

elsewhere. While the Human Tissue Act has maintained

the existing prohibition, there are signs elsewhere of changing

attitudes. The British Medical Association, for example,

hosted a widely reported debate on the matter in an

event that would have been unthinkable just ten years earlier.

Bioethicists and other moral philosophers address the

justifiability of organ trading in growing numbers (Veatch,

; Wilkinson, ), and the great majority supports some

kind of regulated market. In their arguments, technical

feasibility, unmet demand and untapped supply all coalesce

into a moral defence of organ sales. Scarcity is taken to be a

natural phenomenon rather than a product of consciouschoices to invest in transplantation facilities and, on a global

scale at least, to privilege the lives of a wealthy minority

(Lock, : ). Proponents of markets dismiss taboos

against commodification as indefensible in liberal and

pluralistic societies (Duxbury, ). They concentrate

instead on the possibility of impaired consent on the part of

the organ seller. They find it hard to see how an offer of

money per se could constitute illegitimate pressure in an

organ transaction (Herring, ). This is, of course, unarg-uable: even in cases of economic necessity, it can be argued

that the consent of the seller was real.

However, there are two significant and related lacunae in

pro-market arguments. First, global issues are usually

bracketed in these discussions. Proposed markets are limited

to a single state or a developed region such as the (Erin

& Harris, ). Conditions in developing countries are too

extreme to permit any direct extension of the pro-market

argument. In spite of the growing significance of transnationalorgan tourism, ethicists are thus often self-restricted to the

national horizon. Second, writers in this vein foreground



14/25


agency over structural concerns. The latter are addressed, if

at all, in fatalistic terms. For example, Pattinson makes the

valuable but regrettably underdeveloped point that

[exploitation and inequality of bargaining power] are not

restricted to commercial organ dealings. Many labour

markets, especially in the developing world, pay workers

paltry sums of money It is difficult to see why if these

concerns justify prohibiting organ dealings, rather than

the need for regulation and supportive structures, they do

not justify the prohibition of any activity paying low wages

and generating large sums of money. (Pattinson, )

Regulation can indeed improve the likelihood and the

quality of consent obtained from organ sellers. But it is itself

dependent on the political and economic context in which

it must operate. This context is, as has been discussed,

decisively shaped by international relations that reproduce

economic and political inequalities between different states

and within states (Scheper-Hughes, ). The ethics of

organ markets inevitably implicate questions of social and

global justice that are not readily fitted within the analytical

grid of liberal bioethics.

What are the structural issues raised by organ tourismbetween developed and developing countries? On exam-

ination, we find that many of the problems associated with

other forms of commodity production and trade can be

expected here too:

) The continued direction of resources toward intensive

production (here, hospital medicine), which benefits consumers

in the North, and away from interventions aimed at the majority

of people in the South (here, basic public health).

) The increased threat to the livelihood and indeed thelives of poor people posed by their participation in

commodity production. Where a peasant favours cash crops

over subsistence, she is more exposed to a falling market.

Where a poor man sells a kidney, his capacity to labour and

earn is permanently vulnerable to further illness.

) The replication and exaggeration of divisions internal

to the particular state or region. Class, gender and ethnic

inequalities are commonly reinforced when articulated within

the imperatives of the global economy. At the margins ofthe global economy, a transplantation underclass is already

in place. Depending on the particular region, it is composed



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of poor women, displaced peasants, the homeless, prisoners

and the mentally ill (Scheper-Hughes, ).

) At present, supply often meets demand for organs as

a result of economic coercion, fraud or physical force. Yet

the institutions that might provide for fairness in the market

are often dysfunctional, bankrupt or corrupt. The hollowing

out of the state under structural adjustment programmes,

and the correlative rise of competitive markets in formerly

public services has diminished local regulatory capacity.

While systems for extracting and marketing organs have

been successfully, if often illicitly reconstituted at global

level, there has been no matching ethical and cultural

convergence. The strength of taboos relating to organ

removal still varies considerably between countries and

regionsthe taboo is strong in Japan, but less so in India,

for example (Lock, : ). Enforcement capacities

differ, too. Furthermore, the national consensus against com-

modification has come apart under the pressure of the

actually existing market. Legal bans on trafficking, such as

that in Britain, are attacked in principle and contradicted in

practice. Despairing of their ability to protect the vulnerable

through prohibitions, commentators prefer to settle for a

lesser evil within the unchallenged horizons of global

inequality and structural exploitation (Friedlaender, ).Arguing at what Santos has called the sub-paradigmatic

level, they urge reform and adaptation rather than contest

and transformation (Santos, : ).

Health tourism in Europe

Health tourism for more routine procedures is also increasing

within the developed world. We have already noted that this

poses threats to the largely solidaristic basis of nationalhealthcare systems, whether insurance-based as in continental

Europe, or state-funded and run as in Britains . Mobile

patients draw off resources from the national system,

restricting the ability of local providers to maintain and

expand capacity. Though the cost of air travel and medical

procedures across the globe is falling, private health tourism

remains out of reach for most citizens, even in the developed

world. Increasing effective demand will only be possible if

state health insurers and providers are willing to fund cross-border treatment. The s General Agreement on Trade

in Services has already been mentioned as an impulse to the



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creation of a global healthcare market in this way. At the

regional level, law has in recent years been interpreted to

facilitate the mobility of patients between member states

(van der Mei, ). The impact of intra-European free-

trade rules on Britains has recently been made clear in

the case of Secretary of State for Health v R. (on the

application of Watts).

Mrs Yvonne Watts had been told to wait twelve months

for a total hip-replacement operation by her local primary

care trust (). Since this was within the Department of

Healths target waiting time of fifteen months, the refused

to fund a trip to Lille in France so that she could have the

operation performed there at an earlier date. She proceeded

at her own expense. Seeking judicial review of the s

refusal, Mrs Watts invoked her European Community law

right to travel to avail of services provided in another member

state. In implementation of this right, she claimed, the

was obliged to reimburse her costs. At first instance, Mr

Justice Munby held in her favour on the point of Community

law. On the facts, however, it appeared that the had

made a revised offer of treatment two months before the

scheduled date of the Lille operation, which Mrs Watts could

reasonably have accepted. Her claim failed accordingly.

The Secretary of State for Health appealed against theruling that, on principle, there was a right to reimbursement.

Lord Justice May for the Court of Appeal ultimately held

that the decision on the case should be suspended, and a

reference made to the European Court of Justice () for

clarification of the law. The recently ruled in favour of

Mrs Watts. But it is worth considering the reasoning of the

Court of Appeal, and its reflections on the health-policy

implications of the case. The situation of the English court

is seen to be a poignant one, on the brink of a decisiverearrangement of the value hierarchy in this area of medical

law (Montgomery, ). The practical implications of this

reordering for the form and extent of public-health provision

in they are likely to be profound.

Article of the European Community Treaty prohibits

restrictions on the freedom to provide services to nationals

of other member states. The has erected a substantial

edifice of interpretation on Article , to the extent that

appeals to its literal meaning may not be regarded as per-suasive (Watts, para. ). Thus, for example, the right of a

consumer to travel to avail of services has been guaranteed



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as a corollary of Article . This effective right is further

expanded by Article of Council Regulation /, which

provides that a recipient of social services in one member

state may avail of treatment appropriate to his condition in

another member state at the expense of the relevant home

institution. The has defined home institution to include

state-backed contributory sickness funds (Davies, ).

Funding may be refused by the home institution unless the

patient cannot be offered treatment within the time normally

necessary for obtaining it at home. The issue in Wattswas

whether the refusal of the relevant authorisation by the

and the Department of Health was supported by the exception

to Article . In other words, was it an objectively justifiable

and proportionate restriction on Mrs Wattss Article (ex

) rights?

In the terms of the relevant jurisprudence, the Court

of Appeal had to decide whether there would be undue delay

in treating Mrs Watts if she were not enabled to undergo the

operation in France (Hervey & McHale, : ). The

Secretary of State contended that the treatment-specific

waiting-list times prescribed for s by the Department of

Health should be taken into account in this decision. It argued

that objective justification for a restriction of this scope was

provided by the need for financial stability in publichealthcare systems. While recognising that this was indeed

the broad justification for the authorisation requirement

contained in Article , the Court of Appeal held that national

waiting lists could play no role in determining the question

of undue delay. The had established, most recently in

the case of Inizan, that the time normally necessary for

obtaining treatment is solely a matter of clinical judgement.

The extent of the patients disability, their pain and likely

prognosis were the coordinates of this judgement, exclusiveof the detailed economic considerations embodied in waiting

lists.

Lord Justice May thus followed the logic of the to its

conclusion, namely that whenever a patients doctors judged

them to be in need of treatment sooner than the waiting

time prescribed by the Department of Health, that patient

should be entitled to jump the queue by travelling to another

member state with the financial support of her local . He

was plainly disturbed by the prospects for the National HealthService that were opened up by this entitlement. In part-

icular, he was sympathetic to the argument that the effect of



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Community law here would be to disrupt budgets and

planning and undermine any system of orderly waiting lists

[Furthermore] if the were required to pay the costs

of some of its patients having treatment abroad at a time

earlier than they would receive it in the United Kingdom

this would require additional resources (Watts, para. ).

Since waiting lists were a product of scarce resources,

this extra funding could only be obtained if those who did

not have treatment abroad received their treatment at a later

time than they otherwise would or if the ceased to provide

some treatments that it currently does provide (Watts, para.

). His decision to refer to thea set of issues that had

been largely settled in earlier cases testifies to his concern

for clarity in an area of constitutional significance for the

. If, as the has held, Community law does not detract

from the power of member states to organise their own social

security systems, can it be true that the edifice constructed

on Article (ex ) operates to dictate the national health

service budget of the individual member states? (Watts, para.

). As noted above, on May the settled the

matter in favour of Mrs Watts. It confirmed its reasoning

in Inizan, recognising no difference for these purposes

between the state-organised and the various insurance-

based systems of mainland Europe.

Conclusion

This essay has examined some of the implications of

globalisation for the content of English medical law. As a

field of academic and popular discourse, as well as of practical

decision-making, the latter was constituted by a set of anti-

market exclusions and prohibitions. An ethos of altruism

pervaded the self-understanding of the medical professionand its representation in law. With healthcare free at the

point of use, the image of the doctor as a selfless servant of

the greater good was realised in daily practice. Market tran-

sactions at the margins of standard medical care were also

prohibited or strictly limited. Altruistic medicine was at the

same time patriarchal medicine. Legal exclusion of the

market from British healthcare was reinforced by a notable

limitation of patients rights. This paper has rested on the

central assumption that this dispensation in medicine andlaw was intimately connected to the distinctive political and

economic conjuncture of the post-war decades.



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20/25


private insurers and providers. Effectively, the wealthiest per cent of the population was freed of social

responsibilities with regards to health, and allowed topurchased the kind of high-tech care discussed here

(Collins & Lear, ).

. Thus, in the mid-s, the University of Pittsburghproposed to trade its transplantation expertise for a supplyof surplus livers from hospitals in Sa Paulo, Brazil (Scheper-

Hughes, ). And Harvard Medical School has joinedwith the World Bank and an Indian pharmaceutical company

to train heart specialists at a private hospital in the state ofMaharashtra (Sexton, ).

. Thus, s. of the Tanganyika Medical Practitioners and

Dentists Ordinance, passed by the British colonial

government in and still in force today, states that native

medicine may only be practiced upon members of atraditional healers own ethnic group. By contrast, Westernmedicine, regulation of which is the chief object of the

Ordinance, is implicitly unrestricted in this respect. Thedefinition of the particular and its subordination to a

universal is achieved through law, and in the context of acolonial project that is itself one of subordination and

peripheralisation. The interactions of traditional healers,local regulators and multinational bio-prospectors in

modern Tanzania are thus decisively shaped by a distinctive

history of globalisation.. At this stage in his account, Santos relies on the work of

Immanuel Wallerstein ().

. Respective examples might be Taylorised factorydiscipline; the customer-service ethos of telephone-

banking facilities; the constitutionally-anchoredindependence of central banks; and the individual titling of

rural landholdings. .The agreement of two registered medical practitioners is

required before any termination can be lawful: s.1(1)

Abortion Act. Sheldon (1997) gives a critical overview ofthe Acts implementation.

. Respectively, s.Human Organ Transplantation Act ();

s. Surrogacy Arrangements Act ().

. s.() Human Tissue Act .

. s.() Human Tissue Act .. The Act itself has been repealed: sch. Human Tissue

Act .. For example, in Indiaa leading destination for organ

touristssee s.Transplantation of Human Organs Act

.. See the papers delivered at the Medical Ethics Tomorrow

conference, held in London, December . Available



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4 Law, Globalisation and the NHS