By Mark D. White

We have another call for papers from a conference in which I've proudly participated in the past (2014), this one on the subject of "Health Law as Private Law" presented by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. and to be held in late June 2023. From the conference description:

In the pursuit of public health and universal coverage, health law scholars have long focused on the role of government, and especially the federal government. Yet, whether it is health plan coverage of reproductive services or exclusions of gender affirming care, consumer medical debt or physician practice agreements, hospital mergers or private equity acquisitions, medical negligence waivers or informed consent violations – U.S. healthcare is also substantially governed by private relations, enforced by law. Is private law – the law circumscribing the relations between individuals and institutions – a pathology or a potential fix for the U.S. health care system? In what ways might private law be used as a catalyst for health care reform, separate from federal or state initiatives?

Since at least Kenneth Arrow’s Nobel Prize-winning work in economics, we have understood that there are clear market failures in health care, including agency problems, collective action problems, and information problems. Clarity on these problems can motivate reform. At the very least, understanding the limits of the private law approaches, including those imposed by legislation, regulation, and litigation – sheds light on the potential opportunities for structural reform.

This conference seeks to explore the intersection of private law and health care, especially regarding how private law can be a tool for achieving health care reform or addressing a significant health care or public health problem. Overall, this conference and subsequent book project seek to map out the challenges and opportunities of using private law and the tools it provides to govern and shape our health care system. Contributions that explore the interaction of government initiatives and regulatory reform with private law actions in the health care space are within the scope of this project as long as the contributions focus on the private law aspects.

More details, including suggested topics and submission details (one-page abstracts due October 17, 2022), can be found at the Petrie-Flom website.

By Mark D. White

Forthcoming in Politics, Philosophy & Economics is a fascinating article by Elsa Kugelberg (Oxford) titled "Responsibility for Reality: Social Norms and the Value of Constrained Choice," in which she investigates the impact of social norms on the responsibility we bear for our choices, using the example of the interaction of gender norms and HIV prevention measures. From the abstract:

How do social norms influence our choices? And does the presence of biased norms affect what we owe to each other? Looking at empirical research relating to PrEP rollout in HIV prevention policy, a case in which harmful gender norms have been found to impair the choices of young women, I argue that the extent to which we can be held responsible for our choices is connected to the social norms that apply to us. By refining T. M. Scanlon’s Value of Choice view, I introduce a norms-sensitive contractualist theory of substantive responsibility. This feminist ‘Value of Constrained Choice view’ presents those who choose under harmful norms as having generic reasons to reject principles that provide them with opportunities they are effectively constrained from choosing. I argue that to fulfil their duties to us, and our duties to each other, policymakers must study the influence of social norms on choice and accommodate it in public policy. Contractualists have reason to pay special attention to social norms, as their unequal effects on choice reveal that we are not living under terms that no one could reasonably reject.

By Mark D. White

The final two posts at the "Cost-Benefit Analysis at the Crossroads" symposium at the LPE Project are more practical, focusing on the impact of CBA techniques in health care and the environment. (Kudos to the LPE Project for this fascinating and provocative collection of essays.)

In "The 'Value of a Statistical Life': Reflections from the Pandemic," Mark Silverman (Franklin & Marshall College) questions the validity of the concept of willingness-to-pay (WTP) on which most CBA calculations are based, especially insofar as they are taken to reflect risk-reward trade-offs, which are at the center of policymaking during the pandemic. He identifies two specific problems in particular:

The first is specific to the notion of worker rates of substitution between income and risk. In the pandemic-induced recession of 2020, with a restricted range of job opportunities, and little publicly provided material support, newly-acknowledged “essential” workers had little choice to but to accept increasingly risky jobs with little or no hazard pay. In fact, the worse the bargaining position for workers, the less they will “value” their lives – lest they risk their livelihood.

The second criticism focuses on the endogeneity of the underlying preferences. Even assuming away the question of worker bargaining power, we are still left with the question of whether, as a matter of policy, our social willingness to pay for mortality risk should be defined exclusively in terms of agents’ WTP as revealed by the market.

In "The Shaky Legal and Policy Foundations of Cost-Benefit Orthodoxy in Environmental Law," Amy Sinden (Temple University) surveys the numerous difficulties with using CBA to screen environmental policies, given the difficulty of quantifying (or monetizing) environmental improvements. Sinden lays out the implications of this failure:

If important benefits are left out of the equation the vast majority of the time, then CBA operates at best as an informal screening tool, telling us, if we’re lucky, whether the benefits of a regulation in a rough sense exceed the costs. (When you’re not so lucky and your partial benefits estimate comes out lower than your cost estimate, it doesn’t tell you much of anything.) 

Once demoted from a formal optimization tool to a rough screening tool, CBA loses its normative pedigree in welfare economics and joins the ranks of the other perhaps less theoretically beguiling but highly pragmatic cost screening tools that Congress has so often relied on in crafting our environmental statutes. These are the scrappy, street-smart tools of regulatory decision-making, like feasibility analysis, cost-effectiveness analysis, and multi-factor balancing—tools that arguably make up for in pure pragmatic effectiveness what they lack in theoretical elegance. Once your goal is no longer to reach the mythical state of economic efficiency, but rather to ensure that costs are not in some general sense unreasonable, these other tools may actually get you there more quickly, easily, and—dare I say—efficiently. 

She concludes that, rather than doubling down on CBA, the federal government should defer to individual agencies, who

should decide how to most appropriately account for costs and benefits by choosing among the wide array of tools available. This choice should be tailored to the particular context in which the rulemaking arises, giving particular attention to the feasibility of quantifying and monetizing relevant costs and benefits, along with the agency’s statutory mandates.

By Mark D. White

There is a symposium in the latest issue of Bioethics (35/8, October 2021), edited by Michael Da Silva and Daniel Weinstock, on the topic of health rights that explores their ethical, political, and economics dimensions of "health rights"—the opening paragraph of the editors' introduction provides context and citations to supporting and critical literature:

‘Socio‐economic’ rights are a species of so‐called ‘positive’ right that call for performance of certain actions—most often the provision of particular goods and services—on the part of the rights claims’ purported corresponding duty‐bearers.¹ Advocates of ‘socio‐economic’ rights to health, healthcare, or public health (‘health rights’) have produced several plausible theories that address some of the most pressing challenges for socio‐economic rights claims. Many critics still deny that moral health rights exist or that rights‐based approaches will best achieve health justice,² but health rights theorists at least provide sophisticated answers to basic questions like ‘Who possesses the rights and their corresponding duties?’and ‘What are the nature, scope, and content of the duties?’Answers to these questions differ and will not convince all critics, but rights‐based approaches to the corner of bioethics devoted to health justice now at least constitute part of the scholarly mainstream.³ Regardless of their theoretical bona fides, in turn, health rights exist in many legal systems. The international right to health is well established and most domestic constitutions recognize rights to healthcare, if not broader rights to health or public health.⁴ Theorists should and do attempt to ‘make sense’ of this phenomenon.⁵

(The footnotes appear at the end of this post.)

As the rest of the introductory essay recognizes, and the papers in the symposium explore, a right to health, as with positive rights in general, is fraught with conflicts with negative rights (against interference and compulsion) as well as other positive rights that may compete with health rights in principle or along more practical concerns of resource scarcity.

• Understanding the right to health in the context of collective rights to self-determination, by Éliot Litalien
• Individual and ‘national’ healthcare rights: Analysing the potential conflicts, by Michael Da Silva
• A justification of health policy federalism, by Daniel Weinstock
• Rethinking the right to health: Ableism and the binary between individual and collective rights, by Amie Leigh Zimmer
• Judicial interventions in health policy: Epistemic competence and the courts, by Leticia Morales
• Decolonizing health care: Challenges of cultural and epistemic pluralism in medical decision-making with Indigenous communities, by Sara Marie Cohen-Fournier, Gregory Brass, and Laurence J. Kirmayer

- -- --- ---- ----- ---- --- -- -

Footnotes to opening paragraph of introduction:

¹ For good summaries, see Rumbold, B. E. (2017). The moral right to health: A survey of available conceptions. Critical Review of International Social and Political Philosophy, 20(4), 508–528; Hassoun, N. (2015). The human right to health. Philosophy Compass, 10(4), 275–283; Hassoun, N. (2020). The human right to health: A defense. Journal of Social Philosophy, 51(2), 158–179. On the less commonly discussed purported ‘right to public health’, see Wilson, J. (2016). The right to public health. Journal of Medical Ethics, 42(6), 367–375.
² Gopal Sreenivasan provides one of the strongest arguments against moral health rights in Sreenivasan, G. (2012). A human right to health? Some inconclusive scepticism. Proceedings of the Aristotelian Society Supplementary Volume, 86, 239–265 and Sreenivasan, G. (2016). Health care and human rights: Against the split duty gambit. Theoretical Medicine and Bioethics, 37(4), 343–364, though he recognizes that legal rights exist and may be justified. Cohen, J. (2020). Paradigm under threat: Health and human rights today. Health and Human Rights Journal, 22(2), 309–312 has a nice, succinct overview of criticisms of rights‐based approaches to health justice and attempts to respond to such critiques.
³ The last two comments build on sources cited in note 1. For a succinct discussion focused on theorizing the international rights, see Wolff, J. (2012). The human right to health. W. W. Norton.
⁴ United Nations. (1966, December 16). International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, art. 12; Rosevear, E., Hirschl, R., & Jung, C. (2019). Justiciable and aspirational economic and social rights in national constitutions. In K. G. Young (Ed.), The future of economic and social rights (pp. 37–65). Cambridge University Press.
⁵ The language here is inspired by Nickel, J. W. (1987). Making sense of human rights: Philosophical reflections on the Universal Declaration of Human Rights. University of California Press. Wolff, op. cit. note 3 is an example of an attempt to ‘make sense’ of existing laws from a philosophical perspective.

By Jonathan B. Wight

Conference Dates: October 21-22, 2021

Virtual Conference

LSBU Business School
&
London Centre for Business and Entrepreneurship Research

During the last 30 years, the conversation between economic theory and ethics has been restarted, after a period of interruption, generated by the positivist era in economics. We cannot ignore, in this revival, the role of the financial crisis, gender and racial inequality and now the divisions revealed by the unequal impacts of the pandemic. An important contribution has been the call for a professional economic ethics led by DeMartino (2011) and DeMartino and McCloskey (2016).

More recently, Dolfsma and Negru (2019) challenge the idea that ethics has no place in economics. Building on their ideas we ask: Is ethics important for the study of the economy and, if so, how should it be taught?

This two day conference will be of interest to lecturers and students in economics and business - and anyone with an interest in the future of the economics curriculum.

Link for the event & registration: 
https://www.eventbrite.co.uk/e/teaching-ethics-to-economists-challenges-benefits-tickets-170298187463 


Programme

Day One: Thursday 21 October

9.45am - Virtual housekeeping & Zoom functionality - Neil Hudson-Basing, Corporate Events Manager, LSBU

9.55am - Welcome - Craig Duckworth, LSBU Business School, UK

10am - Introduction to the day. Economics and Ethics - what is the agenda?

• Ioana Negru, Lucian Blaga University of Sibiu, Romania
• Imko Meyenberg, Anglia Ruskin University, Cambridge, UK
• Craig Duckworth, LSBU Business School, UK

10.30am - Revisiting the analytical relationship of Ethics and Economics - María Isabel Encinar & Félix-Fernando Muñoz, Universidad Autónoma de Madrid, Spain

11.15am - Theoretical and ethical reductionism and the neglect of subjectivity in economics and economic education - Giancarlo Ianulardo, University of Exeter, UK

12pm - Lunch break

12.30pm - Keeping alive non-individualistic ethics in political economy: a review of concepts from Aquinas to Habermas - Stefano Solari, University of Padua, Italy

1.15pm - Racism, the economy and ethics: where does it all begin? - Paolo Ramazzotti, University of Macerata, Italy

2pm - Teaching economic harm to economists - George DeMartino, University of Denver, USA

2.45pm - Comfort break

3pm - The fate of moral philosophy in the age of economic scientism: ethics and welfare economics in mainline economics - Peter Boettke, George Mason University, USA

3.45pm - Plenary: Reflections

4pm - End of Day One

______________________________________________________________________

Day Two: Friday 22 October

9.45am - Virtual housekeeping & Zoom functionality - Neil Hudson-Basing, Corporate Events Manager, LSBU

9.55am - Welcome and intro to Day Two - Craig Duckworth, LSBU Business School, UK

10am - Managerial decision making: consequences and Consequentialism - Malcolm Brady & Marta Rocchi, Dublin City University, Ireland

10.45am - Economic curricular, pluralism and the Global South - Michelle Groenewald, North- West University, South Africa

11.30am - Accounting as applied ethics: teaching a discipline - Wilfred Dolfsma, Wageningen University, Netherlands

12.15pm - Lunch break

12.45pm - Purusharthas: the human pursuit of wealth and welfare. The Indian approach to ethics and economics - V P Raghavan, Indira Gandhi National Centre for the Arts, India

1.30pm - Economics, ethics and deliberation

• Ioana Negru, Lucian Blaga University of Sibiu, Romania
• Imko Meyenberg, Anglia Ruskin University, Cambridge, UK
• Craig Duckworth, LSBU Business School, UK

2.15pm - The kidney market debate: a retrospective on Becker and Elias - Jonathan Wight, University of Richmond, USA

3pm - Comfort break

3.15pm - Alfred North Whitehead on the education of the commercial class: its influence on Keynes - Dennis Badeen, University of Hertfordshire, UK

4pm - Plenary: Reflections

4.15pm - End of Conference

*Times according to GMT

________________________________________________________________________________________________

This conference will be delivered virtually via Zoom. You will receive the joining instructions on the Monday before the event takes place.

By Georgianne Ginder

[Georgianne Ginder’s work explores the intersection of health care and ethics. She is the Wellness Counselor at Virginia Commonwealth University’s Department of Arts in Health Care and a proponent of LifeSMILE medicine!  In this poem she grapples with the effects of unethical conduct on health.  Printed with permission. – JBW]

 Whistleblowers, Speaker-Uppers, Way Showers

Honesty Goers,

Dignity Growers

 To keep that job he 'lived ' a lie

To excel and get ahead

And when the tension grew too tough

He popped some pills instead

Instead of facing what was wrong

Since incongruency won't and can't belong...

...The body-soul sings its wake-up song...

He covered up the growing dread 

As many tend to do

Blocking what he knew was truth

Yet the lie kept coursing through...

And when he sensed he'd had enough,

Could not ignore the stress and pain

His body-mind spoke up one day

To warn and offer gain-

Live your truth; forgo the game

Holistic health must be our aim...

We often tend to live a lie

Since the culture demands so much

And when we live in danger zones

We grow more out of touch

LIVE A TRUTH and live to grow

Respect what we have come to know:

Live a truth

Above-below

The spirit-soul exists (awaits) to show.

Living a Life versus Living a Lie

No matter how 'short' or just how 'long'

Disharmony renders one less strong

July 17, 2017

By John Morton

Charlie Gard died on July 28, 2017, from a rare genetic disease.  His parents had raised enough money to get a second opinion on whether he could be saved by undergoing experimental treatment in the United States.  When the hospital and courts said no way, like many others I was shocked by the decision.  How could a hospital and judge overrule the opinion of loving parents?  The parents appealed, but finally too much time had elapsed, and the American specialist said Charlie could not be saved.  The parents then announced they were dropping their appeal.  This case scares the hell out of me.

A deeper--and less emotional--analysis, however, reveals thorny ethical questions.  From my libertarian perspective, I view most rights as negative.  Negative freedom protects people against violence from others against their person, property, and acts, such as speech and religious practices that do not harm others.  I’m skeptical when the government limits these rights because throughout history governments have been the main violators of negative freedom.

Positive freedom is a different story.  It is the ability to achieve a full life such as pursuing a career and obtaining adequate food, housing, education, and health care.  There are more problems with positive freedom than with negative freedom.  If the state helps people, say, provides free education, then it must tax others to get the funds.  This limits negative freedom.  All too frequently, the promise of positive freedom leads to authoritarianism with the suspension of all rights.

In Charlie Gard’s case, his parents raised the money for a second opinion and his treatment.  Nevertheless, medical resources used for Charlie could not be used for other children (opportunity cost and positive freedom).

In conclusion, I come down on the side of Charlie’s parents.  They loved their son more than any hospital bureaucrat or judge could.  The state cannot suffer, mourn, or pray.  Getting treatment for Charlie would hardly bring down the British health care system.

By Jonathan B. Wight

The carnage to be caused by the Republican health care bill will likely go down as a major American disaster.  Even before dis-enrolling tens of millions, life expectancy has been falling in some sectors of the U.S.

These statements seem incontrovertible:

1. Prevention is cheaper than cure.
2. Early treatment is cheaper than later treatment.
3. Doctor’s office treatment is much cheaper than emergency room treatment.
4. Contagious diseases cause negative externalities—one potential reason for government involvement.
5. Health care transactions have many of the characteristics that produce other market failures (see Ken Arrow)—another potential reason for government involvement.
6. Conservatives such as Mitt Romney and Richard Nixon, and chameleons like Donald Trump, have advocated for something like universal health care.

America is the only developed country without universal health care. Even Hong Kong, often touted as the freest economy in the world, has universal health care operating alongside a private health system.  Many health indicators are better as well, although data comparisons are sometimes misleading.  

[Image source: https://commons.wikimedia.org/wiki/File:Life_expectancy_vs_healthcare_spending.jpg]

Virtually all such systems have much lower per patient costs than the hodge podge U.S. system with for-profit insurance and hospitals, because prevention, early treatment, the avoidance of emergency rooms, and other factors actually do matter.

In no way do I endorse the view that universal health care is a right.  Nevertheless, it is a smart policy choice in the modern, high-income era.  This ain’t Victorian England anymore.   

The Republican plan to replace the Affordable Care Act will give large tax cuts to the wealthy and huge premium increases for the elderly.  The proposed plan would make it more likely that healthy young people will bail out of the system, causing premiums in general to soar.  There is a train wreck up the tracks, which may be the true aim of the plan. 

Imagine the hugely popular Social Security Program with these new provisions:  No young person need participate, or save at all, until the year of retirement.  Then there’s a modest penalty to let you into the system!” How great and sustainable does that sound?  (FYI, Social Security can reasonably be fixed with a few minor adjustments.)

Speaking of health care and the defunding of Planned Parenthood, an Instagram photo shows a piqued woman holding a sign: “Viagra is government funded ($41.6 m. per year).  If pregnancy is God’s will, so is limp dick.”*

Good point.  The men in Congress get free unlimited health care and subsidies for their Viagra.  What else is important to the nation? What if a law required members of Congress to enjoy the same health care system they foist on the rest of us?

Mark White has argued eloquently on the other side of mandated health care.  To find his numerous critiques, search this blog for “health care.”

*Thanks to Judy Reynolds for the link.

By Jonathan B. Wight

“We have invented more health care than we can afford to deliver….We already ration. The United States denies more health care to more people than any other developed country in the world. We did that by leaving 50 million people out of the system (before the Affordable Care Act).”

“[For example] I don't believe you should give any extensive operations to anybody over 85. You should make sure that they're clean, they're loved, they're comfortable, they're pain-free, but we shouldn't be doing high-technology medicine on people over 85.”

--Richard D. Lamm, former Governor of Colorado

I’m not sure what Dick Lamm means by “give” extensive operations.  Perhaps better to clarify: we should not be spending public health dollars to do heroic medicine, given that we have millions of people still without access to basic care. But individuals should be free to spend their own private money on any frivolous medical interventions they want--including cryogenics, a solid-gold casket, and so on. People should have the right to do so, even if they don't have the right to my respect for such behavior.

There is something virtuous, I think, in being prudent—in showing proper regard for our future selves.  And that means taking care of ourselves, including with medical interventions.  But at what point should we (as people who aspire to live a life of meaning) step back and follow Adam Smith’s conception of “superior” prudence. Do we have a duty to others to die gracefully—and not, for example, rack up hundreds of thousands of dollars in debt to prolong our own lives by a few weeks or months? 

Along this line, consider this post from John Kay:

“A rising proportion of medical expenditure is now devoted to prolonging the lives of the very old and the terminally ill. The costs of this are potentially unlimited.

“We should pause to ask ourselves the questions raised by the surgeon Atul Gawande in his book, Being Mortal. Perhaps the greatest challenges in modern healthcare are not those of meeting the spiraling cost of advanced medical technologies. They lie in accepting that we are all going to die, and learning to do so with dignity.”

--John Kay, in the Financial Times. 

Mark D. White

In today's "The Upshot" in The New York Times, economist Aaron E. Carroll bemoans the fact that health policymakers, regulators, and spokespeople are reluctant, and sometimes even forbidden, to discuss and make use of information regarding the cost effectiveness of particular treatments. The fear is that they will invoke the spectres of rationing and "death panels," or more generally, medical decisions made on the basis of money alone and not the needs or interests of patients and their loved ones.

I agree with Carroll that cost effectiveness is an essential and necessary topic for discussion; after all, health care has to be paid for by someone, who is responsible for making sure that scarce resources are used in the most beneficial way possible. And I think most people understand this principle as well, even if they don't want to acknowledge it at times of tragedy and impending loss.

If people are afraid of calculations of cost effectiveness, it's because they don't want some distant, faceless, bureaucracy using cold data to make decisions that affect such an intensely personal aspect of their lives. But the problem isn't the numbers themselves—it's who is using them to make the critical decisions.

If health care decisions had not been centralized under the Affordable Care Act (or a similar plan), and health care decisions were left in the hands of doctors, patients, and insurance companies unbound by government mandates regarding coverage, these parties together could use cost effectiveness numbers in a way that worked with each patients based on his or her interests, coverage, and resources. Each patient, together with his or her doctor and loved ones, could balance these various factors in a way that furthered his or her overall interests within available resources and insurance coverage. They could use cost effectiveness information as one input into a specific decision in a way that furthers that patient's interests.

I wrote about this aspect of private health care in "Markets and Dignity: The Essential Link (With an Application to Health Care)," my chapter in my edited volume Accepting the Invisible Hand: Market-Based Approaches to Social-Economic Problems (Palgrave Macmillan), on pp. 13-14:

The possibility of making private decisions regarding the benefits and costs of various treatment options, whether for minor illness or chronic disease, puts the choice in the patient’s hands (as well as with her doctor and whomever else the patient wants to join the process, such as family or friends). In consultation with her doctor, the patient can assess the value of various treatments, considering the merits compared not only to their costs, and the benefits and costs of alternative options, but also other uses towards which those resources can be devoted, which are all subjective valuations. Perhaps she will choose not to undergo the premium treatment, even if she could afford it, because she wants to leave the money for her children, or take a cruise in the final months of her life; or perhaps she will sell her house to pay for a little more time on life support and with her grandchildren. In a market setting, this choice is hers, along with its benefits, costs, and other consequences.

I am not denying that the patient may not be able to afford the premium treatment because she does not have the resources for it; this is tragic, to be sure, but unavoidable in a world of scarcity. If she is not making these decisions, someone else is; an insurance company or HMO may also refuse her the premium treatment based on costs, and a government-run health plan may do the same. But in these cases, the decision would be made for her, according to someone else’s calculation of whether the treatment was “worthwhile” in terms of costs and benefits for the hospital, insurance company, or government health program, all of whom have scarce resources that must be allocated somehow. In a market context, the decision would be hers, even if it seemed she had no decision at all because she does not possess the resources, either due to bad luck or bad planning, or other choices made through her life.

All is not lost, necessarily; just because the premium treatment is out of reach does not mean there are not lesser, more inexpensive treatments that will also be of benefit. In a market system, this is the patient’s choice, just as she can choose what size house to buy, what model car to lease, what size TV to own. Every person prioritizes the various interests on her life; some forego the large house to take frequent vacations, some do the opposite. Some may opt for the cheaper treatment option to retain more resources for another goal in life, or to give more to others rather than spend it on premium care for herself. And certainly, past choices will constrain or expand her present options; one who spends her income on lavish toys throughout life should not expect sympathy when she cannot afford top-line treatment at the end of it. But these are her choices, while in any other system, this decision may be made for her, according to calculations based on the imputed value of her life and her well-being compared to other persons. Not every person can afford to have the premium treatment, but this fact is due to scarcity of resources, not the way in which they are allocated or distributed, and it will be true under a state-controlled system as well as a market system. A state system focused on efficiency cannot allow everyone to have the premium treatment either, and the choice of who (if anybody) undergoes it will be truly arbitrary, with no role for choice on the part of the patient or her family. Choices that so closely affect a person’s life should be made by that person alone (or other persons to whom she delegates—or sells—that authority); they should not be made by another party that either presumes to know her “true interests” or serves the collective weal in the name of efficiency.