Fall 1998 Human Rights Magazine

By Richard D. Lamm

Late in the thirteenth century, Martin of Tours was riding his horse, alone and cold, through the deepening night toward the medieval walled city, which was his destination. Just outside the city gates, he came across a cold and starving beggar. In an act of charity that resulted in his being sainted hundreds of years later, he took half his cloak and half his dinner and gave it to the cold and starving beggar. It was clearly the moral and ethical thing to do, and has served as an example of Christian charity for centuries.

Yet, Bertold Brecht, in one of his plays, raises this fascinating question: What if instead of one cold and starving beggar, there were fifty, or sixty, or 100? What would the ethical choice be now? What should the ethical person do? There is no way or reason to choose one among the many cold and starving beggars. Moreover, it is hard to ethically know what to do other than perhaps say a prayer for them all as you ride past them into the city.

It is my passionate belief that this parable applies to the dilemma that the world is faced with in twenty-first century healthcare. There is a new set of realities with which we are confronted, and we must develop a new set of values, a new set of institutions, and a new way of looking at public policy if we are going to resolve the implications of this brave new world.

All of the world’s nations face a dual challenge in healthcare—to expand basic healthcare to the medically indigent, yet to set limits on what benefits are to be subsidized by public policy. The latter task, setting limits, is an even harder challenge than the former because of the endless cures and treatments that technologically advanced societies can now provide to their aging populations. Nine-tenths of hospital costs and two-thirds of physicians’ fees in the United States are paid by third-party payers. Whether government or private insurers, whoever allocates these dollars will have to set priorities on how to maximize health status within those limited resources. Which benefits do we pay for, and which ones don’t we pay for? Every year there will be a different answer as technology and science enlarges our options. Guido Calabrisi, speaking generally of these dilemmas, says in his book, Tragic Choices:

We are embarking upon a new world of public policy choice. Our healthcare system and all its culture and ethics have developed under the assumption of unlimited resources. In thirty years, America’s healthcare spending has gone from 4 percent of gross domestic product (GDP) to 14 percent of GDP at a growth rate two and a half times the rate of inflation. Our national health bill is now over one trillion dollars a year, by far the largest percentage and amount of resources in the health sector in the world. These statistics have allowed us to erroneously believe that we can meet all reasonable needs for all Americans.

Increasingly, we are recognizing that this is not the case. As one health economist said so well, paraphrasing Winston Churchill " . . . a nation can provide all of its people with some of the care that might do them some good; it can provide some of its people with all the care that might do them some good; but it cannot provide all of its people with all of the care that might do them some good." (Victor Fuchs, "Antagonists or Allies in Making Health Policy?," West Journal of Medicine (1998)).

I applaud the goal of providing healthcare to all members of society. I have been fighting all my political life to cover the medically indigent with basic healthcare. However, in so doing, I have never argued that healthcare is a "right" or "human right." To make such an argument would be a public policy mistake.

It Would Be a Mistake to Leave the Definition of Healthcare Rights to the Courts

"Rights" are defined and interpreted by the judicial system. A "right" trumps all other categories of social spending. It is the language of courts developed in an adversarial process. There is a Gresham’s Law to language where we dilute or diminish the meaning of important words by overuse and overextension. I suggest that the word "rights" is one such word, desperately important but prone to overuse. If we are to successfully change public policy, we must take great care in our use of language and strategy. A just society has many "needs" that cannot and should not be reduced to "rights." "Rights" are ultimate values that a society must protect at all costs. They are our society’s ultimate "Thou shalt nots."

It is problematic to consider healthcare as a "right." If everything is a right arguably, nothing is a right. We can easily dilute the important meaning of this word by claiming idealistically that all good things are "rights." It is a good-hearted mistake, but a mistake nonetheless. Even if it could be achieved, it would be counterproductive to the overall welfare of society.

Rights are an ineffective way of determining who or what is covered. The world of public policy is the world of choices, priorities, and tradeoffs. An institution must weigh total social need and cannot allow one social good to crowd out all others. As one expert put it: "How can a state that lacks the resources to provide everyone who needs it with . . . renal dialysis, or a heart transplant, claim to be giving full effect to the right to health services? With the public’s seemingly unending need for healthcare, how can any state reasonably recognize a universal right to services? Such acts of recognition would mean signing a blank check; it would ruin the national economy." (Christopher Robbin, "The Ethical Challenge of Rationing," The End of an Illusion (1984)).

Comparisons cannot be made between the many social goods a society must allocate using its legal system. Allocating finite resources over infinite needs is not advanced by the language of rights nor the province of courts. The judicial system is too blunt an instrument to weigh and balance either within the healthcare system or among total social needs.

Thus, public policy in most areas cannot be built around rights. Rights are adversarial and individual, where health policy has to balance both who is covered and what is covered for all citizens. It has to say both "yes" and "no." What is necessary is that we expand the moral vision of the legislative process. A caring government, not the judiciary, has a duty to the medically indigent. As Oregon Governor John Kitzhaber said: "The legislature is clearly accountable not just for what is funded in the healthcare budget, but also for what is not funded. Accountability is inescapable, a major departure from the current system."

We can and should provide basic healthcare to all citizens, but this should be done through the legislature, not the courts, and it should be accomplished as a matter of good social policy, not by playing the trump of rights.

A Balanced Approach

Public policy is filled with unmet needs. The moral agony of being a public servant is that there are so many important and worthy needs and goals and that it is not possible to satisfy them all. It is painful to balance and tradeoff between such valuable goals.

Every country in the world allocates limited resources among multiple needs. If government plays any role in healthcare, it has to prioritize needs. The method varies (some ration by price, some by queuing, some overtly by not making certain procedures available, and limiting procedures for people over certain ages), but all set limits. We are fooling ourselves when we do not admit that we too set limits. We, in fact, limit healthcare in one of the cruelest ways that any nation can do so—by simply leaving people out of the system. As one expert put it: rationing . . . is an integral component of our healthcare system, although we euphemistically call it by other names, for example, cost-sharing, preexisting condition limitations, or simply "uncovered" services. In many respects, there is little difference between these mechanisms and the existing policies in other countries that are openly acknowledged to ration care. It is not a question of whether rationing exists, but of what form it takes. (N. Daniels, "Healthcare Needs and Distributive Justice," Philosophy and Public Affairs, Vol. 10, pp. 146-79).

We can provide compassionate and comprehensive healthcare to all our citizens, but we cannot give everything. We must distinguish the many things that we do in modern medicine from what we ought to do with our limited resources.

In a world of limited resources, we cannot say "yes" unless we say "no." We cannot explore the best use of our resources, the so-called "opportunity costs" of each dollar, unless we set priorities on what we can afford. We must start a community dialogue about how to put our healthcare dollars to the highest and best use. It is an inevitable discussion and we ought to make a virtue out of necessity.

The exciting challenge of healthcare reform is that many thoughtful people believe we can give more health to more people for less money once we start to recognize that rationing is inevitable.

This means we are going to have to spend as much time setting limits in healthcare as we expend expanding the coverage of healthcare. The price of a compassionate healthcare system is a restricted healthcare system. American medicine believes its duty is to deliver all of the healthcare that is "beneficial" to all patients—even marginally "beneficial." Thus, we have essentially invented a system without brakes—a system whose yardstick (i.e., a determination of what is "beneficial") is bound to bankrupt us. There is literally no end to "beneficial" medicine. There are so many things that we can do at the margin that are awesomely expensive, but essentially do not begin to meet any kind of test of cost- effectiveness in a society that has a variety of other unfilled social demands. We must put some public policy limits on the limitless concept of "beneficial."

A French study once gauged what it would cost to give all the healthcare that is "beneficial" to each citizen. The study found that it would cost five and one half times the French gross national product. Evidence from other societies suggests that all have found a way to limit the concept of "beneficial."

I believe the sum total of all "beneficial" medicine, as now defined, would be impossible to fund. More importantly, it would give us an unethical healthcare structure— unethical because it dramatically overspends on some patients, while other important social goals go unmet. The language of "rights" is not useful in correcting this imbalance that needs maximum flexibility.

How Do You Buy Health for Society?

One inevitable result of the healthcare dialogue in other countries is that the focus shifts from the individual to the larger question of: How do you buy health for society? These nations have come to the common sense conclusion that public policy ought to maximize a nation’s health, not healthcare.

Clearly, public funds should be spent in a way that will maximize their effectiveness. We cannot build a healthcare system (particularly a publicly funded one) one patient at a time. Inevitably, nations must start to ask: What policies buy the most health for the most people?

Canada, for instance, commissioned a study, "The Determinants of Health," (CIAR Publication No. 5, Canadian Institute for Advanced Research, p. 42, Aug. 1991) that examined which policies brought the most health for Canada. The study arose out of a dilemma similar to one now occurring in the United States. The study found that Canadians were spending too much on healthcare and not enough on other health-enhancing activities.

Many people have pointed out that spending money on the healthcare system was not the best way to a healthy society. The study urged Canadians to expand their concept of health far beyond medical care and to "adopt a new framework for understanding health. The challenge of the future lies in using this knowledge to develop effective policies that will ensure a healthy and prosperous society."

A similar dialogue is going on all over the developed world. How does a society produce health? Increasingly, the answer is that the healthcare system is only a small part of the solution. Nations must start to focus on health, not healthcare.

Achieving a healthy society may thus involve saying no to certain aspects of healthcare. Health may be best achieved in other areas of social policy. Archie Cochrane, the famous British physician, recognized this when in 1972, he refused to support more resources to Britain’s National Health Services (NHS) observing there was more health in other areas of social policy. "I have no intention of joining the clamor for far more money for the NHS. If more money becomes available for the welfare services, I think an increase in old-age pensions should have priority."

We have not had this dialogue in the United States. We’ve never asked: How do we spend our resources to achieve the most health? The results of this failure are tragic: too much spent on allopathic medicine—too little spent on public health; and too many specialists—too few primary physicians. We need a larger vision of health than the leaders of healthcare have given us—and to achieve that we need a broader conversation removed from talk of a "right to healthcare."

The Price of Modern Medicine

It is wonderful rhetoric to claim on the political stump that all citizens ought to have a "right to healthcare." But it is not good public policy. Medical policy and ethics focus mainly on the individual, and urge—under the pain of a lawsuit—to do everything that is "beneficial" or will "add value" to that patient. This standard soon runs into the law of diminishing returns and simultaneously distributes limited resources ineffectively. The price of modern medicine is to decide what to cover among the smorgasbord of treatments available.

The healthcare system can no more afford to do everything "beneficial" for every patient than the education system can do everything "beneficial" for every student, nor the police department do everything "beneficial" for every citizen, nor every parent do everything "beneficial" for their children. We are judging much of what we do and expect in health from an unsustainable yardstick.

No matter how we organize and no matter how we fund healthcare, we will find our medical miracles have outpaced our ability to pay. It is hard to change our thinking after years of blank check medicine—but necessary. As David Eddy said, "We will need to accept, once and for all, that resources are limited. It is the limitation on resources that both necessitates and justifies the strategy of getting more for less." This is painful, but unavoidable. We are inventing the unaffordable and spending the unsustainable. We need to focus limited resources on where they will buy the most health for society.

A decent and just society is a structure with many important pillars. Healthcare is one of those pillars but so is education, justice, welfare, decent infrastructure, and liveable environment. My generation has been mesmerized by the concept of rights because the concept was so useful in expanding freedom and justice. But "rights" are not a universal tool applicable to every social need.

Conclusion

I am increasingly skeptical that human rights is a useful platform for the public distribution of social goods. Like the statue in the park, its pose is heroic but it is not practical or useful except as an unattainable symbol. One can declare endlessly and idealistically that "human rights" include not only freedom but also food, housing, healthcare, a liveable wage, and a chicken in every pot. Beyond being laudable goals, they are not achievable in the world of public budgets.

People have a right to worship their God or gods, but government doesn’t have the enabling function of building them a church. Individuals have a right to free speech, but government doesn’t have to buy them a newspaper or time on television. Citizens have the right to vote, but not to a ride to the polls. Social policy must take great care to avoid turning "rights" into entitlements.

Richard D. Lamm is the former Governor of Colorado. He is Director of the Center for Public Policy & Contemporary Issues at the University of Denver

As published in Human Rights, Fall 1998, Vol. 25, No. 4, p.8-11.