A Right to Health? (Oliver O’Donovan)
If we refer to it as a slogan, that need not be in a pejorative sense. It means simply that “the right to health” does useful duty as a shorthand reference. A cluster of concerns are summed up compactly; it gestures out towards a whole line of argument remaining to be traced. If we discuss “the right to health” as a slogan, we do not discuss anything we are actually doing or proposing to do. We do not discuss redistributing resources or maximising choice. We discuss how we think and speak about what we are doing and proposing to do – though since the “how” has an effect upon the “what”, our discussion may be of practical importance, not merely a philosophical indulgence. A slogan is a tool of communication, and the question we may put to it is what and how it communicates. A slogan, too, is intended to communicate with some immediacy, catching the attention of those who might not be attending. It therefore tends to be artful, and with the art goes an element of simulation and dissimulation, one thing highlighted, another left in the background. A feature of the slogan’s art is a shocking impudence. A small explosion of nonsense at our elbow startles us into attention and makes us lift our heads to scan the horizon.
The slogan, “the right to health”, is, indeed, astonishingly cheeky. It is obvious to anyone who is half awake that no one has a right to health. Not, at any rate, in the sense that one may have a right to those things we are commonly said to have rights to, as in the canonical phrase “life, liberty and the pursuit of happiness” from the U.S. Declaration of Independence. Rights are aspects of social relations, and since social relations are what we make of them, rights are essentially negative, a floor rather than a ceiling for our social aspirations. We are not to be killed, not to be imprisoned, not to be interfered with (especially by robbery) in making our livelihoods; given those protections we are free to marry or not to marry, to study at University or not to study, to trade on the stock market or to put our money in a mattress, to travel or to stay at home. Health, on the other hand, is not an aspect of social relations; it is a function of a person’s bodily constitution prior to any social interaction. True, some health-problems are caused by other people’s wrongful behaviour, those created by knife-wounds, for example. I can have a right not to be caused such problems. But in no sense can I have a right not to be born with leukemia. I may, perhaps, assert a right to such treatment for leukemia as is generally available, but I can assert no right to vanquish the illness for good and all, since nobody could satisfy such a right.
Attempts to analyse slogans can seem humourless, taking too literally something thrown off with a laugh and a swagger. But that laugh and swagger, especially when repeated on all sides, may not be innocent. Something is being suggested, something vast and important enough to require paradoxical communication. What? That any illness is susceptible of alleviation by the right treatment? That leukemia could become a curable illness, and deserves more research-funding? That all illnesses are in principle curable? Here it all becomes vague. The vagueness is possibly an advantage to those who use a slogan to campaign with, since it allows them a great deal of flexibility with their practical agenda. But for those of us who are carried along by it it means that it has a life of its own, and we may never be clear as to quite what is being suggested. That is one reason why from time to time all slogans need to be examined.
I regard this slogan as a lying slogan, not because of its paradoxical form (for slogans may surely be granted their art), but because the hidden suggestion it makes is false. Indeed, I think it a doubly lying slogan, with two bold and impenitent falsehoods contained in it, one about “the right”, the other about “health”. Let me comment briefly on each of these.
“The right” to health is one of the many current coinages that extend the notion of proprietory right beyond its paradigm negative instances, those that affirm the legal defence of the individual subject against wrongful attack or interference, to the point of asserting an immediate claim of the individual to positive social goods. The proliferation of such expressions gives voice to an idea of what society is supposed to be, and can even be taken to legitimate efforts to change society from what it necessarily is to conform to an abstract ideal of what it might be. The idea is that the social system proves its reality exclusively by meeting the demands individuals make upon it. Our membership of society is primarily a power to assert demands on the whole of which we are part. We do not have to work, we do not have to make sacrifices, to be worthy of benefits of membership. We have only to utter our demands. It is the view of society that might naturally be assumed by a child.
“Health” is then understood as a good to be demanded of, and deliverable by, a social system. It must be possible for my “right to health” to be met by society – for how otherwise could it be a right? – but it can be met only by prescriptions, drips and hospital beds. These, then, must be what I demand when I demand health, not energy and mobility, breath in the lungs and a lively appetite. An inflation of the idea of “right” is thus accompanied by a deflation of the idea of health, until the two dovetail nicely together in a possible techno-bureaucratic programme of provision. It is the view of health naturally assumed by a chronic invalid, so that we might conclude that the slogan taken as a whole offers what might be looked for by an invalid child.
Health is thus re-imagined: it is no longer “being well”, but “doing well” (by which, paradoxically, we mean doing nothing much at all!) With the occlusion of a transcendent meaning to our lives, all kinds of natural goods become occluded, too. To “be well” is to be mobile, energetic, active. To “do well” is simply to consume my fair share, or more than my fair share, of available medical aids and supports. The reduced concept of health stands in an interesting relation to the famously expansive definition of health propounded by the World Health Organisation: “a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity.” Both the inflated and the deflated conceptions of health ignore the relation of health to the spiritual goods, freedom, wisdom, virtue etc., for which each of us alone can be responsible in our own case and no one shares the responsibility with us. Health is not a spiritual good, but it is a platform from which we launch out upon them, to live our own lives and pursue our own tasks.
Among the spiritual goods must be mentioned the freedom, wisdom and virtue to confronts death. But death has no place in the reduced idea of health. Some of the evidence presented for inequality of health-care has taken the form of divergent local statistics for the average age of death. Maps are drawn, we are told, demonstrating the years of life-expectancy lost or gained by a simple journey on the London Underground. There are at least two reasons for viewing such evidence with suspicion. One is that in a mobile society the age of death in a place is related only indirectly to the life-expectancy of those who live in that place. People do not die where they are born and live. And since those moving into a locality can carry the local average up or down by bringing a low or high life-expectancy with them, the age of death in a place is even less directly related to the quality of health-care practised there. That first suspicion, then, is directed to the meaning of local statistics, and would not be effective against an argument based on changing national statistics. A second and more fundamental ground of suspicion touches the use of life-expectancy itself as a measure of health-care: its value diminishes as life-expectancy approximates the “right time to die”. A general increase of average life-expectancy from 48 to 52 might suggest some success in dealing with major health-problems, but what would an increase from 88 to 92 suggest? From the point of view of real health, the health that we “enjoy”, it might be inconsequential.
It is a mistake, then, to talk about health without remembering that there is, though loosely-defined – even the Psalmist was only prepared to state it within a margin of ten years – a right time to die. We always do fail to remember it, of course, and that is because of an inherent paradox in our existential relation to our death. At any given moment each one of us is convinced that now is not the right time to die; yet the suggestion that our lives might be prolonged indefinitely appals us, and for excellent reasons. Living humanly for very much longer than humans normally live is something we have no conception of. It would be terrible to be forty in a world where most people lived to a hundred and eighty, and equally terrible to be a hundred and fifty! Our whole experience of time and action is geared to an expectation of maturing, aging and dying within a certain span. If the whole cycle were to be strung out, and instead of simply being old for much longer we could be young for longer and mature for longer, too, then we would probably simply slow down and take twice as long over everything. What we would not do is what in our greediness for life we always imagine we would do: experience more and accomplish more. In the current climate only the advocates of euthanasia (to whose simplistic and despairing solutions we have every reason not to entrust ourselves) are prepared to speak in public about a right time to die. It is important that we should all learn to do so, and in our health-care planning should have this horizon before us, so that we attend more urgently to ailments that typically blight the life of the young than to those which terminate the life of the old.
So much for what “the right to health” suggests. Who needs this slogan? Who communicates through it with whom?
We live in an age in which the traditional political conceptions of the relation of the state to the individual have seemed to become increasingly meaningless in the face of the huge extension of technological control over life and death. We have, by default, come to conceive of society as a relation between providers and consumers, the ruler-ruled principle which understood government as a task of justice having now become flattened out into a seller-buyer principle that it understands it as a market. In speaking of a right to health, providers communicate with one another, calling on one another to rise to the demands of their role. For those who bear responsibility for health provision have increasingly become deprived of their traditional motivators. Compassion, which drove the Samaritan to care for the wounded traveller, may still operate in the emergency wards, where individual professionals confront the needs of individual patients directly. But with the vast number of those who manage health-care from a computer screen, and deal with patient-records rather than patients, nothing can be stirred up by strumming on that harp. Equally, the sense of the high responsibility of privilege which once accompanied the exercise of powers of government has been drained away by the routinisation of the bureaucratic system.
And so we hunt around for some way of expressing a residual moral perception in the desert of lost meaning that there remain urgent responsibilities that impose themselves upon us inescapably. The desperate language of a generalised “right” is the only language apparently left to us to do this work. I am moved to do something for people not because I care for them, not because it is entrusted to a privileged role I occupy, not because I love God and see his image in their faces, but because they have a right. The force of the “the right to health” is thus the force of an irreducible moral compulsion that we have forgotten how to articulate intelligibly as a rational motive. And in this it bears all the marks of the Mosaic law as St Paul described it in 2 Corinthians 3: it has an oppressive weight, it is shrouded in impenetrable mystery, and in the end its power over us will prove to be fading and transitory.
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