Just Doctoring, Rights, and Access to Health Care

As outlined above, and in more detail in chapter 8, the institution of market-competitive concepts in medical care has had detrimental effects on access. In a competitive marketplace, health care providers, especially hospitals, must compete for patients. Moreover, third-party payers, especially insurers and the federal government, have

restricted considerably the reimbursement structure for physicians and hospitals. While this may not have cut health care costs a great deal, it has created a sense within health care administration that less and less funding will be available for financing health care. This has led to an unwillingness to subsidize care for the poor. With less available in the reimbursement provided by insurers, there are smaller surpluses with which to subsidize the care of the indigent. Accordingly, since Medicaid provides only partial coverage for indigent health care, Congress has become more and more concerned about availability of health care for poor people.45

The just doctor understands that the implementation of marketplace concepts in medical care is in many ways an effort to place the patient on an equal footing, as a consumer, with the physician, who becomes a supplier. She welcomes this aspect of the marketplace. Nonetheless, she finds the inequalities produced by the market especially inappropriate in medical care as a sphere of cooperative activity within the liberal state. Gross inequalities display a lack of equal concern and respect, affronting both the values of liberalism and the ethics of just doctoring. Lack of access is a challenge for just doctoring, for every physician must help to decide the best ways to modify the market in health care without decreasing the negative freedom of patients. The just doctor must therefore support patient rights while maintaining a concern for access to care. The just doctor recognizes the manner in which a market in medicine can decrease physician prerogatives and increase the patient's ability to choose, vet she must still be concerned about access.

Some would argue that there is no real conflict between patient rights on one hand and concerns about access on the other. They would argue that patients have a right to health care, and that this should define equal access for all. In other words, they argue that concern for patient rights demands the elimination of the market where it creates inequality. Thus a commitment to the right to health care would lead one to replace the market with a national health service.

The notion of a right to health care has a relatively long history in this country. Of course, it is not a matter that concerns only physicians per se, but rather all members of the liberal state. In essence, those who call for a right to health care believe that this particular right is an inherent feature of any political structure. The argument is that any citizen in a civilized state should have a right to health care, some

would even say a right to health. But is the modern liberal state such a civilized state? To answer this question, it is necessary to retrace issues we addressed in chapters 1 and 2 in regard to the foundations of modern liberalism.

Ill health presents a peculiar set of conceptual problems for liberalism. In the liberal state, choice is highly valued; it is one's freedom to choose that defines individuality. One actualizes oneself by budgeting one's own resources and selecting projects to be pursued. Health care is usually not conceived of as such a project. A decision to seek care is usually not a matter of free choice. Norman Daniels states, "For at least some health service needs, people cannot just choose to modify them when budgeting their fair share of social good."46 A critical illness or debilitating injury strikes suddenly in many cases. One has no choice whether to seek help or not; health care must be sought.

Thus the liberal ideal of the rational man calculating a list of social goods cannot apply. The victim of an appendicitis attack or a car accident rarely sits back and decides whether health care is more important than that new convertible or big evening out on the town. Gene Outka correctly states that "health crises are often of overriding importance when they occur. They appear therefore not satisfactorily accommodated to the context of a free market place where consumers may freely choose among alternative goods and services."47

Another consideration follows closely on this. The pure procedural justice of the market, and its utility in bringing about equal concern and respect, rests on a partly hidden premise, which is that all people have essentially the same needs and that the choices one makes are not a societal concern. Personal choice, guided by personal responsibility for one's well-being, prevails. If you enjoy caviar and champagne, you have no one to blame if you cannot purchase heating oil later. Since each person has similar needs, each decides how to fulfill the basic ones and cultivate others that are not so basic.

This description of needs and personal responsibility does not, however, obtain in health care. The need for health care is grossly unequal among people, and it often has little to do with how responsible one has been regarding one's own health. The pure procedural justice of the market place fails, to some extent, to operate in the area of health care. Thus Daniels assesses the situation accurately when he writes that "perhaps because health care needs behave in this especially unruly way, [many liberals] deliberately [leave] consideration of them out of [their] theory."48

In a modern liberal state, one could argue that health care would be on the list of primary social goods, those things to which a citizen can say she has a right. That list, as Rawls sets it forth, is made up of the following: (1) a set of basic liberties; (2) freedom of movement between various opportunities; (3) income and wealth; (4) social bases of self-respect; and (5) powers and prerogatives of office. These goods appear to be the prerequisites of personal choice. They protect and circumscribe the negative freedom of individuals.

Continuing this argument, nothing so limits freedom of choice as does the handicap of illness. Thus P. Greene states that "access to health care is not only a social primary good, in Rawls's sense of the term, but possibly one of the most important such goods.... Even more apparently than governmental interference, disease and ill health interfere with our happiness and undermine our self-confidence and self-respect.... There seems to be little question that in the priorities of rational agents health care stands near to the basic liberties themselves."49 The prevalence of health problems in a society and their great propensity to interfere with the chosen projects of the individual are strong arguments for the inclusion of health care as a primary good to be guaranteed by the society in the promotion of justice.

There are, however, serious objections to this stance. At least two major arguments have been made against health as a primary good. The first concerns the claim that health care is not a general enough good to be a primary good. As Daniels says, in defense of Rawls's wish to keep desires theoretical in the "original position," guaranteeing health care would be tantamount to opening Pandora's box:

Greene's construction proliferates too many other quality provisos. Surely, contractors might reason, adequate food is a primary social good of fundamental importance; so are clothing and shelter. Contractors would not risk having inadequate supplies of any of these goods. Therefore, they would choose principles that guarantee equal access at least to some basic level of each good. What is happening here is that the theory of primary goods is being turned into an elaborate list of fairly specific needs. But Rawls never intended the index to function as a "need satisfaction" indicator, and converting it into one does violence to Rawls' whole view of these goods. The primary goods are intended to be general, all purpose goods, which it is rational for the moral agent to want even if he does not know his specific ends or needs.50

This leads into the next argument against the inclusion of health care as a primary good: its cost would be tremendous. To accept a certain minimum of health within a society would call for a certain amount of

money. But the funds required to guarantee a level of health such that it would be possible to say that no one in the society is prevented, because of health problems, from pursuing his or her own happiness would have to be unlimited. Even Greene must admit that "the provision of the 'best possible' health care is an unreachable goal whose pursuit can absorb all the resources of even the richest society. A right to health care as a positive right, then, cannot be affirmed like negative rights or liberties. It must eventually be defined in terms of its permissible claim on other resources, particularly those handled by the economic system. Very bluntly, the question is how much should a society spend on health?"51 As Kenneth Arrow has argued,52 the needs of some people for health could reduce the rest to poverty if all health needs were to be fulfilled.

Clearly, however, this overstates the case. Arrow is correct only insofar as a right to health care means doing everything possible to restore everyone to good health. But this is not the realistic goal of any health care system. Many liberal states, Britain and Canada to name two, provide universal health care to all citizens, yet spend less of their Gross National Product (GNP) on health than does the United States. Thus, at least to the extent that a right to health care means equal access to some level of health care, it can be part of the modern liberal state. As Outka concludes, "In light of all the foregoing then—and especially the contrasts drawn between need and desert—a case can indeed be made for the goal of equal access."53

As such, the right to health care merely requires modification of the market and general taxation to support indigent care. These kinds of measures are accepted by the modem liberal as important for the goal of equal concern and respect. If health care is to be a cooperative sphere of activity, there is all the more reason to bring about equal access to a basic level of care. But the liberal does not, in so doing, create equality of access to health care. Those who can buy more than what is guaranteed will do so:

Those who claim a right to health care often gloss over another important distinction. They may intend only a system relative claim to health care: Whatever health care services are available to any within the given health care system should be equally accessible to all. Such a claim may be met by removing services accessible to only a privileged few from the system. This equality of access demand is not a demand for an independently determined level of health care, only for equality relative to whatever level of services the relevant system provides. Contrast this right claim with one that requires some specifiable

range of health care services to be made available to all.... Such a substantive demand might require specific expansion or contraction of the existing health care system, not just in terms of who is treated, but in terms of what services are offered. The two rights claims may have vastly different implications for reform.54

In a liberal state, one cannot expect that we will deny the individual who has scrimped and saved for the bone marrow transplantation she desires simply because public expenditures do not fund such transplantation. While there is much that is admirable in a state that attempts to create radical equality, it is not a liberal state. This underscores the requirement that the approach of just doctoring to health care rights must be in step with the public morality of liberalism.55

Nonetheless, it appears that there is some basis for an individual right to health care in the modern liberal state. Yet, as James Blumstein suggests,56 rights language itself does not take us very far in defining appropriate access to health care. The claim of a right to health care simply does not elicit a definitive response by the liberal state. Indeed, this was the conclusion of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research.57 (One could argue that rights are the best way to protect an indigent person who is urgently ill, and cannot gain access to emergency medical care.58 )

This is not to say that the liberal state, and especially those committed to just doctoring, can afford to overlook inequity of access to health care. The liberal state is still committed to equal concern and respect for all individuals. This equal concern and respect should lead to substantive efforts by government to overcome inequality, even to the extent of modifying or eliminating the market in certain areas of the economy. Certainly, the modern liberal cannot tolerate a state in which access to medical care is strictly propositioned on the ability to pay.

Thus the law as integrity puts the onus on the liberal legislature to address concerns about equal respect for all individuals. This requires the government in the liberal state to examine those inequalities that exist in access to medical care and decide which inequalities must be eliminated so that the promise of the liberal state can be fulfilled. More importantly, medical ethics as just doctoring requires physicians to help the state determine the best arrangements for making medical access universal.