Health Care DistributionHealth Care Distribution

PHL281Y BioethicsPHL281Y BioethicsSummer 2005 University of TorontoSummer 2005 University of Toronto

www.chass.utoronto.ca/~kirstinwww.chass.utoronto.ca/~kirstin

OverviewOverview

1.1. Human Capabilities Human Capabilities (Nussbaum)(Nussbaum)

2.2. Context of Health Care Context of Health Care Decisions & JusticeDecisions & Justice

3.3. Health Care Distribution Health Care Distribution (Gutmann)(Gutmann)

• Quebec Case & Quebec Case & MedicareMedicare

MotivationMotivation

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

Quality of Life AssessmentsQuality of Life Assessments

3 Current Options:3 Current Options:

1.1. GNP per capitaGNP per capita

• No concern for distribution (vast inequalities)No concern for distribution (vast inequalities)

• No concern for other human goods (infant mortality, access No concern for other human goods (infant mortality, access to education, racial or gender relations, political freedoms)to education, racial or gender relations, political freedoms)

• Ex/ United Arab Emirates - 10th highest GNP while 67th for Ex/ United Arab Emirates - 10th highest GNP while 67th for life quality (literacy 55%, maternal mortality 130/100,000, life quality (literacy 55%, maternal mortality 130/100,000, 6% labour force female, ratio females to males 48:100)6% labour force female, ratio females to males 48:100)

Quality of Life AssessmentsQuality of Life Assessments

2.2. Utility measures - polling people on preference Utility measures - polling people on preference satisfactionsatisfaction

• Not always reliable indicators of what a person really needs Not always reliable indicators of what a person really needs (preferences are highly malleable)(preferences are highly malleable)

• Results often support status quo and oppose significant Results often support status quo and oppose significant changechange

3.3. Group preference satisfaction - traditionGroup preference satisfaction - tradition

• Can be quite disastrous for women (Ex/ menstruation Can be quite disastrous for women (Ex/ menstruation taboos)taboos)

NussbaumNussbaum

““Begin with the human being” (61)Begin with the human being” (61)

Philosophical accounts of human nature (Ex/ Rousseau)Philosophical accounts of human nature (Ex/ Rousseau)• Allegedly unbiased - privilege & power, oppression, exclusion & Allegedly unbiased - privilege & power, oppression, exclusion &

marginalizationmarginalization• Recent: biased list of capabilities (Ex/ IQ testing)Recent: biased list of capabilities (Ex/ IQ testing)

Yet…Yet… ““We will only solve our problems if we see them as human We will only solve our problems if we see them as human

problems arising out of a special situation, and we shall not problems arising out of a special situation, and we shall not solve them if we see them as African problems, generated by solve them if we see them as African problems, generated by our being somehow unlike others” - K.Appiah (In Nussbaum, 63)our being somehow unlike others” - K.Appiah (In Nussbaum, 63)

‘‘Universalist and Essentialist’ - “some capabilities and functions Universalist and Essentialist’ - “some capabilities and functions are more central, more at the core of human life, than others” are more central, more at the core of human life, than others” (63)(63)

3 encounters with relativism/anti-essentialism (64-67)3 encounters with relativism/anti-essentialism (64-67)

NussbaumNussbaum

Question - What are the characteristic activities of the Question - What are the characteristic activities of the human being? What must be present if we are to human being? What must be present if we are to acknowledge a given life as human?acknowledge a given life as human?

““What changes or transitions are compatible with continued What changes or transitions are compatible with continued existence of that being as a member of the human kind, existence of that being as a member of the human kind, and what are not?” (72)and what are not?” (72)• Often asked in medical decisions about death, illness and Often asked in medical decisions about death, illness and

impairmentimpairment

MethodologyMethodology

1.1. Experiential, historical inquiryExperiential, historical inquiry2.2. InternationalInternational3.3. Normative/evaluative (not value-neutral)Normative/evaluative (not value-neutral)4.4. Tentative, open-endedTentative, open-ended5.5. Overlapping social consensusOverlapping social consensus6.6. Fair and reasonable procedures of achieving consensusFair and reasonable procedures of achieving consensus7.7. Heterogenous list (limits against which we press and Heterogenous list (limits against which we press and

capabilities through which we aspire)capabilities through which we aspire)8.8. Like personhood accounts but more species-specific and Like personhood accounts but more species-specific and

less exclusiveless exclusive

Limits and Capabilities of HumansLimits and Capabilities of HumansThreshold 1: Threshold 1: HumanHuman Life Life

1.1. MortalityMortality2.2. The Human BodyThe Human Body

• Hunger and thirstHunger and thirst• ShelterShelter• Sexual desireSexual desire• MobilityMobility

3.3. Capacity for Pleasure and PainCapacity for Pleasure and Pain4.4. Cognitive CapabilityCognitive Capability5.5. Early Infant DevelopmentEarly Infant Development6.6. Practical ReasonPractical Reason7.7. Affiliation with Other BeingsAffiliation with Other Beings8.8. Relatedness with Other Species and NatureRelatedness with Other Species and Nature9.9. Humour and PlayHumour and Play10.10. SeparatenessSeparateness11.11. Strong Separateness Strong Separateness

Threshold 2: Threshold 2: GoodGood Human Life Human Life

1.1. Life of normal lengthLife of normal length2.2. Health (food, shelter, sexual satisfaction, mobility)Health (food, shelter, sexual satisfaction, mobility)3.3. No unnecessary and non-beneficial pain; pleasurable No unnecessary and non-beneficial pain; pleasurable

experiencesexperiences4.4. Use of the senses (imagination, reason – cultivated by adequate Use of the senses (imagination, reason – cultivated by adequate

education, freedom of expression and religion)education, freedom of expression and religion)5.5. Attachment to others (love)Attachment to others (love)6.6. Ability to form a critical conception of the good (employment, Ability to form a critical conception of the good (employment,

political participation)political participation)7.7. Social interaction (freedom of assembly, freedom of speech)Social interaction (freedom of assembly, freedom of speech)8.8. Relationship to animals, plants, natureRelationship to animals, plants, nature9.9. Ability to laugh, play and enjoy recreational activitiesAbility to laugh, play and enjoy recreational activities10.10. Non-interference with regard to definitive personal choices Non-interference with regard to definitive personal choices

(marriage, childbearing, sexual expression, speech, (marriage, childbearing, sexual expression, speech, employment)employment)10a.Privacy (personal property)10a.Privacy (personal property)

Objections and RepliesObjections and Replies

1.1. Neglect of historical and cultural differencesNeglect of historical and cultural differences

• ““Any attempt to pick out some elements of human life Any attempt to pick out some elements of human life as more fundamental than others…is bound to be as more fundamental than others…is bound to be insufficiently respectful of actual historical and cultural insufficiently respectful of actual historical and cultural differences” (70)differences” (70)

• Usually at the expense of minority understandings Usually at the expense of minority understandings (many historical examples)(many historical examples)

• Reply 1: Would an ethics based on local differences do any Reply 1: Would an ethics based on local differences do any better? Misses out on common ground and shared better? Misses out on common ground and shared capabilitiescapabilities

• Reply 2: Not a necessary conditionReply 2: Not a necessary condition

Objections and RepliesObjections and Replies

2. Neglect of autonomy2. Neglect of autonomy

• ““By determining in advance what elements of human By determining in advance what elements of human life have most importance, the universalist project fails life have most importance, the universalist project fails to respect the right of people to choose a plan of life to respect the right of people to choose a plan of life according to their own lights” (71)according to their own lights” (71)

• Reply 1: list of capabilities (not actual functions) which Reply 1: list of capabilities (not actual functions) which leaves much room for choiceleaves much room for choice• Examples: Fasting, CelibacyExamples: Fasting, Celibacy

• Reply 2: choice is built into the list as practical reasoning Reply 2: choice is built into the list as practical reasoning (capability for choice) (capability for choice)

• Reply 3: choice is not mere spontaneity (independent of Reply 3: choice is not mere spontaneity (independent of material and social conditions)material and social conditions)

Objections and RepliesObjections and Replies

3. Prejudicial Application3. Prejudicial Application

• Powerless can be excluded all too easilyPowerless can be excluded all too easily

• Reply 1: Better off without it? No - Would have been easier to Reply 1: Better off without it? No - Would have been easier to exclude women and slaves without itexclude women and slaves without it

• Reply 2: Not a necessary conditionReply 2: Not a necessary condition• Reply 3: Easier to exclude people on classic accounts of Reply 3: Easier to exclude people on classic accounts of

‘personhood’ or ‘rational beings’‘personhood’ or ‘rational beings’

Objections and RepliesObjections and Replies

4. One Standard or Two? 4. One Standard or Two?

A.A. Men and women have same Men and women have same functions and capabilities but they functions and capabilities but they should be exercised in different should be exercised in different spheresspheres

Reply: Separate tends not to be Reply: Separate tends not to be equalequal• Restriction of women to private Restriction of women to private

sphere limits the development of all sphere limits the development of all capabilities (so internally inconsistent)capabilities (so internally inconsistent)

Also, what basis for assuming Also, what basis for assuming different spheres? Biological? Social different spheres? Biological? Social facts?facts?

Objections and RepliesObjections and Replies

B. List of functions and capabilities B. List of functions and capabilities should be different for men and should be different for men and women because they are differentwomen because they are different

Reply 1: Not supported by scientific Reply 1: Not supported by scientific evidenceevidence

Reply 2: Even if it were supported by Reply 2: Even if it were supported by scientific evidence, likely statistical scientific evidence, likely statistical distribution differences - not distribution differences - not threshold differences (and even if threshold differences (and even if threshold - only on narrow functions)threshold - only on narrow functions)

Reply 3: Not practically possible to Reply 3: Not practically possible to support this position with good support this position with good scientific evidence given socialization scientific evidence given socialization (high potential error in testing - err (high potential error in testing - err on side of caution and assume all on side of caution and assume all individuals have basic capabilities)individuals have basic capabilities)

NussbaumNussbaum

Human capabilities exert a moral claim that they should be Human capabilities exert a moral claim that they should be developeddeveloped

Underlying basis for accounts of ‘human rights’Underlying basis for accounts of ‘human rights’

Many social structures prevent people from expressing Many social structures prevent people from expressing these capabilities these capabilities • Ex/ Restrictions on women’s educationEx/ Restrictions on women’s education• Ex/ Restricted access to health care…Ex/ Restricted access to health care…

Health Care DistributionHealth Care Distribution

The neglected principle: JusticeThe neglected principle: Justice

Decision-making in health care:Decision-making in health care:

• MacroMacro level - governments level - governments Ex/ Health care fundingEx/ Health care funding

• MesoMeso level - health districts, hospitals level - health districts, hospitals Ex/ Organ waiting listsEx/ Organ waiting lists

• MicroMicro level – physicians, nurses level – physicians, nurses Ex/ Treating smokersEx/ Treating smokers

LiberalismLiberalism

Basic Introduction to Basic Introduction to Rawls & ‘Justice as Rawls & ‘Justice as Fairness’Fairness’

LibertyLiberty

EqualityEquality• Of RespectOf Respect• Of OpportunityOf Opportunity

Health CareHealth Care

1.1. Liberty Right OnlyLiberty Right Only

2.2. Right to Minimal CareRight to Minimal Care

3.3. Right to Equal AccessRight to Equal Access

4.4. Right to Equal HealthRight to Equal Health

EqualityEquality

LibertyLiberty

4 Options4 Options

1.1. Liberty Right OnlyLiberty Right Only

• No restrictions on accessing/providing healthcareNo restrictions on accessing/providing healthcare• No claim to assistance from othersNo claim to assistance from others• Buy what you can affordBuy what you can afford• No government involvementNo government involvement• Free market – all goods are subjective, no way of ranking Free market – all goods are subjective, no way of ranking

desires so use the market to order and rank prioritiesdesires so use the market to order and rank priorities

• Objections:Objections:• Duty to aid when no great cost?Duty to aid when no great cost?• Unfair to unlucky (persistent existing inequalities)Unfair to unlucky (persistent existing inequalities)• Not all goods are subjective – health is an objective good that Not all goods are subjective – health is an objective good that

all people need (Nussbaum)all people need (Nussbaum)

4 Options4 Options

2.2. Right to Minimal CareRight to Minimal Care

• Some government involvementSome government involvement Example: USAExample: USA

• Objection:Objection:• Costs (13.9%GDP vs. 9.5%GDP)Costs (13.9%GDP vs. 9.5%GDP)• (later)(later)

4 Options4 Options

3.3. Right to Equal AccessRight to Equal Access• ‘‘Single-tier’ (no private sphere)Single-tier’ (no private sphere)• Universal coverageUniversal coverage• Not specified: particular provisions or total level of health care that Not specified: particular provisions or total level of health care that

should be available should be available • Equality of effective opportunity to receive care (not merely equality Equality of effective opportunity to receive care (not merely equality

of formal legal access)of formal legal access) Example: CanadaExample: Canada

• Objection:Objection:• Too paternalistic (autonomy/liberty is limited)Too paternalistic (autonomy/liberty is limited)

Those people with discretionary incomeThose people with discretionary income Those health care providers who wish to sell their services outside the Those health care providers who wish to sell their services outside the

systemsystem

• Reply:Reply:• Not paternalistic if democratically chosen (our own choice to restrict Not paternalistic if democratically chosen (our own choice to restrict

liberty) ‘fair process’liberty) ‘fair process’• Not ‘taking away’ gross income if no entitlement Not ‘taking away’ gross income if no entitlement

4 Options4 Options

4.4. Right to Equal HealthRight to Equal Health• Fully egalitarianFully egalitarian• Aim: equal outcomes/resultsAim: equal outcomes/results

• Objections:Objections:• Excessively paternalistic - not enough regard for Excessively paternalistic - not enough regard for

individual autonomy/freedomindividual autonomy/freedom To everybodyTo everybody

• CostsCosts Too highly prioritizes health as a goodToo highly prioritizes health as a good Dismal society if all health needs met and no other goods Dismal society if all health needs met and no other goods

(quality of life)(quality of life)

GutmannGutmann

Rejects options 1 and 4, focuses on 2 and 3Rejects options 1 and 4, focuses on 2 and 3

Health care is different from other consumer goodsHealth care is different from other consumer goods

Argues for option 3 (right to equal access) because it Argues for option 3 (right to equal access) because it makes better sense than option 2 (right to minimal makes better sense than option 2 (right to minimal care) on three values:care) on three values:

1.1. Equal OpportunityEqual Opportunity2.2. Moral Equivalence of PainMoral Equivalence of Pain3.3. Self-RespectSelf-Respect

1. Equal Opportunity1. Equal Opportunity

Relationship between health and Relationship between health and equal opportunity is different than equal opportunity is different than the relationship between most the relationship between most other consumer goods and equal other consumer goods and equal opportunityopportunity

Like police protection and childhood Like police protection and childhood education, provides necessary education, provides necessary conditions for equal opportunityconditions for equal opportunity

Sometimes used to justify options 1 Sometimes used to justify options 1 and 2, but if taken seriously and 2, but if taken seriously requires option 3requires option 3

2. Moral Equivalence of Pain2. Moral Equivalence of Pain

Pain and suffering are Pain and suffering are always bad (and are always bad (and are equally bad in any equally bad in any person)person)

Option 3 takes this Option 3 takes this seriouslyseriously

The pain of the poor is The pain of the poor is ‘less bad’ in 1 and 2‘less bad’ in 1 and 2

3. Self-Respect3. Self-Respect

2-tier system 2-tier system undermines self-undermines self-respect of poorrespect of poor

Example: waiting in Example: waiting in line while others line while others bypassbypass

Example: self-respect Example: self-respect and suffrage (equality)and suffrage (equality)

GutmannGutmann

Principle of Equal Access to Health Care:Principle of Equal Access to Health Care:

““[D]emands that every person who shares the [D]emands that every person who shares the same type and degree of health need must be same type and degree of health need must be given an equally effective chance of receiving given an equally effective chance of receiving appropriate treatment of equal quality so long as appropriate treatment of equal quality so long as that treatment is available to anyone.” (542)that treatment is available to anyone.” (542)

Prudent aim: higher minimum in USAPrudent aim: higher minimum in USA

Irony: money and nonessential goods (egalitarian Irony: money and nonessential goods (egalitarian principle in an inegalitarian society)principle in an inegalitarian society)

Other QuestionsOther Questions

Liable for voluntary risk?Liable for voluntary risk?

Empirical Question – better physicians Empirical Question – better physicians migrate to higher tier if two-tier?migrate to higher tier if two-tier?

Canada Canada Health ActHealth Act

1.1. Public AdministrationPublic Administration: : the administration of the health care insurance plan of a 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; province or territory must be carried out on a non-profit basis by a public authority;

2.2. ComprehensivenessComprehensiveness: : all medically necessary services provided by hospitals and all medically necessary services provided by hospitals and doctors must be insured;doctors must be insured;

3.3. UniversalityUniversality: : all insured persons in the province or territory must be entitled to all insured persons in the province or territory must be entitled to public health insurance coverage on uniform terms and conditions; public health insurance coverage on uniform terms and conditions;

4.4. PortabilityPortability: : coverage for insured services must be maintained when an insured coverage for insured services must be maintained when an insured person moves or travels within Canada or travels outside the country; and person moves or travels within Canada or travels outside the country; and

5.5. AccessibilityAccessibility: : reasonable access by insured persons to medically necessary reasonable access by insured persons to medically necessary hospital and physician services must be unimpeded by financial or other barriers.hospital and physician services must be unimpeded by financial or other barriers.

- Government - Government of Canadaof Canada

Recent Challenge - Recent Challenge - Zeliotis/ChaoulliZeliotis/Chaoulli

Quebec patient - George Zeliotis argued that Quebec patient - George Zeliotis argued that his constitutional rights to life, liberty and his constitutional rights to life, liberty and security of the person were violated by a year-security of the person were violated by a year-long wait for a hip replacementlong wait for a hip replacement

Zeliotis brought his fight to the Supreme Court Zeliotis brought his fight to the Supreme Court along with a physician, Dr. Jacques Chaoulli, along with a physician, Dr. Jacques Chaoulli, who wanted the right to set up a private who wanted the right to set up a private medical business medical business

They asked the court to overturn portions of They asked the court to overturn portions of the Quebec Health Insurance Act and Quebec the Quebec Health Insurance Act and Quebec Hospital Insurance Act that prohibit buying Hospital Insurance Act that prohibit buying private health insurance for medically private health insurance for medically necessary servicesnecessary services

The Supreme Court of Canada has struck The Supreme Court of Canada has struck down Quebec's ban on using private insurance down Quebec's ban on using private insurance for services covered under Medicarefor services covered under Medicare

Zeliotis/ChaoulliZeliotis/Chaoulli

Four of the court's seven judges involved in the decision wrote that the 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:ban was in violation of the province's Chart of Rights:

"The evidence in this case shows that delays in the public health care "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 system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care." a result of waiting lists for public health care."

"The evidence also demonstrates that the prohibition against private "The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care health insurance and its consequence of denying people vital health care result in physical and psychological suffering that meets a threshold test result in physical and psychological suffering that meets a threshold test of seriousness." of seriousness."

But the country's top court was divided on whether the Canadian Charter 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-of Rights has been violated. One judge abstained so the vote was split 3-3. 3.

Dr. Albert Schumacher, president of the Canadian Medical Association, Dr. Albert Schumacher, president of the Canadian Medical Association, says the ruling could "fundamentally change the very foundations of says the ruling could "fundamentally change the very foundations of Medicare as we now know it.'' Medicare as we now know it.''

- - Sources: CTV & CBC NewsSources: CTV & CBC News

AnalysisAnalysis

On what basis do we justify our current health On what basis do we justify our current health care system?care system?

Options:Options:• Better funding current systemBetter funding current system• 2-tier system2-tier system• ……

SummarySummary

1.1. Human Capabilities (Nussbaum)Human Capabilities (Nussbaum)

2.2. Context of health care decisions & justiceContext of health care decisions & justice

3.3. Balancing valuesBalancing values

4.4. Health Care Distribution (Gutmann)Health Care Distribution (Gutmann)• Quebec Case & MedicareQuebec Case & Medicare

Next class…Next class…

Limits of bioethics, course themesLimits of bioethics, course themes Review for final, structure of finalReview for final, structure of final No posted lecture notesNo posted lecture notes Course evaluationsCourse evaluations

Reminder: Final Exam Reminder: Final Exam

Monday, Aug.15Monday, Aug.15thth 7-10pm 7-10pm

GB 304GB 304

ContactContact

Prof. Kirstin BorgersonProf. Kirstin BorgersonRoom Room 359S359S Munk Centre Munk CentreOffice Hours: Tuesday 3-5pm and by appointmentOffice Hours: Tuesday 3-5pm and by appointmentCourse Website: www.chass.utoronto.ca/~kirstinCourse Website: www.chass.utoronto.ca/~kirstinEmail: kirstin@chass.utoronto.caEmail: kirstin@chass.utoronto.ca