Saturday, December 10, 2016

Health Care as a Basic Human Right

If every person has, or should have, the right to health care, what are the limits of that right? To what kind of health care is every person entitled, if health care is a basic human right?
      I believe the right to health care is indeed a basic human right, along with the right to life, the right to liberty, the right to personal security, the right to due process of law, the right to work, the right to receive an education, and other basic human rights.
      The Universal Declaration of Human Rights, Article 25, says that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”1
      I believe there is a moral argument to be made (which I shall not present here) for providing some level of basic health care to everyone who is in need of care, regardless of his or her ability to pay. What then is the level of basic care that should be provided?
       Allen Buchanan, in an article entitled “The Right to a Decent Minimum of Health Care” (1984), argues that the right to health care is not an unlimited right, but rather a right to a “decent minimum” of care.2 However, I would argue that the concept of a “decent minimum” of care is unacceptable for a number of reasons, and that the right to health care is a right to timely and adequate access to medically necessary care, recognizing that (1) access must be reasonable, not unnecessarily impeded, not unduly burdensome, and actual rather than merely theoretical, and (2) the care provided must be respectful of the human and personal dignity of each individual.
      Medically necessary care may be defined as care provided to prevent, diagnose, or treat a medical condition, in accordance with the accepted medical standard of care for that condition. The standard of care for a given medical condition may be defined as the kind of care that would ordinarily be rendered by a competent health care provider in the same community under similar circumstances. Medically necessary care may also be defined as care without which the patient being treated would suffer debilitating symptoms, preventable complications, irreparable injury, or permanent loss of function.
      The right to health care is not a right to unlimited or unnecessary care. Patients do not have the right to demand unnecessary services, and care providers do not have an obligation to provide unnecessary services. Indeed, care providers have an obligation not to provide unnecessary services, because such services may be harmful to patients and wasteful of health care resources.
      What then is wrong with the concept of a “decent minimum” of care? A “decent minimum” may be defined in a number of ways, some of them quite problematic. For example, from the point of view of party A, who thinks that party B is morally and socially inferior and therefore undeserving of the same level of health care available to party A, a “decent minimum” of care for party B may be something quite lower than what party A is entitled to. Also, from the viewpoint of party A, who lives in wealthy country C, a “decent minimum” of care for party B, who lives in poor country D, may be something quite lower than what party A is entitled to, because of the disparities between the economic and health care resources of countries C and D and the consequent disparity between what people of the two countries may see as the “decent minimum” level of care to which they are entitled. Both of these viewpoints may lead to arbitrariness, inequity, and injustice in the way in which the definition of a “decent minimum” of care is decided upon.
      It may also be argued that people have a right to more than a “decent minimum” of care, and that they have a right to the best quality of medically necessary care that can be provided, within the logistical, economic, and technological constraints of the health care system of the society in which they live.
      The financial cost of health care, of course, has to be taken into account in determining what constitutes the best possible care. The best possible care is also the safest, most reliable, most effective, and most cost-efficient care, as well as the care that is least burdensome for patients and most likely to produce the best possible outcomes.
      Buchanan says that debate about the claim that there is a right to a “decent minimum” of health care may center on two issues: (1) the issue of whether there is a more extensive right to health care, and (2) the issue of what health care services comprise the “decent minimum” of care to which there is a right.3 He admits that the claim that there is a “decent minimum” of care usually presupposes that this “decent minimum” is relative to the given society in which it is said to exist, but he argues that the advantages of the concept of a “decent minimum” for all individuals, as opposed to an equality of opportunity (regarding health care) for all individuals, are that (1) the concept of a “decent minimum” enables us to adjust the level of care according to relevant social conditions, (2) it “avoids the excesses of the strong equal access principle” (that everyone has an equal right to the best health care available) , while still acknowledging a substantive universal right, and (3) it recognizes that there must be some limitation to the right to health care, because of the limitations in resources available to any given society.4
      Buchanan thus explains that it’s reasonable to assume that, just as with other social goods and services, the extent of the right to health care services depends on the resources available to a given society.5 He makes a distinction between universal rights claims (which attribute the same rights to all individuals) and special rights claims (which attribute rights to particular individuals or groups).6 He also explains that special rights claims may be based on past discrimination against an individual or group (because that individual or group may have a special right to goods or services they have previously been denied) or may be based on unjust harms suffered by an individual or group (because that individual or group may have a special right to compensation for the unjust harms they have suffered) or may be based on sacrifices made by an individual or group for the good of society as a whole (because that individual or group may have a special right to compensation for the sacrifices they have made).7
      It may be argued, however, that everyone has a right to the best care available within the logistical, economic, and technological constraints of the health care system of the society in which they live, although everyone may not necessarily the same right. Those who are more in need of health care may have more of a right to the best care available. Those who invest their financial resources in order to ensure that they receive the best care available may also have a special right to receive the best care available. However, need should be considered more important than ability to pay in determining who is most deserving of available health care. Individuals should not be prohibited from investing their financial resources in order to ensure that they receive the best care available, but all individuals should be able to receive the best care available if they are really in need, regardless of their ability to pay.
      Another argument against the acceptability of the concept of a “decent minimum” of care is that care providers may have a duty to provide more than a “decent minimum.” They actually have a duty to fulfill a “reasonable standard of care,” which may be more than a “decent minimum.” Moreover, it may be argued they have a duty to provide the best care they can provide within the constraints of the health care system in which they function as providers. Requiring them to provide only a “decent minimum” of care may conflict with their duty to fulfill a “reasonable standard” of care and to provide the best care they can provide within the constraints of the given health care system.
      I would argue that health care providers also have a duty to provide the best possible care for all their patients, regardless of their patients’ socioeconomic status, age, gender, race, nationality, religion, sexual orientation, gender identity, or disability.
      Part of the duty of every health care provider is to function as an advocate for his or her patients in order to help them navigate the health care system, and in order to ensure that they have access to all the care they need. Patients have a right to expect that their health care providers will do their best to ensure that they receive all the care they need, and to ensure that they receive the best care possible.
      The concept of a “decent minimum” of care may therefore become a means to unfairly discriminate against individuals, based on their socioeconomic status or other factors. Those who are seen as being of lower socioeconomic status may be seen as being entitled to only a “decent minimum” of care, while those who are seen as being of higher socioeconomic status may be seen as being entitled to the best care available.
      The supposed obligation to provide only a “decent minimum” of care may also become a “slippery slope” for care providers, leading them to provide less and less care until the concept of a “decent minimum” has hardly any meaning. A “decent minimum” may come to mean almost nothing at all. A “decent minimum” may also come to mean a lower level of care than could reasonably be provided within the constraints of the health care system.  A “decent minimum” may become a kind of “race to the bottom,” rather than an effort to make a higher baseline level of health care available to all individuals.
      Perhaps, instead of trying to explore the content of a “decent minimum of care,” we should try to explore the content of an “adequate baseline level of care.”
      Justice in health care does not require that everyone have the same access to care and receive the same level of care, regardless of whether some are more in need of care than others. It does, however, require that everyone be provided with the health care he or she needs, and that an adequate baseline level of health care be made available to all.
      Kenneth Cust (1997) describes a “just minimum of health care” as a more viable concept than a “decent minimum of health care.” He says that

“Thus far we have taken the phrase ‘decent minimum of health care’ to mean roughly an adequate amount of health care. However, the concept “decent” has normative content as well. It can mean, for example, conformity with a standard of conduct or propriety. On this account, to say that people were entitled to a decent minimum of health care would mean little more than to say they were entitled to only what we choose to give them. If this is what Buchanan meant by a decent minimum of health care, then it may not be sufficient to meet people’s basic heath care needs.”8

      The right to medically necessary care may imply other rights, such as those enumerated in various statements of patient rights and responsibilities. Patient rights implied by the right to medically necessary care may include such rights as (1) the right to be treated with dignity and respect, (2) the right to be treated in a safe and secure environment, (3) the right to be protected from abuse, neglect, and mistreatment, (4) the right to be protected from discrimination on the basis of race, ethnicity, religion, nationality, sexual orientation, or disability, (5) the right to informed consent, (6) the right to privacy, (7) the right to confidentiality of personal and health information, (8) the right to participate in medical decision-making concerning one’s own care and treatment, and (9) the right to timely and understandable communications from health care providers.
      Patient responsibilities, on the other hand, may include (1) the responsibility to provide complete and accurate information about present symptoms, present and past medications, past medical history, and past treatment, (2) the responsibility to cooperate with care providers in order to develop plans of treatment, (3) the responsibility to comply with recommended treatment, (4) the responsibility to return for follow-up appointments in a timely fashion, and (5) the responsibility to respect the rights of other patients.


FOOTNOTES

1United Nations, “The Universal Declaration of Human Rights,” (1948), online at http://www.un.org/en/universal-declaration-human-rights/.
2Allen Buchanan,, “The Right to a Decent Minimum of Health Care” (1984), in Justice and Health Care: Selected Essays (Oxford: Oxford University Press, 2009), p. 4.
3Ibid., p. 17.
4Ibid., p. 20.
5Ibid., p. 20.
6Ibid., p. 27.
7Ibid., p. 27.
8Kenneth Cust, A Just Minimum of Health Care (Lanham: University Press of America, 1997), p. 61.


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