The Rules Will Be Enforced

“Use every man after his desert, and who shall scape whipping?” — Hamlet, Act II, Scene 2

In a world of perfect justice, each man would receive his due and nothing else, as Shakespeare’s words suggest. Whether such a world is possible or even desirable is another question.

I suspect that we would all hate it. Justice, after all, is not the only desideratum of human existence, though considerations of justice have a tendency to madden men’s minds and drive all other considerations clean from them. To say that an arrangement is unjust is tantamount to saying that it should be brought to an end—for who would ever defend injustice? Let the heavens fall so long as justice be done.

The question of justice is an important one in medical ethics. How far should a patient be held responsible for his own health, and what should be the consequences of his willful disregard of it? In Britain, a hospital has suggested that patients who have a body-mass index of over 30 or who smoke cigarettes should have their operations (if they are routine or non-emergency in nature) postponed by six to 12 months, unless they lose weight or give up smoking. This proposal was made on the grounds that fat patients or those who smoke have worse post-operative outcomes than others, and it is ethically desirable or even mandatory that, where medical resources are limited (as they always are), the maximum benefit from medicals endeavors should be obtained.

Strictly speaking, the proposal is not entirely logical since, at the end of the six months or a year, the outcomes for the recalcitrantly overweight or smoking patients will still be worse than the outcomes for other patients who will, presumably, still exist and be in need of their operations. In other words, to make the argument for postponing completely sound, those who were overweight or were smokers should be denied operations until no one else was in need of them—which would be never.

The proposal also implies that “the recalcitrants,” if we can call them that, have voluntary control over their own condition: that they could lose weight or give up smoking if they really wanted to, in a way that they couldn’t stop having Crohn’s disease or ulcerative colitis if they wanted to. This seems to me, in the abstract, to be correct, but the hospital that wants to postpone routine operations on the recalcitrants also says that it will not postpone or desist from bariatric surgery—that is to say, surgery to reduce the weight of the morbidly obese. On the one hand, then, morbid obesity is to be regarded as a consequence of weakness of will; on the other, it is treated as if it were a bona fide disease.

It is difficult to be entirely consistent, at least while also being humane. If, on the one hand, you say that everyone should be forced to bear the consequences of his own weaknesses and sins, you risk a moral rigor that you are most unlikely to want applied to your own case. But if, on the other hand, you deny that other people are responsible for their own fate, you risk dehumanizing them, and giving yourself carte blanche, at least in theory, to interfere in their lives—to direct, bully, or force them to do what you think is in their interest to do.

The problem of priorities and the degree to which treatment should take the conduct of patients into account is not unique to systems such as the British National Health Service, which supposedly is funded according to ability to pay (taxation) and provides service according to need: the old Marxist “From each according to his ability, to each according to his need” applied to health care. Systems, on the other hand, that rely on individualized insurance payments decide how much an insured person should pay in premiums by taking into account not only the person’s conduct, but the person’s previous illnesses, over which he had no voluntary control.

The problem with the nationalized system’s incontinent sharing of risk is that it deprives people of one possible motive for behaving responsibly with regard to their own health. They believe, not without reason, that someone will always pick up the pieces for them at no cost to themselves. And irresponsibility thrives where there is no penalty for it. The problem with individualized insurance, though, is that it may place intolerable or unsustainable burdens on people through no fault of their own.

Incontinent sharing of risk is unjust; too little sharing of risk is inhumane. Since both justice and humanity are desirable qualities, but not always compatible, now one, now the other, will be the more important; but the tension between them will remain.

Perhaps, then, the proposal of the hospital in Britain is not as absurd as it first appeared. It is not consistent in a philosophical sense, true enough, but consistency in the face of inconsistent desiderata would be no virtue. It does not altogether deny the “recalcitrants” treatment, which would be inhumane; neither does it deny that (in conditions of shortage) these individuals are somewhat less deserving of immediate relief than others.

That ethical decisions sometimes cannot be made that are indisputably correct, that entail no injustice or no inhumanity, is difficult for rationalists and utilitarians to accept. They want every division to be without remainder, as it were. They want a formula that will decide every question beyond reasonable doubt. They want a universal measure of suffering, so that the precise worth (in units of suffering averted) of every medical procedure can be known and compared. Health economists tend to take this type of measurement very seriously; if they come to the conclusion that knee replacements avert less suffering than removals of cataracts, they advocate that more of the latter be done at the expense of the former.

There is a kind of cognitive hubris at play, according to which information alone will resolve all our dilemmas; and if our dilemmas have not been answered, it is only because we do not have enough information yet. The hope or expectation of a dilemma-free world is naïve, where it is not power-hungry.

As for the doctor, he cannot be so limitlessly compassionate as to deny patients’ responsibility where it exists, nor should he deny his patients his compassion by blaming them even when they are to blame.

Theodore Dalrymple

Theodore Dalrymple is a retired prison doctor and psychiatrist, contributing editor of the City Journal and Dietrich Weissman Fellow of the Manhattan Institute.

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  1. gabe says

    “…giving yourself carte blanche, at least in theory, to interfere in their lives—to direct, bully, or force them to do what you think is in their interest to do.”

    so what is the big surprise here. Isn’t that the premise of the modern state?

    It would appear that the Brits (and others) may be recognizing that Brexit is only the first step; perhaps, there needs to be a similar referendum on Administrative Experts.

  2. nobody.really says

    This is a classic problem of welfare economics which (as Dalrymple acknowledges) is not limited to health care policy: We want to socialize private costs that are not avoidable, while leaving people with appropriate incentives to avoid avoidable costs. But it’s hard to distinguish between 1) unavoidable costs, 2) avoidable costs, and 3) costs that might be avoidable, but the burdens of avoiding them would exceed the burdens of bearing the cost.

    The problem with the nationalized system’s incontinent sharing of risk is that it deprives people of one possible motive for behaving responsibly with regard to their own health. They believe, not without reason, that someone will always pick up the pieces for them at no cost to themselves.

    A quibble: Here, Dalrymple says “cost” to refer to financial cost. But where healthcare is concerned, most behaviors that would increase financial cost also increase discomfort. Thus, I suspect few people believe that their medical problems will be “costless” to themselves, regardless of how good their health insurance is.
    Bottom line: People retain an incentive to avoid medical problems, even when they have excellent health insurance. Admittedly, we can increase their incentive to avoid medical problems by reducing their insurance—and that’s what the British proposal is designed to do.

    How do we distinguish between people who smoke and/or are obese due to choices within their control and people who lack the power to behave otherwise? Well, one way is to withhold their insurance coverage for discretionary medical procedures for 6 months. This will provide all such patients with an incentive to modify their behavior. Those who can modify their behavior will—presumably at least 6 months before they need the procedure. Those who can’t won’t—but the burden this puts on them is only a 6-mo. delay.

    In short, the policy is not about justice; it’s about efficiency.

    • gabe says

      “but the burden this puts on them is only a 6-mo. delay.”

      Well that is mighty Christian of YOU. Only 6 months you say – gee, would that not add to the measure of discomfit?

      Suppose we also imposed such a delay for those who engage in certain sexual practices? drink / smoke pot, etc.etc.
      So very considerate of an expert such as you to *permit* these deplorable human beings who may happen to smoke / drink, etc to FINALLY be allowed to obtain needed medical care.

      Ahhh! the world according to experts – all presented in a “rational” voice, of course.

      And, of course, YOU GET TO DETERMINE WHAT BEHAVIORS OUGHT TO BE MODIFIED.

      well pass me the wine and help me find my cigarette lighter as I am going to need it while I wait out the “nudged” six month delay you have on offer.

      • nobody.really says

        Gabe, you correctly identify the problems with this solution. But you evidence no application for any other solution. What would you propose?

        1. We could socialize all costs. No one should bear any costs, regardless of the fact that his choices cause the costs. We could say, for example, that people can destroy their livers with alcohol, yet have the same opportunity as anyone else of get a new liver, only to destroy that one, too.

        2. We could say that we want to avoid the problems of socializing cost by socializing nothing. If you can’t pay out of pocket, you die. But at least we don’t distort any incentives.

        Any other option will result in some trade-off between socializing costs and maximizing incentives. Your’e free to engage in lunatic rants about the downside of any position, and you’ll be right. But so what?

        It’s time to grow up and recognize that the world is full of trade-offs.

        • gabe says

          Nobody;

          We already have a solution in place – and one that the market determined.

          As an example, smokers pay more for medical and life insurance. Insurance company actuaries have determined what is a proper rate for the increased risk associated with these behaviors. why is this not sufficient? why must some government expert, raised, educated AND rewarded within the Academic / Government bubble of “professional bureaucrat” be assumed to know the proper solution and quite frankly, just who are these bureaucrats to presume that they have both sufficient data and cognitive ability to determine what is the proper solution.

          As for growing up, try it yourself. Your solutions, crafted as they generally are to emphasize only the extreme margins of options neither represent real world current applications / practices, (i.e. “pay or die” as medical care is ALWAYS available) nor my own positions or practice.

          Once again, you put words and policy prescriptions in my mouth – heck, that does not leave any room for some good red wine!

          • gabe says

            “In short, the policy is not about justice; it’s about efficiency.”

            There we go again – EFFICIENCY! As if 1) efficiency should be a higher priority and 2) bureaucrats are uniquely qualified to identify what is efficient.

            Here is an interesting take on the *professional bureaucrat* class and how The Trumpster may be in the process of changing the publics perceptions about experts such as you seem to admire.

            In short, the policy is not about justice; it’s about efficiency. – See more at: http://www.libertylawsite.org/2016/12/14/the-rules-will-be-enforced/#comment-1506302

          • nobody.really says

            You put words and policy prescriptions in my mouth – heck, that does not leave any room for some good red wine!

            Or cigarettes, apparently.

            We already have a solution in place – and one that the market determined.

            As an example, smokers pay more for medical and life insurance….

            Gabe, you understand that Dalrymple is discussing the British National Health Service–that is, NOT a market-based system–right?

            Now, why would the British (and virtually every other nation) not simply leave health care to market forces? Because market forces are good at identifying the cost to private parties (such as insurers) of certain indicia of risk, but not the cost to society. Society may have a goal of promoting people’s health. Insurers have a goal of avoiding paying for anyone’s health–and thus, of identifying people who might need medical care, and avoiding selling health care policies to those people. That doesn’t make insurers evil; it merely means that they promote their private interests and (as with all of us), private interests differ from social interests.

            More specifically, insurers seek to calculate in the cost of all kinds of “preexising” conditions when quoting the price of a policy. Smoking is one such condition, as are genetic defects. Clearly, an individual lacks power over his own genetics. But to what extent does an individual have power over his own smoking? It’s a famously ambiguous question: some people find they can quit; others find they can’t–even as they recognize that they’re smoking themselves to death.

            Of course, this distinction is irrelevant to the insurer, and the insurer’s interest is reflected in the market price. But the distinction is relevant to society, because society’s costs might be reduced if we could induce people to smoke less.

            Finally, recall that the social policy Dalrymple has discussed does not outlaw smokers seeking discretionary treatments within 6 months; those smokers must simply use their own resources (including any insurance policy) to pay for those treatments. That is, the market forces remain in place for people who don’t want to abide the government’s policies.

            Does that help?

  3. says

    Participants could not ask for a more informative essay on justice and tacit identification of the problem: Right-conservatism rather than individual-independence according to The Facts. Tradition traditionally refutes discovered indisputable facts (physics) until reality forces humankind to take best advantage of The Facts (a symbol rather than a deity).

    Doctors take an oath to do all they can for the patient. But in social-democracy or liberal governance, the economic system is arranged to both stimulate human appetites and promote adult satisfaction. Independently, the physics steers un-constrained satisfaction into misery, loss, and early death. These injustices are obvious to a civic people, the most aware faction of which is the conservatives IMO. (I am attempting conversations with Democrats that could change my view.) The doctor’s intent pales before the onslaught of civic injustice!

    Dalrymple states “Justice, after all, is not the only desideratum of human existence” without saying what is more essential than justice. I assert that Fidelity is more essential.

    I capitalize Fidelity not to deify it but to create a symbol for fidelity to each physics (The Facts), self, immediate family, extended families, the people, the nation, the world, and the universe, both respectively and collectively. By exercising Fidelity, a person may ascend from feral infancy to individual-independence among humankind. With coaching the journey may start after three decades and continue until personal-psychological-maturity near the end.

    By re-directing the skills of conservatives to The Facts rather than “social order” as dominant opinion, an achievable better future could be created in only a few decades. Turn from “the overall good” according to majority opinion (say conservative on the left and progressive on the right) to collaborate for public-integrity based on The Facts. Nudge the people toward education for Fidelity rather than appetite for satisfaction as the path to personal success. Let authentic adults be “the workers we need [to educate],” quoting President Obama.

    I have covered methods for nudging persons onto a path toward ultimate justice in past posts, but would be happy to re-hash the old or address new ideas for iterative-collaboration.

  4. Devin Watkins says

    I really good essay that I think has far reaching implications into a lot of public policy. I was having an argument about drug policy the other day that fell along similar lines. My point of view was that people should be able to decide for themselves if they wish to take drugs or stop and live with the consequences. Thiers was that they were unable due to the addiction from being able to effectively make that choice. I was arguing that people should be forced to bear the consequences of their own weakness, while they were denying that in the name of humane and compassion, but an argument that, at least in theory, gives the government carte blanche to “interfere in their lives—to direct, bully, or force them to do what you think is in their interest to do.” Much paternalism, and welfare policy go along the same line between individual responsibility for the consequences of their actions and a desire to make the world a better place by thinking you know what’s best.

    This idea of “If only we had perfect knowledge we can force everyone to do what is best” or actually believing you know what is best for everyone is what Friedrich Hayek called the the Fatal Conceit. Such information can never be acquired (and it may not even exist given the different subjective values of different individuals).

    • nobody.really says

      There is no reason why, in a society which has reached the general level of wealth ours has attained, the first kind of security should not be guaranteed to all without endangering general freedom. There are difficult questions about the precise standard which should thus be assured …. but there can be no doubt that some minimum of food, shelter, and clothing, sufficient to preserve health and the capacity to work, can be assured to everybody….

      Nor is there any reason why the state should not assist the individuals in providing for these common hazards of life against which, because of their uncertainty, few individuals can make adequate provision. Where, as in the case of sickness and accident, neither the desire to avoid such calamities nor the efforts to overcome their consequences are as a rule weakened by the provision of assistance — where, in short, we deal with genuinely insurable risks — the case for the state’s helping to organize a comprehensive system of social insurance is very strong…. [T]here is no incompatibility in principle between the state’s providing greater security in this way and the preservation of individual freedom. To the same category belongs also the increase of security through the state’s rendering assistance to the victims of such “acts of God” as earthquakes and floods. Wherever communal action can mitigate disasters against which the individual can neither attempt to guard himself nor make provision for the consequences, such communal action should undoubtedly be taken.

      Friedrich Hayek, The Road to Serfdom, Chap. 9, “Security and Freedom”

      • gabe says

        Nobody:

        You go a bit far with your *extension* of Devin’s comments.

        I think the issue here that both Devin and I attempted to address is as Devin says The Fatal conceit. There is simply never enough data to insure the perfect outcome / prescription; yet, we continue to delude ourselves into thinking that “Oh, with only some faster processors and computing speed, we can do this.”
        Sorry, kids, you cannot AND I would add that the *conceit* is not limited to bureaucrats but also programmers (to list just one other possible *conceited* type).

        Moreover, both Devin and I recognize something that you do not (or, perhaps, willfully refuse to recognize) that the conversion of a civic good into a PUBLIC GOOD, i.e., one in which government creates *rights* in positive law for the “afflicted” inexorably leads to government intrusion into every aspect of our lives.

        You appear to accept this because it is more efficient as you assert above. There are many things which can be made more efficient BUT ought not to be as there are then created certain *internalities* that more than offset the “externalities that the government prescription(s) are designed to counter, i.e., the need for an administrative agency to enforce uniformity / standardization AND the “proper” (in their minds) distribution of certain services and benefits – not to mention the need for agencies to *grow*, accrete more power to itself, etc AND all at the cost of certain tobacco luvvin’ deplorables such as I.

        BTW: I am well aware that the good professor was speaking of the NHS; it would, however, require a rather large set of blinders usually worn by our equine companions to be unable to perceive some relevance to our own benighted medical overseers.

        Got oats?

        • z9z99 says

          Gabe,

          Just a couple of points, now that the high school football season is over:

          1.) Dr. Dalrymple-Daniels raises a very important distinction between justice and humaneness, but this is unlikely to illuminate a solution to the health care resources dilemma that underlies his post. The dilemma does not have a single source. It does not arise from a tension between humaneness and justice, or efficiency and compassion, or state and individual. The problem begins with the term :”heath care,” which is both vague and ambiguous. it is compounded by an inability to precisely articulate a universal purpose for health care.

          The first drawback makes it very difficult for market dynamics to optimize resource use. If you were a grain trader but had no idea from one transaction to the next whether you were buying sand, or wheat or rice or barley, there is a good chance you would not be spending your money very wisely. The fictional boundary between medicinal and recreational marijuana illustrates this point. Surely not every dose of Dilaudid is either prescribed for or taken for purposes of health. Is dialysis in a patient with advanced cancer “health care” in the same manner that it is for someone who drank antifreeze, or overdosed on aspirin, on whose kidneys withered from autoimmune disease?

          The second point is that everyone seems to more or less concede a “rectifying” purpose for health care; put a person in the same position they would be in had not some illness or trauma befallen them. Is aging such a misfortune? Does it make sense to treat both sterility and fertility as thought they are diseases? It may be that two people with the exact same diagnosis have very different objectives in seeking health care.

          Markets and bureaucratic experts are equally deficient at “delivering” health care because heath care is a scientific, pseudo-scientific, fraudulent, sentimental, cold-hearted, mystical, miraculous, futile, compassionate, political, sacred and exploitive endeavor. We can’not really say that one health care system is more efficient, more humane, or more just, because we are trying to measure something without being able to perceive where it begins or ends, or whether what we can measure even matters. It is difficult to optimize or improve healthcare by any means when we aren’t really sure what any of the words mean.

          Joe

          • gabe says

            Z:

            I suspect we agree here. I make no claim as to what is more “human”. more “just”, compassionate, etc.

            I do make a simple argument and it is indeed predicated upon the very “drawbacks” (confusion of definitions, perhaps) that you list. As we cannot properly define or identify what is a) healthcare, b) just, c) compassionate, etc etc, how is it that we permit the presumption by alleged experts that they alone may both identify and dispense these amorphous “healthcare”?

            Rather, I would prefer that the individual human being DECIDE for him or her self what healthcare MEANS to them, what it is worth and with whom they will engage for such services.

            The State’s role ought to be limited to assuring that unsafe compounds / practices / practitioners are kept out of the market.

            Hey, from the old feminist bible of the 1960’s – “Our Bodies, Our Selves.” – or does that only apply when aborting babies? and not when challenging State presumptions of expertise?

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