Justice and Profit in Health Care Law

A Comparative Analysis of the United States and the United Kingdom

Sabrina Germain

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509902729
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The issue of justice in the field of health care is becoming more central with concerns over access, cost and provision. Obamacare in the United States and the Health and Social Care Act 2012 in the United Kingdom are key examples illustrating the increasing pressure put on governments to find just and equitable solutions to the problem of health care provision. Justice and Profit in Health Care Law explores the influence of justice principles on the elaboration of laws reforming health care systems. By examining the role played by key for-profit stakeholders (doctors, employers and insurers), it tracks the evolution of distributive norms for the allocation of health care resources in western welfare states. Essentially, this book sheds light on the place given to justice in the health care law-making process in order to understand the place we wish to give these principles in future health care reforms.

1

Introduction

The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed, the world is ruled by little else … I am sure that the power of vested interests is vastly exaggerated compared with the gradual encroachment of ideas.¹

John Maynard Keynes

Vegetables have recently taken over discussions around issues affecting health care systems. A line of argument suggests that public powers should no longer be addressing health care, and like peas or broccoli, the allocation of these resources, to finance or provide health care services, should be left to the market. Proponents of this approach believe that health care is no more special than vegetables in the achievement of good health,² therefore why should it not be bought off the shelf? For instance, Jonathan Haidt, advocate of the ‘vegetable rhetoric’, explains that central to making peas available to the general public is the chain of manufacturers and suppliers involved in their production and marketing. Farmers, truckers, supermarket employees, and even miners and metalworkers contribute to making the peas available at an extremely low price. He attributes the affordability of the produce to the presence of competition among the suppliers at every stage of production and to the innovative techniques that helped reduce the aggregate price of the can. In a similar manner he claims that the allocation of health care resources would be most optimal and the price lowest if it were treated like a can of peas, i.e. left in the hands of the market and subject to competition.³

Similarly, vegetables have also made their way to the American Supreme Court during discussions pertaining to the validity of President Obama’s Affordable Care Act (ACA).⁴ The purchase of health care insurance was then compared with the consumption of broccoli. Justice Scalia argued that although imposing the purchase of vegetables on American citizens may produce good health outcomes, it would be unimaginable and ludicrous to do so. Nevertheless, as pointed out by Justice Ginsburg, health care presents attributes that have no parallel in modern life, since ‘the inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions non-existent in other markets. That is so … of the market for broccoli as well’.⁵

Granted it may be argued that health care is no more special or unique than other determinants of health, such as nutrition, environment or safety, but it is greatly reductionist to equate it to a consumer good. For after all, health care is not just a vegetable. The importance it has in our lives and communities makes it a worthy subject of justice. Indeed, according to Norman Daniels, even in those societies, which tolerate or support significant inequalities in the distribution of social goods, most of their members feel that an equal distribution of health care resources is still justified.⁶ The moral significance of health care derives directly from the importance of health in our lives. Its importance does not stem from the opportunity or advantages it creates but from its potential to alleviate suffering and absolute harm.

The indisputability and seriousness of health care needs therefore make the distribution of health care resources stand out from the distribution of any other good. It is the fundamental and critical nature of these resources that requires that their distribution follow principles of justice.⁷ This is precisely why political philosophers have become interested in theorising the just allocation of health care resources. More specifically, the feeling that available resources are now seriously out of synch with our needs mandates that principles of justice be used for a better allocation.⁸ Unfortunately, however, political philosophy seems to be at a distance from the reality of law and policy.⁹ The waves of health care reforms experienced in Western welfare states partly reflect the law’s inability to embody justice principles that could provide methods for tackling pressing issues.¹⁰ Indeed, even though political philosophers have thought of multiple models to justly allocate resources, problems of availability and access to care remain major challenges.¹¹

The relationship between justice and health care, then, raises several questions that are central to this book. Considering the above debates in political philosophy, we may wonder whether it is the mismatch between the theory and the practice of law-making that is to blame for failing health care systems; or is it simply that theories of distributive justice do not inform the decisions of actors involved in the crafting of health care policies? The book suggests that the link between these two worlds needs to be examined more concretely to improve the organisation and the distribution of care. The very existence of a connection between moral philosophy and health care law has thus far been underestimated and unappreciated by law and policy scholars and as this book will show, understanding whether theories of political philosophy have made their way into law is an essential first step in solving health care issues. Rationing is, and will remain, at the top of governments’ priority lists since only a finite amount of resources will ever be available to satisfy the infinite health care needs of populations.¹² Therefore, we should be able to explain how ideas of justice can be used to craft more adequate laws to ration, finance and provide health care services.

This book engages with literature in political philosophy and historical sources relating to the evolution of health care reforms in two Western welfare states, namely the United States and the United Kingdom, to understand the influence of theories of justice on health care policy over time. The legislative committees’ debates that are presented in this book illustrate the deeper ethical and moral trends that were brought forward during the discussions leading to health care reforms. Attention is given to actors belonging to the for-profit sector: doctors, employers and insurers because of the different, but equally influential, roles they have played in the edification of both systems. Remarkably, these actors are also thought to be less sensitive to the social justice rhetoric.

Essentially, this book sheds light on the place given to theories of justice in the health care law-making process and on the place that we wish to give these theories in the crafting of future reforms. It is also a reflection on health care reforms as expressions of their broader social context. Health care law and policy are the products of path dependency evolving differently in the United States and the United Kingdom. These findings potentially have significant implications for health care law and policy in Western welfare states, especially regarding the need for change in these areas.

I.Justice, Profit and the Law

In theory, no health care system could ever be sustained without adjusting the distribution of resources according to certain rules,¹³ and so, political philosophers continue to propose solving rationing issues with distributive justice principles.¹⁴

At a clinical level, bioethics philosophers generally believe that the health care decision-making process should revolve around four principles: autonomy, encompassing the principles of self-governance, liberty, privacy, and freedom of choice; non-maleficence, encompassing the moral duties of doctors not to execute acts of torture or to behave harmfully towards their patients; beneficence, encompassing the moral duties of doctors to act for the benefit of others; and justice, the duty to treat like cases alike when allocating resources to patients.¹⁵ In line with these principles, doctors select treatments based on an assessment of the disease and then run a cost–benefit analysis for each treatment option. At both stages, questions of justice and solidarity are weighed.

At a systemic level, it is less clear whether normative arguments, based on philosophical or moral standards, are the basis of policy goals or whether they are even used as normative tools to achieve certain outcomes. Evidently, because of the multi-layered and complex nature of health care policy-making, goals and outcomes rarely overlap. Although these normative theories have often been criticised for providing only broad guidelines with no concrete application, they may help situate health care in an ethical framework that can achieve fair distributive decisions.¹⁶

Ideas of justice are no more essential than institutional input, but they may have a different place in the decision-making process and it is important to determine what that place has been so far in order to determine what we want it to be in the future. Policies may reflect powerful economic interests, and ideas about the good society. Interests and ideas both shape policy choices and it is usually a matter of understanding how they come together to do so to be able to improve the access, delivery and financing of health care services.

A.Profit and Health Care

Arrangements for the delivery and financing of health care services vary across countries. However, most Western democracies have aligned themselves with an ‘international standard’ for health care.¹⁷ One of the main features still distinguishing the organisation of health care systems in Western welfare states is the share of publicly financed services in the total health care expenditure.¹⁸ At one end of the spectrum lies the United States with less than half of its total spending coming from public funds, and at the other, is the United Kingdom¹⁹ that finances over 80 per cent of health care services through taxes.²⁰ The amount of private sector activities related to health care is inversely proportional to the state’s involvement in both of these countries. All of this inevitably impacts the organisation of these systems.²¹ Indeed, the share of publicly financed services translates the degree of ‘socialisation’ of medicine. Some political scientists have attributed this variation to the different role played by the for-profit sector in each of these countries, while others believe that culturalist explanations can justify the difference in health care and social policy.²²

Political elites and the public, as cultural agents, may perceive the importance of health care and relay their perspectives to law-making institutions differently, but looking at culturally similarly situated welfare states the culturalist argument becomes difficult to defend. The United States and the United Kingdom are countries that share a common cultural background and are both common law jurisdictions. They have achieved a similar level of development and political freedom. However, the American health care system has always been singled out as the exception in comparison to its European counterparts given the extremely prominent role played by the private sector in health care.²³ The medical profession, employers and insurers have had a critical impact on the edification of the system and neither culture nor political allegiance can properly explain their dominance.²⁴ This book explores how the for-profit actors are in great part responsible for the lack of universal care in the United States.²⁵ Having long resisted and contested the idea of compulsory insurance they have shaped health care policy and have had a significant impact on the law-making process.²⁶

Comparing and contrasting the American health care system with the National Health Service (NHS), it is obvious that the share of activity of general practitioners acting as independent contractors, of medical consultants engaging in the private practice of medicine, and of other medical professionals providing health care services privately in the United Kingdom, does not compare with the American for-profit sector’s stake in its health care system. The role of the private sector is different in the United Kingdom as the for-profit stakeholders have not been equally hostile to a government-led health care system.²⁷ From the inception of the NHS and throughout its modern history the for-profit sector in the United Kingdom has helped preserve universality of care. In some respect, the medical profession has presented itself as the shield protecting the NHS’s core values as further demonstrated in this book.

Actors from the for-profit sector in America and the United Kingdom...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Acknowledgements
• Contents
• Abbreviations
• Table of Cases
• Table of Legislation
• 1. Introduction
• 2. Understanding Health Care as a Question of Justice
• 3. For-Profit Stakeholders in American Health Care Policy
• 4. Locating Ideas of Justice in American Health Care Reforms
• 5. For-Profit Stakeholders in British Health Care Policy
• 6. Locating Ideas of Justice in British Health Care Reforms
• 7. Conclusion
• Appendix
• Bibliography
• Index
• Copyright Page