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The international right to health is enshrined in national and international law. In a growing number of cases, individuals denied access to high-cost medicines and technologies under universal coverage systems have turned to the courts to challenge the denial of access as against their right to health. In some instances, patients seek access to medicines, services, or technologies that they would have access to under universal coverage if not for government, health system, or service delivery shortfalls. In others, patients seek access to medicines, services, or technologies that have not been included or that have been explicitly denied for coverage due to prioritization. In the former, judicialization of the right to health is critical to ensure patients access to the technologies or services to which they are entitled. In the latter, courts may grant patients access to medicines not covered as a result of explicit priority setting to allocate finite resources. By doing so, courts may give priority to those with the means and incentive to turn to the courts, at the expense of the maximization of equity- and population-based health.

Evidence- based, informed decision-making processes could ensure that the most clinically and cost-effective products aligning with social value judgments are prioritized. Governments should be equipped to engage in and defend rational priority setting as a means to promote fair allocation of resources to maximize population health. Rational priority setting is an evidence-based form of explicit priority setting, where the priority setting process is deliberate and transparent, the decision makers are specified, relevant stakeholders are involved, and the best available evidence about clinical and cost-effectiveness and social values is considered. The most rational priority setting processes will also account for the benefit to patients, the cost, the ethicality and the fairness. The priority setting process and institutions involved should then be held accountable through an appeals process, allowing independent review by health systems, health care, and other relevant experts, and an opportunity for judicial review. While the implementation of a three-step (1) rational priority setting, (2) appeals, and (3) judicial review process will differ depending on a country’s resource constraints, political systems, and social values, the authors argue that the three stages together will promote the greatest accountability and fairness. As a result, the courts could place greater reliance on the government’s coverage choices, and the population’s health could be most equitably distributed.

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