Touro Law Review

Touro Law Review


Kia C. Franklin


Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize around creating a civil right to counsel in New York State. At this conference, entitled An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, participants split into panel sessions to discuss the various issue areas in which such a right could attach. One such panel discussed how establishing a right to counsel in health related proceedings could improve patients' healthcare experiences and produce greater benefits to the health care system as a whole. This reflection emerges from that discussion as an exploration of the issues and questions raised therein.

The creation of a legal right to counsel for individuals with critical health related claims would meet a crucial and overlooked need in society. Not only would creation of such a right potentially improve healthcare for individuals, it would also improve the functionality of the health care system as a whole.

This Article explores strategic considerations and challenges involved with establishing a right to representation in health-related adjudications. First, it asks, in what type of proceedings are health related decisions being made, and in which of those proceedings would a civil right to counsel be beneficial? Second, what are the potential benefits and savings to anticipate from establishing this right? Third, what are the risks or stakes involved for individuals in these proceedings who do not have access to counsel? And fourth, what barriers or limitations would prevent people from obtaining access to counsel even if the right were established?

As advocates address practical concerns about financing and implementing a right to counsel in health proceedings, they also must identify the core values that mandate the creation of this right. This includes values for human dignity, the human right to health, and fundamental fairness and accountability in the systems upon which we rely for our safety and security.

It is the panel's hope that this reflection will launch a larger, sustained conversation among healthcare advocates, patients, and access to counsel advocates about how to meet this important need. By working together to articulate a vision for civil legal and public health systems that work effectively and equitably for all people, regardless of their income or background, health and right to counsel advocates can achieve the progress necessary to create a civil right to counsel in health proceedings.