The Constitution of the United States of America has a Bill of Rights. A careful reading shows that it enumerates rights of the people that may not be infringed by the Congress. For the most part, that barring of infringement has been extended to the states by the Doctrine of Incorporation. There are some guarantees of rights in other parts of the Constitution, and like those mentioned in the Bill of Rights, these are protected from infringement by the government.
So, by and large, there are no "positive" rights. You do not have a right to food, clothing, or shelter. This is because we have no governing document that requires anyone to provide anyone else with these things.
In fact, you don't even have most of the rights listed in the first ten amendments to the Constitution, at least not in any absolute sense. If you are in your workplace, having a conversation with your boss, and you call him a name that is insulting, offensive, and not acceptable in polite company, you may be fired. That does not violate your right to free speech. The First Amendment says, "Congress shall make no law ... abridging the freedom of speech," not that you can mouth off to your employer without fear of consequences.
Constitutional rights are mainly restrictions on things government can do that would interfere with your freedoms. What about the Declaration of Independence, which says we have certain "unalienable" rights that include life, liberty, and the pursuit of happiness? One could argue that a right to life includes a right to basic health care. Yeah, good luck with that argument. And the Declaration is not a governing document for this nation. It is simply an explanation of why we decided we would no longer be part of the British Empire.
With one important exception, there is no right to health care. You can buy health care. No one is obligated to give it to you free. With one (temporary) exception.
Back in the 1980s, lawmakers in our nation's capital became aware that some hospitals were refusing to provide emergency medical care to patients who lacked the means to pay for it, and some people had bad outcomes, including death, because of that. If you went to a private hospital and lacked the ability to pay, you could be turned away and told to go to a public hospital (meaning one that was run with public dollars), where your lack of money would not be an obstacle. If that public hospital was many miles away, and you might die before you got there, that was just too bad.
Congress enacted a law to put a stop to that. It later became known as the Emergency Medical Treatment & Labor Act (EMTALA). It created certain obligations for hospitals. If you go to a hospital emergency department, you are entitled under the law to a medical screening examination (MSE), which means whatever it takes to figure out whether you have an emergency medical condition (EMC). (EMC has a statutory definition, which means it's not an emergency just because you say it is. A woman who is in active labor is covered by this law, which is why that's part of the name.) If you have an EMC, the hospital must provide stabilizing care. And hospitals must do this without regard for your ability to pay. That doesn't mean they cannot bill you later. EMTALA does not create a right to free health care. It just means a hospital must provide an MSE first, and if you have an EMC must provide stabilizing treatment, before asking you to pay.
If your health problem is not an EMC, no one has any obligation to provide you with anything beyond the MSE (which determines that you have no EMC). You're on your own.
Nowadays, everybody knows about this right, because hospitals are required to post signs about it, and at least two high-profile politicians (George W. Bush and Mitt Romney) have said poor folks are not without health care, because they can just go to a hospital ED.
But not everyone understands that this right, at least according to the law, applies only to emergencies.
Recently a colleague (and former resident) of mine posted a Facebook status update that said, "I'm feeling a strong urge to define the word emergency this morning!"
As I've said, EMC has a statutory definition. She knows that. A new definition is not needed. But what is needed, in her view, is some way of making patients aware that the word "emergency" on the sign outside her department has a definition, and that the ED is for emergencies.
Those of us who work in hospital EDs have long been bemused by the fact that some people, when they see the words "emergency department" on the sign, read instead "24-hour, primary care, walk-in free clinic."
The EMTALA sign tells people what they are entitled to when they come to the emergency department. It tells them about their right to an MSE and their right to stabilizing care if they have an EMC, and their right to be transferred to another hospital that can provide the level of care they need if this one cannot. Nowhere on the sign does it say that they are entitled to nothing if, once they've had their MSE, it is determined that they don't have an EMC. The sign does not say, "If your problem is not an emergency, you are entitled to exactly nothing." The sign also does not say, "Nothing this sign says means the hospital cannot, or will not, send you a bill."
There are many reasons people seek care in EDs for problems that even they readily recognize are not emergencies. These include lack of access to primary care, lack of financial resources, and the 24-7 convenience of the ED, among others. And sometimes they have fears or anxieties or lack of knowledge that keep them from understanding when something isn't really an emergency.
When medical students decide to pursue post-graduate (residency) training in emergency medicine, it's not because they yearn to spend their days caring for people with colds, sore throats, and strained lower backs. They want to take care of patients with heart attacks, strokes, and life-threatening infections, and people who've been in car crashes, or fallen off roofs, or been stabbed or shot. In other words, they want to snatch people from the jaws of death.
Not long ago there was a public education campaign in New Zealand about how emergency departments are for emergencies. Patients there have excellent access to primary care, with extended hours. They are strongly encouraged to use it when the problem is not an emergency.
We could do that in the United States if we were determined to build a health care system with a sound infrastructure, which requires robust availability of primary care.
Oh, and one other really important thing: New Zealand was one of the first countries in the world to provide universal health care. Will the United States be the last? I think we already know the answer to that question is yes. The remaining question is how many more decades will pass before we do the right thing.
A well worded opinion piece as always, Bob.
ReplyDeleteI believe that people in out society and even our profession confuse the meaning of words.
I have no doubt that every single person alive on the planet has a Right to health care. The right to seek medical treatment and relieve pain and suffering is an inalienable right - one everyone is born with.
I do not believe everyone, under our countries current laws, has an entitlement to free or government subsidized health care.
To many people take the meaning of a 'right to health care' to mean and entitlement to it. They are not the same. The unfortunate thing is that this play on words has been propagated by the government and both political parties.
The constitution sets for and delineates a few of the inalienable rights which are to be protected. But no one is pushing for the Feds or States to buy them firearms, give away free newspapers and build churches! As for the firearms and churches, the outcry from the left and right political leanings would be outrage and alarm if suddenly the right to these things meant that the government was responsible for supplying them.
I feel am a realist, more and more of our society demands healthcare reform, and too many people fall through the safeguards in place. While my Libertarian brain states NEVER!, I can see the benefits to society as a whole by having in place a well organized single payer or universal coverage as New Zealand has. We have to find ways to either go all single coverage - or all private with some safety net. The current mish-mash is simply ridiculous and difficult to manage.
The problem in the US are curbing the population's demand for instant gratification when it comes to health care. In our 24/7 Caffeine infused - run-run-run society, I do not see that happening anytime soon.
Ron Brace, MD
Consultant, EM,
Currently at Armadale Hospital, WA Australia.
If you're really going to get down to brass tacks, there are very few fundamental human rights, and health care is arguably not one of them.
DeleteFood: yes, there is a fundamental human right to hunt, gather, plant a garden.
Clothing: again, you are free to use animal skins and plant products to make materials to protect your body against the elements.
Shelter: you may certainly use whatever you can find in the environment to construct shelter against wind, rain, etc.
Notice that these three may depend on another fundamental human right, that of self-defense, if other humans (or non-human animals) attempt to interfere.
Health care? Well, sure, if it is available, you have a right to seek it, just as you have a right to attempt to procure anything else you wish through negotiation with other members of a community. But this assumes that others in the community can provide something worth negotiating for. If you live in a place where there are no competent providers of health care who have access to the resources they need to help you, then the right doesn't exist. There are vast parts of the world in which this is the case, just as there are large numbers of people who lack clean water and adequate nutrition.
Bringing us back into context, this is definitely a First World discussion. In our little corner of the First World, there is a right to seek health care, as you correctly point out. The question is whether one should have, simply as a consequence of being a member of society, a right to obtain basic health care regardless of whether one has the financial resources to negotiate and purchase it. So far, our answer is no, at least not in any uniform sense. If you happen to live in a community with a free clinic, the answer may be different for you, as a practical matter.
My contention is that this must change, and that the US must join the rest of the First World in guaranteeing access to basic health care. We must control utilization and costs for this to be financially feasible, and that can be done.
The discourse of rights is tricky and there is no commonly accepted final verdict on what is or isn't a right or what kind of right it is (positive or negative, "fundamental" or something else).
ReplyDeleteThere are legal rights and human rights, an a communal consensus about the latter often leads to the former whilst still invoking the latter, which is confusing.
I used to be a big believer in the doctrine of positive and negative rights, which you ably summarize:
"So, by and large, there are no "positive" rights. You do not have a right to food, clothing, or shelter. This is because we have no governing document that requires anyone to provide anyone else with these things."
However, other philosophers have convinced me that that distinction is much may arbitrary and conventional than I once thought. Property right, for example, are the ultimate positive rights, since they require the government to provide me with exclusive use of otherwise open spaces and shared resources. The government even expends significant resources punishing or otherwise deterring anyone who would interfere with my exclusive use of "my" property.
This is often justified by an analogy to self defense: the government in discouraging burglary is protecting me from the violent constraint of my freedom my others. But "my" property is not my person, and that logic cannot explain why I have to pay to sing "Happy Birthday" on camera or could be arrested for gathering blackberries from someone's back yard.
I am attracted to the idea of certain fundamental rights which are universal and universally applicable because they constrain what the government can do to you. I more and more tend to think, however, that all of our legal "rights" are just like the "right" to basic healthcare: the community agrees upon a standard which is derived from its own always-evolving moral sense, and enshrines it in law.
I agree with you the it's time to complete that evolution and, rather than fitfully imposing unfunded mandates on healthcare providers out of moral outrage, we acknowledged (created) a fundamental right to basic (proven, cost-effective) healthcare to all people.
An interesting turn on the idea of rights is that true freedom of speech means we must listen to things we may not want to hear. The 60 Minutes example of "Pussy Riot" is a case in point. In a diverse developed country like the US, the heterogeneity of our culture divides us. We have barriers to developing shared systems of care that the kiwis do not have as much of. In many other countries, universal care requires patients share physical space, eg, wards. In the US, the only place that wards exist for the most part is in the emergency department. If we had universal access, it might require cost control on the point of sharing space, something most Americans refuse to do. They want to know "when am I going to be assigned a bed". They want OUT of the shared universal space. They want a bed/room for ME. They want narcissism. In other countries, many patients are admitted to hospital and share their admission space with wards of up to 20 other patients. This saves space, cuts cost, and means that people who need admission can get it. In the US, now I fight with Medicare rules on obs vs admission on a daily basis, mostly I suspect because hospitals have followed the trend to give every admitted patient a private room.
ReplyDeleteIt goes back to a definition of freedom. Not only the right to say what you want, but the requirement that others listen, peacefully even, without violence. We don't want that in the US. We want to say what we want without listening. We want to have what we want without paying. We want our room, without having to share it.