The implications of Canadian law for economic approaches to allocating health care resources: The round hole and the square peg

Chapter one explains that the purpose of this thesis is to analyze legal principles at issue when attempts are made to ground allocation policies in economics.; Chapter Two examines the ethical values reflected by economics and law. It explores the tensions between the philosophical perspectives of consequentialism and deontology and describes options for bringing normative theories to practice. The purpose of this chapter is to provide the reader with the ethical context of law and economics.; Chapter Three describes and analyzes the contribution economics can bring to resource allocation. The chapter addresses four utilitarian based methods of priority setting: cost-minimization analysis, cost-benefit analysis, cost-effectiveness analysis and cost-utility analysis. These are formal methods of comparing costs and consequences of medical interventions to determine whether they are worth funding.; Chapter Four examines the legal implications of making allocation decisions according to economic principles. It focuses on the areas where economics and law conflict in relation to resource allocation, the legal theory behind the values at issue in resource allocation and the potential for reconciliation of economic and legal principles. The areas of law focused on are the principles of comprehensiveness, accessibility, public administration, universality and portability under the Canada Health Act, the doctrines of legitimate expectations, public interest standing and rules around discretion in administrative law, the right to equality (s.15), available remedies (s.24) and the principles of pressing and substantial, and proportionality (s.1) under the Canadian Charter of Rights and Freedoms (Charter).; Chapter Five of the thesis concludes that the legislative objective of making allocation decisions that respect economic principles can be accomplished to the extent that allocation decisions do not violate Canadian law. In recent cases, courts have shown a new willingness to expand the range of issues they are willing to address and consider the legality of government allocation decisions, an area that has traditionally been left to the discretion of government. Evolving case law suggests that allocation policies focusing on consequentialism expressed by economics will have to be compromised if Canadian allocation policy is to accommodate legally binding deonotological values entrenched in law.