7.1. Health care as a profession

It is often stated that health care is a profession, but with basketball "pros" and professional bridge players, it's not all that easy to see what is meant. It is not just, like these "professionals," that health-care providers make money doing something that others do for recreation.

DEFINITION: A profession is a service in which factual knowledge rather than physical skill is what is sought.

Professions, of course, like surgery or optometry, may involve physical skills; but it isn't the skills that make them professions, but the underlying knowledge.

Surgeons, for instance, were originally not considered professionals in this sense, however skilled they might be, and were classified with barbers, because you didn't really (at the time) have to know much about the human body to cut it up and sew it back together. Nowadays, the factual information you have about medicine and anatomy and so on to be a surgeon is considerable--which is by no means to denigrate the skill involved.

The point, of course, is that even though playing basketball "at the professional level" involves skills far surpassing those of us ordinary mortals, this does not make basketball a profession. And even though you have to have a lot of "know-how" to do it, that's not enough to make it qualify, because, there's not a great deal of "know-what" connected with it.

7.1.1. Expertise

Obviously, since health care delivery is a profession, then the providers are expected to have factual knowledge. It follows from this that

Health-care providers have a moral obligation to be as knowledgeable as possible in their field.

Thus, not knowing what you would be expected to know is morally wrong; you have to "keep up with the field," as the saying is. That doesn't mean, of course that you have to know every obscure article that appears in some medical journal in Zagreb. Knowledge is exploding so fast that no one can be expected to know everything even in his own field; so you must morally make only a human effort to do so. That is, there is no excuse for not knowing information in the major journals. (And it is their duty to peruse the little-known publications and report on information that ought to be more widely disseminated.)

Thus, health-care providers must devote a certain amount of time regularly to the reading of journals in their field. This is by no means a waste of time. Malpractice

But suppose a provider doesn't keep up with the field, or suppose he just can't be bothered with the duties expected of him. Obviously, this can result in harm to the patients--which, of course, violates their rights.

DEFINITION: Malpractice is the act of doing harm to someone because of negligence (i.e. failing to do something one would be expected to do).

As with responsibility, which we saw earlier (Section 4.4.), there is both moral and legal malpractice.

DEFINITION: Moral malpractice occurs when a person knows he is being negligent and does nothing about it.

In this case, the person is willing to be negligent, and consequently is willing to do the harm that might come from his ignorance or carelessness. Note that this willingness may be because "he's so busy, he just doesn't have time to keep up with the field." But the end, of course, doesn't justify the means.

NOTE, however, that since the harm that comes from malpractice is the effect of the negligence, then sometimes the Double Effect can justify the danger of harm.

A doctor, for instance, in the midst of a plague, where there are many more people who desperately need treatment than can be taken care of, might (by the fifth rule) be able to justify the possible harm done by not keeping up with the field by the probable harm done by taking time off to do it.

But it has to be some such situation as this; the mere fact that a doctor has more patients than he can handle is not enough to allow him to invoke the Double Effect (since he can give some of his patients to other doctors, and the reduction of his income is never enough to offset the potential harm to patients from negligence).

It is possible, however, to be in fact negligent without having any reason to believe that one is being so, in which case, the malpractice is not moral malpractice, and has no eternal repercussions.

For instance, a nurse on night watch might find that reading keeps her awake, and so (by her usual practice) she reads a novel while she is watching over her patients. She has done this for years, and has found it helpful, and of no danger to the patients. On one particular night, however, she becomes so engrossed in the story that she loses complete track of the time, and does not give her patient a required treatment until two hours after she was supposed to. The patient dies from the lack of timely treatment. In fact, she was negligent, and the cause of it was the novel she was reading. But she had no reason to believe that it would take her mind off what she was supposed to do, and so she is not morally guilty of malpractice.

DEFINITION: Legal malpractice occurs when harm is done to a patient by what would be negligence in "the normal person."

As with legal responsibility, the assumption is that if you did not know something, or weren't paying attention, then you ought to have known it or been paying attention, because this is what a "normal person" in your situation would have done. Of course, legal malpractice depends on how the actual law is written, and it is not our purpose here to go into this.

The point is that it is possible to be legally guilty of malpractice without morally being so

NOTE that if a person has in fact engaged in malpractice, even if it is not moral or legal malpractice (i.e. if it was an "understandable error"), he has a moral obligation to see to it that the victim's harm is compensated for.

No amount of "compensation," of course, can undo the damage that was done (because "good" gets you where you want to be and "harm" puts you below the minimum of normal human existence--we will see this shortly). Nonetheless, as far as possible, the victim is to be brought into a condition in which "for practical purposes" he can do what he was able to do before the harm was done.

The provider can use the Double Effect on this, especially if he is not guilty of moral malpractice, because then he is only physically, but not morally, responsible for the damage. So the restoring process need not cause greater harm to the person who committed the malpractice.

In this connection, the legal practice of "punitive damages" must be condemned as morally wrong.

The reason for this is that such damages (based on willful and sometimes habitual negligence) are for the sake of "sending a message" to the person for the future and to potential imitators. But this punishment for wrongdoing is actually legislation, not adjudication, and it is not the place of the law courts to pass laws.

That is, as we will see later in the chapter on the nurse, being in an organization (or a society) means allowing people to tell you what you must do, and threaten punishment if you don't do it. That is what legislation is. So "punitive damages" in fact are criminalizing the kind of actions; and a criminal offense should be punished as such, not as disguised as a civil action, which is the resolution of a dispute between parties who disagree.

The point of this is that a tort is a private wrong done by one person against another, not a crime: an offense against society (i.e. people in general). But when you "send the message" to people "You'd better not do this sort of thing, or you'll get sued and look what happens if you do," you are generalizing the action and saying that it is one that no one in the society should do to another--thus making in an offense against society, not the individual. That's legislation, and what criminal law is for.

This is a technical point, perhaps. But the practice of adding "punitive damages" to malpractice suits has several bad effects, among which are that of making the plaintiff (and especially his lawyers) rich by what is in effect a new law that is passed by the lawsuit. A person should not profit (i.e. be better off than if it had not happened) as the result of an injury. This only encourages lawsuits against those with "deep pockets."

7.1.2. Referrals

Since the provider is an expert, then obviously there are going to be limits to his expertise. What does he do when he spots something out of his field or beyond his competence?

Providers who have patients with problems outside their field or beyond their competence must refer them to another provider who has the proper expertise.

That, of course, is obvious. You don't try to treat what you're really not competent to treat, on the chance that you might luck out and do some good. But there is a moral implication to referrals.

Providers who refer patients to others must not receive compensation from the others for doing so.

These "kickbacks" put the interest of the provider and the one he refers the patient to ahead of the interest of the patient, which must be paramount. It is morally all right, if the one referred to is a good friend, for the provider to receive gifts of friendship from him as long as these cannot be construed as payment for the service of referring patients.

Generally speaking, such gifts are unethical, (i.e. they violate the codes of ethics of the providers), because they give the impression of being morally wrong and are apt to tempt people into immorality. It is a good idea to avoid them, even when not strictly morally necessary.

DEFINITION: Something is unethical (in the sense in which "codes of ethics" mean the term) if it is morally wrong or if it gives the appearance of doing or creates an incentive to do what is morally wrong.

Thus, if you do something that violates a code of ethics, you are not necessarily being immoral in the act simply taken by itself. Still, if you belong to an organization which has a code of ethics and you violate the code, you are acting inconsistently with yourself as a member of the organization, and for this reason your action would be morally wrong. That is, when you join an organization, you agree to follow the rules; it is obviously a breach of this agreement not to do so.

Thus, it is morally wrong for a member of an organization to violate its code of ethics, even though if he were not a member, he would not be immoral choosing the act.

7.2. Health care as a business

[The subject of business, values, etc. in general is treated at length in Modes of the Finite, Part 4, Section 7 and Part 6, Section 2.]

But the health-care provider is not simply a professional, who has knowledge; he is a "pro" (as opposed to an amateur) in the sense that he does something to earn a living.

DEFINITION: A service is an act performed for the benefit of and at the request of another person, who compensates the one serving.

So you're not performing a service, strictly speaking, if you do something for a person who didn't ask for it. You're just interfering in someone else's life, in this case. In a service, the one served is the one who has the control.

Similarly, it's not a service if you don't get paid (or compensated in some way) even if the other person asks you to do it. If you don't expect to get paid, it's an act of love or a favor. If you don't get paid, but you do it because the other person threatens you with harm if you don't, it's an act of servitude, not service, and you're a slave.

This last is true unless you are in an organization, or under authority. As we will see later (discussing the nurse), when you enter an organization or put yourself under authority, you agree to do certain things without any further compensation than whatever gain you get from being in the organization and sharing its benefits. In that case, the threat of punishment for the particular action is offset by the benefit from being in the organization, and so it's not slavery.

Note that in performing a service, you are subordinating the particular act to the other person, but not your reality as a human being. He controls your act, but doesn't own you. This is Marx's notion of service, which he equates with slavery; he is wrong.

7.2.1. The value of the service

Obviously, if you're going to be compensated for your service, you have to set a value on it, to find out how much you're to get paid in compensation.

This is a very complicated topic (it involves the very foundations of economic theory), and so I will just point out what we need to know to get a handle on the economics of health-care delivery.

Actually, there are two values for any service. But first of all, what are values in general?

DEFINITION: A value is a means toward a freely-chosen goal.

DEFINITION: One value is greater than another to the extent that the goal is more or less important.

DEFINITION: One goal is more important than another if you would give up the second in order to have the first.

Note a couple of things here. We choose the goals the values lead toward (based on what kind of person we want to be). This is a free choice, as I have so often stressed. We also choose the relative importance of the goals by pairing them against each other and pretending we can't have both. The one we pick is the more important, and thus "fits" our notion of ourselves better than the other.

Thus, a person who chooses a college education over buying a BMW obviously considers being educated more important than owning the car (because he could have spent his money on the car instead). Of course, he is probably just postponing the other goal, but the point is that he has chosen the one over the other. This shows that going to college is a greater value than the car.

NOTE: There is no "real value" or "objective value" to anything. Values are always subjective. The same goes for importance. Nothing is "really" or "objectively" important.

Before you bristle at this, I am going to say that some things are necessary. But let us go on for now. It follows from what I said that the server has one value for his service, and the one served another (and almost always different one) for the same service. Here are the two notions of value I talked about.

DEFINITION: The buyer-value of a service is how important the buyer thinks this service is (i.e. what he is willing to give up to get it).

DEFINITION: The seller-value of the service is the cost to the server of performing it.

But "cost" does not mean simply "monetary outlay"; I am referring to what economists call "opportunity cost."

DEFINITION: The cost of anything is what is given up for it.

Thus, the server gives up whatever he could be doing with his time in pursuing his own goals, plus whatever outlays he has to make to supply himself with materials and so on so that he can perform the service.

The buyer, then, measures the service in terms of what he gains from it; the seller by what he loses in performing it. And of course, the seller wants to be compensated, because he doesn't want to be any worse off for performing the service; in fact, he wants to be better off than he would have been if he hadn't performed it, because he's giving up working for his own benefit in aiding this other person.

Now as I say, these two notions of the value of the service may be wildly at variance with one another. You may want the service enough that you're willing to give up most of the other things you value for it; but the server may not consider that he's giving up much at all in helping you out; he may even enjoy it.

So, for instance, you value your education in, say, engineering very highly, judging by the amount you pay for it. But there are teachers of engineering who accept less pay than they could get as engineers themselves, because they happen to like to teach.

DEFINITION: The price of a service is the compromise between the buyer-value and the seller-value.

Now of course, we can assume that the buyer and the seller are real people, and the buyer is quite willing to pay less than he has to to get it, and the seller is overjoyed at taking more than enough to compensate him. The buyer-value creates a ceiling for the buyer, beyond which he won't buy, and the seller-value a floor for the seller, below which he refuses to perform the service. Somewhere in between, they agree on a price.

This is what haggling does. In modern manufacturing societies, the seller (who often has to sell to millions of buyers) can't haggle, so he makes a guess as to what's the highest price he can ask so that enough people will pay it to enable him to sell all he makes--and the buyers either take it (some with joy, because it's way below their idea of the thing's value, others reluctantly, because it's right at their value), or leave it. This is the market price, which has nothing magical about it; it's just the sell-out price. It's a kind of generalized haggling, because if the seller is stuck with inventory, he lowers his asking price; if he sells out too fast, he raises it, and so on.

NOTE that there is no "real" price for anything. Every price, including the market price, is arbitrarily arrived at, and does not reflect the "real" value of the object or service (because it has none).

Diamonds are very costly, not because it takes so much work to get them out of the ground (though that enters into the seller-value), but because people are willing to pay that money for them. Other rocks are just as rare and just as difficult to get, but no one wants them. But, interestingly, man-made diamonds are exactly the same thing as natural ones, but people are not willing to pay the same price for them. A painting that sells for millions is discovered to have been painted by a student of the Master; it's the exact same painting, and now you can't give it away. It can't be stressed enough: there is no real value for anything.

Note too that in any transaction involving values, both parties gain, or there is no transaction. That is, if the asking-price is above the buyer-value, the buyer will be worse off with it than by spending his money on what he values more; so he won't buy it. If it's below the seller-value, then the seller will lose by performing the service, and so he won't sell. Conceivably, the object could be just at one or the other of the values; but if the transaction takes place, then economists say it's marginally more valuable in both cases (otherwise, why agree?).

7.2.2. Values and necessities

If you've been thinking that this is just a wee bit utopian, you're right. There's quite a large fly in the economic ointment, and it deals with the distinction between values and necessities.

DEFINITION: A necessity is a means toward achieving a minimally human existence.

That is, without a value, you can't be the kind of human being you want to be; without a necessity, you can't (in some respect) live a human life at all.

Obviously, there are absolute necessities, like air, a certain minimum of food, and shelter, and so on, without which you die and aren't a human being at all any more. But there are also relative necessities, without which you are dehumanized: that is, forced into a condition where you can't do what any human being would be expected to be able to do because of his genetic potential. Thus, eyeglasses for a person who can see but can't distinguish objects are necessities, because otherwise he's a-person-who-can-see-but-can't-see, and that's a contradiction. That is, without necessities you suffer damage. We saw this concept in discussing rights.

Now then, what are the differences between values and necessities?

First of all, values may be freely given up; necessities can't morally be given up except to avoid deprivation of a greater necessity.

The reason is that values lead to the kind of life you want to live, and that's something you freely choose (and so can freely reject). But necessities are means for avoiding damage to the reality you were "given" by your genes, and we are morally forbidden to do damage to ourselves.

We can, of course, give up a necessity when the Double Effect applies, and by giving it up we can escape equal or greater damage; but the point there is that you don't will the deprivation consequent upon lacking the necessity; you choose to avoid the greater one.

Secondly, a person has a human right to necessities, but not to values. That is, it is morally wrong to deprive a person of necessities, unless the Double Effect applies, because this is to do the person damage.

NOTE that this does not necessarily imply that if you have more than enough and someone you know needs something you have, you have an obligation to give it to him.

The reason is that your not giving it to him does not necessarily deprive him of it, if he can get it either from someone else or by working for it; so if you have a surplus, you are not willing to harm someone else by not helping him out, even if you could do it. You are only willing to do him harm if (a) he can't get it (in practice) any other way than by being given it, (b) you are the only one (in practice) he can get it from, and (c) giving it to him doesn't cause you equal or greater damage.

In fact, giving to someone who can get the item by himself can be dehumanizing to him, because it gives him the idea that "the world owes him a living" just because he exists, when in fact we make a living by serving others, and who is he to refuse to serve? It also makes him dependent on the largess of others (or the government) and so able to relinquish control over his life; but the essence of being human is to set goals for yourself and work to achieve them. He becomes nothing more than a kind of pet of society, like a dog. Thus, you are can be doing a considerable dis favor to a beggar by giving him money. It makes you feel noble and generous, of course.

I hasten to say that it can be a good thing to help others who can help themselves but are temporarily in difficulty--provided the pitfall of creating the "spirit of dependency" is likely to be avoided. But the point is that this is a question of values, and there is no moral obligation here.

Thirdly, necessities are incommensurate with values. That is, a necessity is either of no value at all (if we have it) or beyond all values (if we don't).

Why is this? First, because, since necessities are the minimum without which we can't live a human life, we take them for granted because we are human. You don't want to breathe; you have to breathe in order to be human at all; so breathing is not part of your notion of the distinctive type of human being you choose to be; it is not a goal you have. It is part of the "given" you set out from in working toward your goals. In this sense, the "value" of a necessity is less than that of any value.

NOTE: Necessities are not important. They are simply necessary.

But secondly, if you don't have a necessity, then you have a moral obligation to give up all values to get it, at least to the point where the sum of the values you give up creates equal deprivation. (Values can accumulate into necessities if you have to give up a great many of them.) The reason is that you have a moral obligation not to harm yourself, and you have no moral obligation to fulfill yourself. So in this sense, the "value" of a necessity is greater than that of any or even all values as values.

One value can be measured against another; but no value can be measured against a necessity. "How much is this necessity worth to you?" is a meaningless question, analogous to "How much of the color red equals the tone E-flat?"

The fundamental difference between values and necessities, then, is this: The one without a necessity is threatened with harm if he doesn't get it, and his getting it "gets him back to zero" as far as his human life is concerned. The one without a value is not at his goal, and is no worse off than he is now if he doesn't get it. Thus, he can compare values with each other and give one up to get the other; but he can't compare necessities with values, because you have to avoid harm, but you don't have to be at your goal.

This is a very significant point, which is overlooked in economic theory. Modern free-market economics acts as if necessities are just "very valuable" values (and so justifies their high price based on the fact that buyers are "willing" to pay them--not realizing that the buyer is "willing" only by using the Double Effect, to avoid greater harm, as a robbery victim "willingly" hands over his wallet to avoid getting shot). Communist economics, with its "From each according to his abilities, to each according to his needs" regards values as "not very necessary necessities," and thus tends to ignore the goal-pursuing nature of human life, and to reduce everyone to a state of uniform misery.

7.3. Pricing health care

With all that theory under our belt, how do we go about setting a price on health-care delivery?

First of all, note that health care is a necessity, because an unhealthy person is in a dehumanized condition (by definition: he can't act as he would genetically be expected to be able to act), and so he remains dehumanized unless he receives health care. That should be obvious. It follows that the Liberals are correct this far: People have a human right to health care. In theory, then, it ought to be free; if you have a human right to have it, you shouldn't have to deprive yourself of any goal in order to get it. But when the Liberals go this far, they are going too far, for the following reason:

On the other side, health-care providers have a right to make their living providing health care. Thus, if sick people simply said, "Give me treatment" to the providers (doctors and drug companies), then they would be enslaving them in the process of getting health care. So Conservatives are right to think that "universal health care" harms the providers.

So we have a conflict of rights here. Not really, because rights never conflict, since no one has a right that extends to the violation of anyone else's right. Thus, sick people don't have the right to get health care without paying for it, and providers don't have the right to get paid so much that it deprives sick people of health care.

So some price must be set on health-care delivery. But what price? If we apply what we saw above to health-care, we find that in the transaction, there is a (finite) value for the service on the seller's side, but no value (i.e. either zero or infinity, as we saw) on the buyer's side. The buyer, therefore, can't say what he thinks the service is "worth," because he can't compare it with any value--so he can't haggle. He has to have the service, and so he has to accept any price the seller asks--at least up to the point of greater harm from impoverishment than from the disease.

Now what is the service worth from the seller's point of view? It is not worth whatever the market will bear, as if the provider were a manufacturer guessing what people would be willing to pay. This "willingness" is the "willingness" of a person threatened with harm to avoid the harm, not the willingness of a person pursuing a goal to give up other goals to get it. So the seller must not look to what he can get for his service, but what it is really worth to him.

But what does that mean? As we saw, it is what he is giving up to perform the service: the cost of materials and overhead and so on plus the goals he is not pursuing because he is wasting his time for the sick person's benefit.

That is, the health-care provider must ask himself, "What is the life-style I choose to live, which is the goal of my service? Living this way involves X number of dollars per year. I have Y number of patients per year. Therefore, in order to live my life as I choose, I need X/Y dollars per patient.

"But this patient is poorer than my other patients; thus, charging him the average amount is harder on him than on others. Therefore, I charge him $10.00 less than the average, and make up the difference by charging a wealthy person $10.00 more, because the $10.00 means less to the wealthy person."

Something like this already goes on; but there is another factor that must be included in the equation.

Since health-care is a necessity for the patient, the provider must not set his standard of living so high that he becomes rich from his service--because then he is exploiting the fact that the patients have to pay for his extravagant lifestyle.

DEFINITION: A person is rich when (economically speaking) he can do what the vast majority of people cannot do.

That is, a rich person is economically super-human, just as a star athlete is physically super-human, because for practical purposes he can do what "practically everyone" is incapable of doing. This is the reverse of the dehumanized person, who can't do what "practically everyone" can do.

The point above is that no one has a right to get into an economically super-human situation by taking advantage of the fact that his customers have to pay or else suffer deprivation. Even if the customers can pay, the fact that the provider is supplying a necessity says that they should not have to pay more than what is necessary to prevent dehumanization (by enslavement) of the provider. They have a right to health care, and thus have a right not to pay more than is necessary for it.

This does not mean that the providers have the obligation to charge fees that barely lift them above the poverty level.

That is, people enter a business, not simply to provide necessities, but to get themselves to their self-determined goals; hence, they have a right to more than what is merely necessary to live a minimal human existence; they have a right to what is at least a decent human living. That is, a "middle-class" existence: one that most people who work can live at.

But health-care providers have a right to more than simply a minimally "decent" living because (a) they are educated people (and so of a certain refinement), and (b) they are involved with what is often messy, degrading, and dangerous. Hence, they are giving up more than the average worker in performing their service.

That is, the cost of providing health care is generally greater than the average cost of performing a service. To be handling bodily fluids and excrement (which is sometimes necessary), to be cutting up the human body, to be closely examining people with noisome, disgusting, and highly infectious diseases, it itself something that not many people are willing to undertake, since it involves a considerable sacrifice of their notion of what it is to act in a human way.

Add to that the fact that providers often have spent years in studying and in the process have learned what the higher levels of human living are, and you can see that they in general are more apt to be aware of what they are giving up in performing their service.

Thus, the service of a health-care provider is worth more in seller-value than most other services.

A college professor, for instance, may have spent more time studying than a doctor; and so as far as this aspect of his service is concerned, the seller-value is greater than that of the doctor's. But it is a lot less stressful, disgusting, and degrading to teach a college class than it is to treat diseases; and so, since the teacher is actually giving up less, the seller-value of the service as a whole is considerably less than that of the doctor.

Note that this has nothing to do with the buyer-value of teaching as opposed to health care. Teaching has a finite buyer-value (as well as a finite seller-value); and so a price can be arrived in the market--and the actual price might turn out to be considerably above the seller-value (I may remark that usually it isn't, in the case of teaching). This is fine. The point is that the buyer-value of health care is infinite, and so the price must be based only on the seller-value, and not the "market-value," because the "market-value" is a fiction and a sham; it doesn't exist as a value. The market price never reflects any value.

Then what is the result of this?

Health-care providers have a right to make a "comfortable" living from their service (i.e. live an upper-middle-class lifestyle); but no more than that.

That is, if they see that they are becoming rich by their service, then they have a moral obligation to adjust their fees downward so that they are making no more than a comfortable living.

In addition, providers must see to it that inefficiency and waste is avoided, because the temptation to be wasteful is great, because the payers will be "willing" to pay the higher price for it.

That is, precisely because health care is a necessity, the consumer will pay whatever price he has to to get it. That means that, even if you don't charge so much that you make yourself rich, it's easy to do things in economically wasteful ways, because the money to do it this way will always be available--apparently "willingly," just as patients are "willing" to pay for any necessity.

Thus, each hospital will be able to get the latest bell or whistle of technology, so that it won't be "inferior" to St. Columban's across the street--and it can spend big bucks advertising on TV, so that patients will come there as opposed to St. Columban's. But what that results in is that there are twice or three times as many MRI scanners in the area as are needed, and these enormously expensive machines lie idle much of the day, and that money is siphoned off to advertising and so on, when it shouldn't be available for such purposes, because patients shouldn't have to pay the extra fees that enable hospitals to do such frivolous things.

Thus, health-care professionals in a given area must get together and cooperate to see to it that costs are kept to the minimum necessary to provide adequate health care in the area.

7.3.1. Government and insurance

Now since deprivation of health care dehumanizes people, and since the function of government is to see to it that no one's rights are violated, what is the role of government in the health-care field?

In general, government's role is that of moral suasion: to point out to providers what their duty is and urge them to do it.

Theoretically, if government sees that health-care costs are too high, it could legislate a cap on fees. But since health care is a necessity, this would be counterproductive in practice, because providers could simply refuse to perform the service if they didn't get what they wanted--and the government would have to give in, under pain of being responsible for the deprivation of the treatment.

That is, if you assume that providers are unscrupulous and greedy, then there is no solution to high health-care costs; because no matter what is done, the providers (who have the actual power, since they can withhold necessary services) will simply find a way around regulations to get their way--and the government will have to wink at the violations.

So when the government gets involved in the actual pricing of health care, the last state will be worse than the first.

Well, but can't the government (or even private people) give insurance, so that people (particularly poor people) can get health care without having to pay for it? I mean, if it's a right, why not have government pay for health care? That way the providers get what's their due, and the people don't have to pay (they get what they have a right to have).

NOTE that what is to be said applies to all third-party insurers, private as well as government. It is just that it applies a fortiori to government.

It sounds good, but it is in practice counterproductive, and has moral problems connected with it also. It is counterproductive because the government has exceedingly "deep pockets," and so providers, who would balk at charging high fees to private people, will have no qualms about gouging the government. Secondly, the people are paying in increased taxes; and since the government tends to be profligate with "its" money, these taxes (as we have seen in government health-care programs) will just go up and up and up and up and up. Thus, the problem of health-care costs will get much worse to the extent that the government pays for it.

The moral problem involved here is that the patient as an individual has an obligation to reimburse the person who give him the heath care. That is, the patient is not just "receiving" health care; he is receiving it from this particular provider, who is serving him, not "the government" or "mankind." Thus, there is an economic relation between the patient and the provider that is destroyed when a third party pays the bills. The provider is now serving the payer, and is simply acting on the patient--analogously to what happens when the patient is a child or an animal, as we saw.

And "the one who pays the piper calls the tune." Since the provider is serving the payer, then the payer rather than the patient determines the conditions of the service; and this can sometimes be to the detriment of the patient. (I.e., non-standard treatment called for in this case might be refused. Alternatively, the patient can be receiving treatment that he neither needs nor wants, but "this is the treatment that is called for" by the payer.)

The result is that when third-party insurers pay the bills, (a) costs skyrocket, (b) the relationship between the provider and patient is undermined, (c) necessary but non-standard treatments tend not to be done, and (d) unnecessary but standard treatments tend to be performed.

There is, however, a situation in which a "third-party payer" is morally legitimate and even necessary:

When the patient is not capable of making choices for himself, as with a child or mentally incompetent person, then someone who loves him, a parent or relative should undertake contracting and paying for his service. Thus, the benefit of the patient as a person is safeguarded.

In this case, then since Daddy is paying the bills, the provider is serving Daddy, and Daddy's will prevails (except when he chooses what is harmful to Junior). But the presumption is that Daddy loves Junior, and so this eliminates the evils attendant upon third-party payers.

But with "managed-care" insurance nowadays, we see all of the evils I mentioned above in our health-care mess today, because the ones paying the bills and directing the doctors don't even know the patient, and so tend to be concerned with the "bottom line" (which was why the organization was created in the first place).

What was a fairly decent system fifty years ago was ruined by a "compassionate" attempt to make health care available to everyone. Since enormous riches can be achieved (apparently legitimately) now in health care, it is increasingly the case that people go into the field to become wealthy, and don't enter it as a profession in which their motivation is the benefit of mankind, and they realize that they will live decently from what they are doing. And once the profit motive is the main motive for entering a field that is a necessity, it is inevitable that, as soon as government (or third parties) get involved in it, costs will go right through the roof, because the unchecked market will dictate prices, and the demand is infinite.

So what is to be done?

Some way must be found to return health care to the realm of the provider and patient. The best proposal seems to be that of "medical savings accounts," in which a person has a certain amount of money from the government to spend on health care, and spends it as he sees fit, keeping what is left over for his own use. This, coupled with catastrophic care insurance, can secure the patient's rights while reducing the incentive toward increased costs and waste.

7.4. Control of the service

The fact that health care is a service also implies that it is the patient who has basic control over the service--at least in this sense: He decides whether to have the service or not.

It follows from this that

A patient must not be treated against his will, even if he will be harmed or even die by lack of treatment.

The patient is not an "object of treatment" for the provider; he is a human being in control over his own life. If he wants to make a wreck of his life, then he is not to be stopped from doing so. It's his life.

If a person is going to harm himself, it is immoral not to inform him of what he is in fact doing; and it is moral to try to persuade him not to do it. But, as we saw, it is wrong to force him to avoid doing the harm even if it is "for his own good."

The reason is that "good" and "bad" are defined by the person and are thus subjective, and who are you to force someone to accept your subjective standards? True, harm is something objective (it contradicts the objective reality of the person); but whether harm is bad is subjective.


If a person is not in a position to realize the consequences of his actions, he can be forced not to harm himself.

Thus, psychotic people can be treated against their will, because the information on which they base their choices is distorted or blocked by their mental unhealth. Similarly, children, who have not yet learned that actions have consequences that are completely independent of the intention of the agent, can be forced to do what someone else sees is good for them (meaning, in their case, what will bring them into a position where they can make rational, informed choices about their lives).

But since it is the patient who must decide whether to be treated or not, it follows that

Patients must be given all information relevant to the choice of their treatment.

Otherwise, the choice will be made in ignorance, and the patient may unwittingly do what he would not want to do had he known.

Specifically, patients must be informed:

Of the results of the treatment, including side-effects, and how likely these are to occur. In order to be able to apply the Double Effect, you have to know what the good effects and the bad effects of your action are. This also includes dangers in the treatment, as well as dangers in not being treated.

Whether the treatment is necessary for recovery of health, or is simply beneficial. Obviously, if the treatment is necessary, you have to have it (absent greater harm from having it); if it is beneficial, then it is like any other goal which may be freely rejected.

Whether there are alternative means to the same goal which might be less costly or painful. In general, the provider, as the expert, is in charge of how the problem is to be treated; but when there are alternatives which affect the patient, the patient must be informed.

Who is actually going to do the treating. It is morally wrong for the high-paid specialist to undertake the treatment and actually have one of his neophyte assistants do it "under his watchful eye" unless the patient knows that this is what is going on. This is called "ghost surgery," in which by the time the switch is made, the patient is under anesthesia.

Information learned in the course of examination and treatment which the patient may find useful to managing his life. The patient is not a "subject" the provider is "working on," but a person who has requested a treatment. Therefore, he has the right to know anything relevant about himself that is discovered in the course of treatment. This includes such things as that he is dying, so that he can prepare himself. It is not for the provider (or the patient's family) to "protect the patient from unpleasantness" by concealing such vital information. It also includes whether the provider has made a mistake and the consequences of the mistake, so that the patient can take steps to correct it; as well as whether the provider does not really know what is wrong with the patient; in short, all information which the patient might find useful.

On the other hand, the provider does not necessarily have to inform the patient about things like alternative forms of treatment which do not have consequences for the patient, and might lead to the patient's second-guessing the provider. In general, details of the treatment which are not relevant to the choice of treatment or to the patient's life need not be revealed.

7.4.1. Experimental treatment

There are a couple of topics deserving special consideration under this notion of the fact that it is the patient who controls what the service will be. The first of them is medical experiments.

It is not morally wrong to perform medical experiments, even risky ones, on patients, provided the patient is fully informed and is not pressured by any perceived threat into entering the experiment.

First of all, the patient is the one who is to decide whether he is to take part in the experiment or not; and so he must be made aware (a) that this is an experiment, (b) all the dangers and so on (including non-dangerous side-effects, particularly unpleasant ones) and their likelihood, and (c) whether there is a control group that he might be part of (which, of course, is not going to get the actual medicine).

Second, the patient must not think he is going to be worse off if he refuses to join the experiment. It is not enough to say that there won't be any punishment; the patient must have ample reason to believe that it is true. For instance, prisoners may believe that in theory they are free to refuse without reprisal, but that "in the real world" they're going to suffer for it. Employees may believe that refusing to join the experiment might signal a spirit of uncooperativeness to their employers, resulting in being passed over for promotion, and so on.

Where there is reason to believe that possible experimental subjects will be suspicious of what will happen to them if they refuse, it is morally wrong to recruit subjects. They have to consent freely, in the sense of with no pressure whatsoever.

NOTE that it is morally legitimate to offer rewards for being part of an experiment. A person is still free if offered a reward, since this involves values and goals, which may be freely given up. He is not free if he perceives a threat, since morally we must avoid harming ourselves.

Can experiments ever be done on human fetuses or embryos?

Since human fetuses and even embryos and fertilized human eggs are in fact human beings (and therefore persons), no experiments may be performed on them, since they cannot give free consent.

Now of course the assertion that fetuses and especially embryos and eggs are persons is "controversial," I realize that some may bristle at this blanket prohibition. I intend to prove in the next chapter the point I am making here, which is that experimenting on an embryo or fetus is the equivalent of using an unconscious person as the subject of an experiment. He can't refuse, because he's not conscious. Such experiments are morally forbidden even if they do no harm to the subject.

It is also morally wrong to experiment on any body which probably is not but may be a human being, such as anencephalic babies.

Anencephalic babies are those which have a genetic defect which forms a body without a brain (i.e. without any more than a brain stem, which controls breathing and the vegetative functions of the body). Since this is a genetic defect, and since the genes determine not only the individual "given" traits of the body, but the kind of interaction of the body parts, it can be argued that (since a body without a brain has no possibility of functioning as a human being), the body is not in fact organized with the human unifying energy, in spite of the fact that both of its parents were human. We know that there are some living bodies (human cells grown in a tissue culture) which have human genes, but are not in fact living a human life, because what unifies them is not the human unifying energy.

Still, since (a) this unifying energy cannot be directly observed, and (b) since it is possible that the unifying energy is human but just can't express itself properly because it doesn't have the proper organs to do so, there is reason to conclude that monster births such as anencephalic children are human. The argument that they are is, I think, much weaker than the argument that they aren't. But it is reasonable, and so this leaves an objective doubt as to whether they are human or not.

But to experiment on them would be to act with an unclear conscience, which would mean to be willing to do a morally wrong act. And that, of course, is always immoral. And since the question cannot be settled, the doubt will always be there; so they must be let alone.

Now then, there are a couple of moral considerations about the experiment itself:

No experiment that involves actually doing harm to any person may be performed, no matter what the benefits to mankind may be.

This should be obvious, because you would have to choose the harm, since it is the means to the good purpose, and the end never justifies the means.

Persons in a control group must receive standard treatment for illnesses they have.

This is actually a kind of corollary of the preceding. It would be nice if you could have control groups who got simply a placebo and received no treatment at all; because giving them the standard treatment for what is wrong with them will complicate the experiment. But that would be the equivalent of choosing harm to the members of the control group, because (a) they are in a dehumanized condition, and (b) you can get them out of it (or relieve them), but you are keeping them in this dehumanized condition "for the sake of science and the benefit of mankind." You can't do that.

7.4.2. Mutual respect

Since the provider is at the service of the patient, even though it is the provider who is the expert, he must treat the patient with the deference due to any human being. Specifically,

Health-care providers must be on time for appointments they make with their patients. If they cannot keep an appointment on time, they must inform the patients, give the reason, and let them know how long the delay is likely to be.

Doctors are apt to think that, because they deal with necessities, their time is "very important," and that if it's a question of the doctor keeping the patient waiting or the reverse, then "obviously" the patient's convenience yields to the doctor's.

Remember, however, nothing is objectively important. My time as a teacher (particularly of ethics, where I deal with eternal happiness and misery) is just as valuable (i.e. as valueless) as that of any doctor. There is reason that I should yield my time to him.

It is true, however, that doctors deal with necessities; and so if I demanded that the doctor keep his appointment on time, which would involve his giving short shrift to the one before me, then I would be willing to have him possibly harm other patients for my sake, which is clearly immoral. So, yes, I do morally have to yield to the doctor when he is late. The assumption behind this, of course, is that the doctor was delayed because of some necessary service--some emergency, for instance--to others, and not because he wants to take time off to listen to Rush Limbaugh.

But if he's going to be late, he owes me the courtesy of informing me, and of telling me how late, so that I can do something better than read back issues of Newsweek with the time before I see him.

The practice of overscheduling appointments "on the chance" that someone might not show up or that some might be very brief, and then the doctor might have some idle time, is morally wrong and must be stopped.

This would be another instance of the doctor's considering himself and his time as somehow "above" that of his patients.

7.5. Quackery

The fact that the patient is the one in control of the service might seem to imply that he has the right to choose treatment that is "controversial" when in fact it is known that there is no medical benefit from it, and any "cure" comes from the placebo effect.

Because it is easy to deceive people desperate for a cure with fake treatments that sound plausible, it is morally legitimate for government to outlaw such quack "treatments" and allow only treatments that have objective evidence that they are medically effective.

The assumption, when a person chooses some "treatment" he has heard touted by advertisers and promoted with anecdotal "evidence" of cures, is that he wants to get better. But even if the treatment is safe and does no harm, if there is no objective evidence that it will actually do what it is said to do, then providers may be forbidden from offering it to people, on the grounds that what they are persuasively offering is a lie and a deception. No one has a right to be harmed, since a right is a moral power; and deception is an objective harm. Hence, no one has a right to be taken in by these quacks, even if he wants to be.

Summary of Chapter 7

A profession is a service in which factual knowledge rather than practical skill is sought. Since health-care delivery is a profession, it follows that the provider, as an expert, must be as knowledgeable as possible in his field, which means that he must devote some time regularly to reading the major journals.

Malpractice is the act of doing harm to someone because of negligence; with moral malpractice, you know you are negligent and do nothing about it. In cases of emergencies, like plagues, the Double Effect can sometimes justify the danger that one might (because of distractions) do harm. Legal malpractice occurs when harm is done by what would be negligence in "the normal person." Any person who engages in malpractice (even if not moral malpractice) has a moral obligation to compensate the victim: to bring him as far as possible into the condition he would have been if the harm had not occurred. The legal practice of "punitive damages" for willfully negligent people is morally wrong, however, because it is passing laws from the courtroom. No one should profit (be better off) from being harmed.

When a problem is outside a provider's field of expertise, he must refer the patient to someone competent to treat it; but he is to receive no compensation from the other person for his act of referring. An act is unethical if it is either morally wrong or gives the appearance of being so, or creates an incentive to do wrong. A person belonging to an organization is being morally wrong if he violates its code of ethics (even if the act in itself is not wrong) because he is inconsistent with his agreement to obey the rules.

Health care is also a business, engaged in to make money. A service is an act performed for the benefit of and at the request of another, who compensates the server. Thus, the service has two values. A value is a means toward a freely-chosen goal. X has a greater value than Y if the goal is more important: if you would give up the other for this one. Since goals are subjectively set, there is no real or objective value or importance to anything. The buyer-value of a service is how important the service is to him (what he would give up to get it); the seller-value is the cost (what is in fact given up, including time) of the service to the server. The price is the compromise between the two values; there is no "objective" price or value for anything. In any transaction involving values, both parties gain, because if they don't, they won't enter the transaction.

But necessities, means for achieving a minimally human existence, are not the same as values. (1) Values may be freely given up; necessities may not be, except using the Double Effect to avoid deprivation of greater necessities; (2) We have a human right to necessities, but not to values. This does not imply that we have to give necessities to others unless they can't get it by themselves or from someone else. It may be good to give to them, but it is not necessary, and can even be dehumanizing by depriving them of taking control of their lives. (3) Necessities are incommensurate with values; they have zero value if we have them, and are beyond all values if we don't. Necessities are not important, they are necessary; we don't want them, we take them for granted and have a right to all of them.

Health care is a necessity, and hence a human right. But the provider has a right to make a living from his service, or he is a slave. But since the value of his service is the only value (the buyer-value is infinite), he has to assess what he is actually giving up in performing the service and charge accordingly, adjusting also his fees so that the poor are charged less than the rich (who are hurt less by a higher fee). Since health-care providers must be educated, and since their service is often messy, risky, and degrading, they are giving up more than most by their service, and so have a right to a "comfortable" living (an upper-middle-class one), but they can't morally make themselves rich (economically superhuman) from it. Providers must also see to it that waste and inefficiency are reduced as far as possible.

Government's job is to exercise moral suasion in this matter; if it gets involved in setting prices, they will be immorally high. Using third-party payers is also morally wrong, because they make the provider serve the payer rather than the patient, and relieve the patient of his obligation to the provider; and practically speaking, they greatly increase prices. (If a person is not mentally competent, third parties [relatives] who love the patient may morally contract for the service.) The best solution to the "managed care" mess is that of catastrophic insurance plus "medical savings accounts," by which people are given a certain amount of money which they use to directly pay their bills (and can keep if they don't use it all).

Since health care is a service, the patient has basic control. He may not be treated against his will, unless he is a child or mentally unhealthy in such a way that he can't be expected to realize the consequences of his choices. Patients must be given all information relevant to the choice of their treatment: (a) what the results and side-effects are likely to be, (b) whether the treatment is necessary or only beneficial, (c) who is going to do the treating, and (d) information relevant to the person's life learned in the course of the treatment, such as whether he is dying, whether the provider made a mistake, whether the provider knows what is wrong with the patient.

Medical experiments are not morally wrong as long as the subject is fully informed and perceives no threat of any harm if he refuses (he can be offered rewards, but not think he will be harmed). Since human fertilized eggs, embryos, and fetuses are persons, they may not be experimented on, since they can't give consent. Dubiously human bodies, such as anencephalic babies, must not be experimented on, since to do so one would have to be willing to experiment on another human without his choice. The experiment cannot actually do harm to the subject as a means to achieving its goal; and members of control groups must receive the standard treatment.

The patient also deserves respect as a human being who is in control of the service. Providers must keep appointments on time, except when necessity dictates a delay; in which case, they must inform the patients, and let them know how long the delay will be, so that the patients can use their time productively. Is morally wrong to overschedule appointments to make sure that the doctor is kept busy; this is putting him "above" the patient.

Quack "treatments," which can't show by objective evidence that they do any good, may be outlawed by government, even if patients want them; because they want them because they have been deceived, and deception is an objective harm, and no one has a right to be harmed, since a right is a moral power.

Exercises and questions for discussion

1. A provider discovers a new treatment for a disease, but refuses to publish it because others might use it and deprive him of the patients he will get if he is the only one who knows how to do it. This is certainly selfish, but is he being immoral?

2. A patient has told you that if he finds out he has cancer, he will commit suicide. You discover that he has an incurable cancer, with about two years to live. Should you keep this information from him to prevent his choosing to kill himself?

3. To say that a provider can't morally make himself rich from his practice is to say that the really outstanding providers can't get the recognition that they deserve, and is to put them on a lower plane than basketball players and movie stars. How just is this?

4. If parents are responsible for their children's welfare, and the provider is serving the parents in treating the children, to what extent must the wishes of the parents prevail over the interests of the child, if any?

5. Can a doctor refuse to treat smokers, on the grounds that if they didn't want to get lung disease, they shouldn't have smoked?

6. But doesn't the outlawing of quackery mean that unconventional treatments which go against established medical practice (but which nonetheless work and are breakthroughs) will be suppressed. Why should we deprive patients of treatments that might save their lives?