Beyond the Market: The Role of Constitutions in Health Care System Convergence in the United States of America and the United Kingdom

Abstract

IntroductionTwo narratives have emerged to describe recent healthcare reforms in the United States of America (US) and the United Kingdom (UK). One narrative speaks of revolution, 1 that the adoptions of the Affordable Care Act 2010 (ACA) in the US, and the Health and Social CareAct 2012 (HSCA) in the UK, have resulted in fundamental, large-scale philosophical, political and legal change in the jurisdictions' respective healthcare systems. 2 The other narrative evokes evolution, 3 identifying each new legislative scheme as a natural development of existing governance structures. 4 Policymakers in both the US and UK face the problem of a healthcare system which, as traditionally envisaged, cannot offer universal access to healthcare at a reasonable, or politically acceptable, price. 5 In an attempt to solve this problem, policymakers shop around, with the result that each of the two jurisdictions' reformed healthcare system includes features normally associated with a free market healthcare model, as this has been seen to increase quality and lower costs, but both also demonstrate characteristics of a state run model, which provides a safety net for citizens and a buffer against the commodification of health.Here, we argue that neither the revolutionary nor the evolutionary narrative adequately characterizes these policy initiatives since, although each jurisdiction has effected significant change, neither has detached its reformed healthcare system from the moorings of its traditional healthcare model and neither takes adequate account of the broader settings in which those reforms have occurred. 6 The narrative of revolution pays insufficient attention to party politics and the extremes of partisan rhetoric, and lacks a considered exposition of the political bargaining behind reform and the crafting of legislation intended to balance past and future manifestations of a healthcare system. On the other hand, we are skeptical of the evolutionary narrative, based on its claim that the 'new' systems are typologically consistent with their predecessors, which misrepresents the reforms' extent. The introduction of the individual mandate requiring individuals to purchase healthcare insurance in the US, 7 and the marketization of the National Health Service (NHS) in the UK, 8 pushes each system into previously uncharted territory, namely the middle ground between free market and government run (social insurance) healthcare. 9 Forced to choose, for reasons which will become apparent we would dismiss the revolutionary narrative in favour of its evolutionary counterpart. We do, however, consider the evolutionary narrative too narrowly focussed and insular.In seeking to examine and explain the jurisdictions' apparent drive to the middle, we propose a distinctive evolutionary narrative, that of convergence, which, as well as adopting a less parochial perspective on developments in healthcare policy, also situates the reforms politically, constitutionally and comparatively. RoadmapTo substantiate the idea of convergence thi...

Introduction

“…He concludes with a call for greater regulatory attention to merger and divestiture activities. Jamie Fletcher and Jane Marriott, 8 two legal scholars working in the U.K., provide the last contribution to the policy section of this volume. These researchers describe recent healthcare reforms in the U. S. (Affordable Care Act) and in the U.K. (Health and Social Care Act of 2012), and assess them on a metric of "revolution" or "evolution."…”