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THURSDAY, June 28, 2007


Session 3: Healthcare— Who Is Responsible? The Individual? Society? Both?

Allen Buchanan, Ph.D.
Professor of Philosophy
Duke University

Daniel Callahan, Ph.D.
Director of International Programs and Former President
The Hastings Center

Ezekiel J. Emanuel, M.D., Ph.D.
Chair, Department of Clinical Bioethics
National Institutes of Health

 

CHAIRMAN PELLEGRINO:  We are back on the program.  Thank you very much, Council members.  Very good.

This afternoon, the last session is on the question of health care continuing, who is responsible, the individual or society?  That question has come up a couple of times already this morning.

We have three very eminent speakers, so I — take your time, Allen.  Since you are first, don't take too much time.  Our first speaker is Allen Buchanan, Professor of Philosophy at Duke University.  

And, again, remind those who have come in late, or later, we do not give long, lengthy introductions, because it's all in the record.  And so I'm delighted to welcome the three of these gentlemen who are all really prominent in the field.

Allen will start us off, and what we will do is have each speaker make his presentation, and then we'll open up to discussion all three, to the Council members.  So make your notes, if you wish, or your questions, so that at the end you can direct it to the person you wish.

Allen?

DR. BUCHANAN:  Thank you.  I am really honored to be here.  I was the principal staff author of the President's Commission in 1983 report "Securing Access to Health Care," and I have worked on issues of access to health care most of my career.  So I am intensely interested in the topic of this session.

And I want to commend you for resisting the temptation to jump right into the fray about current health care reform proposals.  And for your courage in being willing to grapple with the deepest issues, step back and take a deep breath rather than just comment on what's on the table.

In the spirit of your commitment to digging deeper, I'm going to try to begin by being provocative, by providing very short answers to the two questions I was given for today's session.  The first question is:  how are we to understand health care?  As a commodity?  A legal right?  A moral right?  Or a human good?  And the second question is:  is there a division of responsibility, say between the individual and society, for health care?

My answer to the first question is yes, all of the above.  My answer to the second question is no, but there ought to be.  That is, there ought to be a division of responsibility.

Now, with respect to the first question, in one sense the question, is health care a commodity, understood literally as a descriptive indicative statement is a no-brainer.  Health care clearly is a commodity in the sense that it's bought and sold in this country and elsewhere.

Saying that health care is not a commodity is a way of making a moral claim without making explicit that you're making a moral claim.  A bigger problem with the statement that health care is not a commodity is that it's not clear which of several distinct moral claims is being covertly made.

It could be any of these.  Is it the claim that health care should never be bought and sold?  Dr. Relman seemed to suggest that we should somehow insulate health care from market forces entirely, so that might be one interpretation of the claim health care is not a commodity.  Or does it mean whether one gets adequate health care shouldn't depend on whether one can pay for it?  Or does it mean even when health care is bought and sold, it shouldn't be treated as a mere commodity?

Those are all compatible with health care is not a commodity.  But is health care a human good?  Well, answer, yes, some of it is and some of it isn't.  Some health care kills you.  On some estimates, about 100,000 people a year in the United States die as a result of medical mistakes.  So presumably that health care at least wasn't good for them.

I'll try to compress a little bit in the name of time.

Let me just say one more thing about this claim that health care is not a commodity.  One hears a similar claim in the debate about intellectual property in genomics.  Some people say you can't patent life.  Well, in one sense, you can patent life.  It has been patented.  The real question is whether one should patent various items, and, if so, what the intellectual property role should be.

And, generally, I think it's better just to cut directly to the normative issues and not give ourselves false comfort by making statements that appear to be descriptive statements in the indicative mode, but are really ambiguous moral statements, moral claims, that need arguments.

Now, here is another reason not to begin your deliberations with the question of whether health care is a human good.  Doing so may encourage a mistake, not on your part but on the part of some members of the public, the mistake of assuming that health care rather than health is the basic concern.

For a long time we've known that not just health care but also public health, nutrition, and the absence of violence are important contributors to health.  And in the past two decades or so, we've learned that there are more subtle social determinants of health than clean water, sanitation, absence of violence, including, on some accounts, where one stands in an egalitarian social order.

That is, social inequality itself may have costs in terms of health status independently of the association of ordinary risk factors with lower socioeconomic status.  Focusing immediately on health care rather than on health misses this point.  Some studies, including the famous Whitehall study in England, suggest that social inequality may contribute to differences in health care, even where access to health care is more or less equal. 

Remember our initial question, one of them was, is health care a legal right?  Well, in the United States, there is a legal right to health care.  It's quite a limited right.  But the question that we should really be asking is:  ought there to be a legal right or legal entitlement for all citizens to an adequate level or decent minimum of health care?

And here is why in trying to think about that question one should not start out with the question:  is there a moral right to an adequate level or decent minimum of care?  Why shouldn't one start out asking whether there is a moral right?  Because doing so gives short shrift to other moral considerations than those having to do with moral rights.

And it also diverts attention from the fact that there are non-moral — for example, prudential reasons — for having a universal legal entitlement to health care. 

So it's a mistake to assume that there is a good case for having a legal entitlement to health care only if there is a moral right to health care.  Furthermore, if you mistakenly think that there ought to be a legal entitlement to health care only if there is a corresponding moral right to health care, then you may draw overly pessimistic conclusions from what I take to be the current unsatisfactory state of theories of the right to health care and of justice generally, to which I will now turn.

The bottom line is that those theories provide limited illumination.  Here I will be mainly just emphasizing a couple of points I made in one of the papers in your packet, "The Right to a Decent Minimum of Health Care."  The bad news is that even the most developed theories of the right to health care, including Norman Daniels' theory, are both morally controversial and, more importantly, too abstract to yield much guidance on the question of what sort of legal entitlement to health care we should have.

The good news is that theories of the right to health care and theories of justice generally appear to converge on the conclusion that there are good reasons, some having to do with rights, also some other reasons, to establish a legal entitlement for all citizens to some "adequate level or decent minimum of health care."

The reasons, as you might suspect, are mainly negative.  That is, there is considerable consensus that it's implausible to say that there should be a strongly egalitarian legal entitlement to health care understood in either of two ways — either as a right of each — to all health care that would be of any net benefit to him or her, or as a right of each individual to the highest level of health care that anyone in the same health care condition would be getting.

The problem with the first understanding of a strongly egalitarian health care entitlement is that it fails to acknowledge that resources are scarce and that health is not the only good in life, not to mention the fact that health care is not the only way of promoting health.

The problem with the second understanding of a strongly egalitarian health care entitlement is that it commits us to the highly counterintuitive conclusion that even if everyone is getting very high levels of high quality care at reasonable cost, or even no cost at all to themselves, no one should be allowed to use their disposable income to get any higher level of care.

So the idea of a legal entitlement to an adequate level or decent minimum of care rather than a strongly egalitarian legal entitlement is at least useful for making it clear that legal health care entitlement shouldn't be unlimited, and that people should be allowed some freedom to pursue health care above the legal entitlement, whatever it turns out to be.

Let me back up a minute, see if I can save some suspense.  Existing theories of the right to health care or, more generally, theories of justice, cannot tell us what the content of the decent minimum or adequate level of care is, though they can provide some minimal guidance, in particular some guidance on which sorts of health care are likely to be candidates for inclusion in this standard.

I don't think there is any reason to believe that there will be breakthroughs in theorizing about the right to health care or about distributive justice generally that will tell us how to fill out the content of the adequate level or decent minimum of care to which all ought to be legally entitled.

Instead, in the end, we'll have to rely on public institutional processes, primarily, though not exclusively, political and legal processes, to engage in the task of articulating, contesting, and revising operational understandings of the level of care to which all are to be legally entitled.  No amount of theorizing will do the trick, though the public institutional deliberations should be informed by the best theorizing available. 

Now I want to argue that there is one sense in which your decision to separate the how question of health care reform from the deeper moral and philosophical questions is ill advised.  I complimented you for it earlier.  Now I'm going to tell you why it's wrong.

It's ill advised, because it assumes that there is a neatly divided two-step process.  First, we get clear on the deeper philosophical and moral issues.  Then, we devise policies to implement the principles that we discovered in the first stage. 

I've already explained why I think this won't work.  We have no theories that can tell us what the content of a universal legal entitlement to health care ought to be, and it's unlikely that any will be developed in the foreseeable future.

But there is another more significant reason.  We cannot satisfactorily answer one of your deeper questions — who is responsible for health care — until we have two things. 

First, a politically effective social consensus that there should be a legal entitlement for all citizens to some adequate level or decent minimum of health care; and, second, a publicly credible, morally defensible, authoritative assignment of responsibilities for realizing the legal entitlement for all — an assignment of responsibilities for which various parties can justifiably and effectively be held accountable.

This is what we lack in the U.S. — we lack two prerequisites for answering the question:  who is responsible for health care?  Politically effective societal consensus that there ought to be a legal entitlement to an adequate level of care for all, and an authoritative assignment to determine the responsibilities for making the legal entitlement effective.

The crucial point is that we are not in a position where we're trying to discover what the proper allocation of responsibilities is.  We have to create the proper allocation of responsibilities.

There is no general answer to the question:  who is responsible for health care?  once we get beyond the banality that the responsibility must be shared.  Consider the more precise question:  who is responsible for ensuring that everyone has an effective legal entitlement to some level of care?  There is no general answer to that question either.

There are different ways of achieving access to health care.  In different systems there will be different responsibilities for various parties.  Substantive judgments of who is responsible can't be made out of thin air.  They have to be made against a particular institutional background.

Let me illustrate the point with an example which will probably drive Dr. Relman crazy.  In the 1980s, one often heard the allegation that for-profit hospitals were failing to provide care for indigent patients.  The facts were clear enough:  they were not providing much care for indigent patients.  But to say that this is a failure of the for-profit hospitals is to blame them, to assume that they're not fulfilling a responsibility of providing care to indigents.

Similarly, today one hears that managed care organizations are not providing to their enrollees some care that would be beneficial to them, with the suggestion that in doing this they're failing to discharge their responsibilities. 

But, of course, that would follow only if managed care organizations have a responsibility to provide their enrollees with all the care that would be of any benefit to them, but they have no such responsibility.  They have not assumed it, and no one has authoritatively assigned it to them.

The point is that the particular blaming judgments that I've mentioned about for-profit hospitals and managed care are not well supported.  Both judgments assume that the parties in question have some determinate responsibility without providing any basis for those assumptions.

They pretend, in effect, that we live in a society that has had the courage to face the problem of providing access to an adequate level of care for all, and has assigned determinant responsibilities for achieving those.  But that's not our society.

The result is what I call "duty dumping," self-serving and unproductive blaming.  If there is a societal obligation to make effective a legal entitlement to some adequate level of care for all, then pointing the finger at for-profit hospitals or managed care organizations, or even at the Federal Government, in the absence of an authoritative assignment of determinant responsibilities for access is simply bad faith.  It helps us to continue to evade our societal responsibility.

This kind of evasion also puts health care providers in an untenable position.  They're caught on the horns of a dilemma.  On the one hand, if they take literally the traditional medical professional's norm of doing the best they can for each patient, regardless of cost, they act irresponsibly by wilful ignoring the fact that resources are scarce and that health care is not the only good in life.  And they continue to contribute to the cost spiral that prompted the managed care revolution they so deplore.        It seems to me that often physicians talk about the managed care revolution on analogy with the popular film Independence Day.  One day they woke up and horizon to horizon was a huge alien spacecraft, came out of nowhere.  We hadn't done anything wrong, and it started sucking the life out of everybody.

I don't think that's really an apt analogy, because managed care didn't come uninvited.  It came at the behest of payers, government payers like Medicare and Medicaid, and employers who simply wouldn't put up with uncontrolled costs that the current system, dominated by the medical professional, was not controlling.

The analogy really would be more apt with Bram Stoker's interpretation of the Dracula story.  According to Bram Stoker, the vampire can't attack you unless he has been invited into your home.  And I think that's what happened with managed care.  Even if you think managed care is blood-sucking, it's not blood-sucking like in Independence Day, not by a long shot.

So one dilemma is — one horn of the dilemma is that if health care professionals stick to the traditional norm of doing the best they can for each patient as they come, as it were, one at a time, then they're denying the reality of spiraling costs, and they're just contributing to the problem.

On the other hand, if health care providers ration care but do so without being able to rely on some authoritative standard of adequate care to serve as a constraint on the withholding of beneficial care, then they can be accused of unprincipled rationing, of rationing that is dictated by concern for profit alone or is in some other way arbitrary.

So there's a great cost to not having a societal consensus on the commitment to establishing a legal entitlement to some level of care for all and making some progress on getting operationalized consensus on what that content is, a huge price, a huge moral price.  So that's just the point that I was making.

Now, in the second article in your packet that I contributed, I draw a distinction between two kinds of mixed private-public health care systems.  Type 1 systems are what might be called designed complementarity.  That is, there is a division of labor between government and private entities that makes effective a legal entitlement to some level of care for everybody.  That's one model.

The other model you might call the government gap filling model.  The government ensures that all get whatever the private sector doesn't provide, so that there is an effective legal entitlement to adequate care for all, and the government need not be a provider of care in any direct sense.  It may subsidize or finance care provided by others.

Now, in principle, either of these types of systems could be satisfactory, but the problem is in the United States we don't have either type of system.  Instead, we have a situation in which the government and some members of the public pretend that we have a Type 1 system, and then blame private actors for not fulfilling their assigned responsibilities, and in which private entities tend to assume that we have a Type 2 system and say that it's the government's fault if what the private parties don't provide fails to achieve adequate access to care for all.

But we don't, in fact, have a Type 2 system either.  We don't have a government gap filler system.  The government does not have a clear mandate to do whatever is necessary to bring everybody up to an effective legal entitlement to some standard of care if they don't reach it through the operation of the private market.

And why does the government not have that mandate?  Because what I said earlier is missing.  There isn't a clear societal commitment in this society to a legal entitlement for everybody to have something beyond access to emergency room care.

So my conclusion is that it's a mistake to start out asking, who is responsible for health care?  Asking that question at the outset plays into a delusion — the collective bad faith, whose pathology I've outlined.  It encourages the mistaken idea that the responsibilities in question are to be discovered when in fact they must be created.

So we cannot first answer the question:  who is responsible for health care? in any substantive way, and then go on to ask, what sort of health care system should we have?  Who has what determinate responsibilities will be system relative, though there are some general moral considerations that should guide the choice of a system, and, of course, one of them is among the options, which sort of system with which sort of assignment of responsibilities would be one which shelters and nurtures the right sort of professionalism, the kind of thing that Dr. Relman has been talking about.  And there are many other moral considerations.

Now, in the second article in the packet, Rationing Without Justice but Not Unjustly, I argue that we are in a peculiar situation.  We lack some of the necessary conditions for making determinate well-grounded judgments about responsibility for health care and also some of the necessary conditions for being able to make responsible, rationing decisions, and for making justified judgments about blame for who fails to ration properly.

So we first need to achieve a politically effective societal commitment to providing something like an adequate level of care for all.  Then, and only then, we can begin to tackle the task of developing an institutional division of labor with an authoritative assignment of determinant responsibilities for achieving an effective legal entitlement to adequate care for all.

Notice that the adequate level of care to which all are to have a legal entitlement, if that's the way we decide to go, cannot be fully specified in advance.  It will have to become better articulated as the process proceeds.

Now, let me just say one last thing about this seductive but elusive idea of an adequate level of care or decent minimum of care.  Remember I said it mainly plays a kind of negative role of saying that we don't want to opt for what I call the strongly egalitarian legal entitlement to health care, and, of course, by saying "an adequate level" or "a decent minimum" it also alludes to the idea that it should be something more robust and generous than the kind of legal entitlement to emergency care that we have now.

But beyond that, it doesn't tell us a lot.  And I don't think it can.  I don't think that idea itself, even when we combine it with the best theorizing about distributive justice or justice in health care can do the trick.  Instead, we've got to take the plunge and embark on the right kind of public deliberative processes to try to give content to the idea.  But, again, we can't begin that process unless we supply what we haven't had so far.

Let me say one last thing about the idea of an adequate level of care.  This idea was utilized, you know, years and years ago in the President's Commission report Security Access to Health Care, and I invite you to look back to that, because there are some things that are said about what the content should include and shouldn't include.  It's not by any means a specification.  Even back then we realized that you couldn't do that kind of thing a priori, that it had to be somehow worked out institutionally.

But at that time, there was something conspicuously absent from our deliberations about access to health care — that is, a global perspective.  We focused only on the question of whether there were arguments in terms of moral rights or other values for establishing some legal entitlement for all American citizens to an adequate level or decent minimum of health care.

But there was no awareness of the very disturbing problems of global health disparities, and not just the fact that we have better health status than many people in the world, but that many people in our world are suffering terribly and have horrible health conditions which could be remedied. 

People are dying of preventable diseases.  Life expectancy in the less developed world is very low.  People come into the world riddled with parasites, malnourished, all of that in addition to the HIV/AIDS epidemic.

Now, it seems to me that if you take a perspective that's even a little bit cosmopolitan — that is, you think that there are individuals out there who count morally speaking even if they are not Americans — a theoretical idea for some people, I doubt for anybody in this room — then, you've got to ask yourself in our process of trying to work out the idea of some adequate level or decent minimum of care to which all Americans ought to be legally entitled, should we be keeping in mind that as a society we may have some obligations with respect to access to care to other people beyond us? 

And if we do, then presumably those obligations will place some kind of constraint on how generously or robustly we fill out the adequate level of care that we are trying to establish a legal entitlement to for all Americans.  And I think that it is going to be very hard to do that, because I think there will continue to be advances in biomedicine which will raise our expectations for what counts as an adequate level of care for us as Americans.

And it may include things like retarding what we regard as the normal aging process, regenerative medicine, lots of other things, and so there is really a danger that unless we show some sense of constraint of the sort that Dan Callahan has talked about for many years that, you know, even if we get the idea that it should be an adequate level of care or a decent minimum of care for all citizens, it may inflate and inflate and inflate.  And that would have unfortunate consequences for lots of reasons, one of which is that it would completely rule out any sense of cosmopolitan moral concern.

Thank you.

(Applause.)

CHAIRMAN PELLEGRINO:  Thank you very much, Dr. Buchanan.

Our next speaker is Daniel Callahan, Director of International Programs at The Hastings Center and former President of The Hastings Center.

Dan?

DR. CALLAHAN:  Thank you, Ed.  It's a pleasure to be here, primarily because I know so many people, colleagues over the years, and it's nice to see them all together.

But just as much maybe I am pleased with this topic.  My own history in bioethics has pretty much followed, in many senses, a rather traditional trajectory.  One of our first projects at The Hastings Center, as Leon Kass remembers, on definition of death — we spent a lot of time on issues of definition of death, genetic counseling, human subject research, questions of who should live, who should die.  That was the kind of language of the time.

But as time went on, I became increasingly interested in the question of the goals of medicine.  What is this whole enterprise about?  Which I worked on in the mid-1990s, really '90 to '95, thereabouts, and then increasingly I became interested in the whole question of the organization of health care, thinking that there was a fundamental relationship between our notions of the appropriate goals of medicine and the way a health care system should be organized.

What I found, however, was a great deal of resistance in moving in this direction.  For many, bioethics essentially still means clinical ethics.  The notion that one in bioethics should take on health care is seen as moving into an area which is essentially politics rather than ethics.  As one indignant economist told me recently, because I've been working on the question of the market, "Well, that's not your field.  You're not an economist." 

And there are many people in bioethics also who still feel that somehow this is more politics than ethics.  I think it's just the opposite.  I happen to think that the organization of health care systems, reforming health care, is the most fundamental problem.  I think issues of stem cell research, cloning, all of these come back to the question:  what is it appropriate for medicine to be doing for people?  What are the fundamental goals of medicine? 

And, therefore, what is it proper in a health care system to begin distributing and trying to give to people?  Where should you draw the line?  How far should you go?  So that's why I'm pleased that this topic is here.  There aren't many of us in bioethics that work on it, because of a certain bias against it all, but I hope more and more will in the future.

So with that said, let me begin.  The United States is undergoing one of its periodic health care upheavals, and every other developed country is having trouble as well.  Whether you use the language of crisis or simply talk about the need for serious reform, there is general agreement that we cannot continue on the present course.  And many other developed countries have similar worries.

I mentioned the universality of the problem, because it would be a mistake to think that it is merely a matter of better organizing our jerryrigged system.  That managerial move is necessary, but the deeper problem is that no country has found a satisfactory way to manage the expensive and endless war against illness, disease, and death that is the modern medical enterprise.

It is perversely a war that seems to get more, not less, expensive with every victory, every extra year of life gained.  The healthier we get the more we spend.

Now, organizing health care systems encoded with that dynamic has turned out to be a daunting and frustrating matter, and exacerbated by the many unique conflicting interests that mark American health care.  But the problem is a common one.

For all these reasons, I believe the question has to be seen as a universal problem, one very much coming back to, what do we think health care is all about?  What are its fundamental purposes and goals?  What are its boundaries and its limits?

Now, I want to try to make all of this rather concrete by talking about two what I consider practical problems essentially and two foundational problems.  They overlap considerably, though.

I begin with the practical matters.  One of them is that of providing health care for the 46 million Americans who do not have it, either temporarily or long term — a number that steadily grows. 

The other practical problem is that of steadily rising health care costs, increasing at a rate of about 7 percent a year, a nasty kind of compound interest that will wreak havoc with the Medicare program in less than a decade, at least the trustees say that, and with the entire system roughly in the same timeframe.  It's expected within about a decade our health care spending will double.

I call these issues practical not because they lack ethical dimensions, but because they have particularly challenged the future viability of American health care, requiring an extraordinary degree of managerial and political savvy to deal with.  Those are my two practical issues — the two foundational issues, the ethical roots and medical markets.

One of the foundational issues is that of the ethical roots of health care systems.  Upon what understanding of human nature and ends should health care systems rest?  And upon what understanding of the quest for health and the ends of medicine as a part of that quest should they rest?

Those are questions that American politicians are wary of confronting, that are too deep, too complicated, and likely, many think, to drive people apart rather than to bring them together.  Nonetheless, I believe they are unavoidable.

My own approach is to start with the assumption, earlier uncontroversial but now more contentious, that we are finite creatures, born to live eventually — but to live but eventually to die, and whose life as a whole should be valued more for what is done with it than for how long it lasts.

The aim of medicine should be within a finite life span to help us have a good chance to go from being young to being old, to relieve us of our physical and mental disabilities if possible, to rehabilitate us as best we can if we are disabled, and to help us achieve as pain-free and peaceful a death as possible.

Medicine ought not to seek an indefinite extension of life, or aim to enhance our nature beyond the ordinary standards of good health, or to find medical means of relieving us of all pain and suffering, many of which are now and will always be unavoidable.

I further believe that an average life expectancy of 80 or so, which we are approaching in this country, is long enough to achieve most of the goods that life affords us if we are to achieve them at all.  A longer life may mean a better life for some, but those individual benefits are not likely to be community benefits.  We may not like death and finitude, but they are good for us as a species and good for us for the vitality of our community.

There is, of course, a connection between the two practical problems I began with and this fundamental problem.  If we are to have universal health care, to what should all of us be entitled?  How far and in what way should a health care system be prepared to go in our quest for health and avoidance of illness?  And if we are to control costs, to what extent and what way should cost be a consideration in patient care?  And what if that care is to save a life?

The other fundamental problem is that of the tension between the belief that health care is best provided by the government versus the belief that it is best provided by the private sector.  I call this the market problem.  This tension is obviously a part of the present debate over health care reform.

Now, to call this the tension might seem either too strong or too mild a term.  It is too strong if understood to be a black or white matter, just simply private or public.  All sides seem to agree that some government support is necessary and that some private sector care is desirable.  Getting the right balance is the real challenge.

But it can seem too mild in light of the passionate and conflicting ideologies that mark the debate, usually cast in the most moralistic language possible.  Consider the editorial pages of The Washington Post versus The Wall Street Journal or the Nation Magazine and that of the Weekly Standard.

I call this a foundational issue, because if one moves back from the inflamed rhetoric there is a basic clash of values, each with a long history.  That clash is between a communitarian understanding of our common life — man as a social animal going back to Aristotle, and man as a maximizer of self-interest, the more recent position notably advanced by Adam Smith.

Care must be taken here not to attribute cartoonish positions to them.  Aristotle surely understood the importance of the individual and of the need for virtuous individuals as the basis of a good society, just as Adam Smith understood the importance of empathy and of sustaining moral order as the basis of a good market society.  Even so, they represent different conceptions of the individual and the community and offer divergent foundations for health care.

Now, the appropriate starting point in thinking about the organization of health care is that of the foundational issues.  So let me say a little bit about them.  I favor universal health care because I see the preservation and pursuit of health as a necessity for the security and flourishing of society.  Societies can surely survive with a high level of poor health, and many do, but a healthy society is a better one.  I won't try to defend that proposition.  I think it can easily be defended.

Medical progress, together with a better understanding of public health and the role of background of social and economic initiatives have obviously made an enormous change in the perception of health and illness.  They have steadily brought — steadily been brought under human control. 

We live longer and healthier lives than any humans in history.  Nonetheless, we still live under the threat of sickness and death.  They remain an enduring part of the human condition, and there is no reason to think it will ever be otherwise.  This is true for each of us as an individual and each society as a community.

Since the threat is both individual and collective, a health care system needs to be organized with that truth as its moral basis.  For just that reason, I have been much drawn to the European idea of solidarity as the foundational concept for the provision of health care.  I take that term to mean that in facing our mortality we are all in it together.  We share a common thread of illness and death.  We, thus, need each other and are joined by our shared faith. 

Moreover, when health care is enormously expensive and getting more so all the time, then we face a common economic threat.  Unless we are very affluent or wealthy, we cannot, as individuals, pay for our own care or that of our families.  We need each other economically.

It has been common in bioethics for many years, in larger political liberal circles at least, to use the language of rights or of justice to make the case for universal care.  The language of rights has significantly faded, well symbolized, as Allen will remember, when the President's Commission decided to talk the language of obligation rather than rights.

For reasons I won't develop here, I have never been an enthusiast for the language of justice either.  I don't believe it is very illuminating except in some very narrow sense of fairness with an agreed-upon entitlement program.  And it certainly has not worked as a motivational concept, much too theoretical and abstract to move the public.  And it has none of the powers, say, of empathy, which was of course one of Adam Smith's great contributions.

I press the notion of solidarity not because I rate its chance of acceptance as strong in American culture, but because the rights and justice approach has failed, and there can be at least no harm in trying a different route.  Most important is it has served wonderfully in Europe and Canada to provide a sustained impetus for universal care. 

The ideology-driven phrase that characterizes universal care as "socialized medicine" is blithely ignorant of its European history, which goes back to the social teachings of Pope Leo XIII in the late 19th century, and to the German Chancellor Otto von Bismark during the same period.

It was the latter who put in place the first universal health care system, and he did so as a way of thwarting rather than embracing socialism.  The fact that every European government, right or left, since then gradually came to adopt that policy at the least should suggest that there is nothing inherently socialistic about it at all.

Solidarity is, first and foremost, a moral concept, a way of characterizing mutual obligations we should impose on ourselves for our common good, and that is the spirit of the European systems.  In this country, we understand that national defense at the national level and the provision of police and fire protection at the local level are necessary for our collective welfare.

But not even The Wall Street Journal or The Weekly Standard refers to these government services as socialistic.  We don't talk about a socialistic Department of Defense.  Why, one must ask Americans, is not our need for health care as important as our need for national defense, fire, and police protection?  Public opinion for 80 years now has favored universal care by a large majority, so the public at least gets the point.

Now, while an increasing number of social conservatives have now seem convinced that some kind of universal health care system is needed, the main argument centers on the comparative role of market ideas and practices within such a system.  Market advocates wanted to have a strong, even dominant role, and they have behind them, of course, the present administration.

If solidarity is the central value for universal health care, choice and competition are the central value for political conservatives.  In one sense, this emphasis can be seen as quintessentially a reflection of American individualism and its focus on choice and a reflection of American business life and its focus on competition.  Each individual should be free to choose his own kind of health care, and he should be able to select among a goodly range of commercial providers for its provision.

But in another sense, this emphasis no less reflects the history of an animus against government.  It can be traced back as far as Thomas Jefferson, and more recently to the influence of Friedrich von Hayek and Milton Friedman.

Moreover, one does not have to be a market enthusiast to appreciate the extent to which European health cares have worked in recent decades to bring many market practices, particularly competition, into their universal health care systems.  They do so, however, to improve and complement those systems, not to compete with them.

Markets, I readily grant, can have a useful, if subordinate, role in building a good health care system.  What moral weight should — ought we to give the choice in competition?  We can give them a light weight by recognizing that most people do like to have a choice of doctors and hospitals, some say in the way they are treated and are willing enough to have their care paid for by competing insurers.

But many market advocates, at least in my reading, give choice and competition a heavier weight.  The classic difficulty with giving a heavier weight is that the market is not a neutral tool, just as the choice that is part of its armamentarium is not neutral either.  The market does indeed promote national prosperity, but it does so by eschewing any judgment on the  morality of the choices made.

The market will sell us whatever we will buy and believes that it is not part of the market's job to decide what we ought to buy or how we ought to morally live our lives.  The use of the market, then, while it has many practical advantages commercially speaking, makes it a dangerous solvent of traditions in moral values — a point well acknowledged long ago when Irving Kristol wrote a book with the title "Giving Competition Only Two Cheers, not Three."

The profession of health to a society, relying on the art and science of medicine as its primary vehicle, should be as medicine itself — should be an altruistic enterprise seeking the health of its citizens.  To put at the heart of that enterprise a set of values that is aimed simply to bless free choice, not the goals of medicine, and that makes individual choice a central commitment, not the good of the community, is a dangerous move.

Adam Smith believed in an invisible hand, one that could transmute the self-interest and motivation of individuals into a collective benefit.  That may be true in many spheres of our civic and commercial life, but it is still to be demonstrated as true within health care.

But the real danger of choice in competition as basic values is that those choices in American medicine are heavily dictated by the commercial health care sector — selling everything from insurance to drugs and devices.  Their motive is not health — though that can be good for profit — but the making of money for shareholders.  American medicine is unique among the nations of the world for its thorough going commercialization.

Health care industries have among the highest profit of all industries and aggressively sell their profit, now allowing directed consumer advertising which only one other country — New Zealand — allows.  If socialized medicine is a bad idea, the high cost of invariably poor health comes to match those costs, make what can be called commercialized medicine a far worse idea.

Here I pay tribute to the life-long work of Arnold Relman for going after that kind of medicine, often corrupting the system and distorting the values and traditions of medicine.  I want to spontaneously remind people there was a story in the newspaper yesterday that the average psychiatrist in the State of Vermont receives $45,000 from the medical industry, mainly by selling drugs for children, prescribing and selling drugs for children.  $45,000 is an incredible figure, I think.

Anyway, let me return, then, to the practical problems — universal care.  I have not heard anyone over the years who has upheld a large number of medically uninsured citizens is a good thing for American society.  If nothing else, one way or another the public pays for the lack of care and for the economic and social burdens that their increased risk of illness and disease carries with it.

The 15,000 deaths a year that the Institute of Medicine has estimated as one of the prices we pay for that omission is not a trivial figure.  Moreover, as a nation, we can clearly afford to pay for universal care.  Why, then, do we not have it, particularly when public opinion polls have for so long found the public overwhelmingly in favor of it?

One obvious answer is also found in those polls.  There is considerable disagreement about what form universal care should take.  It ranges from a continuum of government versus market-oriented schemes, and there has always been some disagreement coming out of those polls about how much people would be willing to pay to have it.

Another reason is the sheer number of conflicting economic and professional interests, most with the stake in keeping the system as it is, one that is profitable for doctors and industry.

The reason I want to focus on here, however, is the deep-seated American hostility to government and the resistance at even looking carefully at the European health care systems.  By just about every possible standard, those systems are superior to ours.        They have bigger life expectancy, lower mortality rates for infants, higher quality of services that have gained considerable popularity with the service, and insurance coverage for everyone, and they do all of that for considerably less money than we spend.

According to some major World Health Organization and OEC studies, the U.S. ranks only 17th or 18th in overall comparison of health care quality in outcome in developed countries.

Three mistakes are commonly made by Americans in their assessment of European health care systems.  One of them is I think they are simply not worth looking at at all.  They are government-run or managed, and, thus, ruled out a priori.

The second is they constantly harp on the failure of two of these countries — Canada and the U.K. — as a generic indictment of them all.  The third, related to the second, is the failure to recognize that there are two types of universal health care systems in Europe, the so-called Beveridge system which is tax-based and government-run, and the Bismark social health insurance systems, which are financed by mandated employer and employee contributions and served by at least quasi-private insurance companies.

The first point to make is that the Canadian and U.K. tax systems are among the weakest of all systems, ranking down there near the U.S., which is pretty low on international surveys.  It is those countries that have the notorious waiting list, not to mention the serious shortage of doctors and nurses.  But those feelings are almost unique to the tax-based countries.

The social health insurance systems have either no waiting list or minor ones only, and all of them — tax-based or social service — have better health outcomes and lower costs than ours.  The social health insurance systems, which, say, include The Netherlands, France, and Switzerland, should particularly attract American attention.  They offer some useful models for the U.S.

Among other things, they offer a wide choice of physician and other health services, competition among insurers, coverage for all sectors of health care including drugs and long-term care.  Their lower costs are facilitated, of course, by strong government regulation — regulation that typically encompasses the introduction and diffusion of new technologies, negotiation to set physician fees and hospital budgets, and cost controls on drug prices — ideas that are not exactly popular in the U.S.

Yet they have been willing to experiment with many forms of provider competition and to introduce managed competition following the lead of Alain Enthoven, and to respond well to public demands for more consumer-directed health care.  But they do all of this, including the regulatory imposition, in the service of sustaining universality itself undergirded by — I'm sorry, sustaining universality undergirded by a commitment to solidarity.

While most of the American health care reform proposals now available are hybrids of one kind or another, a mixture of public and private provisions — few of those that rely on the private sector make any mention of government control of that sector.  The European experience should in that respect teach the U.S. one important lesson.  If costs are to be effectively controlled, the private sector cannot be allowed to run free.

The U.S. experience with an unregulated private sector shows that it does not and cannot control costs, and neither consumer choice nor provider competition is likely to make that make more than a marginal difference.

Since I became interested in the relationship of medicine and the market well over a decade ago, I have been a vigilant reader of The Wall Street Journal, Forbes, and other magazines of similar disposition.  Its editorial pages revel in knocking Canadian waiting lists, tending the glories of cheaper TV screens, assaulting socialized medicine, and glowingly describing the wonderful efficiencies and lower costs that the private sector can bring to health care.

The best antidote to that kind of rhapsodizing are the news stories in The Wall Street Journal about the private sector whose capacity for inefficiency, endless foul-ups, and unethical behavior certainly competes well with the very worst of government behavior.

Finally, I end with medical technology.  To my mind, it most vexingly joins together a practical and foundational issue.  As a practical matter, the control of technology cost is no less important than covering the uninsured. 

A seven percent annual cost increase is already wreaking havoc with their present system, and must be brought under control, and by "control" I mean an annual cost increase that is no greater than the annual cost of living increase which would put us in the two to three percent range of acceptable cost increase.

Health care economists, in a rare moment of consensus, have determined that close to 50 percent of that increase comes from either new technologies or the intensified use of old ones.  Any serious effort to control costs must then focus on the development and use of medical technology.

If a hearty dislike of government is one of the obstacles to reform in the universal care direction, the American infatuation with medical progress and technological innovation is one of the main obstacles to controlling and using — to controlling its use and cost.

Where the management of technology joins the foundational problem comes at what I call the frontier of medical progress.  That frontier always moving is that point at which the present moment displays the success of past technological innovations in saving life and relieving suffering, and the promise that future innovations will do the same.

We conquered polio and small pox.  Now we have moved on to cancer, heart disease, and Alzheimer's.  The notion that we might stop with those earlier victories, which cruelly killed millions, and not try to bring a comparable benefit to those dying of present uncured diseases and also killing millions, is for most people simply a cruel and unthinkable idea.

If it was right to bring the beneficial innovations of earlier generations, is it no less right to bring it to present and future generations?

Now, it is hard to oppose that argument, particularly if one has experienced the suffering and death of one of those many diseases not cured or controlled.  My response is this:  if cost control is necessary for the good of the health care system, and if the control of technology cost is critical in doing so, then it must be done.  There will always be a frontier of medical progress and technological innovation.  If everyone lived to 150 or 200, it would still be there.

What's good for us at present and what we need to live satisfactory lives is not to win that endless war against illness and death — a war that cannot, given our nature, be won.  We now need to learn how to live within the present frontiers of progress, moving ahead, if at all, slowly and carefully.

This we have refused to do in the past, but that must change.  If that seems a painful prescription for the health of the health care system, there is a consoling thought.  Those of us in developed countries now live the longest and healthiest lives in human history, and we know that what most determines the nation's health status is not medical care but the condition of life — jobs, education, income, and environment.

I could go on and say more about the need for prevention and shifting in that direction, but the point is we cannot continue simply throwing more and more high technology at medicine and expect to run a sustainable affordable health care system.

Thank you.

             (Applause.)

CHAIRMAN PELLEGRINO:  Thank you very much, Dan.

Our next speaker is Ezekiel Emanuel, Chair of the Department of Clinical Bioethics at the National Institutes of Health. 

Zeke?

DR. EMANUEL:  Thank you.  As the last speaker on a long and intellectually intensive day, I guess I don't have an enviable spot.  So I hope to be sufficiently provocative to keep you awake.

The first thing is, as Dr. Pellegrino mentioned, I am a government employee.  I can assure you that my comments don't reflect this government and the official policies of the Department of Health and Human Services.  No one has read my comments in that department.  They are simply my ideas.

The second disclaimer I need to offer is that I originally misunderstood my charge.  I understood that we were going to talk about individual responsibility for health — things like the West Virginia Medicaid situation — and had thought about that in the context of rationing and how much the individual dessert ought to play a role, and so I had prepared remarks on that, but more carefully read when I got the notebook what exactly I was supposed to do and how responsibility was being thought of in a different way.

So disclaimer three is a little skepticism, actually, about the topic being offered and whether this issue of who has responsibility, the individual society or both, is really the right question to ask, and I guess in this I am following Allen Buchanan's statement or his view.

And, in part, I guess I'm skeptical about this question because I don't think that's the real issue, and I don't think that moral thinking or moral resolution to that question is going to have much impact either on the moral thinking or, more importantly, on the actual change in the American health care system.

I think it really is an economic and political question that we're confronting, and that needs to be addressed to get a better health care system in this country.  And why do I think that, and why do I think, despite being a bioethicist and committed to thinking about the allocation of health care resources, don't I think we ought to think more about the moral side to it?  

And that is because I think we really do have a consensus that there is an obligation on the part of society to provide people with a — what Allen has called "a decent minimum," with some basic standard medical benefit package, and the issue is how and how big that package should be.  And that's really an economic and political question that ethics can add into.

But I don't think the question of responsibility is really unresolved anymore.  I think we do think society has that obligation.  When you have a Republican Governor of California, a Republican Governor of Massachusetts, very conservative individuals saying that — joining the Democrats on that, I just don't think we really have that much moral disagreement anymore.  There may be some, but I don't think it's big.

So why are we talking about responsibility in this way?  I would suggest that it's a combination of two factors.  The first factor is we have effective medical interventions that really do cure people of diseases, increase the length of life, improve the quality of life.

We should remember that I think in 1900 the average life span of an American was 47 years.  While a big increase has been because of public health measures, better housing, better food, we know that in the last 40 years at least half of the improvement in our life span has been because of medical interventions, and maybe a lot more. 

If we didn't have these effective medical interventions, we wouldn't be having this discussion.  Who cares?  There wouldn't be a discussion of who is responsible for giving people health care if we don't have any effective health care to give them.  So one is the ever-increasing effective treatments actually puts pressure on us to get them, because once they're effective people feel like they should be able to get them and that they're entitled to them.

And it is, of course, no historical accident that universal health care coverage and insurance began to develop in the late 19th and early 20th century just when we really began to have truly effective coverage.            It might also — it's an interesting note in American history, which I have had the privilege of looking at recently, that the first bill, as far as I can tell, where the United States Government provided health care coverage and services for the entire population was small pox vaccination.            After the proof of Jenner, and then Waterhouse, that it worked and that it really cured people, Congress quickly set up an office for vaccine — to provide vaccine — a cowpox vaccine to whoever in America wanted it and, as I understand, free of charge.

And the person to occupy that role was to have people around the country to whom he could send vaccine for people to get vaccinated.  So when we had effective treatments, the response of the country is actually for government to jump in and provide it. 

This is not a new debate in the 21st century — very early in the 19th century.  I think that bill, if I'm not mistaken, was something like 1807.  Very early in this country we have seen that if you have an effective intervention people ought to be entitled to it.

So one reason we're having this debate about individual responsibility is the fact that we do have effective treatments that people want.  A second reason is, as everyone has responded, high cost.  After all, if these treatments were pennies a day, like vaccines, we wouldn't be talking about that either, because government could afford it, we could pay, and there wouldn't be an issue. 

That's why we do — the government does provide vaccines for children as well as mandate that they use them.  It is only because we have high costs, which we are perceiving to be intolerable or unsustainable or pick out any phrase that seems to capture that that we're talking about it.

Everyone is trying to shift the responsibility for paying this to someone else.  Business is shifting it to individuals.  Government is looking to unload it onto individuals.  This obviously does link back to the West Virginia Medicaid case, and the language in Massachusetts of individual mandates, trying to shift the responsibility onto someone else to pay for that.

So it's this combination of effective treatments and high costs that are getting us to think about it, and I think we're really talking about individual or social responsibility, who has it, because everyone is trying to shove it off on someone else.  But I think to be honest, the real issue here is who pays.

Now, the conventional wisdom out there, if you follow the debates and certainly the Presidential candidates' various proposals, the proposal in Massachusetts is it's a shared responsibility.  I think Dan used that term.  It's a shared responsibility, a little employer, a little government, a little individual.  I think that's all hogwash.

We, as individuals, bear the responsibility.  If you look at it fiscally, we absolutely bear the responsibility.  When employers provide health coverage, who really pays?  Any economist will tell you it's the individual who pays.  It's just part of compensation.  People are basically giving up wages for a benefit.  If the employer stops paying, wages go up and should go up. 

If government took over, most employers would increase their wages to compensate people because of the competition for skilled labor.  It is, in fact, individuals who pay.  The conduit may be employers, but that doesn't mean that individuals aren't paying.

And, similarly, last I looked there is something called the Medicare tax.  We pay it, individuals pay that tax.  Medicaid — it comes out of the general fund.  I don't think this is really — you know, when you look at it fiscally, you boil it down, you uncover all the economics, the fact is individuals pay those taxes, they pay the premiums, they pay it in compensation.

Maybe the question is, really, should it be voluntary on individuals, or should it be compulsory on individuals that this question is really getting at?  And I think that's a very important question.  How much should it be?  People can decide whether they want it or not, and we would let them live with that choice, including bleeding in front of the hospital door, and how much compulsion should there be so that everyone has to have something.

I take it that we're not going to be — allow people to voluntarily decide whether they want or not want.  I take it that the requirement that doctors and hospitals provide emergency care means that we are not going to let people bleed outside hospital doors if they haven't bought insurance, and that does seem to me to mean that we do recognize a social responsibility to guarantee some coverage.

As I said at the start, I think that's actually a settled question.  I don't think it's a particularly interesting question that we're going to disagree very much with.  There may be some libertarians in the room who will take a different view, but I don't think there's much sympathy for that position in American society.

Let me shift to think about what I do take beyond the "who pays?" question is the other very important question, which is the real question, which is:  how much are we obliged to give people?  And here on both Allen Buchanan's conclusions I am in much agreement and sympathy.

This is the way I think about it.  It's a slightly different take, but I think I come down very much in the same place as Allen Buchanan.  If we gave people a fair allocation of resources, then we might expect individuals to pay for health care and buy their own health coverage, and we might have good markets in which they could do it, although I'll come back to why I don't think actually the markets will work from a practical standpoint that feeds back.

The issue is, then, what's a fair allocation to people that, then, would allow them to buy the care they wanted?  And the problem is that we can't determine what a fair allocation of resources is to people without knowing how much health care should be covered and how much health care should be part of that fair allocation.

And it seems to me that's the sort of endless circle we're in when we think about this problem.  We know that we should cover something between zero — and I've suggested for all sorts of reasons it's above zero — and something short of every available intervention that is effective.  As Allen says, we haven't gotten much progress of where in between that is.

Now, Allen is skeptical about the fact that ethics and thinking about it from a moral standpoint is going to get us much progress.  I am not so skeptical.  I think we have actually had quite little thinking about this in a systematic fashion. 

I think we have grasped on to a few principles, like equality of opportunity and not really thought through much more — much more deeply the fact that no single principle is going to work here.  We're going to need a complex integration of principles.  I do think that there can be a lot gained by looking at how much we're willing to trade off economically for benefits.  I don't think we've had that much deep thinking about this for a whole variety of reasons.

Nonetheless, I do think, secondly, there is agreement between Allen and myself, and I think this is, again, pretty uncontroversial.  There is some minimum that society ought to cover.  I think it's — if we put it up, it's going to be pretty robust.  I will suggest that it's not everything, but it's something like the Federal Employees Health Benefit Program.

And I think that it won't cover everything, and people, given our views about liberty, should be able to buy above that.  I think that's a major ethical question.  I think that's also a pretty settled ethical question.

There should be a guarantee of a minimum, but above that people should be able to buy more services, even more effective services, that other people won't afford.  And I don't think that there is — as I said, I think that there is a lot of social agreement about that.

Let me end these very brief comments with why I think, for a variety of reasons, you  might want some elements of the market, but you cannot have a voluntary system and have it work in any structural, prudent way.  I don't think believers in the market in health care have really thought through what the market in health care would look like and where particular market failures occur.

We know from Ken Arrow's work, now almost 50 years old, that market failure is a serious problem in health care because of information asymmetries, and that is a very, very fundamental problem.  But I think that almost all other aspects of having non-compulsory markets lead to problems and failure. 

And let me give you one example, which I hope is a way of urging the thinking about the fact that funding for the minimum has to be compulsory and universal, in part to ensure that the structure of the whole health care system is going to work.

Almost everyone agrees, whether they're left, right, in the center, or far out in some other field, that we're going to have to have insurance exchanges that make insurance companies or private health plans compete on a standard benefits package and allow people to go in and buy from them based upon competition or on service and quality, maybe some added benefits, the range of doctors covered, the range of hospitals covered. 

You see this in Massachusetts with their "Connector."  You've seen this proposed in almost every health plan reform except for some far-out single-payer plans.   Conservatives like this, liberals of a certain stripe like this.

If you think through these insurance exchanges, having them in a voluntary basis, i.e. society doesn't guarantee it for everyone, doesn't force everyone into them, they are guaranteed to fail on purely economic grounds.  We've seen it over and over again.  Every business — every time we have set up an exchange on a voluntary basis, whether it's in California or Minnesota or many other places, they fail.

And you heard it here first — Massachusetts' Connector will fail.  And the whole system there is going to go up in flames because of it.  Why is that?  Well, in health care, who would go into an exchange to buy insurance if it were voluntary?  Anyone who is sick who can get a better price in the exchange than they can get outside.  Who will not go into an exchange?  Anyone who is well or thinks they are well and can get a better price outside than inside the exchange.

If you make it voluntary, that kind of choice is going to happen, and it leads to a very predictable cycle.  Prices go up, because the healthy people have stayed out.  The sick people buy in.  Costs go up, because if they are sick, they're getting more care, premiums go up.

Even less healthy people who were originally in go out, and only the sick remain, and the whole thing collapses.  It has done it every single time.

What does this mean?  And you can play this scenario out in almost every single other aspect of health care.  You can have market aspects of health care where individuals take responsibility, delve into the market, and do it. 

But you can only have those aspects once society has mandated and that there is compulsion to participate and compulsion to get other factors, other elements, necessary for health care delivery — good information so people can actually know what they're choosing, create incentives so that people are actually competing not on profits but on quality of care.

So I would submit to you the following three conclusions or four conclusions.  First, I do think we've come to a societal agreement that there is social responsibility to provide a decent minimum, and I think our challenge now is to figure out what that decent minimum is and the political and economics that make it viable.  I don't think another moral argument is going to make a hill of beans worth of difference, to be perfectly blunt about it.

Second, I think ultimately the system is going to have to be, to that level, compulsory.  People are going to have to participate, because I don't think we can do it any other way.  But above the decent minimum, it seems to me that people are entitled, as a matter of justice, to buy more, spend more, to do whatever they want with their money, including buy whatever health care services, effective or ineffective, that they want.

I am not sure figuring out — that we can figure out at the moment more than this, and exactly how much services society is obliged to pay us.  I do think that at the moment is a political question, and I think we're going to find out the answer to that in the next few years.

I do think that ethics can help there.  I think more thinking will help there, but probably not in the lifetime of this next four or five years.

Thank you.

(Applause.)

CHAIRMAN PELLEGRINO:  Thank you very much, Zeke.

I think we will have a few questions from the Council, and then take a brief break, and then return for a continuation of the discussion.  Dr. Robby George will lead that.

Any questions now for the immediate — for the three speakers?

DR. FOSTER:  Yes, I want to ask a question.

CHAIRMAN PELLEGRINO:  You can direct it to anyone you wish.

DR. FOSTER:  I know that you — the thrust has been you can't decide what minimal care is going to be.

CHAIRMAN PELLEGRINO:  Go ahead, Dan.

DR. FOSTER:  Can you hear?  Would anyone want to throw out just in broad terms, not held to anything, what you think minimal care should be?  The issue that I'm concerned about is that minimal care that lets you go into a doctor's office if you're sick, but precludes other things, oftentimes uncovers a catastrophic illness.

And, for example, this week a young woman comes in with a urinary tract infection, looks like she's got a little blood in her urine, she thinks she has a urinary tract infection and she's got a bladder cancer — sorry, an appendicial cancer that has invaded the bladder.

The ordinary costs are pretty easy to handle.  I mean, one of the problems is that we don't have catastrophic insurance, and I wonder if there is — if there is some system that you might think that ordinarily would pay a couple hundred dollars or something, but was protected from the catastrophic illness.  You've got widespread cancer, you've got all sorts of things of that issue.  Does anybody want to just thrust a general question about what minimal coverage should be, or might be?

DR. EMANUEL:  Let me just make three points to that.  First, I think actually — I thought your example was the leading argument against the health savings accounts and catastrophic insurance, because that is exactly — that behavior, you come in only — you forestall all services, and then you come in only when it's a disaster is exactly what that catastrophic insurance behavior would encourage.

As a matter of fact, it's a — for all sorts of economic reasons, we know that people will not spend small amounts of money for preventive care when they see no benefit, when they are feeling no pain, and will put things off until they're catastrophic.  So as a matter of fact, I think your example was the best example I've heard in a long while of why health savings accounts are a disaster.

Second, it seems to me it does point to many things that we would think should be basic and should be covered because they're effective, and yet the system doesn't do that — that you would want to include in a basic benefit package.  You would want to have no cost for prevention that you know works — control of hypertension, control of cholesterol, vaccines, etcetera, screening tests that actually work as opposed to being hyped that they work.

You would actually want maybe even to pay people to get those things, so that they would actually do it.  It would be cost savings to you.

But my own view is, you know, we could talk — I actually like the Federal Employees Health Benefit.  I'm a beneficiary of it.  That's what I get.  I think it does a pretty darn good job.  It doesn't cover everything.  And you know what?  If you figure out how much it would cost to cover everyone in the country with it, we would actually save money, and it's a pretty good package, you know, if — as I like to say, if my favorite Congressman can get it, then, you know, it seems to me most Americans would be happy with it.

DR. FOSTER:  I think you misunderstood.  I'm not talking about preventive medicine.  I think that's one of the biggest hypes in the world.  You know, we know how to prevent the most common disease in the world, which is diabetes.  Very simple.  You lose weight. 

You know, I have hundreds of patients that are curable right now without — I mean, if you try to deal in real life with preventive medicine, there are some people that are going to lose weight and watch their lipids, and so on, but I'm talking about somebody who has some sort of minimal care, that because they got sick came in. 

I don't know how you're interpreting this, but they got sick because they thought they had pneumonia or something like that and you — I'm concerned about the issue of limiting care for people who are on the minimal edge for catastrophic illness when and if and if it surely will develop.

DR. EMANUEL:  Well —

DR. FOSTER:  I just want to be sure that the definition of "minimal care" includes the possibility of — not taking cosmetic surgery or anything like that, but the possibility that a poor person can get cancer that is going to cost $100,000, I mean, even just doing routine things without these new drugs that save you a month that they will get care.  That's what — I don't want to define "minimal care" as something that's a dollar-based protection of the patient.

DR. EMANUEL:  Well, mostly it's going to be an insurance package.  And, again, like the Federal Employees Health Benefit, of course covers that kind of cancer care.  But let me say one other thing about — or two other things.

First, if you look at the increase in longevity that medical interventions have provided over the last 40 years, you look at those data, almost half — almost half of that increase has occurred from one intervention — lowering blood pressure and lowering blood pressure not by exercise but typically by cheapo beta blockers, diuretics. 

So that — I mean, I agree with you.  Most of preventive care is hype, but that's actually preventive care that has done huge amounts.  I mean, you know, you saw the mortality rates from stroke just drop five percent a year when those drugs were introduced, and heart disease and renal failure, etcetera.

So, you know, I do think that's important.  The second thing I would say is 70 to 80 percent of the health care spending in the system is accounted for by chronic illness.  Right?  You're going to have to cover chronic illness.  That's where the money is.  You're just going to have to do it better than we do it now.

CHAIRMAN PELLEGRINO:  I think I'm going to intervene at this moment and ask Dr. George if he would extend the discussion.  We haven't the time to do it the way we had planned to do.  So go ahead, Robby.

PROF. GEORGE:  Well, thank you, Dr. Pellegrino.  But are you saying, then, that we will not go with the break that you had talked about a moment ago?  Because I thought the plan was that I would go after the break.  Has that changed?

CHAIRMAN PELLEGRINO:  I was going to change it, but —

PROF. GEORGE:  Fine.  Yes, okay.

DR. FOSTER:  I move that we take a 10-minute break, and if we have to stay 10 minutes longer, we'll stay 10 minutes longer.  Okay?

CHAIRMAN PELLEGRINO:  You would like to have the break?

DR. FOSTER:  I would.

PROF. GEORGE:  I knew I could count on Dan wanting to put off hearing from me as long as possible.

(Laughter.)

(Whereupon, the proceedings in the foregoing matter went off the record at 4:14 p.m. and went back on the record at 4:33 p.m.)

CHAIRMAN PELLEGRINO:  We will return to the discussion.  We will return to the discussion.

Professor George, would you pick up at this point?

PROF. GEORGE:  Thank you, Dr. Pellegrino.

CHAIRMAN PELLEGRINO:  And my apologies for getting you off the rails.

PROF. GEORGE:  No apology needed.

I really should simply stand aside and let the six members of the Council who are physicians — a majority as it happens today — of the Council members present engage with our distinguished panelists and see if we can get some real disagreement going.

But I am grateful, Dr. Pellegrino, for the opportunity to make brief opening remarks to launch our discussion on the topic Health Care:  Who is Responsible?  The individual?  Society?  Both?

Before doing that, however, I want to take note of the fact that we are really privileged to have with us on the panel three of our nation's most gifted and respected thinkers and writers on questions of distributive justice pertaining to health care and health.

Many of the problems we face in this area may prove to be unsolvable, and we may indeed have to settle for the least bad alternative and agree to disagree amongst ourselves as to which alternative is least bad.  I hope that isn't the case, but any way one looks at it there are huge difficulties in this area and difficult choices.

If we are to approach these challenges at all in an intelligent manner we will need to draw on the reflection and analysis offered over many years by Drs. Buchanan, Callahan, and Emanuel, and those of their colleagues in the fields of ethics and political theory and public policy who share their moral seriousness and intellectual clear-headedness.

We've heard in the past, especially in our discussions of organ transplantation and the possibility of a market in organs,  strong libertarian voices, and of course it would be good to have the best of those on the libertarian or more market-oriented side in this debate as well.

But what we have heard this afternoon are important contributions to the debate and will, I'm sure, importantly inform our own reflection.  I recently had the honor of giving the 2007 John Dewey lecture in philosophy of law at Harvard.  The irony of my being the Dewey lecturer was evident to everyone concerned, including myself.  What is the world coming to?  Will we next have the Freiderich Nietzche lecture by Leon Kass at the University of Tubingen?

(Laughter.)

Or the Michel Foucault lecture delivered by Paul McHugh at the University of Paris?

(Laughter.)

I think I heard one of our speakers linking together Pope Leo XIII and Otto von Bismark.  I thought that was great.  Was that you, Dan?  Yes.  Well done.

So in the spirit of irony, I took the occasion at Harvard to explore and defend some ideas about natural law and natural rights.  I thought that might make Dewey turn particularly quickly in his grave.

Now, there are some people who, following Jeremy Bentham, reject the whole idea of natural rights or moral rights or human rights as — to use Bentham's famous phrase "nonsense on stilts."  But there are critics of natural rights who come at the problem from a decidedly anti-Benthamite perspective.  They oppose utilitarianism of any description, and believe profoundly in the dignity of the human person.

Yet they reject rights talk as implying or even entailing a radical individualism which is incompatible with a proper understanding of human dignity.  They propose to tackle problems of justice, to be sure, but without resort to the concept or language of rights.

I argued in that lecture I gave that a proper understanding of human dignity and its demands excludes theories of either the radical individualist or a collectivist sort.  Neither of these approaches to understanding the human and common good can do justice to the concept of a human person; that is, a rational animal who is a locus of intrinsic value and, as such, and in himself who may never legitimately be relegated to the status of a mere means to others' ends, but whose well being intrinsically includes solidarity with others and membership in communities in which he or she has both rights and ordinarily responsibilities.

There are natural rights or what are today more commonly called human rights.  If there are principles of practical reason, moral principles directing us to act or refrain from acting in certain ways out of respect for the well being and dignity of persons whose legitimate interests may be affected, for good or for ill, by what we choose to do or what we refrain from doing.

I certainly believe that there are such principles, though there are of course many people who deny the possibility of such principles.  If I'm right, they cannot be overridden by considerations of utility.  At a very general level, they direct us in Kant's famous formulation to treat human beings always as ends and never as means only.

When we begin to specify this very general norm, we identify certain important negative duties such as the duty to refrain from, just to take an obvious and today uncontroversial example, enslaving people. 

Now, although we need not put the matter in terms of rights — I'll grant the critics of rights talk such as Joan Lockwood O'Donovan that much — it seems to me perfectly reasonable, and I think often helpful, to speak of, say, a right against being enslaved, and to speak of slavery as a violation of rights, of natural rights, of human rights.

Such a right is a right that people have, one that every community is morally obliged to protect by law, not by virtue of being members of a certain race or class or profession or sex or ethnic group, or what have you, but simply by virtue of one's humanity.  In that sense, it is not only a natural right but a human right.

But there are, of course, in addition to negative duties and their corresponding rights certain positive duties or obligations.  And these, too, are often — these days especially — articulated and discussed in the language of rights, though here it is I think especially important that we be clear about by whom and how a given right — putative right — is to be honored.

In my Dewey lecture, I used an example — as an example claims of the sort one hears all the time to a right to health care, the very subject of our discussion today, or a certain minimum level of health care.

Of course, as Dr. Buchanan points out in one of the articles he kindly provided for us, one sometimes even hears claims about a right to a certain minimum of good health.  While I agree with Dr. Buchanan that this last claim isn't at all plausible, I would say that it is not unreasonable to speak of a right to health care and a certain minimal level of it, although it is not obvious that this claim, as opposed to the alternative and weaker moral claim, that for example everyone ought to have access to a certain minimum level of health care or that it would be a good thing if they did.

I'm, here again, quoting Dr. Buchanan.  But having said that it is not unreasonable to speak of a natural right or a moral right or human right to health care, I would hasten to add that much more needs to be said if it is to be an interesting or even meaningful statement. 

Who is supposed to provide health care to whom?  On what terms?  Why should those persons or institutions be the providers or payers?  What place should the provision of health care occupy on the list of social and political priorities?  Is it better for health care to be provided or paid for by governments under socialized systems or by private providers in markets?

Is the existence of health care rights or the content of such rights affected by the health damaging or health jeopardizing lifestyle decisions of people who might claim such rights?  If so, how and why?  If not, why not?

Now, these questions certainly require moral reflection, all of them do.  But notice that many of them cannot be resolved, probably none of them can be completely resolved, purely by reference to moral principles.  They require technical — for example, economic — and very often prudential judgments including judgments of the sort that can vary depending on circumstances people face in a given society at a given point in time.

Often, in my judgment at least, there is not a single uniquely correct answer, the way there is a single uniquely correct answer to the question:  should people be enslaved?  Is there a right against slavery?  What should the government do about the question of slavery?  Should it permit choice in the matter of slavery, or not? 

Where I think there are uniquely correct answers, we're in a different area when it comes to positive — alleged putative positive rights, like the right to health care or a minimum decent level of health care.  Often there are choices as between options that though reasonable, or at least not unreasonable, offer — and I think we just have to face up to this — incommensurable costs and benefits, pros and cons, so that, you know, you probably never thought you'd hear this from me, there is a legitimate relatively of judgment in these matters that — I hear Paul giggling about this.  There's the notorious relativism of natural law thinkers.

The answer to each question, as you pursue them, can lead of course to further important questions, and the problems can be extremely complex, far more complex than the issue of slavery, where once a right has been identified, its universality, basic content, and the fundamental terms of its application are fairly clear.

Everybody has a right not to be enslaved, and everybody has an obligation, as a matter of strict justice, not to enslave others.  Governments have a moral obligation to respect and protect the right, and, correspondingly, to enforce the obligation.  When you're talking about that kind of a negative right, things are pretty straightforward.

Now, that doesn't mean you can't have a huge social upheaval and disagreement about them, even fight a civil war about them.  But they have a clarity that I think is simply not possible when we're talking about putative positive rights such as the right to health care, or, for that matter, education.

So as I say, things are not at all so clear with regard to these positive rights or claims of positive rights, even if we grant at least for the sake of argument that there is a right to health care or some minimum level of health care. 

So perhaps we could launch our discussion by thinking about whether, in fact, we believe that it's true that people in general, or at least people in a society such as ours with our level of affluence, our political structure, and so forth, have as a matter of moral fact a right to some level of health care, some minimum level of health care, and, if so, what follows from that for how we should think about health care policy questions and options.

Of course, Professor Buchanan, both in his presentation and in the excellent papers he provided for us, said quite a good deal about these issues.  Dan Callahan has written about them over the years, and said some important things about them today in his presentation.  And Dr. Emanuel addressed them, although less fully, in his remarks.

So we at least have some idea of where our panelists stand.  I wonder what we ourselves, as members of the Council, and particularly those of you who have been in the health care systems, on the front lines as physicians, think about these moral and prudential aspects of the problem.

Thank you.

CHAIRMAN PELLEGRINO:  Thank you, Robby.

Members of the Council, want to respond?  Dr. Carson?

DR. CARSON:  Well, a very, very interesting theoretical discussion this afternoon.  And certainly I think I would be amongst that large group of people who would agree if someone came up to me and said, "Do you think you should have health care?"  Yes, I would say yes, absolutely.

I think everybody would agree that that would be the case.  But when we're talking about having basic health care rights for people, I don't think we can really have that discussion without talking about how much it costs.  And I really haven't heard anything about that today.

It seems to me like it's going to be an enormous price tag associated with that.  So I would certainly like to hear some numbers thrown out with regard to that.

Also, is there in any of your minds room for perhaps some alternative methods of providing health care rather than this sort of universal rights issue?  And maybe there is some responsibility of individuals that should be considered here.

As an example, you know, the cost of health insurance is extraordinarily high in this country, probably more so than in most places.  No one has really reined the insurance companies in on this, or really questioned them deeply about why the costs are so high.  However, one thing we do know is that, you know, 39 cents on a health care dollar goes to pay administrative costs, more than twice what goes to pay professional fees.  Those are huge administrative costs.

What do you need for good health care?  You need a patient, and you need a health care provider.  Along came the middle man to facilitate the relationship.  Now the middle man has become the primary entity, and the patient and the health care providers are peripheral — there to support it.

So the question becomes:  are there ways that we can perhaps get those costs down to a reasonable level?  And by doing so, make insurance something that people can afford to buy?  And if they can then afford to buy it, there is where the government perhaps comes in and makes it mandatory, just like it's mandatory for you to have automobile insurance.

It can be done, I believe, by utilizing computers to do billing and collections, by removing catastrophic health care as a responsibility for the insurance companies, things like that which would drastically drop the cost. 

And if everybody owns their own health insurance, now we can say to them, "If you get an annual physical examination, you get a two percent discount."  That will incentivize people to get that insurance — to get that examination.  We begin to catch things early.  There is another whole level of savings there, but perhaps it will also force us to begin to think about wellness rather than sickness.  And I think there is where the real savings comes in.

I just don't want us to get lost and continue to spend all of our time talking about sickness and how to treat it and not deal with wellness, which is really where I think the right comes in.  We have a lot of medical knowledge, and it's not being disseminated appropriately.  We're talking about the raging epidemic of obesity that is going on in our country, particularly amongst youngsters, but, you know, we're saying, "Why don't you guys stop putting sugar into cereal?"  And we're not saying to young people, "Go out there and exercise."

You know, you cannot gain weight if your caloric input does not exceed your caloric output.  You know, we need to be talking about some basics in getting that knowledge out there about what health really is.

CHAIRMAN PELLEGRINO:  Someone want to comment?  Zeke?

DR. EMANUEL:  It's a broad-ranging consideration, but let me make several contexts — contextual points.  First, we spend $2 trillion a year on health care.  About $1.4 trillion of that is on personal health care services, so that's the bill you are — for all Americans, including those on Medicare.  That's the bill you're looking at.  That's what we're spending today.

Now, I guess to some degree I agree with you, we don't need to spend a penny more to cover the uninsured.  We do need a more efficient system.  I don't think your number of 39 cents on the dollar going to administrative costs is anywhere in the ballpark.  It couldn't possibly be in the ballpark, given what we're spending.

I would go back to a comment I made before the break, which is 70 to 80 percent of the dollars we spend are on chronic diseases, and that requires us, when we think about it, to think about chronic diseases and how much its individual responsibility — and also what it would take to actually provide good care for that.

Very little of the health care system is for your broken arm, your sutures, the accident that your kid happened to have, even for acute heart attacks.  I mean, it's for asthma, it's for congestive heart failure, it's for cancer, it's for COPD.  And the question is:  how do you deliver good care for that that is cost effective?  You know, I'll tell you one thing that has seemed to me to be critical. 

You need integrated health care delivery, and you can't have just a doctor working separate from a hospital, separate from a respiratory therapist, separate from the pharmacist, separate from the visiting nurse.  And the question is:  how do you create incentives in that direction?  I don't think that's a matter of individual responsibility, and I don't think saying more about individual responsibility is going to change much on those numbers.  From a big macro standpoint, I think individual responsibility is a sideshow, frankly.

CHAIRMAN PELLEGRINO:  Allen or Dan?  Dan?

DR. CALLAHAN:  Just a quick comment on obesity.  I have been struck by the fact that obesity really reflects an entire way of life rather than just individual behavior.  I live in a town where 90 percent, 95 percent of the kids are — ride to school on school buses even if you're as close as a quarter of a mile from the school.  There are no sidewalks.  And it's — and the food — and they have TV, they have computers, they do all sorts of sedentary stuff.

And to change all of that, you've got to change the whole social structure of a lot of our society to do that, and it's — and you can preach at people a long time, but it — things aren't organized to be thin.  That's, to me, the fundamental problem.

CHAIRMAN PELLEGRINO:  Allen, any thoughts?

DR. BUCHANAN:  Just sort of to reinforce what Zeke said, there may be a perception amongst some members of the public that arranging things so that everybody had effective access to some adequate level of care would be more costly than what we've got, but I think there is just no data to support that for the reasons that Zeke said.

And so perhaps one of the things that this body and other bodies that are in a position to influence public opinion could do would be to come up with some scenarios of alternative ways of achieving effective access to some adequate level of care for everyone, including what you were suggesting — that is, require — and what Zeke was suggesting, requiring everybody to have health care insurance, but then specifying some standard benefit packages so there could be price competition and quality competition for getting them, and play out some scenarios about what this would cost, and disabuse people of the idea that providing access to everybody — for everybody to adequate care is going to cost more than what we've got.  In fact, show them that it could cost considerably less.

CHAIRMAN PELLEGRINO:  Thank you.

DR. FOSTER:  I want to follow up on an earlier thing that Dr. Emanuel said.  He used the perfect example that, you know, hypertension and stroke has gone down because it is treated with drugs, usually three or four drugs as you had mentioned.  Heart disease has gone down because it is treated with drugs — aspirins and statins, and so forth.

I spent my life working on diabetes and obesity, and I guarantee you you will never solve the problem of obesity unless you get pharmacotherapy for it that stops the eating.  And so one of the things that we have to — I mean, I'd like to know — other than vaccinations, preventive medicine has had huge effects other than drug therapy, and so part of what has to be built into this is the capacity — and I think that what some minimal care would be — that you could get maybe — you might save money, a whole lot more, by preventing these things.

But I'm only confident in prevention of the common diseases if you have something that can be — is not a matter of personal will to do.  I mean, I don't know whether you all would —

DR. CALLAHAN:  In other words, you are really saying we should treat obesity as strictly a medical problem to be treated by medical means, even though we might agree the reasons why people are obese, it's not a medical cause.  It's because we have —

DR. FOSTER:  Well, it just depends, Dan — it just depends on whether you want to —  it's not just an American problem, it's a world problem.  The leading cause of liver disease now is fat in the liver which leads to cirrhosis and leads to cancer of the liver, and so forth.  It's all stuff with fat.

So, and all those people have to get tremendous care.  The metabolic syndrome can only be blocked by losing weight.  And if you can't lose weight on your own, which only five percent of people do — statistically, five percent, despite all the guidance, meeting with the dietician, and so forth, then, sure, I would think that it would be say a prudential reason — I mean, for saving money in the system by preventing that disease. 

Now, if they don't take the medicine, then that doesn't make any difference.  I mean, people say, "Well, why should you give them something if they can't control it themselves?"  They keep eating an ice — you know, a sundae every night.  Well, if you want to try to cut the costs eventually, I think you've got to do that.

DR. EMANUEL:  Well, I'm not sure that there's necessarily disagreement here, which is Dan saying the cause of the obesity epidemic is clearly multi-factorial, but it is an entire social structure, one that has deemphasized physical education, increased the amount of time people spend in front of the TV, which is very highly correlated with obesity, made stores carry foods that aren't necessarily nutritious but have high sugar contents.

And your argument is, well, but we're not going to rearrange society, so solving it is going to be a pharmaceutical intervention.  I mean, at least one of the things I take away from both of those comments is this idea that somehow making people responsible for their obesity and making individual responsibility seems untenable as an ethical claim. 

For one thing, it's untenable because we've created an entire social structure which encourages it, and to make individuals then fight against that kind of social pressure seems quite untenable, it seems to me.

Second of all, I do find it quite interesting how we end up picking out obesity as opposed to lots of other things that we might identify.  It does, as you know, have a very high socioeconomic correlation.  I have never noticed non-helmet-wearing California Governors riding motorcycles being picked out as a thing that should talk about individual responsibility heavily. 

It tends to be things which we like to — you know, people who aren't in the mainstream.  There is I think a heavy amount of moralizing in what we end up picking out and identifying.  Skiers also somehow tend never to be — talk about individual responsibility for their legs.

So I'm against the individual responsibility, and I think you have both given very good reasons why that's probably an untenable route to go down.

DR. FOSTER:  I just want to make one comment about the motorcycle riders.  It's helpful for transplantation organs, you know.  That's —

(Laughter.)

That's for sure.  The transplant surgeons always — you know, they say —

DR. EMANUEL:  How many organs are we going to get from the California Governor?

DR. FOSTER:  Well, we haven't got it from him, but they wear these T-shirts that say, "Ride without a helmet.  It's good for transplantation."  But the other good thing that is happening is that the — in terms of pharmacotherapy, I don't — I think you'll find a lot of people like myself who believe this is the only way that we're going to go, is that the drugs are getting cheaper.

One of the things is that statins have now become generic, so you can get simvastatin generically now.  I can tell you that — let me just make one other quick point.  There is a gene, which I'm not going to talk about, PCSK9, which sometimes is — which is present in a loss of function in African-Americans who are very vulnerable to heart disease.  And their cholesterols from birth are 28 percent lower than a normal control person just protects against this.

Now, we can lower cholesterol with statins, particularly if you give a combination, 60, 70 percent, and yet you don't save lives like a 28 percent.  So many of us are now starting preventive therapy at 20, 25, not with diabetes, because it's clear from this genetic thing that to be just 28 percent down on cholesterol, that you don't find heart attacks period.  They just don't have it.

And so I think this thought of preventive therapy is a tremendous gain for us, if the drugs are safe.

CHAIRMAN PELLEGRINO:  Other questions from the Council?  Dr. Carson?

DR. CARSON:  It's really more of a comment than a question, but — and it goes back to, you know, I'm a little discouraged when I hear so many people throwing out the idea of personal responsibility.  And maybe that's because I'm a neurosurgeon and I believe in the human brain. 

And I believe that we actually do have the ability to think and to gain information from the past and the present and to project it and that we're not just sort of like little animals, little gerbils, or little lemmings who run off the end of the cliff just because everybody else is running off the cliff.

And I think when we adopt attitudes like that we really are taking away from what we are as human beings.  Now, when I think, you know, in terms of health insurance, if everybody owned their own health insurance, there are some real possibilities here.

For instance, if they become a lion tamer, their rate goes up.  You know, if they're going to climb mountains, Mount Everest, on a regular basis, their rate goes up.  Why should everybody else have to be responsible for somebody who clearly is going to be pushing the button?  If they're going to be riding a motorcycle without a helmet, their rates go up.

And when you begin to do that, you begin to affect behavior.  It affects behavior in the way that people drive their cars.  If they know that every time they get a ticket their rates are going to go up, or they may actually end up in a more precarious situation than that, they are going to stop doing it.

And I think we have to recognize that human beings are actually pretty smart, and not just give up and say that they can't do things.

CHAIRMAN PELLEGRINO:  Allen, I think you had a comment.

DR. BUCHANAN:  I just wanted to make a comment.  I agree with everything you say, Dr. Carson.  I don't think that Zeke was saying — and I know that I wasn't saying it — and knowing Dan's work, I know he wasn't saying that there is no such thing as individual responsibility.  I think there are two things to keep in mind.  One is the question of whether we can be on good grounds in some particular case in making a judgment about somebody's failure of responsibility.

The other is whether we are good enough to craft social policies which try to assign responsibilities to people and then penalize them in certain ways.  And the history of public health as an enterprise, especially when it comes to trying to hold people responsible for their health outcomes, is replete with prejudice, policy proposals made on the basis of bad science, and a tendency to mistake aesthetic judgments and rather dubious moral judgments for judgments about health. 

And so I think just in terms of fallibility from the past record we need to be very, very cautious about devising social policies that hold people responsible, say, for their weight.  That's not to say that no one is blamable for their failure to control their weight.  That's just a different question.

But, historically, it has been quite a dangerous enterprise to try to use social policy to assign blame and either reward or punish on issues like weight or other risk behavior.

DR. CALLAHAN:  I would simply add also it has been part of the medical ethics tradition that physicians treat patients regardless of why they are there.  And I'm sure you would do neurosurgery on a motorcycle accident victim who had not been wearing a helmet.  You would say, "Well, he should have been wearing a helmet," but you'll do it anyway, right?  Isn't that — that seems to be a wonderful tradition.

DR. CARSON:  Well, I'm not saying that, but all I'm saying is that we don't necessarily have to hold that person responsible for being fat.  But if we say, "Your premium goes up because you weigh 400 pounds, sorry," they're going to start thinking about it.  That's what I'm saying.

CHAIRMAN PELLEGRINO:  I think I saw them in this order — Rebecca, Robby, and then Gil.

PROF. DRESSER:  A couple of questions for I guess any of you, although the first one is more pertinent to what Dan Callahan said.  In your article in the New Atlantis, which I thought was great, you make a very compelling case for why liberals and conservatives are enamored of progress and the search for better technology.

So given that, I mean, it's rather daunting to — and you have been talking about this very eloquently for many years.

DR. CALLAHAN:  Uselessly, Rebecca.

(Laughter.)

PROF. DRESSER:  I'm not saying that.  You have some converts, but it really almost seems to demand a culture change in this country where we are so in love with technology and progress.   So sort of the politics of this.

And then, a related question is, Allen Buchanan talks a lot about social consensus and how other countries have gotten there and have the system and they have some consensus over what benefits should be provided or a mechanism for deciding about that.  Why can't we, why haven't we, are there any ideas for trying to help us reach such a consensus?

DR. CALLAHAN:  Consensus at which level?  Say deciding what's a basic package of health care?  European countries basically a lot of them do it by bringing groups of physicians and government officials, and they sit down and they work it for — sometimes once a year a package, and then they come back and they keep changing the package, but at least they have a mechanism for doing so.  And it's a function of — it's partly a function of budget.

They have a budget limit, and we've got X amount of dollars we can spend on health care.  What kind of package can we afford to put together?  That works.

CHAIRMAN PELLEGRINO:  Robby?  Oh, excuse me.

PROF. GEORGE:  Are you going to respond to the technology thing?

DR. CALLAHAN:  Well, here is my analogy.  I like to say that during my lifetime I've seen three revolutions.  Whether you like them or not, there are three that are important — environmentalism, civil rights, and feminism — three things that changed very radically the way people thought about long-standing traditions. 

I think health care is the next candidate for a revolution, because we are going to find — we are going to treat health care like the — progress in health care is like the exploration of outer space.  No matter how far you go, you can still go further.  But least the people in the space business understand that you — money does count.  So you settle for a space show rather than trying to go farther, and you say, okay, it would be nice if we could go farther, but that's all there is.

And I would — that's what I want health insurance — that's my model, is how we deal with a limitless possibility.  Right now, we don't like to — we know it's limitless, but we love it so much we refuse to stop.  But at some point we've got to stop, because it's wrecking the whole damn system.  That's what I — mine is a very pragmatic — you'd better change it, or you're going to be in great trouble.

DR. EMANUEL:  Look, I think that assumes technology is all of one flavor, which is new is necessarily more expensive.  Now, we have at least two industries that have proven new can be cheaper and better.  And part of the problem is the current incentive structure for people who develop technologies is exactly that — new that is more expensive will be covered by insurance, and, therefore, there is no barrier or no market barrier for them to develop that.

So the question I think is not:  can we get rid of technology or will Americans stop investing in technology or science?  I think that is — I do think that is hopeless.  That is the definition of "Sisyphean."  This is the new continent, the new country, that people who embrace the new deal.  I just don't see us as giving up the new. 

So the question I think has to be not are we going to develop more expensive technology.  The question is:  how do we get ourselves to develop biomedical technologies that are new but cheaper or do things more efficiently?  As the computer industry and the telecom industry have shown, that's not impossible.

The problem is you've got to change the incentive structure, so that drug companies will know if they've got new, and it's very expensive, it will not be covered, and only a few people will buy it.  There isn't a market for it there.  Ergo, you've got to do new, which is of a different mode.

And, you know, that's all about incentive structures in the market, and I believe — I don't have the same pessimism Dan does.  I believe we can change those kinds of incentives.

DR. CALLAHAN:  I, for years, asked people at NIH, "Can't you invent some things that are much cheaper?"  And they said, "Nobody theoretically knows how to go out and invent cheaper."

CHAIRMAN PELLEGRINO:  Could I ask the panelists to —

PARTICIPANT:  Respond to questions.

(Laughter.)

CHAIRMAN PELLEGRINO:  — wait until the Council members have had a chance to ask their questions.  I hate to interfere that way, but that's — time is running, and Robby George, Gil Meilaender, and Leon Kass, and I would ask you to give your questions and do not respond until all the questions are out.

PROF. GEORGE:  I am tempted to say that my question was:  what were you guys going to say to each other? 

(Laughter.)

I was kind of enjoying that and interested in hearing where it was going.  But, really, I just wanted to intervene very briefly to ask Allen a quick point of clarification, just so I — I want to make sure we're on the same wavelength here, going back to the discussion you had with Ben about the role and wisdom of taking into account lifestyle choices in making policy decisions about health care.

In responding to Ben, you spoke in terms of penalties, punishments, and rewards.  But it — for people who do think that lifestyle decisions are relevant or can be made relevant to foreign policy here, my understanding is that they're not so much concerned about penalizing and rewarding but just deciding what's appropriate to pay for and at what level, in view of lifestyle decisions that people choose to make.

Now, there would be a different thing if it were a matter of punishing and rewarding or even, you know, trying to discourage behavior, but it seems to me that that's not actually what's going on here.  And if I'm wrong about what we're debating, I'd just like to be corrected on it.

DR. BUCHANAN:  That is really helpful.  I really wasn't addressing that at all.  I was —

PROF. GEORGE:  Oh, okay.

DR. BUCHANAN:  I was looking at the narrower question.  But I think that some of the issues that Dr. Carson raised are really crucial, and I wish we had time to spend more time on them.

All I was suggesting was that there are certain kinds of behaviors which we might like to encourage or discourage, reward or penalize, that we have to be especially careful about, just given the past history of bad policy and judgment. 

But also, I'd like to suggest that some behavior, like getting people to slow down to avoid a ticket which will raise their insurance rates, may be much more malleable to material incentives than others.  And as far as I know, there is no evidence that the sort of overweight behavior is responsive to financial cost in any thing like the way that speeding is.

And, in fact, when you think about it, this is not surprising.  People who are morbidly obese are already bearing enormous costs for their condition, right?  I mean, they are socially not as attractive, they know they're at greater health risk, their mobility is impaired, sometimes their employment opportunities are impaired. 

And this may be an indication that at least for some people there may be something like an addictive element, supported by social conditions, and to think that such a person is going to radically alter their behavior because you add a small monetary cost, or you add a small monetary inducement when in fact they're continuing to bear these enormous palpable costs of their condition, I just don't think it's supported by the data.

I have looked into this, and I don't think there is any data to support the idea that that kind of behavior is as elastic, is as responsive to social incentives as was being suggested.

PROF. GEORGE:  Does anyone know about what the impact on cigarette smoking is when taxation or other methods are used to increase substantially the cost of smoking? 

DR. BUCHANAN:  You can get reduction in smoking with very steep rates.  You know, there is the marginal — diminishing marginal reduction of risks have to be really high, but it does work to some extent.  But there is no evidence that this works with overeating, as far as I know.

DR. EMANUEL:  We've plateaued on that, pretty much plateaued at about 20 to 25 percent.  And it is not just us, it is almost all the countries that heavily tax cigarette smoking.  Bingo, it's at 20 to 25 percent.

PROF. MEILAENDER:  I'd just comment, sort of in support of Dan Foster's point before about a pill, that the reason speeding is more amenable has to do with cruise control actually.

(Laughter.)

That's what stops you from speeding.  But I have lots of questions, and I thought I'd just address one to each of you quickly, if I may.  For Professor Buchanan, I wonder if you could just say a word — obviously, you know, you could say lots of words, but about if we got some kind of agreement on whatever we called it — a decent minimum or something like that — whether that would really help stop the spiral of costs, or whether doctors would still — you know, the clinician encountering a patient would still experience the same pressures to do things whether or not they fell within the decent minimum, or whether, you know, you just turn away.  So that would be my question for you.

I'll just give all three.  For Dan, a more philosophical question, you started by telling us characteristically about how, you know, 80 years was about long enough and you're a finitude kind of man, and so forth.  That's one kind of view.

But near the end of your talk, you said, you know, if cost control is necessary, then it can and must be done.  That's a different kind of claim, that — I mean, it would be good to do all these things, but we can't afford them, and we must control them.           That's quite different from saying, you know, even if we could do them, and we could afford it, you ought to just take your three score and ten or maybe four score and consider it.  And I'd just like to know kind of which you really think.

And then, for Dr. Emanuel, you said with respect to markets that, you know, there are information asymmetries.  And I do agree with that, understand that.  I think maybe a little less though, and I'd just be curious — we have all sorts of patients, you know, going to websites, sharing information, rather ordinary folk actually doing this.

And now maybe they're getting things wrong, you know, I don't know, although sometimes I think they're not.  But I think that does have some effect on the information asymmetry argument, and I'd just be interested in hearing what you had to say about it.

DR. BUCHANAN:  Now I've forgotten your question, because I got so interested in —

(Laughter.)

— in the last question.  No, I don't think that just getting a societal consensus on making sure that everybody has access to an adequate level of care, even some consensus on what the content is, will solve the problem by itself of cost escalation.  And I think you're right, you still have to think about the behavior and the culture of physicians and what this has to do with the cost problem.

There are still going to have to be limits.  There is still going to have to be some way of working out limits that is compatible with the right sort of professionalism or doctors and other health care providers.  So I just think this is a — that it's a first step, not just — well, to go beyond a bare consensus that we need something more than emergency care for everybody, but to actually begin a concrete process.

And that's why I like Zeke's idea.  I mean, part of the burden of what I was trying to say in my presentation was that we can't solve the problem of deciding what the adequate minimum is completely in the abstract.  We've got to engage politically, and we've got to look at other mechanisms that have been used in other countries for developing some kind of provisional and then revisable consensus on what the adequate minimum is.

But the point is we haven't taken that next step yet.  And that's why I said at the beginning you can't solve these issues about who is responsible for health care and what people ought to have access to and then go on to say now let's devise a system to implement it.  It's in the process of trying to actually create a concrete system that you're going to focus people's attention and attract the right interest to solve those problems.

But getting consensus on an adequate minimum won't solve the cost problem by itself, but I think it can be part of a larger strategy into which the cost problem can become more tractable.

CHAIRMAN PELLEGRINO:  Dan?

DR. CALLAHAN:  Yes.  I don't see the two ideas being incompatible at all.  My way of thinking about this is that I do believe in finitude, but I do believe in noting also that if we — if you don't believe in finitude, you're going to find you can't afford to pay for infinity, and you better — you better cut down, whether you like finitude or not, buddy, you've got these health care costs which are going to create so much havoc you're going to be miserable.  So I see the two coming together.

I want to say if you make it to 80, you're doing fine.  Don't expect a lot of the health care system after that.  You will, as a human being, not be hurt, and you will sure be helping society if you accept that view.

CHAIRMAN PELLEGRINO:  Zeke?

DR. EMANUEL:  I still think that there is a substantial amount of asymmetry in the system.  Even though people go to websites, they still — there's lots of things they can't get information on, you can't collect information on, that we need I think actually a collective social mechanism to get information on.

You know, you have no idea how good your doctor is in any concrete way unless society actually went out there and systematically assessed how well he or she performs compared to other people, similarly for hospitals.

And let's say it — you know, we've just seen with the FDA, similarly for all sorts of drugs that are out there on the market.  We need lots of other pieces of information.  And I think, you know, that information asymmetry is — it might go away if we had a collective way of sorting it out and portraying it to the public, or at least be diminished, but I don't think it's going away permanently.  I mean, doctors are still going to have a lot more information.

And, you know, let's be honest.  Insurance companies are going to have a lot more information than you and I ever have in terms of those decisions.  So, I mean, for me the most important thing is you actually need a central body to collect the relevant information, and that we don't have.  I mean, what we have now is more than information asymmetry.  It is information vacuum in the system that prevents the markets from working.

CHAIRMAN PELLEGRINO:  Leon, I think you have the last word.

DR. KASS:  Thanks.  This is also I think a question for Dan, but other could chime in.  This is in the spirit in the way of Gil's question as well.  On the one hand, you think that part of our trouble is a kind of inflation of desire for longevity and for more and more and more through technology.  You say you've been singing this song uselessly, and it should now have occurred to you why it's useless.

(Laughter.)

Which is to say —

PARTICIPANT:  I know my time has come.

DR. KASS:  I don't think the time has come, and I don't think — I sing the same song, but the mind can say what it wants to the blood, but the blood likes to course.  And even if one's own blood doesn't like to course, one wants the blood of one's loved ones not to — not to be silent. 

And to the extent to which we improve access and give everybody a fuller chance at the golden eggs that the medical goose is laying and will lay with even greater polish, if all the promises come true, this desire for more isn't going to go away.

In fact, I suspect that it's the very successes that have gotten us to this point that make the residual mortal illnesses and impediments even more offensive to us.  So it seems to me you're caught in a kind of bind where on the one hand — on the one hand you want to say, look, we've got to in a way provide for the in uninsured, we've got to bring them into the picture, we've got to in a way make these benefits available to all.

The net effect is going to be that more and more people are going to want more and more of the new things that medicine is going to do for these matters.  And I don't see — I mean, you can say bankruptcy will, of course, force something, but I don't think that the kind of radical change in human desires is forthcoming.

And the revolutions of feminism, civil rights, and environmentalism are no precedent, because you're dealing in those cases — environmentalism is, you know, way closer — way closer.  But the other two things are to deal with perceived discrimination, which only bigots are for, whereas people who love life are practically the entire human species.

CHAIRMAN PELLEGRINO:  Dan?

DR. CALLAHAN:  Well, I guess my quick response is, first of all, one reason I'm in favor of universal health care is that it will — particularly the kind that will have a national budget, European style and a cap, will force us then to really decide what's comparably more or less important.

The European countries basically have a greater life expectancy or much less cost by virtue of any government regulation.  They provide less technology, and people don't get as much as they do here.  But they still — people don't feel that their desire for life is not being satisfied.  I think it's — we have a social sickness.  Ours is an excessive desire in this country, and we are unwilling to face up to it.

And, granted, it's a problem.  I've got a problem on my hands, because the culture is so — the culture doesn't want it.  But you are expressing a view of American culture, which is not necessarily the view of other countries who have to deal with the same problem.  And I think theirs is a better culture for doing so.

CHAIRMAN PELLEGRINO:  Thank you all.

Paul, brief?

DR. MCHUGH:  A couple of points.  I thought that eventually we did come around to a certain kind of agreement that we are evolving towards anyway, a system where there will be coverage for everyone for a certain minimum, that it will probably come out of some form of insurance with Dr. Carson that that insurance might be given in costs that have incentives, one way or the other. 

That is, the poor will be given support for their insurance, so it will be portable, and the more wealthy who can afford it — if they are doing things to maintain their health, will have things taken away from them, and it may cost less.  And your idea that — Zeke, that ultimately there is a kind of system that you can buy for — the things for yourself and thus produce a two-tier system.

I just want to come back to this idea that there is going to be some kind of revolution in this.  It seems to me that the health care system in America has been evolutionary and not revolutionary, and with some great advantages to that — that conferences like this turn up and we argue and try to find out things that we could solve just today and see if that won't allow us to live a little bit longer, and there are advantages.

I am very interested in what works elsewhere, of course, and what fails elsewhere.  I think most of the social experiments east of the English Channel have been a failure since 1789, so I'm —

(Laughter.)

— I'm quite sure that you can find plenty of things that are failures over there.  Most of the people in this room do — are here because somebody was wise enough to get in a boat and get out of it.

(Laughter.)

Come over here.

So I just wonder if, in the end result, we haven't really kind of agreed that we are going to work towards a two-tier system, given what we are, we're going to have insurance that works and we're going to have catastrophic insurance that presumably, in my opinion, with Dan will work with government support and will evolve and will continue to evolve, and we'll learn in that way how to be even better than we are today and make this point.

Is that correct?

(Laughter.)

PARTICIPANT:  I don't agree.

(Laughter.)

CHAIRMAN PELLEGRINO:  I think we'll call it a draw at this point.

(Laughter.)

Thank you for a very vigorous discussion, all of your — the Council and the panel members.  We thank all of you for being here.  We'll be here tomorrow afternoon.  No, we'll be here tomorrow morning at 8:30.

(Whereupon, at 5:27 p.m., the proceedings in the foregoing matter were concluded.)


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