Law, Social Justice & Global Development
(An Electronic Law Journal)
Law and the Commodification of Health Care in Tanzania
John A Harrington
Lecturer in Law,
University of Warwick, UK
This is a refereed article published on: 20 January 2004
Citation: Harrington, J, ‘Law and the Commodification of Health Care in Tanzania’, 2003 (2) Law, Social Justice & Global Development Journal (LGD).
This paper examines the manner in which the tensions created by health care reforms in Tanzania were manifested in problems of law and professional regulation. The extensive privatisation of health provision and the introduction of user fees in the public sector rested upon a commodification of health care which was itself only possible through the deployment of contract models. Tort litigation was recommended as a channel of accountability but only resulted in a further skewing of resources towards the wealthy. The stresses created by the advertising of medical services and by doctors’ abandonment of altruistic goals were reflected in the disciplinary case load of the Medical Council in Tanzania. Professional ethics and privileges adopted during the colonial period were unable to withstand the pressures of the market. The paper also attempts to locate these processes within the context of global liberalisation of health care services, whether through Structural Adjustment Programmes (SAPS), or the General Agreement on Trade in Services (GATS). As such the Tanzanian experience can illustrate some of the possible legal and regulatory consequences of the current part-privatisation of health care provision in Britain.
Keywords: Commodification, GATS, Health Care, Liberalisation, Medical Practice, Privatisation, Structural Adjustment, Tanzania,
Health care services, especially in the west, have traditionally been delivered by a mix of nationalised, charitable and insurance-funded institutions. As such they were long seen as resistant to commodification and outside investment. This is no longer true. Sponsored by the World Trade Organisation (WTO), the General Agreement on Trade in Services (GATS) promises to ‘open up’ health care, among many other sectors, to inward investment. This privatisation of health care is driven in the first instance by the requirement under GATS that foreign companies seeking to provide services not be at a disadvantage relative to their local competitors. Barriers to entry such as tariffs, restrictions on capital movement and special licensing regimes will have to be removed as specific services come up for negotiation under GATS at the WTO. Admittedly Art 1.3(b) of GATS exempts from competition services provided in the exercise of governmental authority. Yet this protection is immediately cut down by Art 1.3(c) which states that any public service supplied on a commercial basis or in competition with other providers should be opened up to foreign companies. Under pressure from health care multinationals and others it is probable that trade negotiators and disputes panels will take a broad, pro-competition view of these provisions.1 For example, once a part of the health care system, such as blood testing, is subject to competition, that will have to be opened up to non-national providers. GATS can thus be seen as a global free-trade battering ram behind which private capital can swarm into health care.2
Progressive commentators have highlighted the likely consequences of this liberalisation drive for health care users in the west. They focus particularly on the threats to the standard of service provision, to equality of access, and to employment conditions in the sector. For example, in the United Kingdom so-called ‘Private Finance Initiatives’ allow companies to take over the running and ownership of National Health Service (NHS) facilities.3 Evidence to date indicates that the cost to the public of paying private companies to make this capital investment greatly exceeds the cost of doing so through government borrowing. In seeking to maximise their returns private companies now embedded in the NHS have cut back on staff and bed numbers, sold off valuable land adjacent to hospitals, and transferred most of the risk involved in their ventures to the local health authorities.4 They have also begun to package the care offered to patients: dividing it into free services still funded by the NHS, and restricted services (eg private rooms) for which the patient must pay. A two-tier health service may now be realised, not only as between public and private hospitals, but within NHS facilities themselves.5
The United Kingdom under the Thatcher and Major governments was a world leader in the privatisation of state-owned industries in the 1980s and 1990s. Initially under pressure of the International Monetary Fund and in response to the 1970s crisis of accumulation, it pioneered techniques of retrenchment in telecoms, transport, utilities and manufacturing which were exported around the globe.6 With the United States, Britain is a pillar of the so-called Washington consensus which supports the efforts of the Bretton Woods institutions to create global markets and to ‘reform’ poor country economies through structural adjustment and other programmes.7 These liberalisation drives have produced a radical mutilation and privatisation, not only of productive state activities, but also of non-productive sectors such as health care.8 To this extent the experience of a country such as Tanzania can now be said to exceed that of the United Kingdom, where even Conservative governments were reluctant to withdraw entitlements to medical care. Close examination of the Tanzanian experience can be instructive, therefore, to British scholars seeking to predict the form and consequences of liberalising health care and other welfare services. As in the colonial period, so too now in the post-Cold War era, the more vulnerable periphery is proving a fertile testing ground for possible ‘reforms’ in the metropolitan core.
This essay is a brief study of the commodification of health care in Tanzania. In particular it seeks to explicate the role of specific legal forms in this process. It rests on the basic thesis that the forms of contract, tort liability, and professional self-regulation are profoundly implicated in the marketisation of health services in Tanzania. More than this however, the process of commodifying and privatising a service long-oriented by non-commercial values is beset by contradictions which can be read off from the practical difficulties of contracting, litigating and regulating. These issues are perhaps of greatest importance to the people of Tanzania, their doctors and lawyers. In addition, however, the fate of colonial, essentially British legal forms under pressure of adjustment and retrenchment can be made to speak back to the ‘mother country’, itself about to endure a similar phase. As such, in a very modest way this essay takes up Baxi’s challenge to remove:
common law scholarship [from the] conceptual cloisters that often ignore the historic causes of world impoverishment, especially the impact of colonial and imperial common law practices and performances.9