Assessing Path Dependency in Vietnam’s Healthcare Legal Framework: Exploring Public–Private Collaboration in Ho Chi Minh City during the COVID-19 Crisis

Abstract

The COVID-19 pandemic prompted a nudge for public–private cooperation in healthcare to rapidly cope with limited resource. However, Vietnam’s historical reliance on a public healthcare system, combined with a traditional emphasis on socialization in the Polanyian sense, hindered the swift integration of the private sector. This research investigates path dependency in Vietnam’s public health sector, using theories including path dependency, Karl Polanyi’s double movement with legal analysis method to analyze the interplay of historical decisions, and socialist policies in healthcare. Recognizing these institutional and market governance flaws, a deeper understanding of the role of law becomes vital in crafting strategies for a more resilient and sustainable healthcare system in Vietnam. In this article, Ho Chi Minh City is chosen as a case study due to its notable mix of public–private healthcare facilities and its status as a leading area in infection cases during the third COVID-19 wave. The article suggests that there should be a change in the way public and private sectors work together, one that is more in line with market-driven solutions which requires solid legal framework for cooperation beyond merely mobilizing resources.

Introduction

In 2020, Vietnam was spotlighted as one of the world’s leading success in responding to COVID-19, using a low-cost model (Reed 2020) and adaptive behavior tactics (Nguyen and Wilson 2017) to combat the outbreak. The ground of this success is arguably the “broad and deep” development of Vietnam’s public health sector to ensure equal access for all, with a clear orientation of socialism principles that healthcare should be based on need, not ability to pay (Elaine 1980). The values of equality, comprehensiveness, and universality in healthcare are concisely represented in the motto “no one is left behind” (“khong ai bi bo lai phia sau” in Vietnamese), which clearly reflects the national campaign for vaccination, testing, and treatment of COVID-19 patients. It aligns with traditional public health law which requires centralized coordination through government actions due to collective action challenges known as “tragedy of the commons” issues (Underhill 2020). The abovementioned public healthcare ideology has been clearly stipulated in Article 20 of the 2013 Constitution, considering that the enjoyment of healthcare is a legal right of every citizen, regardless of the ability to pay.

As the severity of the disease escalated in Vietnam since July 2020, necessitating a collaborative effort between public and private sectors, a pragmatic change in public health strategy became necessary. However, Vietnam’s response demonstrated characteristics of the “path dependency” theory, particularly in its delayed measures to call for private sector involvement. The lack of legitimacy also becomes evident in the context of coping with a public health crisis in Vietnam, as Vietnam has not structured any legal mechanism for public and private healthcare facilities cooperation for emergency response, and no legal enactment was utilized as that time.

Although the prerogative model, characterized by organizing various actors through a series of administrative orders and coercive measures, was evident in the Vietnamese government’s public health strategy during the fight against COVID-19 pandemic, it was not effectively employed in this particular situation. It took a significant amount of time for the authorities to address the public–private cooperation issue formally in their agenda and in official guidelines, which resulted in undesired corruption, market distortion, and ineffective policy implementation as there had been no governance measures timely introduced. Thus, Vietnam’s adherence to its established public health ideology, while initially successful, revealed limitations in the face of evolving challenges that required a more integrated approach between different sectors.

Furthermore, with emerging issues not yet regulated in any legal instrument, the advocacy for the legitimacy of imposed administrative measures by the State is necessary. The legitimacy of a State in controlling COVID-19 is influenced by how it exercises its authority and power, which in turn affects how society and its citizens perceive its efforts (Tyler and Jackson 2014). While power can exist without legitimacy, it can only be approved by the public when it adheres to constitutional boundaries (Loo and Findlay 2022). Scholars argue that formal law operates as a magnet that attracts individuals toward a different normative framework (Aldashev et al. 2012), while extralegal measures rely on their legitimacy and the support of the public (Six et al. 2023). Prerogative powers may not conform as closely to democratic legitimacy and the rule of law as statutory powers, posing a risk of the government using them to dodge judicial scrutiny and accountability, thereby potentially compromising its legitimacy (Klinck 2017). Thus, it is essential not to heavily rely on quick-fix administrative actions in emergency context, but to be flexible yet precise in strategy and to implement fast-track legal approval process to justify governmental actions, thereby enhancing public accountability and trust.

This study examines the phenomenon of path dependency in Vietnam’s public health sector, highlighting the challenges in ruling legitimacy when facing major societal threats and emerging issues requiring fast adaptation. The research incorporate path dependency theory and Karl Polanyi’s double movement theory as frameworks to understand policy dynamics, particularly in the context of healthcare. Path dependency theory helps in analyzing how historical decisions shape current policy trajectories, emphasizing the skepticism continuity in policy development. Polanyi’s double movement theory provides a lens to understand the protective measures in healthcare sector of a socialist country like Vietnam. The research methodology also includes legal analysis, scrutinizing laws and regulations to understand how these theories manifest in legal frameworks and their impact on healthcare policy. Following our analysis using the described research methodologies, the article emphasizes the need for new legally established cross-sectoral mechanisms, particularly in fostering public–private partnerships and resource mobilization, during the COVID-19 health crisis.

The study combines data analysis on Vietnam’s public–private collaboration in treating and vaccinating against COVID-19, illustrated by the case study of epidemic control in Ho Chi Minh City, pinpointing areas for future enhancement. Ho Chi Minh City, a major economic hub in Southern Vietnam, is chosen for a case study on epidemics and control measures due to its significant healthcare role, where its hospitals, receiving about 50% of their patients from lower-tier provincial facilities, often treat severe and high-cost illnesses (Le Anh 2020). Thus, the city boasts a high number of hospital beds and central-level hospitals concentrated in the area, resulting in a higher ratio of doctors per 10,000 people compared to other regions (Duong Lieu 2023). Ho Chi Minh City takes center stage as the primary hub for private hospitals, second only to Hanoi, among all provinces and cities in the country (Ministry of Health 2022, Table 1). While public hospitals continue to hold a prominent position in the municipal healthcare system, owing to the professional qualifications of doctors and the size of the facilities, private hospitals have experienced robust and steady growth. As of 2020, private hospitals constitute a substantial proportion compared to public counterparts, with 58 out of 125 in total, representing 46.4% (Le Anh 2020). Their significant contribution has been instrumental in relieving the prevailing pressure stemming from a shortage of treatment facilities. In the context of COVID-19, Ho Chi Minh City recorded the first infected case in Vietnam (Le Hiep 2020). During the four waves of the pandemic from 2020 to 2021, Ho Chi Minh City consistently among the provinces and cities that lead in the number of COVID-19 cases, largely due to its high population density. At the height of the fourth pandemic wave in July 2021, Ho Chi Minh City saw a dramatic increase in COVID-19 cases, with a single-day peak surpassing 3000 infections (Ministry of Health 2021b; Suc Khoe va Doi song 2021). Therefore, Ho Chi Minh City is an ideal subject for exploring public health sector strategies in mobilizing resources from the private sector for collaboration with the public sector, especially in treatment and vaccination, and assessing how central governance facilitates this through directives, orders, and legal rules in emergency context. The experiences and lessons learned from Ho Chi Minh City’s public–private collaboration during the pandemic can serve as valuable references for future actions and strategies in similar situations.

Table 1.

Number and distribution of public and private health facilities in Vietnam by areas

	2019		2020		2021
	Public	Private	Public	Private	Public	Private
Whole Country	292,735	31,048	298,584	32,168	307,740	27,442
Red river Delta	63,361	4174	64,650	4519	64,671	3556
Northern midlands and mountain areas	51,856	1918	52,286	2235	45,080	2539
North Central and Central coastal areas	64,716	8416	68,016	8586	69,271	9127
Central Highlands	15,665	1300	15,665	1300	17,407	1621
South East	46,070	10,543	46,230	10,543	60,442	5725
Mekong River Delta	51,067	4697	51,737	4985	50,869	4874

Source: General Statistics Office. 2021. The Statistical Yearbook. Statistical Publishing House

By analyzing the case of Ho Chi Minh City in Vietnam, the article suggests that it is vital for the government, particularly at the state level, to exercise its unique capacity for coordination through legislative instruments when there is a severe risk posed to society, demanding the adoption of more legitimate approaches through legal provisions, rather than relying solely on collective enforcement through administrative orders and communication. It concludes by proposing potential solutions to enhance adaptive and effective public–private cooperation in response to emergency situations by taking advantages of law legitimacy.

The Mixed Healthcare System in Vietnam: Navigating Socialist Orientations and Path Dependency

In Vietnam, due to the deep influence of the socialist ideology, the State has been assumed the responsibility to provide the highest attainable standard of healthcare to its people irrespective any socioeconomic conditions. Following a period marked by instability, a command economy, and communist governance, Vietnam’s 1986 Doi Moi reforms aimed to revitalize its struggling economy and open up to international ties by fostering a market economy and encouraging private sector competition (Tran 2022). Since the early 1990s when private participants in health service delivery was formally recognized, the Vietnamese health system has been a combination of public and private services, with the former predominates (Nguyen and Wilson 2017). However, the market only plays a supporting role, as the State wants to prevent any undesired healthcare commercialization behavior.

To be more specific, the public hospitals network in Vietnam plays a dominant role among other institutions, which account for approximately 86,33 per cent of tota hospitals, much higher than those in neighboring countries such as China (47 percent), Thailand (74 percent), and the Philippines (40 percent) (Quang et al. 2021). Nearly 19 percent of public hospitals are specialized care institutions, mainly for vulnerable groups (Quang et al. 2021). Besides, a wide network of 11,100 commune health stations forms a grassroots public healthcare system for basic preventive care along with initial diagnoses, treatments, and referrals to public hospitals (Ministry of Health 2021c). Their roles also become distinct in the implementation of public health policy, such as nationwide vaccination which has been maintaining an expanded rate of over 95%, according to the Report No. 1611/BC-BYT of the Ministry of Health on the Review of Healthcare Activities in 2019 and Key Objectives and Strategies for 2020 dated 31 December 2019.

In contrast, the size and scope of the private sector in the healthcare industry are still modest (Table 1). Until 2020, there have been 228 private hospitals established to provide services, comprising of approximately 6.04 per cent of the total nationwide hospitals (Ministry of Health 2021c). In 2021, private hospital beds only account for 8.2% of the total beds. However, there are much more clinics and other healthcare units in private sector, compared to the public counterparts, especially in the Southeast, including the Ho Chi Minh City (Nguyen and Wilson 2017). In 2021, this city had 58 public hospitals and 59 private hospitals (Ministry of Health 2021c). Vingroup and Hoan My Corporations mark the beginning of national hospital and clinic networks by domestic corporations. Nearly 60% of total health spending is on private insurance, and in 2013, direct payments accounted for 85% of it (out-of-pocket expenditure) (Ministry of Health 2021c).

The state of Vietnam’s health sector can be illuminated through the lens of Karl Polanyi’s “double movement” concept, within the unique framework named as “socialist-oriented market regime” (Tran and Ngo 2019),1 which rooted from the market-Leninist regime (London 2008). Karl Polanyi (2001) concerns that a market system driven by individual interests could ultimately prove dysfunctional for social group. Left to their own devices, markets could become destructive to both society and the environment. Therefore, he advocated for the integration of economic activities within norms and regulations to ensure that economic pursuits do not override social well-being and environmental sustainability, by mitigating selfish behaviors and free rider phenomenon through legal and cultural systems.

This aligns with the government’s Leninist roots emphasize social welfare and equity, influencing its response to the challenges posed by market-driven reforms in healthcare. While Marx’s vision of socialism entails abolishing private property and capitalist relations with an emphasis on planning, and Walras defines socialism as simply public ownership, the Leninism refers to “classical socialism” system in state socialist countries focusing on the abolition of private property in favor of public ownership and the dominance of central planning, among other features (Kornai and Qian 2009). Even Vietnam has retained key Leninist elements, central planning is no longer the primary economic coordinator since Doi Moi era from 1980 onward. The evolution of Leninist ideology in Vietnam is evident in the increasingly favorable stance towards private property and the integration of private sector actors into the market, as can be seen by the accelerated growth of private hospitals and clinics. Therefore, it is important to note that in Vietnam, there is no privatization of the healthcare sector, which refers to the process of transferring ownership of a business, enterprise, agency, public service, or public property from the government to the private sector, which conflicts with the socialist principles of state ownership and control over key sectors. Private sector participation, on the other hand, aligns closely with Vietnam’s socialist-oriented market model, which aims to balance market dynamics with socialist ideals.

As a stepping stone for this evolutionary approach of socialist-oriented market model in healthcare sector, in line with the Decision No. 92/QD—TTg of the Prime Minister on the Approval of the Hospital Overcrowding Reduction Plan for the period 2013–2020 (Decision 92), the Notification No. 418/TB-BYT dated 9 May 2014 of the Minister of Health (MOH) (Notification 418) urging cooperation between State-owned and private hospital hospitals is evident for the increasing potential of private healthcare facilities in terms of public acceptance and helping response to overload in patient cases. Clause 1 of the Notification 418 presents a shift towards recognizing private hospitals as equal partners with public hospitals.2 This approach is anchored in the principle of prioritizing patient welfare above all else, ensuring their safety, satisfaction, and access to the highest quality of service. Collaborations between public and private sectors are grounded in voluntary participation, emphasizing equality and mutual benefit. Transparency and openness are key in these cooperative mechanisms, ensuring clear, accountable processes. Additionally, there’s a consensus on shared responsibility, with both sectors pooling resources, responsibilities, and capabilities. Importantly, all collaborations operate within the legal framework, ensuring compliance with national laws and regulations. This paradigm marks a significant move towards a more integrated, equitable healthcare system, breaking away from traditional hierarchies. This shift represents a departure from traditional Marxist-Leninist doctrines, blending market economics with socialist orientation.

However, Clause 3 of such Notification 418 requires private hospitals wishing to collaborate with public hospitals in medical examinations and treatment must negotiate, agree, and draft a pilot project proposal according to relevant contents, and then submit it to the Department of Medical Examination and Treatment for review and approval by the Ministry’s leadership.3 Another obstacle arises from the requirement that mandates “hospital directors should be dynamic, innovative, and proactive in cooperating with public hospitals within the framework permitted by law (emphasis added).”4 This process indicates that private sector participation is still subject to consideration and requires authorization from state administrative bodies, restricted within the existing law. It demonstrates a clear example of path dependency in institutional and policy practices, which refers to the way historical practices and decisions influence and shape current and future policy directions and institutional arrangements (Greener 2005). In this case, the need for private entities to obtain authorization from state bodies for collaborative health initiatives reflects a deeply ingrained reliance on state control and oversight in the healthcare sector. This approach indicates a cautious and controlled integration of private healthcare into the existing public system, which is consistent with Vietnam’s historical governance model.

Another aspect to consider is that Decision 92 of the Prime Minister and Notification No. 418 of the MOH function as policy instruments. However, legal regulations remain hesitant about endorsing public–private partnerships in the healthcare sector. These policy instruments are perceived as guidelines or recommendations rather than binding regulations, leading to a lack of serious commitment from relevant stakeholders. Additionally, without being backed by a comprehensive legal and actionable directives, while coupled with strict and vaguely defined administrative authorization procedures, this undermines the confidence of both public and private entities in the viability and sustainability of such policies, diminishing their perceived legitimacy and effectiveness in driving meaningful change or cooperation in the healthcare sector. In the face of emerging challenges in the unprecedented COVID-19 pandemic, political apprehensions during crises and a tendency to revert to familiar paths may lead to skepticism regarding the adoption of new approaches.

The COVID-19 Pandemic as a Push for Public–Private Cooperation in Healthcare

The COVID-19 pandemic has placed an unprecedented strain on healthcare in Vietnam, leading to a scarcity of critical resources such as medical equipment, testing capabilities, and healthcare personnel. The public–private partnerships have emerged as a way to pool resources and expertise from both sectors to address these shortages. The positive aspect of the deep-and-wide healthcare system allows for unification and mass mobility of hospitals and health workers in the COVID-19 pandemic. Frontline staff from local commune health centers as an integral part in grassroots health network provide primary health care services in the prevention of COVID-19 (Ha My 2020). With over 1000 cases since June 2021, Ho Chi Minh City has rapidly formed a network of 11 public hospitals with 5000 beds specializing in COVID-19 treatment covering from urban to suburban areas (Ministry of Health 2021a), which later expended to 76 public hospitals for COVID-19 emergency treatment from August 2021 (Minh Huong 2021).

There are two types of COVID-19 treatment facilities: (i) fully converted hospitals for COVID-19 treatment and (ii) partly converted hospitals for COVID-19 treatment. All of them are public hospitals and public-established field hospitals. As COVID-19 is identified as a class A disease since 2020 in accordance with the Decision No. 218/QD-BYT of the MOH dated 29 January 2020, on the classification of severe acute respiratory syndrome coronavirus 2 disease among the A-group of contagious disease list pursuant to the 2007 LPCID, thus the state must cover the full cost of treatment and isolation. In order to mobilize the highest participation of the whole industry to increase PPC efficiency, upholding the role of public hospitals as the dominant force to fight against the COVID-19 pandemic seemed to be a right decision at first.

However, the pressure on public healthcare system has become more apparent after the Lunar New Year Festival in 2021 (Table 2). As of 12 September 2021, Vietnam suffered 601,349 cases and 15,018 fatalities reported (Minh et al. 2021). The CFR was 2.50 percent, which was higher than the global average of 2.06 percent (Minh et al. 2021). Regarding cases of hospitalization, the heavy reliance on public sector leads to an overcrowding issue, especially for central hospitals in major cities. More than 10,000 new infections were found on 20 August 2021, to which 3500 cases from Ho Chi Minh City contributed (AP News 2021). The accumulated infected cases in Ho Chi Minh City until September 2021, are approximately 380,000 cases (not to mention the unreported number), (Reuters 2021c) which was far beyond the 38,409 bed capacity of public health facilities in this area (General Statistics Office 2019).

Table 2.

Statistics on the number of infected cases through four waves of COVID-19 in Vietnam

	Time	Infections in the community	Average infection per day	Number of days
Wave 1	23/1/2020–16/4/2020	100	1.17	85
Wave 2	25/7/2020–1/12/2020	554	15.28	129
Wave 3	28/1/2021–25/3/2021	910	16	57
Wave 4	27/4/2021 – 11/2021	610 (as of 12/5/2021)	25.6	-

Source: Thanh Nguyen. 2021. Thought from the 4th Covid -19 pandemic. Bao Dan toc va Phat trien. https://baodantoc.vn/nghi-tu-lan-song-dich-covid-19-thu-4-1620891507568.htm. Accessed 10 August 2022

Furthermore, the request for acceleration of vaccine program place heavy burden upon the public healthcare system (Thuy and Le 2021). In terms of oversight, the MOH and government were too secured with free 38.9 million doses of vaccine promised to be delivered in 2021 by COVAX Facility and the extra pre-ordered 30 million doses of AstraZeneca vaccine by Vietnam Vaccine JSC (VNVC) to notice the trend of over-purchased, priority-given, and buying-up behavior toward vaccine by high income countries. This leads to the shortage of COVID-19 vaccines, while the demand was high, especially in provinces with gith infectious cases. From the rollout since early March 2021, the country only have 1% of its people fully vaccinated until the beginning of August, which is criticized by the MOH to be “too slow” (Reuters 2021a). The free access to vaccination and the urge for vaccination from the authority leads to the overwhelm in different vaccine sites at grassroot healthcare facilities, evident by the crowd of 9000 people in the Phu Tho stadium (Ho Chi Minh City) (Reuters 2021a).

Facing with serious shortages of healthcare facilities and human resources in the public sector, both central and local governments in Vietnam started to call for cooperation between all economic sectors. Collaboration between the public and private healthcare sectors is one of crucial strategies for overcoming resource constraints and improving the overall efficacy of the health response. Hence, the complexity of the situation, urgency of response, and unique circumstances surrounding the pandemic made the implementation process more complicated.

Pursuant to Articles 4 and 5 of the Vietnamese 2007 Law on Prevention and Control of Infectious Diseases (LPCID), “competent persons” are allowed to mobilize all resources upon the degree of danger and nature of the epidemic. However, how to determine the epidemic threat as the basis for cross-sector cooperation call, especially when Vietnam had not announced any national emergency declaration, is a difficult question. In addition, Article 5 of the LPCID does not clearly specify who shall be the lead-agency in case of cross-sector mobilization for PPC. Decision No. 170/QD-TTg of the Prime Minister adopted since 30 January 2020, was not explicit about the direct authority granted to or by the COVID-19 Prevention and Control National Steering Committee for social mobilization in emergency context. This would result in complex flows of administrative orders among various entities involved in COVID-19 prevention and control, which could lead to confusion and potential overlap in responsibilities and communication.

To clarify, the COVID-19 Prevention and Control National Steering Committee (PCNSC) is a central body in managing the pandemic, alongside the Government and Prime Minister (Truong 2022). Decision-making typically resides with the Government or Prime Minister, but for expert guidance, the Ministry of Health (MOH) and, subsequently, the local health departments provide input. The MOH, as stipulated in Article 5(2)(a) of the Law on Medical Treatment 2009, is empowered to oversee the planning of healthcare facilities for diagnosis and treatment. When this article is interpreted in conjunction with Articles 4 and 5 of the LPCID, it suggests that the MOH is responsible for coordinating cross-sector resources. Nonetheless, the process by which the MOH can solicit collaboration from private sector entities remains ambiguous. It is uncertain whether the MOH should reach out directly to private hospitals or work through the local Department of Health (DOH). Given that private hospitals and clinics are regulated by their respective local DOHs, if they wish to proactively engage with public institutions in pandemic response, they face a dilemma: Should they approach their immediate local governing bodies or should they seek coordination via the local or national levels of the Prevention and Control Steering Committee? Additionally, there is a lack of clarity regarding the specific documents or action plans that need to be submitted for consideration by the authorities, as mandated by Clause 3 of Notification No. 418/TB-BYT. Until there was a written official decision from upper-level authorities, this requires a significant time to go through reluctant and overlapping procedures of approval, which hinders the motivation of both parties.

It is not until July 2021 that there were first officially promulgated documents to call for participation from the private sector. In its Dispatch No. 5634/SYT-NVY dated 16 August 2021, the Ho Chi Minh City Department of Health (HCMC DOH) (Dispatch No. 5634) ordered “all hospitals in the City” be ready to receive emergency cases whether they were infected with COVID-19 or not. Among the listed 136 hospitals, there were 41 private hospitals and clinics responsed for the cooperation. However, only 10 of those private facilities were for COVID-19 treatment; Ho Chi Minh City had only 4 private hospitals converting capacity into COVID-19 treatment facilities or operating in a split-sided model (Reuters 2021b). Regarding COVID-19 vaccine supply, the only source is public institutions. In terms of synergy, at the central level, asynchronous relationships can be observed between the need to quickly locate vaccine supplies and the various paperwork and approval processes, as well as between the drastic need to repurchase vaccines from the VNVC and the contractor selection process outlined in the Bidding Law. Furthermore, pursuant to the priority list, the government legally granted advance access for either state-owned organizations or state-officers according to the Decision No. 3355/QD-BYT on the plan to implement the COVID-19 vaccination campaign in 2021 – 2022.

Dilemmas in Public–Private Healthcare Cooperation during Vietnam’s COVID-19 Response

Considering the format for regulation despite the policy acceptance in Decision 92 endorsing cooperation between the public and private sectors, there remains a persistent reliance on administrative and communicative documents only for case-by-case solutions. From the beginning of the pandemic, the Vietnamese policy system exhibited prompt, proactive, and effective responses involving multiple authority levels and a wide range of policy tools, with an average of 5.13 new policy documents issued per day to address the daily occurrence of 2.24 new COVID-19 cases, through nine different channels, including telegram, resolution by the government, decision by the Prime Minister, directive, circular, announcement, plan, dispatch, and guideline (Le et al. 2021). According to Article 4 of the Law on Legal Normative Document Issuance 2025 of Vietnam, except resolutions by the government and decisions by the Prime Minister, other seven instruments are not legal normative document to have universal binding effect and repeated application to subjects within the scope of application. This vein is evidently continued with the Dispatch No. 5634 calling for cooperation from the private sector.

Regarding the nature of these instruments, they can be revoked at any time and typically target specific cases without applicability in similar situations. The lack of broader applicability also limits the predictability and reliability of such arrangements. Compared to legislative instrument, these administrative and communicative documents often fail to ensure the accountability of authorities and public partners, adding to the uncertainty and risk for private entities considering participation. Thus, this absence of guaranteed accountability and the temporary, case-specific nature of administrative directives contribute to the hesitation among private partners to commit to cooperative ventures.

This practice, at the same time, highlights a path dependency that has continued into times of crisis. The absence of robust legal provisions underscores the need for enhanced legislation to foster smooth collaboration between public and private healthcare entities during public health emergencies like COVID-19. This ongoing trend reflects a deep-seated skepticism about fully embracing the private sector’s role, indicating a cautious approach and a tendency to revert to familiar, albeit less effective, administrative practices even in times of urgent need.

Reflecting on the content of these instruments, two key issues emerge concerning the contradiction between Polanyi’s healthcare model with paternalistic approach and market participation.

First, the lack of interest guarantee to encourage private utilities hinders their will to cooperate, although the call from executive authorities is official. Evidently, the dispatches did not clearly mention the financial support mechanism, which means that private healthcare utilities may suffer significant income and profit loss when being fully or partly converted into COVID-19 treatment facilities. According to a director of a private hospital, the bed fee for treating COVID-19 patients is VND 600,000/bed/day (4-bed room), VND 500,000/bed/day (6-bed room), and VND 1,250,000/bed/day (2-bed room), which respectively amount to about 25.30 USD, 21.09 USD, and 52.71 USD (Hoang Loc and Thu Hien 2021). To be qualified as a COVID-19 treatment facility, the hospital must also invest in modern equipment and machinery with at least 3-star standard (Hoang Loc and Thu Hien 2021). As it is obvious that private facilities participating in COVID-19 treatment from the call of the MOH and, of course, are equal to public healthcare units in the same COVID-19 treatment system, they should have been treated fairly in terms of legal conditions in medical examination and treatment activities and self-accounted for treatment costs.

As for imports of COVID-19 vaccines, the right to purchase and provide vaccination was given to qualified private healthcare institutions and businesses pursuant to Decision No. 3588 of the MOH. They can draw on their network and expertise to find partners, such as VNVC ordering vaccines directly from AstraZeneca (Mai Moc Thao 2021) and T&T Group from Sputnik, according to the Resolution 73/NQ-CP on 12 July 2021 about purchasing Sputnik-V vaccine of Russia. To encourage the private participants, the vaccination fee proposed by the MOH is 40,000 VND per shot. However, a representative of a private medical organization complained that the reasonable price was indeed three times higher than the proposed rate for it to pay all costs of personnel, premises, and post-injection monitoring (Lan Anh and Thực Hiện 2021). The authority does not permit self-determined vaccination fees, as demonstrated by the incident where a private clinic in Bien Hoa City was instructed to immediately withdraw its COVID-19 vaccination price list. This list included a vaccination fee of 150,000 VND. The representative of this clinic explained that the clinic’s decision to charge fees for vaccine administration, along with associated costs for transport, storage, and pre-vaccination rapid testing, was “based on a misunderstanding of the permissible charges under the vaccination program” (Sao Mai 2021). Thus, vaccination fee in this case is subjected to fixed price cap mechanism.

Nevertheless, using fixed price cap for private vaccination services without considering market-based constituent calculation and competitive nature of this sector seems to be the wrongly input administrative management measure. In addition, if vaccinations are allowed to be priced only to cover basic operating costs, is it really fair to maintain free COVID-19 treatment, which consumes relatively more substantially human and material resources, in terms of the complexity of the process? The fact is that by relying solely upon the public health institutions to perform low-fee or free vaccination and treatment policy, the congestion in grassroot-level centers and overcrowd in public healthcare units is visible. The corruption through the network with public officials to achieve priority and privilege in healthcare stirred another controversy about ethical erosion. This is evident by the case of a young, wealthy girl who boasted on her Facebook that her “powerful” grandfather, using extensive connections with governmental workers, was to credit for her receiving Pfizer shots (Ha 2021). Black market for vaccination also quietly bloomed with “self-paid slots” in grassroot healthcare centers, requiring VND 650,000 (approximately 27.41 USD) for two injections and VND 350,000 (approximately 14.76 USD) for the first dose, aiming for people not in priority list (Kien Tam 2020). It was in line with a survey result that 76% of people in Ho Chi Minh City were willing to pay approximately VND 700,000 for two doses of COVID-19 vaccine (EfD Vietnam 2020), which accounts for only 10,7% of the average income of Ho Chi Minh City residents in 2020 (Bao Ngoc 2021) and is less than half of the countries’ average health expenditure per person a year (VND 3.16 million) (General Statistics Office 2019).

Such proliferation of the black market is not solely a result of the erosion of norms or selfish behaviors among private actors, but rather stems from the absence of a stringent legal framework for oversight, application, and enforcement. This scenario underscores a failure in governmental regulation and control, rather than being a mere consequence of market failure in terms of unbalanced supply and demand. As a result, the absence of law legitimacy during the COVID-19 crisis has intensified the tragedy of the commons, as individual actions motivated by self-interest can undermine the overall welfare and public health.

Second, the call-for-cooperation through administrative dispatches and open letters only present motivation for voluntary participation (Truong 2022). This indicates that the Vietnam government is reluctant to rely on State’s police power to exert, either in the form of legislative or in administrative instrument, even in emergency crises. In principle, when a state of emergency has not been declared, the legal system for prevention and control of infectious diseases will be applied, which is the LPCID. Articles 3 and 4 of the LPCID allows the authorities to mobilize and requisition “all resources” for pandemic prevention and control (PPC) when there is a level A epidemic. However, as of December 2021, while 110 countries had declared emergencies (ICNL 2021), Vietnam had not yet issued a declaration to activate state power in the context of a public health crisis. Moreover, even in the event of a state of emergency being declared by the National Assembly Standing Committee or the President in accordance with the 2013 Constitution, there is a lack of clarity regarding the specific documents and guidelines that should be followed for epidemic prevention and control measures. Additionally, there is regulatory overlap between the Law on Prevention and Control of Infectious Diseases and the outdated Ordinance on a State of Emergency No. 2000 in comparison with more recently enacted laws such as the 2007 LPCID, the 2015 Veterinary Law, and the 2018 National Defense Law. In Vietnam’s situation, the inadequate preparation of a legal framework for emergency declaration and subsequent resource mobilization procedures impeded efforts to effectively gather resources.

Furthermore, even the state of emergency is declared to invoke the State’s police power to demand private sector cooperation, as there had been no financial aid or compensation guarantee from the State, any deemed coercive measures for private healthcare participation may result in the nationalization or expropriatory actions by the States. An illustration of this concept can be seen in the Bayanihan to Heal as One Act No. 11469, which was enacted on 25 March 2020, in the Philippines. This Act grants the President the authority to appropriate the private property of investors, particularly hospitals and pharmacies operating within the country’s borders, in accordance with Sect. 4, point (i) of the Act. Remarkably, the Act lacks a defined timeframe for the State’s possession and control of these properties. The coercive nature of the President’s “special powers” in the Philippines, granting administrative jurisdiction over all private businesses and including non-compliance penalties under Point h, Sect. 4 of the Act, became evident when it was enacted without investor consultation, and was officially passed and implemented as “emergency powers” on 30 March 2020. This action can be interpreted as interference with the property rights of foreign investors and is likely to have significant adverse economic effects on them (Nguyen et al. 2021). As per international investment law, such measure is categorized as direct expropriation.

Even the administrative power is justified under the Article XII Sect. 17 of the Philippine Constitution which authorizes the State “in a situation of emergency and in accordance with the provisions of this Constitution, to seize or manage the business of any public establishment or privately owned enterprise in the public interest,” foreign investors themselves can argue that the revision of the criteria for compensation violates their legitimate expectations if the host State does not process of collecting opinions of foreign investors when promulgating this new measures. Legitimate expectations pertain to maintaining stability in the investment landscape, ensuring the long-term protection of investors’ rights and interests by the host country through a predictable regulatory environment. This concept, which includes principles like non-discrimination, due process, and transparency, guards investors against legal changes that negatively impact their investments, as emphasized in the LG&E vs. Argentina ARB/02/1 (ICSID) 2007 case. Thus, the State cannot use the excuse of the Covid-19 epidemic and its consequences to waive liability arising from the measure issued by it in all situations.

In Vietnam, even in 2015, foreign investors have registered to open 35 clinics and 8 hospitals (Medical Practitioner Society of Ho Chi Minh City 2015). However, any extraordinary measures from the state exercising its police power, even in emergency situations, are sensitive to potential disputes for expropriation raised by foreign investors. This is particularly true given Vietnam’s evident Polanyian approach in healthcare, which aims to suppress market power for ethical and public concerns, especially in crisis, together with the significant lack of oversight and review mechanism.

Last-But-Still-Least Actions and the Perception of Law in Time of Crisis

On 28 July 2021, the National Assembly passed Resolution No. 30/2021/QH15 (Resolution 30), in which Point 3.1 allows the Government to implement anti-epidemic measures that have not been prescribed by law or are different from current legal provisions. However, facing such controversy, on 9 August 2021, the MOH decided to bar any support and collaboration from the private sector in vaccine purchase plan, leaving only the free-of-charge treatment activities for public–private partnership. Shortly after, the HCMC DOH concerned that by having injected for 2,108,186 people over 2,595,490 doses granted by the MOH within 17 days, the city would face the significant shortage of vaccines after 9 August 2021 (Mai Moc Thao 2021).

This is due to the dilemma of public health management ideology of Vietnam during the crisis, as the COVID-19 pandemic has brought about or intensified conflicts between the core values of governance in emergency context. To be in line with the ideology of socialism, which holds that political dominance and economic superiority influence healthcare philosophy (Elaine 1980), the State is responsible to provide its citizens with the greatest feasible standard of healthcare regardless of their socioeconomic circumstances. The Vietnamese policymakers often concern that if certain healthcare sector is privatized, the price of various healthcare services will be significantly higher than their total net cost as private sectors shall aim at making profits, particularly relevant when healthcare services become essential goods with low elasticity to price for certain life-threatening diseases such as COVID-19. Amidst public health crisis, health becomes a commodity that can be procured by those who have the means, and the provision of health care is not based on needs but on the ability to pay instead (Amzat and Razum 2014, 113). In other words, the provision of healthcare services may become unaffordable for a significant portion of the population, as prices would be driven up based on market forces rather than being regulated to ensure accessibility and affordability. By following the Polanyian paternalistic paradigm, the Vietnam public authority appears to be cautious of possible undesired healthcare commercialization behavior when it comes to the call for participation from the private sector.

Learning from such experience, on 3 September 2021, HCMC DOH issued Dispatch No. 6277/SYT-KHTC implementing Resolution No. 12/2021/NQ-HDND on specific policies to support frontline forces to participate in the PPC. Three weeks later, HCMC DOH continued to release guidelines for financial distribution for private healthcare facilities, in which activities and facilities for COVID-19 will be paid from the national budget. Accordingly, the DOH proceeded advance payment for isolation cost in those private facilities (approximately 6 USD per patient per day), while such entities may ask for COVID-19 treatment costs from the patients. The treatment cost must not exceed the ceiling-fees published to the DOH. In case there is a discrepancy between the national-budget supported payment and the actual costs incurred when treating COVID-19 patients, private healthcare facilities may balance themselves or make agreement with the patient to offset the costs. Private entities are allowed to collect full treatment costs if only the patient agrees to voluntarily pay the full amount without using financial aid from the state budget.

Such three financial payment proposals for private COVID-19 treatment by the HCMC DOH was impressively innovative. However, it is the barrier-crossing decision while waiting for the official decision and direction from the MOH and other upper-level authorities. The absence of a clear payment mechanism has posed significant challenges for private hospitals, leading some to “circumvented the rules” by soliciting donations or support from patients to maintain their operations (Cam Nuong 2021). Two weeks later, on 22 September 2021, the Politburo issued Conclusion No. 14-KL/TW, which focuses on promoting and safeguarding dynamic and innovative cadres for the benefit of the community. Point 2.4 of this Conclusion states that: “In cases where a cadre carries out a pilot project but fails to fully achieve the set objectives or encounters risks, and if there are damages, the competent authority should promptly investigate the objective and subjective causes, conduct a fair assessment for appropriate consideration and action. If the cadre strictly follows the guidelines with genuine intentions for the common good, they may be eligible for exemption or reduction of liability.”

However, it is not until December 2021, the Resolution No. 12/2021/UBTVQH15 was issued for clearer guidance on financial support mechanism for COVID-19 treatment. A noteworthy issue is that Resolution 30 is seen as “an unprecedented legislative initiative” that has created a solid legal basis, contributing to meeting practical requirements, creating conditions for the Government and the Prime Minister to be proactive and flexible in executive direction and mobilize the entire political system to participate in epidemic prevention and control. However, it did not constitute much to encourage the proactivity from the competent ministries and authorities in seeking cooperation from the public and private sectors in a more market-driven and timely manner. As the pandemic has given rise to antipandemic measures, which possesses characteristics that challenge conventional theoretical foundation, the slow centralized procurement process, insufficient statistics, rapidly fluctuating disease patterns, as well as the hesitancy to allow market participation, results in the frustration of healthcare ideology and governance, rendered the whole process timely and inefficient. The period between the issuance of responsibility exemption guarantees and their implementation can be observed to be approximately 2–3 months, which is a significant delay considering that the period from July to September 2021, during the peak of the epidemic, was a crucial opportunity for policy development and implementation (Truong 2022).

Among many possible reasons for this delay, the responsibility resolution mechanism leads to the last-but-still-least action from the competent authorities. The Conclusion No. 14-KL/TW by Vietnam’s Politburo does not provide a legal guarantee against potential accusations towards civil servants. It reflects the intentions and policy directions of Vietnam’s ruling party rather than creating binding legal obligations or rights. While policy may shift, the law is steady, which makes civil servants hesitant to take action because they are unsure of the correct course of action, while there has been a delay for directions and guidelines from the superiors. In the absence of a robust legal framework during the urgent response to the pandemic, as National Assembly Representative Tran Van Sau describes, there arise situations where actions deemed reasonable in the fight against the epidemic may not be legal during times of calm, leading to a question of how to navigate such circumstances (Mai Ha 2023). In Vietnam, the 1999 and 2015 Penal Codes of Vietnam both stipulate the crime of “Deliberately contravening the State’s regulations on economic management causing serious consequences.” Article 165 of the 1999 Penal Code has been replaced by nine other crimes in the 2015 Penal Code, and the crime of “Lack of responsibility causing serious consequences” is now covered under Article 360 of the 2015 Penal Code. Over the past time, many leaders, including leaders in the health sector, have been prosecuted for the above three crimes. The approach of treating the epidemic as an enemy, with a spirit of urgency and mobilization of all available resources, has resulted in decisions being made without precedent, blurring the line between the irrational and the legitimate, creating a sense of contradiction.

Thus, this explains another aspect of path dependency in the way Vietnam’s legal and policy responses on healthcare evolve, which is due to constrains by existing legal frameworks and old-fashioned ideologies. This is particularly problematic in emergency situations like the pandemic, where rapid and flexible responses are crucial. When the measures seem lacking legal basis and legitimacy, they risk public skepticism and non-compliance, undermining their effectiveness. Thus, the legitimacy of governmental actions, particularly in emergency responses, hinges on public perception and trust, which are bolstered by legislative instruments that enforce clear accountability and responsibilities. The absence of a dynamic legal framework in Vietnam, particularly evident during the COVID-19 pandemic, underscores the critical need for a more adaptable legal approach. Such an approach should be capable of responding effectively to “emergency times,” balancing the rigidity of existing laws with the necessary fluidity to address unprecedented scenarios. This balance is essential to ensure that legal responses are both timely and appropriate to the unique challenges posed by crises like a global pandemic.

Conclusion

Vietnam’s response to the pandemic, marked by initial reluctance to involve the private sector in vaccine procurement and treatment, reflects a deep-rooted reliance on socialist principles and state-driven solutions. This approach, while beneficial in certain contexts, may limit flexibility and responsiveness in emergency situations. The COVID-19 pandemic has highlighted the limitations of such approach, where existing legal and ideological frameworks struggled to adapt quickly to the unprecedented challenges posed by the health crisis. Relying solely on the public sector without the implementation of efficient administration and timely adjustments, proves to be an inadequate choice during times of crisis. Thus, it is undeniable that in the face of budgetary and resource constraints during emerging disasters, the market’s role in addressing public health emergencies becomes increasingly apparent. The participation of the private sector in healthcare, notably in vaccine procurement, distribution, and providing treatment facilities, can significantly bolster state initiatives.

Examining the strategies employed by the Vietnamese government, our analysis underscores the necessity of decisive action from the public sector. Throughout the pandemic’s waves, the MOH and the government play an indispensable role in facilitating accessible and prompt healthcare services to curtail the spread of the disease. Yet, a new dimension is emerging in prominence: the orchestration and synchronization of collaborative endeavors between the public and private sectors. This strategic approach is geared not only towards averting system overload in the midst of a crisis but also in its aftermath. It is the time to revisit and let public health care return to its “public” nature, which is to provide healthcare services with low thresholds and at a basic level of quality for public access. Vietnam public authorities must overcome their fears and skepticism towards private sector intervention, which hampered the efficiency of the national PPC. In order to advance co-evolution towards public-value management, a renewed ideology in public and private healthcare management is necessary for the multisector approach to be successful.

The evolving collaboration between public and private sectors, shifting towards market-driven solutions, necessitates a robust legal framework to facilitate more than just the mobilization of private resources for infrastructure (Vecchi 2022). By embracing market participation with efficiency-oriented legal framework, the result can be enhanced, innovation spurred, and crucial additional resources mobilized for effective emergency responses. To adeptly manage emergency situations, it is recommended to expand the scope of potential scenarios and establish comprehensive guidelines, procedures, and competencies. These should empower public authorities to rapidly adapt legal regulations to the changing needs of public health crises.

Abbreviations

LPCID

2007 Law on Prevention and Control of Infectious Diseases

PPC

Pandemic prevention and control

MOH

Ministry of Health

HCMC DOH

Ho Chi Minh City Department of Health

Author Contribution

All authors contributed to the study conception and design. Material preparation, data collection, and analysis were performed by Tran Viet Dung and Ngo Nguyen Thao Vy. The first draft of the manuscript was written by all authors, and all authors commented on previous versions of the manuscript. All authors read and approved the final manuscript.

Data Availability

The data that support the findings of this study are openly available in the provided link.

Declarations

Conflict of Interest

The authors declare no competing interests.

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