What about Bert?

Jeremy Waldron

  • Sovereign Virtue: The Theory and Practice of Equality by Ronald Dworkin
    Harvard, 511 pp, £23.95, June 2000, ISBN 0 674 00219 9

In the 13th chapter of this formidable collection of Ronald Dworkin’s writings on equality, we are asked to consider a problem about health cover. The chapter is entitled ‘Playing God: Genes, Clones and Luck’, and the problem has to do with the availability of health insurance to those who are revealed, by genetic testing, to have a higher than ordinary risk of contracting some disease that may require expensive medical treatment.

Suppose the present decline in the quality of the NHS is not arrested and the system continues to deteriorate, until it is little better than Medicaid in the US, a grubby, grudging and inadequate safety net for those who can’t afford private insurance. And suppose that at the same time our ability to predict the incidence of genetically-based disease continues to improve, so that companies offering medical insurance can do so on the basis of detailed individual profiles of the genetic susceptibilities of potential policy-holders. Presumably the insurers – like any prudent bookmaker – will want to fine-tune the bets they make on the health of a given individual to reflect the likelihood that expensive treatment will be required in the lifetime of the policy. They may still offer cover for a person who, genetic testing reveals, is predisposed to multiple sclerosis, for example, but offer it at a premium several times higher than that paid by a person with no such predisposition. Since private health cover is expensive anyway, and since genetic predisposition does not correlate with the ability to fork out large sums of money, many of those who are most vulnerable (or most detectably vulnerable) to disease are likely to be left languishing in an area of the health system that is unable to respond to their needs. Good healthcare, covered by insurance, will be for the prosperous or the genetically robust; those in whom fate has combined poverty and genetic vulnerability will be left to the uncertain mercy of a ragged safety net.

Might this nightmare be avoided? Many people believe that if it can be avoided at all, it can only be at a serious cost to liberty. We could, perhaps, prohibit genetic testing or we could use strict privacy laws to prevent insurers from demanding (or acting on) genetic test results for those applying for cover. But that seems to impinge on the insurers’ freedom to look after their own economic interests; one might as well prohibit a bookmaker from adjusting his odds to reflect the form of a horse.

Can we avoid the nightmare prospect by limiting the private insurance market to a marginal rather than a dominant role in the area of healthcare? I guess a British government could make such a massive investment in the quality of the NHS that fewer and fewer people would have reason to seek private medical insurance. But to do that, it would have to find ways of resisting common complaints about the unfairness of supporting the NHS out of taxes paid by people who would rather use their money to buy insurance. Their complaint is that they are being forced to pay twice for healthcare – once through their own choice, in their dealings with insurance companies, and a second time through the tax system to support the NHS. The prosperous may say that they have no intention of ever availing themselves of NHS services. Still, unless they are forced to support it, the service will decline, and there will be no decent health cover for the poor and the genetically unfortunate.

We seem to have here a classic conflict between liberty and equality: liberty, on the part of the insurers and their prosperous or fortunate clients; and equality on behalf of those – the most vulnerable – who we know will fall through the cracks of a system that responds with market incentives to the information provided by genetic science. Equality commands us to ensure that something as important as health cover is equitably distributed, and not denied to a section of the population simply because of their greater vulnerability or misfortune. But liberty reproaches us for placing any restriction on people’s ability to order their own affairs.

A genuine contest between liberty and equality, says Ronald Dworkin, is a contest that liberty must lose. That claim, which pervades the more theoretical part of Dworkin’s book and explains its title – equality is not just one value among others, but the sovereign virtue of a social system – has seemed to many readers wildly counter-intuitive. If it is meant as a prediction – ‘The NHS will triumph in the end’ – it is over-optimistic, to say the least. More likely it is meant as a normative statement: liberty cannot hold its own against equality in the realm of justification, however much the cynical or the ignorant may flock to its side.

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