Hard Cases and Bad Medicine

There's a well-known saying that "hard cases make bad law," with the implication that we shouldn't draw too many lessons from these extreme situations. While there's a good deal of sense in that, it's also true that such cases often tend to reveal the basic shortcomings of laws and institutions.

A case which came before London's High Court last month is a good example of this, and should have served as a stark reminder of the implications of socialized medicine. It involved the parents of a very sick baby contesting the right of their local NHS Trust1 to make no further attempts to resuscitate their child, a procedure that had already been required on three previous occasions. Doctors argued that the baby, which had spent its whole life in hospital, had no real long-term chance of survival, and moreover, was in constant pain. The parents disagreed, and hoped the court would compel medical staff to resuscitate their child again if necessary.

The judge was faced with a most difficult decision. Would he accept the professional opinion of the doctors, or would he rule that the final decision on whether to attempt to prolong the child's life lay with her parents? In the event, he sided with the doctors, and one can certainly sympathize with his comments about the difficulty of reaching that decision.

As might have been expected, the corporate media focused on the human and medical-ethical aspects of what became a nationally publicized case, without bothering to reflect on what it tells us about state-controlled healthcare. For although such court cases are indeed rare, the type of necessarily arbitrary decision reached by the judge is in fact characteristic of the system as a whole. Indeed, such decisions, albeit taken far less publicly, form its very foundation.

The nub of the issue is that as a scarce good, healthcare must be allocated in some way. In repudiating the free market as a means to achieve this end, and choosing a system of rationing, the socialists who created the NHS placed a multitude of decisions affecting who gets what treatment in the hands of bureaucrats.2 These individuals must continually make choices affecting people's lives, for which there exist no objective criteria for guidance. How, for instance, are bureaucrats to decide whether breast cancer treatment should take priority over cataract surgery, or whether to favor routine procedures on elderly patients at the expense of risky, expensive ones on young people?

As a fundamentally political institution, the NHS is only accountable in the most indirect way to its supposed customers – and "owners" – the public. Inevitably, politicians call the shots. So it should come as no surprise that political considerations play a very significant role in setting treatment priorities. Thus, in addition to the most blatant use of health funding as a political weapon3, we find intense political lobbying by various health pressure groups, each intent on skewing spending in its own favor. With funding levels determined in advance, and so effectively fixed for years to come, this competition means that in a real sense one group of patients is reduced to fighting another, albeit by proxy; truly a zero-sum game.

Last month's case raised – or rather should have raised – another issue too. As we now know, the parents were unsuccessful, and one can well sympathize with their disappointment at the outcome. But what if the court had found in their favor?

The medical staff would have been forced to treat the child on pain of prosecution, with the local health budget having to stand whatever the costs of the treatment might be. Since this is, of course, funded from taxation, the parents would have been using the court to compel taxpayers to bear the costs of their child's treatment.

Now none of this should be taken as a criticism of the parents, whose subjective judgment no one else is in any position to dispute. Rather, it simply illustrates one of the necessary characteristics of any system of socialized health care; namely that one person is compelled to bear the costs of another person's treatment, and will face the full weight of state sanctions should he dare to refuse. Whatever the ethical implications of this may be, it is also worthwhile to look at some of its practical effects.

For a start, it's hard to think of a system much better designed to encourage people to lead unhealthy lifestyles – somewhat ironic given the name National Health Service. After all, why should the junk food addict, the heavy smoker or the alcoholic4 ever trouble to review his lifestyle if he believes that he can rely on someone else to foot the bill if things go wrong?

Needless to say, this fact has not been lost on observant bureaucrats and politicians. But far from being taken as an indication that all may not be well with state-run medicine, it has merely become yet another excuse for further state intervention in people's lives, perfectly in line with Mises' dictum that intervention breeds more of the same.5

Thus, citing the grievous "cost to the NHS" of dealing with such health problems as obesity, and illnesses related to smoking and drinking, politicians have embarked with gusto on a raft of intrusive health education campaigns – naturally at taxpayers' expense – smoking bans and even restrictions on the marketing of certain foods. All of which are designed to mould people's lifestyles according to officially approved parameters.

Another consequence, of course, is that there is no relationship whatsoever between what one pays into the NHS as a taxpayer and what one gets out of it.6 Thus the individual who has contributed nothing whatsoever to the NHS, can simply present himself at his local hospital and receive the most elaborate and costly care that the system can offer – assuming of course, that his complaint has been allocated the necessary priority. On the other hand, the lifetime contributor beset by some grave illness may find himself on a lengthy waiting list, and if he is unlucky, may die without receiving any treatment at all.

This particular feature of the system has not gone unnoticed abroad. In recent years, in addition to those eager to enjoy such traditional British attractions as the Tower of London and the Changing of the Guard, there has emerged the so-called "health tourist" whose first destination on arriving at the airport is the nearest hospital. The problem has become so acute that some cynics have suggested that the NHS might better be named the International Health Service. While one can only wish these visitors a pleasant stay and a speedy recovery, their presence, while numerous taxpayers languish on waiting lists, is hardly a testament to the soundness of Britain's public health system.

Now I don't doubt that there will be many advocates of state run healthcare who will be quick to label arguments such as those advanced here "uncaring." In reply, and putting aside Mises' apposite comments7 about the inevitable inefficiencies built into systems like the NHS and the costs they impose, one might simply pose two questions: In what way can any government bureaucracy ever be truly u2018caring'? And in what way is it u2018caring' to force one man to pay for another's treatment on pain of loss of liberty or worse.

Given the persistence which many advocates of socialized medicine cling to their faith, it may well be that none of my arguments will give pause for thought. So be it. But those who choose to ignore the hard cases and their implications, and believe that the state is the only proper agent to supply health care, should be prepared to accept the inevitable consequences.

Notes

  1. Part of the National Health Service, Britain's state-run health system, founded in 1948 by the Labour government of the day.
  2. This word is of course taboo in all political discourse relating to the NHS.
  3. A perfect example of the latter came about in September's Hartlepool by-election, when a hospital in the constituency slated for closure was mysteriously reprieved by a government anxious not to risk the embarrassing loss of a parliamentary seat.
  4. So too with the dangerous sports enthusiast!
  5. See for example, L. von Mises, Human Action, Ludwig von Mises Institute, Auburn, 1998, Ch.36, especially The Harvest of Interventionism.
  6. The fact that in his 2002 budget speech, Chancellor Gordon Brown said that he planned to make the NHS as the "best insurance policy in the world," merely shows how far removed he is from reality.
  7. See generally L. von Mises, Socialism, Liberty Fund, Indianapolis, 1981, and particularly Ch.5, which covers the vital role of prices in economic calculation. Although he was thinking of a socialist economy, his arguments can also be applied to a state-run health system where treatment is "free." This will inevitably make inefficient use of resources allocated to it. In passing, one might note that a truly free market in healthcare would make cheaper treatment available to far more people in any given situation.

October 14, 2004