Is health care (still) special

Journal of Political Philosophy

Volumn 15, Issue 3, 2007, Pages 342-361

  Segall, Shlomi ^a  

^a HARVARD UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 34548075561     PISSN: 09638016     EISSN: 14679760     Source Type: Journal    
DOI: 10.1111/j.1467-9760.2007.00284.x     Document Type: Article

References (73)

1. I am grateful to Dan Brock, Eric Cavallero, Norman Daniels, Nir Eyal, Iwao Hirose, Piki Ish-Shalom, Sam Kerstein, Sigurd Lauridson, Ori Lev, Ole Norheim, Daniel Schwartz, Neema Sofaer, David Weinstein, Daniel Wikler and the editors for the Journal of Political Philosophy for their comments and suggestions.
2. ' Justice, health and healthcare American Journal of Bioethics, 1 (2001 2 14
3. Anthony J. Culyer Adam Wagstaff Equity and equality in health and health care Journal of Health Economics, 12 (1993 431 57
4. Ronald Dworkin Justice in the distribution of health care McGill Law Journal, 38 (1993 883 98
5. Dan Brock Separate spheres and indirect benefits Cost Effectiveness and Resource Allocation, 1 (2003)
6. Norman Daniels, Just Health Care (Cambridge: Cambridge University Press, 1985), pp. 39-42; 'Justice in health care', Health Care Ethics, ed. D. Van De Veer and T. Regan (Philadelphia: Temple University Press, 1987), pp. 290-325. See also Anand, 'The concern for equity in health'.
7. To distribute health care in isolation from the distribution of all goods (that is, social and natural ones) may imply distributing health care in isolation from the way in which health itself is distributed, which would appear to defeat the (or at least a major) objective of health care.
8. Norman Daniels, Am I My Parents' Keeper?: An Essay on Justice Between the Old and the Young (New York: Oxford University Press, 1988), pp. 68-9; Anand, 'The concern for equity in health', p. 17.
9. Walzer, Spheres of Justice, p. 20.
10. I invoke here Jon Elster's understanding of 'allocation' as distinct from 'distribution'. The former denotes the process of distributing a good and the latter denotes the end-state described by what goods persons possess. See Jon Elster, Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens (New York: Russell Sage, 1992), p. 186.
11. Robert E. Goodin and Julian Le Grande, Not Only the Poor: The Middle Classes and the Welfare State (London: Allen & Unwin, 1987).
12. As in Descartes' famous saying that the 'preservation of health' was 'chief of all goods' (see Walzer, Spheres of Justice, p. 87). This is also the account that Ronald Dworkin seems to attribute (erroneously, I think) to Walzer (Dworkin, 'Justice in the distribution of health care', pp. 885-6).
13. One problem with the importance view is that, even though health is extremely important, upon reflection very few of us would want to pile all available resources into improving health and saving lives. Given how technology enables us to save lives nowadays and given that we can invest endless resources in terminally ill patients in a way that will improve their lives in miniscule measures, the importance view leads to a bottomless pit. Such bottomless pit would inevitably impoverish the lives of all other citizens and deny them the things that make life worth living. Most of us, it would seem, do not think that health is the most important good. See Dworkin, 'Justice in the distribution of health care', p. 883.
14. There is controversy in the literature regarding the definition of health, particularly between a 'natural' and a 'welfarist' definition. I take no stand on this debate. But as I am mainly concerned with Daniels' theory I am happy to adopt his 'natural' understanding of health as 'normal species functioning' (see his Just Health Care, pp. 28-32) and therefore leave considerations of welfare outside the definition of health.
15. Kamm, Morality, Mortality, Vol. 1, p. 148; Susan L. Hurley, 'On the what and the how of distributive justice and health', Egalitarianism: New Essays on the Nature and Value of Equality, ed. N. Holtug and K. Lippert-Rasmussen (Oxford: Oxford University Press, 2007), pp. 308-33. Cf. Brock, 'Separate spheres and indirect benefits'. Other arguments for the separateness account include (besides Kamm's Kantian prohibition on treating patients as means to other ends): Walzer's argument concerning the 'social meaning' of health care; a practical argument concerning the range of considerations that physicians and nurses can be expected to entertain; and an argument from a 'moral division of labor', arguing that physicians should act as unrestricted advocates of their patients. On the latter see Daniel Wikler, 'Personal and social responsibility for health', Public Health, Ethics and Equity, ed. S. Anand, F. Peter and A. Sen (Oxford: Oxford University Press, 2004), pp. 107-33 at p. 128.
16. I should mention another version of the separate spheres view, which says that health care resources should be distributed in line with the purpose of health care, which is only to meet patients' medical needs. The difference between this view and the one stated in the main text is that the former excludes also considerations of what is known as 'indirect health benefits'. For example, treating patient A who is a surgeon, instead of patient B who is not, will improve the health of patient A's current and future patients. The formulation in the text allows for this type of consideration, whereas the version just presented forbids it.
17. Michael Walzer does seem to hold such a position. He in effect, does not believe that health care is special (not to mention 'most important'), because his account identifies no hierarchy between spheres (or goods). Rather, it stresses only the separateness of those spheres. As other commentators have observed, though, this is a highly problematic position. To give but one example, it makes little sense to identify 'money', to which the principle of 'free exchange' supposedly pertains, as a separate sphere. See Jeremy Waldron, 'Money and complex equality', Pluralism, Justice and Equality, ed. D. Miller and M. Walzer (Oxford: Oxford University Press, 1995), pp. 144-70.
18. ' Some ordinalist-utilitarian notes on Rawls's theory of justice Journal of Philosophy, 70 (1973 245 62.
19. James Tobin On limiting the domain of inequality Journal of Law and Economics, 13 (1970 263 78.
20. Norman Daniels Fair equality of opportunity and decent minimums: a reply to Buchanan Philosophy and Public Affairs, 14 (1985 106 10
21. ' A reply to some stern criticisms and a remark on health care rights Journal of Medicine and Philosophy, 8 (1983 363 71
22. Daniels, 'Justice in health care', p. 312.
23. Daniels, 'Fair equality of opportunity and decent minimums', p. 107; Am I My Parents' Keeper? pp. 70-1; Justice and Justification, pp. 187-8; Allen Buchanan, Dan W. Brock, Norman Daniels and Daniel Wikler, From Chance to Choice: Genetics and Justice (Cambridge: Cambridge University Press, 2000), p. 122.
24. Allen E. Buchanan The right to a decent minimum of health care Philosophy and Public Affairs, 13 (1984 55 78
25. Lawrence Stern Opportunity and health care: criticisms and suggestions Journal of Medicine and Philosophy, 8 (1983 339 62
26. Dan Brock Justice, health care and the elderly Philosophy and Public Affairs, 18 (1989 297 311
27. Jonathan Gruber, Public Finance and Public Policy (New York: Worth, 2005), p. 443.
28. Dan Brock advances a criticism to the same effect ('Justice, health care and the elderly', p. 305).
29. Daniels himself cites the fact of patients over 65 consuming 3.5 times more medical services (in terms of cost) compared with patients below that age (Daniels, Just Health Care, p. 86).
30. See Brock, 'Justice, health care and the elderly', p. 309.
31. See Daniels, Just Health Care, pp. 86-7.
32. Daniels, Am I My Parents' Keeper? pp. 90-1.
33. Aki Tsuchiya QALYs and ageism: philosophical theories and age weighting Health Economics, 9 (2000 57 68
34. See also Daniel Callahan, Setting Limits: Medical Goals in an Aging Society (New York: Simon and Schuster, 1987). See Dan Brock's review of this issue in 'Justice, health care and the elderly'.
35. Or even to younger patients who, for some reason or other, have completed their life plan, such as people on death row.
36. Cf. Daniels, 'Justice, health and healthcare', p. 5. To stress, Daniels' Prudential Life Span Account is able to accommodate long-term care for the elderly (provided it is not terribly expensive). (See Am I My Parents' Keeper? pp. 106-11). My point, rather, is that the more fundamental 'equality of opportunity' account cannot do so.
37. Daniels may, of course, justify medical treatment to the elderly by providing a separate justification for doing so, one that is not based on 'equal opportunity for life plans'. My point is only that in so far as his theory of justice in health care is anchored in the specialness thesis he cannot do so.
38. Norman Daniels, Bruce Kennedy and Ichiro Kawachi, 'Health and inequality, or, why justice is good for our health', Public Health, Ethics and Equity, ed. S. Anand, F. Peter and A. Sen (Oxford: Oxford University Press, 2004), pp. 63-91 at p. 79.
39. Better yet, it may be suggested that dying in dignity is part of many people's life plan. And, doing what it takes to prolong life, even at a very advanced age, is part of what it is to die with dignity. Dying while knowing that 'everything possible' has been done is the way many people would want to exit this world, so the argument goes. Of course, for many people the exact opposite may be true. That is, terminal patients may view intrusive medical procedures that have negligible expected medical benefit as conflicting with their view of what is a dignified way of dying. Still, sparing no effort to prolong one's life is yet another valid interpretation of people's life plan concerning the very last stages of life and my argument below applies to such life plans as well.
40. Daniels, Just Health Care, pp. 42-8, 104; 'Justice and health care', p. 304, 314; Am I My Parents' Keeper? p. 74; Justice and Justification, pp. 189-92.
41. Daniels, Just Health Care, p. 39, 46.
42. John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971), p. 84.
43. Richard J. Arneson Against Rawlsian equality of opportunity Philosophical Studies, 93 (1999 77 112
44. Harry Brighouse Adam Swift Equality, priority and positional goods Ethics, 116 (2006)
45. As Arneson points out, the argument for self-realization is probably the most persuasive, if ultimately flawed, reason provided by Rawls for the priority of the FEOP over the DP ('Against Rawlsian equality of opportunity', p. 97).
46. Arneson reconstructs some of these rationales in his 'Against Rawlsian equality of opportunity', p. 80. See also Marchand, 'Liberal theories and health', p. 16; Daniels, Kennedy and Kawachi, 'Health and inequality', p. 77. In my view, Arneson provides persuasive objections to all of these rationales. For the sake of argument, though, I will assume with Daniels the priority of the FEOP over the DP and focus, rather, on whether his arguments for that relationship, when applied to health care, are consistent with those provided by Rawls.
47. See also Jacobs, Pursuing Equal Opportunities, Part I.
48. See also John Rawls, Political Liberalism (New York: University of Columbia Press, 1993), p. 184.
49. See again, Just Health Care, p. 104.
50. Just Health Care, p. 33; Am I my Parents' Keeper? p. 70; Justice and Justification, p. 214. Arguably, as pointed out by Marchand, this feature already harbors a potentially serious problem for Daniels. For, where Rawls's FEOP seeks to remove social barriers in the competition for X, Daniels' (presumably) wishes to remove also natural barriers in the competition for X. In other words, to be consistent with the Rawlsian scheme the only variances from normal species functioning that Daniels' theory could possibly correct would have to be those that are caused by social factors. I shall overlook here this problem in order to focus on a different weakness of his theory, one that is more closely related to my examination of his specialness view.
51. A rationale that Daniels acknowledges. See Just Health Care, p. 39. See also From Chance to Choice, p. 127: 'In effect, health care, like compensatory education programs, aims to produce "normal competitors"' (emphasis added).
52. I have cast my argument in this section (for Daniels' impermissibility in using 'life plan' in its broad interpretation) in Rawlsian terms. I did so in order to remain faithful as much as possible to the framework constructed by Daniels. This may open my argument to the objection that my critique is only valid in as much as Daniels' argument depends on the Rawlsian framework. But that is not so. The Rawlsian framework is central to Daniels and his choice of Rawls's FEOP is not accidental. It allows Daniels to justify distributing health care in an equal, rather than a Pareto optimal, way. Moreover, my objection applies to the very concept of 'equality of opportunity', independently of its use by Rawls. Regulating competitive positions is inherent to the very notion of equality of opportunity. (See again Jacobs, Pursuing Equal Opportunities, Part I.) And, it is due to that feature of equality of opportunity that Daniels cannot subject non-competitive pursuits, such as 'leading a pain-free life', to the principle of equality of opportunity.
53. Dan Brock Broadening the bioethics agenda Kennedy Institute of Ethics Journal, 10 (2000 21 38
54. Michael G. Marmot, Martin J. Shipley Geoffrey Rose Inequalities in death-specific explanations of a general pattern Lancet 1984 1003 6.
55. Jonathan M. Mann Medicine and public health, ethics and human rights Hastings Center Report, 27 (1997 6 13
56. Although we may plausibly hypothesize that the impact of clinical care on population health in developing countries is negligible compared to preventive public health. The latter, however, is not part of what is normally referred to by the 'social determinants of health'. (For more on that point, see below).
57. nd edn), (Geneva: WHO, 2003), p. 7 (emphasis added).
58. Daniels, Kennedy and Kawachi, 'Health and inequality', p. 87 (emphases added). See also p. 63, 68. See also Norman Daniels, Bruce Kennedy and Ichiro Kawachi, 'Justice is good for our health', Is Inequality Bad for our Health? ed. J. Cohen and J. Rogers (Boston: Beacon Press, 2000), pp. 3-33.
59. Gopal Sreenivasan Opportunity is not the key American Journal of Bioethics, 1 (2001 1b 2b
60. See Just Health Care, ch. 8; From Chance to Choice, p. 122; 'Health and inequality', p. 75.
61. See Michael Marmot, The Status Syndrome: How Social Standing Affects our Health and Longevity (New York: Times Books, 2004).
62. See Wilkinson and Marmot, Social Determinants of Health; Michael Marmot and Richard G. Wilkinson, Social Determinants of Health, 2nd edn (Oxford: Oxford University Press, 2006). The latter source emphasizes the psychological effects of social exclusion, poverty and unemployment and their effect on our health.
63. This, again, is acknowledged by Daniels himself. To repeat: 'Health is produced not just by having access to medical prevention and treatment but, to a measurably greater extent, by the cumulative experience of social conditions across the life course'; Daniels, Kennedy and Kawachi, 'Health and inequality', p. 87 (emphasis added).
64. Recall the distinction I drew between the strong and weak versions of the specialness thesis. The weak version of the specialness thesis, which is the one that concerns us here, is not concerned with eventual levels of access to health care (including public health), but rather with entitlement to it. Or, to use Elster's terms again, the weak specialness thesis concerns allocation, not distribution. See Elster, Local Justice, p. 186.
65. See Daniels, Kennedy and Kawachi, 'Health and inequality', p. 87. The 'social determinants of health' objection must also not blind us to what Jonathan Wolff has termed 'the health determinants of the social', by which he means the effect of inequalities in health on socio-economic inequalities. See Jonathan Wolff, 'Risks and the people who bear them', a paper delivered at The Harvard University Program in Ethics & Health Annual Conference, Harvard University, 17 November 2005. See also Amartya Sen, Freedom as Development (Oxford: Oxford University Press, 1999), p. 19. The importance of the latter is made palpable when considering that ill health is still one of the main causes of bankruptcy in the US. See Steffie Woolhandler and David Himmelstein, 'Lost in translation', Is Inequality Bad for our Health? ed. J. Cohen and J. Rogers (Boston: Beacon Press, 2000), pp. 79-84 at p. 82.
66. See Daniels, Kennedy and Kawachi, 'Health and inequality'; Daniels, Kennedy and Kawachi, 'Justice is good for our health'.
67. This is in fact the position that Daniels currently holds (that it is both health and health care that are special); Daniels, personal communication.
68. Cf. Cecile Fabre, Whose Body Is It Anyway? Justice and the Integrity of the Person (Oxford: Oxford University Press, 2006). Notice that even if we accept Fabre's thesis and wave away our concern with self-ownership and bodily integrity, transferable health would still be limited to kidneys, eyes and limbs. The majority of what constitutes health, e.g. all non-twin organs (for example, liver), the immune system, cardio-vascular vitality, would still be non-transferable.
69. Daniel M. Hausman What's wrong with health inequalities? Journal of Political Philosophy, 15 (2007 46 66.
70. Recall the distinction between allocation and distribution alluded to earlier. As Elster observes, 'there are goods that cannot be allocated, but whose distribution can be affected by the allocation of other goods' (Local Justice, p. 186). Health appears to be one such good.
71. See Pluralism, Justice and Equality, ed. Miller and Walzer.
72. Daniels, Kennedy and Kawachi, 'Health and inequality', pp. 79-80.
73. Ibid., p. 64.