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ARTICLE

The Right to Health

JUNE 01, 1969 by THOMAS S. SZASZ

Dr. Szasz, whose M.D. is from the University of Cincinnati in 1944, is Professor of Psychi­atry, State University of New York, Upstate Medical Center, Syracuse, N. Y. This article, slightly condensed here, is re­printed by permission from The Georgetown Law Journal of March, 1969.

The concept that medical treat­ment is a right rather than a privilege has gained increasing acceptance during the past dec­ade.¹ Its advocates are no doubt motivated by good intentions; they wish to correct certain in­equalities existent in the distribu­tion of health services in Ameri­can society.

The desire to improve the lot of less fortunate people is laudable. Indeed, I share this desire. Still, unless all inequalities are con­sidered inequities—a view clearly incompatible with social organi­zation and human life as we now know it—two important questions remain. First, which inequalities should be considered inequities? Second, what are the most appro­priate means for minimizing or abolishing the inequalities we deem "unjust"? Appeals to good intentions are of no help in an­swering these questions.

There are two groups of people whose conditions with respect to medical care the advocates of a right to treatment regard as espe­cially unfair or unjust, and whose situations they seek to ameliorate. One is the poor, who need ordinary medical care; the other group is composed of the inmates of public mental hospitals, presumably in need of psychiatric care. The proposition, however, that poor people ought to have access to more, better, or less expensive medical care than they now do and that people in public mental hospitals- ought to receive better psychiatric care than they now do, pose two quite different prob­lems. I shall, therefore, deal with each separately.

Not by Force Alone

The availability of medical serv­ices for a particular person, or group of persons, in a particular society depends principally upon the supply of the services desired and the prospective user’s power to command these services. No government or organization —whether it be the United States Government, the American Medi­cal Association, or the Communist Party of the Soviet Union—can provide medical care, except to the degree it has the power to con­trol the education of physicians, their right to practice medicine, and the manner in which they dis­pose of their time and energies. In other words, only individuals can provide medical treatment for the sick; institutions, such as the Church and the State, can pro­mote, permit, or prohibit certain therapeutic activities, but cannot by themselves provide medical services.

Social groups wielding power are notoriously prone, of course, to prohibit the free exercise of cer­tain human skills and the avail­ability of certain drugs and de­vices. For example, during the declining Middle Ages and the early Renaissance, the Church repeatedly prohibited Jewish phy­sicians from practicing medicine and non-Jewish patients from seeking the former’s services. The same prohibition was imposed by the Government of Nazi Germany. In the modern democracies of the free West, the State continues to exercise its prerogative to pro­hibit individuals from engaging in certain kinds of therapeutic activities. This restrictive function of the State with respect to medi­cal practice has been, and contin­ues to be, especially significant in the United States.

Without delving further into the intricacies of this large and com­plex subject, it should suffice to note that our present system of medical training and practice is far removed from that of laissez-faire capitalism for which many, especially its opponents, mistake it. In actuality, the American Medical Association is not only an immensely powerful lobby of med­ical-vested interests—a force that liberal social reformers generally oppose—but it is also a state-protected monopoly, in effect, a covert arm of the government —a force that the same reformers ardently support.² The result of this alliance between organized medicine and the American Gov­ernment has been the creation of a system of education and licen­sure with strict controls over the production and distribution of health care, which leads to an artificially-created chronic short­age of medical personnel. This result has been achieved by limit­ing the number of students to be trained in medicine through the regulation of medical education and by limiting the number of practitioners through the regula­tion of medical licensure.

Supply and Demand

A basic economic concept is that when the supply of a given service is smaller than the demand for it, we have a seller’s market. This is obviously beneficial for the sellers—in this case, the medical profes­sion. Conversely, when the supply is greater than the demand, we have a buyer’s market. This is beneficial for the buyers—in this case, the potential patients. One way—and according to the supporters of a free market economy, the best way—to help buyers get more of what they want at the lowest possible price is to in­crease the supply of the needed product or service. This would suggest that instead of govern­ment grants for special Neigh­borhood Health Centers and Com­munity Mental Health Centers, the medical needs of the less affluent members of American society could be better served simply by repealing laws governing medical licensure. As logical as this may seem, in medical and liberal circles this suggestion is regarded as harebrained, or worse.3

Since medical care in the United States is in short supply, its avail­ability to the poor may be im­proved by redistributing the exist­ing supply, by increasing the supply, or by both. Many individ­uals and groups clamoring for an improvement in our medical care system fail to scrutinize this artificially created shortage of medical personnel and to look to a free market economy for restor­ation of the balance between de­mand and supply. Instead, they seek to remedy the imbalance by redistributing the existing supply—in effect, by robbing Peter to pay Paul. This proposal is in the tra­dition of other modern liberal social reforms, such as the redis­tribution of wealth by progressive taxation and a system of com­pulsory social security. No doubt, a political and economic system more socialistic in character than the one we now have could pro­mote an equalization in the quality of the health care received by rich and poor. Whether this would result in the quality of the medical care of the poor approximating that of the rich, or vice versa, would remain to be seen. Experi­ence suggests the latter. For over a century, we have had our version of state-supported psychiatric care for all who need it: the state men­tal hospitals system. The results of this effort are available for all to see.

The "Right" to Psychiatric Treatment

Most people in public mental hospitals do not receive what one would ordinarily consider treat­ment. With this as his starting point, Birnbaum has advocated "the recognition and enforcement of the legal right of a mentally ill inmate of a public mental institu­tion to adequate medical treat­ment for his mental illness."5

Although it defined neither "mental illness" nor "adequate medical treatment," this proposal was received with enthusiasm in both legal and medical circles.6 Why? Because it supported the myth that mental illness is a med­ical problem that can be solved by medical means.

The idea of a "right" to mental treatment is both naive and dan­gerous. It is naive because it con­siders the problem of the publicly hospitalized mental patient as a medical one, ignoring its educa­tional, economic, moral, religious, and social aspects. It is dangerous because its proposed remedy cre­ates another problem—compulsory mental treatment—for in a context of involuntary confine­ment the treatment, too, shall have to be compulsory.

Hailing the right to treatment as "A New Right," the editor of The American Bar Association Journal compared psychiatric treatment for patients in public mental hospitals with monetary compensation for the unemployed.? In both cases, we are told, the principle is to help "the victims of unfortunate circumstances."8

But things are not so simple. We know what is unemployment, but we are not so clear regarding the definition of mental illness. Moreover, a person without a job does not usually object to receiv­ing money; and if he does, no one compels hint to take it. The situ­ation for the so-called mental patient is quite different. Usually he does not want psychiatric treat­ment. Yet, the more he objects to it, the more firmly society insists that he must have it.

Of course, if we define psychi­atric treatment as "help" for the "victims of unfortunate circum­stances," how can anyone object to it? But the real question is two­fold: What is meant by psychi­atric help and what should the helpers do if a victim refuses to be helped?

From a legal and sociologic point of view, the only way to define mental illness is to enumer­ate the types of behavior psychi­atrists consider to be indicative of such illness. Similarly, we may define psychiatric treatment by listing the procedures which psy­chiatrists regard as instances of such therapy. A brief illustration should suffice.

Levine lists 40 methods of psy­chotherapy.9 Among these, he in­cludes: physical treatment, me­dicinal treatment, reassurance, authoritative firmness, hospitaliza­tion, ignoring of certain symptoms and attitudes, satisfaction of neu­rotic needs, and bibliotherapy. In addition, there are physical meth­ods of psychiatric therapy, such as the prescription of sedatives and tranquilizers, the induction of convulsions by drugs or electricity, and brain surgery.¹° Obviously, the term "psychiatric treatment" covers everything that may be done to a person under medical auspices—and more.

In relation to psychiatric treat­ment, then, the most fundamental and vexing problem becomes: How can a "treatment" which is com­pulsory also be a right? As I have shown elsewhere," the problem posed by the neglect and mistreat­ment of the publicly hospitalized mentally ill is not derived from any insufficiency in the treatment they receive, but rather from the basic conceptual fallacy inherent in the notion of mental illness and from the moral evil inherent in the practice of involuntary mental hospitalization. Preserving the concept of mental illness and the social practices it has justified and papering over its glaring cognitive and ethical defects by means of a superimposed "right to mental treatment," only aggra­vates an already tragically in­human situation.

As my foregoing remarks indi­cate, I see two fundamental defects in the concept of a right to treatment. The first is scientific and medical, stemming from un­clarified issues concerning what constitutes an illness or treatment and who qualifies as a patient or physician. The other is political and moral, stemming from un­clarified issues concerning the differences between rights and claims.

Unclarified Issues

In the present state of medical practice and popular opinion, defi­nitions of the terms "illness," "treatment," "physician," and "pa­tient" are so imprecise that a con­cept of a right to treatment can only serve to further muddy an already very confused situation. One example will illustrate what I mean.

One can "treat," in the medical sense of this term, only a disease, or, more precisely, only a person, now called a "patient," suffering from a disease. But what is a disease? Certainly, cancer, stroke, and heart disease are. But is obesity a disease? How about smoking cigarettes? Using heroin or marijuana? Malingering to avoid the draft or collect insurance compensation? Homosexuality? Kleptomania? Grief? Each one of these conditions has been de­clared a disease by medical and psychiatric authorities with impeccable institutional credentials. Furthermore, innumerable other conditions, varying from bachelor­hood and divorce to political and religious prejudices, have been so termed.

Similarly, what is treatment? Certainly, the surgical removal of a cancerous breast is. But is an organ transplant treatment? If it is, and if such treatment is a right, how can those charged with guaranteeing people the protection of their right to treatment dis­charge their duties without hav­ing access to the requisite number of transplantable organs? On a simpler level, if ordinary obesity, due to eating too much, is a dis­ease, how can a doctor treat it when its treatment depends on the patient eating less? What does it mean, then, that a patient has a right to be treated for obesity? I have already alluded to the fa­cility with which this kind of right becomes equated with a societal and medical obligation to deprive the patient of his freedom—to eat, to drink, to take drugs, and so forth.

Who is a patient? Is he one who has a demonstrable bodily illness or injury, such as cancer or a fracture? A person who complains of bodily symptoms, but has no demonstrable illness, like the so-called "hypochondriac"? The per­son who feels perfectly well but is said to be ill by others, for ex­ample, the paranoid schizophren­ic? Or is he a person, such as Senator Barry Goldwater, who professes political views differing from those of the psychiatrist who brands him insane?

Finally, who is a physician? Is he a person licensed to practice medicine? One certified to have completed a specified educational curriculum? One possessing cer­tain medical skills as demonstrated by public performance? Or one claiming to possess such skills?

It seems to me that improve­ment in the health care of poor people and those now said to be mentally ill depends less on decla­rations about their rights to treat­ment and more on certain reforms in the language and conduct of those professing a desire to help them. In particular, such reforms must entail refinements in the use of medical concepts, such as ill­ness and treatment, and a recogni­tion of the basic differences be­tween medical intervention as a service, which the individual is free to seek or reject, and medical intervention as a method of social control, which is imposed on him by force or fraud.

"Rights" versus "Claims"

The second difficulty which the concept of a right to treatment poses is of a political and moral nature. It stems from confusing "rights" with "claims," and pro­tection from injuries with provi­sion for goods or services.

For a definition of right, I can do no better than to quote John Stuart Mill: "I have treated the idea of a right as residing in the injured person and violated by the injury…. When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by force of law, or by that of education and opinion…. To have a right, then, is, I con­ceive, to have something which society ought to defend me in the possession of."¹²

This helps us distinguish rights from claims. Rights, Mill says, are "possessions"; they are things people have by nature, like liber­ty; acquire by dint of hard work, like property; create by inventive­ness, like a new machine; or in­herit, like money. Characteris­tically, possessions are what a person has, and of which others, including the State, can therefore deprive him. Mill’s point is the classic libertarian one: The State should protect the individual in his rights. This is what the Dec­laration of Independence means when it refers to the inalienable rights to life, liberty, and the pur­suit of happiness. It is important to note that, in political theory, no less than in everyday practice, this requires that the State be strong and resolute enough to pro­tect the rights of the individual from infringement by others and that it be decentralized and re­strained enough, typically through federalism and a constitution, to insure that it will not itself vio­late the rights of its people.

In the sense specified above, then, there can be no such thing as a right to treatment. Conceiv­ing of a person’s body as his pos­session—like his automobile or watch (though, no doubt, more valuable)—it is just as nonsensi­cal to speak of his right to have his body repaired as it would be to speak of his right to have his automobile or watch repaired.

It is thus evident that in its current usage and especially in the phrase "right to treatment" the term "right" actually means claim. More specifically, "right" here means the recognition of the claims of one party, considered to be in the right, and the repudia­tion of the claims of another, opposing party, considered to be in the wrong, the "rightful" party having allied itself with the in­terests of the community and having enlisted the coercive powers of the State on his behalf. Let us analyze this situation in the case of medical treatment for an ordinary bodily disease. The pa­tient, having lost some of his health, tries to regain it by means of medical attention and drugs. The medical attention he needs is, however, the property of his phy­sician, and the drug he needs is the property of the manufacturer who produced it. The patient’s right to treatment thus con­flicts with the physician’s right to liberty, that is, to sell his services freely, and the pharma­ceutical manufacturer’s rights to his own property, that is to sell his products as he chooses. The advocates of a right to treatment for the patient are less than can­did regarding their proposals for reconciling this proposed right with the right of the physician to liberty and that of the pharma­ceutical manufacturer to proper­ty.¹³

Nor is it clear how the right to treatment concept can be recon­ciled with the traditional Western concept of the patient’s right to choose his physician. If the pa­tient has a right to choose the doctor by whom he wishes to be treated, and if he also has a right to treatment, then, in effect, the doctor is the patient’s slave. Obvi­ously, the patient’s right to choose his. physician cannot be wrenched from its context and survive; its corollary is the physician’s right to accept or reject a patient, except for rare cases of emergency treat­ment. No one, of course, envisions the absurdity of physicians being at the personal beck and call of individual patients, becoming lit­erally their medical slaves, as some had been in ancient Greece and Rome.

Bureaucratic Decisions and Care

The concept of a right to treat­ment has a different, much less absurd but far more ominous, im­plication. For just as the corollary of the individual’s freedom to choose his physician is the phy­sician’s freedom to refuse to treat any particular patient, so the cor­ollary of the individual’s right to treatment is the denial of the physician’s right to reject, as a patient, anyone officially so desig­nated. This transformation re­moves, in one fell swoop, the indi­vidual’s right to define himself as sick and to seek medical care as he sees fit, and the physician’s right to define whom he considers sick and wishes to treat; it places these decisions instead in the hands of the State’s medical bu­reaucracy.

As a result, bureaucratic care, as contrasted with its entrepre­neurial counterpart, ceases to be a system of healing the sick and in­stead becomes a system of control­ling the deviant. Although this outcome seems to be inevitable in the case of psychiatry (in view of the fact that ascription of the label "mental illness" so often functions as a quasi-medical rhet­oric concealing social conflicts), it need not be inevitable for nonpsychiatric medical services. How­ever, in every situation where medical care is provided bureau­cratically, as in communist soci­eties, the physician’s role as agent of the sick patient is necessarily alloyed with, and often seriously compromised by, his role as agent of the State. Thus, the doctor be­comes a kind of medical policeman—at times helping the individual, and at times harming him.

Returning to Mill’s definition of a "right," one could say, further, that just as a man has a right to life and liberty, so, too, has he a right to health and, hence, a claim on the State to protect his health. It is important to note here that the right to health differs from the right to treatment in the same way as the right to property dif­fers from the right to theft. Rec­ognition of a right to health would obligate the State to prevent indi­viduals from depriving each other of their health, just as recognition of the two other rights now pre­vents each individual from depriv­ing every other individual of lib­erty and property. It would also obligate the State to respect the health of the individual and to deprive him of that asset only in accordance with due process of law, just as it now respects the individual’s liberty and property and deprives him of them only in accordance with due process of law.

As matters now stand, the State not only fails to protect the indi­vidual’s health, but actually hind­ers him in his efforts to safeguard his own health, as in the case of its permitting industries to befoul the waters we drink and the air we breathe. The State similarly prohibits individuals from obtain­ing medical care from certain, of­ficially "unqualified," experts and from buying and ingesting cer­tain, officially "dangerous," drugs. Sometimes, the State even deliber­ately deprives the individual of treatment under the very guise of providing treatment.

Conclusion

The State can protect and pro­mote the interests of its sick, or potentially sick, citizens in one of two ways only: either by coercing physicians, and other medical and paramedical personnel, to serve patients—as State-owned slaves in the last analysis, or by creating economic, moral, and political cir­cumstances favorable to a plentiful supply of competent physicians and effective drugs.

The former solution corresponds to and reflects efforts to solve human problems by recourse to the all-powerful State. The rights promised by such a State—ex­emplified by the right to treat­ment—are not opportunities for uncoerced choices by individuals, but rather are powers vested in the State for the subjection of the interests of one group to those of another.

The latter solution corresponds to and reflects efforts to solve human problems by recourse to individual initiative and voluntary association without interference by the State. The rights exacted from such a State—exemplified by the right to life, liberty, and health—are limitations on its own pow­ers and sphere of action and pro­vide the conditions necessary for, but of course do not insure the proper exercise of, free and re­sponsible individual choices.

In these two solutions we recog­nize the fundamental polarities of the great ideological conflict of our age, perhaps of all ages and of the human condition itself; namely, individualism and capitalism on the one side, collectivism and com­munism on the other.

There is no other choice.

 

—FOOTNOTES—

1 "Concisely stated, the standard [of law as public policy] is that every indi­vidual has a right to treatment, a right to good treatment, a right to the best treatment." B. S. Brown, "Psychiatric Practice and Public Policy," American Journal of Psychiatry, August, 1968, pp. 142-43.

2 Joseph S. Clark, Jr., the then Mayor of Philadelphia, defined a "liberal" as "one who believes in utilizing the full force of government for the advance­ment of social, political, and economic justice at the municipal, state, national, and international levels." Clark, "Can the Liberals Rally?" The Atlantic Month­ly, July, 1953, p. 27.

3 For an excellent discussion of the deleterious effects on the public of pro­fessional licensure requirements, see Mil­ton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962). Friedman correctly notes that the justification for enacting special licen­sure provisions, especially for regulat­ing medical practice, "is always said to be the necessity of protecting the public interest. However, the pressure on the legislature to license an occupation rare­ly comes from the members of the pub­lic… On the contrary, the pressure invariably comes from members of the occupation itself." p. 140.

4 This part of the article is adapted, with minor modifications and additions, from my book, Law, Liberty and Psychic­ (New York: Macmillan, 1963), pp. 214-16. My objections to the concept of a "right to mental treatment," formu­lated in 1962, seem to me as valid today as they were then.

5 M. Birnbaum, "The Right to Treat­ment," American Bar Association Jour­nal 46:499 (1960).

6 For example, see T. Gregory, "A New Right" (Editorial), American Bar Association Journal 46:516 (1960); and D. Janson, "Future Doctors Chide the A.M.A., Deplore Stand That Health Care Is Not a Right," The New York Times, December 15, 1967, p. 21.

7 Gregory, op. cit., p. 516.

8 Ibid.

9 M. Levine, Psychotherapy in Medi­cal Practice (New York: Macmillan, 1942), pp. 17-18.

10 The following is a curious, though by no means rare, example of the kind of thing that passes nowadays for men­tal treatment. In Sydney, Australia, "a former tax inspector on trial for mur­dering his sleeping family was found not guilty on the grounds of mental illness.

…… A psychiatrist told the court yester­day that Sharp, on trial for killing his wife and two children, had apparently cured his mental illness when he shot himself in the head." New York Herald-Tribune (Paris), July 5, 1968, p. 5. Mur­der is here considered an "illness," and a brain injury a "treatment" and indeed a "cure" for it. In the Brave New World where treatment is a right, will every murderer have the right to a brain in­jury—if not by means of a gun, then perhaps by that of a leucotome?

¹¹ See T. S. Szasz, The Myth of Men­tal Illness (New York: Hoeber-Harper, 1961); Law, Liberty and Psychiatry (New York: Macmillan, 1963); and Psy­chiatric Justice (New York: Macmillan, 1965).

¹2 J. S. Mill, "Utilitarianism" [1863], in M. Learner, ed., Essential Works of John Stuart Mill (New York: Bantam Books, 1961). p. 238

13 The proposition that sick people have a special claim to the protection of the State—in other words, that they be allowed to use the coercive apparatus of State to expropriate the fruits of the labor of others—is a part of a much larger theme, namely, the inevitable tendency in a society for each special interest group to enlist the powers of the State on its own behalf. In this con­nection, R. A. Childs has recently writ­ten: "Economically, the state uses its monopoly on expropriation of wealth to create political castes, or ‘classes.’… Thus, today, we see the state being supported by businessmen who are being benefited by defense contracts and other state patronage, tariffs, subsidies, and special tax `loopholes’; unions which are benefited by labor laws; farmers bene­fited by price supports, and other groups benefited by other state-granted privi­leges…. Of course, almost every group is harmed more by the benefits heaped on other groups than it is helped by its own special privileges, but since the state has gotten people to believe that the only valid approach to problems is to increase, rather than to decrease, state powers, no one mentions the possi­bility of benefiting each group by re­moving the special privileges of all other groups. Instead, each group supports the state, to benefit itself at the expense of all other groups." R. A. Childs, Jr., "Autarchy and the Statist Abyss," Ram­part Journal, Summer, 1968, pp. 4-5.

Long ago, Tocqueville had perceived this phenomenon and warned of its dan­gerous consequences for individual lib­erty. "The government having stepped into the place of Divine Providence in France it was but natural that everyone, when in difficulties, invoked its aid." Alexis de Tocqueville, The Old Regime and the French Revolution [1856] (Gar­den City, N. Y.: Doubleday-Anchor, 1955), p. 70. 

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