- to highlight our 'preferential option for people who are poor' and model a response broader than the current Community Benefit strategy
- to provide the theoretical underpinnings to kick off the session with practitioners committed to justice in health care.
So what is justice?
When I studied philosophy more than 30 years ago, the guru on justice was Harvard professor John Rawls who wrote a book A Theory of Justice. He was in the social contract mould, proposing a simple thought experiment. Imagine everyone is placed behind a veil of ignorance where they do not know what their attributes, interests or place in society will be. In this Original Position, people would then choose a list of suitable arrangements to which they would be bound or to which they would voluntarily comply. Everyone would be entitled to the same list of basic liberties. The key offices in society would be open to everyone without discrimination. The unequal distribution of goods and opportunities would be justified in so far as it assisted the worst off in society to be better off than they would have been if no unequal distribution were permitted. For 30 years, social philosophers made their mark by agreeing or disagreeing with Rawls.
The philosopher Amatya Sen who won the Nobel Peace Prize for Economics recently published a book The Idea of Justice. He gives a simple example of three children and a flute. Bob is very poor and would like to have the flute because he has nothing else to play with. Carla made the flute and wants to keep it. Anne is the only one of the three children who knows how to play the flute and she plays it beautifully bringing pleasure to all who hear her. Who has the best claim on the flute? Sen tells us that the economic egalitarian would give it to Bob. The libertarian would insist that Carla retain the fruits of her labour. Most Australians without a second thought would simply assert, 'Carla made it; it's hers; the rest should stop complaining; if they want a flute they should make their own!' The utilitarian hedonist would give it to Anne.
Fortunately we have more than one flute to appropriate for health care in Australia. The resources are divisible. What are the relevant considerations when it comes to distributing the health resources? Compassionate healthcare for the poorest? Integrated healthcare for those who would most profit by it? Excellent healthcare for those who can afford it? These are real tensions for all of us making judgments on formulae for the allocation of scarce healthcare resources, trying to be true to our mission which focuses on the healing ministry of Christ in the light of the Catholic tradition.
Commutative, distributive and social justice
In their 1986 Pastoral Letter Economic Justice for All, the US Catholic Bishops said:
Catholic social teaching, like much philosophical reflection, distinguishes three dimensions of basic justice: commutative justice, distributive justice, and social justice.
Commutative justice calls for fundamental fairness in all agreements and exchanges between individuals or private social groups. It demands respect for the equal human dignity of all persons in economic transactions, contracts, or promises. For example, workers owe their employers diligent work in exchange for their wages. Employers are obligated to treat their employees as persons, paying them fair wages in exchange for the work done and establishing conditions and patterns of work that are truly human.
Distributive justice requires that the allocation of income, wealth, and power in society be evaluated in light of its effects on persons whose basic material needs are unmet. The Second Vatican Council stated: 'The right to have a share of earthly goods sufficient for oneself and one's family belongs to everyone. The fathers and doctors of the Church held this view, teaching that we are obliged to come to the relief of the poor and to do so not merely out of our superfluous goods.' Minimum material resources are an absolute necessity for human life. If persons are to be recognized as members of the human community, then the community has an obligation to help fulfill these basic needs unless an absolute scarcity of resources makes this strictly impossible. No such scarcity exists in the United States today.
Justice also has implications for the way the larger social, economic, and political institutions of society are organized. Social justice implies that persons have an obligation to be active and productive participants in the life of society and that society has a duty to enable them to participate in this way. This form of justice can also be called 'contributive,' for it stresses the duty of all who are able to help create the goods, services, and other nonmaterial or spiritual values necessary for the welfare of the whole community. In the words of Pius XI, 'It is of the very essence of social justice to demand from each individual all that is necessary for the common good.'(27) Productivity is essential if the community is to have the resources to serve the well-being of all. Productivity, however, cannot be measured solely by its output in goods and services. Patterns of production must also be measured in light of their impact on the fulfillment of basic needs, employment levels, patterns of discrimination, environmental quality, and sense of community.
The meaning of social justice also includes a duty to organize economic and social institutions so that people can contribute to society in ways that respect their freedom and the dignity of their labor. Work should enable the working person to become 'more a human being,' more capable of acting intelligently, freely, and in ways that lead to self-realization.
Indigenous Australians and their just entitlements — a key social indicator
Let's apply these categories of justice to the most disadvantaged group in contemporary Australia: Aborigines and Torres Strait Islanders. During these last twenty years, social justice for Indigenous Australians has been very contested political territory. The Liberal Party led by long time Prime Minister John Howard was wary of the term 'social justice'. It therefore came to be seen as the policy preserve of the Labor Party and the minor parties including the Democrats and the Greens. Whatever the prevailing political fashions and orthodoxies, we cannot give an adequate account of justice in philosophical terms if we simply restrict ourselves to commutative and distributive justice. Commutative justice relates to just outcomes for all participants in economic transactions, contracts and promises, including the just recognition of prior land titles. Distributive justice focuses on the necessary distribution of income, wealth and power in society so that everyone's basic needs might be met, including the provision of land for those in need under arrangements such as post-war soldier resettlement schemes. Social justice is concerned with the conditions for persons to participate in community and in society enjoying those things and relationships necessary for them to achieve their full human flourishing. Social justice may work in tandem with the redistribution of wealth and resources. But social justice is not to be equated with wealth redistribution. Those who exclude social justice tend to view Indigenous Australians as poor, disadvantaged individuals who simply need better economic, health and education outcomes. Those who include a social justice perspective do not decry initiatives founded on distributive justice but they also see a need for political processes and state structures facilitating Indigenous participation in decisions affecting Indigenous communities, service delivery, and negotiation of the relationship between the Indigenous polity and the nation state.
When attending to commutative justice, we are not much concerned about outcomes, being focused on pre-existing entitlements, even if, as was the case for the first land rights legislation in South Australia, the vast North West Reserve of the state was being made available for only 300 persons — 91 per cent of the Aboriginal reserve land being dedicated to just 4 per cent of the Aboriginal population. When attending to social justice, we are focused on outcomes or consequences, seeking measurable improvements in health, education, housing and employment for all people.
Twenty-five years ago, I was meeting with a group of Aboriginal teachers, teacher aides and welfare workers in Bourke, western New South Wales. I made the point that most Aboriginal people at that time were poor, disadvantaged, dispossessed and Indigenous. I invited them to imagine the scene of an Aboriginal person in later years driving a Rolls Royce down the main street of Bourke. What would they think? One woman immediately answered, 'It's stolen.' I was shocked but everyone else in the room enjoyed the humour. I wondered what might their situation look like in years to come were they no longer poor, disadvantaged and dispossessed. For many of my listeners, this was unimaginable. Would their situation, their worldview, their way of life be the same as other Australians? Or would there still be something distinctive? Should there be maintenance of distinctive entitlements or possibilities?
We need to build trust so that having addressed the claims of commutative justice through land rights measures, having aligned the Aboriginal claims for distributive justice in a racially non-discriminatory way with those of the general Australian community, we might then negotiate the compromises and experiment with the new possibilities for social justice. Social justice for indigenous peoples in a post-colonial context requires recognition of and respect for their continuing differences from the 'mainstream' society, and procedures for negotiating the ongoing accommodation of difference even once we have succeeded in 'closing the gap'.
The distinctively Catholic challenge
As health care providers we need to build trust especially with those who feel most like strangers in our facilities. We need to be just to those who can afford to pay for the best of our services — that is commutative justice. We need to be just to those who cannot afford the most basic health services — that is distributive justice. And we need to provide culturally appropriate services for indigenous Australians and other vulnerable, alienated groups who feel most out of place in our facilities — that is social justice.
Bishop Anthony Fisher in his new book Catholic Bioethics for a New Millennium puts the challenge for Catholic hospitals to be places of service, Diakonia. I presume we can expand this challenge to Catholic health-care generally. He poses three preferential options: preferential option for the poor and marginalised; the preferential option for the sick and the disabled; and the preferential option for the suffering and dying.
He then goes on to put 6 tasks for a new century. He commences by quoting the respected American bioethicist Fr Richard McCormick SJ. You know how it cheers a Jesuit's heart and Catholic sensibilities to see a Bishop, especially a Dominican, quoting a fellow Jesuit. McCormick observed: 'Catholic hospitals have beautiful mission statements. We read references to continuing the health mission of Jesus... Caring services for each individual, personalised patient care, the holistic approach which weds competence and compassion... And the option for the poor... Yet everywhere I go I see Catholics involved in health care doubtful, perplexed, wondering whether they are viable, whether they ought to be in health care, asking about their identity, how they differ from non-Catholic institutions. There is a great deal of institutional navel-gazing... About rediscovering or recreating mission in changing circumstances. In sum, there is a gap between institutional purpose and aim, and personal conviction and involvement.'
I think we can all identify with McCormick's observation. Bishop Fisher puts six challenges before us. First we must consider seriously the materially and morally available options, neither engaging in a simple maintenance operation nor abandoning the trust received from our predecessors and the Church today. Second there must be a critical mass of strategically located personnel practising their Catholic faith and being dedicated to the mission and values of our institutions. Third there must be greater co-operation within the Catholic health-care sector. Fourth we need to respond effectively to the political and financial pressures of the contemporary health-care ecosystem while still promoting our mission and ethics. Fifth in the practical application of our ethics, 'studied ambiguity or evasion must be honestly addressed and corrected'. Sixth, local bishops must vigourously oversee, coordinate and plan in this area. This sixth task is daunting for all of us, not least the bishops, because they have not been much given to close involvement in the health ministry in the past, and now it is more complex than ever. Thus the need for real trust and subsidiarity.
With rising health costs, greater specialisation, and increasing market competition, we must always be challenged by the preferential option for the poor and marginalised. As Bishop Fisher says, 'One of the principal reasons given by church leaders and agencies for the Church's continued commitment to hospitals is that Catholic institutions pay particular attention to the needs of the sick poor. This is perhaps most obvious in those countries where universal access to healthcare is yet to be achieved, but even in places where suchis is perhaps most obvious in those countries where universal access to healthcare is yet to be achieved, but even in places where such access is more or less guaranteed, there will be those who 'slip through the safety net', and there will be pressures to limit some people's access even to reasonable care, whether out of partiality, cost containment or other reasons. 'Charity' hospitals will always have their place.'
One of the early influences on my own formation in Catholic social teaching was David Hollenbach SJ's book Claims in Conflict published in 1979. David set himself the task of retrieving and renewing the Catholic human rights tradition. He proposed three strategic moral priorities which I still find compelling: (1) the needs of the poor take priority over the wants of the rich. (2) The freedom of the dominated takes priority over the liberty of the powerful. (3). The participation of marginalised groups takes priority over the preservation of an order which excludes them.
Taking seriously the social determinants of health
We need to consider not just our Catholic identity but also the social context in which we find ourselves trying to provide the comprehensive healing ministry of Christ. In June 2010, Martin Laverty the CEO of Catholic Health Australia was appearing before a Senate Committee to give evidence about the COAG health reforms. He drew attention to a lacuna in the public discussion and policy planning. There was next to no reference to the social determinants of health. He said:
I would be misleading this inquiry if I suggested we were entirely happy with the announcements that COAG made. We are critical of what was not actually agreed to. For example, income levels, as a measure of socioeconomic status, are a better predictor of cardiovascular death than cholesterol levels, blood pressure and smoking combined. A person's access to income is more important to the chances that they face of dying of a heart attack than whether or not they have high cholesterol, high blood pressure or whether they smoke. [T]he social determinants of health, those factors that include housing, income, educational level, family support, supports at times of personal crisis in a person's life, can have more bearing on a person's health outcomes than access to health systems.
No senator had any interest in taking up this challenge. There were more immediate issues to tackle — like hospital funding and the mooted structure of Medicare Locals.
There are five key influences on our health: genetics, social circumstances, lifestyle, accidents, and access to health care. There is not much we can do to alter our genetics. With better occupational health and safety at work, good design standards, and improved public infrastructure, we can reduce the risk of accident.
The World Health Organisation (WHO) and Sir Michael Marmot in the UK have done a power of work finding that social determinants have a big impact on health outcomes. Fran Baum from Flinders University has worked closely with Marmot and brought home to Australia many of his key findings. If you are from a poor, dysfunctional family with little education and low job prospects, your health outcomes most probably will be much worse than those of the person from a well off functional family with good education and fine job prospects. Following the Blair initiative from the UK, Kevin Rudd as prime minister announced a social inclusion agenda aimed at ensuring that all persons can secure a job, access services, connect with family, friends, work personal interests and local community, deal with personal crisis and have their voice heard. The Rudd Government started concerted work on addressing the social determinants of health for indigenous Australians with the annual Closing the Gap report. The Gillard government has continued to present parliament with an annual update on closing the gap. It is time for a similar approach to address the health needs of marginalised groups in the community generally.
Marmot found in the UK that health inequalities result from social inequalities. He has put forward the idea of proportionate universalism. He says, 'Focusing solely on the most disadvantaged will not reduce health inequalities sufficiently. To reduce the steepness of the social gradient in health, actions must be universal, but with a scale and intensity that is proportionate to the level of disadvantage.' In the Australian context, Fran Baum observes that 'while the Closing the Gap and the social inclusion initiatives tackle social determinants, they do this from the point of view of the most disadvantaged and don't tackle the issue of the health gradient.'
The Commonwealth has undertaken fresh initiatives to improve the lifestyle of Australians most likely to have poor health outcomes — especially smokers, heavy drinkers, the unexercised and the obese. But there is only so much government can achieve in attempting to modify people's behaviour without also improving their prospects in education, housing, work, income, and social connectedness. Policies that target behavioural change in a vacuum just do not work. There is little point in telling the unemployed, homeless person with minimal education and few social contacts: 'Don't smoke and don't eat fast food. It's not good for you.' Steve Hambleton, President of the AMA points out, 'Generally, people on low incomes — including young families, elderly people and those who are unemployed — are often most at risk from poor nutritional choices.' The AMA has called on government to 'improve the quantity and quality of services to those in the poorest and most disadvantaged communities and make such services accessible to the resident populations'.
Most of the airplay on health reform is dedicated to better access to health care services. The research commissioned for the 2009 National Human Rights Consultation which I was privileged to chair found that such access is the issue of most importance to the majority of Australians — coming in ahead of pensions and superannuation issues, human rights, global warming and the quality of roads. This becomes an issue of good money after bad unless there is also action on social determinants and lifestyle questions.
Though the majority of Australians think our human rights are adequately protected, over 70% of those surveyed thought that persons suffering a mental illness, the aged, and persons with a disability needed better protection of their human rights. Bishop Anthony Fisher in a co-authored work on the health system in the UK with an already existing Human Rights Act has advocated the extension of human rights protection to include an enforceable right to healthcare. He says, 'A strong case can be made for clear legislative recognition of a right to healthcare, suitably delimited to genuine healthcare need, which could ground proceedings before some tribunal when it is the case that a person has been unjustly denied appropriate treatment….Because of the evidence of unjust discrimination against the elderly, and particularly the cognitively impaired elderly, there is a strong case for specific legislation to outlaw such discrimination in the allocation of healthcare resources.'
It is not a matter of just providing more resources which improve the lot of all persons much like the rising tide raises all boats. At the same time as we lift the bar, we need to decrease the steep gradient between those with the best and those with the worst outcomes, whether the indicators are income, education, housing, employment or social connectedness. In this land of the fair go, we need to flatten the gradient of adverse health outcomes, not just attending to those at the top or the bottom. Justice is a key value for any contemporary Catholic health provider wanting to mirror Christ's love for all, especially the little ones, the anawim. I look forward to hearing from the practitioners in contemporary Australian Catholic health care how we can better attend to the needs of the poor, the freedom of the dominated, and the participation of marginalised groups, while in justice and with prudence, still being duly attentive to the wants of the rich and the liberty of the powerful without whose support we would be much diminished, and being true to our Catholic heritage without being rendered impotent in our purity.
Fr Frank Brennan SJ is board director of St Vincent's Health Australia and professor of law and director of strategic research projects (social justice and ethics) at Australian Catholic University. The above text is from his address at Leading the Way, the Catholic Health Australia Conference, Perth 21 August 2012, Governance and Mission stream.