Preliminary Report. Rui Nunes, Guilhermina Rego, Norman Daniels

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1 BENCHMARKS OF FAIRNESS FOR HEALTH CARE REFORM: EXPERIENCE AT AN EUROPEAN UNION COUNTRY Preliminary Report Rui Nunes, Guilhermina Rego, Norman Daniels 1- INTRODUCTION All countries face the issue of choice in healthcare. It is one of the main problems of pluralistic societies. Allocation of healthcare resources is clearly associated with the concept of distributive justice. Yet does justice, in this context, imply the existence of a right to healthcare? If it does exist is it a fundamental right? If it is accepted as such, there is still the question of whether this right should include all types of healthcare services or if it should be limited to selected types. It follows that choices must be made and priorities must be set 1. Different ethical foundations do exist with regards claims of justice in healthcare. All of them try to fulfil the formal principle of justice that equals must be treated equally. Despite this formal principal, attributed to Aristotle, Tom Beauchamp and James Childress 2 state quite clearly that whatever the ethical theory endorsed, most healthcare systems, in practice, accept different, even contradictory material principles of justice. In fact, these principles specifying relevant properties for distribution like need, effort, contribution, or merit of the subject or claiming for an equal share or a free-market exchange, are usually put into practice in most developed countries. With regards health care policy, European tradition claims for universal access based primarily on personal need but also on contribution (and therefore, although indirectly, on merit and effort) and fair procedures namely free market transactions. There are several competing theories of justice that are regarded as the proper foundation of fairness in healthcare access and delivery 3. Robert Nozick, a libertarian, claims that in a fair society, rights of property and liberty are paramount. Fair procedures (procedural justice in acquisition, transfer and rectification) should guarantee these rights and state intrusion is only accepted to protect them. Redistribution of private property through taxation is regarded as unjust (usually viewed as an equivalent to forced labour). Healthcare is not considered as a right under this theory 4. On the other hand, John Rawls Difference Principle 5 argues that not only liberty but also fair equality of opportunity should be considered. Nevertheless, some social and economical inequalities are permitted as long as the greatest benefit of the least advantaged is pursued. 1 It is frequently claimed that health care needs are infinite and therefore allocation of resources and prioritising are inevitable in public services. See Mullen, P. and Spurgeon, P., Priority Setting & the Public, Radcliffe Medical Press, Abingdon, (2000). 2 Beauchamp, T., Childress, J., Principles of Biomedical Ethics, Oxford University Press, New York, 2001, fifth edition. 3 See for instance Distributive Justice: Stanford Encyclopedia of Philosophy, stanford/archives/win1997/entries/justice-distributive/; and Kilcullen, R: Robert Nozick: against distributive justice, /politics/y64117.html. 4 Nozick, R., Anarchy, State and Utopia, Basic Books, New York, Rawls, J., A Theory of Justice, Harvard University Press, New York,

2 This egalitarian theory of justice, in the healthcare context, would imply the existence of a decent minimum of healthcare 6 although, in principle, tiering is allowed as long as the access to the lower level is not undermined. Utilitarian views of justice are also the basis of most welfare systems of healthcare delivery. As long as society as a whole is better off with a fair distribution of resources, because it may provide the citizens the security they need and therefore promote social cohesion, utility is maximised. It follows that the distribution of basic healthcare to all citizens is usually accepted on utilitarian grounds. In Europe distributive justice is more often related to the concepts of equity and solidarity. As stated in the Report by the Government Committee on Choices in Health Care, Ministry of Welfare, Health and Cultural Affairs, The Netherlands, 1992, Solidarity is the awareness of unity and a willingness to bear the consequences of it. Unity indicates the presence of a group of people with a common history and common convictions and ideals. Solidarity can be voluntary, as when people behave out of humanistic motives, or compulsory as when the government taxes the population to provide services to all. Solidarity has different historical backgrounds. It can be found, although with different names, in catholic and protestant traditions, in Marxist, socialist and even libertarian thinking. Both as a doctrine and as a political choice it is deeply grounded is most European health care systems 7. Equity means that the material principle of justice involved in distribution of wealth is mainly based on personal need 8. The pursuit of equity usually implies a reduction of unjust disparities between individual citizens or social groups 9. Equity as a political option has different social and economical implications: equity insofar as resources are allocated, equity in the way healthcare services are received, and equity in the way those services are paid for. It is these authors belief that in a secular pluralistic society different visions of distributive justice are welcomed and must be accommodated in a common denominator (Chart I). The ethical principles involved in the debate are associated to an agreed definition of human dignity. In fact, the full achievement of personal liberty implies equal access to certain basic goods, namely to the health services deemed necessary 10. The objective of this study is: a) to evaluate the Portuguese Health Care System as far as justice/fairness is concerned, using the analytical tool developed by Norman Daniels et al 11 in this context, b) to adapt this tool to a developed European country (Portugal), 6 Daniels, N., Is There a Right to Health Care and, if so, What Does It Encompass?, A Companion to Bioethics, Blackwell Companions to Philosophy, Helga Kuhse and Peter Singer, Blackwell Publishers, Oxford, (1998). 7 See for instance, European Health Care Reform, Analysis of Current Strategies. World Health Organization, Regional Office for Europe, Copenhagen, (1997). 8 Equity in Health and Health Care, World Health Organization, Geneva, See also Powers, M., and Faden, R., Inequalities in Health, Inequalities in Health Care: Four Generations of Discussion of Justice and Cost-Effectiveness Analysis, Kennedy Institute of Ethics Journal, 10, 2, (2000). 9 The future of health care, British Medical Journal, London, (1992). 10 Ethics, Equity and Health for All. Edited by Z. Bankowski, J. Bryant, and J. Gallagher, Council for International Organizations of Medical Sciences, (CIOMS) Geneva, (1997). 11 Daniels, N., Light, D., Caplan, R., Benchmarks of Fairness for Health Care Reform, Oxford University Press, New York, (1996), and Daniels N, Byant J, Castano R et al: Benchmarks of fairness for 2

3 and c) to acknowledge if cultural/linguistic bonds will help to introduce this methodology of analysis in developing countries with a particular tradition (Portuguese speaking countries). CHART I HEALTH PROTECTION P R I O R I T I E S ACCOUNTABILITY PROCEDURAL JUSTICE AUTO-DETERMINATION LIBERTARIANISM COST CONTAINMENT UTILITARIANISM EQUAL OPPORTUNITIES IGUALITARIANISM health care reform: a policy tool for developing countries. Bulletin of the World Health Organization 78 (6); ,

4 2- THE PORTUGUESE NATIONAL HEALTH SYSTEM PORTUGUESE HEALTH SYSTEM (PHS) (it represents 8,6% of Gross Domestic Product - GDP) has two main components 12 : The NATIONAL HEALTH SERVICE (NHS), universally accessible, and publicly financed through the social solidarity (taxes) of citizens (Table I). The public expenditure in healthcare (60% of the overall health budget) is processed directly from the Global Budget. SUBSYSTEMS (SS) and PRIVATE PRACTICE (PP), (including commercial insurance schemes and out-of-pocket payments), that accounts for 40% of the overall health budget. Like in most European Countries 13 the Portuguese government has a direct intervention in the structures rendering healthcare services. Moreover, it is instrumental in the planning, regulation and evaluation of the system. Portuguese Health System pretends to be a global model of rationalised care, centred on the General Practitioner (Family Doctor), as an attending physician, placing high emphasis on early intervention and guaranteeing the integration and continuity of care. A policy of incentives is in practice (but not yet fully implemented) that might stimulate practitioners productivity. TABLE I Resources (1997) Absolute Number Habitants per professional Population Physicians Nurses Dentists Pharmacists General Hospitals 83 Specialised Hospitals 12 Pediatric & Mental 34 Institutions Private Hospitals 92 Health Centres 386 Pharmacies Consultations (1000) ,9 Emergencies (1000) ,6 12 Ministry of Health: Saúde um Compromisso A Estratégia de Saúde para o Virar do Século ( ). 13 European health care reform, analysis of current strategies. World Health Organization, Regional Office for Europe, Copenhagen, See also, Report by the Government Committee on Choices in Health Care, Ministry of Welfare, Health and Cultural Affairs, The Netherlands,

5 The country is divided in five different administrative areas. Each one of them has partial independence with regards the central administration. Efficiency in the management of health resources implied, in the past, that conditions of transparency and accountability were created that might encourage effective competition among public and private institutions specially with regards secondary care in hospitals. The government is now implementing adequate alternatives from a technical and humane point of view for the caring of chronic patients namely elderly people. The National Health Service has three different functions (Chart II): a) a strategy for investment in healthcare, b) the financing of healthcare services, and c) the delivery of healthcare 14. All of them try to guarantee the tools for promoting efficiency in healthcare. Also, the NHS recognises the fundamental role of social solidarity organisations and also of the private sector. Future guidelines will try to promote a clear distinction between the financing and the delivery components of the system stimulating an accountability policy 15. The NHS has also the task of regulating competition and of promoting the co-operation between different healthcare agents so that quality in healthcare is obtained at the lowest possible cost 16. Finally, it contributes to regulate the market in healthcare both at the service and technology levels. The State, trough government agencies, has also a fundamental role in controlling the pharmaceutical industry. The public policy on pharmaceuticals is a controversial issue. It is well known the fact that attitudes towards the pharmaceutical industry reflect payer s views on the benefits over pharmaceutical research and development. European Union trademarks legislation regarding medicines, in particular brands and copyright, are usually seen as an extension of property as well as a patenting rights of innovative products and inventions. However, the control of the expenses with pharmaceuticals is crucial as Portugal has one of the highest per capita expenditures with these products in the European Union. 14 Council for Reflection on Health: Recommendations for structural reform (Ministerial Cabinet Resolution no. 13/96, of January 24th President: Daniel Serrão), Oporto, Tribunal de Contas: Auditoria ao Serviço Nacional de Saúde. Relatório Final. Lisboa, Wikler D, Marchand S: Macro-allocation: dividing the health care budget. A Companion to Bioethics, Blackwell Companions to Philosophy, Helga Kuhse and Peter Singer (Editors), Blackwell Publishers, Oxford,

6 CHART II FINANCING MODEL FINANCIAL FLOW CHART CITIZENS INSURANCE MECHANISMS FUNDS GLOBAL BUDGET (IMPLICIT INSURANCE) SUB- SYSTEMS COMERCIAL INSURANCE DIRECT PAYMENT DIRECT PAYMENT HEALTH CARE PUBLIC PRIVATE DELIVERY Notes: 1 and 2 INCOME-BASED FLOW 1- IT REPRESENTS +/- 60% OF THE OVERALL HEALTHCARE EXPENDITURES 3 RISK- BASED FLOW 2,3,4,5 - IT REPRESENTS +/- 40% OF THE OVERALL HEALTHCARE EXPENDITURES 4 and 5 UTILISATION-BASED FLOW 1 - COMPULSORY AND UNIVERSAL BASIS 2,3,4,5 - SELECTIVE BASIS 2 - IT BECOMES COMPULSORY 3 - VOLUNTARY BASIS 6

7 3- CONSIDERING THE REFORM PROPOSALS: THE NOVEMBER 2000 WORKSHOP With the purpose of introducing the policy tool Benchmarks of Fairness for Health Care Reform 17 in our country a 3 day workshop was held at Oporto in November This workshop had 2 different objectives. First, to acknowledge its importance as an objective tool for evaluating the Health Care System and the proposals of reform. Second to understand clearly its practicability. That is, how to apply the instrument. Different participants were present at the meeting. The authors of this study invited influent people, namely a representative from the Ministry of Health, a hospital manager (from on of the largest 600 bed Portuguese hospitals), a past Treasure Secretary of State, and the President of the Council for Reflection on Health, a Commission that proposed the document Recommendations for Structural Reform. At the workshop an historical perspective of Portuguese health care system was drawn. It was stated that prior to 1974 the Portuguese revolution, and the transition to democracy Portugal had a laminated system, with rich people buying services out of pocket, social security system for industrial workers and a large group of rural workers that had no protection at all. There were two kinds of hospitals: government hospitals (included medical schools) with internships for specialities (the main problem was governance because of conflict between professors in medical schools and the other professionals), and old charitable hospitals (private). However, back in the 1940s the government planned to build new hospitals in each district (now these hospitals are more or less built all over country). So poor people had no security, rich people paid for private services, and salary workers went to social security (prior to the revolution). In the 1950s the Ministry of Health (MOH) began to get more power to control services to beneficiaries. By 1974 poor had no real health service, and this changed after the revolution. All people got rights to go to hospital affected some percent of population. The Portuguese Constitution of 1975 gives right to health protection through the NHS, and the Service must give general and free health care for all 18. In 1978 the Parliament passed the Law on National Health Service (NHS): all Portuguese have right to go to the NHS. But slight changes were introduced, namely that the principle that the NHS should be general and universal. The service must have in consideration the economic situation of citizens and must be free for those who need it. But, nevertheless, the Law on National Health Service put some emphasis on the economic restrictions of the system and the limits on the right to health care access. 17 Daniels, N., Light, D., Caplan, R.: Benchmarks of Fairness for Health Care Reform. Oxford University Press, New York, In Portugal, according to article 64 of the Constitution of the Portuguese republic everyone has the right to have her or his health safeguarded and the duty to defend and foster it. This right shall be met, namely, by the creation of a National Health Service available to all people, and free of charge to the extent that the economic and social conditions of citizens require. In order to ensure the right to safeguarding of health, the state has a primary duty, according to the referred article, to: a) guarantee the access of all citizens, regardless of their economic circumstances, to both preventive and curative care; b) guarantee a rational and efficient coverage of human resources and units through the whole country; c) provide the costs of medical care and medicines from public funds; d) regulate and supervise privately funded medical practice co-ordinating it with the National Health Service to ensure that adequate standards of efficiency and quality are achieved in public and private institutions. 7

8 Paradoxically, a period of economic recession between was associated to health improvement. Probably, social determinants had more effect than the health system did. Also, a million people returned from colonies (Angola, Mozambique, Guinea-Bissau), typically a younger population, and better off people than domestic population. By 1980s Portugal had also a specific program on maternal and infant care, an intervention to improve hospital and health center treatment of women and children. Fifteen years led to great reduction in maternal mortality and infant mortality, so Portugal is now in the middle of European range. Are good results products of social change or intervention in the system? Better income of worse of parts of population means they can seek and pay for services. Also a significant reduction of birth rate played a prominent role. After 1979, a big debate was held among Portuguese society about co-payment and the amount paid by rich people. Social Democrats 19 want rich people to pay services within the NHS, but socialists want services free for all. It is claimed that paying for services at the NHS will lead to a shift of rich people to the private sector (managed care/insurance or out of pocket). In the NHS, co-payments are a tool for rationalizing the System, not for funding it. Plus tax system is itself fairly progressive. Poor and elderly pay no taxes and use services more, so co-payments do not work as expected to rationalise utilization. Gross Domestic Product (GDP) since 1995 is over medium of Europe, but the health care expenditure is now about 8,6% of the GDP (5,16% public and 3,44% private sector), over the medium of Europe (8,2%). So, reliance on private sector is significant and a lot of trust in private practitioners and institutions is usual. The conclusion is that, despite the efforts, Portugal still has a laminated system. To achieve the goal of universality in coverage, the country is decentralized into five regions, but there is no decentralization of the rest of the government, so in practice it is not working. Also regional leaders are really appointed by the Ministry of Health. Further, as the Ministry of Health centralises financing and regulation, no real authority for contracting exists except as determined by central Ministry. Although health centers have 80% of the outpatient situation, devoted mainly to primary care delivery (although some preventive care and community assistance is also a statutory obligation), hospitals have larger budget and have political priority. The real issue is very high investment levels in hospitals but low investment in health centers. It is nationality, not residence, that determines eligibility (unlike Britain). Nevertheless, there are in Portugal for the time being some emigrants from Africa and central Europe (Ukraine, Croatia, Romania, etc.). Although not eligible, none of these foreign citizens will be denied access to the public service. As most of them are not registered, and are concentrated at the urban area of Lisbon, it represents a serious problem for the planning of services within the NHS. The 1995 law entitles all citizens to health care services, but civil servants and many people working at particular areas of Portuguese economy, have specific entitlements (subsystems). These workers have access to different systems subsidised by a specific tax (1% for Civil Service workers) plus co-payments. Over a total of 10 million citizens, 3 million have access to an extra health care subsystem. This policy implies the idea 19 In Portugal the two most important political forces are the Social Democrats and the Socialists. They have been alternating in the government since the 1974 revolution. 8

9 that even the government doesn t fully trust the NHS to give adequate treatment to Civil Service workers. Many subsystems focus on special groups of workers, eg bank workers, or military personnel. If these workers go to the NHS, they pay nothing themselves, but the NHS bills special fund for the subsystems involved. It is claimed that the Ministry of Health depends on this extra funding. Also, at least 1 million people have a private insurance scheme (managed care). In this social, economical and political background the Portuguese government instituted in January 24th 1996, in its Ministerial Cabinet Resolution no. 13/96, the Council for Reflection on Health (President: Daniel Serrão). This council had seven participants: two doctors, one lawyer, one economist, one hospital manager (President of the Hospital Managers Association), one nurse (President of the Nurses Council). It was approved by the government and set up as an independent council. Results of the report are public. No real public discussion of the document was achieved, though widely distributed after a presentation with press conference at the end of At a meeting with Parliamentary Commission on Health, including all parties, it was acknowledged that only one deputy had actually read the document (from the Communist Party) and another from the Social Democrat Party (who had been Minister of Health). Most of the other members of this commission had not a deep understanding of the document. Communists said no threats are permitted to the NHS and Social Democrats said no threats to the doctors independent status (freedom of prescription, among others) are allowed. Afterwards, the meeting was adjourned but the second part never happened. The proposal was very clear in the acceptance of the principle that a structural reform on health is a common endeavour of all society and that agreement on all parties is needed. A regime pact was therefore proposed between all political forces. Opposition parties said they would agree, but the government party (socialist at that time) claimed that they were elected to produce specific health reform goals. Therefore, no real public discussion took place, perhaps because being an election year (1999), nothing would be done till after elections. After the elections the socialist party had again the majority at the parliament. The new Minister of Health (1999) who was a financial specialist was likely to address problems of budget. So the role of the Council for Reflection on Health largely ended. Central proposal was a new organization model and also to make doctors available at a national level but instead the new Minister of Health claimed that the key issues were waiting lists for surgery, probably due to its political impact. It must be emphasised that this was perhaps the only consistent reform proposal of the health care system in Portugal. Nevertheless, many individual and institutional documents are available for study. They are also considered in this evaluation. Key elements of this proposal were never really implemented: eg public discussion. Also, the tax reform, the National Health Council, the compulsory Public Insurance Program (clearly separated form other taxes) and the Public Institute for Financing (autonomous), etc. were not set up. About 20 specific recommendations were proposed in this document. The central idea was to get government to withdraw from organization and delivery of health care. Instead, its task should be to do planning, regulation and evaluation of Portuguese health system (both private and public). To 9

10 accomplish this purpose a proper information system (Health Intranet) is needed to connect all parts of the system, public and private, general practitioners and specialists. Keeping the patient s record across Intranet would help this interconnection. One of the proposals is slowly taking place: that is the implementation of new models of administration of public hospitals so that value for money is increased. Unlike the British solution PFI (Private Finance Initiative 20 ) were clinical services are sacred, a solution that took place in Portugal since 1996 (just in one hospital out of 95 public hospitals) is the offering of private management of all services including clinical assistance. Not ownership or finance, only management. Payment is per capita where risk is on management to produce a more efficient use of public funds (in effect this solution is managed care services contracted by the NHS). The proposal is to run for at least 20% less than public hospitals do. The objective is to look for efficiency. Now this administration is running at 34-40% less in cost. Also, there has been an increase in productivity, but on the other hand the hospital must pay more for higher production (incentives to doctors to work harder, use protocols and rules about what must be prescribed). Some critics contend that doctors will loose professional autonomy and that in the end it is a profit company were efficiency (value for money) scores higher than equity in access. However, despite critics, the hospital with this new management (Amadora/Sintra) was the first Portuguese hospital to obtain accreditation through the Kings Fund Health Quality Service (late 2001). Physicians are fixed by salary and then have some marginal funds to provide merit pay. Physicians should exercise autonomy in prior determination by a panel on what counts as proper treatment, not solely in the treatment process. Clinical guidelines obtained by Evidence Based Medicine (EBM) are central in this process. Clinical protocols are incrementally added. Physicians get share in savings from increased productivity, so have good incentives to be economical in the use of consumables, etc. To address the issue of productivity versus over-utilization, it is crucial to provide incentives through protocols, but also it is previously determined on a contractual basis the amount of clinical production expected. Other putative benefits of this kind of administration are: low administrative costs, clear lines of command (versus public hospitals where lines of command are unclear) and shortening of hospital staying (outpatient diagnostic/therapeutic versus inpatient, etc.). However, there are still some problems to resolve. First, many physicians and nurses belong to NHS and by political pressure must remain so (Civil Service workers). But as there is a shortage of professionals, many foreign nurses (Spanish) who do not belong to the NHS are working at the hospital. Also, with regards the Emergency Service, many people use it as first access to the system, and this a serious problem in the planning of health care delivery. For the moment, academic studies by different institutions are taking place with clear benchmarking to evaluate changes in delivery of health care, in productivity and in access. Multiple experiments, in various regions, are important so that private management of public hospitals can be clearly evaluated. 20 In this perspective (PFI) the NHS is still responsible for the clinical services and a private financial group deals with every other aspect of the hospital organisation. Services are delivered on a contractual basis with the NHS. Sussex, J.: The economics of the private finance initiative in the NHS. Office of Health Economics. London, Also, Smith, CA: Making sense of the private finance initiative. Radcliffe Medical Press, Oxford,

11 But it is not only the model hospital administration that is at stake. The organization of the system must also be addressed in the future. In the current system, people are supposed to have unrestricted access to his/her general practitioner (GP). But, for many historical and cultural reasons, GPs work at an institutional level the health center. It means not only that the individual nature of the patient/physician relation is lost but also that there is a bad articulation and co-ordination with specialists at an hospital level. It meant in the last decade a bad GP/specilist ratio with too few GPs in the country. The fact that GPs are considered as civil servants has contributed to low level primary care. That is no formal referral mechanisms to hospital care do exist: people can go to GPs or hospitals as they wish. Ideally citizens would go to family practice doctor who then would refer patient to health center, to hospital, to rehabilitation, or to hospice services (gatekeeper/signpost). Reform could allow some choice among groups of family practitioners (GPs) as a compensation for losing option of going to hospital. This would not only increase choice (patient and provider autonomy) but also efficiency. The reform proposal is that private doctors (GPs) should work in small groups who contract with the NHS, and should have a panel of patients under capitated arrangement. This model as in the Danish system with proper informatics is probably more efficient and more quality is added to the system. A pitfall of the current system is that salaried health center based GPs chase away patients from the NHS but then do private practice, with regular patients mainly form the NHS. At a clinical level, again, EBM guidelines, as in Finland, should be developed with three levels of evidence strong evidence, good reason to accept, and standardly done but not evidence so that doctors can choose the best available option to a particular patient. With regards accountability, there is very little malpractice litigation; however, in the last couple of years it has blown up in media. A proposal to circumvent this problem is to compensate injured patients (with or without guilt from the physician/institution) in proportion to the injury. This is the compensation without fault system that is in place in Nordic countries rather than the US litigation system. In Portugal, where fault may take 3-4 years to demonstrate (without reasonable doubt), at the end, in general, judges cannot decide properly due to the absence of proof. Liability insurance does not work if it is not possible to prove fault. 4- REVIEW OF THE REFORM DISCUSSION OF BENCHMARK 1: What to do about the fact that many elements of B1 are not in proposals but are addressed by other reform efforts going on elsewhere? Suggestion was to give zero score but then note that these other programs exist and should be connected. Namely the reform proposal of the Ministry of Health itself 21. The point of the Benchmark 1 is to change the way of thinking about separation of sectors. If reform is not scored down for omitting discussion, then there is no change of highlighting the importance of intersectoral effort as part of reform. It turns out, however, that many of the items under 21 Ministry of Health: Saúde um Compromisso A Estratégia de Saúde para o Virar do Século ( ). 11

12 the first subhead of B1 are addressed in the reforms. Nothing however on subheads 2 and 3. It must be emphasised that in the last couple of years the problem of intersectoral public health is acknowledged as an important part of the reform. Namely the connection between the Ministries of Health, Environment, Transports, Communication, Education and Science and Technology to deal with issues truly intersectoral. Particularly with regards B1 II and III. DISCUSSION OF BENCHMARK 2: In theory there are no financial barriers in the access to the basic package of health care. However, due to a deficient organization of the system there are, in fact, financial barriers, that can be indirectly assessed by the percentage of private practice (40% versus 60% public). Supposing that tiering is fair if it does not compromise the basic package (politically or economically) the problem in Portugal is that tiering is a subproduct of the inefficacy of the system. To overcome financial barriers the problem of efficacy/efficiency must be addressed. Eventually the proposal to set up an Independent Entity to channel public funds without actually doing health care delivery (as now is the case in Ministry of Health), could solve the problem. This entity, that has public money, then would contract with both public and private entities to deliver care. It allows tiering through insurance policies. In the meanwhile it is also expected that private insurance will grow, reducing direct out of pocket payment to health care. It is expected that private insurance will only be 15 20% of the system. It might be more if reform does not take place. Much of the growth in private insurance will be group insurance through employers, but some will be on an individual basis. Within these restrictions, there is no problem of access to the public service by the informal sector ( citizens/emigrants). DISCUSSION OF BENCHMARK 3: Geographical maldistribution of human and technological resources is an important problem in Portugal (as well as in many other European Countries). From a distributive justice approach we prefer the expression SPATIAL INEQUITY if the maldistribution is unfair. Important measures are proposed in the reform proposals namely that geographical financing of health care should be on a needs based budgeting (not historical) in accordance with the criteria capitation adjusted to age, disease pattern, proximity form hospital or health center and level of economical development. Gender and cultural disparities are not important issues in Portugal. Discrimination only rarely occurs (specially to gypsies) in health care access although there is some mistrust with regards gypsies and Africans. 12

13 DISCUSSION OF BENCHMARK 4: For the time being all effective and needed services deemed affordable, by all needed providers are only theoretically accessible. Long queues mean in effect that many important services are unavailable. Combining access to some private facilities within budget accessible to NHS users will reduce tiering. Increasing insurance sector will somewhat increase it prior to any reform. As previously stated tiering is mainly due to the inefficacy of the NHS in fulfilling its obligations. It is claimed by some sectors of society (more liberal) that, within certain limits, tiering can indirectly increase the efficiency of the NHS because of the shifting of many patients to private insurers. This would lead to some decompression of the public system and increase value for money. DISCUSSION OF BENCHMARK 5: The NHS is largely financed by progressive taxation. Although there is room to make it more progressive, for the time being and bearing in mind that the level of earning of Portuguese people is much lower than the average European (1/2) it is unrealistic to assume that progressivity can increase further. Pulling many private payers into insurance will increase equity in financing. But, again, it needs to be carefully assessed because if many patients go out of the NHS to the private sector this could mean some loss of solidarity in financing the global system. As the NHS is tax funded, a common feeling is that justice in health care means also justice in the fiscal system. Tax evasion is observed as one of the most important social problems in Portugal. Important reforms are also in course in this area. DISCUSSION OF BENCHMARK 6: Some emphasis in the reform proposal is put on the GP as the gatekeeper. For the time being there is no true choice of GP and there is also no real training for community based delivery. The adequacy of incentives is not clear, but this is one of the most important issues of any future proposal. Little emphasis also on community participation. There is a clear attention to referral mechanisms in all proposals, but not necessarily related to the principle of respect for autonomy. Evidence-based practice and quality are emerging problems is Portugal. There is growing awareness that this concepts are not only management tools but also important ethical imperatives. Accreditation of hospitals and certification (ISO, SA 8000) of other health care facilities is in course. Although there is little emphasis on the regular assessment of quality in reform proposals it is now a major topic of public discussion. Quality in healthcare has different levels of intervention: a) general practice (primary care), b) laboratories, and c) quality control of pharmaceuticals. Also, to assure quality and efficiency the entire Portuguese Health System is to be processed into computer data bases and made into a national network Intranet which interconnect all the agents involved. Evidence-Based Medicine is now an accepted practice in our country. For several years now Schools of Medicine have implemented in the pre and post-graduation courses this 13

14 concept both with regards the evaluation of the effectiveness of drugs and the introduction of new technologies. As an example, specific disciplines of quality in healthcare and Evidence-Based Medicine have been implemented. It is regarded as an academic movement following the accepted standard of scientific methodology namely the need to share information. DISCUSSION OF BENCHMARK 7: There are many problems about technology acquisition, and to its fair distribution all over the country. There is no mention of this issue in reform proposals. Marketing costs may grow with private sector growth. Problems of multiple oversupply of some technologies do exist and it is not foreseeable in the future a true interest in rationalize its use and distribution. Cost shifting reductions are built into proposal to regulate referral and limit direct access to hospitals. There are some abuse and fraud issues, but not obviously addressed by reforms. Nevertheless, there is the common feeling that a new organization model of the NHS increasing responsibility and accountability, and also emphasising incentives will help dealing with this situation. Increasing the efficacy and efficiency of the system is linked, inevitably, to decreased benefits of the Civil Service. Probably the contractual basis of health care professionals will evolve from collective (Civil Service) to individual based on productivity with careful assessment of the performance. Drug purchasing is negotiated between the Ministry of health and the industry. The rate of public subsidy a form of large purchasing, but not really price regulation is currently under debate. Also, generics are increasingly accepted by the medical profession and by the public 22. The acceptance of generic medicines by the medical profession and by the general population seems to be crucial for the control of the overall healthcare expenditure. DISCUSSION OF BENCHMARK 8: Performance reports are not regularly used, and there is no mention of its necessity in proposals. Also, no provision for accountability for reasonableness in difficult decisions. Some reasons, and some public discussion, was put forward with regards setting up funding that would contract with private sector as well. There is some improvement in the global budget accountability namely with regards the discussion at the Parliament of the reasons for a specific health care budget. Physicians, as well as other health professionals, are very well organized into unions, and professional orders (medical council). Unions have mainly economic and career purposes. As far as accountability is concerned there is some public mistrust with regards conflict of interest in pharmaceuticals prescription. The EU Directive 22 These authors have stated that as long as freedom of prescription is generally accepted as the standard for clinical practice, medical ethics should acknowledge the fact that resources are scarce and the use of genetic drugs might increase efficiency (value for money) and therefore can be considered as an ethical imperative, as long as the best interest of the patient is not at stake. Rego, G., Nunes, R., Brandão, C.: O mercado dos medicamentos: Concorrência e intervenção. X Jornadas Luso-Espanholas de Gestão Científica, Actas, Vilamoura,

15 92/28CEE is very clear with regards these issues. In particular, issues like the acceptance of gifts, loans, or hospitality are usually considered as unethical due to the moral risk involved 23. Legal procedures are increasingly dealing with this issue. Just a few days ago four doctors were criminally held accountable (passive corruption) for accepting illegal and unethical gifts from the industry. Non-legal grievance procedures are not discussed in proposals. But, privacy protection is widely discussed in Portugal (both in the reform proposal as in the media) and patients frequently complain about lack of professional confidentiality. Although regarded as a right, access to medical records is not unlimited. Patients have no clear right to see the chart, although EU directives guarantees the right to access to personal data. Portuguese lawyers do not interpret this as right to see the chart, rather as a right to write and get the information contained. Some development of advocacy groups intervention in public policy, eg disabled, HIV patients, prisoners, has occurred. There is not a strong women s health movement probably because reproductive health has been usually one of the most important health issues. Cancer advocacy groups have been a partner for a long time now. Stimulating public debate is not high on current political agenda. DISCUSSION OF BENCHMARK 9: The reform proposals usually agree that there should be no assignment of people to Primary Care providers (GPs) but rather people should have the right to choose. It is also a common complaint of most citizens the fact that the family doctor is administratively assigned. In the NHS now there is little or no autonomy in choice. Patient is assigned to doctor both at the hospital as at primary care. On coming to a particular NHS facility for treatment, the physician is assigned permanently. If a second opinion is needed, recent proposals, and its implementation, guarantee this right. There is a governmental chart of patient s rights that acknowledges this possibility 24. Referral by the GP to a speciality is to a specific hospital, but not to a specific doctor. Administratively the person is assigned to particular specialist. Proposals do not solve this problem. There is some limits put on the degree of choice. Probably, in the future, it will be possible also to choose the specialist but always after referral by primary care doctor. Alternative providers are not in system, so there is no current choice. In private practice, patients get full choice of specialist only in a few subsystems and in out of pocket payments. More and more Managed Care limits the choice of specialist. Current NHS loses out on content of deepening the relationship between patient and physician because assigned patients are not the ones to whom doctors feel as close or as much responsibility. 23 Only in specific circumstances might it be proper for doctors to accept a grant which enables him to travel to an international conference or to acceptance, by a group of doctors who attend sponsored postgraduate meeting or conference, of hospitality at an appropriate level, which the recipients might normally adopt paying for themselves. See (British Medical Association, 1993). British Medical Association Medical Ethics Today: Its Practice and Philosophy. BMJ Publishing Group, London, Carta de Direitos e Deveres do Doente, Direcção-Geral da Saúde, Lisboa,

16 As stated previously, physician autonomy is wide. Medical Council wants full independence of physicians to write prescriptions, exams, access to diagnostics. More and more in the NHS and in private insurance, there is some compromise of autonomy. In practice, when a hospital has a true management policy it will inevitably lead to diminished professional autonomy. Public sector contracting with these hospitals will encounter restrictions on autonomy. So reform proposals might lead to negative scores on physicians autonomy. But it must be emphasised that in Portugal physicians have almost unrestricted autonomy, and even informed consent policies are only recently been accepted as a fundamental issues in medical ethics. Gradually more doctors inform patients about options and give them some opportunity to choose between medical options. Some doctors are less oriented to informed consent, especially surgeons in private practice. Reports push for good ethical standards on informed consent, but do not specifically say how this will be achieved. Best practical way is to get a second opinion right. 5- SCORING (ANNEX) In this study it will be used the original methodology for scoring the benchmarks (USA). The scoring system takes the status quo as a 0, assigns a maximal positive outcome a 5 and a maximal regression from the status quo as a -5. As Daniels points out it remains clear that these (numbers) reflect the ordinal rankings on complex dimensions, not cardinal measures of some quantity. The purpose of actually assigning scores for each criterion is to force deliberation about the specific, interacting effects of the reforms being compared. In this vein the rationale that explains the score in a particular benchmark is probably more important than the score itself. 6- CONCLUSION It is commonly accepted that a right to health care protection, or at least to health care access, is a social right in most pluralistic societies 25. At an European level guidelines regarding healthcare delivery do exist, namely the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine 26 claiming for a universal right to healthcare delivery taking in consideration the financial restrictions of the system promotes this point of view. However, some authorities, such as H. Tristram Engelhardt Jr., claim that natural and social lotteries are the result of natural forces, not the actions of persons and also that it may very well be unfeeling or unsympathetic not to provide such help but it is another thing to show that one owes others such help in a way that would morally authorise state force to redistribute resources. This author also states that a basic human right to the delivery of healthcare even to the delivery of a decent minimum of healthcare does not exist Daniels, N., Just Health Care. Studies in Philosophy and Health Policy, Cambridge University Press, New York, (1985) 26 Convention of the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine. Council of Europe, Strasbourg, November, Engelhardt, H., The Foundations of Bioethics, Oxford University Press, New York, (1986). 16

17 In this context the assessment of fairness in health care must take into consideration different perspectives of distributive justice, namely equality of opportunity, autonomy and freedom of choice as well as utilitarian values. Specially when all countries face the issue of shortage of resources. In fact, the increasing costs to health care mainly due to scientific/technologic development, increasing age of the population and consumerism make it an ethical imperative as well as an economic one, to establish priorities in healthcare delivery and access. These authors believe that the Benchmarks of Fairness for Health Care Reform is a useful tool not only to assess the fairness of reform proposals in developing countries but also in developed countries with a long standing experience of health care delivery. Namely in European Union countries where for many different reasons there are unjust circumstances in the financing, access and degree of choice of consumers. With regards Portuguese reform proposals, it must be noted that although the per capita GNP of this European Union country is 1/3 of the American one, many health indices score higher in Portugal than at the USA. Probably due to the fact that a public service (NHS) does exist, that protects the health of all citizens, and also due to a decrease of economic and social disparities between well and worse off segments of the population. Nevertheless, some important aspects of fairness are still at stake, namely waiting times to surgery and access to GPs and hospital care within reasonable period of time. Also economical efficiency (value for money) must be increased so that scarce resources can be used to increase access to a reasonable level of health care. The next step will probably be the implementation of a true democratic accountability process and also some degree of empowerment of citizens and groups of citizens (like the disabled). Also it will be possible to expand this evaluation to developing countries where (the) special cultural and linguistic connections will make it easier to evaluate proposals as well as implement the reform. As could be the case with the (as a possible) expansion of this study to Angola, Mozambique, Guinea-Bissau, and even Brazil. 17

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