Rationing, Irrelevant Utilities, and Inter vs. Intrapersonal distribution

This blog post was prompted by discussions with Frances Kamm, Jonathan Wolff,  and others after a great presentation Jonathan gave on the Valuation of Life and Health in Government Policies.

To return to an issue I have discussed briefly in other work, the question is how we should count very small gains in health for large numbers of people, a sub-set of the aggregation problem.  As I put the problem in a footnote in my Article Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012):

Utilitarians typically aggregate small harms to many people and count the sum. See, e.g., John Rawls, A Theory of Justice 23-24 (1971) (discussing the societal balance of present and future gains against present and future losses). The deontologist Frances Kamm has instead suggested that not all harms and benefits are equal, under what she calls the “Principle of Irrelevant Utility”: Suppose two almost identical individuals A and B are mortally ill and we have only enough serum to save one, but because of tiny differences in how much serum they need if we save A there will be enough serum left over to also cure person C’s sore throat, but if we save B there will not be. Kamm argues that it would be unjust in this circumstance to allocate the serum to A rather than B on this basis as opposed to holding a straight lottery between the two. If the sore throat is not enough to justify giving A preference over B when everything is equal, says Kamm, it is an “irrelevant utility” such that even if we could save not only C’s sore throat but a million such sore throats, for example, it would not matter; the utility bonus is irrelevant and therefore even aggregated in large quantities cannot count. Quite different, she claims, would be a case where in fact the serum enables us to save C’s leg, which would be a relevant utility. See F.M. Kamm, Morality, Mortality: Death and Whom to Save from It 144-63 (1993); Frances M. Kamm, To Whom?, 24 Hasting Ctr. Rep. 29, 31-32 (1994).

On the other hand, this principle may have counter-intuitive implications. To use an example suggested by John Broome, the National Health Service (the U.K.’s universal health care system) gives out millions of analgesics for headaches; at some level, due to health care rationing and fixed budgets, that means that someone’s life will not be saved.  John Broome, All Goods are Relevant, in WHO, Summary Measures of Population Health: Concepts, Ethics, Measurement and Applications 727, 727-28 (Christopher J.L. Murray et al. eds., 2002).

What came up over dinner, and I thought was particularly interesting, was the following question:

If one agreed with Kamm regarding the applicability of the principle of irrelevant utilities to interpersonal distribution of goods (and to be fair I am not sure I do), is the same true for intrapersonal distribution? Could an individual justifiably choose a health insurance plan that covered analgesics for headaches throughout his or her life but not expensive transplant surgery that is life saving? If the answer is yes, and it does seem to me it should be, does the implausibility of the irrelevant utility principle for intrapersonal distribution have ramifications for the plausibility in the interpersonal distribution case? One could, of course, distinguish what we would choose for ourselves from what we owe each other, but it is not so clear to me why the relevance/irrelevance of utilities ought not to carry over both categories. Anyways, I would be curious if others have thoughts. Though quite theoretical sounding, in fact resolving this issue is very important in figuring out how to run a health care system.

I. Glenn Cohen

I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).

0 thoughts to “Rationing, Irrelevant Utilities, and Inter vs. Intrapersonal distribution”

  1. Off the top of my head for now (i.e., tentative thoughts): Perhaps I’m being obtuse or missing something (or ‘had to be there’!), but are not ex ante determinations of relevant and irrelevant utilities (as ‘filter inputs’ or ‘exclusionary’ reasons, like, say, those we might ultimately base on the notion of ‘capabilities’ or on a conception of human flourishing; deontological principles—like ‘dignity’—or liberties or rights, on the other hand, often serving as ‘filter outputs’ or side constraints: ‘you can’t do that’ or ‘you’re entitled to that’) routinely made (even is there is disagreement for what does or does not count in such matters)? Utilitarianism in any case has never been good at, nor meant to address, exceptions to the rule, infrequent, or marginal cases. Counterexamples and hypothetical cases (especially as ‘thought experiments’) are often illustrations of what is non-standard or exceptional, but that does not detract from need for making some sort of interpersonal utility comparison (it only points to its limitations or circumscription).

    And I don’t think interpersonal comparisons of utility should be viewed on par with or necessarily seen as having implications for intrapersonal utility comparisons for many of the same reasons utilitarianism generally can and often does work as a “public philosophy” or guide in such matters as public health care or welfare provision but finds little favor or support as a personal ethics or moral worldview for individuals qua individuals (the role of intentions or motivations is, as in virtue-, Kantian-, and Buddhist ethics for example, more transparent and paramount). The variables used in individual decision-making are simply too many and too complex for determining what is reasonable or rational, or what is the proper thing to view it in terms of pure utility, owing to life histories (including developmental changes: biological, cognitive, psychological, moral…) and contextual factors (situational, environmental) of the sort we can and do set aside on the collective level in our aggregative exercises. In other words, and as Robert Goodin has noted, the sundry principled and specific (as worldviews and lifeworlds, the latter being more or less subconsicous or taken for granted) commitments, value clusters, and personal attachments and identifications of individuals can and often must be set aside or ignored as irrelevant to utilitarian decision-making which has a peculiar justification grounded in a kind of objectivity (as impartiality) and “neutrality” that does not apply at the level of the individual, while public officials in fulfilling their role responsibilities must often stow away, as it were, the ‘whole raft of baggage of personal attachments, commitments, principles, and prejudices’ in making public decisions (which does not mean they need not, on occasion, exercise individual judgment and discretion, but even here that exercise must have an appropriately ‘public’ grounding or justification owing, for instance, to the sort of principles and values one might find in a constitution or articulated by a political party). This is one reason we can make sense of, and accept or at least tolerate, the individual’s decision to fast, that is, starve herself, while starvation as a socio-economic condition is something we rightly find unacceptable and struggle to eliminate. Moreover, the consequences of errors, mistakes, or failures involved in interpersonal and intrapersonal comparisons are, so to speak, of different orders of magnitude, (consider too the ambit of ‘public health’ in relation to the meaning of ‘well-being’ or human flourishing, the former addressing the necessary but not sufficient conditions for the latter, although our individual and collective failures—including those that fall under the rubric of the ‘social determinants of health’—as regard to the ends of the latter often have deleterious consequences for the nature of the problems and kind of ills urgently in need of address in the former domain).

    I also think we should bear in mind the scope of interpersonal utility comparisons such that the Broome example simply reminds us the sum total of any or all of our aggregations will leave some measure of suffering or some injustice in place or unaddressed: here we must rest content with the greater good rather than the perfect good (wherein all lives are saved), which is perfectly acceptable given our sincere and best efforts to relieve or eliminate suffering and remove or remedy injustice.

  2. Fantastic post, Glen. What an interest talk that should have been… In a sense, the idea that there is this unreasonable gap between the individual and societal level when it comes to aggregating utilities, reminds me of Dworkin’s proposal in Justice in the distribution of health care. His idea was, if I recall it accurately, that individuals were not allowed to ask for health care provisions that they themselves would not provide for them have they the whole responsibility, and budget, to arrange their medical assistance for the future.

  3. Thanks to both of you for those great comments. Pablo, this discussion actually emanated from a discussion of Dworkin’s hypothetical insurance approach, as it happens, which led to a discussion of the Scanlonian “What We Owe Each Other” kind of approach versus the first-person approach. I want to chew more on what both of you wrote, but my initial reaction is something like what follows: Ceontologists may impose side constraints and Contractualists among others might support differences in what we would choose v. what we owe each other, BUT: To the extent a family of theories require some notion of well-being as an atomistic concept on which other things are grafted, for that atom of what maximizes well-being how much symmetry should there be between inter and intrapersonal conceptions of well-being?

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