Allocating Health Care Morally

Abstract

This Article examines the promise and limits of a moral paradigm for allocating resources both to health care and among competing health care needs, and derives the essential attributes of a moral health care system. The author concludes that, given society's limited resources, the absolutist position that no beneficial health care should ever be denied is untenable. Nonetheless, no health care system can survive unless it avoids ongoing tradeoffs between health needs and monetary costs by imposing a budgetary constraint derived outside the moral paradigm. The author also concludes that the principle that everyone should receive a minimum of adequate care lacks a concrete affirmative meaning sufficient to guide health care allocations. However, the absence in the health care context of important negative reasons for refraining from an equal distribution of societal resources supports defining adequate care roughly as the level of health care enjoyed by the middle class. The author then addresses how to allocate morally a limited budget among the different health care needs of a group. He rejects arguments that certain health maximization standards are discriminatory or in tension with equity, showing that these arguments generally assume without justification that the status quo is the proper baseline for measuring discrimination. Upon examination, each maximization standard simply reflects a different baseline of what an equitable distribution of health care would look like. Although moral analysis provides various useful criteria for making health care tradeoffs within a fixed budget, in the end it cannot dictate any particular measure of group health maximization. Accordingly, individuals should have a diversity of moral choice by being able to choose-among an array of health plans-the plan that allocates resources according to the policy they prefer. Finally, the author examines consent-based theories of moral justice and concludes they cannot alone resolve allocation questions. The reason is that one must go outside the consent-based framework both to determine the timing and con-Copyright @ 1994 California Law Review, Inc., and Einer Elhauge. t-I am grateful for financial support from the John M. Olin Foundation, the Boalt Hall Dean's Fund, and the Center for European and German Studies. I also thank the

Principles for allocation of scarce medical interventions

“…23 Ultimately, although allocation solely by lottery is insuffi cient, the lottery's simplicity and resistance to corruption suggests that it could be incorporated into a multiprinciple system. 22 …”

“…52,22 Furthermore, unlike instrumental value, reciprocity does not have the future-directed appeal of promoting important health values. Ultimately, the appropriateness of allocation based on reciprocity seems to depend in a complex way on several factors, such as seriousness of sacrifi ce and irreplaceability.…”

“…16 Preferential allocation of a scarce liver to an acutely ill person unjustly ignores a currently healthier person with progressive liver disease, who might be worse off when he or she later suff ers liver failure. 8,22 Favouring those who are currently sickest seems to assume that resource scarcity is temporary: that we can save the person who is now sickest and then save the progressively ill person later. 8,22 However, even temporary scarcity does not guarantee another chance to save the progressively ill person.…”

“…8,22 Favouring those who are currently sickest seems to assume that resource scarcity is temporary: that we can save the person who is now sickest and then save the progressively ill person later. 8,22 However, even temporary scarcity does not guarantee another chance to save the progressively ill person. Furthermore, when interventions are persistently scarce, saving the progressively ill person later will always involve depriving others.…”

“…18 The major disadvantage of lotteries is their blindness to many seemingly relevant factors. 21,22 Random decisions between someone who can gain 40 years and someone who can gain only 4 months, or someone who has already lived for 80 years and someone who has lived only 20 years, are inappropriate. Treating people equally often fails to treat them as equals.…”