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Saving Lives (or: Another Rambling Health Care Post)

August 25th, 2009 · 23 Comments

In a previous post, I suggested that the most adequate conception of a purported right to health care is as really consisting of two distinct elements: a distributional right to a fair share of social resources—with the understanding that one’s fair share can depend on the other burdens and misfortunes one faces, so that the sick or otherwise badly-off may be entitled to larger compensatory shares—combined with a paternalistic constraint that requires a portion of the share to be spent on certain kinds of specific goods. (For what it’s worth, I mean to use “paternalistic” neutrally here, freely granting that young people in particular are not wired to make good decisions about low-probability catastrophic events over long time horizons.) I’m not sure whether thinking of it this way has any practical upshot—many of the arguments for health care reform have to do with pragmatic considerations far removed from rights talk—but I operate on the theory that conceptual clarity tends to come in handy sooner or later.  Some commenters found this approach fairly counterintuitive, and on reflection I have some added objections of my own, but I want to try to be a little clearer about why I think this is a better way to think about it.

Discussions of a right to care often come down to talk about “saving lives”—which has a certain air of cinematic finality to it. Zoom in and fade out on the kiss, and the last moment of the story lasts a celluloid eternity. Morbid as it feels to keep saying so, though, lives are never really “saved”—just shortened or extended by some finite amount. And a huge amount of medical care is about quality of life, not longevity. Sometimes those two goals are at odds, and the patient has to decide which is more important.  To reflect this, when bioethicists want to wade into the hard questions, they are inclined to talk not about “lives saved” but about QALYs (pronounced “Quallies”) or Quality Adjusted Life Years. And I think a great deal of clarity would be gained in discussions of health care if this way of talking became more widespread. Another distorting factor in discussions of health care, I think is the tendency to think of some individual in isolation and just reflect on what we feel we’re morally obligated to do for that person. On most progressive views, though, health is one of many competing goods to which people have positive entitlements, and each person’s right is constrained by the countervailing pull of the equally valid demands of others. So we always need to ask, not whether this person deserves to have his life “saved” (or extended or improved) but how to allocate resources across all the different moral claims on them.

If we switch from “lives saved” talk to QALYs talk, and if we preserve a holistic rather than a case-by-case perspective, I believe the distributive-justice-plus-paternalistic-constraint conception of the health care right becomes much more appealing. At the individual level, it’s easy to get lured into thinking in binary terms of a “right to life”: “Should this person live or die? Live, of course!”  If you’re looking at a system of entitlements in which QALYs are one kind of benefit, though, the question “what exactly does the right to health care amount to?” ends up looking quite different—something along the lines of “what is the value of a QALY, bearing in mind the opportunity cost of all the other purposes to which social resources might be devoted?”

Now, for all sorts of purposes, governments do actually have to assign universal dollar values to QALYs for, among other things, regulatory cost-benefit analysis. But I’m enough of a subjectivist that I just don’t think these questions have any general or abstract right answer—which is why the denial of an objective hierarchy of values played the role it did in the last post.  The value of longevity, mobility, education, and other goods we might think society ought to provide is the value they have to people. People can, to be sure, make mistakes—they can predict wrongly how happy they will be with a particular tradeoff, and if the mistakes are systematic and common, there may be an argument for paternalism. But these are mistakes relative to their own later assessments: There’s no external or objective standard for whether a college education or a hip replacement or any number of other goods is of greater value to someone. We focus on goods like health care because health is of enormous value and importance to almost everyone. (Whether much of the health care we consume actually provides any value turns out to be a shockingly open question.)  But the fact that health, in general, is a good doesn’t tell us how to weigh everyone’s competing claims to specific treatments providing specific increments of longevity or different types of quality of life against every other positive good people might have some right to. So–this is obviously an idealized account, not how actual governments work—the way we decide whether someone is entitled to social provision of the slightly-more-effective-but-much-more-expensive treatment or the second hip replacement or whatever requires weighing the benefit of expending resources on that against the other claims we might satisfy instead. Or, to be sort of stupidly simple about it, suppose you have a limited supply of painkiller and a ward full of people in different degrees of pain. You cannot answer, in isolation, how much of the painkiller this patient has a right to. You can only start to answer the question when you know what sort of pain everybody is in, how much good the drug will do them, and so on.

This need not just be a matter of utilitarian maximizing. It might be that some person has had a very bad life in general, so that fairness requires us to confer a benefit on him even if, at the same cost, we could provide greater benefits to others who have not endured such hardships over their lives as a whole. Alternatively, there might be some upper limit to how much any one person can draw on the common stock, even if the greatest net benefit still comes from spending the marginal dollar on them. I want to be neutral between the many different conceptions of fairness bioethicists defend and argue over. The point is that whatever your standard for weighing interpersonal claims, the question is inherently distributive. And because society is trying to provide a range of heterogeneous goods, and because the benefits conferred by health care are themselves heterogeneous (again, in the simple case, longevity and various aspects of quality), this means trying to compare diverse particular benefits in order to figure out how strong all these different-in-kind claims are on a common resource pool.

Now just for the sake of argument, again as an aid to conceptual clarification, assume away the motivation for paternalism: Suppose you have a society of people who can perfectly well assess their own long-term best interests. If the question of how much health care people are entitled to ends up being inherently distributive in the way I’ve described—if it depends on a judgment about how to fairly confer heterogeneous benefits on members of society given limited resources, where the individual’s subjective valuation is ultimately the only determinant of what counts as a benefit—what grounds could you have for saying that an individual has a right to consume X% of social wealth for the purpose of providing a health benefit, but no right to devote the same share to some alternative use that this person considers a still greater benefit? How to weigh diverse benefits between persons is an extraordinarily hard moral problem—and its intractability one reason I lean libertarian, incidentally. But if, arguendo, we suppose we’re dealing with people who are not subject to the various common biases that lead us into misjudgments about probability and future benefits, then we at least have one metric for determining which use of a given quantity of resources provide the greatest benefit to a single individual: The person’s own subjective report.

Now, certainly there are grounds for thinking it might be socially optimal to insist that people take their share of the common stock in the form of health care rather than other goods. Perhaps, for instance, we want people to stay healthy enough to keep working, or perhaps other people feel uncomfortable seeing people who are sick or disabled, even if the people themselves would be happier staying disabled and putting the cost of treatment to another use. But now we’re not speaking the language of rights anymore. My moral right to health care, on the usual way of speaking about individual rights, is a matter of how having it is good for me. And indeed, one common way of characterizing rights is as trumps against social optimization. So, to pick a clichéd example, we might say that someone has a right not to be chopped up for organs, even though five other people could thereby be saved—the individual right to life (or not to be killed, anyway) trumps the goal of optimizing the total number of lives saved.

There’s a lot going on here, so let me try to step back and provide an overview that disentangles the different issues in play here. There is an argument that even in a world of perfect distributive justice, people would not make wise judgments about how to use their fair shares, justifying intervention to direct more of those resources than some might choose to health care. But that is not, in the ordinary sense, an argument about rights—about what people may claim or demand as a matter of justice. It is an argument for why we should override people’s claims for their own long-term good. There are a variety of reasons we might think it is socially optimal in various ways—because of externalities or economies of scale or whatever—to have social provision of health care, and even to call this a legal right. But this, also, is not an argument about moral rights—about the claims each individual may press as a matter of justice. What we owe each member of society as a matter of right will be a function—we can debate which function, but some function—of the way a treatment is a benefit to that person. And within each person’s life, it is a matter of subjective assessment which use of resources provides the greatest benefit. If it is the benefit a treatment provides that grounds the individual’s claim, then if we agree to bracket all these other considerations in order to focus on this one narrow issue, it is hard to see how it could be that someone would be entitled to some share of social resources in the form of a health benefit, but not to use the very same quantity of resources for a different benefit. From which it follows that the underlying moral right cannot be to a health benefit, but to some share of resources insofar as this provides a benefit.

One way my earlier post may have gone astray is that, while I tried to stress that people’s fair shares may vary over time because the burdens they bear as a result of misfortune give them stronger claims, my approach may have made it sound as though I was imagining everyone as having some fixed quantity of resources they’re entitled to. Moreover, if we look at the way just shares would vary to compensate for bad luck, it may seem that this is a needlessly convoluted way of talking about it, because it ends up looking an awful lot like a right to care superfluously mediated by resources.  Consider someone who is born with a seriously disabling condition: On my account, in order to compensate for this, they may be entitled to a greater share so as to enable them to enjoy a quality of life more closely approximating that most others experience. But suppose one day somebody develops a relatively inexpensive treatment that will eliminate this disability. Now, of course, we would say that if they are still entitled to a greater share, it is only as much as would be required to supply the treatment. Isn’t this just a roundabout way of saying they have a right to the treatment?

I think it is not, because the key point is that people’s share claims may vary depending on—among other things—the way those shares contribute to quality of life. If we found some way to elevate people’s quality of life through means other than treatment, then the fair share might be what was required to bring the disabled individual up to the prevailing level by that other means, rather than through treatment. So if you’ll indulge me with another quite fanciful thought experiment: Imagine that at some point in the future, we have developed incredibly convincing shared virtual worlds like the one in the Matrix movies—except, you know, not run by evil robots. Suppose people end up happily and voluntarily spending large portions of their lives in these vivid worlds. Now, perhaps someone is born with an array of very serious physical disabilities that do not affect longevity, but seriously impair his ability to function and enjoy a decent quality of life in the physical world. There are, suppose, highly invasive and extremely expensive treatments that will mitigate these disabilities and restore some function in the physical world. But for much lower cost, we can provide access to these virtual worlds where many people live and work most of the time anyway.  Suppose that people with such disabilities are able to enjoy lives as good as anyone else if they have this access, and are happier than people who get the treatments and remain in the physical world. Does this person have a right against society to health care, or has society satisfied its obligations if this person is, by the alternative means of access to the Matrix, the person is provided with the same quality of life enjoyed by everyone else?

I know a lot of readers are thinking this sounds like airy-fairy hypothetical wankery; certainly it’s light years removed from the practical issues of the current health care debate. But these admittedly fantastical thought experiments, precisely because they take us away from the complex tangle of different issues that make those debates so thorny, let us focus more clearly on isolated moral questions.  Then, ideally, when we return to the real world, we have a better grasp on each of the individual strands in that tangle and can think more productively about the more practical issues—unlikely as that may seem.

I am acutely aware that this is all a bit muddled; ideally I’d sit down some time and rework all this in a clearer and more rigorous way. But I hope some of those who took issue with the previous post have at least a somewhat clearer sense of what I’m trying to get at. Note, for what it’s worth, that a progressive can probably accept this whole argument without thinking it makes much difference to the contemporary policy argument. None of this, in other words, necessarily has any direct implications for whether the public option or single payer or any other health care regime is a good idea. You can perfectly well say: “Well, forget about an abstract moral right to health care per se; our moral obligation for practical purposes is to provide people with more equitable access to health care than we currently do, and the reason is that it’s more socially optimal, or that people are entitled to share social resources in whatever way gives each a fair shot at a decent quality of life, or whatever other way you want to talk about it.”  And then we’ll have all sorts of other things left to debate.  But it will probably be a better, clearer debate.

Tags: Markets · Moral Philosophy


       

 

23 responses so far ↓

  • 1 Joseph // Aug 25, 2009 at 11:25 pm

    As a liberal, I think this way of looking at the health care debate in abstract moral terms works fine. I am favorably disposed towards the idea of thinking of health care in terms of QALYs and resource redistribution.

    However, how would this framework account for moral hazard? Hypothetically speaking, lets say the following conditions pertain:

    1. Each person is given a share of healthcare resources commensure with a QALY rating and the person’s particularly health conditions or lack there of.
    2. Some people make poor choices with their healthcare resources and either A) spend it on healthcare services that they didn’t or didn’t address their health problems or B) spend it on on non-healthcare services or things.
    3. The people from (2) start experiencing severe sickness and pain that could be relieved with timely medical care, but they have no remaining healthcare resources to purchase that care.

    In other words, they are sick and their inability to pay for medical care is their own fault. What should happen to them?

  • 2 Julian Sanchez // Aug 26, 2009 at 12:16 am

    Well, so in principle I presume this is where the paternalist strand comes in: you either require people to buy some basic level of coverage, or you buy it for them, rather than cutting them a check. Note that while most people seem to want both strands together, you could have either without the other. That is, you could either say there should be redistribution according to your favorite conception of economic justice, and then it’s up to each person to use there judgment about what to do with it, or alternatively, you could just have the paternalist part, so that people get whatever resources the market and charity leave them with, but there’s a mandatory carve-out for insurance.

    That said, you’ve maybe noticed that I’ve deliberately spoken throughout about shares compensating for “luck” and not said much about choices—when, of course, choices about lifestyle and diet and exercise are actually hugely more significant determinants of health outcomes than your insurance plan. Separating choice and luck is tricky, though: Socioeconomic status has a great deal to do with both the ease with which people can make healthy choices, and whether they’re likely to acquire the appropriate habits and dispositions to do so. Supposing you can separate those out, though, and again determine the contribution these make to health outcomes, there’s a fair question how much people’s responsibility for their own health problems should be seen as diminishing their claim on social assistance in treating them. I’ve let this one go mostly because, of course, as a libertarian I think that matters, and I think liberals more generally ought to think it matters as well, but I don’t want to be seen as injecting too much of my own worldview into this attempt to spell out (what I take to be) a more coherent version of the progressive view.

  • 3 Dan // Aug 26, 2009 at 2:28 am

    JS wrote: “Suppose you have a society of people who can perfectly well assess their own long-term best interests.”

    But once you’ve posited this, even purely for the sake of argument, you’ve lost the ability to actually make any claims about human morality.

    Let me take your example of organ distribution. Suppose I walk into a hospital and say: “Please kill me, remove my organs, and donate them.” If we posit infallibility of preference, then what ethical grounds does the hospital have to deny my request, and thus force five other people to die for lack of organs that I would willingly give?

    Fallibility of choice is simply too fundamental a fact to be assumed away without invalidating the whole hypothetical.

  • 4 Julian Sanchez // Aug 26, 2009 at 2:55 am

    You don’t really need to assume bias away; just to imagine that we’re good *enough* assessors that the argument for paternalism no longer applies systematically. I’m not sure what the particular example is meant to show…. by all means, grant the request. I’d grant it in the real world too if the donor otherwise appeared mentally competent. (Of course, I’m also fairly hostile to the paternalist strain of the health care argument in the real world; I’m tweaking the assumption about people’s level of competence in decisionmaking for the sake of people who find it more compelling.) Anyway, that’s what we do in thought experiments… we assume away pervasive features of the real world so that we can isolate concepts that are always entangled with other factors in the wild.

  • 5 JackFrost // Aug 26, 2009 at 1:53 pm

    I think the problem is thinking the problem from only the individual perspective on costs and ignoring the statistics of the issue. You are positing a system where everyone has $X to play with to supply healthcare or some other resource.

    But healthcare cost for an average individual is relatively low but has very wide statistical distribution skewed towards higher costs. In less abstract terms: my statistical average cost is $Y (a number smaller than $X) but there are reasonable odds (%1 or so) that my particular costs (due to no factors in my control) could be thousands of times greater than $X.

    So the only way that $X pays for healthcare for an individual is that this is an average shared burden. From the perspective of any one individual this cost is either slightly high or absurdly small.

    This way of looking at the cost burden constraints the problem: really nobody can opt out because opting out either:
    a) leads to higher costs for everyone, if they happen to be part of the statistically dominant pool of healthy individuals
    b) leads to this individual bankrupting themselves and thus again imposing costs on everyone else.

  • 6 Julian Sanchez // Aug 26, 2009 at 4:03 pm

    I’m inclined to lump this under “pragmatic reasons public or collective provision of health care might be a good idea”; I don’t think it goes to the rights analysis.

  • 7 Kevin // Aug 26, 2009 at 6:56 pm

    I know that this is not fully on track with the main point of this post, but I’m going to go with it anyway!

    It seems that “healthcare”as discussed above is really care for the sick–“sickcare”, really. I suspect that actually getting people to spend time and resources (provided by the state, or otherwise) on their health while they are actually healthy, so that they avoid sickness and all the associated costs, is even more subject to people’s intrinsic short-sightedness than described in the post! So saying “here’s some funds for your healthcare” should really mean that it is spent on fruits, vegetables and exercise equipment. In fact, an individual must already have been educated in how to remain healthy in the modern world (this takes actual conscious effort for most people in a post-industrial society) and so healthcare in this sense has to begin from a very early age. The question of how the costs of this extra part of a person’s education should be covered is then a little harder to address; I’m fairly sure that an insurance provider wouldn’t pay for a nutritional expert and fitness coach to visit your kids on a weakly basis (even though this would be vastly cheaper than covering the cost of that same kid’s triple heart by-pass and diabetes care in forty-years time). This kind of education is left to parents, who have no formal understanding of the matter themselves, or the school system, which has many other educational obligations. Really, I think that people have the right to know how the market that we essentially live in is going to treat them as they grow through it, the pressures they will face and so on. Understanding about how to make good health choices in the face of these pressures is part of that right, I think.

    Apologies, off-topic, I know :-)

  • 8 Dan // Aug 27, 2009 at 2:11 am

    JS wrote: “Anyway, that’s what we do in thought experiments… we assume away pervasive features of the real world so that we can isolate concepts that are always entangled with other factors in the wild.”

    Fair enough. I think that the separation of distributional justice from paternalism, which you get by positing an impossible-in-practice level of social justice, is a useful distinction.

    But you said this is a question about moral rights. And I’m arguing that if there is a moral right to healthcare (or to self-preservation, or to the basic necessities of life, however defined) independent from distributional justice, then it would derive in part from the reality of bad human decision-making. Bad fortune and human frailty are the bases of the duty to compassion. So I’ll grant that if you assume away both, you vitiate the duty.

    But this analysis presumes that compassion can be treated as contingent, whereas autonomy is treated as fundamental. Again, that’s fine as a hypothetical, but if the goal is to reach some delineation of a fundamental right that progressives will accept, then you need to recognize the value assumption you’ve imported.

    (And I don’t mean to imply any sneakiness in the importation. Obviously you’re bending over backwards to be intellectually fair, not just to progressives, but to all us non-philosophy majors. And I for one appreciate it.)

    Stepping back to the less abstract realm for a second, let’s clarify the hypo. If Mr Rich chose to spend his healthcare money and something else, and we’re positing his ability to correctly assess his own long-term interests, then either:

    1) His assessment was wrong, and we have a contradiction
    2) He’s assessed that the government will indeed provide him with treatment despite his having spent the money, in case we’ve imported a social fact that wasn’t specified, or
    3) He doesn’t want the treatment (or at least, is indifferent to it), in which case I’m out of my depth, since I don’t know what it would mean to have a right that you can only have if you don’t want to use it.

    Thoughts?

  • 9 Julian Sanchez // Aug 27, 2009 at 12:15 pm

    Well, part of my argument is that rights language doesn’t fit very well in cases where you’re arguing from a duty of compassion to override what people want to do. Normally, a right is something discretionary—something people can invoke or waive. I may be justified in preventing my clinically depressed friend from committing suicide, and I may even have a duty to do this, but it would be extremely weird to say he has a “right” that I prevent him—since, after all, he would appear to be waiving the right. If anything, we’d say that his mental state creates an exception that *permits* my interference in what would otherwise be his right to control his own body.

    As I hope that example makes clear, the point of all this is not that autonomy is fundamental and compassion is not. The point of assuming away one factor is to get a clearer picture of the other one—think of a controlled experiment where you hold all variables constant except one, which you want to study. It doesn’t imply a judgment about which variables are “fundamental”, whatever that could mean, it’s just a question of what you’re trying to find out.

    As for Mr Rich, I hope we’re not acting as though this is *too* wildly hypothetical. People waive medical care all the time, and normally it’s progressives arguing (as against social conservatives) that they have every right to make these decisions about their own lives. Anyway, I’m not sure quite what you mean by “a right that you can only have if you don’t want to use it.” It’s usually definitive of a right that you get to decide whether to use it.

  • 10 the teeth // Aug 27, 2009 at 3:47 pm

    I’ve read this post a couple times, and thought about it a bit over the last day, and the more I think about it, the more convinced I am that talk of ‘shares’ is misleading, at least if we’re interested in identifying first principles. This is terminology that may be useful for discussing concrete examples of collective health care systems, but I don’t think that the concept is necessary in order to have a coherent concept of a right to health care, and indeed, I suspect focusing on the term necessarily encourages a libertarian approach to the problem.

    Which isn’t to say that the main question, in practical terms, is one of distribution and reconciling competing claims over over limited resources: it is. But that doesn’t mean we need to view these claims in terms of shares. After thinking about it a bit more, here’s my (possibly naive, and poorly expressed) idea of a ‘right to health care': “In a just society, if a medical practice is widely available to a majority of members in condition X, and it’s considered ‘essential’ (rightly or wrongly) by a majority of that society in order to maintain or pursue same minimal universally accepted standard of health, it should be available to all members of the society, without inflicting a debilitating economic burden.” This does not, of course, address any of the very difficult problems involved in efficiently & equitably distributing health care, and it leaves open a very real likelihood that many systems which respect this right would allocate resources very poorly, at least if health is the overall goal. But I remain convinced that a ‘right to health care’ is a positive right. And there’s no inherent contradiction between the right being positive and one of the fundamental tensions/difficulties within a given health care system being the distribution of limited resources.

    I think it bears emphasizing that while (in my conception) the right is fundamental and universal, the actual details of what the right entitles one to are entirely dependent on time and place and cultural norms. And it’s very possible for these norms to be unwise, or actively detrimental to society. And the more I think about it, the more I’m inclined to view a “distributive-justice-plus-paternalistic-constraint conception of the health care right” system as a productive way at evaluating a system. But that evaluation doesn’t show whether the system satisfactorily respects the right or not — this is a separate question, even if the two are tangled up. Fortunately for us, if you accept that the concrete requirements of a right to health care are essentially cultural, if our conception is unhealthy, or unsustainable, or just too costly, we can actively work to change what the right entails.

    I hope that was coherent. As you said, there’s a whole lot going on your post, and I’m trying to target as narrow an issue as possible, but suspect that as a result I may have been a little too abstract.

    Separate from all this, I’m actually becoming increasingly convinced that in an ideal world, we actually would have a very libertarian looking a la carte system for routine care, including many predictable, but expensive procedures/events are considered routine, like childbirth and most end-of-life care. The opacity and perverse incentives of our current insurance based system just aren’t worth it. Of course, I’d undoubtedly prefer far higher subsidies to a far greater swath of the population than most self-identifying libertarians. A ‘share’ view of things probably fits perfectly here. I also think there should be universally mandated coverage, preferably through a single payer system, for catastrophic/chronic care; while the big questions there are all about equitable/effective distribution, I also think that any conception which focuses on ‘shares’ is misleading and not super helpful. You don’t complain that you didn’t get your proper share from your fire insurance when your house never burns down.

  • 11 the teeth // Aug 27, 2009 at 4:31 pm

    I’d like to emphasize, since I realized I didn’t say so explicitly, that while the of a ‘right to health care’ that I give will indeed allow scenarios where the right could not be physically fullfilled, this is structurally very unlikely — by definition, a given procedure can only be covered by the right if a majority of members of the society who with the condition allowing the procedure already have access to it. So the cost ‘reforming’ a non-conforming system to respect this ‘right’ would necessarily be some not-gigantic percentage of the previous cost.

  • 12 JackFrost // Aug 27, 2009 at 4:48 pm

    re: the teeth. Agree with you 100%
    Using the terminology of shares for this is confusing and seems to obfuscate the real issues.

    And I don’t really think there is really that much difference between what people believe the access should be. Mostly the differences are in the cost of said access and who pays for it. ie it appears to me that the main differences are whether this a burden on society or a burden on the individual.
    And it is on this angle that the real intellectual issues arise.

  • 13 Julian Sanchez // Aug 27, 2009 at 6:00 pm

    I think the structure you’ve laid out may be *too* contextual to work as a specification of a right, for several reasons. The most obvious one is that, in a society where the health system is primarily government-funded,what people with a certain condition routinely have access to is a function of what the public system provides. This leads to an odd state of affairs where you have a right to a treatment if and only if the government already provides it.

  • 14 the teeth // Aug 27, 2009 at 7:46 pm

    It may be odd, but it’ll take more than pointing out oddness to convince me that it’s wrong. To be snarky, saying that a socially-dependent right is dependent on the state of the society isn’t all that much of a contradiction. As I said earlier, I’m not clear on accepted terminology, and may be mangling things; perhaps ‘right’ isn’t the proper word, but if it isn’t, I’m very suspicious about the idea of rights at all here. Which, actually, I’m a little doubtful about anyway, even as I go about proposing one.

    My concept of a right in this instance centers on perceived justice, and has nothing to do with the efficacy or objective value of any accepted practices. If the medicine man performs a healing dance when a citizen catch cold, a society in which 10% of the population is denied the dance is an unjust one. If most citizens get full body scans once a year, and we really believe that full body scans are necessary to detect likely deadly illnesses, it’s unjust to deny the poorer minority full body scans.

    Of course, give me the healing dance over the f.b.s. any day of the week. And I hope it’s apparent that there are unjust systems, at any level of medical sophistication, that could have far better results, health-wise, than more-just ones. And I also believe that, everything else being equal, a higher level of autonomy, or ability to determine what sort of good one’s ‘share’ goes towards, is an absolute good. But I think you’re stacking the deck when you propose than a right must be thought of in terms of shares, particularly if you’re trying to identify a right to health care as conceived by a progressive.

  • 15 Lily // Aug 28, 2009 at 3:24 am

    This is just my opinion on the whole subject matter.

    There will always be an unjust system. Who is to say who gets what? Simply because someone had an unfortunate crash today and someone has been suffering since birth? Since pain itself is subjective. There is no real way to have a just system or for that matter.. a world where everyone gets the same treatment.

    I like Julien Sanchez’s point that the quality of life also has to be taken into account; but, with the nation poorly regulated[(in terms of income: example (chefs paid in cash)] and what people do with their money (spent on junk food) its virtually impossible to take that into account when determining which patient should be seen.
    Technically, I like the way some hospital systems are ran now.. from what I know about it..
    These hospitals take in anyone who is hurt regardless of whether or not they have insurance or the money to pay them in advance and let them choose how much pain they are in. The doctors treat them accordingly.
    So why must some people be denied health care? There will always be people who take advantage of the system.. so why not implement it anyways with some security and background checks..
    This of course is ideal.. I believe everyone has the moral right enjoy life as long as possible if not live it. Why must we leave it to.. who deserves it? Couldn’t we simply think about it the other way.. for instance, who is abusing these health care benefits?

    ” someone has a right not to be chopped up for organs, even though five other people could thereby be saved—the individual right to life (or not to be killed, anyway) trumps the goal of optimizing the total number of lives saved.” This reminds me of the whole laying your family on a railroad track and the other side the world. I’ve never come to answer that and I hope I never can. Statistically, it would be for the benefit of the “majority” to sacrifice one for more…
    That is definitely something we have to work on to make sure we have enough donated organs, blood transplants, etc. Avoiding this situation is best.

  • 16 Julian Sanchez // Aug 28, 2009 at 10:22 am

    When I say “odd” I mean “circular.” It’s one thing to have a right be contextually dependent on social facts like the level of technological development or social wealth, or even independent norms. But the set up you’re proposing renders the asserted right incapable of serving its normative function.

    Look, the point of a right is to help us determine what the public system must or ought to do. Under a public system, the prevalence-sensitive right you’re talking about ends up being purely descriptive; it tells us what the system IS doing. You never get to claim that the denial of a certain treatment is violating the right to healthcare, because on the definition you’re proposing, if the treatment isn’t being provided by the public system, it’s not routinely offered, and therefore not covered by the right. It won’t work. You’re going to need a more complex structure that’s tied to an independent standard.

  • 17 JackFrost // Aug 28, 2009 at 10:57 am

    But practically that is true of all other rights. For example, the right of free speech has all sorts of “context dependencies” too. Speech is constrained by what society deems appropriate or not. Shouting fire in a theater being the typical one that doesn’t count as free speech, but different societies draw the boundaries differently.
    England, for example, defines libel differently than the US and so free speech there is differently free than here, but both societies believe that their choices are the right ones.
    Similarly with regard to hate speech, holocaust denial, etc.

    Note also that, at a practical level, there is a “free market” component even in public systems that compensates when the public system draws the treatment line at the wrong spot. By identifying what treatments people choose to pursue in the private system you can identify what the system *should* be doing but isn’t.

    That was how the UK identified that hip replacement therapy should be done at an earlier age than was previously covered by NHS, for example.

  • 18 Julian Sanchez // Aug 28, 2009 at 11:37 am

    You’re confusing a descriptive account of cross-cultural variation in the right with the normative method of specification within a culture. Different societies draw the boundaries differently, so you can say in general terms that the boundaries of speech vary according to what each society deems appropriate. The *method* by which citizens and judges in each society draw those boundaries is not just to ask what people deem appropriate: If it were, you’d have erased the speech right and just have a pointless right to speech the majority approves. The method chosen in each society will probably reflect a culturally specific balancing of values, but it’s not directly circular in the way teeth’s proposal is.

    Looking outside the public system to the market will help in some cases, but the premise of public provision is that a market system will not, in fact, generate care that satisfies people’s rights. In particular, if some health condition disproportionately affects the poor, or if those with the means to go outside the public system tend to favor a slightly more effective but substantially more expensive treatment, this will not tend to give you the right answer about what should be covered.

  • 19 the teeth // Aug 28, 2009 at 1:48 pm

    J.S.: “Look, the point of a right is to help us determine what the public system must or ought to do.”

    I don’t think that’s quite right. Or rather, it’s not what I currently think a ‘right to health care’ really involves. It helps us determine what a public system ought to do vis-a-vis justice. Or rather, it provides a sort of metric to evaluate how just a given system is, as well as a guideline to determine when a system is unacceptably un-just. My conception does produce normative statements — it just also acknowledges that these statements only have meaning from within the context of existing cultures and institutions.

    One fascinating and sort of distressing thing about health care is that throughout modern history, and across all societies, it has always involved common use of counterproductive, backwards-thinking treatments. Regardless of level of technical sophistication. Your proposed right attempts to maximize health benefits, or quality of life, while simultaneously addressing issues of justice. Perhaps what I describe is wrong, but you need to untangle the two issues, at least if you want a description of a right which stands separate enough from a given ideological world-view to be widely accepted.

  • 20 Nick Simmonds // Aug 28, 2009 at 2:51 pm

    The way I conceive of health care as a “right”, when I do (which is something I’m unsure of) is that an individual has the right to have his or her health care provided in as efficient and cost-effective a manner possible. It’s less that someone ought to have access to a certain number of units of care, or that QALYs ought to be maximized, but that health care is on a list of goods that the government ought to be using its awesome power to optimize.

    In practice, given that the collective bargaining power of single-payer or single-provider systems is so substantially greater than that of individuals all bargaining on their own, this means that I think one’s claim on the most effective use of care-dollars possible imposes a burden on everyone to contribute to a collective plan. Also, in practice, this imposes a sort of paternalism in that one person choosing to be ineffective with their units of care throws the system out of whack for everyone else. Those collectively provided and collectively bargained units thus need to be collectively directed.

    Also on this list, with health care, I would place housing and food. In all of these cases, I think (generally) someone ought to be able to purchase over-and-above levels, but that basic needs provision should and, due to the negligible levels of individual imposition involved in collective action, must exist for those who can’t or even those who won’t provide for themselves.

  • 21 Dan // Aug 28, 2009 at 9:50 pm

    JS wrote: “Well, part of my argument is that rights language doesn’t fit very well in cases where you’re arguing from a duty of compassion to override what people want to do. ”

    I think that hits the nail on the head. On the one hand, we’re overriding Mr Rich’s decision if we say “no, you can’t spend your healthcare money on something else.” But if later, after spending his money, Mr Rich changes his mind and wants healthcare (which is what I take this to be suggesting), then we’re overriding his decision if we say “no, you can’t have it.”

    (This also goes to your point about denial of care. My assumption is that Mr Rich has changed his mind, and wants the care after spending the money. I agree he’s perfectly entitled to refuse care at any given time; the question is whether we can hold him to that decision if he later changes his mind.)

    So maybe this is just a tension of rights, which can only be resolved pragmatically. (Just as more broadly, the actual scope of positive rights can only be resolved pragmatically.)

    But I’d still argue that the contradiction is inherent in the hypo (at least as stated in your second post). If Mr Rich is capable of correctly predicting his future preferences, then he won’t change his mind, as long as he was genuinely convinced in the first place that the government wouldn’t bail him out.

    I suppose that could be restated in a way that is more amenable to your initial point. If we’re convinced that people won’t change their minds, then we can allow them to substitute their right to healthcare (or any other positive right) for some altnernate use of the same resources.

    But isn’t that true of all rights? If I’m sure that I’ll never need my right to privacy, then I can permanently opt in to government surveillance, and possibly receive greater security in exchange. (A highly questionable benefit in the real world, of course, but that’s another discussion.) Granted, positive rights are more fungible, because they’re resource-based.

    So I guess I’ll ultimately agree that the need for enumerated positive rights, as opposed to general distributional justice, is closely correlated with the variance of people’s pereferences over time. I’d argue that is distinct from paternalism, however, because paternalism suggests a single set of values that is indeed ‘best’. Whereas I think the more legitimate concern here is the variation in people’s own values over time.

  • 22 JackFrost // Aug 28, 2009 at 10:55 pm

    As regards to “choice” of whether an individual can choose to have healthcare or not:
    Sure, for certain classes of issues, I guess you can choose to avoid treatment. But not this is not an absolute: if you have any of a number of highly infectious diseases (eg syphilis, tuberculosis, pneumonia, etc) it is *not* permitted for the individual to make those choices *because* that choice impacts everyone that they come in contact with. Or at best the choice is treatment or absolute isolation.

    If healthcare is a right, then its characteristic is that there are rights associated with an individual regarding access and some choice of care, but there are also an interacting set or rights held by society curtail/constrain those choices.

    Oh, it should come as no surprise: I’m not a philosopher, I’m an engineer. I’m interested in the formulation of the problem and of the solution space and how, given those, to choose a solution that satisfies all enumerated constraints (political, financial and natural). I do, however, find that philosophical inquiry and thought are a wonderful way of exploring and defining problem and its constraints, even if I am not familiar with the rigor. I guess that is what you are attempting to do here and why I am finding the discussion fascinating.

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