Module 17: Justice in Medicine
Upon completion of this module, the resident should be able to:
- Define differing concepts or types of justice and identify those that are most relevant to health care.
- Define and distinguish among competing concepts of health care (that is, health care as a commodity, a legal right, a human right, and a human good).
- Identify and describe the conflict between commutative and distributive justice in health care.
- Identify benchmarks or criteria of a just health care system from an egalitarian point of view.
- Describe guidelines for physicians and resource allocation.
- Clarify and refine his or her own values and ethical commitments with respect to the question, What is the role of physicians in health care reform?
Module: 17 / Justice in Medicine and Health Care
The U.S. has, arguably, the best health care system in the world. Yet, despite spending more on health care than any other country—almost $2 trillion annually and approaching 16% of our gross domestic product—we rate at or near the bottom among developed countries on such important measurements as infant mortality and longevity. And while access to advanced health care technology is easily available to most Americans, over 46 million Americans have no health insurance. From an editorial by Lynn Kirk, MD, F.A.C.P., in the December 2006 American College of Physicians’ Observer.
In late 2006, the U.S. Census Bureau announced that in the previous year, 2005, the number of uninsured Americans increased by 800,000 over the 45.8 million total for 2004: 46.6 million people in the United States—approximately 16 percent of the population—lack health insurance. If recent trends hold, that number can be expected to increase by similar increments on an annual basis. Moreover, the percentage of individuals with employment-based health insurance has decreased from 70 percent in 1987 to about 60 percent. Those who are most vulnerable to the lack or the loss of health insurance are children, young adults, and people of Hispanic origin. The factors underlying the continuous increase in the numbers of the uninsured are multiple. In 2004, a third of employers in the United States did not offer coverage. Nearly two-fifths of all employees work in small businesses—less than two-thirds of which offer coverage to their workers. (In the period from 2000 to 2005, an estimated 266,000 small businesses eliminated health insurance coverage for their employees due to rising costs.) Typical life changes—job changes, divorce, retirement—also contribute to the problem.
The consequences of this ever-growing problem are reasonably clear. The uninsured get less preventive care, tend to be diagnosed with disease at more advanced stages, and once disease is detected, they tend to get less therapy—with the end result that their mortality rates are higher than those of the insured. Drug prescriptions go unfilled and recommended tests and treatments are not sought or received. The emergency room—for at least one-fifth of the uninsured—becomes the typical source of health care and those who are hospitalized have avoidable conditions that could have been prevented with adequate coverage. The following quote from Benchmarks of Fairness for Health Care Reform by Daniels, Light, and Caplin (Oxford University Press, 1996) offers a succinct summary of these problems and an indictment of the health care system of the United States:
… Americans live in the most unfair health system in the industrialized world. No other affluent nation… fails to guarantee universal access to medical services regardless of income, ethnicity, age or health condition. No other allows coverage on premiums to vary by risk or health condition. No other collects funds so that those who earn less must pay proportionately more … than those who earn more. No other comes close to being as inefficient as the American system, where about 23 percent of people’s premiums go to administration, marketing & profits. Few other nations make it so difficult as the United States to compare and decide publicly how much to spend on health care versus other social programs.
None of the topics addressed in this on-line curriculum are simple, but the topic of justice in medicine and health care is exceptionally complicated and ranges over multiple subtopics. This module will have a selective focus, therefore, on several of these subtopics and will aim to provide residents in urology with conceptual tools for thinking through dilemmas in health care justice, rather than with “answers” or “solutions” to these dilemmas. The subtopics for this module are: (1) What is health care justice? (2) What is health care? (3) What is the physician’s role in resource allocation?
The word “justice” has multiple meanings, depending upon the context of its use. When the question is what should be done about the wrongs that human beings often perpetrate on each other, the justice in question is retributive justice, which is usually held to be governed by a principle of proportionality—that is, the punishment should “fit the crime.” Closely related is the concept of restorative justice, which is centered on the question of what should be done to address the wrongs perpetrated on classes of individuals; restorative justice is, thus, similar to the concept of corrective justice.
These concepts or types of justice have little or no relevance to medical and health care per se. Distributive justice, however, does and obviously so, for this type of justice has to do with the allocation of goods or benefits, on the one hand, and burdens, risks, or harms, on the other hand. The context for another type of health care-related justice, commutative justice, is the relationship between two individuals and justice here usually refers to what one owes the other; by extension, issues of commutative justice can be said to arise in the context of the physician-patient relationship. Finally, social justice is a type of justice that concerns itself with fundamental questions about the relationship between individuals and the collectives of which they are a part (or are members), about the socioeconomic and political status of particular collectives or groups within society, and, ultimately, about the ethical question of how just a given society is? This latter question, of course, begs another: just in what sense?
What is health care? The answer to the question seems patently obvious and clear: “health care” refers to diagnostic, therapeutic, prognostic, and preventive services rendered by health care professionals to patients, with the aims of either improving and maintaining their health or curing or ameliorating the effects of disease. With reference to “justice,” however, the question is how are we to define these services ethically? To the point: is health care a commodity, a human right or a legal right, or a good that every good society is obliged to provide its members? It should be intuitively clear that answers to questions of how we are to distribute health care justly turn on answers to questions of how we are to define health care. If we remain “close to home,” in the United States, and look to the evolution of health care over the last several decades for clues to a definition, we have evidence that is inconclusive with respect to a clear-cut definition. Managed care and the rise of for-profit medicine point to a definition of health care as a commodity—at the very least, one can say that there has been a trend toward the commodification of health care in the United States. For some—for example, the elderly and other populations eligible for Medicare coverage—health care is a legal right: by convention (that is, through legislative and executive action), segments of the population have been singled out as needing and eligible for government support for their efforts to acquire one of life’s undeniable necessities.
In opposition to this state of affairs, critics of American health care often appeal to one of two alternative definitions of health care: (1) health care as a human—and, thus, moral—right and (2) health care as a good that is responsive to a fundamental human need, the need for health and healing, and that must be provided by a just or good society. With respect to the first alternative, human rights are distinguished from legal rights in that the latter are conferred, as indicated, by society through the vehicles of government; the former, by contrast, are held to be inherent in the nature of being human. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, is one of the best known modern statements of this concept; Article 25 of the Declaration reads: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (The Universal Declaration of Human Rights is available in its entirety at: http://www.un.org/Overview/rights.html.) The second alternative, which finds its clearest articulation in the Catholic social justice tradition, envisions health care—that is, what we today call “universal health care”—as a necessity, like housing and food, that a just society guarantees to its members in the interests of both the common and the individual good. In this sense, health care is both the fruit of, and the means to securing solidarity among the members of a society.
It is fair to say that a controversy over the meaning of health care has waxed and waned for some time in the United States: the question of how it should be defined is likely to come to the fore again as the country nears the next presidential election. Those who argue that health care is and should be defined as a commodity believe that it, like every other commodity, should be subject to the market mechanisms of supply and demand. Some proponents of this definition would leave the issue at that, while others would argue and acknowledge that the often brutal forces of the market should be blunted or softened through other mechanisms that provide some safety net for those lacking the financial and economic resources to purchase the commodity of health care. Those who argue that health care should be conceived as a human right tend to be more egalitarian in orientation. A prominent exponent of this conception and orientation is bioethicist Allen Buchanan, who argues that a just health care system should meet nine different criteria:
- Universal access
- Access to an "adequate level" of care
- Access without excessive burdens
- Fair distribution of the financial costs of ensuring universal access to an adequate level of health care
- Fair distribution of the burdens of rationing care
- Capacity for improvement toward a more just system
- Education and training of appropriate numbers and types of healthcare providers
- Effective pursuit of high quality biomedical research
- Cost effective use of results of biomedical research
(Source: Buchanan A. Privatization and just health care. Bioethics 1995;9:220-39)
Throughout this on-line curriculum, the argument has been made that the physician’s primary duty is to benefit her patient: in light of the preceding discussion about types of justice, it can be said that this overriding ethical precept, which defines medicine as a profession, is a matter of commutative justice. The patient standing before the physician must be able to trust that the physician will seek to secure the patient’s good within the limits of the law, professional integrity, and ethical validity. When health care resources are scarce or constrained, however, the relatively straightforward nature of this duty as an exercise in commutative justice becomes complicated by the demands of distributive justice, raising the question of whether physicians should ever set aside commutative justice, that which is owed to their patients, and become arbiters of distributive justice: that is, should they ration or allocate resources among patients? Here, too, there is controversy and divided opinion. On one end of the spectrum of opinion, we find those who adamantly argue “no,” physicians should never engage in rationing in this fashion: their primary and only commitment should be to advance the best interests of their patients. On the other end are those who view the physician as practicing her profession within a web of commitments, not only to the patient, but to other patients (including those who are not one’s own patients), the institution, payers, society at large, and the physician herself.
- The diagnostic and therapeutic interventions recommended by physicians to their patients should be selected on the basis of established—that is, evidence-based—benefit and effectiveness; interventions that are only marginally beneficial or effective should be recommended only under certain circumstances, if at all. Although low cost should not be the sole driver of the clinician’s judgment, selected interventions will ideally meet the criteria of benefit and cost-effectiveness.
- Physicians are and should be advocates for their patients, but not to the degree that they engage in deception in attempting to secure the resources required to meet patient needs.
- Competing claims for scarce resources should be adjudicated in just ways using such morally relevant criteria as a need and benefit; criteria such as race, ethnicity, sex/gender, sexual orientation, religious affiliation, and age are, to say the least, morally problematic, as is socioeconomic status. In addition, the process and criteria for resolving these competing claims should be fully transparent and ideally based on public input.
- The kidney transplant program at your academic medical center is considering the adoption of an unwritten policy that would have the effect of barring individuals 70 years of age and older from receiving transplants. You are a member of an ad hoc committee that has been formed to conduct an evaluation of this proposal. What are the proposal’s merits and demerits? What outcomes data are available on the issue of patient benefit and survival in kidney transplants for candidates in this age range? What do the data suggest and how should evidence of this sort be used in resource allocation proposals of this sort?
- Within the context of the group, take up and explore the following questions: (A) Beyond the sphere of commutative justice—of seeking the good of the patients entrusted to their care—do physicians have a role to play in debates surrounding issues of health care (distributive) justice? (B) If they have no role, why? (C) If they have a role, what is that role? (D) What are the positions of the leading professional organizations and societies on this question (for example, the American Medical Association, the American College of Physicians, the American College of Surgeons, the American Urological Association)? (E) What is the history of physician involvement in health care access and financing issues in this country?
In addition, what ethical arguments can be marshaled for and against the proposition that physicians should be arbiters of distributive justice, that is, they should engage in “bedside” rationing of health care resources?
The website of Medical Advocates/Ethics and Infectious Disease with a portal to a range of published abstracts and articles on distributive and social justice in health care can be found at: http://www.medadvocates.org/disciplines/ethics/values/social_justice/socialjusticeman.html.
Is health care special? When are health inequalities unjust? And, how can competing health care needs be met justly, under conditions of health care constraints? These three questions are address in a paper by Harvard’s Norman Daniels that can be found at: http://www.medadvocates.org/disciplines/ethics/values/social_justice/socialjusticeman.html.
The advocacy organization, Common Good, is bipartisan in nature and exists to promote universal health care; its health care segment can be found at: http://cgood.org/healthcare.html.
An article on three principles of justice for health care rationing can be found at: http://www.york.ac.uk/inst/che/pdf/prinicples.pdf.
The Rand Corporation is an excellent source of well conducted research studies on health care services and health outcomes; the segment of its website focused on health care can be found at: http://www.rand.org/health/.
The website of Physicians for a National Health Program can be found at: http://www.pnhp.org/.
An excellent article by philosopher/ethicist Erich Loewy on health care justice can be found at: http://www.eumed.net/entelequia/pdf/e02a01.pdf; another by two physicians, Putsch and Pololi, can be found at: http://www.ajmc.com/files/articlefiles/A100_04sep04_PutschSP45_53.pdf. A third can be accessed at: http://www.pubmedcentral.nih.gov/picrender.fcgi?artid=1349347&blobtype=pdf.