Ethics and Community in the Health Care Professions

Dr Michael Parker, Michael Parker

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415150279
• eBook ISBN: 9781134748617
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

The concept of community is increasingly the focus of political argument in Britain, the United States and elsewhere around the world. The sense people have of belonging to coummunities provides a powerful motivation which continues to affecct the political and social face of the world. Recently, debate about the relationship between individuals and their communities has become central to the making of both, American and European social policy. In the United Kingdom this is especially apparent in the area of health care, where ideas of community have informed recent legislation concerning community care, community health trusts and the Children Act among others. This volume explores the focus of interest in community and the emerging theoretical oppostion between communitarianism and liberalism, as well as the practical, theoretical and ethical issues relating to community in the health care professions, including a discussion of the health service as Civil Association, an analysis of liberal and communitarian views on the allocaiton of health care resources, an exploration of the use of genetic information and an examination of health care decision making for incapacitated elderly patients.

1

THE HEALTH SERVICE AS CIVIL ASSOCIATION

Andrew Edgar

The purpose of this chapter is to explore the possibility of developing a model of justice in health care that is appropriate to the European welfare states, and thereby to challenge the predominance of liberal social contract models. Crucially, the paper will seek to challenge the assumption that patients are to be conceptualised as autonomous agents, freely entering into a relationship with health care providers. It will be suggested, rather, that (at least within the European context) the patient may be understood as always already embedded within a particular community, and further as always already a member of a system of state health care provision, with at best limited scope for a partial withdrawal from that service. The justice of any such state system will be suggested to rest, not in rules of fair resource allocation, but rather in public subscription to, and negotiation of, the moral conditions under which health care is to be pursued.¹

Michael Oakeshott’s concepts of ‘enterprise association’ and ‘civil association’ will be used to explicate two possible models of health care provision, typified by Health Maintenance Organisations and the UK National Health Service respectively. Clarifying the distinction between these two types of organisation serves to raise questions as to the relevant conceptions of justice in each case.

Enterprise association

Oakeshott seeks to provide a series of models of the ‘modes of association’ within which relationships between human beings may be organised. The least ambiguous of these modes is that of enterprise association. In such a relationship, human agents come together, through their own free will, in pursuit of mutual benefit or a common purpose. Two or more agents may seek satisfaction of their distinct current wants, as in the relationship of giver and receiver, buyer and seller, busker and audience, or they may cooperate in order to secure a common goal, by forming fellowships, pressure groups, charitable bodies, commercial companies, and so on (Oakeshott, 1983, 121–125). In such associations, agents will be aware of, and will actively pursue, a substantive purpose. Indeed, as far as the association is concerned, all that is of interest about agents is their commitment to the chosen objective, and the ‘power’ (including time, energy, resources, skills) that they can bring to the project. An association can only be judged, as an enterprise association, in terms of its effectiveness in achieving its purpose, and will ideally be managed in order to maximise its efficiency. Management, through the organisation and co-ordination of the power of each member, responds to a changing environment, modifying the rules of the association after prudential consideration of the most appropriate means necessary to realise the objective. Such associations can be dissolved, should the objective be achieved or cease to be desirable, or should alternative methods be found to pursue the objective. Similarly, members are free to leave, should their interests no longer coincide with those of the association. (In practice there may be restraints upon foundation and dissolution, and upon the entry and exit of members, due for example to legal and financial regulations. Certain prospective members may equally be refused entry, on the grounds that they could not contribute adequately to the achievement of the objective.)

If the rules that serve to organise such associations, and thereby to distribute burdens, responsibilities, risks and rewards between members, can only be assessed in terms of the efficiency with which they serve to secure the desired end, then, for Oakeshott, the question of the ‘justice’ or ‘fairness’ of such rules cannot arise, for ‘fairness’ is defined in terms of the rules. A member of an association may complain that he or she has not received his or her due, as defined by the rules of the association, but cannot complain that the rules are unfair as such. Such a complaint only makes sense if the complainant is saying that the rules, as they stand and are accurately interpreted, do not serve the pursuit of his or her personal objective. As such, the objectives of the complainant and the association no longer coincide, and the complainant has every right to leave. The complainant has no right to demand a change in the rules against the will of other members.

Leonard M. Fleck has outlined a model of a national system of Health Maintenance Organisations (HMO) that may be interpreted in terms of Oakeshott’s mode of enterprise association (Fleck, 1990). Following Enthoven’s definition, an HMO may be understood as a system ‘that accepts responsibility for providing comprehensive health care services to a voluntarily enrolled population for a fixed periodic payment set in advance (i.e. a “capitation payment” that is independent of the number of services actually used). Subscribers have an annual choice of health care plans and agree to get all insured services through the HMO of their choice’ (Enthoven, 1985, 43). Fleck places a number of further qualifications on this model. Crucially, informed choice of membership and policy is ensured through potential members of the HMOs being made fully aware of what treatment is available, and what will be unavailable. (If necessary, substantial documents would be provided, detailing the rationing protocols that are part of any possible plan (Fleck, 1990, 116).) A national system of HMOs with different policies would allow any individual a more or less free choice of insurance that would suit him or her. Thus Fleck offers the slightly flippant examples of a ‘sanctity of life’ HMO (providing an ‘extensive range of life-prolonging options’), a ‘quality of life’ HMO (without such life saving options) and Eldercare HMOs (variously specialising in life-prolongation, long-term care, home care, day care and the like) (Ibid., 114). Free entry and exit into an HMO is thereby facilitated. Further, and in accord with an enterprise association, ultimately the HMOs are to be judged upon their cost efficiency in providing health care (and Fleck takes particular note of the degree to which the provision of expensive treatment for marginal benefit is inhibited).

Such a system culminates in the following scenario: an HMO member has a life threatening disease that is expensive to treat, and that is not covered by his or her insurance. For Fleck, the HMO has no obligation to pay for the treatment, and no injustice occurs should the member die. As Fleck summarises this: ‘Patients would have no right to that care, for this is care that they have denied themselves’ This is a system of ‘constructive rationing…that all would have agreed to, openly and freely and knowingly’ (Fleck, 1990, 114; original italics). In sum, as with any enterprise association, justice and fairness are seen as matters of abiding by explicit, fully understood and agreed rules, that have been entered into by autonomous (‘rational economic’) persons (Ibid., 113).

This model leads to predictable problems. On the one hand, there will be agents who are incapable of autonomous, rational economic action, due to incompetence or lack of finance. On the other hand, there are those who would be a liability to the efficient running of the HMO, and will therefore be denied membership. In response to these problems, Fleck is required to advocate a series of ad hoc amendments, typically in the form of a state subsidy or regulation (Fleck, 1990, 117–118). If HMOs are understood as enterprise associations, then there is no injustice in refusing entry to those who are unable to contribute to the pursuit of the members’ objective. Insofar as an enterprise association assumes that its members (or those applying for membership) are competent (and if necessary, economically viable) agents, there is no reason why the association should deploy resources to facilitate that competency. Similarly, while an HMO may be a non-profit organisation (at least in Fleck’s model), it is not a charitable organisation. Members are encouraged to join on the grounds that the risks of disease and costs of health care are distributed evenly about the membership. Should a potential member be predicted to make excessive demands upon the common resources of the HMO, then the existing members have the right to refuse him or her membership. Again, ‘justice’ is defined in terms of the rules of the HMO. ‘Cherry picking’ is, in consideration of the pure type of an enterprise association, not an injustice.

A further point may be made concerning the theorisation of HMOs (and of health care provision in general) in terms of enterprise associations. An enterprise association has a substantive objective. As is indicated by Fleck’s advocating of the provision of detailed protocols to members, those who join an association may be expected to have a clear and precise idea of the objectives of the association. The member of an HMO is, in consequence, not pursuing health care per se. He or she is pursuing a more or less extensive, but still finite, set of treatments. These treatments may be defined in various forms (including the form of treatment, costs of treatment, conditions to be treated, and even cost-utility ratios), as is indicated by Fleck’s suggestions for different HMO policies. This corresponds closely to Seedhouse’s definition of ‘health’ as a commodity (Seedhouse, 1986, 34–35). It is assumed that a person is normally healthy, but that health can be lost, as one might lose any other item of property. Health can be restored, in a piecemeal fashion, by purchasing the appropriate medical care. Health is understood as something separate from the individual, thereby reproducing the conception of the autonomous and disembodied agent, being as free to choose his or her health as he or she is free to choose objectives (and thus membership of enterprise associations). The prospective member of an HMO thereby attempts to anticipate a series of medical interventions that he or she may require, and will be able to afford. The choice is, in consequence, between a more or less extensive list of medical interventions, and the alternative commodities that could be purchased with the insurance premium.

Civil association

Fleck’s national system of HMOs, and indeed a state-funded national health service, may be seen as conglomerations of enterprise associations. Not just the HMOs themselves, but hospitals, hospital departments, ambulance units, and even individual consultations may be seen as enterprise associations. Each has a specific objective (or set of objectives), and there is substantial freedom of entry for both those who work for the units (be they medical staff, administrators or other support workers), and for those seeking treatment (albeit to a lesser and more variable degree). But if these systems were nothing more than conglomerations of enterprise associations, such that the system itself has no properties over and above those of its component parts, then the system would be inherently unstable. This may be demonstrated by comparing enterprise associations to social contracts.

Within an enterprise association individuals contract with each other, formally or informally, in order to pursue their objectives. Such contracts are unstable because they are relationships between self-interested bargainers, and the association can only continue if the various members keep to their bargains. To break one’s promise at worst dissolves the association, and at best hampers the collective pursuit of the objective. (While there may, in practice, be penalties imposed upon those who break the rules to which they have subscribed, in principle, an associate may exploit the trust bestowed on him or her by others, in order to pursue his or her own objectives. Such cheating is wrong, only because it violates the rules of the enterprise association. The cheat has, however, placed him or herself outside of that association, and exploits the gullibility of the association as he or she might exploit any other resource.) If human beings are to be understood as solitary, self-interested and rational creatures (as is the liberal conceit), then neither a society, nor the system of health care within it, can be composed only of such contracts, for they will be perpetually threatened by what might be understood as a Hobbesian state of war.

Oakeshott’s own analysis develops from his reading of Hobbes (Oakeshott, 1991). The inherent instability of enterprise association suggests to Oakeshott that its conceptualisation cannot provide an exhaustive account of the possible modes of human association. Oakeshott’s concept of ‘civil association’ is thus introduced, in order to characterise a further aspect or mode of association. Civil association characterises a stabilising context of moral considerations, an ethical life, within which instrumental activities are pursued. While responding to the problem posed by Hobbes, Oakeshott seeks to break out of Hobbes’s purely contractual model of human association. Thus, Oakeshott sees Hobbes as overcoming the instability of mundane social contracts (and thereby averting the threat of war,) by positing a unique contract between subject and sovereign. In such a contract the subjects abandon their unconditional freedom to pursue their self-chosen goals. In mundane contracts, and thus in pure enterprise associations, the associates retain their ‘natural right’ to pursue their objectives under conditions of their own choice. (As such, the potential associate may permit him or herself to cheat. He or she is under no obligation to subscribe to any more exacting moral rules.) In a Hobbesian commonwealth, the agent has transferred this unconditional right to the sovereign, so that the sovereign sets what Oakeshott terms the ‘adverbial’ conditions under which the agent continues to pursue his or her chosen objectives (Oakeshott, 1991, 259–263 and 1975, 58n). Mundane social contracts thereby come into existence within a broader, and prior, civil order. It is this civil order in which Oakeshott finds a rudimentary understanding of civil association.

Fleck’s ad hoc amendments to his system of HMOs, in the form of state regulations, intuit something of this civil order. Regardless of the insurance policy an individual chooses, he or she is required to accept a set of core services that will be provided in all policies, and to submit to a system of top slicing, that will equitably impose additional burdens upon all HMOs, in order to ensure that provision is made for the economically incompetent. One may thereby pursue whatever health policy one likes, but only within certain boundaries. The state seemingly acts as the sovereign, dictating appropriate boundaries. Fleck thereby continues to work with the conceptual tools of a social contract. The amendments suggested are prudential, which is to say that they are designed to bring about some substantive purpose (complementary to those of the HMOs themselves). The system is designed to ensure that all, including the economically incompetent, receive a specific minimal health package. It remains unclear why the disembedded liberal agents should tolerate these amendments (for they will increase the cost of policies, at no obvious personal benefit). Should the agents so choose, they will presumably be able to remove these amendments at the next state elections. Three responses to this problem may be suggested. First, the amendments may be shown to be in the ultimate self-interest of the economically competent, if they serve to defuse the (political and physical) threat posed by those who would otherwise be denied health care, and to police those who would seek to cheat. On the condition that all believe that the economically incompetent are satisfied and that cheats are detected and punished, the amendments serve to stabilise an otherwise unstable system. Second, a rational defence of the justice and equity of the amendments may be given. This, however, begs the question of how readily swayed even rational liberal agents are by reasoned argument.² Third, Fleck may presuppose a prior moral sentiment prevalent amongst the economically competent that entails their acknowledgement of some obligation for assistance of the economically incompetent.

Hobbes’s commonwealth, and by derivation Oakeshott’s civil association, are more subtle responses to these problems. While Hobbes’s sovereign has the authority to establish the manner in which its subjects pursue any chosen objectives, it cannot dictate the objectives that its subjects must pursue. Subjects are thereby left free to form whatever enterprise associations they may wish. Because the sovereign recognises no substantive interest as paramount, and requires no objective to be shared by all its subjects, the commonwealth is non-instrumental. The sovereign does not attempt to mediate or negotiate the various conceptions of the ultimate good held by its subjects. (Indeed, Hobbes suggests that there is no ultimate good for humans, precisely because the human condition is such that human satisfactions are transitory.) This is already at odds with Fleck’s recommendation of a set of core services that all (including the poor) must accept. The only purpose that can be attributed to the commonwealth is that of maintaining a state of peace (and thus stability). This, for Oakeshott, is not a substantive purpose. Peace cannot be chosen in preference to any other objective, for peace is the precondition of achieving any substantive objective whatsoever (Oakeshott, 1975, 61–62). One cannot be motivated to pursue peace per se, for peace is only of value insofar as it facilitates the pursuit of other objectives. (As Oakeshott expresses this general principle, developing upon the nominalism that he identifies in Hobbes, a person does not want to be happy, but ‘to idle in Avignon or to hear Caruso sing’ (Oakeshott, 1975, 53).) The commonwealth is of value, not because peace is a consequence of this particular mode of organising human conduct, but rather because peace is inherent to it (Oakeshott, 1983, 161). The rules that compose a commonwealth, and which elucidate the adverbial conditions of all conduct, cannot then be assessed in terms of their efficacy for realising any substantive objectives, either of the commonwealth as a whole, or of factions within the commonwealth.

Oakeshott borrows from Hobbes’s diagnosis of the civil condition the insight that any enterprise association needs to be supplemented by broader regulative conditions, and that these conditions must lie outside the choice of the individual agents themselves. The setting up of a Hobbesian commonwealth ex nihilo is, however, dismissed as an absurdity (Oakeshott, 1983, 150). Oakeshott turns to seek these moral conditions not in a contract, but rather in the socially embedded existence of all human beings. For Oakeshott, the human being does not pre-exist society, as it appears to for Hobbes and in liberal theory, but is rather, to use Heidegger’s metaphor, thrown into a particular society upon birth, and is constituted, in its particularity, by that society. As such, the individual has no choice about his or her entry into (or exit from) a civil association. Civil association need not therefore be invented, for it always already exists. Civil association remains an artefact, insofar as it is a product of wilful, conscious human agency. But, while Hobbes’s commonwealth is the product of a single creative initiative, Oakeshott’s civil association is the outcome of a prolonged and continuing tradition of moral conduct and reflection. Civil association will thereby lack the coherence of Hobbes’s vision, being rather ‘a manifold of rules, many of unknown origin, subject to deliberate innovation, continuously amplified…not infrequently neglected without penalty, often inconvenient…and never more than a very imperfect reflection of what are currently believed to be “just” conditions of conduct’ (Oakeshott, 1975, 154). Yet, as for Hobbes, all that binds society together is a common acknowledgement of the authority of this manifold.

Oakeshott’s concept of a civil association rests upon a richer understanding of what it is to be human than the Hobbesian model. He observes that the agent ‘comes to consciousness in a world illuminated by a moral practice and as a relatively helpless subject of it’ (Oakeshott, 1975, 63). Central to his account, and what distinguishes it from Hobbes’s, is the role that morality, and thus civil association itself, plays in illuminating, or more precisely, in giving meaning to, the world. For Oakeshott, the human agent is not merely a rational, self-interested Hobbesian, but rather a creature that is continually struggling to make sense of itself, of its community and of its environment. Akin to Hobbes’s commonwealth, the civil association is composed of the conditions that agents subscribe to in the pursuit of any substantial objective. Such conditions are the substance of moral sentiments. For Oakeshott, these ‘conditions may be somewhat indefinite uses or customs, they may even be no more than general maxims of conduct, or they may have the marginally less indeterminate character of rules or regulations’ (Ibid., 120). They are moral conditions precisely because they are not prudential. While an agent freely takes account of these conditions in carrying out any purposive action, they do not determine the purpose to be pursued. Rather, they characterise the manner of that pursuit, and thus do they characterise the agent. Oakeshott clarifies this thesis by drawing an analogy between morality and language. Morality is ‘an instrument of understanding and a medium of intercourse’, and has ‘a vocabulary and a syntax of its own’, and may be ‘spoken well or ill’ (Ibid., 62). Individuals are thus bound together in a civil association, again, not because they share common purposes, but because they share a common moral language (albeit that each may speak in a different idiom and with a different degree of competence). It is in this language that the community articulates, to itself, the sort of people it is. Morality is ultimately treated as a resource, throug...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Notes on contributors
• Series editor’s preface
• Introduction: health care ethics: liberty, community or participation?
• 1 The health service as civil association
• 2 All you need is health: liberal and communitarian views on the allocation of health care resources
• 3 Return to community: the ethics of exclusion and inclusion
• 4 Community disintegration or moral panic? Young people and family care
• 5 Contracting care in the community
• 6 Virtual genetic counselling: a European perspective on the role of information technology in genetic counselling
• 7 Cultural diversity and the limits of tolerance
• 8 Ethics, community and the elderly: health care decision-making for incompetent elderly patients
• 9 Power, lies and injustice: the exclusion of service users’ voices
• 10 Ethical codes: the protection of patients or practitioners?
• References
• Index