EU Health Systems and Distributive Justice

Towards New Paradigms for the Provision of Health Care Services?

Danielle Da Costa Leite Borges

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138645172
• eBook ISBN: 9781317240624
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

EU Health Systems and Distributive Justice uses theories of distributive justice to examine tensions created by the application of the Internal Market rules to the provision of health care services within the European Union.

Using the concepts and principles embedded in the theories of egalitarianism and libertarianism, this book analyses the impact of the Internal Market rules on common values and principles shared by European health systems, such as universality, accessibility, equity and solidarity. This analysis is conducted using the specific issue of cross-border health care.

This book makes innovative contributions to the study of the relationship between EU health systems and the Internal Market – it encompasses the analysis of all principles recognised by EU institutions as guiding principles of European health systems; it integrates human rights law and practice into the discussion of the EU Court of Justice's approach to patient mobility cases; and it assesses the potential impact of the Internal Market over EU health systems through the lens of distributive justice, looking at the underlying principles of these systems that are mostly concerned with social justice.

Ultimately, this is not a book on EU law and health care, but it is a book on distributive justice, health care and the principles and policies guiding European health systems.

1 Ideology in the field of health care

A general overview

This chapter starts by explaining why health and health care have special moral importance. Then, by distinguishing egalitarianism from libertarianism, theories that can be used to justify the distribution of benefits – as is the case of health care – within society, it shows that public health systems which provide universal access to health care, such as EU health systems, tend to use the egalitarian theory as the basis for their policies. It concludes by analysing the role of the market in the delivery of health care.

The special importance of health and health care

One of the reasons leading to the discussion of ideology and ethics of distribution in the field of health policies is the moral importance attached to health and health care as special benefits or goods. Since the ancient world, health has been recognised as a special good: Ancient Greek poetry and the Hippocratic texts already mention and attribute a special importance to health. In the 17th century Descartes, in his Discours de la Méthode, ascertained that ‘the preservation of health is … without doubt the first good and the foundations of all other goods’.¹

Although it resembles other forms of human capital, such as education, professional knowledge or athletic skills, it is fundamentally different from them in several crucial respects: first, it is subject to strong and unpredictable risks, which are mostly independent of one another. Also, health cannot be accumulated in the same way as knowledge and skills.²

This idea has evolved through time and by the end of the 19th century, when the treatment of infectious diseases became possible through the discoveries of bacteriologists, health became a question of medicine and also science.³ Accordingly, this special importance was expanded to include health services, since one of the fundamental objectives of these services is to improve the health of the population they serve.

Even if health care is not the only determinant of health and is sometimes not the most effective and efficient way to protect and promote health,⁴ it is still extremely important for people because health care services can supply some critical needs in case of illness and can reduce people’s anxiety about payment for the coverage of catastrophic illness.⁵ In fact, in modern society chronic diseases tend to affect and disable people frequently and thus the use of health care services tends to be necessary for a wide range of problems. As Tom Beauchamp points out, ‘medical needs deserve special attention because they are unpredictable, randomly distributed, underserved, and overridingly important when they appear’.⁶ Moreover, considering the different kinds of interventions that health systems are able to develop and apply against a large number of diseases, evidence indicates clearly that health systems make a large difference to health.⁷

In recent years, several authors have developed research concerning the special moral importance of health and health care. Norman Daniels, for example, who expanded Rawls’ appeal to the principle assuring fair equality of opportunity,⁸ attributes a moral importance to health care by arguing that the maintenance of the normal functioning of the body contributes to protecting the range of opportunities that individuals can reasonably exercise. Even if health is not the only factor affecting the range of opportunities open to people, ‘the loss of functioning or premature death that may come with ill health clearly diminish the range of plans of life people can reasonably choose among in a given society. Accordingly, protecting health protects opportunity, even if it is not the only thing that does so’.⁹

A similar approach is proposed by the capability view of health, developed from Amartya Sen’s capability theory,¹⁰ which also supports the view that health and health care – due to its role in influencing health – are special goods. Resting on the Aristotelian ethical principle of ‘human flourishing’, this view considers that health is an end of political and societal activity,¹¹ emphasising that it is important because it is directly constitutive of a person’s well-being and enables that person to pursue the various goals and projects in life that he or she values.¹² Instead of focusing on means (income, for example), the capability approach focuses on the opportunity to fulfil ends. As Sen illustrates:

if a person has a high income but is also very prone to persistent illness, or is handicapped by some serious physical disability, then the person need not necessarily be seen as being very advantaged, on the mere ground that her income is high. She certainly has more of one of the means of living well (that is, a lot of income), but she faces difficulty in translating that into good living (that is, living in a way that she has reason to celebrate) because of the adversities of illness and physical handicap. We have to look instead at the extent to which she can actually achieve, if she so chooses, a state of good health and wellness, and being fit enough to do what she has reason to value. To understand that the means of satisfactory human living are not themselves the ends of good living helps to bring about a significant extension of the reach of the evaluative exercise. And the use of the capability perspective begins right here.¹³

Besides considering that the benefits of health are indispensable to individuals, the capability approach also supports the view that health is important for political communities, because ‘without minimum levels of health populations cannot fully engage in the political process, generate wealth and assure economic prosperity, and provide for common defense and security’.¹⁴ In effect, when used as a supportive theory for the development of social policies and for the solution of actual policy problems, the capability approach shows some advantages over other theories. First, because it recognises that human flourishing does not only depend on resources and, thus, that social policy should not only be concerned with material resources; and second, because this approach focuses on outcomes that are valuable in themselves. In this connection, for example, an index based on this approach would not consider only GDP per capita as a variable representative of development; it would also include other variables, such as literacy, education and life expectancy.¹⁵

In a similar vein, other authors recognise the importance of health as a universal need. According to this view, together with autonomy, physical health works as a ‘universal precondition’ to meaningful social participation. Hence, the provision of this basic need is essential to enable people ‘to engage in the social activities that are central to the human condition’.¹⁶

Accordingly, once it is recognised that health and health care have a special status, the criteria for the distribution of these goods within the society will be different from the criteria applied to the distribution of non-special goods. Considering that theories of distributive justice tell us what goods justice is concerned with and how justice requires them to be distributed,¹⁷ theories of distributive justice must be approached when talking about the distribution of health and health care. Therefore, the work turns now to the question concerning the theories of distributive justice used to justify the distribution of health and health care within society. The focus will be specifically on health care services and, as already pointed out, the intrinsic relationship existing between these services and health.

Health care and theories of distributive justice

Theories of social or distributive justice are the philosophical foundations used to justify the distribution of benefits and burdens within society. As opposed to the idea of retributive justice,¹⁸ which is concerned with private relations and is the business of courts and the legal profession, distributive justice is the ‘justice owed by community to its members, including the fair allocation of common advantages and the sharing of common burdens’.¹⁹ Hence, it is seldom the business of courts, but primarily the business of government and public policies. Different theories of distributive justice will reflect different moral principles as the basis (or the meaning) for what is just (or fair) and what distinguishes these various theories are the principles used to give material content to the idea of justice. Although there are other principles and theories to justify the distribution of health care,²⁰ here I will deal only with the principles related directly with egalitarian and libertarian theories of justice. This choice is due to the fact that this book is concerned inter alia with the contrast between egalitarian and libertarian values within health care systems. The material principles of justice considered here are:²¹

• to each person an equal share;

• to each person according to individual need;

• to each person according to individual effort;

• to each person according to societal contribution;

• to each person according to ability to pay;

• to each person according to merit.

Considering that the distribution of health care is primarily a political issue, each government invokes one or more of these material principles for public policy purposes, applying different principles to different contexts.

Egalitarianism

Egalitarian theories of justice emphasise equal access or equal distribution of social goods as a material principle of justice. A traditional and common criterion used by egalitarians is the Aristotelian principle of equality that equals ought to be treated equally and unequals may be treated unequally.²² However, this basic idea of equality is merely formal since no reference is made to what is to be considered equal. Thus, formulated in this way, the principle lacks substance, and in order to specify the relevant grounds on which people are to be treated equally, it is necessary to give some specification of the kind of equality that is under consideration.

The classic material principle of equality in terms of the distribution of goods corresponds to the idea of to each an equal share. However, an extreme equality in the distribution of resources, though desirable, can be said to be unfeasible. First, because the way modern societies are organised in terms of legal, political and economic structures cannot allow for a completely equal distribution of resources without also implying a breach of individual property rights. Second, even if equality were achieved, inequality would probably emerge again because people’s capacities, qualities and wants differ.

In the field of health care, this type of extreme egalitarianism or ‘strong egalitarianism’²³ is avoided since it could lead to absurd situations in which a healthy individual receives the same amount of care as one in real need of care. Therefore, if the objective is to obtain an egalitarian result in the distribution of resources without violating individual rights or leading to absurd situations, other rules and principles must be applied in order to obtain the equalisation of differences between individuals. In this regard, another rule used by egalitarians is the principle of equality of opportunities. According to this rule, equalisation is achieved by giving people equal access to positions in society, i.e. any individuals in society with the same native talent and ambition should have the same prospects of success in competition for positions that confer special benefits and advantages.²⁴

The principle of equality of opportunity was disseminated in the late 20th century by the most influential theory of justice of this time – that of John Rawls.²⁵ Although a philosopher in the liberal tradition, the distribution of social goods proposed by Rawls’ theory is associated with egalitarianism. According to Rawls, there are two basic principles of justice:

First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar sch...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• List of Cases
• Epigraph
• Introduction
• 1 Ideology in the field of health care: a general overview
• 2 National and European approaches to social citizenship and solidarity
• 3 The provision of health services at the national level: models for the financing and delivery of health care, and their guiding principles
• 4 The framework of health services provision at the EU level
• 5 Insights from Human Rights law and practice
• 6 The EU approach to health care and the development of new values in the provision of health services
• Conclusion
• References
• Index