Rights to Health Care: A Critical Appraisal
The Journal of Medicine and Philosophy, 1979, vol. 4, no. 2 © 1979 by The Society for Health and Human Values. 0360-5310/79/0402-0001 $00.75
113
Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
The phrase "a right to health care" is a cliche, though an important one. It signals a cluster of moral concerns associated with the provision of health-care services. It is a cliche in that it is often employed as a slogan to rally support for various social programs, but without a clear sense either of its content or of its foundation. Such uses of rights talk are not uncommon. One is recurringly confronted with political activists forming movements to protect, vindicate, or secure a basic, fundamental, or natural human right. Few march for derivative rights or basic virtues, though such are often as important and are surely more concrete than many basic rights. Rather, terms such as "basic rights," "fundamental rights," and "human rights" are often used as ways of emphasizing that one is dealing with important moral concerns. Hence it is not unexpected that health care should be sought as a basic human right. However, a serious assessment of the force and meaning of claims to health care will require analysis of the meaning of the term "a right" in such contexts. Such analyses are likely to be painstaking and involved. In fact, one is likely to discover a maze of different senses of "a right." One might consider, for example, the differences among claims such as " I have a right not to be shot without my consent," " I have a right to considerate treatment," or " I have a right to own a gun in Texas." One might suspect that such assertions use rights talk with different senses and with varying force. The same is the case if one compares claims about rights and assertions with regard to health care. For example: (1) "That young woman has a right to treatment for her bacterial pneumonia." (2) "That young man has a right to hemodialysis for his end-stage renal failure." (3) "That man has a right to treatment for his bronchogenic carcinoma, even though he has continued to smoke five packs of unfiltered cigarettes since the surgeon general's warning of their carcinogenic effect, which warning he was aware of and comprehended." (4) "That young philosopher has a right to be treated for the gonorrhea
The Journal of Medicine and Philosophy
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Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
contracted at the last meeting of the American Philosophical Association." (5) "That young woman has a right to an abortion, so that she can compete in next year's amateur tennis matches, for which she has been training." (6) "That eighty-year-old man has a right to a kidney transplant, even though the chances of success are small and his life expectancy is short." (7) "Steve Austin has a right to be saved, even though it would cost $6 million." (8) "He has a right to the care of a physician, even though a physician's assistant would be just as efficacious." (9) "She has a right to be hospitalized in a semiprivate room." As one can see, the rights claimed in these assertions vary in their character and focus. The first concerns a relatively inexpensive treatment that is usually very successful and would have the high utility of curing a young, and perhaps productive, member of society. The second case involves a much more expensive therapy, which may in fact not offer much of an increase in life expectancy. The third case involves an expensive form of treatment with a minimal chance of success for an ailment probably the fault of the individual who suffers from it. One might thus argue in this case that the claim to a right to health care may have been defeated by past dereliction (of course, it may indeed be cheaper, all things being equal, to have individuals die of lung cancer prior to their dying later in life of more protracted illnesses and prior to their drawing Social Security and other benefits, thus defeating the utilitarianism grounds, on the basis of discouraging culpable increases in health-care costs, against their right to treatment). The fourth case also involves an illness to which the sufferer presumably was freely exposed. However, in general one may want to have medical insurance schemes so that one can engage in such exposures and still be assisted, should one become ill. The* fifth assertion raises the issue of the proper compass or scope of health care. Moreover, the ambiguity of the claim signals the difference between a negative and positive right. Does the assertion of a right to an abortion, for example, mean that no one should interfere with the woman's procuring an abortion (e.g., a negative right or right to forbearance), or does it involve a claim for the funds to support the abortion (a claim of a right to beneficence, a positive right to health care)? The sixth and seventh assertions raise the issue of the limits of proper human expectations. It is with regard to cases such as this that the terms "ordinary care" and "extraordinary care" have been invoked in order to distinguish between those cases where treatment is obligatory and those in which treatment is optional. The sixth assertion suggests that given the unlikelihood or low likelihood of success, the person having lived a full lifetime, and the possible short life expectancy in the event of success, the prima facie duties to treat, or to respond to a right to treatment, may have been defeated. The seventh assertion sug-
H. Tristram Engelhardt, Jr.
115
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gests that levels of cost alone might defeat a right to treatment. Finally, the eighth and ninth assertions raise the issue of whether a right to treatment entails a right to be treated in attractive or pleasant surroundings and with the special psychological assurances that come from receiving care from the most qualified therapists when less well trained individuals would suffice. That is to say, if all that one has is a right to health care (i.e., in the sense of a right to restore one's health to a certain level), then it would not seem to follow that that right would confer a right to luxurious health care, or for that matter anything but the most spartan circumstances of health care (i.e., as long as those circumstances did not impede one's recovery). It is, of course, such interpretations of duties to beneficence that in the past have led to care in large wards for indigent charity patients, while the affluent were treated in much more plush surroundings. Though it may be attractive to give equal circumstances of health care to both the affluent and the poor, is there a right to the amenities as an element of a right to health care? The eighth and ninth assertions also lead to other problems of specifying the nature of a right to health care. Would such*a right mean a right to equal health care, in the sense of each having the same amount of resources to expend? Such an interpretation would provide the healthy with more resources for health care than they would require and the severely ill with only a portion of what Would be requisite for them. Does a right to health care then mean that amount of health care needed to bring one to a basic level of health? Of course that is also impossible. There are severely ill individuals for whom no amount of health care could provide health. In fact, both death and aging show the limits of finitude against which one could indefinitely strive. How could one discover how far one ought to strive? The difficulty of specifying what one would take to be the proper boundaries suggests, in fact, that rights to health care are as much invented as discovered. There may be no way to give a concrete shape to them without inventing that shape. The extent to which one can discover or invent rights to health care will depend very much on the cash value that one gives to such rights talk. Will saying that X has a right to Y health care mean that granting individuals a right to Y health care will lead to the greatest good for the greatest number? Such an interpretation would give a utilitarian cash value to rights talk about health care. Similarly, one can frame a Rawlsian interpretation of rights language in terms of that distribution of health-care resources that will (by itself, or in conjunction with considerations of the distributions of other resources) lead to the advancement of the welfare of the least-well-off class. The calculations will either depend on how actual communities rank health care vis-a-vis other goods or upon ideal rankings. Insofar as one suspects that there are no ways to discover a priori what the proper hierarchy of values is, one will also
The Journal of Medicine and Philosophy
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Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
suspect that rights to health care are creations or inventions, not discoveries. That is, claims to a right to health care will then be seen to express a view of goods and values that a particular community wishes to pursue (i.e., a community creates a right under X conditions, with Y amplitude, to Z health care in order to achieve such goods and values). Under such circumstances, a right to health care is not a basic right, in the sense of turning on the very foundation of the moral community (as would the right of an innocent not to be shot for sport without consent; such a right is a necessary condition for the possibility of community based on respect of reason giving, not force—in other words, an ethical community). The character of a system of rights to health care also depends on the views that the community takes with respect to the natural lottery. Most of the illnesses that happen to individuals cannot be clearly assigned to the responsibility of others. They simply happen, as acts of God. As such, they are not unfair or unjust, but simply unfortunate, unless one wishes to attribute such unfairness or injustice to the Deity. However, in blunting the blind acts of the natural lottery, one creates expectations for care and therefore draws a line between the unfair and the unfortunate. Insofar as this line is created by the development of expectations of beneficence in response to acts of nature (for which no one is responsible), one could imagine a community deciding to forgo all personal health care and investing instead in preventive medicine and the pleasures of this life. Perhaps instead of rights to health care, they might create positive rights to formal gardens and good wine. Such a decision if freely made might be bizarre, but there would not be strong moral arguments against it if there are not a priori rules for distinguishing the unfair and the unfortunate. Otherwise, the line would reflect the interests of a particular community in a particular constellation of goods and values. Finally, discussions of rights to health care will require an account of the ownership of resources. If individuals own resources (i.e., apart from that possession in accord with an ideal distribution of resources), then they may hold to those resources and refuse to provide them for health care. Thus, one can imagine an individual with excess resources refusing to give even a small portion to help another secure sufficient health care. If that individual owns the resources, then it will be his or her right to refuse to be forthcoming, though in many circumstances one may have very good grounds for condemning such individuals as unfeeling, unkind, unsympathetic, and nasty. Thus, one would be able to hold that it is a community's right to decide to provide no health care for its members, though such a community may, as a result, be unsympathetic and uncaring with regard to the suffering accompanying disease and illness. One would have a strong, and in some circumstances irresolvable conflict between personal rights and the attractiveness of certain goods and
H. Tristram Engelhardt, Jr.
H. TRISTRAM ENGELHARDT, JR.
Kennedy Institute of Ethics Georgetown University
17
Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
virtues. In this regard, it is worth considering the prospect that the moral universe may not be coherent. The spectrum of goods and values that we embrace, and the rights to which we give acknowledgment, may come at times, if not often, into irresolvable conflicts. This may frequently be the case in choosing among rights to health care and rights to other goods, since such "rights" reflect judgments about competing values regarding the quality and quantity of human life. The essays in this issue address these wide-ranging conceptual vexations bearing on the language of rights claims concerning health care. The Beauchamp/Faden and Childress articles offer a brace of general considerations concerning our interests in generating such rights. Both articles suggest that rights to health care may not be discovered but rather are created out of concerns for particular goods and values. In the case of the Beauchamp/Faden article, there is an argument that a decent minimum should be offered, with constraints provided by cost-benefit considerations. James Childress, in analyzing the competing claims of liberty and equality, argues that we have important moral grounds for creating a political and legal right to health care. Again, the contention is that a positive right to health care must be fashioned by us and cannot be discovered as an independent datum in the moral universe. These presentations are followed by a commentary of Mark Siegler, who is skeptical of the rights language that has focused on health care. In addition, Siegler is fearful of the impact upon health care of the development of such rights. Nora Bell's analysis of the right to health care as an institutional right, Robert Veatch's commentary, and Norman Daniel's analysis of the difficulties of fleshing out a right to health care within a general theory of justice offer detailed accounts of the conceptual difficulties involved in claiming rights to health care. These essays are followed by William Ruddick's account of physicians' rights in the conduct of medicine and by Laurence McCullough's review of current literature. The result is a conceptual analysis focused on the clarification of the significance of claims to rights to health care. Such contributions are of social importance not only for this area of interest but for all areas where basic human rights are asserted in order to support cherished goods and values.
The Journal of Medicine and Philosophy, 1979, vol. 4, no. 2 © 1979 by The Society for Health and Human Values. 0360-5310/79/0402-0001 $00.75
113
Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
The phrase "a right to health care" is a cliche, though an important one. It signals a cluster of moral concerns associated with the provision of health-care services. It is a cliche in that it is often employed as a slogan to rally support for various social programs, but without a clear sense either of its content or of its foundation. Such uses of rights talk are not uncommon. One is recurringly confronted with political activists forming movements to protect, vindicate, or secure a basic, fundamental, or natural human right. Few march for derivative rights or basic virtues, though such are often as important and are surely more concrete than many basic rights. Rather, terms such as "basic rights," "fundamental rights," and "human rights" are often used as ways of emphasizing that one is dealing with important moral concerns. Hence it is not unexpected that health care should be sought as a basic human right. However, a serious assessment of the force and meaning of claims to health care will require analysis of the meaning of the term "a right" in such contexts. Such analyses are likely to be painstaking and involved. In fact, one is likely to discover a maze of different senses of "a right." One might consider, for example, the differences among claims such as " I have a right not to be shot without my consent," " I have a right to considerate treatment," or " I have a right to own a gun in Texas." One might suspect that such assertions use rights talk with different senses and with varying force. The same is the case if one compares claims about rights and assertions with regard to health care. For example: (1) "That young woman has a right to treatment for her bacterial pneumonia." (2) "That young man has a right to hemodialysis for his end-stage renal failure." (3) "That man has a right to treatment for his bronchogenic carcinoma, even though he has continued to smoke five packs of unfiltered cigarettes since the surgeon general's warning of their carcinogenic effect, which warning he was aware of and comprehended." (4) "That young philosopher has a right to be treated for the gonorrhea
The Journal of Medicine and Philosophy
114
Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
contracted at the last meeting of the American Philosophical Association." (5) "That young woman has a right to an abortion, so that she can compete in next year's amateur tennis matches, for which she has been training." (6) "That eighty-year-old man has a right to a kidney transplant, even though the chances of success are small and his life expectancy is short." (7) "Steve Austin has a right to be saved, even though it would cost $6 million." (8) "He has a right to the care of a physician, even though a physician's assistant would be just as efficacious." (9) "She has a right to be hospitalized in a semiprivate room." As one can see, the rights claimed in these assertions vary in their character and focus. The first concerns a relatively inexpensive treatment that is usually very successful and would have the high utility of curing a young, and perhaps productive, member of society. The second case involves a much more expensive therapy, which may in fact not offer much of an increase in life expectancy. The third case involves an expensive form of treatment with a minimal chance of success for an ailment probably the fault of the individual who suffers from it. One might thus argue in this case that the claim to a right to health care may have been defeated by past dereliction (of course, it may indeed be cheaper, all things being equal, to have individuals die of lung cancer prior to their dying later in life of more protracted illnesses and prior to their drawing Social Security and other benefits, thus defeating the utilitarianism grounds, on the basis of discouraging culpable increases in health-care costs, against their right to treatment). The fourth case also involves an illness to which the sufferer presumably was freely exposed. However, in general one may want to have medical insurance schemes so that one can engage in such exposures and still be assisted, should one become ill. The* fifth assertion raises the issue of the proper compass or scope of health care. Moreover, the ambiguity of the claim signals the difference between a negative and positive right. Does the assertion of a right to an abortion, for example, mean that no one should interfere with the woman's procuring an abortion (e.g., a negative right or right to forbearance), or does it involve a claim for the funds to support the abortion (a claim of a right to beneficence, a positive right to health care)? The sixth and seventh assertions raise the issue of the limits of proper human expectations. It is with regard to cases such as this that the terms "ordinary care" and "extraordinary care" have been invoked in order to distinguish between those cases where treatment is obligatory and those in which treatment is optional. The sixth assertion suggests that given the unlikelihood or low likelihood of success, the person having lived a full lifetime, and the possible short life expectancy in the event of success, the prima facie duties to treat, or to respond to a right to treatment, may have been defeated. The seventh assertion sug-
H. Tristram Engelhardt, Jr.
115
Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
gests that levels of cost alone might defeat a right to treatment. Finally, the eighth and ninth assertions raise the issue of whether a right to treatment entails a right to be treated in attractive or pleasant surroundings and with the special psychological assurances that come from receiving care from the most qualified therapists when less well trained individuals would suffice. That is to say, if all that one has is a right to health care (i.e., in the sense of a right to restore one's health to a certain level), then it would not seem to follow that that right would confer a right to luxurious health care, or for that matter anything but the most spartan circumstances of health care (i.e., as long as those circumstances did not impede one's recovery). It is, of course, such interpretations of duties to beneficence that in the past have led to care in large wards for indigent charity patients, while the affluent were treated in much more plush surroundings. Though it may be attractive to give equal circumstances of health care to both the affluent and the poor, is there a right to the amenities as an element of a right to health care? The eighth and ninth assertions also lead to other problems of specifying the nature of a right to health care. Would such*a right mean a right to equal health care, in the sense of each having the same amount of resources to expend? Such an interpretation would provide the healthy with more resources for health care than they would require and the severely ill with only a portion of what Would be requisite for them. Does a right to health care then mean that amount of health care needed to bring one to a basic level of health? Of course that is also impossible. There are severely ill individuals for whom no amount of health care could provide health. In fact, both death and aging show the limits of finitude against which one could indefinitely strive. How could one discover how far one ought to strive? The difficulty of specifying what one would take to be the proper boundaries suggests, in fact, that rights to health care are as much invented as discovered. There may be no way to give a concrete shape to them without inventing that shape. The extent to which one can discover or invent rights to health care will depend very much on the cash value that one gives to such rights talk. Will saying that X has a right to Y health care mean that granting individuals a right to Y health care will lead to the greatest good for the greatest number? Such an interpretation would give a utilitarian cash value to rights talk about health care. Similarly, one can frame a Rawlsian interpretation of rights language in terms of that distribution of health-care resources that will (by itself, or in conjunction with considerations of the distributions of other resources) lead to the advancement of the welfare of the least-well-off class. The calculations will either depend on how actual communities rank health care vis-a-vis other goods or upon ideal rankings. Insofar as one suspects that there are no ways to discover a priori what the proper hierarchy of values is, one will also
The Journal of Medicine and Philosophy
116
Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
suspect that rights to health care are creations or inventions, not discoveries. That is, claims to a right to health care will then be seen to express a view of goods and values that a particular community wishes to pursue (i.e., a community creates a right under X conditions, with Y amplitude, to Z health care in order to achieve such goods and values). Under such circumstances, a right to health care is not a basic right, in the sense of turning on the very foundation of the moral community (as would the right of an innocent not to be shot for sport without consent; such a right is a necessary condition for the possibility of community based on respect of reason giving, not force—in other words, an ethical community). The character of a system of rights to health care also depends on the views that the community takes with respect to the natural lottery. Most of the illnesses that happen to individuals cannot be clearly assigned to the responsibility of others. They simply happen, as acts of God. As such, they are not unfair or unjust, but simply unfortunate, unless one wishes to attribute such unfairness or injustice to the Deity. However, in blunting the blind acts of the natural lottery, one creates expectations for care and therefore draws a line between the unfair and the unfortunate. Insofar as this line is created by the development of expectations of beneficence in response to acts of nature (for which no one is responsible), one could imagine a community deciding to forgo all personal health care and investing instead in preventive medicine and the pleasures of this life. Perhaps instead of rights to health care, they might create positive rights to formal gardens and good wine. Such a decision if freely made might be bizarre, but there would not be strong moral arguments against it if there are not a priori rules for distinguishing the unfair and the unfortunate. Otherwise, the line would reflect the interests of a particular community in a particular constellation of goods and values. Finally, discussions of rights to health care will require an account of the ownership of resources. If individuals own resources (i.e., apart from that possession in accord with an ideal distribution of resources), then they may hold to those resources and refuse to provide them for health care. Thus, one can imagine an individual with excess resources refusing to give even a small portion to help another secure sufficient health care. If that individual owns the resources, then it will be his or her right to refuse to be forthcoming, though in many circumstances one may have very good grounds for condemning such individuals as unfeeling, unkind, unsympathetic, and nasty. Thus, one would be able to hold that it is a community's right to decide to provide no health care for its members, though such a community may, as a result, be unsympathetic and uncaring with regard to the suffering accompanying disease and illness. One would have a strong, and in some circumstances irresolvable conflict between personal rights and the attractiveness of certain goods and
H. Tristram Engelhardt, Jr.
H. TRISTRAM ENGELHARDT, JR.
Kennedy Institute of Ethics Georgetown University
17
Downloaded from http://jmp.oxfordjournals.org/ at University of Auckland on June 18, 2015
virtues. In this regard, it is worth considering the prospect that the moral universe may not be coherent. The spectrum of goods and values that we embrace, and the rights to which we give acknowledgment, may come at times, if not often, into irresolvable conflicts. This may frequently be the case in choosing among rights to health care and rights to other goods, since such "rights" reflect judgments about competing values regarding the quality and quantity of human life. The essays in this issue address these wide-ranging conceptual vexations bearing on the language of rights claims concerning health care. The Beauchamp/Faden and Childress articles offer a brace of general considerations concerning our interests in generating such rights. Both articles suggest that rights to health care may not be discovered but rather are created out of concerns for particular goods and values. In the case of the Beauchamp/Faden article, there is an argument that a decent minimum should be offered, with constraints provided by cost-benefit considerations. James Childress, in analyzing the competing claims of liberty and equality, argues that we have important moral grounds for creating a political and legal right to health care. Again, the contention is that a positive right to health care must be fashioned by us and cannot be discovered as an independent datum in the moral universe. These presentations are followed by a commentary of Mark Siegler, who is skeptical of the rights language that has focused on health care. In addition, Siegler is fearful of the impact upon health care of the development of such rights. Nora Bell's analysis of the right to health care as an institutional right, Robert Veatch's commentary, and Norman Daniel's analysis of the difficulties of fleshing out a right to health care within a general theory of justice offer detailed accounts of the conceptual difficulties involved in claiming rights to health care. These essays are followed by William Ruddick's account of physicians' rights in the conduct of medicine and by Laurence McCullough's review of current literature. The result is a conceptual analysis focused on the clarification of the significance of claims to rights to health care. Such contributions are of social importance not only for this area of interest but for all areas where basic human rights are asserted in order to support cherished goods and values.
