Medical Care As a Right

A refutation

The current debate on health care in the United States is of the first order of importance to the health professions, and of no less importance to the political future of the nation, for precedents are now being set that will be applied to the rest of American society in the future. In the enormous volume of verbiage that has poured forth, certain fundamental issues have been so often misrepresented that they have now become commonly accepted fallacies. This paper will be concerned with the most important of these misconceptions, that health care is a right, as well as a brief consideration of some of its corollary fallacies.

RIGHTS—MORALITY AND POLITICS

The concept of rights has its roots in the moral nature of man and its practical expression in the political system that he creates. Both morality and politics must be discussed before the relation between political rights and health care can be appreciated.

A "right" defines a freedom of action. For instance, a right to a material object is the uncoerced choice of the use to which that object will be put; a right to a specific action, such as free speech, is the freedom to engage in that activity without forceful repression. The moral foundation of the rights of man begins with the fact that he is a living creature: he has the right to his own life. All other rights are corollaries of this primary one; without the right to life, there can be no others, and the concept of rights itself becomes meaningless.

The freedom to live, however, does not automatically ensure life. For man, a specific course of action is required to sustain his life, a course of action that must be guided by reason and reality and has as its goal the creation or acquisition of material values, such as food and clothing, and intellectual values, such as self-esteem and integrity. His moral system is the means by which he is able to select the values that will support his life and achieve his happiness.

Man must maintain a rather delicate homeostasis in a highly demanding and threatening environment, but has at his disposal a unique and efficient mechanism for dealing with it: his mind. His mind is able to perceive, to identify percepts, to integrate them into concepts, and to use those concepts in choosing actions suitable to the maintenance of his life. The rational function of mind is volitional, however; a man must choose to think, to be aware, to evaluate, to make conscious decisions. The extent to which he is able to achieve his goals will be directly proportional to his commitment to reason in seeking them.

The right to life implies three corollaries: the right to select the values that one deems necessary to sustain one's own life; the right to exercise one's own judgment of the best course of action to achieve the chosen values; and the right to dispose of those values, once gained, in any way one chooses, without coercion by other men. The denial of any one of these corollaries severely compromises or destroys the right to life itself. A man who is not allowed to choose his own goals, is prevented from setting his own course in achieving those goals and is not free to dispose of the values he has earned is no less than a slave to those who usurp those rights. The right to private property, therefore, is essential and indispensable to maintaining free men in a free society.

Thus, it is the nature of man as a living, thinking being that determines his rights—his "natural rights." The concept of natural rights was slow in dawning on human civilization. The first political expression of that concept had its beginnings in 17th and 18th century England through such exponents as John Locke and Edmund Burke, but came to its brilliant debut as a form of government after the American Revolution. Under the leadership of such men as Thomas Paine and Thomas Jefferson, the concept of man as a being sovereign unto himself, rather than a subdivision of the sovereignty of a king, emperor or state, was incorporated into the formal structure of government for the first time. Protection of the lives and property of individual citizens was the salient characteristic of the Constitution of 1787. Ayn Rand has pointed out that the principle of protection of the individual against the coercive force of government made the United States the first moral society in history.[1]

In a free society, man exercises his right to sustain his own life by producing economic values in the form of goods and services that he is, or should be, free to exchange with other men who are similarly free to trade with him or not. The economic values produced, however, are not given as gifts by nature, but exist only by virtue of the thought and effort of individual men. Goods and services are thus owned as a consequence of the right to sustain life by one's own physical and mental effort.

If the chain of natural rights is interrupted, and the right to a loaf of bread, for example, is proclaimed as primary (avoiding the necessity of earning it), every man owns a loaf of bread, regardless of who produced it. Since ownership is the power of disposal,[2] every man may take his loaf from the baker and dispose of it as he wishes with or without the baker's permission. Another element has thus been introduced into the relation between men: the use of force. It is crucial to observe who has initiated the use of force: it is the man who demands unearned bread as a right, not the man who produced it. At the level of an unstructured society it is clear who is moral and who immoral. The man who acted rationally by producing food to support his own life is moral. The man who expropriated the bread by force is immoral.

To protect his basic right to provide for the support of one's own life, men band together for their mutual protection and form governments. This is the only proper function of government: to provide for the defense of individuals against those who would take their lives or property by force. The state is the repository for retaliatory force in a just society wherein the only actions prohibited to individuals are those of physical harm or the threat of physical harm to other men. The closest that man has ever come to achieving this ideal of government was in this country after its War of Independence.

When a government ignores the progression of natural rights arising from the right to life, and agrees with a man, a group of men, or even a majority of its citizens, that every man has a right to a loaf of bread, it must protect that right by the passage of laws ensuring that everyone gets his loaf—in the process depriving the baker of the freedom to dispose of his own product. If the baker disobeys the law, asserting the priority of his right to support himself by his own rational disposition of the fruits of his mental and physical labor, he will be taken to court by force or threat of force where he will have more property forcibly taken from him (by fine) or have his liberty taken away (by incarceration). Now the initiator of violence is the government itself. The degree to which a government exercises its monopoly on the retaliatory use of force by asserting a claim to the lives and property of its citizens is the degree to which it has eroded its own legitimacy. It is a frequently overlooked fact that behind every law is a policeman's gun or a soldier's bayonet. When that gun and bayonet are used to initiate violence, to take property or to restrict liberty by force, there are no longer any rights, for the lives of the citizens belong to the state. In a just society with a moral government, it is clear that the only "right" to the bread belongs to the baker, and that a claim by any other man to that right is unjustified and can be enforced only by violence or the threat of violence.

RIGHTS—POLITICS AND MEDICINE

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. In the narrative above substitute "doctor" for "baker" and "medical service" for "bread." American medicine is now at the point in the story where the state has proclaimed the nonexistent "right" to medical care as a fact of public policy, and has begun to pass the laws to enforce it. The doctor finds himself less and less his own master and more and more controlled by forces outside of his own judgment.

For instance, under the proposed Kennedy-Griffiths bill[3] there will be a "Health Security Board," which will be responsible for administering the new controls to be imposed on doctors, hospitals and other "providers" of health care (Sec. 121). Specialized services, such as major surgery, will be done by "qualified specialists" [Sec. 22(b)(2)], such qualifications being determined by the Board (Sec. 42). Furthermore, the patient can no longer exercise his own initiative in finding a specialist to do his operation, since he must be referred to the specialist by a nonspecialist—i.e., a general practitioner or family doctor [Sec. 22(b)]. Licensure by his own state will not be enough to be a qualified practitioner; physicians will also be subject to a second set of standards, those established by the Board [Sec. 42(a)]. Doctors will no longer be considered competent to determine their own needs for continuing education, but must meet requirements established by the Board [Sec. 42(c)]. The professional staff of a hospital will no longer be able to determine which of its members are qualified to perform which kinds of major surgery; specialty-board certification or eligibility will be required, with certain exceptions that include meeting standards established by the Board [Sec. 42(d)].

Control of doctors through control of the hospitals in which they practice will also be exercised by the Board by way of a list of requirements, the last of which is a "sleeper" that will by its vagueness allow the Board almost any regulation of the hospital: the hospital must meet "such other requirements as the Board finds necessary in the interest of quality of care and the safety of patients in the institution" [Sec. 43(i)]. Hospitals will also not be allowed to undertake construction without higher approval by a state agency or by the Board (Sec. 52).

In the name of better organization and co-ordination of services, hospitals, nursing homes and other providers will be further controlled through the Board's power to issue directives forcing the provider to furnish services selected by the Board [Sec. 131(a)(1),(2)] at a place selected by the Board [Sec. 131(a)(3)]. The Board can also direct these providers to form associations with one another of various sorts, including "making available to one provider the professional and technical skills of another" [Sec. 131(a)(B)], and such other linkages as the Board thinks best [Sec. 131(a)(4)(C)].

These are only a few of the bill's controls of the health-care industry. It is difficult to believe that such patent subjugation of an entire profession could ever be considered a fit topic for discussion in any but the darkest corner of a country founded on the principles of life and liberty. Yet the Kennedy-Griffiths bill is being seriously debated today in the Congress of the United States.

The irony of this bill is that, on the basis of the philosophic premises of its authors, it does provide a rationally organized system for attempting to fulfill its goals, such as "making health services available to all residents of the United States." If the government is to spend tens of billions of dollars on health services, it must assure in some way that the money is not being wasted. Every bill currently before the national legislature does, should, and must provide some such controls. The Kennedy-Griffiths bill is the closest we have yet come to the logical conclusion and inevitable consequence of two fundamental fallacies: that health care is a right, and that doctors and other health workers will function as efficiently serving as chattels of the state as they will living as sovereign human beings. It is not, and they will not.

Any act of force is anti-mind. It is a confession of the failure of persuasion, the failure of reason. When politicians say that the health system must be forced into a mold of their own design, they are admitting their inability to persuade doctors and patients to use the plan voluntarily; they are proclaiming the supremacy of the state's logic over the judgments of the individual minds of all concerned with health care. Statists throughout history have never learned that compulsion and reason are contradictory, that a forced mind cannot think effectively and, by extension, that a regimented profession will eventually choke and stagnate from its own lack of freedom. A persuasive example of this is the moribund condition of medicine as a profession in Sweden, a country that has enjoyed socialized medicine since 1955. Werko, a Swedish physician, has stated: "The details and the complicated working schedule have not yet been determined in all hospitals and districts, but the general feeling of belonging to a free profession, free to decide—at least in principle—how to organize its work has been lost. Many hospital-based physicians regard their work now with an apathy previously unknown."[4] One wonders how American legislators will like having their myocardial infractions treated by apathetic internists, their mitral valves replaced by apathetic surgeons, their wives' tumors removed by apathetic gynecologists. They will find it very difficult to legislate self-esteem, integrity and competence into the doctors whose minds and judgments they have throttled.

If anyone doubts that health legislation involves the use of force, a dramatic demonstration of the practical political meaning of the "right to health care" was acted out in Quebec in the closing months of 1970.[5] In that unprecedented threat of violence by a modern Western government against a group of its citizens, the doctors of Quebec were literally imprisoned in the province by Bill 41, possibly the most repressive piece of legislation ever enacted against the medical profession, and far more worthy of the Soviet Union or Red China than a western democracy. Doctors objecting to a new Medicare law were forced to continue working under penalty of jail sentence and fines of up to $500 a day away from their practices. Those who spoke out publicly against the bill were subject to jail sentences of up to a year and fines of up to $50,000 a day. The facts that the doctors did return to work and that no one was therefore jailed or fined do not mitigate the nature or implications of the passage of Bill 41. Although the dispute between the Quebec physicians and their government was not one of principle but of the details of compensation, the reaction of the state to resistance against coercive professional regulation was a classic example of the naked force that lies behind every act of social legislation.

Any doctor who is forced by law to join a group or a hospital he does not choose, or is prevented by law from prescribing a drug he thinks is best for his patient, or is compelled by law to make any decision he would not otherwise have made, is being forced to act against his own mind, which means forced to act against his own life. He is also being forced to violate his most fundamental professional commitment, that of using his own best judgement at all times for the greatest benefit of his patient. It is remarkable that this principle has never been identified by a public voice in the medical profession, and that the vast majority of doctors in this country are being led down the path to civil servitude, never knowing that their feelings of uneasy foreboding have a profoundly moral origin, and never recognizing that the main issues at stake are not those being formulated in Washington, but are their own honor, integrity and freedom, and their own survival as sovereign human beings.

SOME COROLLARIES

The basic fallacy that health care is a right has led to several corollary fallacies, among them the following:

That health is primarily a community or social rather than an individual concern.[6] A simple calculation from American mortality statistics[7] quickly corrects that false concept: 67 per cent of deaths in 1967 were due to diseases known to be caused or exacerbated by alcohol, tobacco smoking or overeating, or were due to accidents. Each of those factors is either largely or wholly correctable by individual action. Although no statistics are available, it is likely that morbidity, with the exception of common respiratory infections, has a relation like that of mortality to personal habits and excesses.

That state medicine has worked better in other countries than free enterprise has worked here. There is no evidence to support that contention, other than anecdotal testimonials and the spurious citation of infant mortality and longevity statistics. There is, on the other hand, a good deal of evidence to the contrary.[8]

That the provision of medical care somehow lies outside the laws of supply and demand, and that government-controlled health care will be free care. In fact, no service or commodity lies outside the economic laws. Regarding health care, market demand, individual want, and medical need are entirely different things, and have a very complex relation with the cost and the total supply of available care, as recently discussed and clarified by Jeffers et al.[9] They point out that "'health is purchaseable', meaning that somebody has to pay for it, individually or collectively, at the expense of foregoing the current or future consumption of other things." The question is whether the decision of how to allocate the consumer's dollar should belong to the consumer or to the state. It has already been shown that the choice of how a doctor's services should be rendered belongs only to the doctor: in the same way the choice of whether to buy a doctor's service rather than some other commodity or service belongs to the consumer as a logical consequence of the right to his own life.

That opposition to national health legislation is tantamount to opposition to progress in health care. Progress is made by the free interaction of free minds developing new ideas in an atmosphere conducive to experimentation and trial. If group practice really is better than solo, we will find out because the success of groups will result in more groups (which has, in fact, been happening); if prepaid comprehensive care really is the best form of practice, it will succeed and the health industry will swell with new Kaiser-Permanente plans. But let one of these or any other form of practice become the law, and the system is in a straitjacket that will stifle progress. Progress requires freedom of action, and that is precisely what national health legislation aims at restricting.

That doctors should help design the legislation for a national health system, since they must live with and within whatever legislation is enacted. To accept this concept is to concede to the opposition its philosophic premises, and thus to lose the battle. The means by which nonproducers and hangers-on throughout history have been able to expropriate material and intellectual values from the producers has been identified only relatively recently: the sanction of the victim.[10] Historically, few people have lost their freedom and their rights without some degree of complicity in the plunder. If the American medical profession accepts the concept of health care as the right of the patient, it will have earned the Kennedy-Griffiths bill by default. The alternative for any health professional is to withhold his sanction and make clear who is being victimized. Any physician can say to those who would shackle his judgment and control his profession: I do not recognize your right to my life and my mind, which belong to me and me alone; I will not participate in any legislated solution to any health problem.

In the face of the raw power that lies behind government programs, nonparticipation is the only way in which personal values can be maintained. And it is only with the attainment of the highest of those values—integrity, honesty and self-esteem—that the physician can achieve his most important professional value, the absolute priority of the welfare of his patients.

The preceding discussion should not be interpreted as proposing that there are no problems in the delivery of medical care. Problems such as high cost, few doctors, low quantity of available care in economically depressed areas may be real, but it is naive to believe that governmental solutions through coercive legislation can be anything but shortsighted and formulated on the basis of political expediency. The only long-range plan that can hope to provide for the day after tomorrow is a "nonsystem"—that is, a system that proscribes the imposition by force (legislation) of any one group's conception of the best forms of medical care. We must identify our problems and seek to solve them by experimentation and trial in an atmosphere of freedom from compulsion. Our sanction of anything less will mean the loss of our personal values, the death of our profession, and a heavy blow to political liberty.

Reprinted from the NEW ENGLAND JOURNAL OF MEDICINE. Copyright, 1971, by the Massachusetts Medical Society.

NOTES AND REFERENCES

[1] Ayn Rand, "Man's rights," CAPITALISM: THE UNKNOWN IDEAL (New York: New American Library, Inc. 1967), pp. 320-29.
[2] Ludwig von Mises, SOCIALISM: AN ECONOMIC AND SOCIOLOGICAL ANALYSIS (New Haven: Yale University Press, 1951), pp. 37-55.
[3] Sen. E.M. Kennedy, "Introduction of the Health Security Act," CONGRESSIONAL RECORD 116:S 14338-S 14361 (1970).
[4] L. Werko, "Swedish medical care in transition," 284 NEW ENGLAND JOURNAL OF MEDICINE 360-66 (1971).
[5] "Quebec Medicare and Medical Services Withdrawal," Toronto, Canadian Medical Association, 19 October 1970.
[6] J.S. Millis, "Wisdom? Health? Can society guarantee them?" 283 NEW ENGLAND JOURNAL OF MEDICINE 260-61 (1970).
[7] Department of Health, Education, and Welfare, Public Health Service, VITAL STATISTICS OF THE UNITED STATES 1967, Vol II. Mortality. Part A (Washington, D.C.: Government Printing Office, 1969), p. 1-7.
[8] H. Shoeck (ed.), FINANCING MEDICAL CARE: AN APPRAISAL OF FOREIGN PROGRAMS (Caldwell, Idaho: Caxton Printers, Inc. 1962).
[9] M. Lynch & S. Raphael, MEDICINE AND THE STATE (Springfield, Illinois: Charles C. Thomas, 1963).
[10] J. Jeffers, M. Bognanno & J. Bartlett, "On the demand versus need for medical services and the concept of 'shortage,'" 61 AMERICAN JOURNAL OF PUBLIC HEALTH 46-63 (1971).
[11] Ayn Rand, ATLAS SHRUGGED (New York: Random House, 1957), p. 1066.