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EU ‘Public Health’ and ‘Health-care’ Law and Policy 欧盟"公共卫生"和"保健"法律和政策
Pub Date : 2019-02-07 DOI: 10.1093/OSO/9780198788096.003.0003
A. D. Ruijter
Taking into consideration the central health provision in the Treaty, which outlines that health is to be ‘mainstreamed’ in all other EU policies, it could be inferred that EU public health and health-care policy and law is either non-existent as an autonomous policy area, or that it is basically everything, in that all EU public policy is also health policy. This puzzle forms the starting point for this chapter, which describes the nature of EU power in the field of human health currently. The chapter first, as an initial exploration, questions the existence of a European authoritative concept of ‘health’. Second, the chapter takes into consideration the nature of EU policymaking in general and regarding health in particular and develops a concept of EU health law and policy, distinguishing between EU public health and EU health-care law and policy. Last, to draw out the scope of EU health policy more specifically, a historical overview is given of the involvement of the EU in health. The chapter conceptualizes EU power in the field of human health as authoritative allocations of value through the European Union political system with the object of protecting and promoting human health. This conceptualization draws out the scope of policy that will be the central focus for the following chapters.
考虑到《条约》的核心卫生条款,其中概述了卫生应在所有其他欧盟政策中"主流化",可以推断,欧盟公共卫生和卫生保健政策和法律作为一个自主政策领域要么不存在,要么基本上就是一切,因为所有欧盟公共政策也是卫生政策。这一难题构成了本章的起点,本章描述了欧盟目前在人类健康领域的权力性质。第一章,作为初步的探索,质疑欧洲权威的“健康”概念的存在。第二,本章考虑到欧盟政策制定的一般性质,特别是关于卫生的性质,并发展了欧盟卫生法律和政策的概念,区分了欧盟公共卫生和欧盟卫生保健法律和政策。最后,为了更具体地勾勒出欧盟卫生政策的范围,对欧盟在卫生方面的参与进行了历史概述。本章将欧盟在人类健康领域的权力概念化为通过欧盟政治体系对价值进行权威分配,目的是保护和促进人类健康。这种概念化勾勒出政策的范围,这将是以下各章的中心焦点。
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引用次数: 1
EU Public Health: Countermeasures to Swine Flu 欧盟公共卫生:应对猪流感的措施
Pub Date : 2019-02-07 DOI: 10.1093/OSO/9780198788096.003.0005
A. D. Ruijter
This chapter is a case study on the EU’s response to a public health emergency in the form of countermeasures. More specifically, the scope of the case study is the involvement of the EU in the response to the outbreak of swine flu (influenza A H1N1) in 2009–10. The case study explores and maps legally the manner by which health policymaking can become strengthened through intertwining with more formal rules and the impact this may have for EU fundamental rights and values. It illustrates the growth and impact of EU health policy beyond legislative powers, where Member State engagement in EU health policymaking may have an impact beyond what is envisioned in law. The chapter first addresses how measures to counter a public health emergency can be taken at EU level, particularly focusing on the institutional actors. Second, the chapter identifies the countermeasures taken at EU level to combat the swine flu pandemic. Third, the chapter looks at the ways informal health policy (deliberately) intertwines with more formal regulation. Lastly, the impact of EU health law and policy in this particular case is analysed in terms of fundamental rights and values. The case study shows that the precarious balancing between public health and individual rights is not done by Member States alone.
本章是欧盟以对策形式应对突发公共卫生事件的案例研究。更具体地说,案例研究的范围是欧盟参与应对2009 - 2010年爆发的猪流感(甲型H1N1流感)。本案例研究从法律上探索和描绘了卫生政策制定可以通过与更正式的规则相互交织而得到加强的方式,以及这可能对欧盟基本权利和价值观产生的影响。它说明了欧盟卫生政策在立法权力之外的增长和影响,会员国参与欧盟卫生政策的制定可能产生超出法律设想的影响。本章首先讨论如何在欧盟一级采取措施应对突发公共卫生事件,特别侧重于机构行为者。其次,本章确定了在欧盟层面采取的对抗猪流感大流行的对策。第三,本章考察了非正式卫生政策(故意)与更正式的监管交织在一起的方式。最后,从基本权利和价值观的角度分析了欧盟卫生法律和政策在这一特殊情况下的影响。案例研究表明,公共卫生和个人权利之间不稳定的平衡不是会员国独自完成的。
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引用次数: 2
European Union Rights and Values in Human Health 欧洲联盟人类健康的权利和价值
Pub Date : 2019-02-07 DOI: 10.1093/OSO/9780198788096.003.0002
A. D. Ruijter
This book looks at the impact of the expanding power of the EU in terms of fundamental rights and values. The current chapter lays down the framework for this analysis. Law did not always have a central role to play in the context of medicine and health. The role of law grew after the Second Word War and the Nuremberg Doctors Trials (1947), in which preventing the repetition of atrocities that were committed in the name of medicine became a guidepost for future law regarding patients’ rights and bioethics. In the period after the War, across the EU Member States, health law developed as a legal discipline in which a balance was struck in medicine and public health between law, bioethics, and fundamental rights. The role of EU fundamental rights protections in the context of public health and health care developed in relation with the growth of multilevel governance and litigation (national, international, Council of Europe, and European Union). For the analysis here, this chapter develops an EU rights and values framework that goes beyond the strictly legal and allows for a ‘normative language’ that takes into consideration fundamental rights as an expression of important shared values in the context of the European Union. The perspective of EU fundamental rights and values can demonstrate possible tensions caused by EU health policy: implications in terms of fundamental rights can show how highly sensitive national policy issues may be affected by the Member States’ participation in EU policymaking activities.
这本书着眼于欧盟在基本权利和价值观方面不断扩大的权力所带来的影响。本章为这一分析奠定了框架。法律并不总是在医学和卫生方面发挥核心作用。在第二次世界大战和纽伦堡医生审判(1947年)之后,法律的作用得到了加强,在这场审判中,防止以医学名义犯下的暴行的重演成为未来有关患者权利和生物伦理的法律的路标。在战后时期,在整个欧盟成员国,卫生法发展成为一门法律学科,在医学和公共卫生方面在法律、生物伦理和基本权利之间取得了平衡。随着多层次治理和诉讼(国家、国际、欧洲委员会和欧洲联盟)的增长,欧盟在公共卫生和保健方面保护基本权利的作用得到了发展。对于这里的分析,本章发展了一个超越严格法律的欧盟权利和价值观框架,并允许一种“规范性语言”,将基本权利考虑为欧盟背景下重要的共同价值观的表达。欧盟基本权利和价值观的观点可以表明欧盟卫生政策可能造成的紧张局势:基本权利方面的影响可以表明,成员国参与欧盟决策活动可能对高度敏感的国家政策问题产生怎样的影响。
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引用次数: 0
The Silent Revolution in EU Health Law and Policy 欧盟卫生法律和政策的无声革命
Pub Date : 2019-02-07 DOI: 10.1093/OSO/9780198788096.003.0001
A. D. Ruijter
The first chapter outlines that most national health laws assume a special connection between health law and policy and fundamental rights and values. The denial or approval of authorization of a specific controversial medication, or the payment for health care in a Member State other than the home state of insurance—and many of the other questions and issues that are addressed in the EU with regard to human health—illustrate that the involvement of the EU in human health can also involve controversial questions, where fundamental rights, bioethical issues, regulatory problems, and redistributive choices may intertwine. This calls into question the power the EU has in this regard, particularly if we take into consideration that human health law and policy are often seen in light of a special reciprocal relationship with fundamental rights and values. Infringements of fundamental rights can harm human health, for instance in cases of torture, or discrimination against people with a particular disease such as HIV/AIDS or mental disorders. At the same time health policy can affect fundamental rights, such as when obligatory vaccination programmes or quarantines are ordered. Hence fundamental rights and values form a benchmark for analysing the legitimacy of health policy. The specific values and rights that are internal to health law set the agenda for this book.
第一章概述了大多数国家卫生法在卫生法和政策以及基本权利和价值之间具有特殊的联系。拒绝或批准一种特定的有争议的药物的授权,或者在保险的母国以外的成员国支付医疗保健费用,以及在欧盟处理的关于人类健康的许多其他问题和问题,说明欧盟对人类健康的参与也可能涉及有争议的问题,其中基本权利、生物伦理问题、监管问题和再分配选择可能相互交织。这令人质疑欧盟在这方面的权力,特别是如果我们考虑到人类健康法律和政策往往被视为与基本权利和价值观的特殊互惠关系。侵犯基本权利可能损害人的健康,例如酷刑,或歧视患有艾滋病毒/艾滋病或精神失常等特定疾病的人。与此同时,卫生政策可能影响基本权利,例如强制性疫苗接种规划或下令进行隔离。因此,基本权利和价值观构成了分析卫生政策合法性的基准。具体的价值和权利,是内部的卫生法设置了这本书的议程。
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引用次数: 0
The EU Constitutional Constraints on the Intrinsic Relationship of Values, Rights, and Human Health 欧盟宪法对价值、权利和人类健康内在关系的制约
Pub Date : 2019-02-07 DOI: 10.1093/OSO/9780198788096.003.0007
A. D. Ruijter
The main thrust of this last chapter is that, while the EU’s power in public health and health care is expanding, the current constitutional doctrines for constraining EU power in the field of human health are not designed specifically with human health in mind and therefore are not capable of safeguarding the values and rights that are intrinsically connected to human health law and policy. The constitutional setting of the EU affects the place and protection of values and rights in EU health law that are central to the health law of the Member States—values and rights such as human dignity, equality, and solidarity. At Member State level, EU law affects health law, as it is approached as a barrier to trade, whereas at EU level, health law is re-created, but its inherent values are often depoliticized through science or lose significance in light of ‘higher’ internal market objectives. If the EU is expanding its powers in human health, and there are constitutional constraints to offer fundamental rights protections to individuals and populations, the legitimacy of EU power in health can be questioned. Hence, considering the reciprocal relationship of health policy with fundamental rights and values, EU health policy has an important role to play in the legitimacy of the EU political system itself, and this might involve taking a step back from its growing power in the field of human health.
最后一章的主旨是,虽然欧盟在公共卫生和医疗保健方面的权力正在扩大,但目前限制欧盟在人类健康领域权力的宪法理论并不是专门为人类健康而设计的,因此无法维护与人类健康法律和政策内在联系的价值观和权利。欧盟的宪法环境影响到欧盟卫生法中价值和权利的地位和保护,这些价值和权利是成员国卫生法的核心,如人的尊严、平等和团结。在成员国一级,欧盟法律影响卫生法,因为它被视为贸易壁垒,而在欧盟一级,卫生法被重新创造,但其固有价值往往通过科学去政治化,或鉴于“更高”的内部市场目标而失去意义。如果欧盟正在扩大其在人类健康方面的权力,并且存在宪法限制,无法向个人和人口提供基本权利保护,那么欧盟在健康方面权力的合法性就会受到质疑。因此,考虑到卫生政策与基本权利和价值观的相互关系,欧盟卫生政策在欧盟政治体系本身的合法性方面发挥着重要作用,这可能涉及从其在人类健康领域日益增长的权力中退后一步。
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引用次数: 0
Institutional Build-up of EU Health Actors 建立欧盟卫生行为体的机构
Pub Date : 2019-02-07 DOI: 10.1093/OSO/9780198788096.003.0004
A. D. Ruijter
The growth of substantive EU public health and individual health policy and law is matched by a historic build-up of EU institutional actors. The institutional expansion has increased the EU’s capacity for law- and policy-making in the field of health and as such the possibility for the growth of EU power in this area. This chapter traces the evolution and growing presence of EU institutional actors in human health. It outlines the relevance of the growing institutional capacity for creating EU health law and policy. Subsequently a sketch is drawn of the emergence of EU institutional involvement in health policy—while taking into consideration that it may not be possible to create an exhaustive overview of all health actors involved at the EU level. This outline illustrates the growth of a variety of institutional actors and the expanding number of ways these engage in health policymaking. Moreover, the chapter demonstrates various ways in which EU institutional involvement in health is continuously expanding and changing. It illustrates that there is ample opportunity for formal actors with legislative or regulatory powers to be involved in informal processes of coordinating policy in the shadow of hierarchy. The growing institutional presence of the EU in health policy over time, and the possible shift in power to the EU this can entail, again confronts us with the pressing issue of its impact on fundamental rights and values in health.
实质性的欧盟公共卫生和个人卫生政策和法律的增长与欧盟机构行动者的历史性建立相匹配。机构的扩大增加了欧盟在卫生领域的法律和决策能力,因此也增加了欧盟在这一领域权力增长的可能性。本章追溯了欧盟机构行为体在人类健康方面的演变和日益增长的存在。它概述了制定欧盟卫生法律和政策的机构能力日益增强的相关性。随后,对欧盟机构参与卫生政策的出现进行了概述,同时考虑到可能不可能对欧盟层面参与的所有卫生行为体进行详尽的概述。本纲要说明了各种机构行为体的增长,以及它们参与卫生政策制定的方式越来越多。此外,本章还展示了欧盟机构参与卫生工作不断扩大和变化的各种方式。它表明,在等级制度的阴影下,拥有立法或监管权力的正式行为者有充分的机会参与协调政策的非正式过程。随着时间的推移,欧盟在卫生政策方面的机构存在日益增加,权力可能向欧盟转移,这再次使我们面临其对卫生方面基本权利和价值观的影响这一紧迫问题。
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引用次数: 0
EU Health Care: Access to Medical Care 欧盟卫生保健:获得医疗保健
Pub Date : 2019-02-07 DOI: 10.1093/oso/9780198788096.003.0006
A. D. Ruijter
This chapter examines developments regarding EU legislation in the area of health care, rather than public health. The chapter is a case study looking into the processes and the involvement of different EU institutional actors and policy mechanisms in the adoption of the Directive on patients’ rights in cross-border health care (‘the Directive’). First, the chapter introduces the Directive itself, and considers whether it expands access to health care across the EU. Second, it turns to the way the Directive was adopted, focusing particularly on the different roles of EU institutional actors and the discourse and controversies that developed in health care in the EU as a result of the legislative process. Last, the chapter addresses the expansion of EU health-care policy beyond the adoption of the new Directive that resulted from the increased discourse on health care and its impact for individual rights and access to health care.
本章审查欧盟在卫生保健领域的立法发展,而不是公共卫生领域。本章是一个案例研究,探讨了在通过《关于跨境医疗保健中患者权利的指令》(《指令》)过程中不同欧盟机构行为者和政策机制的参与情况。首先,本章介绍了指令本身,并考虑它是否扩大了整个欧盟获得医疗保健的机会。其次,它转向指令的通过方式,特别侧重于欧盟机构行动者的不同角色以及由于立法程序而在欧盟卫生保健领域发展起来的话语和争议。最后,本章讨论了欧盟卫生保健政策的扩展,超出了关于卫生保健及其对个人权利和获得卫生保健的影响的讨论增加而通过的新指令。
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引用次数: 0
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EU Health Law & Policy
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