“What is St. Luke’s position on the question of whether health care is a right or privilege?”
That was the great question asked through my blog a few weeks ago by Ann Carlson, our terrific pediatric clinical nurse specialist with St. Luke’s Children’s Hospital.
At that time, I told Ann I would write a separate blog piece to answer her question. Here it is!
St. Luke’s Health System has not adopted a position or policy statement on this issue. The opinions I share here are strictly mine, and do not necessarily represent the views, opinions, or positions of the St. Luke’s Health System, its boards, its executives, its physicians, or its employees.
For me, Ann’s query suggests three pointed questions:
We need to be clear about what standard we are applying to determine whether people in the United States, which I am assuming Ann is most interested in with her question, have a right to health care: a legal right, a moral right, or an ethical right.
Legal rights are more easily addressed, and U.S. law provides that some people have rights to health care under certain circumstances. I’ll address this further on. Neither the U.S. Constitution nor the Bill of Rights confers a right to health care to all Americans, however.
A moral right to health care is an individual determination, made even more difficult by the decisions that follow from the determination: If you believe it is a moral right, are you willing to pay for it for those who are unable to pay? Moral rights are rather shallow when societies are not willing to take steps to ensure that its members are provided those rights.
Finally, we can ask the question from the ethical perspective. The ethical framework is different than moral judgment, but we then have to ask, whose ethics? Ethical statements tend to be issued by organizations such as churches or professional associations, and their ethical perspectives may differ according to the organization's orientation.
What health care?
As I’ve said, under limited circumstances, people in the U.S. have legal rights to health care, including rights conferred under the Emergency Medical Treatment and Labor Act (EMTALA) and those provided under the Medicare program.
Under EMTALA, anyone who shows up at the emergency department of a hospital that participates in the Medicare program must be provided with a medical screening examination, regardless of their ability to pay or their insurance status. Unless they are determined to have an emergency medical condition, however, there is no further legal right to health care. There are some exceptions, but they are too esoteric for me to get into here.
Anyone eligible for retirement benefits under Social Security and certain others are automatically eligible for Medicare benefits, so the Social Security and Medicare acts also provide some legal rights to health care.
From a moral standpoint, there does not seem to be the critical mass to pressure Congress to guarantee each individual’s right to health care.
A poll conducted in June of 2009 indicated that 64 percent of Americans think health care should be a right. But you then have to wonder what the percentage would be if people were asked the follow-up question, “Would you support higher taxes in order to pay for every American to have access to health care?”
So, while the poll may support that the majority of Americans believe health care is a right, it is rather hollow if we as a society are not willing to make the commitments necessary for all Americans to exercise this right.
A related and important question is a right to how much health care?
I would speculate, for example, that most of the 64 percent who answered that health care should be a right would not consider all cosmetic surgery to fall within this scope of health care.
What about infertility services? These treatments can be very expensive. Is America willing to pay for this access to health care, or do we tell people that they must either pay for it or pursue adoption if they want children?
What about futile care? There have been cases, some of them very public, in which physicians have determined that a patient had no chance of recovery, or was already brain dead, and yet the family wanted physicians to continue all treatment. Should a family have the right to all possible health care for a family member, even if the care is determined by physicians to be futile? Here, the ethical position taken by the American Medical Association is actually clear: There is no ethical right to futile care. But all of these are very difficult scenarios to address.
This question is also tougher than you might think at first blush. If someone is an undocumented inhabitant of this country, does he or she have the same right to health care as a U.S. citizen?
There have been cases where citizens of other countries have been patients in U.S. hospitals because of devastating illness. They are stabilized under EMTALA, but need long-term institutional care. No post-acute provider will accept the patients because they have no insurance and cannot pay for their care. In one case that I remember, in Florida, the hospital arranged to transfer a patient to his native country for the family to provide for his ongoing care, to great outcry from people in the U.S.
At a time when such unreimbursed costs get shifted to everyone else, and U.S. citizens are increasingly finding it difficult to pay for health care and health insurance, are we prepared to care for these patients?
And what about prisoners? Prisoners actually do have certain rights to health care, triggered by the fact that they are in the custody of the state. In fact, prisoners have more rights to health care than citizens who are not imprisoned.
But what about the real-life case of a man on death row with end-stage liver disease? In that instance, prison authorities attempted to have the prisoner placed on the transplant list for a new liver. Does a man on death row lose his rights to health care? Would the decision be any different if he was serving a life sentence?
Where I stand
Health care is a legal right for some people under certain circumstances, but it is not an across-the-board legal right for everyone. That is a matter of law.
My personal morals tell me that some health care is a right, but not all health care.
And ethically, I believe there are limits to the health care that people are entitled to.
But in a way, all of this is the easy part. The hard part is how we pay for it for those who cannot do so, if it is indeed their right.
I realize that many will not agree with me, but I hope that this has at least added to the conversation. It is my earnest hope that the Triple Aim work we are doing here at St. Luke’s is going to succeed, so that there are fewer who are unable to exercise their rights to health care.
David C. Pate, M.D., J.D., is president and CEO of St. Luke's Health System, based in Boise, Idaho. Dr. Pate joined the System in 2009. He received his medical degree from Baylor College of Medicine in Houston and his law degree from the University of Houston Law Center.