Rights, Health Care, and Public Policy LAURENCE B. MCCULLOUGH* If there is a single theme that dominates recent discussions of health care policy in this country, it is that our present delivery of health care services is in a state of crisis. This crisis is usually understood sociologically: access to physicians, when one is in need of help, is difficult, and the costs of health care are unpredictable and often disastrously high. These features of the present arrangement in health care in this country are not simply a matter of inequality. In effect, the present arrangement gives individuals and classes of individuals unfair advantages over other individuals and classes of individuals. In short, health care in this country is shot through with inequities; it is unjust and in need of reform. There is a voluminous literature devoted to the socioeconomic and political dimensions of this crisis in American health care (see, for example, Alford 1975; Lewis, Fein, and Mechanic 1976; Mechanic 1978). Only recently, however, have the inequities attending that crisis attracted attention from those who work in bioethics. This is not surprising, since the recent revival of medical ethics was occasioned almost exclusively by problems arising in the context of the patient-physician relationship. But as attention has turned toward broader institutional issues such as human experimentation, allocation of scarce medical resources, and the availability of health care, the need for a more encompassing application of ethics to medicine has made itself felt. In what follows I shall discuss some of these recent efforts to apply ethical theory to public policy for health care, with special attention to the role and place of rights language, particularly the right to health care. The focus for this discussion will be two collections of essays: Doing Better and Feeling Worse: Health in the United States, edited by John H. Knowles (New York: W. W. Norton & Co., 1977), and Ethics and Health Policy, edited by Robert M. Veatch and Roy Branson (Cambridge, Mass.: Ballinger Publishing Co., 1976). * Department of Humanities in Medicine and Department of Philosophy, Texas A&M University, College Station, Texas 77843. The Journal of Medicine and Philosophy, 1979, vol. 4, no. 2 © 1979 by The Society for Health and Human Values. 0360-5310/79/0402-0009$01.09 204
Laurence B. McCullough The two collections share a common purpose: the development of a public policy for a just medicine. Knowles's volume approaches this goal from a variety of viewpoints, touching only here and there on the ethical dimensions of this project. Indeed, only one essay is explicitly devoted to the latter. The second set of essays—as its title makes clear—is more single-minded. Its authors attempt to infuse the policymaking process with the discipline of ethics. The result is meant to make for a distinctive approach to public policy and for an expanded role for bioethics. The effects on public policy I shall take up at the end of this essay. The broader role for bioethics will be my main concern. That role would have bioethics move beyond the level of the patient-physician relationship to that of the ethical dimensions of medicine as a social institution. The task, as Roy Branson puts it, thus becomes one of articulating, analyzing, and criticizing "an ethical framework within which institutions might relate to each other in a more just system of health care" (Veatch and Branson 1976, p. 12). Two main approaches to this institutional medical ethics emerge from these writings. The first is reformatory in nature and centers directly on the right to health care. The second takes a broader view, attempting to set institutional medical ethics within the framework of a theory of justice. On such a view, rights language takes on a subordinate role. Both approaches have their strengths and shortcomings. I shall focus on what I take to be the most important of these. HISTORICAL CONSIDERATIONS There is a consistent shortcoming in all of the works under consideration here, with two exceptions: the essays by Stanley Reiser (Knowles 1977, pp. 47-56) and Paul Ramsey (Veatch and Branson 1976, pp. 35-55). I am speaking of the failure to appreciate (1) the serious philosophical dimensions of historical inquiry in medical ethics, and (2) the broader compass that this inquiry on occasion achieved. Branson, for example, narrows the scope of historical medical ethics to the writing of codes by and for physicians, as if physicians of a previous day were even more benighted than the worst contemporary examples of one-dimensional, scientific "professionals" (Veatch and Branson 1976, pp. 76-77). Albert Jonsen and Andre Hellegers's remarks are small improvement (Veatch and Branson, 1976, pp. 19-22). They at least recognize in modern medical ethics the attempt to ground codes and prescriptions in moral views of the virtuous physician. But they go on to distort the texts, expecially Percival's (Percival 1975), by narrowing the focus of our forebears to matters of medical etiquette and by failing to appreciate altogether the grounding of earlier views of the "virtuous gentleman" in historical medical ethics. In reply to Jonsen and Hellegers, Ramsey suggests that 205
The Journal of Medicine and Philosophy we would do well to take the history of medical ethics more seriously (Veatch and Branson 1976, p. 36). As an introduction to and grounding of the varieties of institutional medical ethics in these two collections, a review of that history is in order. The main focus of this historical review will be the eighteenth century, and the centers of inquiry to be considered are Great Britain, the German states, and France. To the best of my knowledge, it was in Great Britain that one of the first systematic uses of rights language appeared in medical ethics. A theory of patient rights was first enunciated by Dr. James Gregory in a striking expose of the patient abuse in experiments in the Royal Infirmary in Edinburgh (Gregory 1800). His theory derived from his father's, which in turn had been based on the ethical theory of David Hume (Gregory 1778; McCullough 1978). This theory operated at two levels, a private level between patients and their physicians and a public level between hospital administrators and the public at large. Gregory's argument is the following: Because of his sworn oath, a physician voluntarily has assumed duties to his patients. From these freely assumed duties derive the rights of the patients: "even the least of the duties of a physician which are specified in our oath, and universally understood, independently of any oath, to be the duty of a physician, and consequently the right of his patients and families" (Gregory 1800, p. 136) are to be honored by the virtuous physician. The duty to do what is best for the health of one's patients did not, however, devolve upon the physician alone. "Whatever it is the duty of physicians and surgeons to do to their patients, it is the duty of the managers of a hospital to procure for the sick who are admitted in it. Whatever it is to the duty of physicians and surgeons not to do to their patients, it is the duty of the managers not to permit in their hospital" (Gregory 1800, p. 145). This duty is a public one and is not, according to Gregory, to be left to the self-enforcement of the medical community. He goes on to provide what he calls a "strict logical proof of "the general principle, that every bargain between the managers of the Infirmary and the surgeons with respect to their mode of attendance, which is bad for patients, must be null and void in law" (Gregory 1800, p. 145). The peculiar feature of Gregory's reasoning is the locus given for the origin of rights in health care. Those rights derive from the duties of the physician, freely assumed by him in what Edmund Pellegrino has called the act of "pro-fession" (Pellegrino 1978). Unlike his contemporaries and many of his successors, Gregory goes on to argue that this is a public right, enforceable by hospital administrators whose duty would be to the public at large. That is, the traditional view of the virtuous physician here takes on an expanded role, anticipating contemporary proposals for institutional bioethics. A distinctly different account of the origin of the public obligations of 206
Laurence B. McCullough medicine is to be found in the work of Johann Peter Frank and his predecessors in the tradition of "medical police" (Frank 1976). This view of the broader, institutional issues in health care policy emerged during the eighteenth century in the German states. At this time the state took considerable interest in the health of the populace because of the growing urban population and the ever-present threat of contagious disease in those increasingly overcrowded and unsanitary environments. Moreover, this was a period of regular political turbulence, and it is not surprising that the German princes wanted to maintain large and healthy populations from which able citizens could be readily drawn up into armies. "For these reasons the state must care for the health of the people. The medical profession is obligated not only to treat the sick, but to supervise the health of the population" (Rosen 1974, p. 138). The foundations for the institutional ethic of the medical police can be read out from this statement. The monarch has the right to a large, sturdy population and thus has a need to provide for their health. Medicine, as an institution, thus comes to owe its obligations primarily to the rights of the state regarding the health of the populace. Considerable power is thus placed in the hands of medicine as an instrument of the state's wishes and thus poses a threat to individual freedoms. Of this threat Frank was well aware. But, he says, only the freedom to be irresponsible with respect to one's duties in preserving the public weal are lost, and these curbs on freedom any reasonable man should accept. In striking contrast to Frank's proposals, the eighteenth-century French revolutionary councils held the view that health care was the right of each citizen. The revolutionaries went even farther and claimed as a natural right the right of all men to health care: Charity, the older view, was to be replaced by a well-founded societal obligation. Any society that failed to recognize such a right did not treat all equally and so was to be considered unjust and in need of reform. On this view the right to health care emerged directly from the afflicted, unmediated by either the patient-physician relationship, the British view, or the state, the German view. Influenced perhaps by Locke's notion of a natural right to health (Locke 1960), the French maintained that health care was something to which each human was entitled simply in virtue of being human. Nothing more was required than that one was sick and in need of treatment. THE RIGHT TO HEALTH CARE Of the recent approaches to institutional bioethics, that employing the language of a right to health care has been most prominent. The solution to the inequities in health care delivery is to be found, some argue, in the recognition of this right. The proponents of this view are the direct, if not 207
The Journal of Medicine and Philosophy always self-conscious, heirs of the line of argument first enunciated by the French revolutionaries. Following their predecessors nonetheless, the contemporary school of thought argues that the older notion that health care is a privilege will no longer do as a moral foundation for the way we should organize medicine in our society: Privilege is no redress for inequity. This sort of language is very much in accord with the traditional use of rights language and historical precedent for the application of that language to health care. While there is some discomfort in some philosophical circles about rights, and while it is probably true that rights talk does as much to exacerbate as to resolve complex social issues, it is nevertheless the case, as Marvin Kohl puts it, that "at least in this country, there is evidence that one of the dominant reforming ideological currents of our time is essentially grounded in rights-talk. To the extent that this is true, it becomes important for the philosopher interested in the viability or effectiveness of his theory to give careful and critical treatment to the notion of rights" (Kohl 1977, p. 77). In this section I shall evaluate recent attempts to provide such a treatment of the right to health care. This treatment is provided by Daniel Callahan in essays that appear in both volumes. There are several themes common to both. The first concerns how changes in medicine and society force changes in values. The most significant and obvious change in medicine has been the development of an increasingly powerful biomedical science. This is, to be sure, a welcome change, for we suffer less, even at the hands of our healers, than we once did. But the successes of scientific medicine have been exaggerated, contributing as Ernest Saward puts it (Knowles 1977, p. 193) to a "cultural myth'1 about the power of medicine. Though as long ago as the seventeenth century John Locke had claimed that the natural rights included a right to health, he had little to say about the right to health care, perhaps because medicine as we know it was still in its infancy. Today medicine and biomedical science can deliver, and so demand for treatment of what ails us has increased. The significant change in society, in the democratic societies to be exact, involves the expanding scope of basic rights. In the past several years, for example, a major development along these lines has concerned the right to privacy. The right to health care is now coming to a similar prominence in our public life, especially in political debates about national health insurance. In such debates the claim that health care is a basic or human right is frequently heard. Coupled with the expansion of the scope of basic rights to include the right to health care has been the expansion of the concept of health, typified by the World Health Organization's now famous statement on the subject. Not only have we accepted what Aaron Wildavsky calls the 208
Laurence B. McCullough "great equation," "medical care equals health" (Knowles 1977, p. 105), we have gone on to so expand the notion of health that medicine, in Callahan's words, is being required to become the "keystone in the search for human happiness" (Knowles 1977, p. 26). And to the benefits of this all-powerful medicine, it is thought, we all have a right. Callahan sees this as a new right, occasioned by the changes noted already. In making this claim he is incorrect. After all, that health care is a natural or basic right, terms used by Callahan, is precisely what the French argued in the eighteenth century. But he neglects the history of the right. Moreover, neither Callahan nor any of the contributors to the two collections take up directly the task of how a right to health care is to be grounded. Some, as we see shortly, include the right within a theory of justice as some sort of civil entitlement. But of the more radical claim that the right to health care is a natural or human right, no account is given. Aside from these important shortcomings, however, Callahan's essays are valuable, in that they highlight other serious problems still to be addressed by the advocates of this right, however it is to be grounded. His first set of criticisms focuses on what 'health' means. Callahan urges his reader to reject the WHO definition of health, claiming that it is "dangerous" (Knowles 1977, p. 26) on the ground that acceptance of such a concept will require us to strive after unattainable goals. Instead we should understand health in more modest terms, denoting "bodily integrity, the absence of pain and infirmity, the state of a wellfunctioning and thus unremarkable organism" (Knowles 1977, p. 25), a view echoed by a number of other authors in the first collection and by others elsewhere (Kass 1975). Along these same lines, Callahan adds in his second essay an argument to the effect that we should be suspicious of a tight connection between progress in medicine and increased health. In a number of areas, the treatment of spina bifida infants, for example, "progress" signals only more dramatically the limits of what we can do to improve health. We need to go further still, though, in understanding the right to health care. To do so, Callahan distinguishes needs and desires, to refine finally the concept of health appropriate to a right to health care. The right to health care is to be linked to needs rather than to desires, Callahan argues, thus clarifying the proper role for medicine and public policy in responding to the right. These considerations entail that the right to health care is limited. The most that can be established is that the right to health care means a right to equal access. We cannot go further, he argues, and recognize a right to have developed whatever is needed or desired in the name of an expanded concept of health. To do so would be to fall into all of the traps already noted. Callahan does not deny that the public debate includes 209
The Journal of Medicine and Philosophy strains of this more ambitious understanding of the right to health care; he would be foolish to do so. This more ambitious strain of thinking should not surprise us, however, since the historical development of the paradigm of limits on human rights has yet to occur for the right to health care (Veatch and Branson 1976, p. 163). The task for the advocates of this right, Callahan therefore concludes, is to establish its relative place among the other "accepted rights" of our society. RIGHTS, JUSTICE, AND HEALTH CARE A criticism that could be made of Callahan's, indeed of anyone's, version of the right to health care is that while rights language calls to prominence ethical issues of an institutional sort, it is not able to deal with them in a thoroughgoing manner. Recall that the more modest version of the right to health care is the right to have one's minimal needs satisfied. But suppose that the resources available to meet the needs, even the minimal needs, of everyone are insufficient to the task. Suppose, furthermore, that even the minimal requirements for a satisfactory life for some people are so extensive that others' needs cannot be satisfied, as they might be in the case of the totally implantable artificial heart. What guidance does an institutional bioethics based on the right to health care give to those who must decide what should be done in such circumstances? None, for a claim to a right to equal access is inadequate to deal with questions of the limits on providing such access. It is in the face of problems like this that a more broadly based approach to institutional bioethics is required. A variety of such approaches are displayed in the second collection. Indeed, the greater portion of the 6ook is devoted to efforts of this kind. Robert Veatch provides a classification of the varieties of institutional bioethics and I shall adopt his scheme in what follows (Veatch and Branson 1976, pp. 131-36). The first of Veatch's three classifications is the utilitarian theory of just health care delivery, of which there are two representatives in his and Branson's collection. The first of these is Joseph Fletcher, who begins by unquestioningly accepting the WHO definition of health as the "health" in just health care delivery. He then dismisses, without argument, as "outmoded" a view like Hans Jonas's that the physician is obligated to his patient and to no one else (Veatch and Branson 1976, p. 104). Instead, we are urged to recognize "radical interconnectvity," left unexplained, as the basis for developing a theory of distributive justice for health care (Veatch and Branson 1976, p. 104). As an alternative to what Kenneth Boulding has called "wild hunches" (Veatch and Branson 1976, p. 107), a language Fletcher embraces, we should use computers, programmed with "preference questions" to quantify values. In this way 210
Laurence B. McCullough we can arrive at valid, indeed certain, conclusions about which benefits are to be maximized for the greatest number. As a good utilitarian should—and one can respect Fletcher for his consistency, if for nothing else—he accepts that the common good should prevail over private needs and interests. In his haste to take a role in policymaking and give some role to ethical theory in policymaking, however, Fletcher overlooks the distinctive discipline of the humanities. Pace Kenneth Boulding, the alternative to quantifying values is not "wild hunches" but reasoned choices. Not exact, irrefutable, and forever certain choices, to be sure, but defensible ones nonetheless. If ethics is to participate in the formation of public policy, it should not undo itself and engage in deception of the policymaker and the public about what ethics is and does. Peter Singer takes a more balanced, considered, and sensitive approach to the utilitarian dimensions of health care policy. These characteristics are especially evident in his argument that the right-to-healthcare approach fails to appreciate wider institutional issues. Specifically, this approach must overlook the fact that the community itself can achieve common goods that individuals alone could not, for example, the provision of an adequate supply of cheap, uncontaminated blood in Great Britain (Veatch and Branson 1976, p. 188). Thus, some consideration of the benefits and harms to be reaped from particular health care policies must be considered by any adequate ethical theory. Singer does not go as far as Fletcher, however, and argue that the common good is the only proper concern of institutional bioethics. Instead, we must consider the effects on freedom itself of various health policies. What we want, he concludes, is a policy that creates social conditions that do not restrict freedom and that provide for the greatest possible common good. The aim of doing so is to integrate the community around the "fundamental areas of life" (Veatch and Branson 1976, p. 191), thus mitigating the effects of inequalities and avoiding the inequities that attend those effects. The next classification involves those who advocate the application of Rawls's theory of justice to public policy for health care. The principal representative of this effort is Ronald Green (Veatch and Branson 1976, pp. 111-26). The Rawlsian approach understands the central issue to be the just distribution of health care. As a primary social good, health care is something to which all should have equal access. The main question to be settled thus concerns the portion of total resources to be devoted to health care. Green's answer is that the portion depends on the stage of development in the particular society under consideration. Green's position is an excellent example of a reasoned, orderly approach to institutional bioethics, refuting better than I can Boulding's rash claim and Fletcher's unwise adherence to it. 211
The Journal of Medicine and Philosophy Similar conclusions about health care are reached by Gene Outka (Veatch and Branson 1976, pp. 79-98). Because his article is so widely known, I shall not dwell at length upon it. Outka's position is that justice requires that there should be equal access to health care. This is because we are all equally susceptible to disease. It is this susceptibility that establishes the grounds for receipt of care. Outka, however, is aware that resources may not be adequate to meet the demand on them. In such cases the grounds for distribution shall be similar treatment for similar cases. And, if all cases cannot be treated, we should discriminate according to categories of illnesses to be treated rather than categories of people. The best way to assure this outcome, Outka thinks, might be a random selection procedure or some consideration of which categories of illness most drain our resources (Veatch and Branson 1976, p. 92). This sort of position, as well as a utilitarian position, Veatch would reject, because each would entail excluding some of the sick, especially those worst off and most in need of help, from health care. This, he argues, would be wrong, even though on the grounds of a particular theory it might appear to be just (Veatch and Branson 1976, pp. 131-33). That is, we need to attend carefully to the just-making characteristics of the institutional bioethics in question. As an alternative, he proposes what he calls an egalitarian theory of a just health care: "Justice requires that everyone has a claim to health care needed to provide an opportunity for a level of health equal, as far as possible, to other person's health" (Veatch and Branson 1976, p. 134). His position entails a reduction in the importance of considerations of efficiency and utility, in favor of a strong recognition of what seems very much like a right. The right to health care needed to provide an opportunity for a level of health equal, as far as possible, to other persons' health thus serves as a constraint on maximizing the common good. On this view, the right to health care is more than a right to equal access, or even equal access to those minimal needs for a satisfactory life. It is less than a natural or basic right, however, as it is derived from and grounded in a broader theory of justice. It is, in short, a civil right—but a powerful one nonetheless, acting as a side constraint on a too vigorous search for the common good. INSTITUTIONAL BIOETHICS AND PUBLIC POLICY It would be premature at this stage in the inquiry into rights, health care, and public policy to decide which of these approaches is clearly superior. Indeed, it may turn out to be the case that there is more than one way to approach institutional ethics. Not all of the contributors to these two collections sufficiently appreciate that this may be so. Albert Jonsen and Andre Hellegers, for example, lament the absence of a settled method for institutional bioethics (Veatch and Branson 1976, p. 17). In so doing they 212
Laurence B. McCullough seem to yearn for a single, reliable, and (as nearly as possible) unflawed approach. There are, to be sure, problems to be solved and needs and anxieties to be assuaged, to use their language. But some of the problems encountered in the discussion above are dense and will not yield to anything but sustained inquiry, if that. I would like to close with a consideration of what I take to be the most important of these problems and with a caution. In describing what the Rawlsian project in institutional bioethics would be, Branson writes: "If bioethics were to follow Rawls, it would not simply add the interinstitutional concerns of social ethics to its agenda; bioethics would make certain that considerations of social justice at least logically took precedence over analysis of individual obligations" (Veatch and Branson 1976, p. 12). This view is echoed by Jonsen and Hellegers when they lament the inadequacy of traditional medical ethics for the problems of institutional bioethics. In reply to the two, Ramsey cautions against exuberance: We do not want to go so far as to violate the individual rights of patients in our search for the common good (Veatch and Branson 1976, p. 41). What Ramsey means to say, I think, is that there are claims within and on the practitioner-patient relationship which will obtain irrespective of any institutional bioethics. Indeed, I would go so far as to argue that the test of an institutional bioethics is its adequacy to those claims. That is, it may well be that the moral rules constitutive of medicine as a social enterprise may originate from the moral constraints on the practitioner-patient relationship as well as from social justice (see Ramsey in Veatch and Branson 1976, pp. 51-55). The strength of the older medical ethics is that it begins with this recognition. It starts with the obligations of virtuous physicians to their patients and only then expands that concept of virtue to include the public duties of medicine as an institution. There are two possible problems with this older view. It may be that it will entail society's tolerating the diminution of the common good; society may have to pay a high moral price to sustain a just medicine, and it may not be willing to do so. The other problem is that this approach may not be adequate to our own time. But to dismiss this older approach out of hand, or to ignore it altogether, will be no improvement if the result is a theory for "just" health care that unjustly sacrifices individual rights to the common good. The caution is this: I think that we can and should agree that it is a good thing for the skills of ethics to be brought to bear on and included in the process of developing public policy, for medicine and for any other sphere of human activity. But we should not expect, once the integration of ethics into public policy has been undertaken, that the making of public policy will be unaffected. Here Aristotle's timeless warning about the nature of ethical reasoning has bearing: "We must be content, then, in speaking of such subjects and with such premises to indicate the truth 213
The Journal of Medicine and Philosophy roughly and in outline, and in speaking about things which are only for the most part true and with premises of the same kind to reach conclusions that are no better. In the same spirit, therefore, should each type ot statement be received; for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs" (Aristotle 1960, p. 936). Infused with ethical reasoning, public policy will become more tentative, less certain, and probably never final. And recognizing these consequences will be good, for doing so may provide for a much needed temporality and flexibility in public policy. To be sure, ethics and bioethics cannot avoid public policy for health care. But neither can public policy avoid ethics, once the two have been made conjoint enterprises. REFERENCES Alford, R. Health Care Politics. Chicago: University of Chicago Press, 1975. Aristotle. Nicomachean Ethics. In The Basic Works of Aristotle, edited by Richard McKeon. New York: Random House, 1941. Frank, J. P. System einer vollstdndigen medicinischen Polizey. 3d rev. ed. Wien, 1786-1817. Frank, J. P. A System of Complete Medical Policy: Selections from Johann Peter Frank. Edited by Erna Lesky. Baltimore: Johns Hopkins University Press, 1976. Gregory, J. Lectures on the Duties and Qualifications of a Physician. Edinburgh: W. Creek, 1788. Gregory, J. Memorial to the Managers of the Royal Infirmary. Edinburgh: Murray & Cochrane, 1800. Kass, L. "Regarding the End of Medicine and the Pursuit of Health." Public Interest 40 (Summer 1975): 11-42. Knowles, J., ed. Doing Better and Feeling Worse: Health in the United States. New York: W. W. Norton & Co., 1977. Kohl, M. "Euthanasia and the Right to Life." In Philosophical Medical Ethics: Its Nature and Significance, edited by Stuart F. Spicker and H. Tristram Engelhardt, Jr. Vol. 3. Dordrecht: D. Reidel Publishing Co., 1977. Lewis, C ; Fein, R.; and Mechanic, D. The Right to Health. New York: John Wiley & Sons, 1976. Locke, J. Two Treatises of Government. Edited by Peter Laslett. New York: Cambridge University Press, 1960. McCullough, L. "Historical Perspectives on the Ethical Dimensions of the Patient-Physician Relationship: The Medical Ethics of Dr. John Gregory." Ethics in Science and Medicine 5 (1978): 47-53. Mechanic, D. Medical Sociology. New York: Free Press, 1978. Pellegrino, E. "The Fact of Illness and the Act of Pro-Fession: Some Notes on the Source of Professional Obligation." In Implications of History and Ethics to 214
Laurence B. McCullough Medicine—Veterinary and Human, edited by Laurence B. McCullough and James P. Morris. College Station: Centennial Academic Assemblies, Texas A&M University, 1978. Percival, T. Percival's Medical Ethics. Edited by Chauncey D. Leake. Huntington, N.Y.: R. E. Krieger Publishing Co., 1975. Rosen, G. From Medical Policy to Social Medicine: Essays on the History of Health Care. New York: Science History Publications, 1974. Veatch, R., and Branson, R. Ethics and Health Policy. Cambridge, Mass.: Ballinger Publishing Co., 1976.
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Laurence B. McCullough The two collections share a common purpose: the development of a public policy for a just medicine. Knowles's volume approaches this goal from a variety of viewpoints, touching only here and there on the ethical dimensions of this project. Indeed, only one essay is explicitly devoted to the latter. The second set of essays—as its title makes clear—is more single-minded. Its authors attempt to infuse the policymaking process with the discipline of ethics. The result is meant to make for a distinctive approach to public policy and for an expanded role for bioethics. The effects on public policy I shall take up at the end of this essay. The broader role for bioethics will be my main concern. That role would have bioethics move beyond the level of the patient-physician relationship to that of the ethical dimensions of medicine as a social institution. The task, as Roy Branson puts it, thus becomes one of articulating, analyzing, and criticizing "an ethical framework within which institutions might relate to each other in a more just system of health care" (Veatch and Branson 1976, p. 12). Two main approaches to this institutional medical ethics emerge from these writings. The first is reformatory in nature and centers directly on the right to health care. The second takes a broader view, attempting to set institutional medical ethics within the framework of a theory of justice. On such a view, rights language takes on a subordinate role. Both approaches have their strengths and shortcomings. I shall focus on what I take to be the most important of these. HISTORICAL CONSIDERATIONS There is a consistent shortcoming in all of the works under consideration here, with two exceptions: the essays by Stanley Reiser (Knowles 1977, pp. 47-56) and Paul Ramsey (Veatch and Branson 1976, pp. 35-55). I am speaking of the failure to appreciate (1) the serious philosophical dimensions of historical inquiry in medical ethics, and (2) the broader compass that this inquiry on occasion achieved. Branson, for example, narrows the scope of historical medical ethics to the writing of codes by and for physicians, as if physicians of a previous day were even more benighted than the worst contemporary examples of one-dimensional, scientific "professionals" (Veatch and Branson 1976, pp. 76-77). Albert Jonsen and Andre Hellegers's remarks are small improvement (Veatch and Branson, 1976, pp. 19-22). They at least recognize in modern medical ethics the attempt to ground codes and prescriptions in moral views of the virtuous physician. But they go on to distort the texts, expecially Percival's (Percival 1975), by narrowing the focus of our forebears to matters of medical etiquette and by failing to appreciate altogether the grounding of earlier views of the "virtuous gentleman" in historical medical ethics. In reply to Jonsen and Hellegers, Ramsey suggests that 205
The Journal of Medicine and Philosophy we would do well to take the history of medical ethics more seriously (Veatch and Branson 1976, p. 36). As an introduction to and grounding of the varieties of institutional medical ethics in these two collections, a review of that history is in order. The main focus of this historical review will be the eighteenth century, and the centers of inquiry to be considered are Great Britain, the German states, and France. To the best of my knowledge, it was in Great Britain that one of the first systematic uses of rights language appeared in medical ethics. A theory of patient rights was first enunciated by Dr. James Gregory in a striking expose of the patient abuse in experiments in the Royal Infirmary in Edinburgh (Gregory 1800). His theory derived from his father's, which in turn had been based on the ethical theory of David Hume (Gregory 1778; McCullough 1978). This theory operated at two levels, a private level between patients and their physicians and a public level between hospital administrators and the public at large. Gregory's argument is the following: Because of his sworn oath, a physician voluntarily has assumed duties to his patients. From these freely assumed duties derive the rights of the patients: "even the least of the duties of a physician which are specified in our oath, and universally understood, independently of any oath, to be the duty of a physician, and consequently the right of his patients and families" (Gregory 1800, p. 136) are to be honored by the virtuous physician. The duty to do what is best for the health of one's patients did not, however, devolve upon the physician alone. "Whatever it is the duty of physicians and surgeons to do to their patients, it is the duty of the managers of a hospital to procure for the sick who are admitted in it. Whatever it is to the duty of physicians and surgeons not to do to their patients, it is the duty of the managers not to permit in their hospital" (Gregory 1800, p. 145). This duty is a public one and is not, according to Gregory, to be left to the self-enforcement of the medical community. He goes on to provide what he calls a "strict logical proof of "the general principle, that every bargain between the managers of the Infirmary and the surgeons with respect to their mode of attendance, which is bad for patients, must be null and void in law" (Gregory 1800, p. 145). The peculiar feature of Gregory's reasoning is the locus given for the origin of rights in health care. Those rights derive from the duties of the physician, freely assumed by him in what Edmund Pellegrino has called the act of "pro-fession" (Pellegrino 1978). Unlike his contemporaries and many of his successors, Gregory goes on to argue that this is a public right, enforceable by hospital administrators whose duty would be to the public at large. That is, the traditional view of the virtuous physician here takes on an expanded role, anticipating contemporary proposals for institutional bioethics. A distinctly different account of the origin of the public obligations of 206
Laurence B. McCullough medicine is to be found in the work of Johann Peter Frank and his predecessors in the tradition of "medical police" (Frank 1976). This view of the broader, institutional issues in health care policy emerged during the eighteenth century in the German states. At this time the state took considerable interest in the health of the populace because of the growing urban population and the ever-present threat of contagious disease in those increasingly overcrowded and unsanitary environments. Moreover, this was a period of regular political turbulence, and it is not surprising that the German princes wanted to maintain large and healthy populations from which able citizens could be readily drawn up into armies. "For these reasons the state must care for the health of the people. The medical profession is obligated not only to treat the sick, but to supervise the health of the population" (Rosen 1974, p. 138). The foundations for the institutional ethic of the medical police can be read out from this statement. The monarch has the right to a large, sturdy population and thus has a need to provide for their health. Medicine, as an institution, thus comes to owe its obligations primarily to the rights of the state regarding the health of the populace. Considerable power is thus placed in the hands of medicine as an instrument of the state's wishes and thus poses a threat to individual freedoms. Of this threat Frank was well aware. But, he says, only the freedom to be irresponsible with respect to one's duties in preserving the public weal are lost, and these curbs on freedom any reasonable man should accept. In striking contrast to Frank's proposals, the eighteenth-century French revolutionary councils held the view that health care was the right of each citizen. The revolutionaries went even farther and claimed as a natural right the right of all men to health care: Charity, the older view, was to be replaced by a well-founded societal obligation. Any society that failed to recognize such a right did not treat all equally and so was to be considered unjust and in need of reform. On this view the right to health care emerged directly from the afflicted, unmediated by either the patient-physician relationship, the British view, or the state, the German view. Influenced perhaps by Locke's notion of a natural right to health (Locke 1960), the French maintained that health care was something to which each human was entitled simply in virtue of being human. Nothing more was required than that one was sick and in need of treatment. THE RIGHT TO HEALTH CARE Of the recent approaches to institutional bioethics, that employing the language of a right to health care has been most prominent. The solution to the inequities in health care delivery is to be found, some argue, in the recognition of this right. The proponents of this view are the direct, if not 207
The Journal of Medicine and Philosophy always self-conscious, heirs of the line of argument first enunciated by the French revolutionaries. Following their predecessors nonetheless, the contemporary school of thought argues that the older notion that health care is a privilege will no longer do as a moral foundation for the way we should organize medicine in our society: Privilege is no redress for inequity. This sort of language is very much in accord with the traditional use of rights language and historical precedent for the application of that language to health care. While there is some discomfort in some philosophical circles about rights, and while it is probably true that rights talk does as much to exacerbate as to resolve complex social issues, it is nevertheless the case, as Marvin Kohl puts it, that "at least in this country, there is evidence that one of the dominant reforming ideological currents of our time is essentially grounded in rights-talk. To the extent that this is true, it becomes important for the philosopher interested in the viability or effectiveness of his theory to give careful and critical treatment to the notion of rights" (Kohl 1977, p. 77). In this section I shall evaluate recent attempts to provide such a treatment of the right to health care. This treatment is provided by Daniel Callahan in essays that appear in both volumes. There are several themes common to both. The first concerns how changes in medicine and society force changes in values. The most significant and obvious change in medicine has been the development of an increasingly powerful biomedical science. This is, to be sure, a welcome change, for we suffer less, even at the hands of our healers, than we once did. But the successes of scientific medicine have been exaggerated, contributing as Ernest Saward puts it (Knowles 1977, p. 193) to a "cultural myth'1 about the power of medicine. Though as long ago as the seventeenth century John Locke had claimed that the natural rights included a right to health, he had little to say about the right to health care, perhaps because medicine as we know it was still in its infancy. Today medicine and biomedical science can deliver, and so demand for treatment of what ails us has increased. The significant change in society, in the democratic societies to be exact, involves the expanding scope of basic rights. In the past several years, for example, a major development along these lines has concerned the right to privacy. The right to health care is now coming to a similar prominence in our public life, especially in political debates about national health insurance. In such debates the claim that health care is a basic or human right is frequently heard. Coupled with the expansion of the scope of basic rights to include the right to health care has been the expansion of the concept of health, typified by the World Health Organization's now famous statement on the subject. Not only have we accepted what Aaron Wildavsky calls the 208
Laurence B. McCullough "great equation," "medical care equals health" (Knowles 1977, p. 105), we have gone on to so expand the notion of health that medicine, in Callahan's words, is being required to become the "keystone in the search for human happiness" (Knowles 1977, p. 26). And to the benefits of this all-powerful medicine, it is thought, we all have a right. Callahan sees this as a new right, occasioned by the changes noted already. In making this claim he is incorrect. After all, that health care is a natural or basic right, terms used by Callahan, is precisely what the French argued in the eighteenth century. But he neglects the history of the right. Moreover, neither Callahan nor any of the contributors to the two collections take up directly the task of how a right to health care is to be grounded. Some, as we see shortly, include the right within a theory of justice as some sort of civil entitlement. But of the more radical claim that the right to health care is a natural or human right, no account is given. Aside from these important shortcomings, however, Callahan's essays are valuable, in that they highlight other serious problems still to be addressed by the advocates of this right, however it is to be grounded. His first set of criticisms focuses on what 'health' means. Callahan urges his reader to reject the WHO definition of health, claiming that it is "dangerous" (Knowles 1977, p. 26) on the ground that acceptance of such a concept will require us to strive after unattainable goals. Instead we should understand health in more modest terms, denoting "bodily integrity, the absence of pain and infirmity, the state of a wellfunctioning and thus unremarkable organism" (Knowles 1977, p. 25), a view echoed by a number of other authors in the first collection and by others elsewhere (Kass 1975). Along these same lines, Callahan adds in his second essay an argument to the effect that we should be suspicious of a tight connection between progress in medicine and increased health. In a number of areas, the treatment of spina bifida infants, for example, "progress" signals only more dramatically the limits of what we can do to improve health. We need to go further still, though, in understanding the right to health care. To do so, Callahan distinguishes needs and desires, to refine finally the concept of health appropriate to a right to health care. The right to health care is to be linked to needs rather than to desires, Callahan argues, thus clarifying the proper role for medicine and public policy in responding to the right. These considerations entail that the right to health care is limited. The most that can be established is that the right to health care means a right to equal access. We cannot go further, he argues, and recognize a right to have developed whatever is needed or desired in the name of an expanded concept of health. To do so would be to fall into all of the traps already noted. Callahan does not deny that the public debate includes 209
The Journal of Medicine and Philosophy strains of this more ambitious understanding of the right to health care; he would be foolish to do so. This more ambitious strain of thinking should not surprise us, however, since the historical development of the paradigm of limits on human rights has yet to occur for the right to health care (Veatch and Branson 1976, p. 163). The task for the advocates of this right, Callahan therefore concludes, is to establish its relative place among the other "accepted rights" of our society. RIGHTS, JUSTICE, AND HEALTH CARE A criticism that could be made of Callahan's, indeed of anyone's, version of the right to health care is that while rights language calls to prominence ethical issues of an institutional sort, it is not able to deal with them in a thoroughgoing manner. Recall that the more modest version of the right to health care is the right to have one's minimal needs satisfied. But suppose that the resources available to meet the needs, even the minimal needs, of everyone are insufficient to the task. Suppose, furthermore, that even the minimal requirements for a satisfactory life for some people are so extensive that others' needs cannot be satisfied, as they might be in the case of the totally implantable artificial heart. What guidance does an institutional bioethics based on the right to health care give to those who must decide what should be done in such circumstances? None, for a claim to a right to equal access is inadequate to deal with questions of the limits on providing such access. It is in the face of problems like this that a more broadly based approach to institutional bioethics is required. A variety of such approaches are displayed in the second collection. Indeed, the greater portion of the 6ook is devoted to efforts of this kind. Robert Veatch provides a classification of the varieties of institutional bioethics and I shall adopt his scheme in what follows (Veatch and Branson 1976, pp. 131-36). The first of Veatch's three classifications is the utilitarian theory of just health care delivery, of which there are two representatives in his and Branson's collection. The first of these is Joseph Fletcher, who begins by unquestioningly accepting the WHO definition of health as the "health" in just health care delivery. He then dismisses, without argument, as "outmoded" a view like Hans Jonas's that the physician is obligated to his patient and to no one else (Veatch and Branson 1976, p. 104). Instead, we are urged to recognize "radical interconnectvity," left unexplained, as the basis for developing a theory of distributive justice for health care (Veatch and Branson 1976, p. 104). As an alternative to what Kenneth Boulding has called "wild hunches" (Veatch and Branson 1976, p. 107), a language Fletcher embraces, we should use computers, programmed with "preference questions" to quantify values. In this way 210
Laurence B. McCullough we can arrive at valid, indeed certain, conclusions about which benefits are to be maximized for the greatest number. As a good utilitarian should—and one can respect Fletcher for his consistency, if for nothing else—he accepts that the common good should prevail over private needs and interests. In his haste to take a role in policymaking and give some role to ethical theory in policymaking, however, Fletcher overlooks the distinctive discipline of the humanities. Pace Kenneth Boulding, the alternative to quantifying values is not "wild hunches" but reasoned choices. Not exact, irrefutable, and forever certain choices, to be sure, but defensible ones nonetheless. If ethics is to participate in the formation of public policy, it should not undo itself and engage in deception of the policymaker and the public about what ethics is and does. Peter Singer takes a more balanced, considered, and sensitive approach to the utilitarian dimensions of health care policy. These characteristics are especially evident in his argument that the right-to-healthcare approach fails to appreciate wider institutional issues. Specifically, this approach must overlook the fact that the community itself can achieve common goods that individuals alone could not, for example, the provision of an adequate supply of cheap, uncontaminated blood in Great Britain (Veatch and Branson 1976, p. 188). Thus, some consideration of the benefits and harms to be reaped from particular health care policies must be considered by any adequate ethical theory. Singer does not go as far as Fletcher, however, and argue that the common good is the only proper concern of institutional bioethics. Instead, we must consider the effects on freedom itself of various health policies. What we want, he concludes, is a policy that creates social conditions that do not restrict freedom and that provide for the greatest possible common good. The aim of doing so is to integrate the community around the "fundamental areas of life" (Veatch and Branson 1976, p. 191), thus mitigating the effects of inequalities and avoiding the inequities that attend those effects. The next classification involves those who advocate the application of Rawls's theory of justice to public policy for health care. The principal representative of this effort is Ronald Green (Veatch and Branson 1976, pp. 111-26). The Rawlsian approach understands the central issue to be the just distribution of health care. As a primary social good, health care is something to which all should have equal access. The main question to be settled thus concerns the portion of total resources to be devoted to health care. Green's answer is that the portion depends on the stage of development in the particular society under consideration. Green's position is an excellent example of a reasoned, orderly approach to institutional bioethics, refuting better than I can Boulding's rash claim and Fletcher's unwise adherence to it. 211
The Journal of Medicine and Philosophy Similar conclusions about health care are reached by Gene Outka (Veatch and Branson 1976, pp. 79-98). Because his article is so widely known, I shall not dwell at length upon it. Outka's position is that justice requires that there should be equal access to health care. This is because we are all equally susceptible to disease. It is this susceptibility that establishes the grounds for receipt of care. Outka, however, is aware that resources may not be adequate to meet the demand on them. In such cases the grounds for distribution shall be similar treatment for similar cases. And, if all cases cannot be treated, we should discriminate according to categories of illnesses to be treated rather than categories of people. The best way to assure this outcome, Outka thinks, might be a random selection procedure or some consideration of which categories of illness most drain our resources (Veatch and Branson 1976, p. 92). This sort of position, as well as a utilitarian position, Veatch would reject, because each would entail excluding some of the sick, especially those worst off and most in need of help, from health care. This, he argues, would be wrong, even though on the grounds of a particular theory it might appear to be just (Veatch and Branson 1976, pp. 131-33). That is, we need to attend carefully to the just-making characteristics of the institutional bioethics in question. As an alternative, he proposes what he calls an egalitarian theory of a just health care: "Justice requires that everyone has a claim to health care needed to provide an opportunity for a level of health equal, as far as possible, to other person's health" (Veatch and Branson 1976, p. 134). His position entails a reduction in the importance of considerations of efficiency and utility, in favor of a strong recognition of what seems very much like a right. The right to health care needed to provide an opportunity for a level of health equal, as far as possible, to other persons' health thus serves as a constraint on maximizing the common good. On this view, the right to health care is more than a right to equal access, or even equal access to those minimal needs for a satisfactory life. It is less than a natural or basic right, however, as it is derived from and grounded in a broader theory of justice. It is, in short, a civil right—but a powerful one nonetheless, acting as a side constraint on a too vigorous search for the common good. INSTITUTIONAL BIOETHICS AND PUBLIC POLICY It would be premature at this stage in the inquiry into rights, health care, and public policy to decide which of these approaches is clearly superior. Indeed, it may turn out to be the case that there is more than one way to approach institutional ethics. Not all of the contributors to these two collections sufficiently appreciate that this may be so. Albert Jonsen and Andre Hellegers, for example, lament the absence of a settled method for institutional bioethics (Veatch and Branson 1976, p. 17). In so doing they 212
Laurence B. McCullough seem to yearn for a single, reliable, and (as nearly as possible) unflawed approach. There are, to be sure, problems to be solved and needs and anxieties to be assuaged, to use their language. But some of the problems encountered in the discussion above are dense and will not yield to anything but sustained inquiry, if that. I would like to close with a consideration of what I take to be the most important of these problems and with a caution. In describing what the Rawlsian project in institutional bioethics would be, Branson writes: "If bioethics were to follow Rawls, it would not simply add the interinstitutional concerns of social ethics to its agenda; bioethics would make certain that considerations of social justice at least logically took precedence over analysis of individual obligations" (Veatch and Branson 1976, p. 12). This view is echoed by Jonsen and Hellegers when they lament the inadequacy of traditional medical ethics for the problems of institutional bioethics. In reply to the two, Ramsey cautions against exuberance: We do not want to go so far as to violate the individual rights of patients in our search for the common good (Veatch and Branson 1976, p. 41). What Ramsey means to say, I think, is that there are claims within and on the practitioner-patient relationship which will obtain irrespective of any institutional bioethics. Indeed, I would go so far as to argue that the test of an institutional bioethics is its adequacy to those claims. That is, it may well be that the moral rules constitutive of medicine as a social enterprise may originate from the moral constraints on the practitioner-patient relationship as well as from social justice (see Ramsey in Veatch and Branson 1976, pp. 51-55). The strength of the older medical ethics is that it begins with this recognition. It starts with the obligations of virtuous physicians to their patients and only then expands that concept of virtue to include the public duties of medicine as an institution. There are two possible problems with this older view. It may be that it will entail society's tolerating the diminution of the common good; society may have to pay a high moral price to sustain a just medicine, and it may not be willing to do so. The other problem is that this approach may not be adequate to our own time. But to dismiss this older approach out of hand, or to ignore it altogether, will be no improvement if the result is a theory for "just" health care that unjustly sacrifices individual rights to the common good. The caution is this: I think that we can and should agree that it is a good thing for the skills of ethics to be brought to bear on and included in the process of developing public policy, for medicine and for any other sphere of human activity. But we should not expect, once the integration of ethics into public policy has been undertaken, that the making of public policy will be unaffected. Here Aristotle's timeless warning about the nature of ethical reasoning has bearing: "We must be content, then, in speaking of such subjects and with such premises to indicate the truth 213
The Journal of Medicine and Philosophy roughly and in outline, and in speaking about things which are only for the most part true and with premises of the same kind to reach conclusions that are no better. In the same spirit, therefore, should each type ot statement be received; for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs" (Aristotle 1960, p. 936). Infused with ethical reasoning, public policy will become more tentative, less certain, and probably never final. And recognizing these consequences will be good, for doing so may provide for a much needed temporality and flexibility in public policy. To be sure, ethics and bioethics cannot avoid public policy for health care. But neither can public policy avoid ethics, once the two have been made conjoint enterprises. REFERENCES Alford, R. Health Care Politics. Chicago: University of Chicago Press, 1975. Aristotle. Nicomachean Ethics. In The Basic Works of Aristotle, edited by Richard McKeon. New York: Random House, 1941. Frank, J. P. System einer vollstdndigen medicinischen Polizey. 3d rev. ed. Wien, 1786-1817. Frank, J. P. A System of Complete Medical Policy: Selections from Johann Peter Frank. Edited by Erna Lesky. Baltimore: Johns Hopkins University Press, 1976. Gregory, J. Lectures on the Duties and Qualifications of a Physician. Edinburgh: W. Creek, 1788. Gregory, J. Memorial to the Managers of the Royal Infirmary. Edinburgh: Murray & Cochrane, 1800. Kass, L. "Regarding the End of Medicine and the Pursuit of Health." Public Interest 40 (Summer 1975): 11-42. Knowles, J., ed. Doing Better and Feeling Worse: Health in the United States. New York: W. W. Norton & Co., 1977. Kohl, M. "Euthanasia and the Right to Life." In Philosophical Medical Ethics: Its Nature and Significance, edited by Stuart F. Spicker and H. Tristram Engelhardt, Jr. Vol. 3. Dordrecht: D. Reidel Publishing Co., 1977. Lewis, C ; Fein, R.; and Mechanic, D. The Right to Health. New York: John Wiley & Sons, 1976. Locke, J. Two Treatises of Government. Edited by Peter Laslett. New York: Cambridge University Press, 1960. McCullough, L. "Historical Perspectives on the Ethical Dimensions of the Patient-Physician Relationship: The Medical Ethics of Dr. John Gregory." Ethics in Science and Medicine 5 (1978): 47-53. Mechanic, D. Medical Sociology. New York: Free Press, 1978. Pellegrino, E. "The Fact of Illness and the Act of Pro-Fession: Some Notes on the Source of Professional Obligation." In Implications of History and Ethics to 214
Laurence B. McCullough Medicine—Veterinary and Human, edited by Laurence B. McCullough and James P. Morris. College Station: Centennial Academic Assemblies, Texas A&M University, 1978. Percival, T. Percival's Medical Ethics. Edited by Chauncey D. Leake. Huntington, N.Y.: R. E. Krieger Publishing Co., 1975. Rosen, G. From Medical Policy to Social Medicine: Essays on the History of Health Care. New York: Science History Publications, 1974. Veatch, R., and Branson, R. Ethics and Health Policy. Cambridge, Mass.: Ballinger Publishing Co., 1976.
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