The Doctor's Changing Role in Allocating U.S. and British Medical Services

In fact, many insurers refer to physicians as vendors for billing purposes.

About 37 million Americans or 15.5% of the population, lack any health insurance coverage at all. Short P. Monheit A. and Beauregard K. , Uninsured Americans: A 1987 Profile, National Ctr. for Health Services Research (1989).

Mechanic D. , “The Growth of Medical Care,” 55 Milbank Memorial Quarterly 61 (1977).

Klein R. , The Politics of the National Health Service, Longman, (1983).

Pater J. , The Making of the National Health Service, The Pitman Press (1981).

Blumstein J. Havighurst C. , “Coping with Quality/Cost Trade-Offs in Medical Care,” 70 Northwestern U.L. Rev. 6, (1975).

This is not to imply acceptance that a competitive market will perform this task with any greater degree of efficiency. Since the market does not start from the position in which monetary units used to measure desire for a product are freely available to all, it follows that willingness to pay may be a highly refined indicator of need. There is a wealth of evidence on both sides of the Atlantic of a close correlation between health and income status. See, e.g., Black D. , Inequalities in Health, Report of a research Working Party, Dept. of Health and Social Security (1980).

In fact, the British Medical Association's The Handbook of Medical Ethics, 17 (1984) specifies that it shall be unethical for any consultant to render services to any patient who has not been seen first by a general practitioner.

Scott R. and Gilmore M. , “The Edinburgh Hospitals” in McLaughlan G. (ed.), Problems and Progress in Medical Care, Oxford U. Press (1966) (variations between practices range from 0.6 percent to 25.8 percent in the same year). See also, Forsyth G. and Logan R. , Gateway or Dividing Line? Nuffield Provincial Hospitals Trust (1968).

“The key to turning down the patient [in the NHS] ‘is not to get eyeball-to-eyeball with him because if you do, there is no way you can actually say ‘no,’” as reported in Aaron H. and Schwartz W. , The Painful Prescription: Rationing Hospital Care, 107, The Brookings Institution (1984).

Harris J. , The Value of Life, Ch. 5 Routledge (1985); Lee R. “Legal Control of Health Care Allocation” in Ockelton M. (ed.) Medicine, Ethics and Law (1987) Archiv. Fur Rechts-Und Sozialphilosophie Bieheft.

Potts S. , “The QALY and Why it Should be Resisted,” Paper delivered at International Conference on Medical Ethics, Aberdeen, Scotland (July 10–12, 1989).

Williams A. , “The Value of QALYs,” Health and Social Service Journal (1985) July 3.

For a critical analysis of the qualitative judgments involved, see Harris J. , QALYfying the Value of Life, 13 J. of Medical Ethics No. 3 (1987); and Harris J. , “More and Better Justice,” in Bell J. and Mendus S. (ed.), Philosophy and Medical Welfare (1988).

Williams A. , “Economics of Coronary Artery Bypass Grafting,” 1985 British Medical Journal 291, 326–329.

The objections tend to focus on the overall level of spending on the NHS rather than on debating the levels of spending among different specialities. In addition, waiting lists have existed since the outset of the NHS, so controversy surrounds not the waiting per se, but the growing length of the list.

Brahams D. , “When is Discontinuation of Dialysis Justified?” Lancet, Jan. 19, 1985, 176–77. For a similar example of this philosophy, see Nabarro J. , “Who Best to Make the Choice?” 1967 British Med. Journal (1) 622.

Re Walker's Application, (London) Times, November 26, 1987, CA; see also, R. v. Secretary of State for Social Services, 123 Solicitors Journal 436 (1979).

Working for Patients, (cm555) (1989) HMSO.

Medical services will still be provided at zero price to the patient. See Perlman M. (ed.) The Economics of Health and Medical Care (Ch. 6) (1974) Macmillan ; Wilson T. and Wilson D.J. , The Political Economy of the Welfare State Ch. 6) (1982) Allen and Unwin.

GPs may have incentives not to educate their patients about alternatives if, as is presently contemplated, they are permitted to keep any part of the surplus generated by making cost-effective patient referrals.

This implies acceptance that some groups within society are allowed to form judgments as to what society's preferences ought to be, or would be if better informed.

British GPs voted overwhelmingly to reject the government proposal, but the Thatcher administration seems likely to impose it on them anyway. Medical World News, August 4, 1989, p.3.

Law S. , Blue Cross: What Went Wrong? Yale University Press (1974).

Including the Governmental Medicare (Social Security Act tit. XVIII, 42 U.S.C. §1395 et seq. (1970) and Medicaid (Social Security Act tit. XIX, 42 U.S.C. §1396 et al (1970) programs, covering elderly and poor people respectively.

The historical reason for this deference to the medical profession's definition of covered services stems from the political necessity of securing physician co-operation when Congress enacted the Medicare and Medicaid program in 1965. See Miller F. , “PSRO Data and Information: Disclosure to State Health Regulatory Agencies.” 57 B.U.L. Rev. 245, 248–50 (1977).

U.S. patients also receive tax subsidies for medical expenditures, which further distorts their incentive to make true economic choices on health purchases. In addition, the “technological imperative,” under which more medicine is equated with better health care, stimulates both patients and physicians to err on the side of medical intervention. See generally, Blumstein J. and Havighurst , “Coping with Quality/Cost Trade-Offs in Medical Care,” 70 Northwestern U.L. Rev. 6 (1975).

Patients insured by a health maintenance organization will be an exception to this general rule. The term health maintenance organization, or HMO, is used herein generically to refer to prepaid group health insurance plans wherein patients are required to receive their care from plan physicians, or from specialists to whom they have been referred by plan physicians. Primary care physicians in HMOs function as gatekeepers to specialist care in much the same manner as GPs function in the NHS.

Miller F. , “Vertical Restraints and Powerful Health Insurers: Exclusionary Conduct Masquerading as Managed Care?” 51 Law &Contemp. Prob. 1401, 1412, (1988).

Id.

See generally, on U.S.-British parallels, Aaron H. and Schwartz W. , The Painful Prescription, The Brookings Institution (1984); Fox D. , Health Policies, Health Politics, Princeton Univ. Press (1986); and Goodman J. , National Health Care in Great Britain: Lessons for the U.S.A., Fisher Institute (1980).

Verhovek S. , “To Control Costs, New York is Planning to Limit Medicaid,” New York Times, Aug. 17, 1989, p. 1, col. 5. (“Under the new system, Medicaid patients will be limited to 14 non-emergency visits a year to a doctor or clinic and to 18 laboratory tests. Recipients may have 43 prescriptions filled in a year, or 60 for children, the elderly and the handicapped.”)

Lund D. , “Health Care Rationing Plan OK'd in Oregon, Stymied in California,” Amer. Med. News, July 21, 1989, p.1, col.3; Hasnian R. and Garland M. , Health Care in Common: Report of the Oregon Health Decisions Community Meeting Process, April, 1990.

Id.

Expenditure targets for physician services to Medicare beneficiaries would be set each year under the proposal. If the physicians exceeded the target, the next year's fee update would be reduced by the overspent amount.

The American Medical Association mounted an extensive public relations campaign designed to mobilize the Medicare population to oppose expenditure targets politically, explicitly linking them to rationing. See July 7, 1989, Amer. Med. News, pp. 1 and 33.

Both closed-end budgeting and certificate of need programs deal with the macro aspect of filtering health care demand. They apply to either/or questions of what health facilities will be available to society, rather than to the yes/no decisions about which members of society will actually receive care. Those latter choices have generally been left with the medical profession in both countries, and are the subject matter of this paper.

Grubb A. and Schwartz R. , “Why Britain Can't Afford Informed Consent,” Hastings Center Report, August 1985, at 19.

Against this must be weighed doctors' resentment against the encroachment upon their clinical freedom ordinarily involved in explicit rationing.

In addition, they can inform about the effectiveness of medical service in terms of promoting overall health. Thus the traditional prominence of curative over preventive medicine common in both the British and U.S. systems could be challenged. See Payer L. , Medicine and Culture, Holt H. (1988).

For an analysis, see Drummond M. , Studies in Economic Appraisal of Health Care, Oxford Medical Publications (1980).

McGuire A. Henderson J. and Mooney G. , The Economics of Health Care.

This is not to say that they prove widely acceptable (see Harris, op. cit. note 14.) But while their normative lead may prove unpalatable, it is not easy to reject their capacity for exposing the irrationality of present practices.

Miller F. , Physician Autonomy, U.S. v. U.K., 2 Massachusetts Medicine No. 1, 19 (1987).

Navarro V. , Class Struggle, The State and Medicine, Ch. V. Oxford Univ. Press (1978).

Controversies involving access to medical services based on medical versus social criteria have arisen where the health resource has a naturally limited supply, as opposed to supply limitations created by financial constraints. Thus where organ transplantation is involved, there is little point in offering an organ transplant in the knowledge of tissue incompatibility. Assuming compatibility, patients who have close, supportive families capable of providing post-operative care and comfort often receive preference over those who do not. Report of the Massachusetts Task Force on Organ Transplantation 77 (1984). As this process has become more widely known, however, debate has ensued concerning the ethics of incorporating social factors into decision-making about life or death that echoes the British controversy over dialysis availability for vagrants. Id. at 78–81, favoring adoption of a first-come first-serve method of selection, after a medical screen, to reduce bias.

See Blakeslee S. , “Studies Find Unequal Access to Kidney Transplants,” N.Y. Times, Jan. 24, 1989, at C1, col. 1; and Leary W. , “Some Black Groups are Found at High Risk of Kidney Failure,” N.Y. Times, April 6, 1989, at B15, col.1. This same criticism could be made of valuations based on human capital, which seek to measure output gained by saving life in terms of future earnings —a process which has been attempted with varying degrees of sophistication. See, for example, Hanlon J. , Principles of Public Health Administration, Mosby (1969); Weisbrod R. , Economics of Public Health, Oxford U.P. (1962).

See Callahan D. , Setting Limits, Simon &Schuster (1987). For a defense of favoring younger patients in allocating scarce resources, see Lockwood M. , “Quality of Life and Resource Allocation,” Bell J. M. and Mendus S. (eds.) Philosophy and Medical Welfare, Cambridge U. Press (1988).

See generally, Calabresi , Tragic Choices 125–7 and 181–91, Norton (1978).

Miller F. , “Secondary Income from Recommended Treatment: Should Fiduciary Principles Constrain Physician Behavior?” in Gray B. (ed.) The New Health Care for Profit, National Academy Press (1983).

Cf., Wickline v. California, 228 Cal. Rptr. 661 (1986). (“[P]hysician who complies without protest with the limitations imposed by a third party payor, when his medical judgment dictates otherwise, cannot avoid his ultimate responsibility for his patient's care.”)

Truman v. Thomas, 611 P. D 902 (Cal. 1980) requiring disclosure of the risks of foregoing a diagnostic procedure).

Sidaway v. Bethlem Royal Hospital Governors, [1985] 1 All ER 643.

For the health economists' defense, see G. Mooney, “Cost Benefit Analysis and Medical Ethics,” 6 J. of Med. Ethics 177 (1980); Equity in Health Care: Confronting the Confuszon, 1 Effective Health Care 179 (1983); and A. Williams, “Ethics and Efficiency in the Provision of Health Care,” in Bell and Mendus (op. cit., n. 20).