National laws      FSM Constitution The Constitution of Federated States of Micronesia speaks of a right to health and a government duty to provide health services to the citizens of FSM. Article XIII (1) of the FSM Constitution states: The national government of the Federated States of Micronesia recognizes the right of the people to education, health care, and legal services and shall take every step reasonable and necessary to provide these services. [xviii] Article XIII is often referred to as the Professional Services Clause for the FSM government. There is a case that seems to convey that the FSM Supreme court recognizes a right to health in FSM. In Leeruw v. FSM [xix] , the court considered the vicarious liability of the national government for the negligent actions of the FSM liaison office and its staff in Guam, on grounds that the office failed to arrange for transportation of an incapacitated FSM citizen from Guam to Honolulu for medical treatment. In this case, Leeruw, a 19 year old, had problems with her artificial heart valve. Yap State hospital decided to send her off-island for replacement of her heart valve. She was first to be sent to Guam for stabilization, and then moved on to Honolulu for the replacement of the heart valve. By law, the national government through FSM Liaison Office in Guam assumes responsibility to provide medical referral assistance to FSM citizens in Guam. In reliance upon this liaison office policy, Yap state officials sent Leeruw to Guam. When she arrived in Guam, officials from the liaison office met her and immediately took her to the Guam Memorial Hospital for stabilization.  After examination, Leeruw's doctor in Guam advised that Leeruw be sent off immediately to Hawaii on the first available flight because her condition was deteriorating. Unfortunately however, arrangements for Leeruw's flight to Honolulu did not proceed apace. Yap had issued a round trip ticket between Yap and Guam but there was no ticket for the flight to Hawaii. The liaison office was aware of this problem but did not take any immediate action to obtain a ticket for Leeruw's flight to Honolulu. Leeruw missed the earliest available flight to Hawaii. She died in Guam Memorial Hospital while waiting for the next available flight. Leeruw's parents sued the Yap state hospital and National Government for action in wrongful death action. Yap State made a settlement with the plaintiff and was dismissed from the action. The question that went before the court was whether the liaison office, and hence the national government, owed a duty of care to Leeruw? The court ruled: There can be no question that the liaison office owed a duty to Ms. Leeruw.  Acting pursuant to statutory authorizations and administrative directives, the national government has caused the FSM liaison offices to assume responsibility for providing medical referral assistance to FSM citizens.  In reliance upon this liaison office policy, Yap state officials sent Ms. Leeruw to Guam, thus rendering her dependent upon the assistance of the liaison office. [xx] More importantly is the court's response to the defendant's claim for sovereign immunity defense. The court responded in pertinent part:     'In the Professional Services Clause of the Constitution, the national government recognizes the "right of the people" to "health care" and pledges that it "shall take every step reasonable and necessary" to provide such service.  FSM Const. art. XIII, ' 1.  The clause surely demands consideration in a case such as this where plaintiffs claim, in essence, that the national government did not take the "reasonable and necessary" steps for Ms.Leeruw's medical referral and that she was thereby deprived of her "right...to...health care." [xxi] (Emphasis added). The plaintiff was awarded judgment against the FSM national government in the amount of $36,600.00. It is not really clear whether the court's decision in Leeruw construed that Article XIII of the FSM Constitution confers a constitutional right to health care, but if it did then it is likely that there is a right to health care and a public duty to finance medical referral treatment. A right to health care would make a strong legal argument that free medical referral services is an ancillary right. However, in Carlos v FSM [xxii] , it is clear that Article XIII (1) of the FSM Constitution does not confer a right to health. The Chief Justice of Supreme Court, in this case, stated:     The precise meaning of this section [Article XIII (1) of the FSM Constitution] is far from clear.  The Journal of the Micronesian Constitutional Convention of 1975 indicates that many members of the convention viewed the provision as a commitment by the national government directly to provide education, health care, and legal services.  In recommending the provision, the convention's Committee on Civil Liberties stated that it wished to "establish a national policy of providing the services contained in this proposal as the new nation acquires the revenue  necessary to implement this policy."  SCREP No. 52, II J. of Micro. Con. Con. 881, 882. However, the committee acknowledged that it would be impossible to provide all of such services. The services spoken of under Article XIII of the FSM Constitution, according to Carlos [xxiii] , are therefore merely welfare rights but not a fundamental right. [xxiv] At this point one could assert that there is no right to health, however the national court's ruling cannot be taken to be the position of the law in isolation of the states position. Why? Autonomy of the states The state's autonomy is an entrenched concept in FSM laws and is one of the foundations of the FSM Constitution. Ms. Marstella Jack emphasized such in her working article in the Journal of the South Pacific, when she reported:    When the framers of the Constitution deliberated over this issue [State Autonomy], it was recognized that whilst a "homogeneous people living in a geographically compact area can perhaps have their aspirations best served by an all powerful national government, nations such as Micronesia which lack the bond of common cultural origin and further lack the advantage of compact geography must permit local autonomy in order to have efficient government, and to avoid the destructive consequences, real or imagined, of domination by one group over another." The FSM Government structure was thus established upon this foundation that there be a union of autonomous states with state rule constitutionally guaranteed. The collective government of all the states is responsible for external affairs and for the solution of all national problems, whereas the individual states are responsible for all other affairs of the government. [xxv] (Emphasize added). Owing to the federal system of government, the state governments in FSM are very much autonomous in certain public undertakings from the federal government. In most instances, the national court's ruling is binding on the state level, however when it comes to health issues it is a different story. It used to be that national and state governments have concurrent powers over health matters. However, the national government's role in health services was redefined in 1990. Currently, the state governments have full responsibilities for health-related matters [xxvi] meaning public hospitals are state entities rendering the bulk of medical health laws to be under the states' jurisdiction. It is therefore appropriate to review the state laws at this point. State Laws      State Constitutions State constitutions are very broad in terms of health care services.? For instance, Article 7, Section 4 of Pohnpei State Constitution states:     The Government of Pohnpei shall provide health care services for the public. Equally the constitution of Kosrae, under Article XII (Titled Education and Health) section 1 states:     (1) The State Government shall promote education and health. The State constitutions have no equivalent provision to article XIII (1) of the FSM Constitution therefore, making it difficult to construe, on the face of it, that there is a right to health care. However, there are case laws that illuminate the states' position. The case of Panuelo v Pohnpei [xxvii] directly addresses the issue of a right to health care. In this case, Elizabeth Panuelo, an infant child, was admitted to the Pohnpei State Hospital with complaints of bruising and decreased energy and appetite.  Local diagnostic testing supported the initial diagnosis of leukemia.  She was later sent to Tripler Army Medical Center in Honolulu, Hawaii, where it was discovered that she was suffering from severe aplastic anemia, a condition which without treatment would lead to her death.  The defendant (Pohnpei State government) decided against funding a bone marrow transplant that would have saved Elizabeth's life.  Elizabeth died. The infant's parents consequently, filed a lawsuit in the FSM Supreme Court against the Government of Pohnpei and the Federated States of Micronesia for damages for the alleged wrongful death of their child. The Plaintiffs claimed that the defendants, by that decision, violated article 7, section 4(1) of the Pohnpei Constitution, which states:     (1) The Government of Pohnpei shall provide health care services for the public. The issue before the court was whether article 7 of the Pohnpei Constitution is self-executing, creating substantive rights that individuals can seek to enforce in a court of law. The Appellate Division of the Pohnpei Supreme Court reached a unanimous decision ruling:     ...it is the intent of the framers of the Pohnpei Constitution that the Pohnpei Government as the custodian of the welfare of the people shall be empowered and charged to undertake certain specified responsibilities for the educational, cultural and health needs of the people as a whole having regard to the financial constraints of the Government. Since the financial resources of governments all over the world are limited there is no need to say that there is a limit to which a government can provide amenities and services to the people. To think otherwise makes no sense to us.     We are persuaded  [the] constitutional provision that is merely directory and cannot be enforced by the courts.  Article 7 of the Pohnpei Constitution merely requires that certain things be done by the Pohnpei Government, without prescribing the result that shall follow, if those things are not done. Any such statute is directory in character. It contains mere matters of direction and are not followed by words of positive prohibition.     Yet another consideration that fortifies us in our view that Article 7 of the Pohnpei Constitution is merely directory is the fact that in contrast to Article 4 which deals with fundamental rights, Article 4 is prohibitive in terms whereas Article 7 provisions are not.Thus the contrasting formats of these two articles of the Pohnpei Constitution lead us to the view that the framers of the Constitution intended to achieve two different objects - by Article 4 to confer legally enforceable rights on individuals; and by Article 7 not to confer such enforceable rights. It takes a rather strange jurisprudence to think that the effect of the two articles in the Constitution is the same. [xxviii] The Panuelo case reflects the state's disapproval of a right to health. It seems apparent from the excerpt above that the States will not recognize a statutory right to health care. The court in Panuelo emphasized that the Constitution of Pohnpei does not confer a statutory right to health care which was the basis of the plaintiff?s claim. If there is no right to health then the question that arises now is whether the law imposed a duty on the state hospitals to finance offshore medical referral treatment? Given that the law does not recognize a right to health care, determination of the second issue will require two things to be done. Firstly, it must be determined whether the public hospitals have a legal duty to provide health care to medical patients; and secondly it must determine whether the scope of such duty is extended to the financing of medical referral treatment. Continued fsmhealth3