Health Care Anal (2015) 23:88–105 DOI 10.1007/s10728-013-0244-5 ORIGINAL ARTICLE
Health Care: A Brave New World Shelley Morrisette • William D. Oberman Allison D. Watts • Joseph B. Beck
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Published online: 14 March 2013 Springer Science+Business Media New York 2013
Abstract The current U.S. health care system, with both rising costs and demands, is unsustainable. The combination of a sense of individual entitlement to health care and limited acceptance of individual responsibility with respect to personal health has contributed to a system which overspends and underperforms. This sense of entitlement has its roots in a perceived right to health care. Beginning with the so-called moral right to health care (all life is sacred), the issue of who provides health care has evolved as individual rights have trumped societal rights. The concept of government providing some level of health care ranges from limited government intervention, a ‘negative right to health care’ (e.g., prevention of a socially-caused, preventable health hazard), to various forms of a ‘positive right to health care’. The latter ranges from a decent minimum level of care to the best possible health care with access for all. We clarify the concept of legal rights as an entitlement to health care and present distributive and social justice counter arguments to present health care as a privilege that can be provided/earned/altered/revoked by governments. We propose that unlike a ‘right’, which is unconditional, a ‘privilege’ has limitations. Going forward, expectations about what will be made available should be lowered while taking personal responsibility for one’s health must for elevated. To have access to health care in the future will mean some loss of personal rights (e.g., unhealthy behaviors) and an increase in personal responsibility for gaining or maintaining one’s health. S. Morrisette W. D. Oberman A. D. Watts (&) J. B. Beck Department of Management and Marketing, Shippensburg University, 1871 Old Main Drive, Grove Hall, Shippensburg, PA 17257-2299, USA e-mail:
[email protected] S. Morrisette e-mail:
[email protected] W. D. Oberman e-mail:
[email protected] J. B. Beck e-mail:
[email protected]
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Keywords Distributive justice Health care Responsibilities Rights Privileges Social justice
Introduction An increase in U.S. health care spending (from 18 % of GDP in 2010 to nearly 20 % of GDP by 2021 [18]) is projected to occur in a nation characterized by individuals with relatively poor health, a large uninsured population, overburdened primary care physicians, and an inconsistent medical infrastructure. The World Health Organization’s 2000 overall ranking of national healthcare systems placed the U.S. system 37th (out of 194 member countries), despite its having the highest per capita spending. The Commonwealth Fund’s study of seven developed countries’ health care systems placed the U.S. sixth in terms of quality but dead last in every other key category—efficiency, access, equity, and health outcomes [41]. The recently passed Patient Protection and Affordable Care Act (PPACA, also known as ObamaCare), though designed to provide access to 30 million currently uninsured individuals, will still leave another 20 million uninsured even after its implementation [26]. Continuous spending increases are unsustainable, and the current health outcomes are unacceptable. We make the assumption that the current state of the U.S. healthcare system results from a combination of a sense of entitlement to health care, coupled with a limited acceptance of individual responsibility with respect to health care and resultant health outcomes, and argue the relevance of two key questions: (1) is health care really a right? and (2) if so (or if not) how will that shape the future of the U.S. healthcare system? These questions push our discussion into a more fundamental area of social problem definition and analysis. Rittel and Webber [31] made the distinction between ‘tame’ and ‘wicked’ social problems. Tame problems can be clearly defined and though problematic, can be solved by scientific, engineering and technocratic tactics and proficiencies [31]. Public health, sanitation, electrification, and agricultural productivity are noted as largely solved tame social problems. Wicked problems are characterized by the way an expert determines its parameters and specifies its causes. Rittel and Webber [31] highlight ‘crime in the streets’ as a wicked problem due to the various and sundry explanations that have been identified by experts. A crime problem may be ascribed to too few police, too many criminals, inadequate laws, cultural deprivation, too many guns, a lack of opportunities, etc. When opinions regarding a social or environmental problem do not agree, an individual’s ‘‘world view’’ determines the explanation for the discrepancy, and thus the resolution of a ‘‘wicked problem’’. We believe this is fundamental to the problem of health care rights and health care delivery. Every crony capitalist, think tank expert, lobbyist, entitled client, and government bureaucrat has a particular ‘‘world view’’ and thus interprets the facts to fit their definition of the truth. Therefore, health care (a truly wicked problem) is defined by a competing cacophony of experts looking to divert resources to their world view solution (in a zero-sum-game world). A typical example of health care expert’s world view is when discussing the ‘‘costs’’ of health care. For example, Michael Porter proposes a solution to the
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health care spending dilemma that focuses on the mechanics of lowering the costs associated with the provision of health care [29]. To deliver the highest quality health care at the most affordable rates, it is necessary to understand the source of the costs—something that is poorly understood in the current system. The reason it is so poorly understood is due to competing definitions of what a health care ‘‘cost’’ is. For example, are education and prevention costs, savings or something else? Are intervention, vaccines and required policies (i.e., food labeling, inspection, etc.) costs, savings or something else? Because even experts cannot agree on what constitutes a health care cost, it is extremely difficult to lower or even control many of these items. Another point of view focuses on who bears primary responsibility for health outcomes, the individual or society; an argument which has implications regarding who should bear the lion’s share of responsibility for offsetting the costs of health maintenance. Ignaas Devisch [13], for example, argues for the concept of ‘‘coresponsibility’’, which implies that the individual and society are equally responsible for both health outcomes, as well as for paying the bill associated with those outcomes. Underlying these views is the assumption that health care is a right and the problem lies in structuring a more efficient system. But the real problem is—whose definition of ‘right’ will define the wicked problem of health care. According to the Stanford Encyclopedia of Philosophy, rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory [42]. Yet, there is considerable disagreement between scholars about the purposes, definitions, and principles of the concept of rights. For example, issues such as natural versus legal rights, claim rights versus liberty rights, positive versus negative rights, or individual versus society rights have never reached consensus. Many quasi-government organizations (i.e., United Nations, World Health Organization, Greenpeace, and other NGOs) have made proclamations about the ‘rights’ of all humans to health care. This is a normative statement, but does not address the current state of universal health care access, affordability, or rationing. We will utilize a more descriptive (i.e., positivist) view of rights to health care. We will view health care theories, beliefs, and propositions in a more reality based context. For example, rather than become bogged down in endless philosophical, ethical, and moral arguments about the rights of individuals to health care, we will rely on the current legal framework of the society. In other words, governments ‘secure and protect inherent rights’ for all citizens. Additionally, they create laws and statues granting certain privileges for citizens. We realize that laws can be changed, but the only way to attack this problem is to recognize a set of rules to which all participants must agree. Thus, our ‘‘world view’’ of entitlements to health care is the codified statutory legal privilege to health care. ‘‘Rights’’ are social contracts between a government and its citizens that are irrevocable and secured for all citizens. We will examine more expansive definitions of rights to health care, but that is just to contrast and more specifically define our reasoned definition (see below). This paper focuses on the proposition that health care is a right afforded to all U.S. citizens, and argues that even if individuals have a right to be provided health
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care (in some fashion) by the rest of society, those individuals accessing that right are accountable to a large degree for reducing the price that society must pay to provide that level of health care. This paper will first present a broad general discussion of the concept of rights and their evolution, and then address health care rights specifically. We close with a prescriptive view of health care as a privilege granted to those who meet the prerequisites of personal responsibility.
Rights Moral Reasoning In his latest book, Jonathan Haidt [21] argues that moral reasoning is evolutionary. In other words, our moral responses are instinctual and simply attempts to survive in a brutal, unforgiving environment. These instincts are intuitive and involve very little (if any) reasoning or forethought. Instead, we are much like our ancient ancestors who used morals as a method of gaining societal cooperation to help keep the tribe from extinction. We (i.e., mankind) have become so good at instilling these moral values that we have been able to dominate our planet, while simultaneously in a state of perpetual disagreement with those not sharing the same moral customs. The basis for these group moral instincts is the cultural psychology within a given society. Much of Haidt’s theory of moral reasoning is based on the findings of Richard Shweder [36], a cultural anthropologist and one of the founders of cultural psychology. Cultural psychology is a field of psychology which assumes that culture and mind are inseparable, and that psychological theories grounded in one culture are likely to be limited in applicability when applied to a different culture. As Shweder writes, ‘‘Cultural psychology is the study of the way cultural traditions and social practices regulate, express, and transform the human psyche, resulting less in psychic unity for humankind than in ethnic divergences in mind, self, and emotion’’ [36, p. 72]. Shweder explores the ways in which societies order their institutions and the lives of their members. The big question is how to balance the needs of individuals against the needs of society at large. Most societies have chosen the sociocentric method—placing the needs of the groups and institutions first, and subordinating the needs of the individuals [23]. In contrast, the individualist answer places individuals at the center and makes society the servant of the individual [37]. The sociocentric method dominated the world until the Enlightenment when the individual became supreme and society and its institutions became second-class citizens. There were very few exceptions to the sociocentric method of society in the ancient world. One of many minor exception(s) was the Code of Justinian (i.e., Corpus Juris or Codex of Justinian), which was a fundamental work of jurisprudence issued from 529 to 534 by Justinian I, Emperor of the Eastern Roman Empire. The Code was a compilation, by selection and extraction, of imperial enactments to those dates. These texts were intended to be the sole source of law in the Eastern Roman Empire. To what extent the Code or any of its parts was actually implemented, whether in
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the east or (with re-conquest) in the west, is unknown. However, it was not in general use during the Dark Ages. The Codex of Justinian did protect some individual rights of Roman citizens, but it was primarily a code of civil procedure much like other statutory laws created by other civilizations (see Hammurabi Code, Torah, Tang Code, Manu Smriti, etc.). Furthermore, while a few civilizations codified civil behavior in limited geographic locations, the vast majority of humans lived in small isolated societies. Perhaps Jared Diamond said it best—for the past six million years humans have lived in traditional societies where cultural aspects of daily life (i.e., marriage, child rearing, care for elderly, war, peace, religion, attitudes to strangers, etc.) were developed uniquely and with the idea of survival [14]. Over time, laws, governments and individual rights developed as a means to direct society in a more orderly fashion. More recently, civil laws protecting the individual rights of citizens much like our dietary, health, occupation, and living norms have become more common. The idea of individual rights, a consumer culture, or minority rights became more important, especially after the horrors of the ultrasociocenteric fascist and communist movements [21]. Today, culture (in a fractured multicultural world) determines what we feel is significant [23]. More importantly, culture drives our instincts to determine what we hold sacred. Haidt [21] advises to ‘‘follow the sacred’’ to determine what societies believe—even in the face of overwhelming evidence to the contrary. For example, in many sub-cultures life is sacred and must be saved at any cost. This sacred moral reasoning impacts many health care resource decisions which may not be in the best interests of either the individual or society. Cultures that value the elderly can justify inordinate amounts of spending on people who have far fewer years ahead than behind them. Nevertheless, through an application of the moral reasoning that every life is sacred we can easily understand the process through which a concept of a right to health care as required to maintain life could develop. It seems reasonable that each of these treasured lives should be maintained and enhanced by the societal provision of at least a basic level of health care to all individuals. The question remains, however, as to whether or not society has the right to ask these individuals for anything in return. Health Care Rights: An Evolution Commentators have debated the right to health care notion for decades. Those of a libertarian bent tend to limit any health rights to negative at best. Indeed, in the U.S., a number of federal laws going back to the late 18th century do seem to recognize at least a negative right to health [8]. The assertion of negative right to health would imply a right to be free from the ‘‘unhealthy interferences of others’’ [3]. However, it is not clear what the practical implications of a negative right to health or health care would be, or if, in fact, it would support only limited government activity. As Beauchamp and Faden [4] point out, proponents of a narrowly constructed negative right to health (which would permit government intervention only to protect individuals from socially-caused, preventable health hazards) assume that these hazards are clearly defined. This is not necessarily the case and negative rights reasoning has been used to support extensive government health care benefits based
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on the argument almost all major diseases are socially caused [4], as well as strong limitations on government involvement [17]. A moderate version of a positive right to care is based on the idea of a ‘‘decent minimum’’ level of care. Buchanan [5] contends that a ‘‘facile’’ consensus exists among most of those involved in policy and philosophical debates on health care rights is that people have a right to this level of health care. He notes three attractive features of the decent minimum position: (1) a decent minimum can be defined relative to individual societies based upon available resources and cultural preferences, (2) it acknowledges a health care right without the extreme consequences of the equal access position (see below), and (3) it recognizes the necessity of a limit on the right to health care. Stronger versions of a positive right to health care include assertions of entitlements to the best possible health care or to equal access to health care. Elhauge [15] describes the first version as moral absolutism, in which any attempt to weigh health against a monetary cost is considered immoral. The second version, the right to equal access, is defined by Gutman [19: 543] as the principle 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.’’ A strictly upheld right of equal access would entail restricting the ability of those with the means to purchase ‘‘more’’ health care than that received by the poorest person in society, or it would essentially collapse into the moral absolutist position. Establishing a right to health care in free market societies requires establishing the proposition that health care is ‘‘special’’ or different—or else why would people not have a ‘‘right’’ to an endless variety of goods and services? One of the best known theoretical arguments was provided by Daniels [10]. Daniels maintained that Rawls’ [30] theory of justice, or just about any theory of distributive justice that included an equality of opportunity principle, would have to recognize health care needs as special and distinct from other social goods. The reason is that health is necessary for ‘‘normal species functioning.’’ (Health care needs are defined as ‘‘things we need to maintain, restore, or compensate for the loss of, normal species functioning [10: 160].’’) In order for individuals to truly possess the fair equality of opportunity necessary for justice, they must possess normal species functioning. According to Daniels, health care institutions must be seen as parallel to the educational system among basic institutions that provide a framework of opportunity. Rawls did not address health care, assuming ‘‘idealized,’’ fully functioning individuals. Daniels extends Rawls and sees health care institutions as charged with bringing this ideal as close to reality as possible. Daniels envisions four layers of health care. The first, which might be accepted by limited, negative right proponents, includes public health matters, environmental and safety standards, preventative medicine and education, and food and drug regulation. The second layer includes medical treatment and services to restore normal functioning. The third layer would address longer-term health problems and attempts to return people as close as possible to normal function. The fourth, which Daniels concedes may not be primarily related to justice, is terminal care and care for the permanently disabled.
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Daniels would address the difficult problem of rationing healthcare, in the presence of resource constraints and a lack of social consensus, on distributive principles by ensuring procedural justice in coverage decisions [11]. At the micro level, when individual coverage decisions are being made, four conditions are held by Daniels to be necessary to establish the fairness of healthcare allocation decisions: publicity, relevance, appeals, and enforcement [12]. A decision must be transparent (condition of publicity), based on a soundly reasoned argument (condition of relevance), and provide the opportunity to appeal that allows broader participation and input. Utilitarian reasoning has also been employed in support of a societal obligation to guarantee access to health care. Utilitarian theory, derived from the work of Jeremy Bentham and John Stuart Mill [33], is a consequentialist approach to ethics that is concerned with the aggregate maximization of individual utility. As such, it forms the underlying moral justification for free market economies. Given the assumption that the efficient functioning of a free market system maximizes aggregate utility, government intervention in the market is seen as justified only to correct ‘‘market failures’’ that undermine aggregate utility maximization [45], such as the externalization of costs or the ‘‘free-riding’’ problems associated with the provision of public goods [34]. The necessity to control the externalities of disease and the cost of free riding by the uninsured provides the rationale for the most direct forms of the argument in the health care arena [15]. A more subtle utilitarian argument deals with the distinction between beneficence and obligation. Even the strictest libertarian would support charitable contributions for health care assistance to the poor [5]. However, it can be argued that the any collective effort on the scale required to provide even a decent minimum would be crippled by free-riding. Even those inclined to contribute would be discouraged by the perceived futility of the attempt. Only a societally recognized obligation backed by state power could successfully generate the necessary resources. Buchanan argues that none of the theoretical rationales for a positive health care right offered by various proponents have adequately established the existence of a universal right to even a decent minimum level of health care. According to Buchanan, most participants in the policy debate do not even understand what it means to assert a person has a right to health care, as opposed to asserting that a person ought to have health and others ought to provide it (the latter is an assertion of an obligation of beneficence or charity). Most importantly, the existence of a right implies that claims to that right can be backed by coercion from authorities if necessary and the lack of necessary sanctions or coercion by authorities is immoral in itself. Although Buchanan rejects the attempts to develop a single theoretical rationale for a right to a decent minimum of health care and does not accept the existence of a universal right to health care, he nevertheless believes that there is a ‘‘sound justification of an enforced principle guaranteeing a decent minimum of health care for everyone [5:66].’’ This he bases on a ‘‘pluralistic’’ argument. According to this reasoning, the combined weight of special rights claims (from unfairly disadvantaged groups and those who have sacrificed for the social good, such as veterans), arguments based on prevention of harm and prudence (essentially an extension of
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public health measures), and arguments for ‘‘enforced beneficence’’ (based on a rationale similar to that for the provision of public goods) places the burden of proof on libertarians to establish that the enforced principle is a violation of moral rights. Elhauge also assessed the various rationales and reached a similar conclusion— none were sufficient to establish a societal obligation to provide guaranteed health care. Like Buchanan, Elhauge proposed a nontraditional rationale. He identifies an ‘‘intangible’’ externality, the moral discomfort caused by seeing the misery of our fellow man. This makes health care different and justifies direct support for health care rather than a less restricted form of income redistribution. Even if we saw the poor as unwisely spending their limited resources on items other than health care, we would still feel obligated to help diminish their suffering. The fact that, unlike other forms of redistribution, providing health care ‘‘does not seriously undermine’’ [15:1490] the incentives of the recipients to engage in productive activity makes it difficult to deny. The conclusions drawn by Buchanan and Elhauge regarding the intangibility of health care rights and the essentially negative lines of reasoning necessary to establish them is disconcerting given the increasing proportion of national wealth projected to be devoted to health care in the coming decades. The acceptance of the moral obligations posited by these authors implies an even greater proportion of the national income going to the health care sector than currently projected. The implications of health care expenditures which achieve a sacred aura and are placed beyond the realm of political debate by rights-based arguments will be staggering for even the most economically advanced societies. As we move into the modern era the concept of at least basic health care as a right seems to have gained traction when the United Nations included health care as a basic human right. Health Care Rights: The Modern Era (Post WWII) Those championing the concept of health care for all, particularly in a wealthy developed country, view it as a birthright. There are potentially two problems with that point of view—one theoretical and one practical. The unalienable rights (Life, Liberty, and the Pursuit of Happiness) referenced in the U.S. Declaration of Independence did not need to be administered by a government or private organization. In fact, they were considered to be granted by the Creator to individuals. Thus, if health care is a right similar to the other endowed rights, then we would not need manufactured human institutions to deliver it. From a practical point of view, granting a right and providing actual health care are two different concepts. In cases where resources are constrained, it may not be possible to provide health care even if it is considered a basic human right. The Haitian constitution provides for health care but Haiti is unable to provide it to its citizenry due to both financial and medical infrastructure constraints. The right to affordable, accessible health care for all is not a new concept, having been formalized by the United Nations (UN). The UN adopted the Universal Declaration of Human Rights in 1948 and among its 30 articles is included specific language regarding healthful conditions and health care. Article 25 states the following:
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1.
Everyone has the right to a standard of living adequate for the health and wellbeing 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. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection [44].
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Also formed post WWII, the World Health Organization (WHO) declares the ‘‘enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’’ to be universal. Their very specific charter identifies health as germane to peace, security, emotional well-being, and happiness and broadens the definition of health to include ‘‘physical, mental, and social well-being’’ [48]. Amnesty International uses the WHO statement as a basis for objecting to practices, which deny access to health care in addition to practices which contribute to poor health (e.g., torture) or deny individual rights (e.g., death penalty). At a national level, most countries (67.5 %) do recognize health and health care as a fundamental right of its residents as evidenced by inclusion in their constitutions [24]. The recognition of health and health care as a right to be enjoyed or an obligation to be provided grew significantly after the UN and WHO declarations were adopted. Of the countries in Kinney and Clark’s [24] study with a constitution written before WWII, 43 % had health/health care provisions compared to two-thirds today. It is important to note that while most countries recognize health and health care as a fundamental human right, it is not clear that all of these countries live up to their constitutions in practice. Economically poor countries can espouse beliefs that are simply not affordable to provide. Although we have presented a reasoned, logical, and practical view of rights in general, and health care as a right specifically (if not practically), there is an alternative view that health care is not a right. Libertarian scholars such as Robert Nozick and Friedrich Hayek offer three basic arguments against health care rights (i.e., social or distributive justice theory). The first argument is that it is not realizable. For example, just because the UN adopted the Universal Declaration of Human Rights does not mean that there are the economic resources and the political will to adequately meet these proscribed rights in most under-developed countries or even many developed countries. The violation of a person’s individual rights is the second argument [32]. Here the argument is that government is coercing individuals to pay taxes to support something that is not a natural right (i.e., health care). The state’s initiation of force to induce its citizens to pay taxes for such non-natural rights is a clear violation of its citizens’ specific individual rights. The third argument, made by both Robert Nozick [28] and Friedrich Hayek [22], purports to show not merely that the idea of social justice is immoral, but that it is theoretically disputable. Their arguments can be translated into a set of statements: •
The accumulation of resources (wealth, income, health insurance, etc.) is unjust if it results from the unjust (deliberate) actions of individuals.
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In a free society there is no ‘‘absolute conveyer’’ responsible for the distribution of resources. Instead, individuals make numerous decisions and interact with other persons. These decisions are not unjust, but in aggregate determine the distribution of resources in a free society. Given these two facts (except for rare circumstances—theft, fraud, duress) the distribution of individual resources cannot be unjust.
In other words, the need for social justice is only necessary if an absolute conveyer unjustly distributes resources throughout society and/or the actions of individuals interacting with each other are unjust. Neither of these two scenarios exists in a free society. Instead, the spontaneous order of numerous individuals produces inequalities within a society, but this is a result of human actions, not human design. Hayek realized that there is one flaw in the argument. That flaw appears in the second argument. Yes, the distribution of holdings in a free society is determined mostly by the countless ordinary decisions of innumerable individuals. But it is also a product of the social and legal rules that govern and structure those decisions: rules that determine the contours of property rights and contracts, that determine whether there will be a social safety net and what form it will take, that determine the extent, limit, and uses of taxation, and so on. These rules might be just or they might be unjust. If they are unjust, we could intervene to change them, even if we did not deliberately create them. One way of determining which rules are just is to think about the effects that different sets of rules will likely have on the pattern of distributions within a society. We might not know how any particular individual will fare under regime X versus regime Y, but we can be reasonably confident about certain ‘‘pattern predictions’’. We can use this information in constructing a theory of social justice. We can have a theory of social justice, in other words, that holds that a given set of legal rules is just only if it is expected effects on certain social groups meets a certain standard. Health Care is NOT a Right? Although the Declaration of Independence and the United States Constitution are cited as the source of our legal rights, some scholars feel that the documents are separate instruments [16] The Declaration of Independence is a radical document that depicts the eternal rights of man while the U.S. Constitution depicts the need for social value over personal liberty. Other scholars believe that the documents are a continuation of our founding fathers vision for the country [2]. Dr. Armn’s concept is simple, the Declaration of Independence and the U.S. Constitution are inextricably linked, and such a bond should never be severed. His explanation is that the inalienable (God given, self-evident) rights that are spelled out in the Declaration which were the genesis of the Revolution are cemented in the Constitution. Armn argues that the Declaration is the ‘‘why’’ of freedom and the Constitution is the ‘‘how’’ of freedom. Thus, the universal rights (life, liberty and the pursuit of happiness) defined in the Declaration domain of all men and provided by the Creator. The United States Constitution explicitly states the rights of citizens
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provided by the government (Bill of Rights) and the powers of the government (Articles I and II of the Constitution). All other rights reside with the states. Nowhere in these documents is there a stated citizen right to health care. The best example of this fight has been the recent Supreme Court Decision on the Patient Protection and Affordable Care Act. While the court upheld the act, the key provision in question—the individual mandate (requesting all Americans to buy health insurance or pay a fine) failed to pass the Commerce Clause (Section 1, Article 8 of the United States Constitution). Thus, this act was un-constitutional and Congress had no legal right to demand all Americans purchase health care. To get around this conflict Chief Justice Roberts declared that the fine amounted to a tax and thus, Congress had the right to tax its citizens. All of the maneuvering points to one undeniable fact, the Constitution does not specify or imply a right to health care and it is the law of the land. At best, health care is not a right, but a privilege paid for by taxes. Health care should be viewed as a product/service and managed as such. It is not a moral right, nor, as many conservatives claim, a privilege. Treatment is a product and is ‘‘purchased’’ via the government, insurance, or by voluntary exchange. Given this reality, health care cannot be a right because government support of health care means that it decides who will receive this ‘‘right’’ and what level of support its stakeholders will enjoy. Thus, health care is not a right because the ‘‘ruling class’’ determines who will enjoy the ‘‘privilege’’ of free care. Rights are principles of freedom. That is rights are normative rules about what is allowed of people or owed to people according to a legal system or social convention. Entitlements (such as health care) may be set-up via social convention or set of laws (i.e., Affordable Care Act), but they are not allowed or owed to all citizens. There is no right to health care, just as there is no right to happiness. There is a right to pursue happiness, just as there is a right to pursue heath. We have the right to pursue health in any legal manner. For example, we can exercise, eat healthy foods, reduce stress, and/or get plenty of rest. Or we could hire the best health care professionals and live life in a more un-healthy manner. Finally, we could throw caution to the wind and live un-healthy lives and see what happens. The idea is that we can pursue health in numerous ways, but we do not have the right to health or health care. A privilege is something that is granted to someone. It is discretionary and can be accorded to anyone or everyone, but it can be revoked at any time because it is an unconditional act. For example, no one believes that home ownership is a right, but it is ridiculous to assume that it is a privilege, no one grants you the privilege for the capital to own a home. Instead, if you own a home you must take the responsibility to finance and repair the home, just like health care. Governments secure and protect our rights. Thus, rights are inherent, irrevocable entitlements held by all citizens or all human beings from the moment their births. A privilege is a special entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. It can be revoked in many circumstances. Rights are not statutory and cannot be rescinded, while privileges are created by civil authority and can be modified as circumstances dictate. The right/privilege problem comes down to one undisputed fact—governments through social contracts determine what are irrevocable rights and what privileges
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they will grant to citizens. The problem is rights are not fungible—they cannot be divided-up into units for each citizen. They are secured for all citizens or human beings and are bestowed and received in their totality. For example, how would you break-up the right of liberty. When the government decides that it wishes to grant health care to its citizens it is providing a privilege and it will decide who and how much its citizens will receive. It is a privilege because the government will create this entitlement via statutory law, the amount can be proscribed, and each citizen can receive differing degrees of the privilege. The problem with government privileges is the one of fairness. In other words— how is access to the privilege guaranteed? The most egalitarian manner would be equitability, but we live in a different world. Access to health care in Canada and Britain (both single payer systems) illustrate that the wealthier citizens receive better care than the poor. This is due to many factors, including the fact that wealthy citizens in both countries have access to private insurance, specialists, and health care facilities that are not available to other citizens because they are willing and able to go outside the system to acquire additional health care. Wealthy Canadians traveling to the United States for all types of medical procedures are common place. In the United Kingdom, many doctors have private practices that cater exclusively to the wealthy. Additionally, UK researchers have stated that the ‘‘health-gap’’ between rich and poor has never been so wide. Writing online in the British Medical Journal (BMJ), researchers from the Universities of Sheffield and Bristol, said: ‘‘The last time in the long economic record that inequalities were almost as high was in the lead up to the economic crash of 1929 and the economic depression of the 1930s’’. While this ‘‘health-gap’’ could be caused by many issues (i.e., education, occupation, life-style, etc.), one thing is certain—the single payer system and universal access to health care is not closing the gap between rich and poor health outcomes [43]. Alter et al. [1] reported the same results in Canada. The message is clear—health care does not keep people healthy. Woodlander & Himmelstein [47] believe that the single payer system of health care is the most efficient and cost effective and would provide the best service for all concerned. They specifically mention six reasons why the United States would benefit from such a system—cut out the private insurers, pay hospitals as we do fire departments, end the medical arms race, right-size the physician work force, negotiate drug prices from economies of scale, and cap health care executive salaries. Unfortunately, economic theory does not support their research. For example, in any single payer system everyone (theoretically) receives the same care, but some folks might demand less care and others might want more care. Consumers cannot maximize their utility functions in a single payer system (no matter how efficient). Next, consumers must rely on government to make all choice decisions. Government decides how much health care we consume and it is impossible for any government to correctly match multiple utility functions to the supply of health care [6]. Next in any society with rising incomes there will be increasing demand for normal goods and higher increases for luxury goods (and health care is the ultimate luxury good). The income elasticity of demand for health care is approximately slightly greater than 1. That means that per capita health care spending rises in proportion to increases in per capita income (no matter what). Add
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to this economic reality such things as asymmetric information, an aging population, doctor/supplier induced demand, defensive medicine, medical ethics, the moral hazard problem, overconsumption, and poor education/lifestyle practices and it is easy to understand our expensive health care system—it is a wicked problem with multiple experts pointing to their solution. Finally, government (without pricing mechanisms) will have to resort to some form of health care rationing because universal service will lead to over use of this public good. Several studies have compared health outcomes across the United States and Canadian populations. Guyatt et al. [46] investigated 38 studies of US and Canadian populations of various health care problems. Results were mixed, but generally Canadian patients fared somewhat better in these studies [20]. The Lasser et al. [25] and Sanmartin et al. [35] studies reported similar results—citizens in the United States were less likely to have access to health care than Canadian citizens and this is especially true of poorer United States citizens. We can hardly disagree with the results reported in this research, but it is limited in scope and therefore, misleading. First, Canadian and UK patients have long waits for certain diagnostic procedures and surgeries. This is due to a lack of capital spending. To illustrate, there are only 20 % as many magnetic imaging machines per million people in Canada and the UK as in the United States [27]. This is hardly health care ‘‘on demand’’. Additionally, many procedures are not available to citizens in single payer systems based on age. For example, hip and knee replacements are not performed on Canadian and UK citizens after 77 (no matter how healthy). This rationing of health care is seen across the board, from organ transplants to open heart surgeries to expensive treatment therapies. Next, American citizens (on average) suffer far more than their Canadian and UK counterparts from lifestyle diseases (i.e., diabetes, obesity, stress, etc.). Thus, comparing medical outcomes across countries is methodologically invalid—United States citizens are unhealthier no matter what type of health care access they receive. As Squires illustrates in the United States higher health care costs can be attributed to higher prices, greater innovation, and poorer health of the population [39]. Higher prices are driven by health care innovations—50 % of all health care innovations (drugs, equipment, procedures) are created in the United States [27]. Finally, research indicates that government intervention in health care will not lead to better results or lower costs [7]. So in the end, health care is a product—one that must be acquired like many others in a market society—through voluntary exchange. The problem with this exchange is due to the unusual nature of health care. Problems such as asymmetry of information between consumers and providers, integration of insurance and health care providers, over allocation of resources to health care, and how health care is financed make it nearly impossible for citizens and the county to consume and produce health care efficiently. Still it is worth remembering that health care is a service (complicated), but still a consumer service.
Health Care in the Future: A Realistic View Recognizing that health care is needed and we have limited resources to do so, it is important to develop a viable health care system going forward. Cutting costs,
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introducing new technologies, and improving efficiencies in the health care system would all contribute to improved health care delivery, but changes in behavior (both of the physician and the patient) are more likely to lead to improvements in health over the long term [9]. Therefore, this paper concentrates on preventable chronic conditions where medical and lifestyle compliance are clearly linked to positive health outcomes. The basis for this assumption are three key pieces of information: (1) There are four chronic medical conditions that top the list of most expensive diseases to treat in the US today—heart disease, cancer, mental disorders, and arthritis [38], (2) chronic conditions amount to about 75 % of medical expenditures and (3) half of all adults in the US have at least one chronic medical condition [40]. Collectively, this paints a picture of medical costs that can be contained by a combination of access to health care, compliance to that treatment, and gaining or maintaining a healthy lifestyle. Although, there are health care costs associated with traumatic accidents and genetic abnormalities, this paper focuses squarely on where the bulk of the health care dollars are expended. When we re-consider the list of most expensive diseases to treat it is clear that many of these ailments are caused or exacerbated by an unhealthy lifestyle. There may a genetic propensity toward any of the top four, but with both medical and lifestyle intervention, they are less likely to be life-threatening, debilitating, or costly. The Center for Disease Control (CDC) provides four key behaviors that are largely responsible for these chronic conditions—tobacco use, lack of/limited physical activity, poor dietary habits, and excessive alcohol use. This information suggests individuals can and should have responsibility for the controllable aspects of their health as a condition for receiving health care dollars. Therefore, a sustainable model going forward balances the right to health care with responsibility for maintaining one’s health. As has been previously noted, good health may be aided by good health care, but good health care does not guarantee good health. It is only part of the equation. In Fig. 1, we have depicted the balance between rights, privileges, and constraints in the U.S. regarding health care. Rights have been classified as absolute individual rights, protective public health privileges, and no privileges. Under absolute individual rights, people would get the care they both need and want. Protective public health privileges are designed to insure the safety of the general population and provide some amount of basic health care. No individual privileges would push the responsibility for health care to the individual. The oval labeled ‘‘US’’ represents where the U.S. is today. Although a nation of means, there are some resource constraints in terms of health care. The government does not provide and fund all health care in the U.S., but they do provide services through Medicaid, Medicare, and military service. In addition there are a number of public health initiatives designed to improve health (see above). The oval labeled ‘‘US Realistic’’ portrays a more realistic view of health care constraints as we move forward. One key complaint of recently passed Patient Protection and Affordable Care Act (PPACA) is that it is not affordable to the government should everyone who is eligible take advantage of their privileges. While far more people will have access to health care than now, we know that everyone eligible person will not take advantage of every offered service. Still, the expansion of services will likely tax
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Fig. 1 Health care rights, privileges and constraints
resources more as we move forward. The oval labeled ‘‘US Unrealistic’’ depicts the health care situation, as many believe it should be—fully funded access to health care for every individual. While admirable, that scenario would be unrealistic, unaffordable and unsustainable. Figure 2 depicts the balance of Health Care Rights, Privileges, and Freedoms. In addition to financial and infrastructure restraints, we must also consider the rights and responsibilities of individuals as stewards of their own health. Although health and health care are two distinct concepts, we know that individual habits can contribute to the state of one’s health. Should individuals be allowed to abuse their health and still have access to health care? While smoking in the workplace has been virtually banned in the U.S., some employers have also banned employees from smoking….period. Given the clear link between smoking and poor health, companies, which provide health insurance, may seek to lower their costs by banning smoking completely. There are certainly arguments as to whether a firm can play ‘Big Brother’ to its employees, but the counter argument is that employees are free to seek employment at a less restrictive company. When the government funds insurance, constraints on personal health habits may also ensue. The PPACA will allow higher insurance premiums to be charged to tobacco users. If there was an Absolute Individual Right to health care, there should also be full responsibility for health. To clarify, those who take care of their health as directed would be entitled to health care. Those who don’t would lose access to health care. Thus, it would require participants to not be overweight, to be moderate or nondrinkers, to not partake in illegal drugs or in the inappropriate use of legal drugs, to exercise regularly, to eat the appropriate amount of fruits and vegetables, and so on. This so-called ‘nanny state’ approach may be challenging to enforce but would help to lower the cost of health care while increasing overall health. We depict the U.S. as moving to limited personal responsibility as a realistic approach for access to the privilege to health care. Returning to the earlier example of firms banning smokers from employment, a more sensible approach may be to
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Fig. 2 Health care rights, privileges, and individual freedoms
identify smokers and provide smoking cessation aids. Should this not be successful after some period of time, rather than be banned, smokers could be asked to pay more for health care than non-smokers. The oval labeled ‘‘US Unrealistic’’ depicts a scenario where individuals would be free to take care of their health as much or as little as they wish and still have access to health care. Taken to the extreme a drug addict would not seek treatment but instead would be provided drugs in a safe clear environment where they would not have the potential to harm other members of the public. Under a more restrictive personal freedom scenario (‘‘US Realistic’’), an addict would be required and provided a means to end their addiction(s). They may be given more than one opportunity to address their addiction, but access to addiction treatment would have limitations. In the future, everyone will not get everything. Those with financial means will retain their ability to access a plethora of services. Those relying on employer or government-sponsored health care will be subject to guidelines about what makes the most sense, medically. Protocols for common illnesses and injuries can be established to both streamline care and reduce costs. Exceptions to generally accepted care will be done based on medical necessity, not on individual desire. In short, health care is not and should not, be free. There are financial and personal costs in order to get or remain healthy. A sustainable health care system understands there are limitations on what could and should be delivered.
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