Doctors' Rights and Work WILLIAM RUDDICK*
* Department of Philosophy, New York University. The Journal of Medicine and Philosophy, 1979, vol. 4, no. 2 © 1979 by The Society for Health and Human Values. 0360-5310/79/0402-0008$01.09
192
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
Patients no longer trust doctors or professional codes: they look rather to a bill of rights to define and protect their interests. Many doctors, of course, no longer trust their patients. Perhaps they should respond with a doctor's bill of rights. If so, what claims of right could they plausibly list? The question may seem naively reactionary. True, patients can no longer be counted on to accept with gratitude or resignation whatever doctors say or do to them. Nonetheless, doctors still enjoy the unique power that science, professional organization, and human need jointly give them. A bill of rights would legitimate and increase that power rather than protect some threatened interest. Why then even raise the question of doctors' rights? The reason is this: doctors are losing professional autonomy, individually and collectively. They are becoming employees, grantees, and members of "health care teams," and as such they are increasingly subject to the regulations of the hospitals, foundations, and government institutes which they depend on for funds and facilities. Even "solo practitioners" are subject to decisions by third-party paymasters—private and public insurers. Many doctors fear that they will eventually become health workers in every sense of the term—employees with little control over their conditions of work. And it has been argued that to forestall this fate doctors must oppose recognition of a general right to health care: to admit that right is to limit doctors' liberties, and consequently to reduce the quality of medical services. These fears are, I think, unrealistic and the argument is invalid, but if they are to be politically defused they must be approached more sympathetically than their merits warrant. Let us then entertain the nightmarish foreboding: uncritically assume that doctors lose not only professional autonomy but professional and economic status as well. That is, suppose they approach the social condition of the mechanics and butchers with whom they are now derisively compared. Could they practice "good medicine," or would they necessarily do inferior work?
William Ruddick
WORK—GOOD AND BAD We identify and classify people by the kind of work they do, or did, or are training to do ("It was a retired surgeon who . . . " ) . This practice reflects 1 Especially Martin Bunzl, Amelie Rorty, and Adina Schwartz. 193
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
It is tempting to try to give an answer based on studies of other actual medical systems in which doctors are workers. But the disanalogies between, say, the Chinese system and our own (as well as any likely variants) make this empirical approach unpersuasive, and rightly so (see Sidel and Sidel 1977). Rather let us pursue a conceptual approach by way of the concept of work and work rights. I shall argue that, even if doctors were to become health workers in some variant of our current system, they would continue to enjoy a large measure of control over the conditions of their medical work. This control could be preserved by certain work rights I explain below—in particular, the right to define one's work and the right to develop and maintain one's capacity for work. These are rights which, when suitably qualified, may be claimed by all workers. But unlike most workers, doctors could easily secure recognition of their work rights, even if they were employed by a national government. The special demand for doctors' services gives even the threat of a "job action" unusual force. So long as the political system allows such actions in support of legally defined rights, doctors need not fear medical servitude. Even if their work no longer counts as services, they will not become servants—contrary to the fears and arguments of current doctors. This conceptual approach by way of work and rights has (as various helpful critics1 have shown me) problems of its own. I shall mention just two. First, it may seem that doctors' work rights would continually conflict with patients' rights to health care. I shall try to show that doctors' and patients' rights could be articulated (in the anatomist's sense) if doctors would recognize patients as co-workers. Rather than increasing current adversarial conflict, doctors' work rights could reestablish mutual trust with patients in our "nightmare" world of doctor-workers. Thus, doctors may recognize patient rights without committing themselves to servitude, and patients may admit doctors' rights without compromising their own rights. The second objection is about method rather than results. How can we define work rights independent of the institutions, fully and precisely described, in which they are to be exercised? Are not rights relative to particular harms in particular societies and institutions? (see Scanlon 1978). In reply, I hope to show that work rights are based on very general conceptions of work, harmful and beneficial, and I shall assume that those conceptions are common to all cultures similar enough to our own to be of instructive interest.
The Journal of Medicine and Philosophy
194
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
the extent to which work tends to organize our lives—our time, talents, and social relationships. We judge one another and ourselves by the quality and quantity of work we do; it is our principal source of economic and other social rewards, hence of respect and self-respect. But what counts as work? There are at least three notable, necessary features. First, work requires effort in contrast with purposeful inactivity (such as sunbathing, sleeping) and effortless activity (such as dreaming, reflex movement). Second, work is intended either to produce or to preserve some object or state of affairs (a "product" for short) in contrast with aimless exertion (such as nervous pacing), recreation (such as cycling), and play (such as badminton). Third, the products of work are primarily intended to be of use to others (employers, clients, consumers) in contrast with the products of self-centered activity (such as private diaries, gardens, meditation). These contrasting examples of nonwork can, of course, count as work in appropriate circumstances. Indeed puritans are able to turn any activity into work by adding effort and altruistic aims whatever the intrinsic pleasure for the agent. Psychologists also expand the scope of work: play, dreams, and jokes are discovered to involve efforts aimed at our parents, their substitutes, or our earlier or later selves. Rather than expanding the scope of work, some philosophers have sought to restrict it. Arendt (1958), for example, contrasts work with labor. Labor produces no durable product but maintains daily life by continuous effort, the products of which are instantly consumed and, hence, in need of constant replenishment (for example, farming and housekeeping). This distinction, however, lends itself to unrealistic plans to assign all labor to machines, thereby leaving all human beings free for more gratifying work. But we cannot all make more durable products, nor do we all insist on doing so. Doctors and nurses, for example, who attend the chronically ill produce only temporary relief, and not permanent cures. They would prefer to cure, but to provide repeated relief is nonetheless good work worthy of their efforts. If labor can count as good work, we may wonder what counts as bad work. Our general account of work suggests three kinds of bad work, each reflecting one of the features of work: (1) work in which the effort is illsuited to the process or product (for example, back-breaking work that demands too much effort, routine work that demands too little); (2) work in which the process is ill-suited to the intended product (for example, work done with shoddy materials or tools, or work done with wastefully elaborate means); (3) work producing products that are ill-used or illdistributed (for example, fireworks sold to children, mothers'-milk substitutes sold to the poor). The harms of bad work are obvious. To work beyond our capacities causes anxiety and exhaustion; beneath our capacities, boredom and
William Ruddick
WORK AND WORK RIGHTS OF DOCTORS What work do doctors do? What do they produce by their efforts and for whom? The current answer seems to be: doctors produce ("deliver") health for the ill. But if health is their principal "product," then—except for a certain class of acutely ill patients—doctors are neither very effective nor very productive. Many patients get no better or become worse under (and even because of) a doctor's care; others would have regained their health without medical aid. 195
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
shame. Poor or wasteful methods defeat the desire to "do something well," while to make poor, dangerous, or pointless products deprives us of a sense of "making a contribution," of "being of social worth." In short, bad work defeats the sense of efficacy, the exercise of will, the translation of thought into social action. Although some religions urge us to mortify the will and to withdraw from productive effort, most of us are committed to an active life and hence to working. For us, to have no work or only bad work is to be deprived of a principal source of meaning, well-being, and community. These harms are all too familiar. Some social analysts take bad work to be part of all economic orders, especially ours (Terkel 1973). Even so, as the history of labor legislation shows, bad work can be reduced, if not eliminated, with the aid of enforced work rights. Rights are meant to protect us from preventable harms by assigning duties to individuals and institutions with the power to prevent those harms or to compensate us for them (Scanlon 1978). Since much bad work could be improved by changes in the patterns of employment and consumption, the notion of work rights (and corresponding employer and consumer duties) seems an appropriate weapon both conceptually and historically. What work rights should we have? To reduce the kinds of bad work mentioned above, at least two work rights are needed: the right to define one's work and the right to maintain one's work capacity (the oppressive employer violates the first; the exploitative employer, the second). To define one's work involves two activities: setting limits to the amounts of effort involved and selecting both goals and methods of work. These activities would normally protect one's capacity for work, but they might not. Working at only one task, even in a way and at a rate of one's own choosing, could gradually exhaust one's capacity or leave a worker exposed to shifts in demand or capacity over time. A work life extends over many years and economic variations. To prevent calculated or unforeseen superannuation, a worker must work in ways which allow the development of old and new capacities. Defining one's work could include concern for maintaining one's work capacity, but it is best to distinguish these work concerns and their respective work rights.
The Journal of Medicine and Philosophy
WORK RIGHTS VERSUS CARE RIGHTS Doctors select and refuse patients by specializing and referring. Rights to define one's work, to maintain and develop one's work capacities would support these practices. But critics claim that patients' rights to care are violated, for the resulting mismatch between specialists and patients leaves some people without care and others with substandard care. Some hospitals, for example, have too few open-heart patients to maintain the competence of their cardiac surgeons, as reflected in the unusually high mortality rates for the operations that are performed. 196
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
But if doctors are not "health providers," what are they? The old, preantibiotic answer still serves: doctors are therapists, those who attend to the ill {Therapeutae in Greek and Latin are attendants). The doctor's work is to relieve a patient's complaints and symptoms, permanently if possible but more often only temporarily. The criterion of good therapy is degree of relief, not degree of recovery or prolongation of life. Hence, a doctor need not feel defeated by the death of a patient with a degenerative disease if the patient was well attended and the disease was "well managed" within the limits of current therapeutic resources. But, if tending dying patients is not bad medical work, what is? Bad work for a doctor would fall under one or more of the categories previously mentioned, namely: (1) attending patients whose symptoms and complaints are ill-suited to a doctor's capacities for relief (for example, patients with intractable pain, hypochondriasis, or irreversible coma); (2) attending patients with methods ill-suited to their symptoms and complaints (for example, surgical patients whose rare blood-type or religion precludes transfusion, or whose lawyer or hospital requires numerous medically pointless diagnostic tests); (3) attending patients whose relief or cure would serve no purpose or only objectionable purposes (for example, patients bent on suicide or homicide, or patients whose treatable ailment accompanies a fatal, untreatable condition). Admittedly, some doctors could encompass these examples of bad medical work by broad conceptions of their therapeutic goals or means. For example, an internist with psychiatric skills would not dismiss a hypochondriac as untreatable, or a pediatrician who took parents as well as children as patients would not count the care of an anacephalic infant as a pointless Xherapeutic effort. But what of the physicians with narrower conceptions? Were doctors to have and assert work rights, would they be within their rights to refuse assignment to work and patients such as these? Or would their refusal violate patients' rights to care? Let us examine several current areas of potential conflict of work rights and care rights.
William Ruddick
197
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
Clearly, the right to specialize cannot encompass incompetent training and practice. The right to define work cannot include the right to place people in needless risk through incompetence. Hence, were governmental bodies or other employers to limit the number of specialists who could train or practice in a certain population of patients, doctors' work rights would not be violated. This limitation based on standards of competence would define those rights and simultaneously protect and define patients' rights to competent care. This is the kind of articulation of competing rights mentioned earlier. Consider another claim. It is said that patients have a right to the best available care. But who is to determine what is available? If doctors had work rights, they would be able to limit their availability in certain ways and for certain reasons. They could, for example, take time from practice for recreation, conferences, and other activities meant to maintain or develop their capacities for work. Whether or not patients would directly benefit, doctors' work rights would be justification enough. However, were their patients to suffer from their absences at weekend conferences or resorts, appeals to work rights would be out of place: maintaining one's capacity for negligent work is not covered by work rights. These conflicts are rather abstract. Let us consider in detail a current conflict posed in terms of rights by doctors and patients themselves. Patient advocates (Annas 1975) claim, and hospital codes (N.Y. Code) to some extent recognize, a patient's right to "complete current information" about diagnosis, prognosis, therapeutic options available from other doctors or hospitals, and a hospital's experimental programs and affiliations with other institutions. But doctors have been resisting by citing personal or hospital property rights to a patient's medical records and by pleading lack of time to educate patients to read records written for medically trained persons. These are, I think, unconvincing grounds as stated: property is not lost by being shown (except to plagiarists), and the need for a minimedical education is questionable. But these doctors' counterclaims could be restated in terms of work rights: a doctor might refuse to share certain information with the patient or to take the time to explain (the admittedly explicable, but complicated) basis of diagnosis and prognosis on the ground that to do so would interfere with the choice and administration of a clearly indicated course of treatment. In some cases the delay could put the patient at risk; in others, it could interfere with the doctor's teaching, research, and care of other patients. Does the proposed right justify this restated resistance to a patient's right to information? It does, I think, but not in a direct way. That is, it does not override the patient's right to complete information. But it does
The Journal of Medicine and Philosophy
198
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
qualify that right, or rather, requires its revision: namely, the patient has a right not to complete information but to as much information as a co-worker in the therapy can use. This revision comes about in the following way. Any work rights of a physician, including the right of control over the work, must reflect one distinctive feature of medical work: its product, as we have noted, is a state of affairs in another human being intended to be of benefit to that person—a doctor works on, and sometimes in, another person. So, even if there were no other "health workers" involved, no employers or insurers, a doctor could not have the total control that some workers have who work materials, machines, or natural objects. The patient should also have at least some control. The problem is, how much? To give the patient total control is to make the doctor a servant; to give the doctor total control is to make the patient a mere case, a locus of pathological process, subject to "doctors' orders." (Admittedly, the patient would not be a servant, for the orders are presumably for the patient's own good.) The older analogies of parent-child and priest-suppliant attempt to reconcile patients to a doctor's power and orders. Although we might wish, when ill, to entrust ourselves and all decisions to a powerful, loving curator, there are few, if any, to be found among the specialists and hospitals which high technology has generated. Moreover, most people in the United States do not see any one physician long enough to establish the kind of continuing relationship that children have with a parent or suppliants with a priest. Their medical care occurs in emergency wards, out-patient clinics, or group-practice clinics, whose staffs are in kaleidoscopic motion with changing hours,, personnel, and patients. Even people who have "a doctor of their own" are often passed on and around among specialists with whom no one-to-one relationship is established by short visits. But even in these conditions, we might be able to establish a new model which would protect and coordinate the interests of both doctors and patients—the model of co-workers. Were doctors to treat patients, however brief their contact, as people with work rights of their own, therapy might proceed with less abuse and more trust. The proposal may seem paradoxical: as the very term suggests, patients are often passive and dependent, and occasionally too ill to take part in their own care. Nonetheless most patients have two kinds of work: the work that illness impairs or interrupts and the work of getting better or well. It is often a person's extraclinical work that motivates a visit to a hospital or doctor and defines therapeutic goals and methods (for example, a professional cyclist will consult a specialist for treatment of an injury an amateur would leave to nature, even at the risk of slight impairment). But even patients without extraclinical work to guide therapy have the intraclinical work of getting well, or at least better,
William Ruddick
199
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
unless too ill to be aware of their condition or knowingly facilitate treatment. It may be objected that such patient effort does not fully meet our definition of work: a patient strives for self-improvement, not a "product intended primarily for the use of others" (hence, the need for cautionary quotes when I mention patients' "work," or patients viewed as co"workers"). But this neglects the social context of treatment. A variety of people benefit from a patient's improvement—family, employers, taxpayers, and the therapists themselves. Typically, a patient will care about some of these people, even to the point of counting their good as part of his or her own. Hence the desire and effort to "get better" will typically have an other-regarding aspect, and we can count that effort as work (without cautionary quotation marks). It is not farfetched then to consider a patient a worker—even if the work is temporary—and to admit that as a worker he or she has work rights, including the right partially to control the course of treatment. But to exercise this right, the patient must know whatever is relevant to the choices the disease and hospital facilities allow. And here the goal of complete information is inappropriate, if anything more is meant than all information relevant to joint decision with the therapists. The choice and pursuit of therapeutic goals becomes a common enterprise to which shared information is essential. There is no need to tell a patient everything: the possible conditions that differential diagnosis had to eliminate need not be mentioned to a patient, even if not alarming; and certain information might be withheld because it would make the patient less deliberate or less of a participant in the cooperative work of decision and joint effort. (A doctor need not, for example, endanger a working relationship with a patient by relating the latest inconclusive statistics which raise a small doubt about the efficacy of the course of treatment under way.) Current statements of a patient's right to complete information add a rider: "When it is not medically advisable to give such information to the patient, the information shall be made available to an appropriate person in his behalf" (N.Y. Hospital Code, #4). The notion of information needed by a co-worker would, I think, make this rider more precise by (a) giving a clearer sense of what information is to be given or withheld on medical grounds and (b) making more explicit who are the appropriate persons to receive that information if the patient does not, namely, those people (often relatives) who are or will be participating in the care of the patient. To admit a patient as a co-worker will often slow down current therapeutic procedure. An office visit may take more of a doctor's time (but less of a patient's time if a doctor keeps the patient's extraclinical work in mind) and current informed consent procedures would take more
The Journal of Medicine and Philosophy
SADE'S RIGHT TO LIFE AND LIVELIHOOD In a widely reprinted article, Robert Sade (1971), a libertarian, claims that a general right to health care would break a chain of natural rights. Sade takes the highest link to be "the right which all living creatures enjoy to life itself." To sustain life, human beings must, he argues, pursue a course of action "guided by reason and reality" with the goal of creating, or acquiring both "material values" (food, clothing) and "intellectual values" (self-esteem, integrity). Thus the right to life implies several corollary rights: the right to "select the values that one deems necessary to sustain one's own life," the right to "exercise one's own judgment of the best course of action to achieve the chosen values," and the right to "dispose of those values, once gained, any way one chooses, without coercion by other men." These corollary rights entail, or at least favor a central role for private property and a free market exchange of goods and services in the pursuit of a livelihood. Hence, in medical matters, physicians must be free to sell their services at whatever price people will pay. Were there a recognized right to health care, patients could claim those services without pay. A physician, he thinks, would be like a baker 200
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
time. (Indeed "informed consent" would become a misleading term for the patient's approval of jointly devised therapeutic plans.) But more consultation would reduce the number of diagnostic tests and data now inspired by "defensive medicine." And more consultation might well speed healing by inspiring the patient's efforts and reducing therapeutic error (there would be, for example, less postsurgical phlebitis if patients fully understood why a course of exercise, however painful, was necessary for recovery). But since what is being proposed is a right, or rather a set of coordinated rights—the rights of both physicians and patients, as workers—matters of convenience are secondary if indeed relevant at all. Whether a doctor must spend more time with a patient if the patient, as a worker, has a right to more time, is not to be decided by looking at the doctor's appointment book. More time may well mean fewer patients, but rights are not subject to calculations of efficiency (Dworkin 1977). To push the co-worker model even further, we might wonder who would have the role of joint employer. In the United States, there are various examples—universities, corporations, and governmental groups employ doctors to treat their employees. In some socialist countries, most doctors are so employed (Sidel and Sidel 1978). This, of course, is the very future American doctors dread. And some doctors believe that recognition of a general right to health care commits them to that fate. I shall conclude by examining a well-known argument to that effect.
William Ruddick
201
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
whose bread could be taken by anyone at will. Rather than the government acting to protect the baker, it would force him to produce for people engaged in a kind of theft. Likewise, a right to health care would allow a government to assign doctors to certain groups of patients, to specialties, and to locations, as well as to dictate and proscribe forms of treatment. The result, Sade claims, would be demoralized, apathetic doctors whose patients would suffer substandard care. For our purposes, this provocative argument has several instructive faults. First, the alleged chain of rights is missing essential links. The right to life or to a livelihood is not connected with the "corollary rights" to choose freely one's values, methods of pursuit, and mode of economic activity. We need an argument to show that we must be allowed to pursue and dispose of values at will. Sade sees no need, I suspect, because he identifies three distinct notions—life, livelihood, and one's own life. Although a person may need a livelihood in order to stay alive, it need not be a livelihood of his or her own choosing, or a livelihood that supports a highly personal or individual "life of one's own." There can be a right to life without a right to "a life of one's own." Indeed, I think there can be no such right to one's own life, if that phrase is understood in such individualistic, socially atomistic terms. A person's life (in the relevant biographical sense) is defined in large part by work, but work is essentially social in one or more respects. As we noted, we work for others and (usually) with others. Hence, no one has a right to pursue material and intellectual values by way of having a life of one's own. Such a right would allow a person to force other people into collaboration, or service. But, according to Sade, the right in question is a universal, or natural right, common to all living (human), rational creatures. The exercise of any universal right must be compatible with exercise of that right by others. The right to a life of one's own, as Sade sketches it, could be exercised only by people who would become the masters of others. There is another problem. Contrary to Sade's argument, the right to a livelihood seems to imply rather than to preclude a right to health care. If the right to pursue a livelihood is universal, then some pursuits must be ruled out as obstacles or interferences to the pursuits of others. For example, the pursuit of wealth by doctors (and drug houses) might in certain circumstances make it difficult or impossible for some people to pursue their chosen livelihoods, or, more seriously, any livelihood at all. When seriously ill, people are unable to do much of anything, let alone make the money needed to pay for medical care or even for medical insurance. If people are to exercise their natural right as a living creature to pursue a livelihood, then illness, so far as possible, must be removed. A certain degree of health is not a product people should be able to buy in order to make their lives better; a certain level of health is necessary to
The Journal of Medicine and Philosophy
REFERENCES American Hospital Association. "Statement on a Patient's Bill of Rights." Hospitals 47 (February 1973): 41. Annas, G. J. The Rights of Hospital Patients. New York: Avon Books, 1975. Arendt, H. The Human Condition. Chicago: University of Chicago Press, 1958. Dworkin, R. Taking Rights Seriously. Cambridge, Mass.: Harvard University Press, 1977. New York State Hospital Code, Section 720.3. Sade, R. M. "Medical Care as a Right: A Refutation." New England Journal of Medicine 285 (1971): 1288-92. Reprinted with replies in Ethics in Medicine, edited by S. J. Reiser, A. J. Dyck, and W. J. Curran. Cambridge, Mass.: M.I.T. Press, 1977. 202
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
make any life or livelihood possible. Hence, if we have a right to livelihood, we have a right to a certain level of health care determined by the kinds of work people can and want to do. Sade thinks that the only legitimate function of government is protection of property. Governmental bodies can, however, provide other kinds of protection. For example, they can set standards of medical care that protect doctors against unreasonable, anxious demands for cure beyond the current state of the art. These standards may bring some doctors up to the mark but protect others from legal attempts to push them too far beyond it. And governments can protect doctors' access to good medical training and facilities by subsidizing medical schools and centers. Of course, doctors who accept such protection cannot claim an entrepreneur's right to maximal profits from exercise of skills acquired at public expense. Public benefits create private restraints. I conclude that doctors can admit a general right to health care without becoming medical servants. And even if they were to become government employees, their interests as therapists would be well protected—against patients, as well as against their employers. Against patients, they would have standards of care set by relatively impartial governmental commissions rather than by professional boards widely supposed to be self-serving. And against government employers, doctors could appeal to the government's historical role as definer and defender of workers' rights, and if that appeal failed, they could threaten a job action. Given the demand and need for doctors' products, this threat would insure the working conditions that their work rights as therapists require. Government employment would not, however, insure their current high incomes. But some doctors might prefer to have less money and more respect. People respect highly skilled and highly paid workers far more than entrepreneurial priests, however wealthy.
William Ruddick Scanlon, T. "Rights, Goals and Fairness." In Public and Private Morality, edited by S. Hampshire. Cambridge: Cambridge University Press, 1978. Sidel, V. W., and Sidel, R. A Healthy State: An International Perspective on the Crisis in United States Medical Care. New York: Pantheon Books, 1977. Terkel, S. Working. New York: Pantheon Books, 1973.
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
203
* Department of Philosophy, New York University. The Journal of Medicine and Philosophy, 1979, vol. 4, no. 2 © 1979 by The Society for Health and Human Values. 0360-5310/79/0402-0008$01.09
192
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
Patients no longer trust doctors or professional codes: they look rather to a bill of rights to define and protect their interests. Many doctors, of course, no longer trust their patients. Perhaps they should respond with a doctor's bill of rights. If so, what claims of right could they plausibly list? The question may seem naively reactionary. True, patients can no longer be counted on to accept with gratitude or resignation whatever doctors say or do to them. Nonetheless, doctors still enjoy the unique power that science, professional organization, and human need jointly give them. A bill of rights would legitimate and increase that power rather than protect some threatened interest. Why then even raise the question of doctors' rights? The reason is this: doctors are losing professional autonomy, individually and collectively. They are becoming employees, grantees, and members of "health care teams," and as such they are increasingly subject to the regulations of the hospitals, foundations, and government institutes which they depend on for funds and facilities. Even "solo practitioners" are subject to decisions by third-party paymasters—private and public insurers. Many doctors fear that they will eventually become health workers in every sense of the term—employees with little control over their conditions of work. And it has been argued that to forestall this fate doctors must oppose recognition of a general right to health care: to admit that right is to limit doctors' liberties, and consequently to reduce the quality of medical services. These fears are, I think, unrealistic and the argument is invalid, but if they are to be politically defused they must be approached more sympathetically than their merits warrant. Let us then entertain the nightmarish foreboding: uncritically assume that doctors lose not only professional autonomy but professional and economic status as well. That is, suppose they approach the social condition of the mechanics and butchers with whom they are now derisively compared. Could they practice "good medicine," or would they necessarily do inferior work?
William Ruddick
WORK—GOOD AND BAD We identify and classify people by the kind of work they do, or did, or are training to do ("It was a retired surgeon who . . . " ) . This practice reflects 1 Especially Martin Bunzl, Amelie Rorty, and Adina Schwartz. 193
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
It is tempting to try to give an answer based on studies of other actual medical systems in which doctors are workers. But the disanalogies between, say, the Chinese system and our own (as well as any likely variants) make this empirical approach unpersuasive, and rightly so (see Sidel and Sidel 1977). Rather let us pursue a conceptual approach by way of the concept of work and work rights. I shall argue that, even if doctors were to become health workers in some variant of our current system, they would continue to enjoy a large measure of control over the conditions of their medical work. This control could be preserved by certain work rights I explain below—in particular, the right to define one's work and the right to develop and maintain one's capacity for work. These are rights which, when suitably qualified, may be claimed by all workers. But unlike most workers, doctors could easily secure recognition of their work rights, even if they were employed by a national government. The special demand for doctors' services gives even the threat of a "job action" unusual force. So long as the political system allows such actions in support of legally defined rights, doctors need not fear medical servitude. Even if their work no longer counts as services, they will not become servants—contrary to the fears and arguments of current doctors. This conceptual approach by way of work and rights has (as various helpful critics1 have shown me) problems of its own. I shall mention just two. First, it may seem that doctors' work rights would continually conflict with patients' rights to health care. I shall try to show that doctors' and patients' rights could be articulated (in the anatomist's sense) if doctors would recognize patients as co-workers. Rather than increasing current adversarial conflict, doctors' work rights could reestablish mutual trust with patients in our "nightmare" world of doctor-workers. Thus, doctors may recognize patient rights without committing themselves to servitude, and patients may admit doctors' rights without compromising their own rights. The second objection is about method rather than results. How can we define work rights independent of the institutions, fully and precisely described, in which they are to be exercised? Are not rights relative to particular harms in particular societies and institutions? (see Scanlon 1978). In reply, I hope to show that work rights are based on very general conceptions of work, harmful and beneficial, and I shall assume that those conceptions are common to all cultures similar enough to our own to be of instructive interest.
The Journal of Medicine and Philosophy
194
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
the extent to which work tends to organize our lives—our time, talents, and social relationships. We judge one another and ourselves by the quality and quantity of work we do; it is our principal source of economic and other social rewards, hence of respect and self-respect. But what counts as work? There are at least three notable, necessary features. First, work requires effort in contrast with purposeful inactivity (such as sunbathing, sleeping) and effortless activity (such as dreaming, reflex movement). Second, work is intended either to produce or to preserve some object or state of affairs (a "product" for short) in contrast with aimless exertion (such as nervous pacing), recreation (such as cycling), and play (such as badminton). Third, the products of work are primarily intended to be of use to others (employers, clients, consumers) in contrast with the products of self-centered activity (such as private diaries, gardens, meditation). These contrasting examples of nonwork can, of course, count as work in appropriate circumstances. Indeed puritans are able to turn any activity into work by adding effort and altruistic aims whatever the intrinsic pleasure for the agent. Psychologists also expand the scope of work: play, dreams, and jokes are discovered to involve efforts aimed at our parents, their substitutes, or our earlier or later selves. Rather than expanding the scope of work, some philosophers have sought to restrict it. Arendt (1958), for example, contrasts work with labor. Labor produces no durable product but maintains daily life by continuous effort, the products of which are instantly consumed and, hence, in need of constant replenishment (for example, farming and housekeeping). This distinction, however, lends itself to unrealistic plans to assign all labor to machines, thereby leaving all human beings free for more gratifying work. But we cannot all make more durable products, nor do we all insist on doing so. Doctors and nurses, for example, who attend the chronically ill produce only temporary relief, and not permanent cures. They would prefer to cure, but to provide repeated relief is nonetheless good work worthy of their efforts. If labor can count as good work, we may wonder what counts as bad work. Our general account of work suggests three kinds of bad work, each reflecting one of the features of work: (1) work in which the effort is illsuited to the process or product (for example, back-breaking work that demands too much effort, routine work that demands too little); (2) work in which the process is ill-suited to the intended product (for example, work done with shoddy materials or tools, or work done with wastefully elaborate means); (3) work producing products that are ill-used or illdistributed (for example, fireworks sold to children, mothers'-milk substitutes sold to the poor). The harms of bad work are obvious. To work beyond our capacities causes anxiety and exhaustion; beneath our capacities, boredom and
William Ruddick
WORK AND WORK RIGHTS OF DOCTORS What work do doctors do? What do they produce by their efforts and for whom? The current answer seems to be: doctors produce ("deliver") health for the ill. But if health is their principal "product," then—except for a certain class of acutely ill patients—doctors are neither very effective nor very productive. Many patients get no better or become worse under (and even because of) a doctor's care; others would have regained their health without medical aid. 195
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
shame. Poor or wasteful methods defeat the desire to "do something well," while to make poor, dangerous, or pointless products deprives us of a sense of "making a contribution," of "being of social worth." In short, bad work defeats the sense of efficacy, the exercise of will, the translation of thought into social action. Although some religions urge us to mortify the will and to withdraw from productive effort, most of us are committed to an active life and hence to working. For us, to have no work or only bad work is to be deprived of a principal source of meaning, well-being, and community. These harms are all too familiar. Some social analysts take bad work to be part of all economic orders, especially ours (Terkel 1973). Even so, as the history of labor legislation shows, bad work can be reduced, if not eliminated, with the aid of enforced work rights. Rights are meant to protect us from preventable harms by assigning duties to individuals and institutions with the power to prevent those harms or to compensate us for them (Scanlon 1978). Since much bad work could be improved by changes in the patterns of employment and consumption, the notion of work rights (and corresponding employer and consumer duties) seems an appropriate weapon both conceptually and historically. What work rights should we have? To reduce the kinds of bad work mentioned above, at least two work rights are needed: the right to define one's work and the right to maintain one's work capacity (the oppressive employer violates the first; the exploitative employer, the second). To define one's work involves two activities: setting limits to the amounts of effort involved and selecting both goals and methods of work. These activities would normally protect one's capacity for work, but they might not. Working at only one task, even in a way and at a rate of one's own choosing, could gradually exhaust one's capacity or leave a worker exposed to shifts in demand or capacity over time. A work life extends over many years and economic variations. To prevent calculated or unforeseen superannuation, a worker must work in ways which allow the development of old and new capacities. Defining one's work could include concern for maintaining one's work capacity, but it is best to distinguish these work concerns and their respective work rights.
The Journal of Medicine and Philosophy
WORK RIGHTS VERSUS CARE RIGHTS Doctors select and refuse patients by specializing and referring. Rights to define one's work, to maintain and develop one's work capacities would support these practices. But critics claim that patients' rights to care are violated, for the resulting mismatch between specialists and patients leaves some people without care and others with substandard care. Some hospitals, for example, have too few open-heart patients to maintain the competence of their cardiac surgeons, as reflected in the unusually high mortality rates for the operations that are performed. 196
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
But if doctors are not "health providers," what are they? The old, preantibiotic answer still serves: doctors are therapists, those who attend to the ill {Therapeutae in Greek and Latin are attendants). The doctor's work is to relieve a patient's complaints and symptoms, permanently if possible but more often only temporarily. The criterion of good therapy is degree of relief, not degree of recovery or prolongation of life. Hence, a doctor need not feel defeated by the death of a patient with a degenerative disease if the patient was well attended and the disease was "well managed" within the limits of current therapeutic resources. But, if tending dying patients is not bad medical work, what is? Bad work for a doctor would fall under one or more of the categories previously mentioned, namely: (1) attending patients whose symptoms and complaints are ill-suited to a doctor's capacities for relief (for example, patients with intractable pain, hypochondriasis, or irreversible coma); (2) attending patients with methods ill-suited to their symptoms and complaints (for example, surgical patients whose rare blood-type or religion precludes transfusion, or whose lawyer or hospital requires numerous medically pointless diagnostic tests); (3) attending patients whose relief or cure would serve no purpose or only objectionable purposes (for example, patients bent on suicide or homicide, or patients whose treatable ailment accompanies a fatal, untreatable condition). Admittedly, some doctors could encompass these examples of bad medical work by broad conceptions of their therapeutic goals or means. For example, an internist with psychiatric skills would not dismiss a hypochondriac as untreatable, or a pediatrician who took parents as well as children as patients would not count the care of an anacephalic infant as a pointless Xherapeutic effort. But what of the physicians with narrower conceptions? Were doctors to have and assert work rights, would they be within their rights to refuse assignment to work and patients such as these? Or would their refusal violate patients' rights to care? Let us examine several current areas of potential conflict of work rights and care rights.
William Ruddick
197
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
Clearly, the right to specialize cannot encompass incompetent training and practice. The right to define work cannot include the right to place people in needless risk through incompetence. Hence, were governmental bodies or other employers to limit the number of specialists who could train or practice in a certain population of patients, doctors' work rights would not be violated. This limitation based on standards of competence would define those rights and simultaneously protect and define patients' rights to competent care. This is the kind of articulation of competing rights mentioned earlier. Consider another claim. It is said that patients have a right to the best available care. But who is to determine what is available? If doctors had work rights, they would be able to limit their availability in certain ways and for certain reasons. They could, for example, take time from practice for recreation, conferences, and other activities meant to maintain or develop their capacities for work. Whether or not patients would directly benefit, doctors' work rights would be justification enough. However, were their patients to suffer from their absences at weekend conferences or resorts, appeals to work rights would be out of place: maintaining one's capacity for negligent work is not covered by work rights. These conflicts are rather abstract. Let us consider in detail a current conflict posed in terms of rights by doctors and patients themselves. Patient advocates (Annas 1975) claim, and hospital codes (N.Y. Code) to some extent recognize, a patient's right to "complete current information" about diagnosis, prognosis, therapeutic options available from other doctors or hospitals, and a hospital's experimental programs and affiliations with other institutions. But doctors have been resisting by citing personal or hospital property rights to a patient's medical records and by pleading lack of time to educate patients to read records written for medically trained persons. These are, I think, unconvincing grounds as stated: property is not lost by being shown (except to plagiarists), and the need for a minimedical education is questionable. But these doctors' counterclaims could be restated in terms of work rights: a doctor might refuse to share certain information with the patient or to take the time to explain (the admittedly explicable, but complicated) basis of diagnosis and prognosis on the ground that to do so would interfere with the choice and administration of a clearly indicated course of treatment. In some cases the delay could put the patient at risk; in others, it could interfere with the doctor's teaching, research, and care of other patients. Does the proposed right justify this restated resistance to a patient's right to information? It does, I think, but not in a direct way. That is, it does not override the patient's right to complete information. But it does
The Journal of Medicine and Philosophy
198
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
qualify that right, or rather, requires its revision: namely, the patient has a right not to complete information but to as much information as a co-worker in the therapy can use. This revision comes about in the following way. Any work rights of a physician, including the right of control over the work, must reflect one distinctive feature of medical work: its product, as we have noted, is a state of affairs in another human being intended to be of benefit to that person—a doctor works on, and sometimes in, another person. So, even if there were no other "health workers" involved, no employers or insurers, a doctor could not have the total control that some workers have who work materials, machines, or natural objects. The patient should also have at least some control. The problem is, how much? To give the patient total control is to make the doctor a servant; to give the doctor total control is to make the patient a mere case, a locus of pathological process, subject to "doctors' orders." (Admittedly, the patient would not be a servant, for the orders are presumably for the patient's own good.) The older analogies of parent-child and priest-suppliant attempt to reconcile patients to a doctor's power and orders. Although we might wish, when ill, to entrust ourselves and all decisions to a powerful, loving curator, there are few, if any, to be found among the specialists and hospitals which high technology has generated. Moreover, most people in the United States do not see any one physician long enough to establish the kind of continuing relationship that children have with a parent or suppliants with a priest. Their medical care occurs in emergency wards, out-patient clinics, or group-practice clinics, whose staffs are in kaleidoscopic motion with changing hours,, personnel, and patients. Even people who have "a doctor of their own" are often passed on and around among specialists with whom no one-to-one relationship is established by short visits. But even in these conditions, we might be able to establish a new model which would protect and coordinate the interests of both doctors and patients—the model of co-workers. Were doctors to treat patients, however brief their contact, as people with work rights of their own, therapy might proceed with less abuse and more trust. The proposal may seem paradoxical: as the very term suggests, patients are often passive and dependent, and occasionally too ill to take part in their own care. Nonetheless most patients have two kinds of work: the work that illness impairs or interrupts and the work of getting better or well. It is often a person's extraclinical work that motivates a visit to a hospital or doctor and defines therapeutic goals and methods (for example, a professional cyclist will consult a specialist for treatment of an injury an amateur would leave to nature, even at the risk of slight impairment). But even patients without extraclinical work to guide therapy have the intraclinical work of getting well, or at least better,
William Ruddick
199
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
unless too ill to be aware of their condition or knowingly facilitate treatment. It may be objected that such patient effort does not fully meet our definition of work: a patient strives for self-improvement, not a "product intended primarily for the use of others" (hence, the need for cautionary quotes when I mention patients' "work," or patients viewed as co"workers"). But this neglects the social context of treatment. A variety of people benefit from a patient's improvement—family, employers, taxpayers, and the therapists themselves. Typically, a patient will care about some of these people, even to the point of counting their good as part of his or her own. Hence the desire and effort to "get better" will typically have an other-regarding aspect, and we can count that effort as work (without cautionary quotation marks). It is not farfetched then to consider a patient a worker—even if the work is temporary—and to admit that as a worker he or she has work rights, including the right partially to control the course of treatment. But to exercise this right, the patient must know whatever is relevant to the choices the disease and hospital facilities allow. And here the goal of complete information is inappropriate, if anything more is meant than all information relevant to joint decision with the therapists. The choice and pursuit of therapeutic goals becomes a common enterprise to which shared information is essential. There is no need to tell a patient everything: the possible conditions that differential diagnosis had to eliminate need not be mentioned to a patient, even if not alarming; and certain information might be withheld because it would make the patient less deliberate or less of a participant in the cooperative work of decision and joint effort. (A doctor need not, for example, endanger a working relationship with a patient by relating the latest inconclusive statistics which raise a small doubt about the efficacy of the course of treatment under way.) Current statements of a patient's right to complete information add a rider: "When it is not medically advisable to give such information to the patient, the information shall be made available to an appropriate person in his behalf" (N.Y. Hospital Code, #4). The notion of information needed by a co-worker would, I think, make this rider more precise by (a) giving a clearer sense of what information is to be given or withheld on medical grounds and (b) making more explicit who are the appropriate persons to receive that information if the patient does not, namely, those people (often relatives) who are or will be participating in the care of the patient. To admit a patient as a co-worker will often slow down current therapeutic procedure. An office visit may take more of a doctor's time (but less of a patient's time if a doctor keeps the patient's extraclinical work in mind) and current informed consent procedures would take more
The Journal of Medicine and Philosophy
SADE'S RIGHT TO LIFE AND LIVELIHOOD In a widely reprinted article, Robert Sade (1971), a libertarian, claims that a general right to health care would break a chain of natural rights. Sade takes the highest link to be "the right which all living creatures enjoy to life itself." To sustain life, human beings must, he argues, pursue a course of action "guided by reason and reality" with the goal of creating, or acquiring both "material values" (food, clothing) and "intellectual values" (self-esteem, integrity). Thus the right to life implies several corollary rights: the right to "select the values that one deems necessary to sustain one's own life," the right to "exercise one's own judgment of the best course of action to achieve the chosen values," and the right to "dispose of those values, once gained, any way one chooses, without coercion by other men." These corollary rights entail, or at least favor a central role for private property and a free market exchange of goods and services in the pursuit of a livelihood. Hence, in medical matters, physicians must be free to sell their services at whatever price people will pay. Were there a recognized right to health care, patients could claim those services without pay. A physician, he thinks, would be like a baker 200
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
time. (Indeed "informed consent" would become a misleading term for the patient's approval of jointly devised therapeutic plans.) But more consultation would reduce the number of diagnostic tests and data now inspired by "defensive medicine." And more consultation might well speed healing by inspiring the patient's efforts and reducing therapeutic error (there would be, for example, less postsurgical phlebitis if patients fully understood why a course of exercise, however painful, was necessary for recovery). But since what is being proposed is a right, or rather a set of coordinated rights—the rights of both physicians and patients, as workers—matters of convenience are secondary if indeed relevant at all. Whether a doctor must spend more time with a patient if the patient, as a worker, has a right to more time, is not to be decided by looking at the doctor's appointment book. More time may well mean fewer patients, but rights are not subject to calculations of efficiency (Dworkin 1977). To push the co-worker model even further, we might wonder who would have the role of joint employer. In the United States, there are various examples—universities, corporations, and governmental groups employ doctors to treat their employees. In some socialist countries, most doctors are so employed (Sidel and Sidel 1978). This, of course, is the very future American doctors dread. And some doctors believe that recognition of a general right to health care commits them to that fate. I shall conclude by examining a well-known argument to that effect.
William Ruddick
201
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
whose bread could be taken by anyone at will. Rather than the government acting to protect the baker, it would force him to produce for people engaged in a kind of theft. Likewise, a right to health care would allow a government to assign doctors to certain groups of patients, to specialties, and to locations, as well as to dictate and proscribe forms of treatment. The result, Sade claims, would be demoralized, apathetic doctors whose patients would suffer substandard care. For our purposes, this provocative argument has several instructive faults. First, the alleged chain of rights is missing essential links. The right to life or to a livelihood is not connected with the "corollary rights" to choose freely one's values, methods of pursuit, and mode of economic activity. We need an argument to show that we must be allowed to pursue and dispose of values at will. Sade sees no need, I suspect, because he identifies three distinct notions—life, livelihood, and one's own life. Although a person may need a livelihood in order to stay alive, it need not be a livelihood of his or her own choosing, or a livelihood that supports a highly personal or individual "life of one's own." There can be a right to life without a right to "a life of one's own." Indeed, I think there can be no such right to one's own life, if that phrase is understood in such individualistic, socially atomistic terms. A person's life (in the relevant biographical sense) is defined in large part by work, but work is essentially social in one or more respects. As we noted, we work for others and (usually) with others. Hence, no one has a right to pursue material and intellectual values by way of having a life of one's own. Such a right would allow a person to force other people into collaboration, or service. But, according to Sade, the right in question is a universal, or natural right, common to all living (human), rational creatures. The exercise of any universal right must be compatible with exercise of that right by others. The right to a life of one's own, as Sade sketches it, could be exercised only by people who would become the masters of others. There is another problem. Contrary to Sade's argument, the right to a livelihood seems to imply rather than to preclude a right to health care. If the right to pursue a livelihood is universal, then some pursuits must be ruled out as obstacles or interferences to the pursuits of others. For example, the pursuit of wealth by doctors (and drug houses) might in certain circumstances make it difficult or impossible for some people to pursue their chosen livelihoods, or, more seriously, any livelihood at all. When seriously ill, people are unable to do much of anything, let alone make the money needed to pay for medical care or even for medical insurance. If people are to exercise their natural right as a living creature to pursue a livelihood, then illness, so far as possible, must be removed. A certain degree of health is not a product people should be able to buy in order to make their lives better; a certain level of health is necessary to
The Journal of Medicine and Philosophy
REFERENCES American Hospital Association. "Statement on a Patient's Bill of Rights." Hospitals 47 (February 1973): 41. Annas, G. J. The Rights of Hospital Patients. New York: Avon Books, 1975. Arendt, H. The Human Condition. Chicago: University of Chicago Press, 1958. Dworkin, R. Taking Rights Seriously. Cambridge, Mass.: Harvard University Press, 1977. New York State Hospital Code, Section 720.3. Sade, R. M. "Medical Care as a Right: A Refutation." New England Journal of Medicine 285 (1971): 1288-92. Reprinted with replies in Ethics in Medicine, edited by S. J. Reiser, A. J. Dyck, and W. J. Curran. Cambridge, Mass.: M.I.T. Press, 1977. 202
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
make any life or livelihood possible. Hence, if we have a right to livelihood, we have a right to a certain level of health care determined by the kinds of work people can and want to do. Sade thinks that the only legitimate function of government is protection of property. Governmental bodies can, however, provide other kinds of protection. For example, they can set standards of medical care that protect doctors against unreasonable, anxious demands for cure beyond the current state of the art. These standards may bring some doctors up to the mark but protect others from legal attempts to push them too far beyond it. And governments can protect doctors' access to good medical training and facilities by subsidizing medical schools and centers. Of course, doctors who accept such protection cannot claim an entrepreneur's right to maximal profits from exercise of skills acquired at public expense. Public benefits create private restraints. I conclude that doctors can admit a general right to health care without becoming medical servants. And even if they were to become government employees, their interests as therapists would be well protected—against patients, as well as against their employers. Against patients, they would have standards of care set by relatively impartial governmental commissions rather than by professional boards widely supposed to be self-serving. And against government employers, doctors could appeal to the government's historical role as definer and defender of workers' rights, and if that appeal failed, they could threaten a job action. Given the demand and need for doctors' products, this threat would insure the working conditions that their work rights as therapists require. Government employment would not, however, insure their current high incomes. But some doctors might prefer to have less money and more respect. People respect highly skilled and highly paid workers far more than entrepreneurial priests, however wealthy.
William Ruddick Scanlon, T. "Rights, Goals and Fairness." In Public and Private Morality, edited by S. Hampshire. Cambridge: Cambridge University Press, 1978. Sidel, V. W., and Sidel, R. A Healthy State: An International Perspective on the Crisis in United States Medical Care. New York: Pantheon Books, 1977. Terkel, S. Working. New York: Pantheon Books, 1973.
Downloaded from http://jmp.oxfordjournals.org/ at Indiana University Library on May 9, 2015
203
