Table Of ContentMEDICAL BENEFIT AND THE HUMAN LOTTERY:
AN EGALITARIAN APPROACH TO PATIENT SELECTION
INTERNATIONAL LIBRARY OF ETHICS, LAW,
AND THE NEW MEDICINE
Founding Editors
DAVID C. THOMASMA†
DAVID N. WEISSTUB, Université de Montréal, Canada
THOMASINE KIMBROUGH KUSHNER, University of California, Berkeley, U.S.A.
Editor
DAVID N. WEISSTUB, Université de Montréal, Canada
Editorial Board
TERRY CARNEY, University of Sydney, Australia
MARCUS DÜWELL, Utrecht University, Utrecht, the Netherlands
SØREN HOLM, University of Cardiff, Wales,United Kingdom
GERRIT K. KIMSMA, Vrije Universiteit, Amsterdam, the Netherlands
DAVID NOVAK, University of Toronto, Canada
EDMUND D. PELLEGRINO, Georgetown University, Washington D.C., U.S.A.
DOM RENZO PEGORARO, Fondazione Lanza and University of Padua, Italy
DANIEL P. SULMASY, Saint Vincent Catholic Medical Centers, New York, U.S.A.
LAWRENCE TANCREDI, New York University, New York, U.S.A.
VOLUME 22
The titles published in this series are listed at the end of this volume.
MEDICAL BENEFIT
AND THE HUMAN LOTTERY
An Egalitarian Approach to
P atie nt Se le ction
by
Duff R.Waring
York University,
Toronto, ON, Canada
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN 1-4020-2970-5 (HB)
ISBN 1-4020-2973-X (e-book)
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CONTENTS
ACKNOWLEDGEMENTS vii
Chapter 1: Tragic Decisions 1
Chapter 2: Patient Selection and Medical Utility 13
Chapter 3: The Comparative Value of Lives 33
Chapter 4: Medical Utility Judgements and Rights 51
Chapter 5: Adequate Conscious Life and Age-Related Need 71
Chapter 6: Fair Innings and Need over a Lifetime 89
Chapter 7: Levels of Benefit, Utility Scores and the QALY Debate 99
Chapter 8: An Egalitarian Ethos 115
Chapter 9: A Threshold Level of Medical Benefit 133
Chapter 10: Waiting Lists and Lotteries in Practice 153
Chapter 11: Common Humanity and Reandom Selection 163
Chapter 12: Chance and the Challenge of Living 185
v
VI CONTENTS
APPENDIX 193
BIBLIOGRAPHY 201
INDEX 217
ACKNOWLEDGEMENTS
I am grateful to the following people for their support and encouragement. Lesley
Jacobs, Leslie Green, Gina Feldberg, Joan Gilmore, Susan Dimock and James F.
Childress provided me with challenging but always constructive critical comments
when I developed and defended this book as a doctoral thesis in the philosophy
department at York University in Toronto, Canada.
My work on the earliest drafts was supported by fellowships from both the
Social Sciences and Humanities Research Council of Canada and the Ontario
Graduate Scholars fund. Much of chapter five is derived from my article “Adequate
Conscious Life and Age-Related Need: F.M. Kamm’s Approach to Patient
Selection,” which was published in Bioethics 18:3 (June 2004). Thanks to Blackwell
Publishing Ltd. for permission to reprint that material here.
I began revising the manuscript in the Biomedical Ethics Unit of the Faculty of
Medicine at McGill University in Montreal. I could not have asked for a more
stimulating Post-doctoral Fellowship and I am deeply indebted to all of my
colleagues there, especially Kathleen Cranley Glass, who continues to find novel
ways to combine theory and practice.
David Weisstub’s guidance and his patient commitment to this book have been
greatly appreciated. I am much obliged to Helen van der Stelt, Lucy Fleet, André
Tournois and two anonymous reviewers at Kluwer for their help in seeing me
through the final draft stage. I owe many thanks to Nivia Spalla for her invaluable
word processing assistance and to Gillian Watts for her proofreading.
I finished this book over the two years I spent working on other projects as
Trudo Lemmens’ Research Associate in the Faculty of Law at the University of
Toronto. He afforded me the example of his intellect and his generous spirit of
scholarly collaboration. This was a wonderful period of teaching and study for me.
Thanks to R. Steven Turner, who has been my mentor since I was an
undergraduate at the University of New Brunswick in the mid-seventies. I try to
make the most of his influence on my teaching and writing.
vii
VIII ACKNOWLEDGEMENTS
I owe special thanks to my parents for their encouragement and to my brother
Michael. His sense of fraternity and his professional discipline inspire me in many
ways. Thanks as well to my friend Eric Martin for thirty-five years of bons mots and
for helping me to stay on track.
The support of my wife, Jayne Davis, extends far beyond her belief in my work.
She has brought more good things into my life than I can mention here. I dedicate
this book to her.
Toronto, Canada Duff Waring
July 2004
CHAPTER 1
TRAGIC DECISIONS
1. FAIR CHANCES VERSUS BEST OUTCOMES
There is a context for every decision to meet a patient’s medical need by providing
treatment. The clinical context for some of these decisions is routine, if only because
the provision of treatment to one patient will not result in the death of another with
the same need for it. There is a clinical context for some treatment decisions that is
inevitably tragic. In circumstances of true scarcity, the provision of lifesaving
treatment to one patient will result in another’s death. Medical resources are required
for lifesaving treatment but there are more patients who need the treatment than
there are resources to save them.1
As the demand for these resources exceeds the supply, not all patients whose
lives could be saved will be saved. This situation involves a conflict of life with
life.2 It can also be seen to reflect a wider context of social values, assumptions and
practices that can influence clinical decision-making. Decisions to save some
persons over others are not made in a social vacuum. An exigent question is how we
should decide which patients will be selected to receive these scarce, lifesaving
medical resources (hereinafter abbreviated as Resources). This is the central issue
that I will address. Another issue is whether a patient selection process should
favour saving younger lives with more remaining life years over elderly lives with
fewer. I will argue that it should not.
My central issue is known in bioethics as the problem of fair chances versus best
outcomes. The decision-making context with which I am concerned is patient
selection for Resources. “Patient selection includes any stage at which classes of
people (for example, non-residents or the elderly) are barred from further
consideration or individual patients are selected for treatment.”3 I will focus on
transplantable organs (e.g., hearts, kidneys) as natural Resources that are scarce,
indivisible and lifesaving. These organ transplants occur in the tragic context of
absolute scarcity in which the supply of available organs is always outstripped by
the demand. This scarcity is presently unavoidable.4 With one exception, I will not
address what have been termed “macroallocation” issues. I will not, for instance,
propose an argument for a continuing societal commitment to funding organ
transplants. I will, however, argue against the contention that elderly persons should
be denied Resources because they consume many other health care services.
The problem of fair chances versus best outcomes poses two options for patient
selection: either select by a procedure that affords fair chances to all medically
suitable candidates or select those whose prognoses indicate the highest levels of
1
2 CHAPTER1
prospective medical benefit. The fair chances/best outcomes problem is essentially a
problem of choosing between lives.
Consider Norman Daniels’ example of Alice and Betty, both of whom are the
same age and have waited the same time on queue. Each will live only a week
without an organ transplant. With a transplant, Alice is expected to live two years
and Betty ten. Who should receive Resources? Giving priority to producing best
outcomes would mean that Betty gets the transplant and Alice dies (assuming
persistent scarcity of organs). But Alice might object, “Why should I give up my
only chance at survival - and two years of survival is not insignificant – just because
Betty has the fortunate chance of living longer? It is not fair that I give up
everything that is valuable to me just so Betty can have more of what is valuable to
her.”5
Alice demands a lottery that gives both equal chances for Resources. This
problem is both controversial and unresolved. Some agree with Alice’s complaint
and her demand for a lottery. Although others do not, there is still much
disagreement about when and how much to favour best outcomes. When deciding
between fair chances or best outcomes, we are stymied by conflicting intuitions at
what Daniels terms “the deepest theoretical levels.”6
The history of bioethics presents two seminal approaches to this problem. The
utilitarian approach usually favours best outcomes. The egalitarian approach has
often favoured fair chances. I am not suggesting that either camp is constrained by
these approaches. I do suggest that the egalitarian’s random selection approach has
seen little development since Childress’ seminal formulation in 1970.7
That formulation divided patient selection into two stages.8 The first stage
involved the formation of a candidate pool. Patients were supposed to be
individually assessed as to their prospective response to Resources. Those whose
prospective response was at or above a threshold level of medical benefit were to be
included in the candidate pool. Interpersonal comparisons of degrees of benefit were
to be avoided. Absent triage conditions of natural disaster or military emergency,
comparative judgements of social worth were also avoided. The second stage
involved choosing those who would receive Resources through random selection.
The two options for random selection were either first come, first served, or a
lottery. Childress favoured the former. This selection process aimed to affirm and
protect an individual’s personal and transcendent dignity through an equal right to
be saved. Childress claimed that this right is best preserved by procedures that
establish equality of opportunity. Random selection, as opposed to utilitarian
calculation, best captures the requirements of human dignity.9
My project is to attempt a sustained but qualified defence of this approach. My
defence will target two kinds of argument. First, it will target a rule utilitarian
argument for maximizing medical benefit as a form of utility. Childress has recently
become a proponent of the view that this argument can be endorsed in patient
selection without compromising an egalitarian perspective.10 I will argue that there
are problems in both practice and principle with this qualified utilitarian approach.
In practice, medical utility judgements are liable to social biases that can devalue
elderly lives. In principle, medical utility judgements exemplify the fair chances/best
outcomes problem and subvert equality of opportunity.
