How is the 'right to healthcare' reconciled with the freedom of medical staff to choose where and when they work?

Question

Medical staff consisting of doctors, nurses, nurse practitioners, etc...

The reason for asking is because there doesn't seem to be any theoretical explanations reconciling these competing rights. (At least not discoverable via my google searches)

But clearly the practical decisions for making this tradeoff happen everyday, as no hospital, or healthcare system, has unlimited resources.

Is there any political theory, or any other explanation, as to how this is resolved?

The question only applies to countries where both set of rights are 'guaranteed'.

Answer 1

There are two different aspects to this apparent contradiction. When a government signs up to a human rights convention which guarantees a right to healthcare, it needs to pass domestic legislation to make this happen, and there are many possibilities how that is done.

• They could offer healthcare which is free (for the patients) and available in all regions, like the UK NHS.
• They could offer a system of health insurance where everybody should have an insurance policy unless they are otherwise covered, like the gesetzliche Krankenkasse in Germany.
• They could offer a system where only those who cannot afford their own coverage get subsidized healthcare, like Medicaid in the US.

In each of the examples, it is possible that individuals will "slip through the cracks" of the system. The question then becomes how the country handles those individuals. But you will note that the three points above answer "who pays" and not "who actually provides care." The capitalist assumption is that when someone is willing to pay, then someone will be willing to provide the service.

Here, the law of large numbers comes into play. It is a law of statistics, not a law passed by a legislature. When the sample of a statistical experiment is large enough, the outcome will tend towards the distribution of the experiment. That is, any one doctor or nurse has the right to retire, but the probability that all doctors or nurses in a country retire at the same time is close to zero.

When a country notices an imbalance, it has time to take action, e.g. by raising salaries, by offering free tuition to students who promise to go into unpopular regions, by subsidizing better facilities and hoping that people will want to work there.

There are significant problems in Europe regarding healthcare and retirement home staffing, which are affected by the freedom of movement for health workers.

• The UK problems to staff the NHS seem to be aggravated by Brexit, because foreign workers could not come any more.
• The German problems to staff retirement homes are helped by hiring workers from Eastern Europe (by paying more), but that complicates the situation in their home countries.

Answer 2

The answers will vary based on the country you are talking about.

Not every country promises a "right" to healthcare. Not every country allows its people to choose conditions under which they work. That is an important caveat to state up front.

Most people who talk about "healthcare as a right", at least in the United States, are making an empty rhetorical flourish.

That is, to say "healthcare should be a right" is really a highly moralistic way of saying "I think healthcare is very important." It's hard to discuss such statements seriously in the context of your question, since the entire point of this construction is to avoid discussing the logistics and economics of actually supplying everyone with healthcare that is "good enough." People who say this don't really want to get into a discussion about economics; they want you to agree with them that they are good people for caring about others. You really shouldn't attempt to enter into a serious analysis of such statements unless the person also is presenting a policy proposal that has real detail. You'll just end up making the other person confused and angry.

That said, I think the conflict here is worth talking about anyway, so we should start by clearing up some terminology.

What is a "right" anyway?

There are actually two kinds of rights relevant to your question. Positive rights are those which assert that you have the right to be provided something, like in the United States, how everyone is entitled to legal representation in a criminal trial. Negative rights are those which assert that you are not subject to action taken by someone else, such as the right not to be prevented from practicing the religion of your choice (including none at all). Sometimes, positive rights are also known as entitlements, and negative rights are also known as liberties.

The combination of entitlements and liberties within any given society are not guaranteed to create an economically optimal outcome, and often do not.

Your question presumes implicitly that, if we assume that there is some serious entitlement for a good or service that conflicts with liberties of people in society, that someone has noticed this and would fix it in some way in some economically beneficial fashion, e.g. to produce "good enough" healthcare for everybody in this case. This almost never actually happens, because this business of liberties and entitlements is actually a superposition that emerges from competing concerns within society going back centuries, almost none of which have anything to do with optimal socio-economic outcomes. Such superpositions emerge and become stable because of how differences in values between various people get resolved. Values are at best difficult to assess objectively for any non-trivial moral question.

So what ends up happening typically is that the values of the society are what they are, and then the economic outcome is the result of objective reality not being optional. If people don't like that outcome, they try to add entitlements or take away liberties to address it. Either one of those is hard to do, so there's actually no guarantee that it works out.

Answer 3

Just take Germany as an example. Some people have private health insurance. There the market regulates how much healthcare everyone can buy for itself. If you pay more, you get better treatment, if you pay less, probably worse. And there is the public health insurance system. More or less everyone can be member of that even if you have no income at all (if you live on social security you still are entitled to health care). The government can then further subsidize the health system by tax money if it deems it necessary and on the other hand if sometimes in some regions the health system is operating at the limit of what it can do, quality of medical treatment suffers. Waiting times for important health treatments may become longer and longer. Voters will then decide if either more money should be inserted in the system or the standard of care level should be reduced.

Indeed nobody is forced to work in the medicine sector. People who work there are doing it (as for almost every other job) for the financial compensation they obtain for doing their job. Sometimes they are going on strike for a better salary and there may be said much, much more about what is working currently and what isn't and many things could work better, but basically it comes down to:

• sufficient financial compensation of health care workers
• payments by the customers with a subsidization of those with low or without income
• more or less smart regulations in the middle

Or even shorter, the voters decide how much health care they want to pay for and get. You simply spend money and get some amount of health care in return. And in general it works. It's not as if people are totally opposed working in health care and it's also not as if everyone expects to get royal treatment without paying for it.

That's how it works for the moment. However, should there ever by a real shortage of health care workers I could imagine the government to try to "persuade" more people working in that profession outside of financial incentives.

Btw. what rights to health care treatment are we talking exactly in the case of Germany? In the constitution there is only the "Personal freedoms: Every person shall have the right to life and physical integrity." and the "Constitutional principles: The Federal Republic of Germany is a democratic and social federal state.". A scientific study therefore concluded that the government is constitutionally obligated to build a health care system, but there is significant leeway how exactly this system must be designed and what level of care needs to be provided. The details of the German health care system are then laid out in normal laws in social code 5. The social code 5 gives a framework "Insured persons are entitled to benefits in accordance with the following provisions..." but never specifies the exact guaranteed amount of benefits. If anything they go into the opposite direction stating that money should not be wasted "The services must be sufficient, appropriate and economical; they must not exceed what is necessary.".

And indeed health care is rather quantitative, you can have a lot of it or rather less. One can still speak of a right to health care without specifying exactly how much this benefits this will include. It's a very practical solution to the problem of this question.

Answer 4

It's worth pointing out that this 'right' is an ideal. In practice, very few people in any profession have an absolute right to choose where and when they work. Medical professionals (in this instance) need access to labs, medical devices, sterile environments, pharmaceuticals, and support staff. Unless they are small-town GPs with their own home office and a family member who acts as nurse and receptionist — a practice that is intrinsically self-limiting — they are obliged to work for a hospital or medical facility that gives them access to resources. They can (obviously) choose not to work at any specific facility, but they must work at some facility, and at the facility they do choose they are contractually bound to do what administrators ask of them.

Now, governments ensure that rights are protected by instituting civil and criminal penalties for violations. Whenever someone forms a corporation they are bound by any laws that the government has issued for that type of corporation. Any medical facility that refuses to comply with government regulations can face fines, closure, and even dissolution. Individual practitioners might refuse, but they would be fired from facilities that need to comply with the law, and might face fines, malpractice suits, or the loss of their (state issued) licenses. This creates a kind of attrition: people unwilling to conform to healthcare laws are gradually weeded out and forced to pursue other careers, while those who do conform are rewarded.

Answer 5

It’s a right to some level of healthcare, not to all that may be desired, so it does not conflict with the freedom of potential healthcare workers.

In practice, first the government determines what fraction of GDP to redirect into public health (through taxation and funding). Then the public health system takes this finite pool of funding and allocates it, setting the salaries and positions. People who are suitably qualified can freely chose whether to pursue these positions or not. (They are theoretically free to reject the terms and may instead seek other work, possibly even in the same industry if there is a parallel private healthcare system). The hospital thus has a finite amount of healthcare it can provide, and triages patients (distributing the finite healthcare to maximise the community benefit).

So while every citizen who can attend the hospital usually gets access to at least basic emergency care, they generally do not get to select their medical staff and do not have unlimited choice of treatment option. Some (elective) treatments may have long waiting periods (which effectively reduces demand), and treatments of comparatively questionable efficacy may be withheld (such as limiting end-of-life interventions or excluding cosmetic procedures).

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Note, the "right" entitles access to healthcare but does not guarantee delivery of healthcare. Firstly the patient (or someone on their behalf) must approach and seek the care, and consent to treatment. (A person who has remotely situated themself or is uncooperative will need additional care which may be less readily available.) Then, it is obviously unreasonable to expect equal outcomes regardless of individual condition. It is akin to how the right to vote does not necessarily equate to direct democracy nor a polling place in the convenience of your home (although the latter could be perfectly secure if we did not require anonymous ballots). Rather, this right means that some level of services will be made available to the community and that individuals will not be discriminated among on the basis of their individual capacity to pay. (It implies healthcare should not threaten to bankrupt, and ideally is provided to individuals without charge, although charges set as percentages of future income and estate would seem quite defensible.) I get the impression that the OP may be trying to have a semantic argument (that the individual's right is violated unless the rest of society is at all times poised to provide them every possible care the instant they may need it), but note rights lack objective existence and must be understood in the context as legal constructs or philosophical rhetoric, which constrains how rights should be interpreted.

Answer 6

From what I know from the situation in my own land, the Netherlands, a distinction is made between "classic constitutional rights" and "social constitutional rights".

Classic constitutional rights are things like freedom of expression, religious liberty, the right to fair elections, no cruel punishments. These rights are absolute and enforceable in court.

Social constitutional rights are things like the right to education, healthcare, housing, etc. These rights are generally not enforceable (by an individual) through the courts but more of an ideal the government should aspire for.

https://www.rijksoverheid.nl/onderwerpen/grondwet-en-statuut/grondwet

Answer 7

You should see the right to the healthcare as a part of the forest, not as a single tree

The right to the healthcare is a part of the whole human rights system, it can't be considered separately.

If you consider it separately, it might seem like a paradox. Say, the people in the given country are prejudiced against people of Asian origin, and many doctors refuse to handle patients with Asian look, and consider it their freedom to refuse to handle people they consider less worthy than Europeans.

However, in a country which implements human rights as a whole, and not only cherrypicked parts of them, such behavior would be considered unacceptable because of general principle, that people are equal independent of racial origin (and religion, sexual orientation, education, income etc.). In such country, someone's 'freedom to be a racist' would not even be considered as a protected value, since it collides with other principles of human rights.

The right to the healthcare means in practice, the medical staff is not allowed to arbitrarily choose whose life is more 'worthy' based on their prejudices, and the government is obliged to provide as much resources as necessary. In case medical stuff is limited, a fair system is required to be created to handle that case, eg. handling emergencies first, and queuing others based on the registration date.

Answer 8

Is there any political theory, or any other explanation, as to how this is resolved?

The political theory applicalble in this case is called balancing of rights (and interests).

As mentioned in another answer, due to statistical distributions, it's seldom the case that healthcare workers have to be forced to do anything, and carrots often work better than sticks, but sticks are used sometimes. E.g. during the panedmic Canadian healthcare staff had their vacations terminated, Hungarian staff [in the public sector] could be transferred to another employment location for up to two years etc.

Answer 9

It is easy if you have the correct framework, specifically if you distinguish between "opportunity" and "outcome".

The right of the patient is the right to an opportunity.

I.e., from a humanistic point of view, every person should have the right to at the very least have access to healthcare ("access" in the sense that the laws do not forbid it). This does not mean that every person has the right to have a successful outcome.

Reasons for having a negative outcome while having access in the first place are manifold:

• No cure might be known, or a cure might just not work (e.g., cancer and other "hard" illnesses).
• The patient might decide to not accept treatments (e.g., a cancer patient declining chemo).
• The patient may not be able to reach the treatment in time (e.g., a hiker being injured deep in the woods, not making it out in time, even though he would likely be saved if he made it to a road)
• ... and so on and forth ...
• And finally of course the reason you are asking about: medical supplies, including staff, processes etc. may not be sufficient; maybe due to medical staff exercising their freedom to move elsewhere.
• The one reason that is not allowable is for a state, politics etc., to set rules that actively forbid a particular patient to get treatment point-blank for nefarious reasons. I.e., based on skin color or other discrimination.
• The feature of the medical system that contradicts the previous statement is "triage", which is a whole topic for itself and is often quite complicated for the persons involved; and of course, law should not be such that it makes triage a hidden or open form of invalid discrimination.

The exact same reasoning goes for medical staff: in short; they have the right to the opportunity to move wherever they want. They do not have a guarantee on the outcome of their wishes, and there may be many reasons why a move cannot happen. But the one reason that is not possible is that they are point-blank forced to move to location X to fulfill a vacancy (even if something like that happens, they are always free to quit - i.e. there is no slavery). This is not a complete theoretical impossibility (i.e., for public school teachers, in Germany, the state can definitely force them to move to certain districts; the same is, to some extent, possible for catholic priests and so on and forth - but I have not heard of it for medical staff).

Answer 10

Theoretically, the government could treat this similarly to the way they handle their military. If there are places where doctors are needed, but not enough are voluntarily located there, they could institute a draft and forcibly relocate doctors there.

This isn't so far-fetched. If you recall the TV show MAS*H, a number of the doctors had been conscripted into the armed sercices so they could be located at the field hospitals. This was not artistic license, the US Selective Service Act of 1948 included an actual "Doctor Draft".

In practice this type of forced relocation would rarely be needed. Governments can generally use financial incentives to locate medical personnel where needed. For instance, they might subsidize the education of medical students, on the condition that they'll work where needed upon graduation.

Answer 11

There is a flaw in your question. Medical assistance appears as if it were just a voluntary practice. But actually it is a job as all the others. Of course, it requires some dedication, a long training and the duty to be available in case of emergency, but it is still a job.

Whoever is managing the healthcare facilities should classify all the workplaces and the time shifts and then offer for each of them a job properly paid. Of course the most convenient workplaces and time shifts will have a lot of applicants. But if the offer is adequate the healthcare manager should be able to fill all the needs. This is a normal working contract, offering a job for a night shift does not violate any right.

If many places are today uncovered it is a complex problem involving the right pay to attract workers and the size of the educational structures to create enough trained workers. But this has to do with the economy, people rights are a side, often unrelated issue. (I am saying often because I am not ruling out that in some cases people might be pressured to cover some roles).

By the way, I am surprised to see so many highly voted answers mentioning as a solution the use of private care. In this context public or private makes absolutely no difference.

Answer 12

There are no 'absolute rights'. You may have a right to health care in some countries, and the doctors may have a right to live wherever they want.

If doctors don't want to live in remote small town X, then government may try with extra pay or other perks (like free housing) to attract someone. Such approaches may work – or fail. There are places with no local doctor, because no doctor currently wants to work there. A medical emergency then involves waiting for a helicopter. If the weather is too bad for flying, then the government have simply failed to provide the service you have a 'right' to get.

Answer 13

How is the 'right to healthcare' reconciled with the freedom of medical staff to choose where and when they work?

It's easier to focus first on the supply side. The freedom to choose where and when they work doesn't mean a freedom to do so without consequences.

If medical staff work less, they get paid less. No one has an obligation to hire them and no one has an obligation to seek out their services if they are self-employed. Medical staff aren't compelled to work anyplace or anytime in particular, but if they don't work at some place and time where their services are needed, they will find that they aren't medical staff any more, they are just medically trained unemployed people.

Likewise, a right to healthcare, isn't unlimited. It doesn't have to be free. And, the issue of there being a person that not a single medical professional is willing to serve turns out to be a purely hypothetical one in practice. Government has to support a right to healthcare sufficiently to provide everything who needs it by a government definition with the ability to get it (or compensation when it fails to do so).

Almost no rights are absolute and governments generally get to decide how to go about providing them in a reasonable way within the realm of the possible.

Answer 14

I think it's worth considering how courts actually deal with cases where rights to certain services from the government are infringed. I'm most familiar with the United States, so I'll use examples from there, but since there is no established right to healthcare in the US, I'll use another example: education. The right to education in the US is also a bit tenuous, but we can look at some example lawsuits to see how this sort of right is litigated.

Students in Detroit filed a lawsuit arguing that they had a basic right to literacy education, and that this right was being infringed by the State of Michigan through the poor state of Detroit schools:

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0124p-06.pdf

https://www.edweek.org/policy-politics/right-to-education-ruling-jolts-education-advocacy-world/2020/04

Ultimately, the court did not need to decide on relief because the parties settled; specifically, the state paid money to the plaintiffs, paid money to the district for literacy programs, and proposed legislation for additional funding.

There are some similar cases:

https://edsource.org/2022/the-right-to-read-it-took-a-lawsuit-against-california/678069

https://www.justice.gov/crt/case-document/adams-12-five-star-school-district-settlement-agreement

https://lancasteronline.com/news/local/judge-rules-in-favor-of-school-district-of-lancaster-5-other-districts-in-landmark-education/article_c84c9bdc-a731-11ed-b005-f7b50beb9dfe.html

I would expect that lawsuits about the right to healthcare would play out similarly. Courts often can't directly fix things that are broken: if your neighbor burns your house down because they don't like the color you painted it, a court can't order your neighbor to un-burn the house, but they can order that they pay damages equivalent to its value. Courts will try to find the amount of money that can fix the problem in some way, but they often expect all parties to be reasonably flexible in some way. That might mean money directly to plaintiffs in a remote area, who could use that money to travel somewhere else for care: the plaintiffs who have a right to healthcare don't necessarily have a right to not ever travel for that care.

It might mean money to local governments, to directly hire workers and pay them the wage necessary to get them to work in whatever conditions necessary. It might mean money to educational institutions to subsidize training of healthcare staff to correct a market shortage. And, it's also quite likely courts will give broad orders that give legislative bodies a lot of leeway on how they want to implement changes to comply with the court's finding.