Is there a right to access innovative surgery?

Abstract

Demands for access to experimental therapies are frequently framed in the language of rights. This article examines the justifiability of such demands in the specific context of surgical innovations, these being promising but non-validated and potentially risky departures from standard surgical practices. I argue that there is a right to access innovative surgery, drawing analogies with other generally accepted rights in medicine, such as the right not to be forcibly treated, to buy contraceptives, and to choose to have an abortion, including a post-viability abortion where the mother's life or health is threatened by the pregnancy. I argue that we accept these rights because we believe that people are entitled to try to preserve their lives and health and to make choices of an important and intensely personal kind, and I suggest that a person's choice of medical treatment should be seen in the same light. However, since few rights are absolute, I also consider the circumstances in which it may be justifiable to limit the right to access innovative surgery. In discussing this question, I apply the human rights standard of proportionality, comparing the importance of the reasons for limiting the right with the severity of the invasion on liberty.

Conceptualising Surgical Innovation: An Eliminativist Proposal

“…Barkun et al consider patient need to often lie at the root of SI [4], a motivation expressed by surgeons themselves [15]. Meyerson argues that patients who demand it have a right to innovative surgery in terminal illness if there is some evidence of effectiveness [53], which suggests innovation satisfies wants. Wants and needs need not be distinct, although they are often ranked, with needs putatively taking priority over wants in emergency treatments [35].…”

Ethical difficulties in the innovative surgical treatment of patients with recurrent glioblastoma multiforme

“…2,23,32,42 Although these differences have precluded the use of RCTs for most surgical interventions, resulting in an overall lower quality of evidence, surgery is frequently considered the standard of care for a wide variety of disease processes, including recurrent GBM. 9,36,40,41 Furthermore, surgical practice is generally more dependent on emerging technologies than medical treatment. 9 If all surgical procedures using new technologies were to require carefully performed animal model studies and RCTs before regular use in humans, surgical innovation would grind to a halt, and many patients would be denied truly safe treatment options that may be more effective than the current standard of care.…”

“…39 Although surgical innovation is ubiquitous, there are clearly different types, and defining what is and what is not appropriate has been historically difficult. 4,9,13,40,41 One of the major difficulties in assessing innovative therapies of any kind is defining exactly what types of procedures require assessment. Most surgical procedures exist along a spectrum of innovation: some have been performed dozens or hundreds of times and are undergoing only small modification; others are entirely new and radically different from the standard of care.…”

“…Already, many writers have discussed the relative difficulties for meeting the high ethical and regulatory standards for medical treatments in a surgical setting, where innovation is constantly occurring in small and incremental ways. 4,13,40,41,52 Moving from these arguments, many have made the claim that access to surgical innovation aligns with patient autonomy, and should be permitted in certain circumstances. Autonomy is a fundamental principle of biomedical ethics that maintains the right of all patients to make decisions regarding their own care and treatment, free from interference by others.…”

“…Autonomy is a fundamental principle of biomedical ethics that maintains the right of all patients to make decisions regarding their own care and treatment, free from interference by others. 30,41,49 Philosophically based on the human right to self-determination and now legally codified in many countries, autonomy has become an essential part of modern medical practice. Autonomy is the ethical and philosophical justification for both shared decision making and informed consent, and permits patients to have significant control over their treatment course.…”