And Justice (and Healthcare) for All

A convicted double murderer has won the right to have cosmetic surgery to remove a birthmark on the NHS.  Good.  Predictably, the foaming-at-the-mouth brigade is having a field day with this in the comments section of the Daily Fail‘s coverage.  Equally predictably, they’re wrong.

The reason is straightforwardly to do with considerations of rights and justice.  I’m going to assume – fairly safely, I think – that the nub of the criticism is that being a convicted murderer means you lose the entitlement to certain social rights and benefits.  (Indeed, I’ve overheard many people at the bar saying things along the lines that, if you break the law, you lose all human rights – and it was only because I was busy serving other people that I could restrain myself from saying something withering in reply.)

The loss of rights claim is easily put to bed. If there is such a thing as a human right, you can’t lose it.  For sure, a murderer might have violated another’s right to life, but he doesn’t thereby lose his own.  If there’s such a thing as a human right, and if the removal of birthmarks is covered by the concept of a human right, and if a person is human, then he is entitled to have the birthmark removed.  It really is that simple.

The other line of objection is that it’s unjust, therefore wrong, for public money to be spent on benefiting someone who has harmed the public.  However, even here, the objection rests on a pretty basic misunderstanding.

For sure, we want our health provision to be just, but there’s at least two ways in which you could understand that.  One kind of justice is what we might call “penal” justice – the kind that doles out the proper punishment for violations of just laws.  The other is “social” justice, and is much looser – it deals with the way in which we distribute resources, respond to competing claims, aid those in need, and so on.  I’m not sure whether these categories are the sort of thing that full-blown philosophers would use, but they’ll do for the moment.  Justice in healthcare clearly belongs to the latter category: it’s not the doctor’s job to punish people for violations of the law, any more than it’s yours or mine (unless you’re a lawmaker of judge).  It is his job to make sure that he allocates his time and resources in a defencible manner – noting, of course, that public expenditure is a justice consideration as well, given that it’s unjust to tax people to pay for healthcare more heavily than is warranted.

So, to this extent, the justice of providing the treatment, in terms of whether it’s money well spent, is separable from any question concerning the identity or biography of the person on whom it’s spent.  That is to say: if there’s a medical need for a procedure, and if the resources are there, then it should be the sort of thing that we’d consider providing, in just the same way as we’d consider providing a vaccination or a splint for a broken leg.  (I consider similar themes in a short paper I’ve got coming out in the Americal Journal of Bioethics later this year.)  And while there might be a case to be made for “self-inflicted” illness pushing someone down any waiting list that might exist – so, for example, an alcoholic might possibly have to make way for others for a liver transplant if there are others in need – it’s not at all clear how a murderer with a birthmark would bend to the same analysis.  It’s not as if being a murderer and having a birthmark are in any way related – and so it’s odd that being a murderer should be wheeled in when we’re considering whether or not to remove a birthmark.

That is to say, the only real question is one of whether the prisoner has a case that the removal of the birthmark is medically warranted.  If it is, he should be treated as any other person; if not – well, he should be treated like any other person in that case as well.

I appreciate that there’s an intuitive distaste that some people feel about prisoners getting treatment like this on the NHS, but it’s ill-founded.  The proper punishment for murder, we’ve decided, is the deprivation of liberty, which invariably means a long stretch in prison.  In some cases, it means never being released from that prison.  In most cases, it means that release comes after a good many years, and even then only conditionally.  (A life sentence really does mean life, irrespective of what the Daily Fail might try to tell you.)  It doesn’t – and, in my view there’s no way that it defensibly could – mean depriving a person of the medical care that we’d happily provide to people on the outside world.

That’s not flying in the face of justice; it’s guaranteeing it.

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