THE CONCEPT OF GENUINE RESPONSIBILITY
4. JUSTICE AND HEALTH CARE
Asking the question “What is justice?” invokes what some people may call the most abstract sort of philosophical speculation (Solomon and Murphy 1990).
Formulating a position in regard to distributive justice demands reflection on the essence of the relationships among human beings. This reflection implies that a standpoint must be developed about the obligations we each have toward one another. It also requires the development of criteria to serve as the basis of a definition of the good society and a determination of how, for example, the division of labor among private and public entities should be orchestrated so as to secure equitable access to the health care system. Justice plays an important role in philosophical and ethical thinking. The ingredients selected to conceptualize the notion of justice fundamentally resonate societal values and show societal preferences, thus indicating the way the complexity of social interactions should be arranged. Some people contend that the basic ingredient of justice should be need, whereas others assert that merit, right, or equality should be appreciated as the pivotal notion of justice.
The philosophical debate about determining the appropriate redistribution process of social goods is not limited to the identification of the constitutive ingredients of justice. Conceptual differences also exist. For instance, philosophers disagree about the plausibility of a single overarching concept of justice that can be applied to any context of distributive decision making. Historically, moral philosophy produced grand theories that typically included a single concept of justice. By the 1980s, some people insisted that an analysis of our moral practice suggests something altogether different. Social goods are not commonly distributed on the basis of a single concept of justice. The philosopher Walzer (1983), for instance, pointed out that different ideologies justify, and different political arrangements enforce, the distribution of social goods (e.g., memberships, power, love, knowledge, wealth, physical security, work and leisure, rewards and punishment), and more narrowly and materially conceived goods (e.g., food, shelter, clothing, transportation, medical care, or anything that human beings collect).
Walzer (1983) indicated that the notion of justice is applied in a variety of contexts. It is therefore imperative to appropriately acknowledge these different contexts in society. He observed that the various goods and commodities are distributed in a morally legitimate fashion, although their distribution is authorized by a range of varying rules. Each set of rules regulates the distribution of social goods and commodities that have been categorized in discrete spheres. For those reasons, Walzer hypothesized that it might be less plausible to assume a single universal principle underlying all distributive practices. He concluded that the nature of the goods is the determining factor that dictates which principle of justice will hold sway for distribution of a particular good.
104 CHAPTER 4 4.1 Just Health Care
Determining what is just and, more specifically, what justice means within the context of health care are clearly not easy tasks. There seems to be little disagreement, however, that sound reasons exist for considering health care as a social good, for appreciating it as something special. Opposition mainly comes from libertarianist views. Libertarians believe that the role of the state in society must be limited—confined essentially to police protection, national defense, and the administration of court laws. All other tasks commonly performed by governments, such as education and social insurance, should be taken over by religious bodies, charities, and other private institutions operating in a free market. The philosopher Robert Nozick (1938-2002) supported these ideas for the moral reason that, whatever the practical benefits of libertarianism may be, advocating a libertarian society implied a deep respect for individual rights. Nozick (1974), for example, contended that the recognition of liberty rights should have the highest priority and should be ensured in all social and economic practices. According to this view, the function of a theory of justice is to protect individual rights, which can be accomplished only by adherence to acquisition, transfer, and rectification procedures. Nozick’s (1974) “acquisition principle” held that persons are entitled to holdings initially acquired in a just way. His “transfer principle” was that holdings freely acquired from others who acquired them in a just way are justly acquired. His
“rectification principle” mandated rectification of any violations of the first two principles by the restoration of holdings to their rightful owners, or a “one-time”
redistribution according to the “difference principle.” Nozick contended that if a person’s current holdings were justly acquired, then the transfer principle alone would determine the justness of subsequent distributions. As a result, any taxation higher than the amount required to preserve the institutions of just acquisition, transfer, and rectification, that is, to preserve entitlements, would be unjust. Nozick rejected any kind of socially engineered system of economic redistribution. No moral grounds justify the sacrifice of liberty rights and interference with the free- market system for the purpose of reengineering the distribution model. For that reason, the libertarianist concept of justice is believed by many to be too extreme.
More moderate distributive theories that also center on the concept of liberal individualism are presented in egalitarian liberalist views. Therein, the duty to perform acts of beneficence is defined in terms of consented-to conditions within a social contract model. John Rawls (1973), who together with Nozick was one of the two most influential political philosophers in the North American analytic tradition, constructed a hypothetical contract theory of “justice as fairness,” which he distribution of important social goods takes place, according to the principle of fairness, in a hypothetical situation in which no one has knowledge of his or her own or anyone else’s social position in real life. Rawls referred to this condition of ignorance as “the original position,” in which choices about the distribution of social goods have to be made behind a “veil of ignorance.” His proposal pertained to three principles that are involved in a just system of distribution:
a) The principle of equal liberty (principle I) 108
considered to be the original representation of the social contract model. The just
b) The difference principle (principle IIA)
c) The principle of fair equality of opportunity (principle IIB)
The principle of equal liberty holds that each person must have the most extensive system of rights and freedoms that can be accorded equally to everyone.
These freedoms include those of speech, conscience, and peaceful assembly, as well as democratic rights. Rawls (1973) did not include the freedom of contract in his list of freedoms. But he viewed the principle of equal liberty as absolute and not to be violated. The second (two-part) principle (IIA and IIB) holds that economic and social inequalities are justified only if they benefit all of society, especially its most disadvantaged members. Furthermore, all economically and socially privileged positions must be open to all people equally. For example, it is justified for a doctor to make more money than a grocery store clerk. If such were not the case, it is unlikely that anyone would study and train to be a doctor, and thus there would be no medical care. Therefore, the doctor’s greater salary is of benefit not only to him or her but to all of society, including the grocery clerk, because it permits that clerk to obtain medical care. This particular economic inequality leaves all members of society better off. To ensure that the least advantaged people will benefit the most, these principles should be applied as I, IIB, IIA. However, some of the presumptions that Rawls (1973) made in his theory are debatable (Winkler 1993). Some of the criticism directed at this model has noted that it requires people to rank liberty higher than any other social good. People should also be risk aversive, should not be moved by envy, and, finally, should not assign high priority to such goods as living peaceful lives. It is questionable whether these characteristics are indeed shared by all—or even by a majority of— people in society.
In contrast to Rawls, others have argued that health care reform must instead engage existing ideals and concrete desires. Thus, hypothetical reflection is unable to produce sustainable health care reform. Some persons also dispute the legitimacy of what rational agents would say about health care if what they say results from imaginative constructions. Finally, they point to the fact that, under the law, hypothetical individuals have no standing and, therefore, no policy can be based on the outcomes of discussions by imaginary people (Lysaker and Sullivan 1999).
Discussions about health care reform must be public, and they must engage the concrete beliefs and values of the community.
In the same tradition of contractarian theories of justice, Daniels (1985) recommended that the basis for the distribution of health care should be a principle guaranteeing equal opportunity to access health care services. He defined health care as a social good because it contributes to the maintenance of what he called species- specific functioning. Nonetheless, Daniels (1985) acknowledged that, in libertarian political philosophy, the notion of fairness as a criterion for distribution is problematic, or even controversial. To validate a system in which unequal outcomes can be morally justified, libertarianism has relied on what is essentially a procedural notion of equality of opportunity (Daniels 1985). Whereas Rawls (1973) ranked fair equality of opportunity as a lexical priority to be satisfied before the next priority, Daniels postulated a weaker conditional claim to full justification of the principle of fair opportunity. Realizing that it is impossible to “level” people down to their bare personhood by eliminating individual accidental features (e.g., talents or skills) that
106 CHAPTER 4
might confer advantages, Daniels (1985) presented two conditions for justification of the term fairness of opportunity:
a) An acceptable general theory of justice includes a principle which requires basic institutions to guarantee fair equality of opportunity.
b) The fair equality of opportunity principle acts as a constraint on permissible economic inequalities. (p. 41)
The contribution that Daniels made to the general understanding of the concept of justice is that he legitimately claimed that these two conditions are not tied to a particular theory of justice. Instead, they form a preamble to any theory of justice.
As applied to the distribution of health care, the notion of fair equality of opportunity, specifically defined this way, indicates what society must understand to be the moral function of health care: To help guarantee fair equality of opportunity for all members of the community in pursuing their realization of individual concepts of the good. As such,
against a serious impediment to opportunity, their failing to enjoy normal species functioning. (Daniels 1985, p. 57)
Daniels recognized the reality of a market account of access, but he did not define the term market in a purely libertarian fashion. Instead, he proposed a slightly modified account
characterized as “welfare rights”.… Access to health care is equitable if and only if there are no information barriers, financial barriers, or supply anomalies that prevent 1985, p. 73)
The description by Daniels of the moral function of health care validates not only the idea of universal access in health care but also the idea that the threshold for what can be called a decent basic minimum of health care services is not necessarily fixed. Resources are, by definition, limited. The actual limits vary over time, which turns the notion of a decent basic minimum of health care services into a fluid concept. The moral legitimacy of what has been established as the minimum level depends on whether the distribution of the informational and financial barriers has been equal among all the members of a community. Universal access to a decent basic package of health care services is a critical component of an egalitarian liberalist concept of justice in health care. However, at the same time, the principle of fair equality of opportunity also acts as a constraint on permissible economic inequalities. The principle constrains—but does not prohibit—inequalities.
Daniels (1985) acknowledged that the task of actually defining the basic minimum of health care services is made more difficult because the concept is indeed abstract in nature. It requires moral judgment as well as a considerable amount of information about health care and the actual resources that are available within society. Defining a decent basic minimum involves a judgment on the impact of health care services on maintaining, restoring, or compensating for the loss of a range of normal opportunity. The basic tier of health care services can be defined only in terms of the impact of health care services on creating, maintaining, or 110
health-care institutions should have the limited—but important—task of protecting people
in which there is implicit acceptance of some important moral claims that might loosely be
access to a “reasonable” or “decent basic minimum” of health-care services. (Daniels
enhancing opportunities, with inequalities of opportunities not to be tolerated for the sorts of economic reasons that might make preservation of these obstacles appealing (Daniels 1985). In other words, inequalities are permissible but not for invalid economic reasons.
Whatever the preferred procedure for health care reform, it is imperative to establish an environment reflective of ethical medical practice and moral care. As Kegley (1999) noted, such an environment must “be more hospitable to the realization of the principles of autonomy, beneficence, and justice” (p. 204). She advocated for basing decisions about inequalities on a set of rules such as those incorporated in the proportionality principle.
This principle is essentially that there must be proportionate good to justify permitting the risk of harmful consequences. Further, this principle can be applied morally only if it does not permit an action that is against individual dignity and autonomy. The proportionality principle asks us to be reflective and critically analytical in our ethical practice. It demands that we ask three crucial questions: (1) What are the kind and level of the good intended and the kind and level of the harm risked or permitted? (2) What is the certitude or probability of the good intended or the harm risked? and (3) What are the actual causal influences in the situation—that is, what factors will really determine the outcomes, and how much force do they have? (Kegley 1999, p. 225)
Adherence to this set of rules would ensure that health care decisions are based on treatment plans, goals, and projected outcomes. It would also emphasize the importance of examining not only the factors that are crucial in an illness but also those that are likely to produce positive change. Finally, it would compel health care providers and patients alike to assess their specific roles in promoting recovery and restoration of functionality. From a theoretical, procedural point of view, the proportionality principle elicits a set of questions that could make this principle an appropriate instrument to secure the fair distribution of health care.
4.2 The Odds of Just Health Care
From what I have reviewed and presented thus far, one may conclude that ethical theory has failed to produce clarity in defining the content of rights. Buchanan (1998) referred to this situation as the poverty of ethical theory. He stated that
no available general ethical theory or theory of justice in health care by itself can tell us time. (p. 630)
Buchanan’s theory does not allow for the conclusion that current distribution methods, including managed care, are necessarily unjust. Although not integrated into a single theory, most key elements of the notion of justice seem to be in place within the moral community. More specifically, most people appear willing to agree on the premise that health care should be appreciated as an important social good to which everyone within the moral community deserves reasonable access. Second, as Daniels (1985) postulated, appreciating health care as a social good does not necessarily exclude the free market as an appropriate distribution mechanism for health care. Within such an egalitarian liberalist perspective on health care
what the concrete content of right to health care is for a particular society at a particular
108 CHAPTER 4
distribution, even inequalities of distribution are permissible. Finally, at least in theory, rules are available that could govern the process of unequal distribution and secure fairness. The latter implies that not all rationing by definition alone should be understood as morally reprehensible. Allowing room for distributive inequalities also suggests that the moral community is at least willing to make a start by discussing the defining of what decent basic health care should be and by formulating substantive rules that could further govern the distribution process. The preliminary conclusion should therefore be that the odds are positive for fairness in the health care system. That said, it does not mitigate the reality that the road to justice seems winding, always uphill, and long.
4.3 Impediments to Justice
Because of concerns about justice, social philosophers have historically been critical of the free market’s operative philosophical framework of economic self- interested individualism. That framework portrays the individual human being as a rational, autonomous “homo economicus…who weighs and balances issues in terms of cost-benefit analysis and self-interest” (Kegley 1999, p. 204), and it stresses free- market “mechanisms and contractual relationships as appropriate notions for all domains of human endeavor” (Kegley 1999, p. 204). Such a depiction may not provide the best opportunities for an optimal environment in which to distribute social goods justly. The question, then, is whether economic self-interested individualism always results in solitary decisions after a cost-benefit analysis conducted in terms of self-interest.
A review of what has transpired in health care, and in managed care in particular, during the past two or three decades seems to indicate that one of the major causes for the failure to create a just distribution system is the inability of parties to agree on a single conceptual understanding of the notion of responsibility. Discussions among stakeholders appear to be hampered by the fact that they all embrace different definitions of what to some observers may seem to be the very same thing:
this notion of responsibility. The different stakeholders talk, they try to communicate, but they speak different languages. The question of whom to hold responsible for what, and at whose expense, has little or no likelihood of being answered unequivocally.
In summary, the social context of the current health care system is such that it places high priority on cost containment, because this is widely accepted as an effective strategy for securing an acceptable level of health care accessibility in the future. A great number of people, if not all, would agree that successfully containing the cost of health care will require some sort of rationing that to some degree would be necessary. No longer can all the medical services that are beneficial to people be provided to everyone.
Despite this recognition that the rationing of health care resources is inevitable, there is less agreement on its practical implementation. The economic context has demonstrated societal preference for privatization as the designated instrument for, or method of, cost containment. This means that, in contrast to Walzer’s (1983) 112