Health Care Distribution

1. Health Care Distribution PHL281Y Bioethics Summer 2005 University of Toronto www.chass.utoronto.ca/~kirstin

2. Overview • Human Capabilities (Nussbaum) • Context of Health Care Decisions & Justice • Health Care Distribution (Gutmann) • Quebec Case & Medicare

3. Motivation “We urgently need a conception of the human being and human functioning in public policy” (86)

4. Quality of Life Assessments 3 Current Options: • GNP per capita • No concern for distribution (vast inequalities) • No concern for other human goods (infant mortality, access to education, racial or gender relations, political freedoms) • Ex/ United Arab Emirates - 10th highest GNP while 67th for life quality (literacy 55%, maternal mortality 130/100,000, 6% labour force female, ratio females to males 48:100)

5. Quality of Life Assessments • Utility measures - polling people on preference satisfaction • Not always reliable indicators of what a person really needs (preferences are highly malleable) • Results often support status quo and oppose significant change • Group preference satisfaction - tradition • Can be quite disastrous for women (Ex/ menstruation taboos)

6. Nussbaum “Begin with the human being” (61) • Philosophical accounts of human nature (Ex/ Rousseau) • Allegedly unbiased - privilege & power, oppression, exclusion & marginalization • Recent: biased list of capabilities (Ex/ IQ testing) • Yet… • “We will only solve our problems if we see them as human problems arising out of a special situation, and we shall not solve them if we see them as African problems, generated by our being somehow unlike others” - K.Appiah (In Nussbaum, 63) • ‘Universalist and Essentialist’ - “some capabilities and functions are more central, more at the core of human life, than others” (63) • 3 encounters with relativism/anti-essentialism (64-67)

7. Nussbaum • Question - What are the characteristic activities of the human being? What must be present if we are to acknowledge a given life as human? • “What changes or transitions are compatible with continued existence of that being as a member of the human kind, and what are not?” (72) • Often asked in medical decisions about death, illness and impairment

8. Methodology • Experiential, historical inquiry • International • Normative/evaluative (not value-neutral) • Tentative, open-ended • Overlapping social consensus • Fair and reasonable procedures of achieving consensus • Heterogenous list (limits against which we press and capabilities through which we aspire) • Like personhood accounts but more species-specific and less exclusive

9. Limits and Capabilities of HumansThreshold 1: Human Life • Mortality • The Human Body • Hunger and thirst • Shelter • Sexual desire • Mobility • Capacity for Pleasure and Pain • Cognitive Capability • Early Infant Development • Practical Reason • Affiliation with Other Beings • Relatedness with Other Species and Nature • Humour and Play • Separateness • Strong Separateness

10. Threshold 2: Good Human Life • Life of normal length • Health (food, shelter, sexual satisfaction, mobility) • No unnecessary and non-beneficial pain; pleasurable experiences • Use of the senses (imagination, reason – cultivated by adequate education, freedom of expression and religion) • Attachment to others (love) • Ability to form a critical conception of the good (employment, political participation) • Social interaction (freedom of assembly, freedom of speech) • Relationship to animals, plants, nature • Ability to laugh, play and enjoy recreational activities • Non-interference with regard to definitive personal choices (marriage, childbearing, sexual expression, speech, employment) 10a.Privacy (personal property)

11. Objections and Replies 1. Neglect of historical and cultural differences • “Any attempt to pick out some elements of human life as more fundamental than others…is bound to be insufficiently respectful of actual historical and cultural differences” (70) • Usually at the expense of minority understandings (many historical examples) • Reply 1: Would an ethics based on local differences do any better? Misses out on common ground and shared capabilities • Reply 2: Not a necessary condition

12. Objections and Replies 2. Neglect of autonomy • “By determining in advance what elements of human life have most importance, the universalist project fails to respect the right of people to choose a plan of life according to their own lights” (71) • Reply 1: list of capabilities (not actual functions) which leaves much room for choice • Examples: Fasting, Celibacy • Reply 2: choice is built into the list as practical reasoning (capability for choice) • Reply 3: choice is not mere spontaneity (independent of material and social conditions)

13. Objections and Replies 3. Prejudicial Application • Powerless can be excluded all too easily • Reply 1: Better off without it? No - Would have been easier to exclude women and slaves without it • Reply 2: Not a necessary condition • Reply 3: Easier to exclude people on classic accounts of ‘personhood’ or ‘rational beings’

14. Objections and Replies 4. One Standard or Two? • Men and women have same functions and capabilities but they should be exercised in different spheres • Reply: Separate tends not to be equal • Restriction of women to private sphere limits the development of all capabilities (so internally inconsistent) • Also, what basis for assuming different spheres? Biological? Social facts?

15. Objections and Replies B. List of functions and capabilities should be different for men and women because they are different • Reply 1: Not supported by scientific evidence • Reply 2: Even if it were supported by scientific evidence, likely statistical distribution differences - not threshold differences (and even if threshold - only on narrow functions) • Reply 3: Not practically possible to support this position with good scientific evidence given socialization (high potential error in testing - err on side of caution and assume all individuals have basic capabilities)

16. Nussbaum • Human capabilities exert a moral claim that they should be developed • Underlying basis for accounts of ‘human rights’ • Many social structures prevent people from expressing these capabilities • Ex/ Restrictions on women’s education • Ex/ Restricted access to health care…

17. Health Care Distribution • The neglected principle: Justice • Decision-making in health care: • Macro level - governments • Ex/ Health care funding • Meso level - health districts, hospitals • Ex/ Organ waiting lists • Micro level – physicians, nurses • Ex/ Treating smokers

18. Liberalism • Basic Introduction to Rawls & ‘Justice as Fairness’ • Liberty • Equality • Of Respect • Of Opportunity

19. Health Care • Liberty Right Only • Right to Minimal Care • Right to Equal Access • Right to Equal Health Liberty Equality

20. 4 Options • Liberty Right Only • No restrictions on accessing/providing healthcare • No claim to assistance from others • Buy what you can afford • No government involvement • Free market – all goods are subjective, no way of ranking desires so use the market to order and rank priorities • Objections: • Duty to aid when no great cost? • Unfair to unlucky (persistent existing inequalities) • Not all goods are subjective – health is an objective good that all people need (Nussbaum)

21. 4 Options • Right to Minimal Care • Some government involvement • Example: USA • Objection: • Costs (13.9%GDP vs. 9.5%GDP) • (later)

22. 4 Options • Right to Equal Access • ‘Single-tier’ (no private sphere) • Universal coverage • Not specified: particular provisions or total level of health care that should be available • Equality of effective opportunity to receive care (not merely equality of formal legal access) • Example: Canada • Objection: • Too paternalistic (autonomy/liberty is limited) • Those people with discretionary income • Those health care providers who wish to sell their services outside the system • Reply: • Not paternalistic if democratically chosen (our own choice to restrict liberty) ‘fair process’ • Not ‘taking away’ gross income if no entitlement

23. 4 Options • Right to Equal Health • Fully egalitarian • Aim: equal outcomes/results • Objections: • Excessively paternalistic - not enough regard for individual autonomy/freedom • To everybody • Costs • Too highly prioritizes health as a good • Dismal society if all health needs met and no other goods (quality of life)

24. Gutmann • Rejects options 1 and 4, focuses on 2 and 3 • Health care is different from other consumer goods • Argues for option 3 (right to equal access) because it makes better sense than option 2 (right to minimal care) on three values: • Equal Opportunity • Moral Equivalence of Pain • Self-Respect

25. 1. Equal Opportunity • Relationship between health and equal opportunity is different than the relationship between most other consumer goods and equal opportunity • Like police protection and childhood education, provides necessary conditions for equal opportunity • Sometimes used to justify options 1 and 2, but if taken seriously requires option 3

26. 2. Moral Equivalence of Pain • Pain and suffering are always bad (and are equally bad in any person) • Option 3 takes this seriously • The pain of the poor is ‘less bad’ in 1 and 2

27. 3. Self-Respect • 2-tier system undermines self-respect of poor • Example: waiting in line while others bypass • Example: self-respect and suffrage (equality)

28. Gutmann • Principle of Equal Access to Health Care: “[D]emands that every person who shares the same type and degree of health need must be given an equally effective chance of receiving appropriate treatment of equal quality so long as that treatment is available to anyone.” (542) • Prudent aim: higher minimum in USA • Irony: money and nonessential goods (egalitarian principle in an inegalitarian society)

29. Other Questions • Liable for voluntary risk? • Empirical Question – better physicians migrate to higher tier if two-tier?

30. Canada Health Act • Public Administration: the administration of the health care insurance plan of a province or territory must be carried out on a non-profit basis by a public authority; • Comprehensiveness: all medically necessary services provided by hospitals and doctors must be insured; • Universality: all insured persons in the province or territory must be entitled to public health insurance coverage on uniform terms and conditions; • Portability: coverage for insured services must be maintained when an insured person moves or travels within Canada or travels outside the country; and • Accessibility: reasonable access by insured persons to medically necessary hospital and physician services must be unimpeded by financial or other barriers. - Government of Canada

31. Recent Challenge - Zeliotis/Chaoulli • Quebec patient - George Zeliotis argued that his constitutional rights to life, liberty and security of the person were violated by a year-long wait for a hip replacement • Zeliotis brought his fight to the Supreme Court along with a physician, Dr. Jacques Chaoulli, who wanted the right to set up a private medical business • They asked the court to overturn portions of the Quebec Health Insurance Act and Quebec Hospital Insurance Act that prohibit buying private health insurance for medically necessary services • The Supreme Court of Canada has struck down Quebec's ban on using private insurance for services covered under Medicare

32. Zeliotis/Chaoulli • Four of the court's seven judges involved in the decision wrote that the ban was in violation of the province's Chart of Rights: "The evidence in this case shows that delays in the public health care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care." "The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care result in physical and psychological suffering that meets a threshold test of seriousness." • But the country's top court was divided on whether the Canadian Charter of Rights has been violated. One judge abstained so the vote was split 3-3. • Dr. Albert Schumacher, president of the Canadian Medical Association, says the ruling could "fundamentally change the very foundations of Medicare as we now know it.'' - Sources: CTV & CBC News

33. Analysis • On what basis do we justify our current health care system? • Options: • Better funding current system • 2-tier system • …

34. Summary • Human Capabilities (Nussbaum) • Context of health care decisions & justice • Balancing values • Health Care Distribution (Gutmann) • Quebec Case & Medicare

35. Next class… • Limits of bioethics, course themes • Review for final, structure of final • No posted lecture notes • Course evaluations • Reminder: Final Exam Monday, Aug.15th 7-10pm GB 304

36. Contact Prof. Kirstin Borgerson Room 359S Munk Centre Office Hours: Tuesday 3-5pm and by appointment Course Website: www.chass.utoronto.ca/~kirstin Email: kirstin@chass.utoronto.ca