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Capital & Class
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DOI: 10.1177/030981680709200104
2007 31: 81 Capital & Class
John A. Harrington
Law, globalisation and the NHS

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81 Law, globalisation and the NHS
Law, globalisation and the
NHS
John A. Harrington
The regulation of medical work in the ck ck ck ck ck has been
shaped by the post-war settlement, which lead to the
creation of the National Health Service in 1(8 1(8 1(8 1(8 1(8. The
removal of clinical care from the market was
supported over the following decades by prohibitions
of the sale of human organs and gametes. That
settlement is now being dismantled, with the
increasing privatisation of Nns Nns Nns Nns Nns facilities. The recomm-
odification of medicine in Britain is achieved as part
of broader patterns of neoliberal globalisation. Cross-
border markets in health services are realized in law
through international (e.g. the General Agreement on
Trade in Services) and regional trade law (e.g.
European Community law).
Introduction
T
he globalisation of healthcare provision is having a
profound eect on the British National Health
Service (Nns). Founded as a state-run, taxpayer-
funded service in 1(8, it has endured in this form through
two-and-a-half decades of post-Keynesian restructuring. It
is only under the Labour government since 1; that the
basic form of the Nns has begun to change (Pollock, zoo().
The increasing takeover of service provision by corporate
interests 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 largely
characterised by cuts in expenditure (Peck & Tickell, zooz).
Current British reforms both draw on and contribute to a
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Capital & Class #92 82
broader global trend toward the marketisation of healthcare,
and a fuller integration of medical work into the circuits of
capital (Whitfield, zoo1). It could be argued that what was
imposed as structural adjustment on sub-Saharan Africa is
being 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 oer an outline of what I mean by globalisation in the con-
text of healthcare. I then consider the manifestations of this
process in two areas of medical practice: international
tracking in organs, and so-called health tourism within
the European Union. In conclusion, I discuss the generic
stresses imposed upon the law by the uneven develop-ments
in the two areas considered. It will be seen that the tension
between relatively recent global economic liberalisation and
the more traditional welfarist paternalism of the nation state
is replicated in the changing case-loads and sometimes
incoherent doctrines of medical law.
What is globalisation in the context of healthcare?
In response to the enthusiastic evocation of globalisation by
politicians and scholars during the 1os (Giddens, 18),
more recently commentators have questioned the extent and
depth of the phenomenon (Henwood, zoo: 1(8). They have
also doubted the novelty of globalisation, arguing that it is
merely a return to pre-First World War patterns of trade
(Petras, 1; Sutclie, zooz: z(). The demise of the nation
state, predicted by some, is also unlikely. The state and its
law are vital to globalisation, guaranteeing a compliant labour
force and a benign fiscal regime for inward investors, as
well as opening up new opportunities for profit through the
privatisation of public assets and the protection of intellectual
property (Wood, zooz).
Caution is well advised, therefore, in charting the eect
of globalisation on healthcare provision, and on medical
law in particular. Nonetheless, a number of contemporary
trends can be accommodated within the loose, descriptive
concept of globalisation: the transnationalisation of product-
ion; the growing free movement of consumers, if not of
workers; the commodification of the human body and of
formerly state-funded healthcare; persisting inequality
between core and periphery in the world economy; inade-
quate regulation due to the predominance of economic law
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83 Law, globalisation and the NHS
over other branches at international level. Given that the
contemporary era is pre-eminently one of capitalist global-
isation, I adopt a consistent perspective on these phenomena
rooted in theories of political economy.
Production
The decomposition of formerly national systems of
production and their rearticulation across international
boundaries has marked the current phase of globalisation.
Unfettered and mobile capital seeks out cheap and exible
labour around the globe. This trend has been most marked
in manufacturing, but it is increasingly true of service
provision too. Not only is customer-service and back-oce
work sent oshore, but Northern capital also seeks increased
returns from providing services to locals in the target
country, whether that be the broad population of the
developed nations or the new middle classes of the developing
world (cNc1ab, zooz). For example, the provision of health-
care, from hospitals to diagnostic teams, comes increasingly
from external sources. This investment is facilitated by the
removal of barriers to the free movement of capital into and
out of states, and by the privatisation of public assets. The
General Agreement on Trade in Services (ca1s) of the World
Trade Organisation (w1o) commits states to allowing un-
restricted inward investment and the full repatriation of
profits by non-national service providers.
z
The transnation-
alisation of healthcare provision benefits still more directly
from the work of the World Bank, which actively invests in
private medical businesses in countries such as India and
Brazil.

Consumption
Capital invested requires a return. That is only possible where
there is a functioning market with eective demand for
private medical services. Under the prevailing neoliberal
order, when state funders will not cover privately provided
treatment, patients should be left with enough income after
taxation to pay for it themselves. This is increasingly the
case in most nation states: fiscal constraints, driven by fear
of disinvestment, have the dual eect of degrading public
services and freeing up private resources (Leys, zoo1: 81).
The erosion of public services is furthered by rhetoric
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Capital & Class #92 84
disparaging state provision as irredeemably inecient and
inadequate. Private providers and senior professionals strive
to make a plausible case for privatisation in the name of
choice and quality.
Consumption of healthcare, just like its provision, is no
longer confined by national borders. Again, ca1s is set to
aid this process. It requires states not only to allow foreign
service providers in, but also that they permit their own
nationals to travel in order to access services abroad, and to
export sucient funds to pay for this.
(
As will be seen later
in this paper, these developments have been anticipated in
cc law. Where the service cannot come to the consumer, the
consumer is to be assisted in her journey to the service.
Capital ight, once seen as the bane of Third World develop-
ment, is now enshrined as a right in international and
domestic law, enjoyed by the healthcare industry and its
wealthy clients (Adelman & Espiritu, 1).
Thus, networks of both production and consumption are
established. A global market is being constituted as trans-
national ser vice providers attract nomadic patient
consumers. Economic globalisation, driven by the relentless
quest for profit of corporations in the developed countries
and enforced by international economic law, inevitably acts
to decompose the bounded and solidaristic basis of national
healthcare systems (Whitfield, zoo1). In the ck, for example,
the Nnss monopoly of provision has been broken up. Foreign
as well as domestic companies now contract with the ck
government for the provision of services (Pollock, zoo). In
developing countries, an expanded market for private health
insurance and cherry-picking by the relevant companies
draws the upper and middle classes away from the state
system, decreasing the national pool of patients while the
poor and lower middle classes are thrown upon an under-
funded rump system of public healthcare.

Commodification and the new medicine

Another dynamic feature of the contemporary scene is the
development of what has been called the new medicine:
organ transplantation, assisted reproduction and human
genetics (Richardson & Turner, zooz). Body parts (e.g.
kidneys) and particles (e.g. stem cells) are the basic material
of these therapies. Demand for them has opened up new
opportunities for primitive accumulation or accumulation
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85 Law, globalisation and the NHS
by dispossession. The latter term originally described the
often violent phase of expropriation preceding more orderly
regimes of capitalist accumulation. Thus, during the indust-
rial revolution in Britain, peasants were dislodged from their
smallholdings by reforming landowners, and compelled by
economic necessity to seek waged work in the new factories
(Marx, 1;6: 8;).
However, this was not a one-o event. Primitive accum-
ulation has remained a feature of capitalism up to the
present globalised era (Harvey, zoo). As Rosa Luxemburg
put it, Historically, the accumulation of capital is a kind
of metabolism between capitalist economy and those pre-
capitalist methods of production without which it cannot
go on and which in this light it corrodes and assimilates
(zoo: ;). Seeking an outlet for investment, a market for
its products and a source of labour and raw material,
capitalism has always been forced beyond its own geographic
and social limits. Imperial conquest has been interpreted
in this way (Arendt, 168). In the current era, capitalism
continues to cross the frontiers separating it from non-
market realms such as the welfare state and its Third World
counterpart, the developmental state. It also penetrates the
taboos sur-rounding the human body, commodifying organs,
human tissue and genetic material (Leibowitz-Dori, 1;).
These are acquired for money as inputs in the production
of health-care. Their processing (e.g. through trans-
plantation) creates further value, which is realised in the
form 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 under
pre-First World War imperialism (Hill, 1;6). Similarly, the
extension of advanced Western medical technology is
essential to the accumulation of capital in the healthcare
sector. Standard techniques and internationally valid
protocols make for a uniform medicine practicable across
the globe (Mol & Law, 1(), enabling its primary produce
to be extracted and to circulate in the global market. As
Britains nineteenth-century Opium Wars show, the intro-
duction of the commodity economy has often been far from
peaceful. Similarly, the marketisation of human organs and
the depletion of public healthcare provision has not gone
uncontested. In particular, resistance to structural adjustment
and privatisation programmes has been sporadic, but often
intense (Bond, zoo).
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Capital & Class #92 86
Globalised localism localised globalism
Boaventura de Sousa Santos oers a further, useful per-
spective on globalisation, which may be adapted to healthcare
(Santos, zooz: 18z). He argues that there is no such thing as
a pure globalism. What we encounter are in fact globalised
localisms: the practices of a specific state or region that
have extended across the globe, gaining the power to define
their rivals as merely local. The asymmetric relationship
between scientific, Western medicine and the traditional
therapies of African peoples is a good example of this.
;
Globalised localisms find their counterparts in localised
globalisms. Just as the former cannot be understood as
abstractly universal, so the latter do not correspond to the
merely particular. Localised globalism connotes instead the
specific impact of transnational practices and imperatives
on local conditions. The enforcement in African jurisdictions,
at a time of crisis in public health, of patents held by
European pharmaceutical companies provides an instance
of this (Nagan, zooz).
The pattern that Santos describes is significantly
conditioned by the historical inequalities of the world
system.
8
The dierent trajectories to modernity of dierent
countries determine their relative positions in this system.
The former metropolitan powers of Europe, as well as the
settler nations of North America and Australasia, form the
core; the former colonies of Africa, South Asia and Latin
America, the periphery. It is argued that East Asian nations,
with their commonly autarkic route to modernity, are moving
from the former towards the latter. Santos points out that
countries at the core specialise in producing globalised
localisms, while those at the periphery are commonly forced
to bear the costs of localised globalisms (Santos, zooz: 1;).
Since ours is a capitalist globalisation, this polarity can be
represented as a hierarchical division of labour on a world
scale. The specific practices of capitalist industrialism, service
provision, financial governance and legal ordering

are
exported from the strong states as globalisms, to be localised
in the weaker states, reshaping their material and normative
prospects.
Latterly, the achievements of the core nations have been
mediated through institutions of global governance such as
the World Bank, the i:r and the w1o. These compel develop-
ing countries to reform (i.e. privatise) their public sectors,
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87 Law, globalisation and the NHS
and to implement the rule of law within their territories.
Yet such programmes have their origins in the practices and
reforms of specific Western nations. Indeed, their implemen-
tation in the developing world boosts invisible export
earnings by developed-country academics, Ncos, civil
servants and management consultants (Sassen, 11; Wallace,
zoo). It is, of course, incorrect to view any developing
country as the undierentiated recipient of external diktats.
A substantial section of the ruling group will be active, acting
as the local steward of globalisation (Burnham, zooz). A
cadre of bureaucrats will identify with the reform project,
and ensure its legislative and administrative implementation.
Hosts of Ncos take over the states welfare functions, and
answer directly to foreign agencies for the expenditure of
grant monies (Albo, zoo). Localised globalisms take eect,
therefore, not simply in material terms. They also reshape
social and political structures within developing countries.
The followingdrawn from Harrington (18)may
serve as an example. British health economists, working
within the paradigm of that discipline in the late-18os,
develop models of healthcare funding. In particular, they
recommend the imposition of user fees on patients in order
to discourage the unnecessary use of facilities (Lawson,
1(). 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 for
promoting eciency in public health services (World Bank,
zoo: ;1). It imposes the policy on developing countries,
such as Tanzania, as a condition of further loans (Kiwara,
1(). The policy is adopted into Tanzanian law and imple-
mented by ocials 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 existing
users of clinics around the country. They bear its costs,
refraining from necessary use of health facilities, and suering
an increase in conditions such as anaemia, seemingly as a
result (Hussein, 1().
Uneven normative convergence
Chase-Dunn has argued that the capitalist world economy
is integrated more by politicalmilitary power and market
interdependence than by normative consensus (Chase-Dunn,
11: 88). Of course, arguments are made for both new and
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Capital & Class #92 88
revived normative universalisms, either functionally, in
response to economic globalisation, or on a priori grounds
(Aginam, zooo). But their realisation, thus far, has been only
partial in geographic and sectoral terms (Santos, zooz: 1;1).
This is of especial significance in the area of medical law.
Legal commentators routinely use the canon of Western ethics
as a meta-discourse for the articulation and resolution of
regulatory problems (Singer, zoo(). Yet the historically
contingent and geographically specific pedigrees of
Kantianism, utilitarianism and so on is obvious; as is the
lack of consensus on a range of substantive issues like
abortion or the right to healthcare. In fact, it is argued that
far from being mere survivals, normative and cultural
particularisms are adaptive responses to economic
globalisation (Amin, 18). As states withdraw from prod-
uctive and welfare activities that ameliorate the eects of
the free market, legitimacy is renewed via ethnic, national-
istic and religious mobilisations (Betz, zooz). These can, on
occasion, accentuate dierences in the legal treatment of
ethically sensitive medical issues. However, the dialectical
progress of capitalist globalisation means that these
legitimation strategies are undermined at the same time as
they are promoted by commodification and the decline of
pre-capitalist social structures. We shall see that precisely
this has been true of the commodification of organ sales in
the developing world.
Norms are not absent from capitalist globalisation. No
matter that the chain of production and consumption now
crosses multiple borders, value is still created and realised
within the territorially defined jurisdictions of nation states.
Orderly accumulation, thus, requires the stability provided
by a dependable and suitably oriented national system of
contract, property, labour and commercial law. The global
moment of this legal regime is found in the normative output
of the w1o, the World Bank and the International Monetary
Fund (i:r), as well as in that of regional bodies such as the
European Union (cc). Treaty obligations (e.g. ca1s) and
loan conditionalities, backed up by formal and informal
sanctions, compel nation states to develop and maintain
essentially similar pro-market legal regimes (Koivusalo &
Ollila, 1;). Broad convergence on privatised healthcare
and the global protection of pharmaceutical company rents
are the fruit of national legislation mandated by international
economic law (Shaer & Brenner, zoo(). We find normative
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89 Law, globalisation and the NHS
consensus to be most advanced where it most intimately
regulates and protects the globalised system of accumulation.
Legal harmonisation or unification proves to be more
dicult to achieve in non-economic sectors, or where the
issue cannot be reformulated as a matter of economic liberties
(Fidler, zoo().
English medical law and the market
In the period from 1( until the early 1;os, economic
struggles within nation states concerned the way in which
the social product would be distributed between labour and
capital (Harvey, zoo). Their growing intensity in the 1;os
reected the declining profitability of companies in the
Western countries. These struggles were commonly centred
on the workplace, but they also found a limited outlet in
litigation attempting to compel governments to maintain
and expand welfare provision (Oe, 18z). The general crisis
of the 1;os was resolved through the liberalisation of
transnational capital ows in the manner discussed above.
With labour decisively weakened by job insecurity and state
compulsion, contemporary social struggles are now more
likely to involve the defence of natural endowments, trad-
itional knowledge and extant systems of public welfare, as
well as the valorisation of minority identities and lifestyles.
With the rise of human-rights law, the eects of this capitalist
globalisation are increasingly felt in the courts. Disputes
about intellectual property in life-saving drugs, attempts to
hold private healthcare providers to account, and struggles
over the commodification of traditional knowledge, have
marked out the new medical law jurisprudence (Koivusalo,
zoo).
These changes can also be tracked in the case-law of the
English courts. Since the foundation of the National Health
Service in 1(8, English healthcare law has been shaped by a
number of key assumptions regarding the nature and aims of
medical work in a state-funded and publicly delivered systems
(Harrington, zooz, zoo(). These eectively created a zone of
professional autonomy within which the medical profession
was allowed to deliver healthcare free from the compulsions
of the market and the demands of patients. Judges routinely
deferred to clinical judgement in decisions on medical
malpractice and in adjudicating the healthcare entitlements
of patients denied access to treatment (Brazier, zoo). The
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Capital & Class #92 90
standard of information disclosure was determined by medical
expert opinion, not by the patients right to self-determination
(Jones, 1). Legislation permitting abortion was passed in
16;, but access to termination would ultimately depend on
clinical judgment, and not on womens rights.
1o
There was a
further presumption, embodied in a range of legislation, that
the human body should not be commodified. Organ tracking
and commercial surrogacy were prohibited.
11
In judicial
rhetoric as well as in statute law, doctors were thus valorised
as the near-sovereign custodians of a precious and scarce
national resource. This image was informed by an inherited
Victorian prejudice in favour of the doctor as gentleman
practitioner, and a faith in the medical profession as the agent
of social progress (Lawrence, 1().
The eect of this ideological formation in law was to in-
sulate doctors from external scrutiny. It also served to conceal
behind a veil of clinical discretion the increasingly acute
rationing implemented under neoliberalism from the mid-
1;os owards. Challenges to the post-war orientation of
medical law have taken two main forms (Boltanski &
Chiapello, 1). The first kind, resting on a social critique,
are those that have sought the redistribution of healthcare
or general resources towards favoured medical causes. While
legal challenges are necessarily individual, they summate to
a demand for increased funding of the National Health
Service. As has been noted, such challenges are generally
rejected on grounds of justiciability (Whitty, 1). The
scarcity of healthcare resources is naturaliseda matter of
fate that no judge could set right. The second set of challenges,
resting on an artistic critique, has sought the emancipation
of patients from the patriarchal dominance of medical
practitioners (Kennedy, 18o). The infusion of human-rights
discourse and bioethics into medico-legal practice testifies
to the success of this critique. These challenges have also
re-valorised market models of healthcare, even where they
were originally inspired by the anticapitalist movements of
the late-16os (Doyal, 1;). Thus, the radical demand for
patient autonomy can be seen as a justification for increasing
patient choice and the adoption of market systems in the
delivery of healthcare (Jacob, 188). In the following two
sections, we will examine the eects of these tendenciesa
re-commodification of medical practice, with the patient role
transformed from passive recipient to active, mobile
consumer.
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91 Law, globalisation and the NHS
International organ tra cking and English law
Under the ck Human Tissue Act zoo(, a punishment of up to
three years imprisonment may be imposed on persons giving
or receiving rewards for the supply of organs, seeking to find
others willing to supply organs, or managing a company
involved in the negotiation or initiation of organ sales.
1z
The
publication and distribution of advertisements in this
connection are punishable by up to fifty-one weeks
imprisonment.
1
To this extent, this new Act continues the
explicit ban on organ trading first introduced into British
law by the Human Organ Transplantation Act 18.
1(
The
latter was passed in response to a scandal involving the
extraction of organs from Turkish men for the benefit of British
patients. The zoo( Act, thus, reinforces the general orientation
of English medical law towards non-market values: in this
case, the taboo against the commodification of the human
body. Restrictions on payment for surrogacy arrangements,
blood donation and the supply of human gametes are consistent
with this. The ethic of altruism founded on gift relationships
remains at the ideological heart of healthcare law in Britain
(Titmuss, 1;o). Similar measures have been enacted by most
other developed, and indeed, many less-developed nations.
1
At a global level, the United Nations Educational, Scientific
and Cultural Organisation (cNcsco, 18), the World Health
Organisation (11) and the World Medical Association (zooo)
are all opposed to the creation of markets in organs.
Notwithstanding these measures, organ tracking
continues to grow. An exact quantification is, of course,
impossible. Nonetheless, the anecdotal evidence for its
growth is strong (Scheper-Hughes, zooo). The extensive
development of illegal organ markets in, for example, India
is well documented (Goyal, zooz). In the ck, a number of
doctors have been disciplined by the General Medical
Council for performing broker functions, creating markets
for the Indian transplantation business (nnc, zooz). A number
of possible reasons for this growth, linked to the preceding
discussion of globalisation, can be suggested:
1) The globalisation of healthcare production combined
with the falling costs of transport. Western patients can travel
relatively cheaply to countries such as Turkey or the
Philippines. There, they can stay in hospitals of a Western
standard and receive treatment at least as good as that in
their home countries (Reddy, 1).
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Capital & Class #92 92
z) Eective demand on the part of wealthy patients is
met by supply from people who are suciently desperate to
undergo the risks of operation and the removal of organs.
Market impediments are easily circumvented. In fact, legal
prohibitions themselves become the objects of a parallel
market in bribes and favours.
) Since the 18os, immunosuppressant drugs have
greatly increased the success rate for transplantation. Usable
body parts are now available for circulation in the inter-
national medical market.
These developments have begun to erode the taboo against
commodification at the national level, in Britain and
elsewhere. While the Human Tissue Act zoo( has maintained
the existing prohibition, there are signs elsewhere of changing
attitudes. The British Medical Association, for example,
hosted a widely reported debate on the matter in zooan
event that would have been unthinkable just ten years earlier.
16
Bioethicists and other moral philosophers address the
justifiability of organ trading in growing numbers (Veatch,
zoo; Wilkinson, zoo), and the great majority supports some
kind of regulated market. In their arguments, technical
feasibility, unmet demand and untapped supply all coalesce
into a moral defence of organ sales. Scarcity is taken to be a
natural phenomenon rather than a product of conscious
choices to invest in transplantation facilities and, on a global
scale at least, to privilege the lives of a wealthy minority
(Lock, zooz: 1(o6). Proponents of markets dismiss taboos
against commodification as indefensible in liberal and
pluralistic societies (Duxbury, 16). They concentrate
instead on the possibility of impaired consent on the part of
the organ seller. They find it hard to see how an oer of
money per se could constitute illegitimate pressure in an
organ transaction (Herring, zooz). This is, of course, unarg-
uable: even in cases of economic necessity, it can be argued
that the consent of the seller was real.
However, there are two significant and related lacunae in
pro-market arguments. First, global issues are usually
bracketed in these discussions. Proposed markets are limited
to a single state or a developed region such as the cc (Erin
& Harris, 1(). Conditions in developing countries are too
extreme to permit any direct extension of the pro-market
argument. In spite of the growing significance of transnational
organ tourism, ethicists are thus often self-restricted to the
national horizon. Second, writers in this vein foreground
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93 Law, globalisation and the NHS
agency over structural concerns. The latter are addressed, if
at all, in fatalistic terms. For example, Pattinson makes the
valuable but regrettably underdeveloped point that
[exploitation and inequality of bargaining power] are not
restricted to commercial organ dealings. Many labour
markets, especially in the developing world, pay workers
paltry sums of money It is dicult to see why if these
concerns justify prohibiting organ dealings, rather than
the need for regulation and supportive structures, they do
not justify the prohibition of any activity paying low wages
and generating large sums of money. (Pattinson, zoo)
Regulation can indeed improve the likelihood and the
quality of consent obtained from organ sellers. But it is itself
dependent on the political and economic context in which
it must operate. This context is, as has been discussed,
decisively shaped by international relations that reproduce
economic and political inequalities between dierent states
and within states (Scheper-Hughes, zooo). The ethics of
organ markets inevitably implicate questions of social and
global justice that are not readily fitted within the analytical
grid of liberal bioethics.
What are the structural issues raised by organ tourism
between developed and developing countries? On exam-
ination, we find that many of the problems associated with
other forms of commodity production and trade can be
expected here too:
1) The continued direction of resources toward intensive
production (here, hospital medicine), which benefits consumers
in the North, and away from interventions aimed at the majority
of people in the South (here, basic public health).
z) The increased threat to the livelihood and indeed the
lives of poor people posed by their participation in
commodity production. Where a peasant favours cash crops
over subsistence, she is more exposed to a falling market.
Where a poor man sells a kidney, his capacity to labour and
earn is permanently vulnerable to further illness.
1;
) The replication and exaggeration of divisions internal
to the particular state or region. Class, gender and ethnic
inequalities are commonly reinforced when articulated within
the imperatives of the global economy. At the margins of
the global economy, a transplantation underclass is already
in place. Depending on the particular region, it is composed
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Capital & Class #92 94
of poor women, displaced peasants, the homeless, prisoners
and the mentally ill (Scheper-Hughes, zoo).
() At present, supply often meets demand for organs as
a result of economic coercion, fraud or physical force. Yet
the institutions that might provide for fairness in the market
are often dysfunctional, bankrupt or corrupt. The hollowing
out of the state under structural adjustment programmes,
and the correlative rise of competitive markets in formerly
public services has diminished local regulatory capacity.
While systems for extracting and marketing organs have
been successfully, if often illicitly reconstituted at global
level, there has been no matching ethical and cultural
convergence. The strength of taboos relating to organ
removal still varies considerably between countries and
regionsthe taboo is strong in Japan, but less so in India,
for example (Lock, zooz: 1(1z). Enforcement capacities
dier, too. Furthermore, the national consensus against com-
modification has come apart under the pressure of the
actually existing market. Legal bans on tracking, such as
that in Britain, are attacked in principle and contradicted in
practice. Despairing of their ability to protect the vulnerable
through prohibitions, commentators prefer to settle for a
lesser evil within the unchallenged horizons of global
inequality and structural exploitation (Friedlaender, zooz).
Arguing at what Santos has called the sub-paradigmatic
level, they urge reform and adaptation rather than contest
and transformation (Santos, zooz: 1;).
Health tourism in Europe
Health tourism for more routine procedures is also increasing
within the developed world. We have already noted that this
poses threats to the largely solidaristic basis of national
healthcare systems, whether insurance-based as in continental
Europe, or state-funded and run as in Britains Nns. Mobile
patients draw o resources from the national system,
restricting the ability of local providers to maintain and
expand capacity. Though the cost of air travel and medical
procedures across the globe is falling, private health tourism
remains out of reach for most citizens, even in the developed
world. Increasing eective demand will only be possible if
state health insurers and providers are willing to fund cross-
border treatment. The w1os General Agreement on Trade
in Services has already been mentioned as an impulse to the
by Pepe Portillo on July 29, 2014 cnc.sagepub.com Downloaded from
95 Law, globalisation and the NHS
creation of a global healthcare market in this way. At the
regional level, cc law has in recent years been interpreted to
facilitate the mobility of patients between member states
(van der Mei, zoo). The impact of intra-European free-
trade rules on Britains Nns has recently been made clear in
the zoo( case of Secretary of State for Health v R. (on the
application of Watts).
18
Mrs Yvonne Watts had been told to wait twelve months
for a total hip-replacement operation by her local primary
care trust (ic1). Since this was within the Department of
Healths target waiting time of fifteen months, the ic1 refused
to fund a trip to Lille in France so that she could have the
operation performed there at an earlier date. She proceeded
at her own expense. Seeking judicial review of the ic1s
refusal,
1
Mrs Watts invoked her European Community law
right to travel to avail of services provided in another member
state. In implementation of this right, she claimed, the ic1
was obliged to reimburse her costs. At first instance, Mr
Justice Munby held in her favour on the point of Community
law. On the facts, however, it appeared that the ic1 had
made a revised oer of treatment two months before the
scheduled date of the Lille operation, which Mrs Watts could
reasonably have accepted. Her claim failed accordingly.
The Secretary of State for Health appealed against the
ruling that, on principle, there was a right to reimbursement.
Lord Justice May for the Court of Appeal ultimately held
that the decision on the case should be suspended, and a
reference made to the European Court of Justice (cc) for
clarification of the law. The cc recently ruled in favour of
Mrs Watts. But it is worth considering the reasoning of the
Court of Appeal, and its reections on the health-policy
implications of the case. The situation of the English court
is seen to be a poignant one, on the brink of a decisive
rearrangement of the value hierarchy in this area of medical
law (Montgomery, zoo). The practical implications of this
reordering for the form and extent of public-health provision
in they ck are likely to be profound.
Article ( of the European Community Treaty prohibits
restrictions on the freedom to provide services to nationals
of other member states. The cc has erected a substantial
edifice of interpretation on Article (, to the extent that
appeals to its literal meaning may not be regarded as per-
suasive (Watts, para. 1). Thus, for example, the right of a
consumer to travel to avail of services has been guaranteed
by Pepe Portillo on July 29, 2014 cnc.sagepub.com Downloaded from
Capital & Class #92 96
as a corollary of Article (.
zo
This eective right is further
expanded by Article zz of Council Regulation 1(o8/;1, which
provides that a recipient of social services in one member
state may avail of treatment appropriate to his condition in
another member state at the expense of the relevant home
institution. The cc has defined home institution to include
state-backed contributory sickness funds (Davies, zoo().
Funding may be refused by the home institution unless the
patient cannot be oered treatment within the time normally
necessary for obtaining it at home.
z1
The issue in Watts was
whether the refusal of the relevant authorisation by the ic1
and the Department of Health was supported by the exception
to Article zz. In other words, was it an objectively justifiable
and proportionate restriction on Mrs Wattss Article ( (ex
) rights?
In the terms of the relevant cc jurisprudence, the Court
of Appeal had to decide whether there would be undue delay
in treating Mrs Watts if she were not enabled to undergo the
operation in France (Hervey & McHale, zoo(: 11z). The
Secretary of State contended that the treatment-specific
waiting-list times prescribed for ic1s by the Department of
Health should be taken into account in this decision. It argued
that objective justification for a restriction of this scope was
provided by the need for financial stability in public
healthcare systems. While recognising that this was indeed
the broad justification for the authorisation requirement
contained in Article zz, the Court of Appeal held that national
waiting lists could play no role in determining the question
of undue delay. The cc had established, most recently in
the case of Inizan,
zz
that the time normally necessary for
obtaining treatment is solely a matter of clinical judgement.
The extent of the patients disability, their pain and likely
prognosis were the coordinates of this judgement, exclusive
of the detailed economic considerations embodied in waiting
lists.
Lord Justice May thus followed the logic of the cc to its
conclusion, namely that whenever a patients doctors judged
them to be in need of treatment sooner than the waiting
time prescribed by the Department of Health, that patient
should be entitled to jump the queue by travelling to another
member state with the financial support of her local ic1. He
was plainly disturbed by the prospects for the National Health
Service that were opened up by this entitlement. In part-
icular, he was sympathetic to the argument that the eect of
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97 Law, globalisation and the NHS
Community law here would be to disrupt Nns budgets and
planning and undermine any system of orderly waiting lists
[Furthermore] if the Nns were required to pay the costs
of some of its patients having treatment abroad at a time
earlier than they would receive it in the United Kingdom
this would require additional resources (Watts, para. 1o).
Since waiting lists were a product of scarce resources,
this extra funding could only be obtained if those who did
not have treatment abroad received their treatment at a later
time than they otherwise would or if the Nns ceased to provide
some treatments that it currently does provide (Watts, para.
1o). His decision to refer to the cc a set of issues that had
been largely settled in earlier cases testifies to his concern
for clarity in an area of constitutional significance for the
Nns. If, as the cc has held, Community law does not detract
from the power of member states to organise their own social
security systems,
z
can it be true that the edifice constructed
on Article ( (ex ) operates to dictate the national health
service budget of the individual member states? (Watts, para.
1o;). As noted above, on 16 May zoo6 the cc settled the
matter in favour of Mrs Watts.
z(
It confirmed its reasoning
in Inizan, recognising no dierence for these purposes
between the state-organised Nns and the various insurance-
based systems of mainland Europe.
Conclusion
This essay has examined some of the implications of
globalisation for the content of English medical law. As a
field of academic and popular discourse, as well as of practical
decision-making, the latter was constituted by a set of anti-
market exclusions and prohibitions. An ethos of altruism
pervaded the self-understanding of the medical profession
and its representation in law. With healthcare free at the
point of use, the image of the doctor as a seless servant of
the greater good was realised in daily practice. Market tran-
sactions at the margins of standard medical care were also
prohibited or strictly limited. Altruistic medicine was at the
same time patriarchal medicine. Legal exclusion of the
market from British healthcare was reinforced by a notable
limitation of patients rights. This paper has rested on the
central assumption that this dispensation in medicine and
law was intimately connected to the distinctive political and
economic conjuncture of the post-war decades.
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Capital & Class #92 98
If globalisation is defined as a set of profound changes in
political economy, then we must accept that the conjuncture
that supported patriarchal, altruistic medicine in Britain has
been dissolved. We have attempted to sketch some features
of the new conjuncture: increasingly marketised healthcare;
rights consciousness among patients; cross-border
consumption of healthcare; and the weakening of solidaristic
national health systems. The leading subjects of the old
dispensation were the state, acting on behalf of the masses,
and the medical profession. The leading subjects of the new
dispensation are commercial healthcare providers and their
paying customers. If post-war medicine in Britain had some
of the features of a feudal society organised by rank, then
the eect of globalisation has been to bring the bourgeois
revolution to this discrete sector of social relations.
Notes
* I wish to thank Ambreena Manji for her comments on earlier
drafts.
1. I use English law throughout to refer the common law of
England and Wales, as distinct from the civilian law of
Scotland. Moreover, since devolution, health policy in
Scotland (and Wales) now diverges from that of England.
References to current health-sector reforms in this paper
are limited to English developments.
z. Art. xi, ca1s. The agreement inaugurates successive rounds
of negotiations aimed at liberalising dierent sectors of
service provision, rather as the General Agreement on Trade
and Taris (ca11) did for trade in goods. Banking and
financial services have already been subject to negotiations,
but healthcare has not as yet. Commentators have argued
that ca1s will have a profound indirect eect on healthcare
provision, given the many dierent modes of delivering that
service (Sexton, zoo1). Adlung and Carzaniga (zoo1) have
disputed this, however.
. In 1, for example, the World Bank invested cs$8 million in
a z;o-bed private hospital in Calcutta, owned and run by
Singapore-based Parkway Enterprises (Hall, zoo1: ).
(. Articles i.zb and xi.1 ca1s, respectively (Woodward, zoo).
. This process has been noted of Chile in the period since the
1; coup. Under General Pinochets free-market reforms,
the comprehensive national healthcare system was broken
up into a residual public service and a number of competing
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99 Law, globalisation and the NHS
private insurers and providers. Eectively, the wealthiest
o per cent of the population was freed of social
responsibilities with regards to health, and allowed to
purchased the kind of high-tech care discussed here
(Collins & Lear, 1).
6. Thus, in the mid-1os, the University of Pittsburgh
proposed to trade its transplantation expertise for a supply
of surplus livers from hospitals in Sa Paulo, Brazil (Scheper-
Hughes, zooo). And Harvard Medical School has joined
with the World Bank and an Indian pharmaceutical company
to train heart specialists at a private hospital in the state of
Maharashtra (Sexton, zoo1).
;. Thus, s.(1 of the Tanganyika Medical Practitioners and
Dentists Ordinance, passed by the British colonial
government in 1(8 and still in force today, states that native
medicine may only be practiced upon members of a
traditional healers own ethnic group. By contrast, Western
medicine, regulation of which is the chief object of the
Ordinance, is implicitly unrestricted in this respect. The
definition of the particular and its subordination to a
universal is achieved through law, and in the context of a
colonial project that is itself one of subordination and
peripheralisation. The interactions of traditional healers,
local regulators and multinational bio-prospectors in
modern Tanzania are thus decisively shaped by a distinctive
history of globalisation.
8. At this stage in his account, Santos relies on the work of
Immanuel Wallerstein (18().
. Respective examples might be Taylorised f actor y
discipline; the customer-service ethos of telephone-
banking facilities; the constitutionally-anchored
independence of central banks; and the individual titling of
rural landholdings.
1o. The agreement of two registered medical practitioners is
required before any termination can be lawful: s.1(1)
Abortion Act. Sheldon (1997) gives a critical overview of
the Acts implementation.
11. Respectively, s.1 Human Organ Transplantation Act (18);
s.z Surrogacy Arrangements Act (18).
1z. s.z(1) Human Tissue Act zoo(.
1. s.z(z) Human Tissue Act zoo(.
1(. The 18 Act itself has been repealed: sch. ; Human Tissue
Act zoo(.
1. For example, in Indiaa leading destination for organ
touristssee s.1 Transplantation of Human Organs Act
1(.
16. See the papers delivered at the Medical Ethics Tomorrow
conference, held in London, December zoo. Available
by Pepe Portillo on July 29, 2014 cnc.sagepub.com Downloaded from
Capital & Class #92 100
online at <http://www.bma.org.uk/>, accessed 1( August
zoo6.
1;. Since the supply of organs vastly exceeds demand, it has
been predicted that the returns to sellers will be very
low in the long run, with most profits being extracted by
brokers (Kolnsberg, zoo).
18. [zoo(] cwca Civ. 166. References in the text hereafter
are to paragraphs of that decision.
1. R. v Bedford Primary Care Trust, ex parte Watts [zoo]
cwnc zzz8.
zo.Luisi and Carbone v Ministero del Tesoro [18(] ccn ;;.
z1. Article zz(1)(c) Regulation 1(o8/;1.
zz.Inizan v Caisse Primaire dAssurance Maladie des Hauts-
de Seine [zoo] ccn i-1z(o.
z. Geraets-Smits v Stichtung Ziekenfonds vcz [zoo1] ccn I-
(; (at para. ((). In this, the cc is following Article
1z. cc.
z(. R v Bedford Primary Care Trust, ex parte Watts (Case C-
;z/o().
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