Is There an Ethical Right to Health Care?
In establishing the World Health Organization (WHO) in 1946 and writing that agency’s constitution, the participating nations declared the basic principle that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being” (World Health Organization, 1946). Similarly, in the Universal Declaration of Human Rights (UDHR), promulgated in 1948, the General Assembly of the United Nations provided that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including…medical care…and the right to security in the event of…sickness, disability,…old age or other lack of livelihood in circumstances beyond his control” (United Nations, 1948). Neither of these documents, however, provides an explanation of the ethical basis for concluding that health is a right or, even more, a fundamental right.
Like these international organizations, many writers and advocates have simply assumed—or taken for granted—that individuals have a right to health or at least a right to health care services. The failure to identify the ethical basis for such a right has made it difficult to specify the scope of the right or the parties responsible for ensuring that the right has been satisfied. As Onora O’Neill (2005) has explained, to say that an individual has an ethical right to something requires us to say also that some person or entity has an ethical obligation to satisfy that right. That is, “there cannot be a claim to rights that are rights against nobody, or nobody in particular” (p. 430). Thus, if there is an ethical right to health, a failure to satisfy that right for any member of society would not merely constitute bad public policy. It would mean that some person or entity has acted in an unethical manner. Under these circumstances it is important to consider the ethical basis for a proposed right to health, the scope and limitations of that right, and the persons or entities that would have an ethical obligation to ensure that the right has been satisfied.
Some individuals and organizations have tried to rely on international agreements or declarations as the ethical basis for a right to health. Those agreements and declarations include the Universal Declaration of Human Rights and the Constitution of the World Health Organization, as discussed previously, as well as the right to health put forth in article 12 of the International Covenant on Economic, Social and Cultural Rights (Toebes, 1999). Unfortunately, those international agreements are extremely vague. In addition, the right to health under international agreements is generally considered to be nonjusticiable, because it cannot be enforced through procedures at the United Nations and would not be binding on the courts of any nation, unless that particular nation had adopted a similar law or constitutional provision of its own (Toebes, 1999, pp. 661–662, 670–673). Therefore, this type of right has been described as “aspirational” (Giesen, 1995, p. 289). Nevertheless, the fact that international agreements and declarations are not enforceable as legal rights does not necessarily mean that they could not provide a moral basis for a right to health. The problems with relying on those agreements and declarations as foundational sources of moral authority lie elsewhere. The first problem is that it would constitute circular reasoning to declare that a certain right is fundamental and then to conclude that there must be such a fundamental right because it has been declared to be so. The second problem with relying on international agreements and declarations as sources of ethical rights is that doing so would undercut the argument that those rights are universal. As O’Neill (2005) has written, “Declarations and Covenants cannot show that some particular configuration of institutional rights and obligations is universally optimal or desirable, or even justifiable” (p. 432). Finally, if the right to health exists by virtue of international agreements and declarations, then that right would cease to exist if, at some time in the future, those agreements were to be amended, repealed, or dissolved. For all of these reasons the ethical basis for a right to health must be sought elsewhere.
Some people have relied on the concept of human rights as the ethical basis for supporting the existence of a right to health. Under this approach a human right to health existed long before it was described in any international agreement or declaration, and that right to health exists independently of any such agreement or declaration. One problem with this approach is that it begs the question as to the ethical basis for a right to health by characterizing it as a human right to health. It is not enough to assert that health is a fundamental human right. It is necessary as well to identify the basis for the very existence and definition of human rights as a whole.
Although we have an intuitive sense that human beings are entitled to certain human rights, there is little consensus as to the basis and scope of those rights. In fact, John Arras and Elizabeth Fenton (2009) have described the conventional wisdom among scholars of global human rights that it makes sense to consciously avoid the difficult and divisive questions about the underlying ethical basis for those rights in order to avoid undercutting support for the human rights movement (p. 28). An additional problem with relying on the concept of human rights as an ethical foundation is that all rights, including the right to health, must have corresponding obligations, as discussed previously. Thus, it would be necessary to identify the specific persons or entities that could be held responsible for the unethical conduct of failing to satisfy legitimate claims under the proposed human right to health (Arras and Fenton, 2009, p. 34; O’Neill, 2005, pp. 430–433).
Other ethical theories or approaches have been used in an effort to support the existence of a right to health. For example, utilitarianism can provide support for a right to health for all members of a society, because a healthy population would promote the common good and because a safety net of health insurance or public health care services would promote a sense of security and social solidarity. However, as a basis for an ethical right to health care, utilitarianism raises difficult problems, such as requiring the denial of long-term care to individuals who will never be socially productive (Daniels, 1998, p. 318). Other writers, such as Elaine Fox (2006), have used religious principles to support an ethical basis for a right to health (p. 13).
Relying on John Rawls’s theory of justice, Norman Daniels (1998) used the concept of equality of opportunity as the basis for his approach to the right to health (pp. 319–320). According to Daniels, illness and disability limit the opportunities that individuals would have were they not ill or disabled. Equality of opportunity is also limited by other factors such as education and money, as well as by the unequal distribution of talent for performing various functions. However, Daniels rejected the notion that equality of opportunity requires society to use health care resources to increase the capacities of individuals whose normal functioning leaves them at a disadvantage compared to healthier or more physically able individuals. Instead, Daniels concluded that individuals have a right to health care that can help them to “function as ‘normal’ competitors, not strictly equal ones” (p. 319).
Under Daniels’s approach, the right to health care is a positive right, one that provides an entitlement for each individual to receive a fair share of health care services. In addition, the right to health care imposes an obligation on society to provide a sufficient percentage of its resources for purposes of health (Daniels, 1998, p. 317). Daniels argues that
there are social obligations to design a health-care system that protects opportunity through an appropriate set of health-care services. If social obligations to provide appropriate health care are not met, then individuals are definitely wronged. For example, if people are denied access because of discrimination or inability to pay to a basic tier of services adequate to protect normal functioning, injustice is done to them. If the basic tier available to people omits important categories of services without consideration of their effects on normal functioning, for example, whole categories of mental health or long-term care or preventive services, their rights are violated [p. 320].
However, not everyone agrees that there is a right to health or a right to health care. O’Neill (2005) has criticized the succession of claims about various rights, claims that are vague or poorly defined and that fail to specify the persons or entities that could be held responsible for violating those rights (p. 428). According to O’Neill, the goals of the human rights movement are not limited to protecting vulnerable populations but also include extending governmental power over individuals and installing mechanisms of governmental control (p. 439).
Other writers have criticized the entire concept of positive rights to goods and services, such as a right to health care, by arguing that the only real rights are negative rights to be left alone (Epstein, 1997). Moreover, Robert Sade has argued that medical services are produced by the work and thought of individual doctors and those services are the property of the doctors who produced them (Sade, 2007, p. 1430; 2000, pp. 181–182). According to Sade, patients have no more of a right or entitlement to those medical services than they have a right or entitlement to the bread produced by a baker, the food grown by a farmer, or the house constructed by a builder. Moreover,
The concept of medical care as the patient’s right is immoral because it denies the most fundamental of all rights, that of a man to his own life and the freedom of action to support it. Medical care is neither a right nor a privilege: it is a service that is provided by doctors and others to people who wish to purchase it. It is the provision of this service that a doctor depends upon for his livelihood, and is his means of supporting his own life. If the right to health care belongs to the patient, he starts out owning the services of a doctor without the necessity of either earning them or receiving them as a gift from the only man who has the right to give them: the doctor himself [Sade, 2000, p. 182].
The problem with Sade’s analysis is his underlying assumption that medical care is produced solely by the work and thought of individual doctors. In reality, society contributes greatly to the education and training of doctors. In addition, society provides substantial resources to assist doctors in treating their patients, such as the use of hospital facilities and equipment, payments for treating patients who are enrolled in various government payment programs, and use of tax revenues to support medical and scientific research. Finally, society grants doctors an exclusive and lucrative franchise to provide services to other members of the community. Under these circumstances it is specious to argue that medical services are produced solely through the effort of individual doctors, or to imply that doctors do not have an affirmative obligation to give back some portion of their time and services to other members of the community.
Other people have taken a very different approach by arguing either that it is simply impossible to answer the question of whether a right to health care exists, or that it really does not matter whether there is an ethical right to health care. That is the approach taken by the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research when it issued its report on access to care in 1983. The commission took no position on the issue of whether there is a right to health care, but rather focused on the uniqueness of health care and the moral obligation of society:
As long as the debate over the ethical assessment of patterns of access to health care is carried on simply by the assertion and refutation of a “right to health care,” the debate will be incapable of guiding policy. At the very least, the nature of the right must be made clear and competing accounts of it compared and evaluated. Moreover, if claims of rights are to guide policy they must be supported by sound ethical reasoning and the connections between various rights must be systematically developed, especially where rights are potentially in conflict with one another. At present, however, there is a great deal of dispute among competing theories of rights, with most theories being so abstract and inadequately developed that their implications for health care are not obvious. Rather than attempt to adjudicate among competing theories of rights, the Commission has chosen to concentrate on what it believes to be the more important part of the question: what is the nature of the societal obligation, which exists whether or not people can claim a corresponding right to health care, and how should this societal obligation be fulfilled? [President’s Commission…, 1983, pp. 34–35, footnote omitted].
Does it really make sense to argue, as does the President’s Commission, that society has a moral obligation to provide health care services to which no individual necessarily has any right? According to O’Neill (2005), it is possible to have “imperfect” moral obligations, which are not paired with any rights of particular claimants (p. 430). However, Baruch Brody (1991) argued that the commission’s reasoning is illogical. Brody conceded that the moral obligation of a single individual to help other people in society does not give any potential recipient a right or entitlement to the assistance of that particular donor. However, Brody distinguished that situation of individual donors and recipients from the commission’s position because the commission supported a more general obligation of society as a whole to every individual in need. “If, as the Commission believes, society has an obligation to provide some level of health care to all of the indigent, then it would seem that, as a correlative to that obligation, the group of the indigent have a right, which they hold against society as a whole, that that health care be provided” (p. 117). Thus, Brody reasoned that the commission was incorrect in its analysis, although he recognized that the commission and its advisers might have decided to avoid relying on a right to health care in order to make the commission’s report more politically acceptable (pp. 117–118).
In addition, Brody argued that the proposed right to health care is not helpful in resolving the most significant policy issues, which concern the volume of care and types of care that society should provide for people who cannot afford to pay the cost of their care (pp. 113, 120–126). Brody did not take a position on whether there is, in fact, a right to health care (p. 14). Rather, Brody argued that the answer to that question does not really matter, because it does not help us to answer the questions that need to be answered. Similarly, Arras and Fenton (2009) agreed that the difficult decisions about which types of care to provide for specific types of patients cannot be made by concluding that individuals have a right to health care (p. 33). Even Norman Daniels (1998) acknowledged that the existence of a right to care does not avoid the need to determine, by fair procedures, the particular services to which patients would be entitled in light of the available resources, technological capacity, effectiveness of treatments, and the impact of various treatments on equality of opportunity (pp. 320–323). Countries that have adopted a right to health care for their residents by implementing universal systems of coverage, such as Norway, still face the difficult problem of rationing limited resources (Norheim, 2005). These issues of rationing care and allocating limited resources are discussed in detail in Chapter EIGHT.
Other writers have agreed that efforts to prove the existence of a right to health care would not solve the most important problems faced by modern societies. For example, writing from a feminist perspective, Susan Sherwin (1992) noted that a right to health care would not necessarily meet the needs of various groups of women. Even if a society were to provide greater access to health care by means of universal health insurance coverage, that would not solve health problems that result from systemic oppression of women, such as violence and insufficient resources for proper nutrition (pp. 227–228).
So, where does that leave us? Some people take for granted that a right to health care exists. Other people argue, on various ethical grounds, that a right to health care does or does not exist, and yet other people respond that it really does not matter whether there is an ethical right to health care. On balance it is reasonable to conclude that there is at least some minimum level of health care to which every member of a decent society is entitled, merely by being a member of that society, even if we cannot specify the precise limits of that entitlement. Admittedly, this conclusion leaves many difficult questions unanswered. However, under this approach, proposals for health care reform and expansion of coverage would be recognized as being supported by moral authority, rather than merely by arguments about policy, politics, or economics. As Arras and Fenton (2009) have stated, a right to health care “removes the issue of access to a basic level of health care from the vagaries of the free market” (p. 32). In Chapter NINE the importance of values and ethics in health system reform is discussed in greater detail.
Ethical Obligations of Health Care Professionals
Obviously, providing health care services to indigent patients is beneficial and laudable. But is providing indigent care merely a gift, or is it an ethical obligation? Do doctors and other health care professionals have an ethical duty to provide some amount of free or discounted services, such that failure to do so would constitute unethical conduct?
As discussed earlier, Sade (2000) argued that patients do not have a right to health care, but Sade acknowledged that a physician could choose to provide his or her services as a gift (p. 182). Sade did not mention any ethical obligation that would require a physician to make a gift or otherwise provide services without charge. However, accepted principles of professional ethics recognize an ethical obligation to provide some amount of indigent care, as discussed later. Sade also insisted that the physician’s highest professional value is the best interest of his or her patients (p. 185). What Sade failed to address is the ethical obligation of physicians to those individuals or groups who are not fortunate enough to be patients of those physicians or of any other physicians.
In analyzing the underlying values of health systems in the United States and other countries, Reinhard Priester (1992) noted that one of the dominant values in the U.S. health system is the autonomy of physicians to select their patients. Physicians in the United States generally recognize an ethical duty to provide charity to the poor, but they reserve the power to select the particular recipients of their charity (p. 89). Moreover, physicians make their own decisions about the volume of charity care to provide. Prevailing standards of medical ethics in the United States include an obligation to provide some amount of uncompensated care, although the appropriate amount is left to the discretion of the individual physician. Priester recommended that physician autonomy should be subordinated to the higher value of providing fair access to care (pp. 103–104). According to Priester, “if fair access cannot be assured without imposing restrictions on a provider’s freedom to choose patients, then provider autonomy may be restricted, for example, by requiring providers to see a minimum number of Medicaid enrollees or other underserved people” (p. 104).
The organized medical profession in the United States, which determines its own standards of medical ethics, has not adopted Priester’s recommendation that autonomy of physicians should be subordinated to the higher goal of promoting access to care. Instead, the standards of medical ethics in the United States generally allow physicians to accept or deny new patients, unless a medical emergency exists. The Principles of Medical Ethics of the American Medical Association (AMA) (2001) provide that a “physician shall…except in emergencies, be free to choose whom to serve.” According to the AMA, physicians ordinarily have the right to decide whether to enter into a physician-patient relationship with any particular patient. The AMA has recognized, however, that this prerogative of physicians is limited by the obligation to “respond to the best of their ability in cases of medical emergency” (American Medical Association, 2003). In addition, a physician’s prerogative may be limited by that physician’s prior agreement in a contract to treat certain patients, and physicians may not refuse to enter into a physician-patient relationship for a discriminatory reason (American Medical Association, 2003).
In situations that do not constitute a medical emergency, the AMA has taken the position that “physicians have an obligation to share in providing charity care…but not to the degree that would seriously compromise the care provided to existing patients” (American Medical Association, 2003). The AMA’s approach emphasizes that physicians bear some of the obligation for care of the indigent, but not the sole responsibility, because society also bears the obligation to provide sufficient resources (American Medical Association, 1993). The AMA has not specified an appropriate volume of indigent care, which would depend on the circumstances, but it has stated, “Caring for the poor should be a regular part of the physician’s practice schedule” (American Medical Association, 1994). One specific aspect of this issue, involving the duty to provide care for undocumented aliens, is addressed in detail in Chapter TEN.
Aside from the ethical obligation to provide indigent care, health care professionals have a duty to provide services during a pandemic or other public health emergency, even at some risk to the professional’s own health and safety. However, the basis and scope of that duty has been subject to dispute. In 166 AD Galen apparently left Rome at the time of a plague, and most physicians who encountered the Black Death in fourteenth-century Europe ran away (Emanuel, 2003, p. 590). In contrast, when the AMA developed its first ethical code in 1847, the code explicitly required physicians to continue to treat patients during times of “pestilence,” regardless of their own risk of death. One hundred and ten years later, in 1957, the AMA shortened its ethical code and eliminated that section (Zuger and Miles, 1987, p. 1926). A 2004 AMA ethics opinion recognizes the ethical duty of physicians to provide services during a disaster, despite the personal risks, but encourages physicians to balance the need to help patients during the disaster with the need to preserve the physician’s availability to serve other patients in the future (American Medical Association, 2004).
Some writers have argued that by entering into their profession, doctors and other health care professionals voluntarily assume the risk of infectious disease (Ruderman and others, 2006). However, in a 2002 survey of U.S. physicians, only 55 percent agreed with the statement that “physicians have an obligation to care for patients in epidemics even if doing so endangers the physician’s health” (Alexander and Wynia, 2003, p. 195). A separate survey in 2005 of workers at local health departments in the State of Maryland found that almost half of those workers would probably not be willing to work during an influenza pandemic (Balicer and others, 2006). Canadian researchers have reported that some hospital staff members were fired for failing to work during the SARS epidemic (Ruderman and others, 2006). However, in a survey of workers at a large teaching hospital in the United Kingdom, only about one-fifth of the workers responded that they would not work if the risk of infection were high and personal protection were limited (Barr and others, 2008, p. 50). Of course, that type of survey measures only self-reported statements of future intent. In an emergency, people might act differently from what they had predicted.
In 2007, the World Health Organization published a report on the ethical issues in preparing for pandemic influenza. That report recognized that one important aspect of preparing a public health response is ensuring that health workers will be willing to perform their functions during a pandemic, despite the personal risks (p. 13). The WHO report also recognized that the extent of the ethical obligation to provide services during a pandemic is unclear and that the obligation of the health professional to provide services during a pandemic must be balanced against the professional’s other ethical obligations:
A strong case can be made for recognizing a moral obligation to provide care during an outbreak of communicable disease, especially a disease of pandemic proportions However, even for workers with specialized skills, the moral obligation to work during an influenza pandemic is not unlimited. Judgments about the scope of any particular worker’s moral obligations must take into account factors such as the urgency of the need for that individual’s services and the difficulty of replacing him or her, the risks to the worker and indirectly to his or her family, the existence of competing moral obligations, such as family care-giving responsibilities, and his or her duties to care for other (present and future) patients [World Health Organization, 2007, p. 13].
Writing about pandemic planning in Australia, Adrienne Torda (2006) agreed that the ethical duty to provide services must be balanced against other ethical duties (p. S74). Moreover, under the principle of reciprocity, society has an obligation to provide support for health workers who undertake the risk of infectious disease, including appropriate protective equipment, assistance to these health workers and their families, and possibly even priority in receiving vaccinations and other limited medical resources (Barr and others, 2008, p. 51).
As Caleb Alexander and Matthew Wynia (2003) have explained, ethical theories do not provide clear answers about the duty to provide services during a pandemic, “and none can provide specific guidance as to the exact degree of risk to be undertaken” (p. 195). Under these circumstances, the 2007 World Health Organization report takes a very practical approach by recommending that the obligations of health workers in a pandemic should be set forth in policies that are developed in a transparent and open manner and with the participation of workers and professional organizations (pp. 13–15). According to that report, policies should consider the roles and risks for different categories of workers and should “accommodate legitimate exceptions regarding assignment of individuals with fragile health status to risky situations (e.g., individuals who are immunodeficient or pregnant)” (p. 14). The WHO report also emphasizes that policies developed in this manner can influence the behavior of health workers, even if the policies are not legally enforceable, because workers would probably view those policies as legitimate (p. 15). Considering Toronto’s experience with the SARS epidemic, Alison Thompson and others (2006) also emphasized the importance of fair processes for making hard decisions during a pandemic, in part because those decisions would then be perceived as more legitimate. However, these writers also acknowledged that compared to the experience of SARS in Canada, the experience of SARS in China might demonstrate the importance of a different set of ethical values. The activity at the end of this chapter provides an opportunity to use a transparent, participatory process in developing a policy for a community health center about the obligations of employees to work during a pandemic or other emergency.
Ethical Obligations of for-Profit Health Care Providers
In the case of nonprofit health care organizations, the primary purpose for their existence is to provide services to people in their communities. In contrast, for-profit organizations in the health sector exist primarily for the purpose of earning money for their owners. All health care facilities, regardless of their ownership or governance, must impose some limitations on their services in order to remain financially viable and continue in operation. Nonprofit and publicly owned health care facilities often have their own institutional agendas and do not necessarily operate at all times in the best interest of their local communities. Nevertheless, it is fair to distinguish nonprofit and public facilities from those facilities that exist primarily for the purpose of making a profit.
Is it inherently unethical to provide health care on a for-profit basis? In many countries the vast majority of physician practices are operated on a for-profit basis, either as sole proprietorships or in some form of group practice. In addition, private enterprise can be a method of generating resources for the construction and operation of health care facilities, when sufficient funds cannot be raised from taxpayers or donors.
Many people criticize pharmaceutical manufacturers and medical device companies for charging high prices for their products in an effort to increase their profits. However, it may have been their drive to earn a return on investment that resulted in creating many of the life-saving drugs and technologies that currently exist. If for-profit companies fail to operate in the best interest of society, that might indicate a problem of inadequate regulation of those companies by the government rather than a problem with the ownership structure of those companies. Under these circumstances this chapter will not attempt to resolve the question of whether it is inherently unethical to provide health care for profit. Instead, for purposes of discussion, this chapter will assume that it is ethical to provide health care for profit and will analyze the ethical obligations of for-profit companies that sell health care goods and services. In other words, what are the proper business ethics of for-profit companies in the health sector?
In any sector of the economy, and especially in health care, business organizations must use fair marketing practices. One aspect of fair marketing is honesty in describing the advantages and risks of the organization’s products. In addition, it would be unethical for sellers of health care goods and services to try to convince a patient to purchase or accept treatments that the patient does not really need. The concept of supplier-induced demand refers to “misleading a patient into agreeing to inappropriate or ineffective treatment” (Ensor and Duran-Moreno, 2002, p. 111). Direct-to-consumer (DTC) advertising by pharmaceutical companies also raises potential problems of supplier-induced demand. Other important issues of business ethics arise in the relationships between companies that manufacture or sell drugs and physicians who prescribe drugs or conduct research on drugs. These relationships can create conflicts of interest that have the potential to influence a physician’s professional judgment (Steinbrook, 2009).
Finally, is it unethical for business corporations to insist on preserving their patent rights to life-saving drugs, particularly with regard to sales of those drugs in developing countries? This issue raises the ethical conflict between intellectual property rights and access to desperately needed medications. As a general rule, most countries in the world have bound themselves to recognize patent rights, under the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights, commonly known as the TRIPS Agreement (Abbott and Van Puymbroeck, 2005, p. 2). However, the World Trade Organization member countries reached a specific agreement in 2001, known as the Doha Declaration, with regard to the effect of TRIPS on public health (Abbott and Van Puymbroeck, pp. 2, 8). The Doha Declaration recognizes that TRIPS does not prevent member countries from taking necessary actions to protect the public health and that governments of member countries may grant compulsory licenses, by which those governments permit the production or importation of a patented drug without permission of the company that holds the patent (Abbott and Van Puymbroeck, pp. 7–8).
Public health advocates argue that compulsory licenses are necessary in order to provide essential medicines to patients in developing countries. In response, pharmaceutical manufacturers argue that compulsory licenses will reduce investment in research and development of new drugs, although that is a factual issue that remains in dispute (Cohen, 2007). According to Volker Heins (2008), “at the most fundamental level, we do not know to what extent pharmaceutical companies need to recoup their R&D expenditures through TRIPS-style patent monopolies to develop new drugs. If such a link could be proven, attending to those who are worst-off today by suspending intellectual property protections might have the effect of reducing the available resources of those who will suffer tomorrow” (p. 227, footnote omitted). Thus, the issue of compulsory licenses for essential drugs in developing countries seems to be caught in a factual dispute about whether reducing protection for intellectual property rights would, in fact, reduce research and development of new medicines.
Perhaps people have been asking the wrong question. Rather than arguing about the factual question of whether reducing or eliminating patent protection would actually reduce research and development of new drugs, we could simply assume that as a fact for purposes of discussion. For the purposes of argument, we could concede that research and development for new drugs would be significantly reduced. We could go further and concede that some of the drugs that would have been developed with intellectual property protection would not have been merely duplicative (so-called me-too drugs), but rather would have been beneficial to some patients by being more effective, easier to administer, or having fewer side effects for those patients. Finally, we could go even further and concede that, without intellectual property protection, some patients would indeed die as a result of the failure to develop those new drugs. However, even if we assumed that all these results would come to pass, that still would not necessarily mean that intellectual property protection should be preserved.
Societies do allow people to suffer or die because of competing values and priorities, especially when those people are merely abstract and not identifiable. A society can accept the fact that some unidentified people will suffer or die as a result of its unwillingness to make cars even more safe or food even more pure, because the high marginal cost of further improvement is considered to outweigh the low marginal benefit from that improvement. Moreover, that additional improvement would use up resources that could be spent much more effectively on other needs of the society. By refusing to permit medical research that might harm a small number of identifiable human subjects, society routinely forgoes potential benefits to a large number of unidentified patients, whose lives might be significantly improved or even saved through development of new drugs or treatments (Zywicki, 2007). Therefore, the assumed fact that some patients would die without intellectual property protection for drugs does not really answer the question of whether intellectual property protection should be retained.
The more relevant question is whether reducing or eliminating intellectual property protection for drugs would have a significant adverse effect on public health. Our current knowledge of what affects public health suggests that the unavailability of some new advanced medicines would probably not have a significantly adverse effect. As pointed out by the World Health Organization (2000), some interventions may help specific individuals without making much of a contribution to improving the health status of the population (p. 52). Moreover, compulsory licenses could significantly improve population health, by making essential medicines available to large numbers of people in developing countries. Udo Schüklenk (2004) has suggested that we should devote more effort to making existing drugs available, rather than emphasizing the development of new drugs (p. 197). In evaluating the ethics of intellectual property rights, the most important question is whether the potential lack of new drugs would really have an adverse impact on population health in developing countries and developed countries.
This chapter has analyzed the arguments about the existence, basis, and extent of an ethical right to health care. Although writers disagree, there must be some minimum level of health care to which every human being is entitled and that every decent society is ethically obligated to provide. Despite uncertainty about the extent of the right, the effect of concluding that the right exists is to change debates over health reform from matters of politics to matters of ethics.
This chapter has also evaluated the ethical obligations of doctors and other health care professionals to provide services to patients, including the duty to provide care for indigent patients and the duty to provide services during a pandemic or other public health emergency. Finally, this chapter has evaluated the ethical obligations of private companies that provide health care goods and services, such as the duty to comply with fair marketing practices. If reducing intellectual property protection for drugs would not have a significant adverse effect on population health, the interests of private drug companies in preserving their patent rights would be outweighed by the need for life-saving drugs in low-income countries.
compulsory licenses
Doha Declaration
negative rights
positive rights
supplier-induced demand
TRIPS Agreement
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