The Oxford Handbook of Comparative Health Law

by Orentlicher, David; Hervey, Tamara K.

• ISBN13: 9780190846756
• ISBN10: 0190846755
• Format: Hardcover
• Copyright: 2021-09-15
• Publisher: Oxford University Press

Summary

The Oxford Handbook of Comparative Health Law addresses some of the most critical issues facing scholars, legislators, and judges today: how to protect against threats to public health that can quickly cross national borders, how to ensure access to affordable health care, and how to regulate the pharmaceutical industry, among many others. When matters of life and death literally hang in the balance, it is especially important for policymakers to get things right, and the making of policy can be greatly enhanced by learning from the successes and failures of approaches taken in other countries. Where there are "common challenges" in law and health, there is much to be gained from experiences elsewhere. Thus, for example, countries that suffered early from the COVID-19 pandemic provided valuable lessons about public health interventions for countries that were hit later. Accordingly, the Handbook considers key health law questions from a comparative perspective.

In health law, common challenges are frequent. In addition to ones already mentioned, there are questions about addressing the social determinants of health (e.g., poverty and pollution), organizing health systems to optimize use of available resources, ensuring that physicians provide care of the highest quality, protecting patient privacy in a data-driven world, and properly balancing patient autonomy with the interest in preserving life when reproductive and end-of-life decisions are made.

This Handbook's wide scope and comparative take on health law are particularly timely. Economic globalization has made it increasingly important for different countries to harmonize their legal rules. Students, practitioners, scholars, and policymakers need to understand how health laws vary across national boundaries and how reforms can ensure a convergence toward an optimal set of legal rules, or ensure that specific legal arrangements are needed in particular contexts. Indeed, comparative analysis has become essential for legal scholars, and The Oxford Handbook of Comparative Health Law is the only resource that provides such an analysis in health law.

Author Biography

Tamara Hervey LLB, PhD, FAcSS, PFHEA, MFPH, studied at Glasgow and Sheffield, and held academic posts at Durham, Manchester, Nottingham, and Sheffield Law Schools, before joining The City Law School in 2021. She is Jean Monnet Professor of EU Law ad hominem.

Hervey researches, teaches, and writes on European Union health law; on comparative health law and policy; on equality law; on interfaces between biosciences and (European) law; on social rights; on legal research methodologies; and on legal pedagogy. She is author of 18 books and over 100 other
publications. One of the first to the field, Hervey has been writing on EU health law since the 1990s. She works with a large network of academics across Europe and in North America.

Hervey serves as Specialist Adviser to the House of Commons Health and Social Care Committee's Brexit Inquiries. She also served the House of Lords EU Home Affairs Sub-Committee Inquiry into Brexit and crossborder healthcare. She has given keynote presentations about EU law, trade, health and
Brexit, to organizations including the Royal Society of Medicine, British Medical Association, Health Services Research UK, and the Scottish Lawyers European Group. She also gave Expert evidence to Joint Oireachtas Committee on Health, Republic of Ireland, on the legal implications of Brexit in the
health sector.

David Orentlicher is the Judge Jack and Lulu Lehman Professor at UNLV William S. Boyd School of Law and director of the UNLV Health Law Program. Widely recognized for his expertise in health law and constitutional law, Dr. O has testified before Congress, had his scholarship cited by the U.S.
Supreme Court, and has served on many national, state, and local commissions. A graduate of Harvard Medical School and Harvard Law School, Dr. O is author of Matters of Life and Death and co-author of Health Care Law and Ethics, now in its 9th edition. He has published numerous articles and essays
on a wide range of topics, including health care reform, physician aid in dying, reproductive decisions, affirmative action, and presidential power, and his work has appeared in leading professional journals, such as the New England Journal of Medicine and the Journal of the American Medical
Association (JAMA), as well as in the New York Times, Time, USA Today, CNN Opinion, the Chicago Tribune, and other major newspapers.

In addition to his academic background, Dr. O brings important hands-on experience. He previously directed the American Medical Association's Division of Medical Ethics, and he has worked on health care reform and other issues as a member of the Nevada legislature and the Indiana legislature.

Table of Contents

1. Editors' Introduction to The Oxford Handbook of Comparative Health Law / Tamara Hervey, David Orentlicher

Part I Paradigms of Healthcare Systems, Law and Regulation
2. Paradigms of Healthcare Systems, Law and Regulation: A Transatlantic Conversation / Alceste Santuari, William M. Sage

Part II Preventing Ill Health
3. Introduction to Public Health Law / Wendy E. Parmet, Markus Frischhut, Amandine Garde, Brigit Toebes
4. Communicable and Other Infectious Diseases: The EU Perspective / Markus Frischhut
5. Communicable Disease / Wendy E. Parmet
6. U.S. Law Relating to Non-Communicable Diseases / Wendy E. Parmet
7. The Lack of Coherence in the European Union's Approach to Non-Communicable Disease Prevention / Amandine Garde
8. Socio-Economic Health Inequalities in Europe: The Role of Law and Human Rights / Brigit Toebes
9. Social Determinants in the United States / Wendy E. Parmet

Part III Treating Ill Health
Access to the Health Care System
10. Introduction to Access to Health Care / André den Exter, Mark A. Hall, Allison K. Hoffman, Keith Syrett
11. The American Pathology of Inequitable Access to Medical Care / Allison K. Hoffman, Mark A. Hall
12. Access to Health Care in Europe / André den Exter, Keith Syrett
Regulation of Health Care Services, Facilities, and Transactions
13. Introduction to Regulation of Professionals and Facilities / Deirdre Madden, Isaac D. Buck
14. Regulation of Professionals and Facilities in Europe / Deirdre Madden
15. Regulation of Professionals and Facilities in the United States / Isaac D. Buck
16. Introduction to Antitrust and the Provision of Health Care in the United States and European Union: Common Challenges / Thomas Greaney, Okeoghene Odudu
17. Health Care Services and EU Competition Law / Okeoghene Odudu
18. Healthcare Antitrust in the United States: The Intersection of Regulation and Competition / Thomas Greaney
19. Introduction to Fraud and Abuse Law / Tracey A. Elliott, Joan H. Krause
20. Fraud and Abuse Law in the United States / Joan H. Krause
21. Healthcare Fraud and Abuse in Europe / Tracey A. Elliott
The Treatment Relationship: Confidentiality, Consent, and Conflicts of Interest
22. Privacy and Integrity of Medical Information / Sharona Hoffman, Jean Herveg
23. Patient Autonomy, Capacity, and Consent: Children / Jessica Berg, Emma Cave
24. Patient Autonomy, Capacity, and Consent: Vulnerable Adults / Mary Donnelly, Jessica Berg
25. Introduction to Provider Conflicts of Interest in Health Care / Suncana Roksandic, Richard S. Saver
26. Provider Conflicts of Interest in U.S. Health Care: The Intractable Regulatory Challenge / Richard S. Saver
27. Provider Conflicts of Interest in European Health Care: Trustworthy Physicians / Suncana Roksandic
Medical Malpractice
28. Medical Liability: Comparing Compensation Systems / Karl Harald Sovig, Barry Furrow

Part IV Regulating the Development and Use of Medical Treatments
Human Experimentation and Research
29. Introduction to Research with Human Participants / Carl H. Coleman
30. Research with Human Participants in the European Union / David Townend, David Shaw
31. Research with Human Participants in the United States / Carl H. Coleman
32. Biobanks / Graeme T. Laurie, Carl H. Coleman
Pharmaceutical and Medical Devices Law
33. Introduction to Medical Products Law / Erika Lietzan, Aurélie Mahalatchimy, Patricia J. Zettler
34. Regulating Medicines in the United States / Erika Lietzan, Patricia J. Zettler
35. Regulating Medicines in the European Union / Aurélie Mahalatchimy
36. Regulating Medical Devices in the United States / Patricia J. Zettler, Erika Lietzan
37. Regulating Medical Devices in the European Union / Aurélie Mahalatchimy
Control, Use, and Allocation of Body Parts: Organs, Human Tissue, Blood
38. Property in Human Body Parts: An Old Legal Question for a New Technological Age / Justine Pila
39. Organ Transplantation / Joaquin Cayon-De Las Cuevas, David Orentlicher
40. Introduction to Incomplete Commodification and Its Creeping Counterpart / Stéphanie Hennette Vauchez, Natalie Ram
41. Incomplete Commodification in American Law / Natalie Ram
42. Of Markets and Principles: The European Perspective / Stéphanie Hennette Vauchez
Ethical and Legal Implications of Advances in Genetics
43. Introduction to Genetics and the Law / Maxwell Mehlman, Mette Hartlev, Sonia Suter
44. Genetics and the Law: United States / Maxwell Mehlman, Sonia Suter
45. Genetics and the Law: Europe / Mette Hartlev
46. Genetics and the Law: Conclusion / Maxwell Mehlman, Mette Hartlev, Sonia Suter

Part V Health Care at the Beginning and End of Life
Reproductive Rights
47. Introduction to the Right to Procreate and Assisted Reproductive Technologies / I. Glenn Cohen, Emily Jackson
48. The Right to Procreate and Assisted Reproductive Technologies in Europe / Emily Jackson
49. The Right(s) to Procreate and Assisted Reproductive Technologies in the United States / I. Glenn Cohen
50. Introduction to the Right to Avoid Procreation and the Regulation of Pregnancy / Janne Rothmar Herrmann, Elizabeth Sepper
51. The Right to Avoid Procreation and the Regulation of Pregnancy: A European Perspective / Janne Rothmar Herrmann
52. The Right to Avoid Procreation and the Regulation of Pregnancy: A U.S. Perspective / Elizabeth Sepper
The Right and "Duty" to Die
53. Decisions at the End of Life / David Orentlicher, Judit Sándor