Egalitarian Provision of Necessary Medical Treatment

Abstract

Considerations of autonomy and independence, properly understood, support strictly egalitarian provision of necessary medical treatment. If the financially better-off can purchase access to necessary medical treatments that the financially less well-off cannot purchase without help, then their discretionary power to give or to withhold monetary gifts indirectly gives them the power to make life-and-death or sickness-and-health decisions for others. To prevent private citizens from having this objectionable form of power, government must ensure that citizens’ finances do not affect their access to medical treatments that significantly prolong life, relieve suffering, or cure or mitigate disabilities. Government should ensure this even if doing so involves leveling down and even if it is unclear whether egalitarian provision of necessary treatment would provide better care to the poor than a less egalitarian health care system would.

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Notes

  1. 1.

    About 10% of UK citizens and over 40% of Australian citizens purchase such plans. Some other nations, such as Sweden, allow such private insurance plans but do not have a significant market for them Dhalla (2007).

  2. 2.

    Specifically, they prohibit private insurance from covering medically necessary physician and hospital services that are covered by public health insurance (Palley et al. 2011). In a recent case (Chaoulli v. Quebec [Attorney General] 2005), the Supreme Court of Canada found that Quebec’s restriction on private insurance violated the Quebec Charter of Rights and Freedoms. The government of Quebec responded by authorizing private health insurance to cover a narrow range of elective procedures, initially including only knee replacements, hip replacements, and cataract operations (Dhalla 2007).

  3. 3.

    This definition of genuine medical necessity is admittedly vague. There are, however, clear cases of genuinely necessary treatment. If a certain radiation treatment for certain cancer patients extends life by an average of three more years than the next best alternative, with comparable side effects, it is genuinely necessary, regardless of its price.

  4. 4.

    Fleck (2009) argues that rich countries already face such conditions of scarcity: “Health care needs (not wants) far exceed our capacity to provide the financial resources needed to meet those needs—this is essentially why health care rationing is inescapable, and why it must be seen as a moral problem”.

  5. 5.

    Left-libertarians may accept the argument, as may consequentialists who believe that individual autonomy or independence has non-instrumental value.

  6. 6.

    The premises I use are close to the premises of Kant’s argument for public support of the poor, as recently interpreted by Gilabert (2010), Ripstein (2009, 25–26 and 267–286), and Weinrib (2003). Ripstein and Gilabert both note that Kant’s argument supports a requirement to provide health care to all, but they do not claim that it requires equality in access to necessary treatment. My premises are in an important respect weaker than Kant’s: I do not assume—as Kant does, on Ripstein’s reading—that the only permissible end of government action is to protect citizens’ independence, i.e., to prevent some citizens’ continued effective exercise of rational agency from depending on others’ discretionary good will. I defend the weaker claim that law must not itself empower some citizens to decide, entirely at their discretion, whether other citizens shall be sick or healthy.

  7. 7.

    For instance, one defense of single-tier health care predicts that the rich and upper middle class will use their political influence to improve the health care system if they must get the same quality of care as the less well-off. This may be true, but there are also possible mechanisms by which unequal access to some treatments (e.g. patented medicines) could improve health care for the poor in the long run. For critical discussion of this argument and other existing arguments against tiered systems of health care, see Krohmal and Emanuel (2007).

  8. 8.

    Not all decisions that involve judgment calls are discretionary in the sense used here.

  9. 9.

    A decision may be discretionary in this sense even if some specific reasons for decision, e.g. ethnic discrimination, are legally prohibited.

  10. 10.

    A more modest right of necessity would allow non-consensual borrowing of property when needed to prevent loss of life or other serious losses, provided that the borrower compensate the owner after the fact. Consider Joel Feinberg’s (1978, 102) example of a stranded hiker who is caught in an unexpected snowstorm and needs to break into an unoccupied cabin to survive the night. Whether the stranded hiker has a moral duty to compensate the owner of the cabin is disputed (Oberdiek 2008), but it is uncontroversial that the hiker is morally justified in breaking in—and that the justification for breaking in does not rest on the likelihood of being able to provide compensation later.

  11. 11.

    Even if the right of necessity included an obligation to repay when possible, many people who exercised the right would never be able to repay.

  12. 12.

    The boundary between necessary and non-necessary treatment is vague, but there are clear cases. This section discusses scenarios in which providing all indisputably necessary treatment is economic scenarios. Section 4 will discuss scenarios in which government can guarantee access to all indisputably necessary treatment but cannot provide access to all the treatments that are arguably necessary.

  13. 13.

    Kant took the stronger view that there are no conclusive property rights in the state of nature. See Doctrine of Right 6:255–257, 264–266.

  14. 14.

    Coercive social pressure to comply with law may be relevant here, in addition to coercion in the legal system itself (e.g. the threat of fines or imprisonment, direct compulsion to comply).

  15. 15.

    Of course, there will always be circumstances that lawmakers cannot foresee. It may be inevitable that citizens will be justified in lawbreaking in some circumstances the legislature could not have foreseen.

  16. 16.

    I presuppose a deontological view of political morality here. On a strictly deontological view of political morality (which I endorse), good effects never justify enacting laws that will foreseeably not be binding. Threshold deontology would allow that good effects sometimes justify enacting laws that foreseeably will not be morally binding, but the good effects must be very good indeed.

  17. 17.

    The right is violated and not merely infringed. For the distinction between infringing a right and violating a right, see Thomson (1990, 122).

  18. 18.

    Though the existence of self-regarding duties is controversial, there have recently been compelling defenses of them. See Schofield (2015), Timmerman (2006). For a contemporary Kantian defense of a strong prohibition on self-harm, see Velleman (1999). The duty of self-preservation I describe here is compatible with a moral permission to commit suicide for good reason, e.g. to avoid being tortured for state secrets. It is also compatible with a moral permission for the terminally ill to decline aggressive treatment.

  19. 19.

    In the Latin Leviathan, Hobbes wrote, “The right of nature permits those who are in extreme necessity to steal, or even to take by force, the goods of others.” II.xxx.18. I do not endorse Hobbes’ claim that the involuntarily poor have a right to use violence against persons to obtain what they need.

  20. 20.

    “We know God hath not left one Man so to the Mercy of another, that he may starve him if he please…No Man could ever have a just Power over the Life of another, by Right of property in Land or Possessions.” (Locke 1998 [1689], I.42).

  21. 21.

    This summary of Sect. 2 presupposes that the government rejects the (clearly inferior) option of giving citizens an extensive right of necessity.

  22. 22.

    Though there may be a general moral duty to develop one’s talents, one does not typically violate a self-regarding duty by forgoing a particular opportunity for extended higher education. By contrast, one typically does violate a self-regarding duty by forgoing a particular medical treatment that one’s life or health clearly requires.

  23. 23.

    There may be unrelated reasons of distributive justice to secure fair equality of opportunity and thus to prevent wealth from determining access to forms of higher education that are relevant to people’s career prospects. My argument for health care equality will not provide the grounds for such a policy, however.

  24. 24.

    This might happen as a result of an economic depression, a decrease in the percentage of the population that is working, or Baumol’s cost disease (the tendency for labor-intensive services to become more expensive as productivity in other sectors increases).

  25. 25.

    For discussion of the enforcement of legal restrictions on medical tourism, see Cohen (2014).

  26. 26.

    A legal requirement does not need an enforcement mechanism to count as a genuine legal requirement. As Hart writes, “In the case of rules of the criminal law, it is logically possible and might be desirable that there should be such rules even though no punishment or other evil were threatened” (Hart 1994, 34).

  27. 27.

    For arguments that the value of equality sometimes provides a reason for leveling down, see Eyal (2013), Wolff (2001).

  28. 28.

    This empirical claim is speculative, but it is more plausible than the claim that any public health insurance program would reduce the quality of health care by reducing the rate of innovation. For a skeptical assessment of the latter claim, see Rajczi (2007).

  29. 29.

    One might raise the further worry that an egalitarian health care policy would be incompatible with any form of medical research that does not make experimental drugs available to all interested potential subjects. This worry is misplaced. On a widely held view of research ethics, experimental trials can be ethically done only when the medical community is uncertain whether a new drug or other intervention is superior to an existing alternative, be it an established intervention or no treatment (Friedman 1987). Under these circumstances, it is unreasonable for patients to believe that their inclusion in a clinical trial is medically necessary.

  30. 30.

    I am grateful to Seana Valentine Shiffrin and Alan Strudler for giving me detailed feedback on multiple revisions of this paper. I also owe thanks to Alexis Dyschkant, Barbara Herman, Sarah Holtman, Matthew King, Yannig Luthra, Doug MacKay, Joseph Millum, Calvin Normore, Tina Rulli, Alan Wertheimer, and audiences at Albany University, Binghamton University, Bloomsburg University, Oregon State University, the Wharton School, and the APA Pacific Division Annual Meeting for their helpful comments.

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Funding

This research was supported in part by the Claude Marion Endowed Faculty Scholar Award of the Wharton School.

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Correspondence to Robert C. Hughes.

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Hughes, R.C. Egalitarian Provision of Necessary Medical Treatment. J Ethics 24, 55–78 (2020). https://doi.org/10.1007/s10892-019-09309-y

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Keywords

  • Health care rationing
  • Just health care
  • Distributive justice
  • Property
  • Duty to obey the law