Contested health paradigms: whose future rules?

1. Contested health paradigms: whose future rules? Professor Jane Kelsey, School of Law, The University of Auckland, New Zealand

2. Overview NZ’s contested market model Global rules, aiming for the ultimate … Contested health paradigms in the Trans-Pacific Partnership Agreement (TPPA): • Pharmaceuticals • Tobacco • Contracts & PPPs Fightback and the future

3. Market rules NZ’s contested paradigm for health care: • Fiscal cuts & capped budgets • Commercialised governance structures (CHEs & RHAs!) • Health insurance & privatised ACC • Labour market deregulation • Outsourcing: staff, testing, meals, cleaning • Rationing of medicines & surgery • User pays education • Privatised aged care • PPP hospitals

4. Industry shapes global rules, 1995 Industry framed global monopoly rights on intellectual property, including medicines We went to Geneva where we presented (our) document to the staff of the GATT Secretariat. What I have described to you is absolutely unprecedented in GATT. Industry has identified a major problem in international trade. It crafted a solution, reduced it to a concrete proposal and sold it to our own and other governments ... The industries and traders of world commerce have played simultaneously the role of patient, the diagnostician and the prescribing physician.[Monsanto official, 1995]

5. ‘Trade’ agenda for health 1998 Trade-related considerations have not proved a dominant policy concern, apart from issues related to the international migration of staff. … However, the picture seems to be gradually brightening over time, owing in particular to two complementary developments: First, regulatory regimes in various countries have been moving towards stronger market orientation – opening space for increased private involvement, domestic and foreign – and, second, technical changes are increasingly enabling certain services, or at least sub-segments, to be transmitted electronically between countries and continents. (WTO Secretariat 1998)

6. UNITAID on the TPPA 2014 The analysis in this report supports the view that the TPPA, if adopted, will have major implications for public health and access to medicines. …The primary concern is that the implementation of the provisions … as they currently stand, will restrict the adoption of policy options … to ensure that trade or commercial interests do not hinder the protection of health and human development …. While the promotion of trade and economic growth is certainly important, it must be balanced against the need to ensure both a population’s access to needed medicines and its long-term health and well-being. Policy-makers should be wary of the effect of the USA’s TPPA proposal on the gains achieved in global public health.

7. Issues for Public Health in TPPA Social role of health system is not relevant for TPPA Commercial operation within a global health market Target areas: Private for-profit hospitals or auxiliary services (eg lab testing) Private health insurance Public Private Partnerships Health IT & on-line & cross-border health services Pharmaceuticals & medical devices Buying blood products Nutritional & dietary supplements GM foods, food standards and origin labelling

8. Medicines & medical devices Big Phrma sees Pharmac as a dangerous model for the world 3 main components in TPPA: • IP: extend monopoly terms for patents & limit generics • Transparency: more industry influence over Pharmac • investment, denial of patent or changing rules can be challenged in investment tribunal – Eli Lilly seeking $500m from Canada for applying domestic law

9. Tobacco & Alcohol Framework Convention on Tobacco Control Maori Affairs Committee: NZ Smoke Free 2025 Restrictions on • distribution services • advertising services • labelling of products Big tobacco complains policies reduce value of investment Threats designed for government to back off Philip Morris suing Australia in WTO and investment treaty NZ has few such treaties NZ Plain Packaging law delayed until Australia’s challenges are over

10. Contracting-out & PPPs Long term (30 year) contracts to build & operate schools - & hospitals? Procurement contracts open to foreign bidders Consortium of construction, finance, management Contracts sold in secondary markets Sub-contracts – ambulance, x-rays, blood supply, personnel, catering, … can’t favour locals Cost pressures on quality, staffing, turnover Govt remains provider of last resort when goes wrong Investment, right to sue if changes that reduce value or profitability PPP has priority call on future health funds in a fiscal crisis

11. Fightback & the Future Strong resistance from WHO, international groups (eg MSF), professional health bodies, some governments Leaked texts show what was demanded Resistance has forced concessions But NZ will make trade-offs for commercial gains (eg dairy) US will insist that NZ adopts its interpretation of NZ obligations Once TPPA rules apply, door is locked on post-neoliberal future Commercial interests can influence decisions Least restrictive policies to achieve health objectives Investors can challenge new laws that affect their profits