Risk Governance and Deliberative Democracy in Health Care

I argue in this Article that the concept of risk-centered governance is the best theoretical paradigm for understanding health law and the health care system. Over the past twenty years, an insurance-inflected discourse has migrated from the purely financial side of the health system into the heart...

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Veröffentlicht in:The Georgetown law journal 2008-11, Vol.97 (1), p.1
1. Verfasser: Hunter, Nan D
Format: Artikel
Sprache:eng
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Zusammenfassung:I argue in this Article that the concept of risk-centered governance is the best theoretical paradigm for understanding health law and the health care system. Over the past twenty years, an insurance-inflected discourse has migrated from the purely financial side of the health system into the heart of traditional medicine--the doctor-patient relationship. Rather than focus on doctrinal strands, I argue that scholars should analyze the law of health care as a set of governance practices organized around managing and allocating financial, as well as clinical, risk. Over the same period, the body of law that structures most private group health insurance--ERISA--has effectively delegated control of risk pooling and resource allocation to the employers that sponsor group plans. Drawing on a history of ERISA that has not been explored in legal scholarship, I demonstrate how the private welfare state of workplace-based health insurance has evolved into the creation of what amounts to corporate sovereignty in controlling access to health coverage. The discourse of managing risk bonds these two components of health law and the health care system: patient care and access to coverage. From a normative perspective, the greatest problem is a democracy deficit. I propose recognizing the function and power of health insurance risk pools by openly politicizing them as more democratic entities. Treating insurance risk pools as potential mechanisms of governance, rather than merely as actuarial units, would illuminate a wealth of questions with deep political implications: who gets included and excluded in the pooling process, how allocation decisions are made, and whether there are systems of accountability and checks and balances sufficient to produce a risk allocation system that is equitable, as well as efficient and flexible. The Article builds on the egalitarian potential of social insurance as a technology of governance, and argues for filling a gap that exists not only in the current system, but also in all proposals for reform. [PUBLICATION ABSTRACT]
ISSN:0016-8092