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81Law, globalisation and the NHS

Law, globalisation and theNHSJohn A. Harrington

The regulation of medical work in the ukukukukuk has beenshaped by the post-war settlement, which lead to thecreation of the National Health Service in 19481948194819481948. Theremoval of clinical care from the market wassupported over the following decades by prohibitionsof the sale of human organs and gametes. Thatsettlement is now being dismantled, with theincreasing privatisation of nhsnhsnhsnhsnhs facilities. The recomm-odification of medicine in Britain is achieved as partof broader patterns of neoliberal globalisation. Cross-border markets in health services are realized in lawthrough international (e.g. the General Agreement onTrade in Services) and regional trade law (e.g.European Community law).

Introduction

The globalisation of healthcare provision is having aprofound effect on the British National HealthService (nhs). Founded as a state-run, taxpayer-

funded service in 1948, it has endured in this form throughtwo-and-a-half decades of post-Keynesian restructuring. Itis only under the Labour government since 1997 that thebasic form of the nhs has begun to change (Pollock, 2004).The increasing takeover of service provision by corporateinterests 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, 2002).Current British ‘reforms’ both draw on and contribute to a

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broader global trend toward the marketisation of healthcare,and a fuller integration of medical work into the circuits ofcapital (Whitfield, 2001). It could be argued that what wasimposed as structural adjustment on sub-Saharan Africa isbeing rolled out voluntarily by British state managers.

My focus in this paper is on the implications of global-isation for English medical law.1 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 thisprocess in two areas of medical practice: internationaltrafficking in organs, and so-called health tourism withinthe European Union. In conclusion, I discuss the genericstresses imposed upon the law by the uneven develop-mentsin the two areas considered. It will be seen that the tensionbetween relatively recent global economic liberalisation andthe more traditional welfarist paternalism of the nation stateis replicated in the changing case-loads and sometimesincoherent doctrines of medical law.

What is globalisation in the context of healthcare?

In response to the enthusiastic evocation of globalisation bypoliticians and scholars during the 1990s (Giddens, 1998),more recently commentators have questioned the extent anddepth of the phenomenon (Henwood, 2003: 148). They havealso doubted the novelty of globalisation, arguing that it ismerely a return to pre-First World War patterns of trade(Petras, 1999; Sutcliffe, 2002: 52–4). The demise of the nationstate, predicted by some, is also unlikely. The state and itslaw are vital to globalisation, guaranteeing a compliant labourforce and a benign fiscal regime for inward investors, aswell as opening up new opportunities for profit through theprivatisation of public assets and the protection of intellectualproperty (Wood, 2002).

Caution is well advised, therefore, in charting the effectof globalisation on healthcare provision, and on medicallaw in particular. Nonetheless, a number of contemporarytrends can be accommodated within the loose, descriptiveconcept of globalisation: the transnationalisation of product-ion; the growing free movement of consumers, if not ofworkers; the commodification of the human body and offormerly state-funded healthcare; persisting inequalitybetween core and periphery in the world economy; inade-quate regulation due to the predominance of economic law


over other branches at international level. Given that thecontemporary era is pre-eminently one of capitalist global-isation, I adopt a consistent perspective on these phenomenarooted in theories of political economy.

Production

The decomposition of formerly national systems ofproduction and their rearticulation across internationalboundaries has marked the current phase of globalisation.Unfettered and mobile capital seeks out cheap and flexiblelabour around the globe. This trend has been most markedin manufacturing, but it is increasingly true of serviceprovision too. Not only is customer-service and back-officework sent offshore, but Northern capital also seeks increasedreturns from providing services to locals in the targetcountry, whether that be the broad population of thedeveloped nations or the new middle classes of the developingworld (unctad, 2002). For example, the provision of health-care, from hospitals to diagnostic teams, comes increasinglyfrom external sources. This investment is facilitated by theremoval of barriers to the free movement of capital into andout of states, and by the privatisation of public assets. TheGeneral Agreement on Trade in Services (gats) of the WorldTrade Organisation (wto) commits states to allowing un-restricted inward investment and the full repatriation ofprofits by non-national service providers.2 The transnation-alisation of healthcare provision benefits still more directlyfrom the work of the World Bank, which actively invests inprivate medical businesses in countries such as India andBrazil.3

Consumption

Capital invested requires a return. That is only possible wherethere is a functioning market with effective demand forprivate medical services. Under the prevailing neoliberalorder, when state funders will not cover privately providedtreatment, patients should be left with enough income aftertaxation to pay for it themselves. This is increasingly thecase in most nation states: fiscal constraints, driven by fearof disinvestment, have the dual effect of degrading publicservices and freeing up private resources (Leys, 2001: 81).The erosion of public services is furthered by rhetoric


disparaging state provision as irredeemably inefficient andinadequate. Private providers and senior professionals striveto make a plausible case for privatisation in the name ofchoice and quality.

Consumption of healthcare, just like its provision, is nolonger confined by national borders. Again, gats is set toaid this process. It requires states not only to allow foreignservice providers in, but also that they permit their ownnationals to travel in order to access services abroad, and toexport sufficient funds to pay for this.4 As will be seen laterin this paper, these developments have been anticipated ineu law. Where the service cannot come to the consumer, theconsumer 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 anddomestic law, enjoyed by the healthcare industry and itswealthy clients (Adelman & Espiritu, 1993).

Thus, networks of both production and consumption areestablished. A global market is being constituted as trans-national service providers attract nomadic patient–consumers. Economic globalisation, driven by the relentlessquest for profit of corporations in the developed countriesand enforced by international economic law, inevitably actsto decompose the bounded and solidaristic basis of nationalhealthcare systems (Whitfield, 2001). In the uk, for example,the nhs’s monopoly of provision has been broken up. Foreignas well as domestic companies now contract with the uk

government for the provision of services (Pollock, 2003). Indeveloping countries, an expanded market for private healthinsurance and cherry-picking by the relevant companiesdraws the upper and middle classes away from the statesystem, decreasing the national pool of patients while thepoor and lower middle classes are thrown upon an under-funded rump system of public healthcare.5

Commodification and the ‘new medicine’

Another dynamic feature of the contemporary scene is thedevelopment of what has been called the ‘new medicine’:organ transplantation, assisted reproduction and humangenetics (Richardson & Turner, 2002). Body parts (e.g.kidneys) and particles (e.g. stem cells) are the basic materialof these therapies. Demand for them has opened up newopportunities for ‘primitive accumulation’ or ‘accumulation


by dispossession’. The latter term originally described theoften violent phase of expropriation preceding more orderlyregimes of capitalist accumulation. Thus, during the indust-rial revolution in Britain, peasants were dislodged from theirsmallholdings by ‘reforming’ landowners, and compelled byeconomic necessity to seek waged work in the new factories(Marx, 1976: 873).

However, this was not a one-off event. Primitive accum-ulation has remained a feature of capitalism up to thepresent globalised era (Harvey, 2003). As Rosa Luxemburgput it, ‘Historically, the accumulation of capital is a kindof metabolism between capitalist economy and those pre-capitalist methods of production without which it cannotgo on and which in this light it corrodes and assimilates’(2003: 397). Seeking an outlet for investment, a market forits products and a source of labour and raw material,capitalism has always been forced beyond its own geographicand social limits. Imperial conquest has been interpretedin this way (Arendt, 1968). In the current era, capitalismcontinues to cross the frontiers separating it from non-market realms such as the welfare state and its Third Worldcounterpart, the developmental state. It also penetrates thetaboos sur-rounding the human body, commodifying organs,human tissue and genetic material (Leibowitz-Dori, 1997).These are acquired for money as inputs in the productionof health-care. Their ‘processing’ (e.g. through trans-plantation) creates further value, which is realised in theform of fees earned for the service.6

The introduction of means of transport, such as railways,was vital to the spread of the commodity economy underpre-First World War imperialism (Hill, 1976). Similarly, theextension of advanced Western medical technology isessential to the accumulation of capital in the healthcaresector. Standard techniques and internationally validprotocols make for a uniform medicine practicable acrossthe globe (Mol & Law, 1994), enabling its primary produceto be extracted and to circulate in the global market. AsBritain’s nineteenth-century Opium Wars show, the intro-duction of the commodity economy has often been far frompeaceful. Similarly, the marketisation of human organs andthe depletion of public healthcare provision has not goneuncontested. In particular, resistance to structural adjustmentand privatisation programmes has been sporadic, but oftenintense (Bond, 2003).


Globalised localism — localised globalism

Boaventura de Sousa Santos offers a further, useful per-spective on globalisation, which may be adapted to healthcare(Santos, 2002: 182). He argues that there is no such thing asa pure ‘globalism’. What we encounter are in fact ‘globalisedlocalisms’: the practices of a specific state or region thathave extended across the globe, gaining the power to definetheir rivals as ‘merely local’. The asymmetric relationshipbetween scientific, Western medicine and the traditionaltherapies of African peoples is a good example of this.7

Globalised localisms find their counterparts in ‘localisedglobalisms’. Just as the former cannot be understood asabstractly universal, so the latter do not correspond to themerely particular. Localised globalism connotes instead thespecific impact of transnational practices and imperativeson local conditions. The enforcement in African jurisdictions,at a time of crisis in public health, of patents held byEuropean pharmaceutical companies provides an instanceof this (Nagan, 2002).

The pattern that Santos describes is significantlyconditioned by the historical inequalities of the worldsystem.8 The different trajectories to modernity of differentcountries determine their relative positions in this system.The former metropolitan powers of Europe, as well as thesettler nations of North America and Australasia, form thecore; the former colonies of Africa, South Asia and LatinAmerica, the periphery. It is argued that East Asian nations,with their commonly autarkic route to modernity, are movingfrom the former towards the latter. Santos points out thatcountries at the core specialise in producing globalisedlocalisms, while those at the periphery are commonly forcedto bear the costs of localised globalisms (Santos, 2002: 179).Since ours is a capitalist globalisation, this polarity can berepresented as a hierarchical division of labour on a worldscale. The specific practices of capitalist industrialism, serviceprovision, financial governance and legal ordering9 areexported from the strong states as globalisms, to be localisedin the weaker states, reshaping their material and normativeprospects.

Latterly, the achievements of the core nations have beenmediated through institutions of global governance such asthe World Bank, the imf and the wto. These compel develop-ing countries to ‘reform’ (i.e. privatise) their public sectors,


and to implement the ‘rule of law’ within their territories.Yet such programmes have their origins in the practices andreforms of specific Western nations. Indeed, their implemen-tation in the developing world boosts invisible exportearnings by developed-country academics, ngos, civilservants and management consultants (Sassen, 1991; Wallace,2003). It is, of course, incorrect to view any developingcountry as the undifferentiated recipient of external diktats.A substantial section of the ruling group will be active, actingas the local steward of globalisation (Burnham, 2002). Acadre of bureaucrats will identify with the reform project,and ensure its legislative and administrative implementation.Hosts of ngos take over the state’s welfare functions, andanswer directly to foreign agencies for the expenditure ofgrant monies (Albo, 2003). Localised globalisms take effect,therefore, not simply in material terms. They also reshapesocial and political structures within developing countries.

The following—drawn from Harrington (1998)—mayserve as an example. British health economists, workingwithin the paradigm of that discipline in the late-1980s,develop models of healthcare funding. In particular, theyrecommend the imposition of ‘user fees’ on patients in orderto discourage the unnecessary use of facilities (Lawson,1994). This is the ‘localism’. It achieves the status of‘globalism’ through the powerful agency of the World Bank.The Bank adopts ‘user fees’ as part of its strategy forpromoting efficiency in public health services (World Bank,2003: 71). It imposes the policy on developing countries,such as Tanzania, as a condition of further loans (Kiwara,1994). 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 necessary use of health facilities, and sufferingan increase in conditions such as anaemia, seemingly as aresult (Hussein, 1994).

Uneven normative convergence

Chase-Dunn has argued that the capitalist world economyis integrated more by political–military power and marketinterdependence than by normative consensus (Chase-Dunn,1991: 88). Of course, arguments are made for both new and


revived normative universalisms, either functionally, inresponse to economic globalisation, or on a priori grounds(Aginam, 2000). But their realisation, thus far, has been onlypartial in geographic and sectoral terms (Santos, 2002: 171).This is of especial significance in the area of medical law.Legal commentators routinely use the canon of Western ethicsas a meta-discourse for the articulation and resolution ofregulatory problems (Singer, 2004). Yet the historicallycontingent and geographically specific pedigrees ofKantianism, utilitarianism and so on is obvious; as is thelack of consensus on a range of substantive issues likeabortion or the right to healthcare. In fact, it is argued thatfar from being mere ‘survivals’, normative and culturalparticularisms are adaptive responses to economicglobalisation (Amin, 1998). As states withdraw from prod-uctive and welfare activities that ameliorate the effects ofthe free market, legitimacy is renewed via ethnic, national-istic and religious mobilisations (Betz, 2002). These can, onoccasion, accentuate differences in the legal treatment ofethically sensitive medical issues. However, the dialecticalprogress of capitalist globalisation means that theselegitimation strategies are undermined at the same time asthey are promoted by commodification and the decline ofpre-capitalist social structures. We shall see that preciselythis has been true of the commodification of organ sales inthe developing world.

Norms are not absent from capitalist globalisation. Nomatter that the chain of production and consumption nowcrosses multiple borders, value is still created and realisedwithin the territorially defined jurisdictions of nation states.Orderly accumulation, thus, requires the stability providedby a dependable and suitably oriented national system ofcontract, property, labour and commercial law. The globalmoment of this legal regime is found in the normative outputof the wto, the World Bank and the International MonetaryFund (imf), as well as in that of regional bodies such as theEuropean Union (eu). Treaty obligations (e.g. gats) andloan conditionalities, backed up by formal and informalsanctions, compel nation states to develop and maintainessentially similar pro-market legal regimes (Koivusalo &Ollila, 1997). Broad convergence on privatised healthcareand the global protection of pharmaceutical company rentsare the fruit of national legislation mandated by internationaleconomic law (Shaffer & Brenner, 2004). We find normative


consensus to be most advanced where it most intimatelyregulates and protects the globalised system of accumulation.Legal harmonisation or unification proves to be moredifficult to achieve in non-economic sectors, or where theissue cannot be reformulated as a matter of economic liberties(Fidler, 2004).

English medical law and the market

In the period from 1945 until the early 1970s, economicstruggles within nation states concerned the way in whichthe social product would be distributed between labour andcapital (Harvey, 2005). Their growing intensity in the 1970sreflected the declining profitability of companies in theWestern countries. These struggles were commonly centredon the workplace, but they also found a limited outlet inlitigation attempting to compel governments to maintainand expand welfare provision (Offe, 1982). The general crisisof the 1970s was resolved through the liberalisation oftransnational capital flows in the manner discussed above.With labour decisively weakened by job insecurity and statecompulsion, contemporary social struggles are now morelikely 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 capitalistglobalisation are increasingly felt in the courts. Disputesabout intellectual property in life-saving drugs, attempts tohold private healthcare providers to account, and strugglesover the commodification of traditional knowledge, havemarked out the new medical law jurisprudence (Koivusalo,2003).

These changes can also be tracked in the case-law of theEnglish courts. Since the foundation of the National HealthService in 1948, English healthcare law has been shaped by anumber of key assumptions regarding the nature and aims ofmedical work in a state-funded and publicly delivered systems(Harrington, 2002, 2004). These effectively created a zone ofprofessional autonomy within which the medical professionwas allowed to deliver healthcare free from the compulsionsof the market and the demands of patients. Judges routinelydeferred to clinical judgement in decisions on medicalmalpractice and in adjudicating the healthcare entitlementsof patients denied access to treatment (Brazier, 2003). The


standard of information disclosure was determined by medicalexpert opinion, not by the patient’s right to self-determination(Jones, 1999). Legislation permitting abortion was passed in1967, but access to termination would ultimately depend onclinical judgment, and not on women’s rights.10 There was afurther presumption, embodied in a range of legislation, thatthe human body should not be commodified. Organ traffickingand commercial surrogacy were prohibited.11 In judicialrhetoric as well as in statute law, doctors were thus valorisedas the near-sovereign custodians of a precious and scarcenational resource. This image was informed by an inheritedVictorian prejudice in favour of the doctor as gentlemanpractitioner, and a faith in the medical profession as the agentof social progress (Lawrence, 1994).

The effect of this ideological formation in law was to in-sulate doctors from external scrutiny. It also served to concealbehind a veil of clinical discretion the increasingly acuterationing implemented under neoliberalism from the mid-1970s owards. Challenges to the post-war orientation ofmedical law have taken two main forms (Boltanski &Chiapello, 1999). The first kind, resting on a ‘social critique’,are those that have sought the redistribution of healthcareor general resources towards favoured medical causes. Whilelegal challenges are necessarily individual, they summate toa demand for increased funding of the National HealthService. As has been noted, such challenges are generallyrejected on grounds of justiciability (Whitty, 1999). Thescarcity of healthcare resources is naturalised—a matter offate that no judge could set right. The second set of challenges,resting on an ‘artistic critique’, has sought the emancipationof patients from the patriarchal dominance of medicalpractitioners (Kennedy, 1980). The infusion of human-rightsdiscourse and bioethics into medico-legal practice testifiesto the success of this critique. These challenges have alsore-valorised market models of healthcare, even where theywere originally inspired by the anticapitalist movements ofthe late-1960s (Doyal, 1979). Thus, the radical demand forpatient autonomy can be seen as a justification for increasingpatient choice and the adoption of market systems in thedelivery of healthcare (Jacob, 1988). In the following twosections, we will examine the effects of these tendencies—are-commodification of medical practice, with the patient roletransformed from passive recipient to active, mobileconsumer.


International organ traffiffiffiffifficking and English law

Under the uk Human Tissue Act 2004, a punishment of up tothree years’ imprisonment may be imposed on persons givingor receiving rewards for the supply of organs, seeking to findothers willing to supply organs, or managing a companyinvolved in the negotiation or initiation of organ sales.12 Thepublication and distribution of advertisements in thisconnection are punishable by up to fifty-one weeks’imprisonment.13 To this extent, this new Act continues theexplicit ban on organ trading first introduced into Britishlaw by the Human Organ Transplantation Act 1989.14 Thelatter was passed in response to a scandal involving theextraction of organs from Turkish men for the benefit of Britishpatients. The 2004 Act, thus, reinforces the general orientationof English medical law towards non-market values: in thiscase, the taboo against the commodification of the humanbody. Restrictions on payment for surrogacy arrangements,blood donation and the supply of human gametes are consistentwith this. The ethic of altruism founded on ‘gift relationships’remains at the ideological heart of healthcare law in Britain(Titmuss, 1970). Similar measures have been enacted by mostother developed, and indeed, many less-developed nations.15

At a global level, the United Nations Educational, Scientificand Cultural Organisation (unesco, 1989), the World HealthOrganisation (1991) and the World Medical Association (2000)are all opposed to the creation of markets in organs.

Notwithstanding these measures, organ traffickingcontinues to grow. An exact quantification is, of course,impossible. Nonetheless, the anecdotal evidence for itsgrowth is strong (Scheper-Hughes, 2000). The extensivedevelopment of illegal organ markets in, for example, Indiais well documented (Goyal, 2002). In the uk, a number ofdoctors have been disciplined by the General MedicalCouncil for performing ‘broker’ functions, creating marketsfor the Indian transplantation business (bbc, 2002). A numberof possible reasons for this growth, linked to the precedingdiscussion of globalisation, can be suggested:

1) The globalisation of healthcare production combinedwith the falling costs of transport. Western patients can travelrelatively cheaply to countries such as Turkey or thePhilippines. There, they can stay in hospitals of a Westernstandard and receive treatment at least as good as that intheir home countries (Reddy, 1993).


2) Effective demand on the part of wealthy patients ismet by supply from people who are sufficiently desperate toundergo the risks of operation and the removal of organs.Market impediments are easily circumvented. In fact, legalprohibitions themselves become the objects of a parallelmarket in bribes and favours.

3) Since the 1980s, immunosuppressant drugs havegreatly increased the success rate for transplantation. Usablebody parts are now available for circulation in the inter-national medical market.

These developments have begun to erode the taboo againstcommodification at the national level, in Britain andelsewhere. While the Human Tissue Act 2004 has maintainedthe existing prohibition, there are signs elsewhere of changingattitudes. The British Medical Association, for example,hosted a widely reported debate on the matter in 2003—anevent that would have been unthinkable just ten years earlier.16

Bioethicists and other moral philosophers address thejustifiability of organ trading in growing numbers (Veatch,2003; Wilkinson, 2003), and the great majority supports somekind of regulated market. In their arguments, technicalfeasibility, unmet demand and untapped supply all coalesceinto a moral defence of organ sales. Scarcity is taken to be anatural phenomenon rather than a product of consciouschoices to invest in transplantation facilities and, on a globalscale at least, to privilege the lives of a wealthy minority(Lock, 2002: 1406). Proponents of markets dismiss taboosagainst commodification as indefensible in liberal andpluralistic societies (Duxbury, 1996). They concentrateinstead on the possibility of impaired consent on the part ofthe organ seller. They find it ‘hard to see how an offer ofmoney per se could constitute illegitimate pressure’ in anorgan transaction (Herring, 2002). This is, of course, unarg-uable: even in cases of economic necessity, it can be arguedthat the consent of the seller was ‘real’.

However, there are two significant and related lacunae inpro-market arguments. First, global issues are usuallybracketed in these discussions. Proposed markets are limitedto a single state or a developed region such as the eu (Erin& Harris, 1994). Conditions in developing countries are tooextreme to permit any direct extension of the pro-marketargument. In spite of the growing significance of transnationalorgan tourism, ethicists are thus often self-restricted to thenational horizon. Second, writers in this vein foreground


agency over structural concerns. The latter are addressed, ifat all, in fatalistic terms. For example, Pattinson makes thevaluable but regrettably underdeveloped point that

[exploitation and inequality of bargaining power] are notrestricted to commercial organ dealings. Many labourmarkets, especially in the developing world, pay workerspaltry sums of money … It is difficult to see why if theseconcerns justify prohibiting organ dealings, rather thanthe need for regulation and supportive structures, they donot justify the prohibition of any activity paying low wagesand generating large sums of money. (Pattinson, 2003)

Regulation can indeed improve the likelihood and thequality of consent obtained from organ sellers. But it is itselfdependent on the political and economic context in whichit must operate. This context is, as has been discussed,decisively shaped by international relations that reproduceeconomic and political inequalities between different statesand within states (Scheper-Hughes, 2000). The ethics oforgan markets inevitably implicate questions of social andglobal justice that are not readily fitted within the analyticalgrid 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 withother forms of commodity production and trade can beexpected here too:

1) The continued direction of resources toward intensiveproduction (here, hospital medicine), which benefits consumersin the North, and away from interventions aimed at the majorityof people in the South (here, basic public health).

2) The increased threat to the livelihood and indeed thelives of poor people posed by their participation incommodity production. Where a peasant favours cash cropsover subsistence, she is more exposed to a falling market.Where a poor man sells a kidney, his capacity to labour andearn is permanently vulnerable to further illness.17

3) The replication and exaggeration of divisions internalto the particular state or region. Class, gender and ethnicinequalities are commonly reinforced when articulated withinthe imperatives of the global economy. At the margins ofthe global economy, a ‘transplantation underclass’ is alreadyin place. Depending on the particular region, it is composed


of poor women, displaced peasants, the homeless, prisonersand the mentally ill (Scheper-Hughes, 2003).

4) At present, supply often meets demand for organs asa result of economic coercion, fraud or physical force. Yetthe institutions that might provide for fairness in the marketare often dysfunctional, bankrupt or corrupt. The hollowingout of the state under structural adjustment programmes,and the correlative rise of competitive markets in formerlypublic services has diminished local regulatory capacity.

While systems for extracting and marketing organs havebeen successfully, if often illicitly reconstituted at globallevel, there has been no matching ethical and culturalconvergence. The strength of taboos relating to organremoval still varies considerably between countries andregions—the taboo is strong in Japan, but less so in India,for example (Lock, 2002: 1412). Enforcement capacitiesdiffer, too. Furthermore, the national consensus against com-modification has come apart under the pressure of theactually existing market. Legal bans on trafficking, such asthat in Britain, are attacked in principle and contradicted inpractice. Despairing of their ability to protect the vulnerablethrough prohibitions, commentators prefer to settle for alesser evil within the unchallenged horizons of globalinequality and structural exploitation (Friedlaender, 2002).Arguing at what Santos has called the ‘sub-paradigmaticlevel’, they urge reform and adaptation rather than contestand transformation (Santos, 2002: 173).

Health tourism in Europe

Health tourism for more routine procedures is also increasingwithin the developed world. We have already noted that thisposes threats to the largely solidaristic basis of nationalhealthcare systems, whether insurance-based as in continentalEurope, or state-funded and run as in Britain’s nhs. Mobilepatients draw off resources from the national system,restricting the ability of local providers to maintain andexpand capacity. Though the cost of air travel and medicalprocedures across the globe is falling, private health tourismremains out of reach for most citizens, even in the developedworld. Increasing effective demand will only be possible ifstate health insurers and providers are willing to fund cross-border treatment. The wto’s General Agreement on Tradein Services has already been mentioned as an impulse to the


creation of a global healthcare market in this way. At theregional level, eu law has in recent years been interpreted tofacilitate the mobility of patients between member states(van der Mei, 2003). The impact of intra-European free-trade rules on Britain’s nhs has recently been made clear inthe 2004 case of Secretary of State for Health v R. (on theapplication of Watts).18

Mrs Yvonne Watts had been told to wait twelve monthsfor a total hip-replacement operation by her local primarycare trust (pct). Since this was within the Department ofHealth’s target waiting time of fifteen months, the pct refusedto fund a trip to Lille in France so that she could have theoperation performed there at an earlier date. She proceededat her own expense. Seeking judicial review of the pct’srefusal,19 Mrs Watts invoked her European Community lawright to travel to avail of services provided in another memberstate. In implementation of this right, she claimed, the pct

was obliged to reimburse her costs. At first instance, MrJustice Munby held in her favour on the point of Communitylaw. On the facts, however, it appeared that the pct hadmade a revised offer of treatment two months before thescheduled date of the Lille operation, which Mrs Watts couldreasonably 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 heldthat the decision on the case should be suspended, and areference made to the European Court of Justice (ecj) forclarification of the law. The ecj recently ruled in favour ofMrs Watts. But it is worth considering the reasoning of theCourt of Appeal, and its reflections on the health-policyimplications of the case. The situation of the English courtis seen to be a poignant one, on the brink of a decisiverearrangement of the value hierarchy in this area of medicallaw (Montgomery, 2005). The practical implications of thisreordering for the form and extent of public-health provisionin they uk are likely to be profound.

Article 49 of the European Community Treaty prohibitsrestrictions on the freedom to provide services to nationalsof other member states. The ecj has erected a substantialedifice of interpretation on Article 49, to the extent thatappeals to its literal meaning ‘may not be regarded as per-suasive’ (Watts, para. 31). Thus, for example, the right of aconsumer to travel to avail of services has been guaranteed


as a corollary of Article 49.20 This effective right is furtherexpanded by Article 22 of Council Regulation 1408/71, whichprovides that a recipient of social services in one memberstate may avail of ‘treatment appropriate to his condition’ inanother member state at the expense of the relevant homeinstitution. The ecj has defined ‘home institution’ to includestate-backed contributory sickness funds (Davies, 2004).Funding may be refused by the home institution unless thepatient cannot be offered treatment ‘within the time normallynecessary for obtaining’ it at home.21 The issue in Watts waswhether the refusal of the relevant authorisation by the pct

and the Department of Health was supported by the exceptionto Article 22. In other words, was it an objectively justifiableand proportionate restriction on Mrs Watts’s Article 49 (ex59) rights?

In the terms of the relevant ecj jurisprudence, the Courtof Appeal had to decide whether there would be ‘undue delay’in treating Mrs Watts if she were not enabled to undergo theoperation in France (Hervey & McHale, 2004: 112). TheSecretary of State contended that the treatment-specificwaiting-list times prescribed for pcts by the Department ofHealth should be taken into account in this decision. It arguedthat objective justification for a restriction of this scope wasprovided by the need for financial stability in publichealthcare systems. While recognising that this was indeedthe broad justification for the authorisation requirementcontained in Article 22, the Court of Appeal held that nationalwaiting lists could play no role in determining the questionof ‘undue delay’. The ecj had established, most recently inthe case of Inizan,22 that the ‘time normally necessary’ forobtaining treatment is solely a matter of clinical judgement.The extent of the patient’s disability, their pain and likelyprognosis were the coordinates of this judgement, exclusiveof the detailed economic considerations embodied in waitinglists.

Lord Justice May thus followed the logic of the ecj to itsconclusion, namely that whenever a patient’s doctors judgedthem to be in need of treatment sooner than the waitingtime prescribed by the Department of Health, that patientshould be entitled to ‘jump the queue’ by travelling to anothermember state with the financial support of her local pct. Hewas 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


Community law here would be to ‘disrupt nhs budgets andplanning and undermine any system of orderly waiting lists… [Furthermore] if the nhs were required to pay the costsof some of its patients having treatment abroad at a timeearlier than they would receive it in the United Kingdomthis would require additional resources’ (Watts, para. 105).

Since waiting lists were a product of scarce resources,this extra funding could only be obtained if ‘those who didnot have treatment abroad received their treatment at a latertime than they otherwise would or if the nhs ceased to providesome treatments that it currently does provide’ (Watts, para.105). His decision to refer to the ecj a set of issues that hadbeen largely settled in earlier cases testifies to his concernfor clarity in an area of constitutional significance for thenhs. If, as the ecj has held, ‘Community law does not detractfrom the power of member states to organise their own socialsecurity systems’,23 can it be true that the edifice constructedon Article 49 (ex 59) operates ‘to dictate the national healthservice budget of the individual member states?’ (Watts, para.107). As noted above, on 16 May 2006 the ecj settled thematter in favour of Mrs Watts.24 It confirmed its reasoningin Inizan, recognising no difference for these purposesbetween the state-organised nhs and the various insurance-based systems of mainland Europe.

Conclusion

This essay has examined some of the implications ofglobalisation for the content of English medical law. As afield of academic and popular discourse, as well as of practicaldecision-making, the latter was constituted by a set of anti-market exclusions and prohibitions. An ethos of altruismpervaded the self-understanding of the medical professionand its representation in law. With healthcare free at thepoint of use, the image of the doctor as a selfless servant ofthe greater good was realised in daily practice. Market tran-sactions at the margins of standard medical care were alsoprohibited or strictly limited. Altruistic medicine was at thesame time patriarchal medicine. Legal exclusion of themarket from British healthcare was reinforced by a notablelimitation of patients’ rights. This paper has rested on thecentral assumption that this dispensation in medicine andlaw was intimately connected to the distinctive political andeconomic conjuncture of the post-war decades.


If globalisation is defined as a set of profound changes inpolitical economy, then we must accept that the conjuncturethat supported patriarchal, altruistic medicine in Britain hasbeen dissolved. We have attempted to sketch some featuresof the new conjuncture: increasingly marketised healthcare;rights consciousness among patients; cross-borderconsumption of healthcare; and the weakening of solidaristicnational health systems. The leading subjects of the olddispensation were the state, acting on behalf of the masses,and the medical profession. The leading subjects of the newdispensation are commercial healthcare providers and theirpaying customers. If post-war medicine in Britain had someof the features of a feudal society organised by rank, thenthe effect of globalisation has been to bring the bourgeoisrevolution to this discrete sector of social relations.

Notes

* I wish to thank Ambreena Manji for her comments on earlierdrafts.

1. I use English law throughout to refer the common law ofEngland and Wales, as distinct from the civilian law ofScotland. Moreover, since devolution, health policy inScotland (and Wales) now diverges from that of England.References to current health-sector ‘reforms’ in this paperare limited to English developments.

2. Art. xi, gats. The agreement inaugurates successive roundsof negotiations aimed at liberalising different sectors ofservice provision, rather as the General Agreement on Tradeand Tariffs (gatt) did for trade in goods. Banking andfinancial services have already been subject to negotiations,but healthcare has not as yet. Commentators have arguedthat gats will have a profound indirect effect on healthcareprovision, given the many different modes of delivering thatservice (Sexton, 2001). Adlung and Carzaniga (2001) havedisputed this, however.

3. In 1999, for example, the World Bank invested us$8 million ina 270-bed private hospital in Calcutta, owned and run bySingapore-based Parkway Enterprises (Hall, 2001: 9).

4. Articles i.2b and xi.1 gats, respectively (Woodward, 2005).5. This process has been noted of Chile in the period since the

1973 coup. Under General Pinochet’s free-market ‘reforms’,the comprehensive national healthcare system was brokenup into a residual public service and a number of competing


private insurers and providers. Effectively, the wealthiest30 per cent of the population was freed of socialresponsibilities with regards to health, and allowed topurchased the kind of ‘high-tech’ care discussed here(Collins & Lear, 1995).

6. Thus, in the mid-1990s, the University of Pittsburghproposed to trade its transplantation expertise for a supplyof surplus livers from hospitals in Saô Paulo, Brazil (Scheper-Hughes, 2000). And Harvard Medical School has joinedwith the World Bank and an Indian pharmaceutical companyto train heart specialists at a private hospital in the state ofMaharashtra (Sexton, 2001).

7. Thus, s.41 of the Tanganyika Medical Practitioners andDentists Ordinance, passed by the British colonialgovernment in 1948 and still in force today, states that ‘nativemedicine’ may only be practiced upon members of atraditional healer’s own ethnic group. By contrast, Westernmedicine, regulation of which is the chief object of theOrdinance, is implicitly unrestricted in this respect. Thedefinition of the particular and its subordination to auniversal is achieved through law, and in the context of acolonial project that is itself one of subordination andperipheralisation. The interactions of traditional healers,local regulators and multinational bio-prospectors inmodern Tanzania are thus decisively shaped by a distinctivehistory of globalisation.

8. At this stage in his account, Santos relies on the work ofImmanuel Wallerstein (1984).

9. Respective examples might be ‘Taylor ised’ factorydiscipline; the customer-service ‘ethos’ of telephone-banking facilities; the constitutionally-anchoredindependence of central banks; and the individual titling ofrural landholdings.

10. The agreement of two registered medical practitioners isrequired before any termination can be lawful: s.1(1)Abortion Act. Sheldon (1997) gives a critical overview ofthe Act’s implementation.

11. Respectively, s.1 Human Organ Transplantation Act (1989);s.2 Surrogacy Arrangements Act (1985).

12. s.32(1) Human Tissue Act 2004.13. s.32(2) Human Tissue Act 2004.14. The 1989 Act itself has been repealed: sch. 7 Human Tissue

Act 2004.15. For example, in India—a leading destination for ‘organ

tourists’—see s.19 Transplantation of Human Organs Act1994.

16. See the papers delivered at the Medical Ethics Tomorrowconference, held in London, 3 December 2003. Available


online at <http://www.bma.org.uk/>, accessed 14 August2006.

17. Since the supply of organs vastly exceeds demand, it hasbeen predicted that the returns to sellers will be verylow in the long run, with most profits being extracted bybrokers (Kolnsberg, 2003).

18. [2004] ewca Civ. 166. References in the text hereafterare to paragraphs of that decision.

19. R. v Bedford Primary Care Trust, ex parte Watts [2003]ewhc 2228.

20.Luisi and Carbone v Ministero del Tesoro [1984] ecr 377.21. Article 22(1)(c) Regulation 1408/71.22.Inizan v Caisse Primaire d’’Assurance Maladie des Hauts-

de Seine [2003] ecr i-12403.23. Geraets-Smits v Stichtung Ziekenfonds vgz [2001] ecr I-

5473 (at para. 44). In this, the ecj is following Article152.5 ec.

24. R v Bedford Primary Care Trust, ex parte Watts (Case C-372/04).

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