SECTION 6: THE PRINCIPLE OF JUSTICE
In Sections 4 and 5, we concentrated on principles that have their central application within the sphere of the care of the individual. Now we shall be looking at a principle which is used in health care decisions which go beyond the particular individual. The Principle of Justice , that equals ought to he considered equally, 1 is applicable in two areas of health care decisions.
If a particular course of treatment is the most beneficial for that individual, it does not follow that the individual will be able to receive that treatment given limited resources. A principle of justice needs to be designed to provide a just way of distributing benefits between individuals.
The following example provides an illustration of the relevance of the Principle of Justice in allocating resources between individuals.
THE ARTIFICIAL HIP EXAMPLE
There are two individuals both of whom require an artificial hip. One is in her mid-20s and at the start of a promising medical career. The other is in her late 60s and retired. There are only enough resources for one hip replacement from within the current budget. If we apply the Principle of Justice, that equals ought to be considered equally, which of these individuals ought to receive the transplant?
To try to answer this question we need to gain a clearer understanding of precisely what the Principle of Justice means and how it might be justified.
6.2 CONSEQUENTIALIST INTERPRETATIONS OF JUSTICE
A distinction is drawn between the formal principle of justice, that equals ought to be considered equally, and various ways in which this might be interpreted. The formal principle is almost universally accepted and, as it stands, appears to be intuitively acceptable. Unfortunately, this formal principle is compatible with many different interpretations and it is these latter over which there is disagreement. Some of these interpretations lead to substantial principles that many might consider to be blatantly unjust'. We shall argue that one of these is incorporated in the consequentialist interpretation of a Principle of Justice.
Consequentialists, as we have seen, consider that what is of value is that the best outcome be produced and that actions or rules are right in proportion as they produce the best outcome. When it comes to considering a consequentialist justification of justice, Mill writes:
He explains that what he means by this is that:
What we can see from this is that the equals' referred to in Aristotle's formal Principle of Justice is not being taken to apply to individuals but instead to amounts of happiness. Therefore, although the first quotation gives the appearance of supporting equality between individuals, the explanatory comment makes it clear that what is intended is equality between amounts of happiness and not between individuals.
6.2.1 The consequentialist conception of justice ignores individuals
Now, what one would expect from a principle of distributive justice is that the principle would ensure an equitable distribution of benefits and burdens within society. However, Mill's interpretation of justice has not ensured this at all. If justice is to consist in equal amounts of pleasure being equally desirable then this claim is compatible with a very unfair distribution of happiness between individuals. The ultimate aim is the achievement of the greatest amount of happiness and equal amounts of happiness are equally desirable. Therefore, if the same amount is available to those who are well off as to those who are not so fortunate, This Principle of Justice says nothing about giving the benefit to the less advantaged individual. In other words, the achievement of the greatest amount of happiness is compatible with a very unequal distribution of that happiness between individuals.
Singer, another consequentialist whose theory we have discussed, will also be faced with the same difficulty as Mill. According to Singer, the best outcome consists in the maximum satisfaction of interests of those affected. To achieve this situation one must adopt the following principle:
In other words, his Principle of Justice is guaranteeing that interests be treated equally. It is not advocating that individuals be treated equally. From this it does not follow that there will be a just distribution of interest satisfaction over those affected. Similar interests are to be considered equally regardless of who possesses them, but this could lead to a very unequal distribution of interest satisfaction over the population.
6.2.2 The Principle of Declining Marginal Utility
Consequentialists usually make either or both of the following replies to this criticism. One reply consists in denying that the sort of situation that I have described will occur since they support the Principle of Declining Marginal Utility. This states that:
For example, $5 given to a beggar is more useful that $5 given to a millionaire.
This principle translated into Singer's system is presumably as follows. The satisfaction of like interests by those who have more of their interests satisfied compared with those who have few of their interests satisfied will count for less interest satisfaction. In this way, they will guarantee a fair distribution of interest satisfaction between individuals.
However, the factual claim incorporated in the Principle of Declining Marginal Utility about how interest satisfaction will be achieved does not invalidate the point made above. Consequentialists cannot guarantee that outcomes will only be as good as possible when there is a fair distribution between individuals. The essence of their problem is that good outcomes are viewed as the maximum satisfaction of interests or pleasure and this is considered as a totality, divorced from individuals. In the case of Mill's system, pleasures and pains are divorced from their recipients and considered independently as contributing or not to the maximum happiness. The same point applies to Singer's interests since they are similarly divorced from their owners.
The second argument that is often used by consequentialists to counter the sort of criticism that we have put forward is that there is a disutility in allowing a situation where there is an unfair distribution in terms of benefits. In other words, more utility will be produced if there is a fairer distribution among individuals. However accurate this claim might be, the point still remains that individuals are not considered equally under a consequentialist interpretation. What is ultimately of value is the maximum production of what is considered to be good. If this in some cases allows for an unfair distribution then the consequentialists will have no way of condemning this. If enough benefit can be achieved, then it is possible that this might involve enormous harms to a small number of people since these harms will be outweighed by the total benefit.
Veatch constructed a hypothetical case where the greatest benefit would be achieved if 1 % of the population were excluded from health care where this 1 % comprises the
The essence of the problem, then, for all these consequentialist theories is that they lose information about who is benefited and who is harmed and can only reflect the total benefits of a situation. As Veatch is highlighting, if those most in need were excluded from health care, the total amount of benefits would be increased. This point will be returned to later in the course when deontological interpretations of the Principle of Justice are considered.
6.2.3 QALYs and the allocation of medical resources
Before considering deontological interpretations of the Principle of Justice, we will illustrate the effects of a consequentialist approach to justice in the area of the allocation of health care resources (see ET1008: Section 14.2).
Allocation of health care resources is undertaken at both the macro and micro level. The macro-allocation level is where decisions are taken about how revenue should be distributed between the competing, claims of, for example, health, education, defense, transport and arts. Decisions at this level are also taken when considering how to allocate resources within the health budget. For example, how much should be spent on mental health, community health, different treatments and different hospitals? The micro-allocation level is where one is determining which individuals should receive a certain treatment, for example, when there are only a limited amount of treatments available. What would count as a just distribution of the available treatments? The artificial hip example' is at this level.
A consequentialist approach to both the macro- and micro-allocation problems has been assumed by those who advocate adopting a quality adjusted life year (QALY) approach as a way of determining a just distribution of available resources. Alan Williams stated that:
Now, it is relatively uncontentious to say that we want as much benefit as possible from the resources allocated to health care. What is at issue is how we are to measure benefit. Williams proposes that benefit be measured in terms of how many QALYs can be obtained for the resources available. In other words, just as Mill argues that the best outcome is the greatest amount of happiness, Williams advocates that the best outcome is achieved when the greatest amount of QALYs is produced. They are both adopting a consequentialist approach, although they differ on what they take to have ultimate value.
Williams states that:
The only dimensions of quality that Williams has built into the concept of a QALY are those of physical mobility and freedom from pain. These evaluations were based on the responses of 70 healthy' respondents. These evaluations, coupled with information about life expectancy, have yielded a meaning for the concept of a QALY. In addition, then, to objections to consequentialist accounts of justice, this particular consequentialist theory is operating with a very impoverished view of quality. It is one that assumes that qualitative dimensions ascertained from one group of the population can be extended to become universally applicable. 10
At the macro-allocation level, treatments are assessed according to the number of QALYs that they would yield coupled with the cost of these QALYs, which clearly vary from treatment to treatment. For example, the following figures were given by Williams:
On this basis, QALYs would be maximized by a transfer of resources to hip replacement treatments away from heart or kidney transplantation.
Is this a just way to allocate resources? Decisions at the macro-allocation level clearly affect decisions at the micro-allocation level, since the former decisions determine how much money will be allocated to different parts of the health service. In addition, if a QALY approach is adopted at the micro-allocation level as well, this will immediately act to the disadvantage of those who have less life expectancy. One such group will be those who are old, which has led to the accusation that QALYs are ageist 12. It will also act to the disadvantage of those who have conditions other than the one whose treatment is being contemplated. This is because they will register a lower score in terms of the QALY calculation. For example, an individual who needs a hip replacement and whose physical mobility is impaired by arthritis would score lower than the individual who just needs the hip replacement but does not have arthritis.
Although Williams has explored the concept of a QALY in more detail in later papers 13, 14, the above problems still apply. This is because they all illustrate the difficulties of allocating health care resources on the basis of QALY maximization. The essence of the problem with any consequentialist account of what counts as a just distribution of available resources is that it does not take into account the needs of individuals. The primary reason for this is that the central concern for consequentialists is that outcomes be as good as possible and what counts as a good outcome is something that is divorced from the individual in the population who is receiving it. According to Mill we are seeking to maximize the quantity of happiness, for Singer the quantity of interest satisfaction, and for Williams the number of QALYs. These outcomes are judged in isolation from the question of which individuals receive these benefits.
Also, an implication of the particular consequentialist view adopted by Williams is that more QALYs will be yielded if treatments are given to those in less need since a larger amount of QALYs will be generated by this procedure. For example, someone who will die without a heart transplant needs that treatment more than someone who will not die without a hip replacement. However, as we have seen from the figures just given, QALYs will be maximized by hip replacements rather than heart transplants. What is needed is an account of justice that reflects the needs of individuals and does not act to the disadvantage of those who are in greatest need. We shall now look at a deontological approach to justice which does just this.
6.3 DEONTOLOGICAL INTERPRETATIONS OF JUSTICE
Rawls, in A Theory of Justice 15, proposes that we should determine what our principles of justice will be by imagining what principles we would choose from behind a veil of ignorance'. This veil of ignorance' reflects our ignorance of what position we will eventually hold within society. Since we do not know what natural attributes we will possess and in what social circumstances we will be placed, he considers that this device will produce a concept of justice as fairness. It is fair because it does not allow benefit to be distributed on the basis of accidental circumstances, for example, who one happens to be and into what social class one happens to have been born. He considers that this will lead to the position that we should distribute all vital economic goods and services equally, unless an unequal distribution would actually work to everyone's advantage. He arrives at two principles of justice which he initially formulates as:
First: each person is to have an equal
right to the most extensive basic liberty compatible with a
Second: social and economic
inequalities are to be arranged so that they are both
The principle of liberty given first is referring to those areas over which an individual ought to have autonomy. Areas that we have encountered in Section 4, such as freedom of thought, speech and combination with others. Political freedom and freedom to define life plans would also be included in this first principle. Rawls considers that this first principle has priority over the second. This is because the preservation of these liberties is not to be sacrificed to the goal of greater social or economic advantage. Liberty has intrinsic worth and is not being justified in terms of its recognition leading to a good outcome. This is the point of contrast between this deontological theory and consequentialist theories which only value liberty for the end that recognition of liberty might bring about (see Section 4.2.1). Rawls' deontological theory is taking the notion of what is right to be primary and not to be defined in terms of what will lead to good outcomes (see Section 2.3). This aspect of his theory leads him to give priority to the first principle since any social or economic gain cannot be justified at the expense of the denial of this first principle.
The two aspects of the second principle are also ordered such that (b)' has priority over (a)'. In other words, just as the second principle does not come into play until the first principle is satisfied, similarly, (a)' is not applicable until (b)' has been fully satisfied. As Rawls make clear later in his book, (a)' is to guarantee that social and economic inequalities are arranged so that they are to the greatest benefit of the least advantaged (see ET1008: Section 17.7).
6.3.1 Illustration of Rawls' approach in health care
If we take an example at the macro-allocation level, the contrast between Rawls' approach and that incorporated in the consequentialist doctrine of QALYs is clearly illustrated. Let us suppose that there is a proposal to spend more money on the mentally retarded by withdrawing them from large, state-run institutions and instead housing them in smaller community based homes. Is it just to spend extra money on this section of the population? To simplify the case, we can assume that this extra money will be allocated from funds already made available to health spending. Therefore, there is no question of this claim on the money competing with expenditure claims in areas other than health.
It is claimed that the quality of life of the mentally retarded will be greatly improved if housed in these smaller units since the conditions in the large, state-run institutions are very poor. Ought the money to be spent on this program? Alternatively, the money could be spent on health care for three other groups in society: normal or nearly normal children, adults of working age, and pregnant women. Many more normal or nearly normal children could be treated than in the former program. Also, one product of health care for pregnant women would be less future children suffering from complaints such as Down's syndrome.
The object of considering this example is not to arrive at a decision to this particular case since many more details would have to he provided before that could sensibly be attempted. Rather, it is to illustrate the different questions that consequentialists would consider relevant to deciding this issue as opposed to adherents of deontological views. A consequentialist approach, such as that incorporated in the concept of a QALY, would consider the following questions to be relevant: How many QALYs would be yielded by each program? What is the relative cost per QALY? It is likely that this sort of cost analysis would yield the result that the second program should he adopted. However, adoption of the sort of deontological approach advocated by Rawls would make the following considerations relevant. It is important that those at present in the mental institutions have as much liberty as possible. Second, that as they are part of the least advantaged section of society, it should be recognized that any social and economic inequalities should he arranged to their greatest benefit. The needs of these individuals are being considered rather than concentrating on the greatest benefit that can be achieved irrespective of who receives that benefit.
What has emerged from these last three sections on the Principles of Autonomy, Beneficence, Non-malfeasance and Justice is the importance of valuing individuals in ethical decisions. Consequentialist justifications of all four of these principles take as central the value of outcomes. The maximization of happiness, interest satisfaction,
or QALYs is taken to be what is of
value and the lives of individuals are only of secondary importance.
Deontological justifications, on the other hand, value individuals as ends in
their own right and not as means which can he traded off against one another as
a means towards maximizing some further end.
1. Aristotle, Nicomachean Ethics, Book Five. In J.A.K Thomson (trans.) (1966) The Ethics of Aristotle. Penguin, London.
2. Mill, J.S. 'Utilitarianism'. In M. Warnock (ed.) Utilitarianism. Fontana Library, Glasgow, p319.
3. Ibid, p319.
4. Singer, P. (1933) Practical Ethics (2nd edn). Cambridge University Press, Cambridge, p21.
5. Ibid, p24.
6. Veatch, R. (1981) A "Theory of Medical Ethics. Basic Books, New York, p172.
7. Goodinson, S.M. and Singleton, J. (1989) 'Quality of life: a critical review of current concepts, measures and their clinical implications'. International Journal of Nursing Studies, 26: 4, 327-41.
8. Williams, A. (1985) 'Quality adjusted life Years and coronary artery bypass grafting'. DHSS Publication on Quality Adjusted Life Years 75-88, pg76.
9. Ibid, p78.
10. Goodinson and Singleton. op. cit.
11. Williams, op.cit., p86.
12. Harris,, J. 'More and Better Justice'. In J.M. Bell and S. Mendus (eds) (1988) Philosophy and Medical Welfare. Cambridge University Press, Cambridge.
13. Williams, A. 'Ethics and Efficiency in the Provision of Health Care'. In J.M. Bell and S. Mendus (eds) (1988) Philosophy and Medical Welfare. Cambridge University Press, Cambridge.
14. Williams, A. (1992) 'Cost-effectiveness analysis: is it ethical? Journal of Medical Ethics, 18: 7-11.
15. Rawls, J. (1976) A Theory of Justice. Oxford University Press, Oxford.
16. Ibid, p60.
17. Veatch, op. cit., p252-3.