The Right to Health Care as a Right to Basic HumanFunctional Capabilities

Efrat Ram-Tiktin

Accepted: 2 November 2011 /Published online: 26 November 2011# Springer Science+Business Media B.V. 2011

Abstract A just social arrangement must guarantee a right to health care for all. This rightshould be understood as a positive right to basic human functional capabilities. The presentarticle aims to delineate the right to health care as part of an account of distributive justice inhealth care in terms of the sufficiency of basic human functional capabilities. According to theproposed account, every individual currently living beneath the sufficiency threshold or injeopardy of falling beneath the threshold has a legitimate claim to justice. People’s entitlementsto health care should not be determined on the basis of brute luck and their efforts to maintainhealthy lifestyles. The prioritization of competing claim-rights of individuals is guided by twoallocation principles: number and benefit-size weighted sufficiency (among people beneath thethreshold) and need-weighted utilitarianism (among people above the threshold).

Keywords Right to health care . Sufficiency . Capabilities . Patients’ prioritization

1 Introduction

Do people have a right to health care, and to what exactly are people entitled? Health policydesigners, health practitioners, economists, lawyers, patients and lay persons argue aboutthe content of this right. Libertarians tend to claim that people hold only a negative right tohealth, which imposes a negative duty on the state’s institutions not to harm people’s healthby its actions. On the other hand, egalitarians claim that we ought to consider health (orhealth care) a positive right, and impose a positive duty on state institutions to safeguardand equalize people’s health. Those who support a positive right to health care have toanswer a series of questions, to mention a few: do we have a duty to prolong dying patients’lives, and at what costs; do we have an obligation to improve patients’ quality of life, and towhat extent; and, if we cannot improve everyone’s health, who should have priority? Theaim of this paper is to defend the claim that “people have a positive right to health care” aslong as we understand the claim-right as a sufficiency of basic human functional

Ethic Theory Moral Prac (2012) 15:337–351DOI 10.1007/s10677-011-9322-7

E. Ram-Tiktin (*)Department of Philosophy, Bar-Ilan University, Ramat-Gan 52900, Israele-mail: efrat.ram-tiktin@biu.ac.il

capabilities. In Section 2, I will present the basic presumptions of my proposed sufficiencyof basic human functional capabilities account (which henceforth, for brevity, will be calledsufficiency of capabilities). In Section 3, I will address the content of the right to healthcare. As part of that discussion, I will delineate the sufficiency threshold. In Section 4, I willpresent the allocation principle beneath the sufficiency threshold. In Section 5, I willcontrast the advantages of my account with the luck prioritarian health equity account,where I will explain why luck and personal responsibility should not be criteria indetermining people’s entitlements to health care. In Section 6, I will conclude by discussinghow we ought to allocate health care resources among people located above the threshold.

2 The Right to Health Care: Four Basic Presumptions

In this paper, I will address the right to health care and not to health. It is well known thatpeople’s health is influenced not only by their access to medical care but also by workenvironments, housing conditions, access to clean water, air, and healthy food, and level ofeducation and awareness of health hazards.1 However, the scope of this discussion is muchnarrower. I will not try to address these multiple variables influencing people’s health.Rather, I will focus on health care as medical care (various technologies and interventionsaimed to cure, treat, rehabilitate and prevent illness). My aim is to justify people’s claim-right to medical care and address how to prioritize competing claim-rights of differentgroups of patients, given the moderate scarcity of resources.

The first presumption of my position is that we cannot defend a claim-right to healthcare without justifying how we came to stating it. As Norman Daniels explained concisely:

Rights are not moral fruits that spring up from bare earth, fully ripened withoutcultivation. Rather, we are justified in claiming a right to health care only if it can beharvested from an acceptable general theory of justice for health care. The theory tells uswhich kinds of right claims are legitimately viewed as rights. (Daniels 1991, p. 201)

Elsewhere, I have developed a full account of sufficiency of capabilities as an alternativetheory of distributive justice in health care (Ram-Tiktin 2009, 2011; in progress).2 However, inthis paper, I present only the features of the theory that are most relevant to the discussion.

What is the moral basis of the claim that “people have a right to health care”? Health isone of the dominant factors (but not necessarily the most important) influencing the humanability to live a good life, that is, the ability not only to exist as a biological organism butperform various human functions (planning, communicating, creating, etc.). A just societymight provide its members with opportunities to acquire education, occupations, andmeaningful relationships, among others; however, the potential of human life is limited aslong as an individual lacks the basic capabilities to enjoy life opportunities because of somedisability or ailment that confines her to bed and limits her access to a good life.

According to Aristotle,3 a just social arrangement concerns the entire population and notjust a specific group. Furthermore, it concerns a variety of functions that contribute to goodhuman life. It is insufficient to consider only the allocation of goods, such as wealth,education options, and social position. A just social arrangement must consider humanfunctionality as a variable that influences the ability to live a good human life.

1 See, for example, Wilkinson (1996) and Daniels (2008).2 Ram-Tiktin, E, Distributive justice in health care: Sufficiency of capabilities approach (in progress).3 Aristotle (1998), Nicomachean Ethics, and as presented by Martha Nussbaum 1988, pp. 149–150.

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The proposed account of the right to health care begins from this view of just socialarrangement and is informed by Amartya Sen’s and Martha Nussbaum’s capabilitiesapproach.4 Following their extensive writings on the concept of justice, the secondpresumption of my account is that the currency of justice is human capabilities (notresources or welfare). Capabilities are things a person can do and be, that is, the kind ofactivities she can perform (including basic activities like eating and walking and complexones like political participation). An individual’s set of capabilities influences what she willbe, the content of her life plan, and whether she can successfully fulfill it. In this sense, thehuman capabilities of an individual influence her ability to live a good human life. Themore human capabilities one has and the more developed they are, the more one is able toperform various functions and have a wider opportunity to fulfill different life plans. Forexample, a three-month-old baby is able to consume breast milk or formula. As her teethgrow and she is introduced to other kinds of food, she is able to consume the various foodgroups needed for the human body, although she remains dependent on those who feed her.As she grows and acquires more capabilities and knowledge, she becomes able to prepareher own meals and gains independence in this sense.

Capabilities reflect the actual extent of positive freedom an individual can exercise(Nussbaum 2000, 2006; Sen 1980, 1993, 2009). A social arrangement that assures onlynegative freedom—being free from others’ interferences—is narrow and may not be just.The illiterate, handicapped, or homeless person may have negative freedom but may not befree to live life as they wish. A just society should take interest in the extent of its members’positive freedom, which is their actual ability to choose their life plan and take the stepsnecessary to realize it in the manner they find best.5

Nussbaum develops an account of capabilities, listing ten as central for individuals toachieve a flourishing life (1990). More specifically, she presents a good enough human lifethreshold, below which decent human life is not possible.6 The threshold, a sufficientariannotion, establishes a basis for constitutional principles that define what citizens are entitledto demand from their governments.

Here, I come to the third presumption of my account: claims of injustice can be madeonly by those beneath the sufficiency threshold. I follow Harry Frankfurt’s (1988) doctrineof sufficiency, which posits a qualitative and moral difference between better-offs andworse-offs. In short, I want to explain why we should forgo the demand for equality andtalk about sufficiency. When we look for the relation between equality and justice, weshould distinguish between formal principles and substantial principles of equality. Thereare two formal principles of equality: equality as universality and equality as impartiality (i.e.,Aristotelian equality). Equality as universality requires that we apply a given principle to all inan equal manner. This is what is behind the principle of “all citizens are equal before the law”.Equality as universality is regarded as a basic principle of rationality. Equality as impartialityguides us to treat people in an impartial manner, or, in other words, treat similar casessimilarly and dissimilar cases differently.

Formal principles of equality are basic requirements of any theory of justice and can befound in non-egalitarian theories like utilitarianism and libertarianism. What makes a theoryegalitarian, and problematic in my view, is the substantive principle of equality, that is,

4 See, for example, Sen 1980, 1985, 1990, 2009; and Nussbaum 1988, 1990, 1992.5 Of course, not every life plan and not every course of realization is considered legitimate in a free society.6 There is some ambiguity in Nussbaum’s writing, since, on the one hand, she wishes to achieve equality ofcapabilities, but, on the other, refers to a good enough human life threshold. However, I will not address thisproblem here.

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equality as comparability. This introduces a different concern regarding equality—itconsiders how people fare relative to others. According to Larry Temkin’s (2001)viewpoint, equality is an aspect of a broader issue of justice and fairness; thus, equalityshould be understood as comparative fairness. He states that it is bad—unjust and unfair—when individuals are worse off than others through no fault or choice of their own.However, he emphasizes that the worse-off condition is not always objectively orsubjectively bad; rather, those in that condition simply have less in comparison to others.

According to my account, our moral concern is toward qualitative rather thanquantitative differences among people. The fact that person A has better capabilities thanB (she can run 100 m in 10 sec and B in 20 sec) is not morally troubling as long as personB has the basic ability to walk. If people have the basic capabilities needed to live a goodlife, the quantitative differences among them are not a concern of justice. Therefore, statehealth institutions are not obligated to equalize people’s states of health, which is anunrealistic task anyway, but to guarantee them sufficiency of capabilities that will enablethem to implement their life plans and exercise positive freedom. In this view, only thosebeneath the basic human functional capabilities threshold level or in jeopardy of fallingbeneath (as will be explained later) have a claim-right to health care.

The fourth and last presumption of my account is that the discussion regarding the right tohealth care should start not with people’s alleged entitlements to health care, but with stateinstitutions’ obligations toward citizens. As stated, a just social arrangement begins withdefining what is required for a good human life. A legislator’s obligation is to establish thearrangements required to guarantee that people with different levels of functioning might livedecent lives. In scrutinizing health care as a concrete right,7 we ought to define what kind ofcapabilities (health-wise) humans require and what kind of obligations this imposes on statehealth institutions. Only after we have a clear understanding of what a just social arrangementin health care is, can there be discussion about a human right to health care. As BernardWilliams explained,

I am not very happy myself with taking rights as the starting point. The notion of abasic human right seems to me obscure enough, and I would rather come at it fromthe perspective of basic human capabilities. I would prefer capabilities to do thework, and if we are going to have a language or rhetoric of rights, to have it deliveredfrom them, rather than the other way around. (1987, p. 100)

In summary, the right to health care is a right to sufficiency of basic human functionalcapabilities. How dowe determine where to establish the sufficiency threshold? Andwhat are thebasic human functional capabilities? These questions will be addressed in the following sections.

3 The Content of the Right to Health Care

The right to health care is a derivative right that stems from state institutions’ duties towardcitizens to guarantee the basic capabilities needed for healthy functioning. What is “healthyfunctioning” and what do we mean when we talk about health and illness? These are complexnotions and, in this paper, I will present only the definition of health: An expression ofphysiological and psychological capabilities that advance the goals of an individual in his or hersocial environment.

7 According to Ronald Dworkin, concrete rights “are political aims that are more precisely defined so as to expressmore definitely the weight they have against other political aims on particular occasions” (1977, p. 93).

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Health and illness have a value-free aspect – the physiological and psychologicalcapabilities characterizing human beings. Every species has its own unique typical function.In each, there are differences between different reference classes, that is, differences both inkind and in degree for the two sexes in different stages of life (for example, the ability towalk or to produce sex cells). Health and illness also have a value-laden aspect, in thatsocial-cultural-political meanings are attached to different conditions. For example,infertility in women after a certain age may not be considered an impairment in somesocieties.8

In identifying the basic human functional capabilities, I explored human physiology andidentified nine key systems of physiological and psychological capabilities necessary forindividuals to lead good lives: thinking and emotions, senses, circulation, respiration,digestion and metabolism, movement and balance, immunity and excretion, fertility, andhormonal control. Each system of capabilities is important in itself, and a higher capabilityin one system does not invalidate someone’s claim for compensation if there is somefunctional deficiency in another system.

The state’s institutions have a duty to assure that every individual has the entire range ofcapabilities needed to exercise positive freedom to the furthest extent possible. In otherwords, state institutions have a duty to elevate those beneath the sufficiency threshold to thethreshold level to the extent that their condition, current medical knowledge, and availableresources permit. However, this statement requires three important clarifications.

First, how do we determine where to set the sufficiency threshold, and how do we determinethat someone is not healthy enough? Delineating this threshold comprises two steps. First, weneed to determine whether someone’s capability is within the norm values of her typicalfunction reference class (sex and age). Second, we need to determine whether someone’sdeviation from normal typical function negatively affects her ability to execute her life plans.

Here is an example of the digestion and metabolism capabilities system. Iron (Fe) is oneof various metals required for human function. We acquire iron from various types of food.Iron is absorbed in the intestines and transferred to the blood to be connected to a proteinnamed transferrin, which will then transfer it to the cells and mainly to the bone marrow forthe production of red blood cells. A surplus of iron is connected to a different protein,ferritin. Normal levels of transferrin are 170–370 mg/dl in men and women, and normallevels of ferritin are 25–274 ng/ml in adult men and 11–122 ng/ml in women until the ageof menopause. Low levels of ferritin with high levels of transferrin indicate iron deficiencyanemia. High levels of ferritin with low levels of transferrin indicate excess iron that mayresult from the destruction of red blood cells (due to thalassemia or vitamins deficiency),liver malfunction, or hemochromatosis (abnormally high levels of iron absorption from theintestine due to a genetic defect).

Deviation from iron-binding protein norm values negatively affects human function. Inthe case of iron deficiency anemia, the individual experiences some difficulty in performingphysical activities and, in extreme cases, arrhythmia. High levels of iron are dangerous andtoxic when they accumulate in the liver, joints, pancreas, and heart, leading to livercirrhosis, hepatoma, diabetes, arthritis, and cardiomyopathy. Those deviations from normvalues decrease the individual’s ability to exercise positive freedom and fulfill life plans. Hence,state medical institutions have a duty to provide the health care needed to compensate for suchmalfunction.

8 Because of the two distinct aspects of health and illness, I presented four definitions as part of my theory:“health” and “illness” for the value-laden aspect, “intactness” and “malady” for value-free aspect. For a fulldiscussion and definitions of those concepts, see Ram-Tiktin (2009), chap. 6; in progress (see note 2).

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The second important clarification required is related to the following question: shouldwe use one sufficiency threshold for everyone? Since it may not be possible to compensatefor some conditions sufficient to reach the threshold level (for example, severe retardationor fatal illness), should we consider setting a lower threshold for the most unfortunatemembers of society? The answer is an emphatic “no”. As we learn from the previousparagraphs, the threshold is set in accordance with norm values typical for the humanspecies. Setting a different threshold for some members of society might suggest they arenot considered equal members and hence may not be entitled to equal consideration inhealth care resource allocation.9 Undoubtedly, some illnesses or impairments can never becompensated for to the threshold level I have set, and trying to compensate individuals withthose ailments would consume a huge amount of the resources available for allmembers of society. Therefore, state institutions ought to improve their existence asmuch as possible in order to guarantee a reasonable positive freedom and life withdignity. In the following section, I will provide a prioritizing principle for competingclaim-rights beneath the threshold.

The last and third clarification I want to make regarding state institutions’ duty toimprove the health status of those beneath the threshold addresses how the state duty affectsindividuals’ autonomy. The fact that the state has a duty to provide health care does notimply that individuals have a duty to be treated but, rather, a right to ask for medical care ifthey wish to receive treatment. Both in Nussbaum’s equality of capability approach and inmy suggested sufficiency of capabilities approach, the focus is on capabilities and notactual function. Just social arrangement takes into account people’s capabilities to exercisetheir positive freedom and fulfill their life plans if they wish to and in the manner in whichthey wish. Both approaches ascribe great importance to individual autonomy.

Summarizing the main ideas presented above, the right to health care is a derivative rightstemming from state medical institutions’ duty to guarantee sufficiency of capabilities. Allhumans are entitled to basic human functional capabilities, at least to the threshold level,which enable them to live dignified lives and implement their life plans. Although someailments can never be cured and some handicaps can never be fully compensated for, onethreshold should be used to define the equal entitlement of all members of society tomedical care.

4 Setting Priorities Beneath the Threshold

In a situation of scarcity (even one of only modest scarcity), we must decide which group ofpatients beneath the sufficiency threshold has a stronger claim of justice to health careresources. I will present a prioritization principle and demonstrate how it could help decidebetween groups of patients. I will not discuss the supportive arguments behind thisprinciple, but some general remarks are required to understand the proposed principle.

According to the sufficiency of capabilities approach, people located further beneath thethreshold are considered worse off than those located closer to the threshold due to eithermore impaired capabilities and/or more severe deviation from the norm values of certain

9 Nussbaum (2006) also addressed that question and firmly asserted that we should use only one threshold.She provided two arguments that align with my argument. The first is strategic: If we set a lower threshold,the medical institutions will make less effort to improve those individuals’ well-being. The second isnormative: one threshold for everyone reminds us of the dignity owed to both the mentally and terminally ill.It obliges us to see them as equal members of the human community entitled to a good human life despitetheir impairments.

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capabilities. In fact, beneath the sufficiency threshold, there is another threshold—thepersonhood threshold.10 Patients who fall beneath the personhood threshold might losepersonhood-making capacities. The sufficiency threshold represents the level below whichgood human lives are not possible due to ailment, pain, disability, or malfunction. Under thesufficiency threshold, human lives are difficult and limited, yet still possible. Under thepersonhood threshold, human lives are not possible, either because the person dies or losessome fundamental capabilities basic to human life, such as the ability to perceive orcommunicate (even by eye or finger movement) when, for example, a person falls into a coma.Hence, if we can prevent someone from losing these basic human capabilities by, for example,testing newborns for Phenylketonuria (PKU), then there is a supreme moral urgency to do so.

When prioritizing competing claims of different patients beneath the sufficiencythreshold, the first factor that must be considered is the severity of one’s condition, whichdepends on what capabilities one lacks and to what extent. It should be noted that pain isanother factor influencing the severity of one’s condition, since pain limits one’s ability tofunction. The more one has to lose capabilities-wise or the more limited one’s ability toexercise positive freedom, the stronger one’s claim to health care resources.

My version of sufficiency is not absolute. Priority will not be given to the worst off if thepredicted benefit to her is trivial. The size of the benefit must also be taken into account andpriority given to those who will gain significantly from treatment. Significant improvementis any improvement that enables an individual to restore her positive freedom and live adignified life.

How should we prioritize between one worse off patient who will benefit tremendouslyfrom treatment (let’s say she would regain full health) versus 10,000 patients locatedbeneath the sufficiency threshold who need a dental filling? Although the size of the benefitfor each individual is relatively small, the cross-personal aggregated utility of the entiregroup is much higher than the utility of the worse off patient.

According to the sufficiency of capabilities account, our moral commitment is to thevariable of “benefit size” and not “number of beneficiaries”. The moral motivation thatforms the basis of the theory is to compensate for lack or dysfunction of capabilities and notto get as many people as possible to the threshold level. The doctrine of sufficiency (at leastunder the sufficiency threshold) is not committed to the utilitarian principle of maximizingbenefits for the greater number. The claim-right for health care resources is stronger themore capabilities one lacks and/or the greater deviation one has from the norm values ofsome capability, as long as the potential benefit to her is not trivial.

In this paper, I wish to focus on how to prioritize between groups of patients locatedbeneath the threshold because of brute bad luck or due to a freely chosen unhealthy lifestyle. However, before discussing this distinction, I will present the prioritization principleand apply it to a hypothetical case.

The prioritizing principle beneath the sufficiency threshold is number and benefit-sizeweighted sufficiency:

When allocating resources in the sphere of health care, priority should be given toindividuals below the basic human functional capabilities threshold. Below thisthreshold, benefiting people matters more the worse off those people are, the greaterthe size of the benefit in question, and the more of those people there are. The size ofthe benefit has more importance than the number of beneficiaries.

10 Yitzhak Benbaji (2006) presented a multilevel, non-absolutist, homogeneous version of the doctrine ofsufficiency and listed three thresholds: personhood, pain, and luxury.

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Let us assume that a given amount of money is available to benefit one of two groups ofpatients. In group A, there are 1000 children aged 5 with low secretion of growth hormone.Without treatment, these children will reach adulthood with a height of approximately1.50 m. If treated with synthesized growth hormone, they could reach a reasonable heightof 1.60 m. In group B, there are 100 lung cancer patients (composed of smokers and non-smokers) needing a drug that would prolong their lives by 5 years. Which group of patientsshould be given priority?

We should give priority to group B for twomain reasons. First and foremost, they are furtherbeneath the sufficiency threshold; the impairment of their capabilities systems is graver than theimpairment of those in group A, as is the presence of pain accompanying their condition, andthe fact that, without treatment, they will fall beneath the personhood threshold and die. Thesecond reason for giving priority to lung cancer patients is the potential size of the individualbenefit. Although the children in group A will potentially benefit from improved height foranother 65 years, and the lung cancer patients will benefit from an additional 5 years of life,what matters is not only the duration of the benefit but the kind and extent of the benefit in termsof repaired capabilities and ability to exercise positive freedom.

Certainly, short stature has a negative impact on quality of life, at least in western societies.Short children might experience teasing and contempt from taller children, and, in adulthood,might suffer from low self-esteem. In some societies, shortness has negative connotations whiletallness connotes strength, health, and beauty. Some studies show women prefer dating tall men(Pawlowski and Jasienska 2005; Kurzban and Weeden 2005), and, interestingly, it seems thatheight also plays its role in wages, as “the tallest quarter of the population has a median wagethat is more than 13% higher than that of the shortest quarter” (Perisco et al. 2003, p. 3).Thus, treatment with growth hormone could improve the children’s quality of life to a certainextent, although they will still be considered relatively short. Still, it cannot be said thatshortness limits someone’s positive freedom considerably. In contrast, treatment for lungcancer patients would decrease their pain and dependency on others in daily activities andenable them to return to work or hobbies and engage in meaningful relationships. Withouttreatment, the impact on their positive freedom would be total.

In this case, it is evident that, although the number of beneficiaries in group A is greaterand thus the cross-personal aggregated utility is higher than the aggregated utility expectedfor patients in group B, priority should be given to the latter since they are worse off andthe potential benefit to each one of them is far greater.

5 Sufficiency of Capabilities Versus Luck Prioritarian Health Equity

In the above hypothetical case, one might object to my conclusion on the grounds that Ihave overlooked one important factor—the reason why those patients became ill. I willconsider Shlomi Segall’s (2009) account of health equity as a possible rival to my accountand try to demonstrate why, in my view, the sufficiency of capabilities leads to moreplausible conclusions.

According to Segall, luck prioritarianism consists of two premises:

a) Luck egalitarianism: “it is morally bad if some are badly off through no fault or choiceof their own” (Arneson 2000, p. 340).

b) Prioritarianism: “the moral value of obtaining a benefit for a person is greater […] thelower the person's lifetime expectation of well-being prior to receipt of the benefit”(Ibid., p. 343).

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Segall stipulates his prioritization principle in the following manner:Prioritizing the opportunity for health of the worse off:

Fairness requires assigning priority to improving the health of an individual if she hasinvested more rather than less effort in looking after her health, and of any twoindividuals who have invested equal amounts of effort, giving priority to those whoare worse off (health-wise). (Segall 2009, p. 119)

Segall explains that, although it may seem counterintuitive to consider efforts to sustaina healthy life style before considering the severity of an individual’s medical condition, hisprinciple is “a principle of justice in health […] not a triage principle” (Ibid., p. 119). As aprinciple of justice, it guides us first to neutralize negative effects of brute bad luck. In thatsense, Segall remains committed to the egalitarian slogan articulated by Temkin, as statedpreviously: “it is bad for some to be worse off than others through no fault or choice of theirown” (Temkin 2001, p. 330). Segall frees himself from the difficulties egalitarians face byexplaining why equality in health has a negligible instrumental value and could beabandoned in favor of prioritarianism.

To contrast Segall’s principle with mine, let me restate the hypothetical case with slightalterations. Suppose a given amount of resources could be invested in one of two health policiesfor the benefit of two equal-sized groups of patients.11 Group A comprises low-stature children(age five); half of them are short due to low level of growth hormone (henceforth will belabeled A1) and half are offspring of short parents (labeled A2). Group B comprises lungcancer patients; half of them are heavy smokers (labeled B1) and half never smoked acigarette in their lives and maintained a healthy lifestyle (labeled B2).

Recall that, according to my principle, priority should be granted to group B because lungcancer patients are worse off than children in group A (they remain worse off even if wecompare their condition to the future condition of the children as short adults) and the size of thepotential benefit is greater for each patient in group B. According to the sufficiency ofcapabilities approach, questions of personal responsibility are irrelevant for macro allocations.12

According to Segall’s luck prioritarian health equity account, first we should determinewho is in poor health due to brute bad luck and who should be held accountable for notmaintaining a healthy life style. Patients in A1, A2, and B2 should have priority over B1.However, money can be invested only in one policy. (Assume the money is not only fortreatment but also facilities, diagnostic techniques, training health practitioners, research,etc.). Which group should have priority? Should we give priority to group A because twiceas many of the patients in this group have brute bad luck than those in Group B? Notnecessarily. As Segall states, if both patients invested equal effort in maintaining healthylifestyles, priority should be given to the worse off.

This invites four challenges to Segall’s account. First, how do we determine who isworse off? Second, how do we determine who invested more effort in maintaining a healthylifestyle? Third, does number of beneficiaries count? Fourth, under what circumstances is itjustifiable to hold someone accountable for not maintaining a healthy lifestyle?

Segall does not specify criteria for determining who is worse off for the purposesof medical treatment. He states that we need to “distinguish ‘need’ from ‘urgency’ asthe determinants of the worse-off position” (Segall 2009, pp. 200–1), but leaves the

11 For simplicity, I am keeping the number of beneficiaries constant, thereby focusing on the more relevantcriteria of the discussion.12 Personal responsibility for one’s health could be relevant in micro-allocation (that is, in prioritizing amongpatients of the same group), but I will not discuss this aspect in the present article.

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question open. I suspect he may use the notion of “meeting basic needs” and thus maydetermine the worse off to be the one with more unmet basic needs, but that will beexplained later.

How would Segall determine who has invested more effort in maintaining ahealthy lifestyle? Without going into the complexity of measuring efforts and inter-comparisons, how can we address efforts of patients in A1, A2, and B2? We couldcertainly praise patients in B2 for maintaining a healthy lifestyle and compensate them fortheir poor luck, but what about the five-year-old children in A1 and A2? It would not beinaccurate to assume that, like many kids their age, they would have chosen to eat candyand junk food all day if given that option. I suspect Segall would not hold themaccountable for investing lesser effort (or no effort at all), since we do not expect suchyoung children to be aware of health hazards. However, what about their parents? Shouldparents of A2 patients be accountable for falling in love with a short person, ignoringtheir own genetics, and thus failing to save their child from poor height potential? Thisdoes not seem reasonable and Segall likely would not support such a viewpoint. If wehold neither children nor their parents accountable, does it mean children should alwayshave health care priority? Our sympathy is with sick children, but should they beprioritized at any cost?

This leads to the third question. Would we give absolute priority to 3 children with a rarefatal genetic disease over life-saving medication for 10 adults who failed to maintain ahealthy lifestyle? What about 1,000 adults, or 1,000,000? If one answers affirmatively,believing, as Temkin does, it is always “bad for some to be worse off than others throughno fault or choice of their own”, would one still give absolute priority to those 3 childrenover 10 (or 1,000 or 1,000,000) adults who failed to consistently maintain healthylifestyles? Does an adult’s entitlement to medical care significantly weaken if, in 10 out of50 years, they failed to eat well and exercise?

Here, we come to the fourth question regarding Segall’s account. Assuming I agreethat A1, A2, and B2 have equal entitlement to health care resources that is stronger thanB1’s entitlement. (Recall that I do not actually agree, since, capabilities-wise, A1 and A2are not worse off than B1 and B2). Would it be justified to let B1 patients die withouttreatment (or any other patient with a self-inflicted disease), just because they did notmaintain a healthy lifestyle? Today, no one can seriously say she does not understand thehealth hazards related to smoking, so it is reasonable to hold B1 patients accountable fortheir poor health. However, do we really have a comprehensive understanding of howpeople conceive and react to life’s threats? Do we know how much of our reaction todangerous activities is affected by genetics over free will? Would we still hold B1 patientsaccountable for their poor health if we knew they had jobs that did not enable them tohave lunch breaks, causing them to conveniently suppress hunger by, say, drinking coffeeand having a cigarette? What if patients are in poor health because they live and work inplaces where healthy food (like vegetables, fruit, or low fat meats) is less available? Whatif they are single mothers who cannot afford to leave their children to go jogging? Whyshould B2 patients receive priority over B1 if, sad as it is, B2 had brute bad luck andbecame ill, when it is possible B2 had the brute good luck to be born to a morecomfortable social class and have opportunities to work in companies that providedhealthy meals and gym facilities to employees? If we try to attribute personalresponsibility to people’s choices and behavior, we must go back and see the role playedby luck, which may be an impossible task.

In order to consider these issues in the right light, it must be emphasized that Segall doesnot attribute blame to patients who fail to invest in maintaining their health. He ensures that

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we do not think that a luck prioritarian health equity account would leave patients to die orsuffer ill health, for we have a duty to meet their basic needs. He writes,

The requirement to meet basic needs whomever they are visited upon can be seen asfollowing from individuals’ equal respect society ought to show towards them…This is amoral requirement that is external, and prior (in the sense of being more fundamental), tothe one of egalitarian distributive justice….Notice that by supplementing the require-ments of egalitarian justice with those of meeting basic needs we are thereby adding alayer of sufficientarian distribution to the egalitarian one required by luck egalitarianism.(Ibid, pp. 68–9)

Given this explanation, I propose the following question: If Segall and other luckprioritarians or egalitarians acknowledge the requirement to provide everyone the most basicneeds when needed, with no regard to how much effort they put in keeping their health, whyformulate a theory of luck prioritarian justice? As I have tried to show, the difference betweenluck and personal responsibility criteria is not always clear and may complicate ourprioritization efforts. Furthermore, if Segall addresses basic needs by adding a layer ofsufficientarian distribution, why not start with this and then discuss what is at the heart of justicein health care? It is simply our duty to assure everyone has a sufficient level of basic humanfunctional capabilities, as far as her condition, our medical knowledge, and resources allow.

If Segall believes that meeting basic needs is a moral and fundamental requirement of justice,why would he not use a notion of capabilities that better describes the kind of health needspeople actually have? In his book, Segall addresses the case of short children who either havelow growth hormone secretion levels or are offspring of short parents. Segall explains that, inthe case of low secretion levels, providing synthesized growth hormones is a form of medicaltreatment, since it compensates for a health deficit. On the other hand, regarding short offspringof short parents, providing the hormone is a form of enhancement that compensates for genetics(and not for a medical condition), which is a different matter of brute luck.

According to the sufficiency of capabilities account, both groups of children are entitledto synthesized growth hormones as a form of treatment. Recall the definition of health: Anexpression of physiological and psychological capabilities that advance the goals of anindividual in his or her social environment. Therefore, although shortness is not a conditionof physiological dysfunction, in some social environments, it is considered a disadvantagethat interferes with the ability to advance one’s goals. Thus, the reason those children arebeneath the threshold level is irrelevant to their entitlement to medical care, whether it isdue to low secretion of growth hormones (A1 patients) or genetics (A2) that placed them ina socially disadvantaged position.

In my view, my account presents a simpler, more straightforward explanation. Bothgroups of children are beneath the threshold and that is why they are entitled to health care.Examining the difference between treatment and enhancement in this case is not necessary.

6 Setting Priorities Above the Sufficiency Threshold

Allegedly, the state has no obligation to provide health care to those above the threshold, asno claims of justice arise among them (i.e., people who have enough). As explained, statehealth institutions have a duty to ensure individuals receive the requisite basic humanfunctional capabilities needed for a good human life. Therefore, the state’s duty is not onlyto provide health care for those beneath the sufficiency threshold, but also to those inconcrete jeopardy of falling beneath the threshold. This section will discuss the various

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treatment and services possible for those above the threshold and provide a principle forprioritizing between them.

There are five types of health care services for the population above the threshold:

1. Health education that gives information about healthy lifestyles, different diseases,such as transmission, diagnosis, and treatment.

2. Preventative treatment and services that helps populations above the threshold toprevent illness, including vaccinations or for tests for early discovery of illnesses, suchas mammography for breast cancer or Elisa testing for detection of HIV. Different typesof preventative service include monitoring air, water, and food quality.

3. Follow-up treatments for patients recuperating from disease, for example, cancer orheart surgery, or for normal development of newborns and children.

4. Enhancement interventions that allow individuals to fully exercise their humanfunctions and even deviate from the statistical norm of the species. In this discussion,the term “enhancement interventions” refers only to interventions made by medicalinstitutions by means of surgery, genetic intervention, hormonal therapy, etc., and notto enhancement interventions that are not of a medical nature, such as math lessons.13

5. Plastic surgery for aesthetic, non-medical considerations such as surgery to changebreast size due to personal preference but not for valid medical reasons (such asreducing excessively large breasts that affect body stability and the spine) orreconstructive breast surgery after mastectomy.

These five types of treatments and interventions can be grouped in the following manner:

I. Preventative treatments: Items 1–3 are essential treatments and interventions required toprevent individuals from dropping beneath the threshold level.

II. Luxury treatments: Items 4 and 5 are “extra” treatments. Individuals opting for theseare not in danger of losing functional capabilities and do not suffer physical oremotional pain.14

This classification shows that preventative treatments (groups I) are treatments in thepresence of need while luxury treatments (group II) fulfill desires and preferences. The state isobliged to provide services in group I in order to prevent individuals from falling beneath thethreshold. If patients are about to fall beneath, they have a claim-right to health care in order toprevent reduced well-being. Allegedly, according to the number and benefit size weightedsufficiency principle (presented in Section 3), claim-rights above the threshold, in the case ofpreventative treatments, are weaker than claim-rights of individuals beneath the threshold, butthis is not always the case.

Consider the following example. Beneath the threshold, a group of patients needs treatmentfor psoriasis. Above the threshold, a large population has a high risk for breast cancer. Earlydiscovery and treatment at an early stage will prevent a worse prognosis and, in some cases,even death. Although the psoriasis patients are beneath the sufficiency threshold, they are in nodanger of falling beneath the personhood threshold due to their illness, while the future cancerpatients will suffer more severe degradation of functional capabilities and some of them might

13 Although I will not discuss it here, there is an important debate on the distinction between treatment andenhancement and what procedures are considered enhancement. See, for example, Daniels (2008), Chap. 5and Segall (2009), Chap. 9.14 In cases of plastic surgery due to aesthetic considerations, if there is evidence that the patient isemotionally unsound and experiences considerable difficulty integrating socially due to his/her appearance,then he/she should be considered located beneath the threshold and thus having a claim-right to plasticsurgery.

348 E. Ram-Tiktin

die. Priorities in medical care should be determined not only on the basis of immediateconsequences but also on possible future outcomes. In situations like this, priority should begiven to people above the sufficiency threshold who might fall beneath that threshold, or,worse, beneath the personhood threshold.

Luxury treatments are preferences that fulfill desire, contrary to treatments in group I,which satisfy needs. Just social arrangements should guarantee basic human functionalcapabilities. Satisfying personal preferences or improving health status above the thresholdis not a requirement of justice. Therefore, the principle for allocating health care resourcesabove the sufficiency threshold consists of two premises:

1. Needs satisfaction is morally more important than preferences satisfaction.2. In the presence of sufficiency of capabilities, the moral value of the benefit is greater,

the greater the size of the potential benefit and the greater the number of potentialbeneficiaries.

Therefore, my proposed need-weighted utilitarianism principle is described below:

When prioritizing groups of patients above the threshold, priority should be given topreventative treatments over luxury treatments. In each of these different treatments,benefiting people has greater moral importance the more of such people there are andthe greater the size of the benefit in question.

Are there any circumstances in which it would be morally important to provide luxurytreatments and not preventative treatments? In order to answer this question, we must examineluxury treatments more closely. Recall that this group of treatments constitutes two differenttypes of interventions. Enhancement interventions (type 4 in the list above) contribute to theperson herself but may also contribute to humanity as a whole in an indirect manner.Engineering children with high IQs or people with excellent physical abilities that maypotentially make them immune to various diseases or ageing processes contributes to humanityand not just the individual. On the other hand, plastic surgery (type 5) contributes to theindividual, and a possible indirect contribution to society is much more limited andquestionable. For these reasons, priority should be given to type 4 over type 5 interventions.In the absence of claims to justice, it seems that we should be utilitarians—that is, public fundsshould be directed toward the greater benefit of as many people as possible.

Are there any circumstances in which there are reasons to prioritize enhancementinterventions over benefits to people beneath the threshold (or patients above the thresholdbut in jeopardy of falling beneath) who have a just claim to health care resources? I willshow that there could be circumstances in which the aggregated total utility fromenhancement services is dramatically greater than benefits to people beneath the threshold,and we might find good reasons not to prioritize the worse off. Recall that the approach isnon-absolute, and size of the benefit and number of beneficiaries also matter.

Consider the following imaginary scenario. Assume that, through a cheap and safegenetic intervention, we can make populations immune to diseases. Assume, also, thatthis kind of intervention is effective only on already healthy people (that is, thosecurrently above the threshold). Should we prioritize millions of people through thatkind of enhancement intervention or benefit hundreds of thousands of people who arebeneath the threshold? Although sufficiency is about giving priority to those who areworse off, the approach is non-absolutist. Hence, when the possible benefit for manyothers is so significant, there is justification for not giving priority to the worse-off.However, as should be understood from this imaginary scenario, these situations donot reflect the usual trade-off problems.

Right to Basic Human Functional Capabilities 349

7 Conclusion

According to the sufficiency of capabilities approach, people have a positive right to health care.This is a derivative right stemming from the duty of state health institutions to provide justsocial arrangements that help guarantee that every individual has a sufficient level of basichuman functional capabilities for a good human life and for exercise of positive freedom.

Legitimate claims to justice are those presented by individuals beneath the personhoodthreshold, beneath the sufficiency threshold, or in jeopardy of falling beneath them. Intrading-off competing claim-rights to health care, the severity of patients’ condition,potential size of the benefit, and number of beneficiaries must be considered. Under thesufficiency threshold, a claim to justice is stronger the worse off a person is, that is, themore she lacks capabilities to a greater extent or, the more she is in jeopardy of losingpersonhood-making capacities, and/or in the presence of pain that limits her ability toexercise positive freedom. In the presence of capabilities insufficiency, our moral obligationis toward the size of the benefit for each patient and not to the number of beneficiaries.

Above the sufficiency threshold, priority should be given to those in jeopardy of fallingbeneath the threshold over those who require luxury treatments. The allocation principle forthose above the threshold is need-weighted utilitarianism. Hence, under ordinary circum-stances, we should prioritize needs satisfaction over preferences fulfillment according to theutilitarian rule of greater benefit to the greater number.

Personal responsibility and effort extended to preserve a healthy lifestyle are not relevantcriteria for people’s entitlements to health care and should not be taken into account in themacro-prioritization process.

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