Syrett Keith
Professor of health law and policy in the Centre for Health, Law and Society, School of Law, University of Bristol, Bristol, UK.
Health Hum Rights. 2018 Jun;20(1):121-132.
Judicial readings of the right to health-and related rights-frequently possess something of an "all or nothing" quality, exhibiting either straightforward deference to allocative choices or conceptualizing the right as absolute, with consequent disruption to health systems, as witnessed in Latin America. This article seeks to identify pathways through which a normatively intermediate approach might be developed that would accord weight to rights claims without overlooking the scarcity of health resources. It is argued that such development is most likely both to accompany and support a role for courts as institutions functioning within a society that is characterized by a deliberative conception of democracy.
对健康权及相关权利的司法解读往往具有某种“非此即彼”的性质，要么直接尊重资源分配选择，要么将权利概念化为绝对权利，结果导致卫生系统受到干扰，拉丁美洲就出现过这种情况。本文旨在探寻可能形成一种规范的中间立场的途径，这种立场既能重视权利主张，又不会忽视卫生资源的稀缺性。有人认为，这种发展很可能既伴随法院作为在以审议式民主概念为特征的社会中运作的机构所发挥的作用，又对其起到支持作用。
