On Reasonable Avoidability and Lifestyle Diseases[1]
Martin Marchman Andersen, CESEM, Copenhagen University
Work in progress: please do not quote!
Introduction
Epidemiological research is pointing to a number of diseases being associated with particular lifestyle characteristics, such as smoking, drinking, lack of exercise and over-eating. Within egalitarian and especially luck egalitarian theory it is therefore obvious to raise questions on whether the individual person with such lifestyle characteristics, is responsible for the statistically higher risk of getting such diseases and therefore e.g. should be held cost-responsible for the hospital-expenses they bring about.
In his book Health, Luck and Justice, Shlomi Segall argues for a luck egalitarian approach to distributive justice in health and health care. More precisely, he suggests that what is unjust is “… for individuals to be worse off than others due to outcomes that it would have been unreasonable to expect them to avoid”[2] (henceforth: reasonable avoidability, RA). He notes that some people have less healthy lifestyles than others, and by not taking good care of their health, he argues, people with risky lifestyles place unnecessary burdens on the health care system.[3] He maintains therefore that we can reasonably expect individuals to exercise, not to smoke, drink, overeat, and the like, and justice thus requires individuals with risky behaviors to bear the related costs. In order not to abandon the imprudent, however, he suggests a model of meeting basic needs to support the luck egalitarian distribution of health and health care. Through a model of ex ante taxation, however, alcohol, tobacco, fatty food etc. should be taxed proportionally to covering the expenses related to the diseases they bring about (hospital expenses etc.).
So how are we to understand this?
Well, more precisely, Segall suggests that we should “… replace “responsibility” with a more plausible understanding of what constitutes a case of brute luck.” Rather, he maintains, we should understand “brute luck” as an “…outcome of actions (including omissions) that it would have been unreasonable to expect the agent to avoid (or not to avoid in case of omissions).”He stresses that “expectation” is to be understood as a normative expectation rather than an epistemic one: “We are not inquiring here into what people are likely to do, but rather what it is that society can reasonably expect of them.”[4]
As Segall thus suggests replacing “responsibility” with RA I take it to be a misunderstanding to read RA as if it was another concept of responsibility. Rather, as I understand it, we should replace “responsibility” with RA as the basis of distribution within luck egalitarianism.
But which outcomes of action, then, would it be unreasonable to expect individuals to avoid? Unfortunately, Segall is not very informative here. Nonetheless his suggestion calls upon at least two questions: 1) if we replace responsibility with RA, what principles, then, should guide us in determining when an act is reasonably avoidable?[5] And 2) is RA actually a more plausible basis of distribution than responsibility?
My aim in this article is therefore twofold and divided in two parts answering these questions respectively.
Part 1: Firstly, I will examine Segall’s actual use of RA. He does not provide us with a general principle to determine when an act or omission is reasonably avoidable[6], but only examples. However, through merely a process of elimination I will derive two principles of his use.
His use of RA implies (and he claims explicitly) that it is reasonable to expect individuals to avoid smoking (or to become obese). This is in spite of a non-paternalistic premise and even if smoking (and obesity) generally speaking is not a financial burden on the health care system. My second step will be to object to that.
Thirdly, I will further specify Segall’s use of RA and show that one of the principles of his use of RA leads to counter intuitive results. I will make it probable that Segall either will have to give up his claim that we can reasonably expect individuals to avoid smoking (and obesity), or to add a paternalistic motivation.
Fourthly, I will show that when a view (like Segall’s), on when inequality in health is unjust, is made sensitive to individuals’ different efforts in looking after their health, it will lead to contra intuitive results regarding the distribution of research funds.
In part 1 I ignore the matter of responsibility and focus only on RA (due to a strict reading of the replacement of responsibility with RA).
Part 2: I will first try to show that claims on what we reasonably can expect individuals to avoid are sensitive to our view on responsibility, and that we, Segalls’ intention or not, do not avoid answering the question of how to understand responsibility. Nonetheless I will secondly support Segall’s claim that we ought to replace responsibility as the basis of distribution with RA (or something similar), insofar as we must operate with a “responsibility”-sensitive approach to justice in health and health care.
Finally I will sum up and comment on my findings in part 1 and 2 as seen in its entirety.
Decoding Segall’s Use of RA
Segall provides us with a number of examples to show why RA as a replacement of “responsibility” is attractive. Here are two rather obvious ones:
1) Women are generally said to be responsible for getting pregnant. If responsibility (in this more direct sense) is to be the basis for distribution, it would mean that we should deny women medical treatment for pregnancy and delivery. RA, in contrast to responsibility, gives us justice-based reasons to provide treatment to pregnant women, as ”… it would be unreasonable to ask women (or couples for that matter), as a rule, not to get pregnant.”[7]
And:
2) “Firefighters are responsible for incurring burns because they have chosen, by their own free will, to enter a burning building.” Segall maintains that even though we might have non-justice based reason to care for injured firefighters, we might also have justice-based reasons for doing so, since: “… it would be unreasonable to expect everyone in society not to become a firefighter, as there is clearly still a need for that line of work.”[8]
Even though these points seem to have a strong intuitive appeal, Segall, unfortunately, is not very informative in explaining more precisely what should guide us in determining when some action or omission is reasonably avoidable.
One suggestion can be derived from example 1 and 2: it is unreasonable to expect A to avoid X, if it is unreasonable to expect everyone to avoid X.[9] Naturally, however, this requirement, though reasonable, is not sufficient to guide us in all matters where we wish to claim some act or omission to be or not to be reasonably avoidable. Consider another example provided by Segall:
3) “People residing in certain parts of California are (often) responsible for choosing to live on a geographical fault line. However, it would be unreasonable to expect them not to settle in these areas owing to the slight chance of being hit by an earthquake.”[10]
This, Segall continues, is in contrast to the matter of smoking:
4) “… a geographical choice of residence is different from the decision to smoke, for example (as the latter does involve what most people would consider a legitimate trade-off between prudence and pleasure)”[11]
Here, obviously, it does not seem similarly plausible to claim that it would be unreasonable to expect everyone not to settle in these certain parts of California. The idea in example 1 and 2 is clearly that society, in general, would be left with a huge problem if no woman had children, or if no one would take the job as a firefighter. If no one settled in these risky areas of California, society would not similarly have a problem. Therefore a rather specific meaning lies in the claim that it is unreasonable to expect everyone to avoid X.
Stating that smoking is a trade-off between prudence and pleasure, where (implicitly) a geographical choice is not, might at first appear to be another potential guidance in determining when some act or omission is reasonably avoidable. But such division does not seem to be there: if smoking is a trade-off between prudence and pleasure, in which relevant sense is a geographical choice not a trade-off between prudence and pleasure? Given even the slight chance of being hit by an earthquake, it does involve an element of prudence to reside in certain parts of California, which then might be traded in for the pleasure of residing there. Our intuition might agree that there is a relevant difference between a geographical choice and the choice of smoking, but the difference, it seems, can hardly be that the latter is a trade-off while the former is not. We will therefore be in need of further specification.
So if we share the intuition that there is a relevant difference, what might it be? We might suggest that there somehow is a difference in how much value a Californian will have to give up by leaving her home compared to how much a smoker will have to give up by quitting the tobacco. But whether that would be due to a subjective or an objective parameter, the suggestion seems to be in conflict with another of Segall’s examples. Consider the following:
5) “… suppose that a woman is warned by her physician of a high risk to her health should she choose to get pregnant. If she does opt for the pregnancy, then it would not be unreasonable, in my view, to see her as forfeiting a claim to treatment on grounds of egalitarian distributive justice.”[12]
So to suggest that it somehow matters, in Segall’s use of RA, how much value the individual is giving up by avoiding X, does therefore not seem very obvious: I guess it would be unusually controversial to suggest the value of pregnancy to be relevantly lower than the value of residing where your home is.
There might of course be a hidden variable: it could be the case that the size of the value an individual is giving up does matter, but that Segall in example 5 finds it irrelevant because the risk is too high. But Segall’s general use of RA does not clearly support this possibility, and moreover he stresses that RA is not paternalism:
“In that sense imposing the costs of treatment on the imprudent is not a paternalistic policy. Rather, according to my proposal those costs are passed on to the imprudent not because they have failed to take good care of themselves as such, but rather because they have avoidably burdened the public health care system.”[13]
He can therefore not justify any particular claim on what is reasonably avoidable by referring to the improvement of the welfare of the individuals at stake.[14] E.g. he cannot justify smoking as being reasonably avoidable by claiming smokers to be better off not smoking. As this requirement of non-paternalism does not seem to contradict any of his particular claims on what we reasonably can expect individuals to avoid, I take it that the size of value an individual is giving up by avoiding X does not matter in Segall’s use of RA.
One last suggestion of how we are to determine when some action or omission is reasonably avoidable is to evaluate and compare the different risks at stake. It is conceivable that Segall finds it reasonably avoidable to smoke, but not to leave certain part of California, because the chance of being hit by an earthquake is only slight, while the chance of falling sick due to smoking is comparatively higher. As this is further supported by the fact that he in example 5 is operating with a high risk to health in case of pregnancy, I believe we have good reasons to accept it.
Again, Segall’s use of RA is not perfectly clear. But to sum up, I have found two principles for determining whether an act or omission is reasonably avoidable: i) it is unreasonable to expect A to avoid X, if it is unreasonable to expect everyone to avoid X, and ii) the size of the risk attached to X somehow affects whether an act or omission is reasonably avoidable, in the sense that the higher the risk attached to X, the more we should be inclined to find X reasonably avoidable. So far we may say that it is unreasonable to expect A to avoid X, if the risk attached to X is lower than Y.
With this in mind I will now provide a first objection before I will further specify Segall’s use of RA.
First Objection
Studies show that the ultimo lifetime health care costs are higher for ‘healthy’ people than for smokers (and for obese).[15] So why then would we pass on the costs related to smoking to the smokers? How can we say smokers have avoidably burdened the public health care system, if they de facto are not a burden?
In fact Segall considers this objection:
“Suppose, however, that it does turn out that smokers save the health care system money, and that those pursuing healthier lifestyles are the ones who burden the system. Would the implications be embarrassing for the luck egalitarian health care system?”
Segall does not think so:
“The justification for passing on the costs of treatment to the imprudent was based on the premise that they unnecessarily burden the health care system.”[16]
So we might say that whenever someone enters a hospital with a need for treatment, then the system is burdened. And burdens stemming from behaviors that we reasonably can expect individuals to avoid are unnecessary burdens. As such the price is irrelevant. If your need for treatment stems from behavior that it would be unreasonable to expect you to avoid, then it is a welcome burden.
Segall can also argue that this is not paternalism. Rather, he can say, it is unjust for the rest of the society to pay for burdens that stem from imprudent behavior. As he asks elsewhere: “Why should the rest of us pay for their avoidable reckless behavior?”[17]