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Volume 9, Number 3, December 1998
Assisting Those Infected with Hepatitis C
Glenn G. Griener, PhD, Associate Professor People infected with hepatitis C through tainted blood and opposition politicians have attracted extensive coverage to their criticism of the government's handling of the blood scandal. But surprisingly little attention has been paid to the details of the moral arguments. An analysis of this important social issue should start from our points of agreement. Government programs ought to assist all of those who contracted hepatitis C from the blood system. What form should this assistance take? There is consensus about providing medical treatment: it should be covered, and the health care insurance plan is the appropriate mechanism for doing this. It is worth noting that access to this medical assistance is not restricted on the basis of mode of infection. Access is based simply upon the need of the person and the efficacy of the care. The person who contracts hepatitis C through a transfusion of tainted blood has exactly the same entitlement to treatment as someone infected through occupational exposure or sharing needles. The issue of responsibility for the disease - either the patient's responsibility or others' - simply does not arise. Serious dispute arises when we consider financial assistance. The government has put a billion-dollar package of assistance on the table. But this offer is extended only to people infected between January 1986 and June 1990. (Details of how this pie will be divided, including how big a slice the lawyers will get, is to be determined through negotiation.1) Public controversy centers on the inclusion criteria. Critics hold that the government makes a fundamental mistake by drawing distinctions among the members of a homogeneous group. Pundits and philosophers assert that the government financial offer should assist all those who became infected through tainted blood. Unfortunately, these commentators seldom spend much time explaining how they reached this conclusion. We are left to reconstruct reasons why assistance ought to be offered indiscriminately. One attractive response appeals to our compassion. These, our fellow citizens, have special medical and social needs and we Canadians look after the needs of our neighbours. This call for compassionate financial assistance appeals to the same considerations which are at play in government aid programs for our fellow citizens who are harmed by such natural disasters as last winter's ice storms. The appeal to compassion not only provides a rationale for financial
assistance, it also suggests a way to calculate the amount. In the
other examples where compassion comes into play, assistance usually
takes the form of reimbursement for out-of-pocket expenses or for actual
losses. Those who suffer through the ice storms without suffering such
tangible loss do not receive any money. There are two problems with the appeal to compassion. The ice storm model suggests that financial assistance to hepatitis C victims should be linked either to actual need (e.g., direct payment for special medical or social services) or to actual loss (e.g., replacement of income lost due to illness.) This model, however, does not yield the desired conclusion that all who contracted hepatitis C through tainted blood should receive financial assistance. It fails to do this for the simple reason that not all of these individuals has encountered special needs or suffered financial loss. The varying estimates of how many people were infected show that, for some, infection with hepatitis C has had no effect on their lives. This is not to say that it will never have an adverse effect, of course. A just plan for compassionate reimbursement must include measures to provide for needs that will not arise until the future. But some who are infected may never have such need. The second problem with the compassion argument is that individuals who contracted hepatitis C from tainted blood are not unique in their need; others can make similar appeals to our compassion. Some of our neighbours contracted hepatitis C from sources other than tainted blood, for instance, from shared needles. One might limit the reach of compassion's appeal by drawing a line on the basis of individual responsibility. Those infected through tainted blood typically acted responsibly in consenting to needed medical treatment. Others with hepatitis C are infected as a result of their own irresponsible behavior. The pull of our compassion needs to be limited. We should have compassion for the 'innocent victims', for those who became infected through no fault of their own.2 While the limited-compassion approach excludes some of those infected with hepatitis C, it still extends financial assistance to many of our fellow citizens other than those with this disease. There are others who, through no fault of their own, have suffered medical mishaps which create special needs. Often this has happened as a side-effect of consenting to medical treatment, and without any negligence by the providers of that care. There is no obvious reason why those infected with hepatitis C are uniquely deserving of our compassionate financial assistance. The limited-compassion argument points toward the need for a no-fault plan to cover all those who suffer medical mishaps.
One can simply deny that this is relevant to the issue at hand. The unmet need of others provides no reason for denying assistance to hepatitis C victims. Rather, it stands as a reason for expanding Canada's social welfare programs to meet real needs which currently go unmet. But going down this route we discover the federal government's concern that providing financial assistance to all who are infected through tainted blood may expose the public purse to overwhelming demands. Whoever suffers some injury as a result of medical treatment could make the same claim for financial assistance. Providing assistance to hepatitis C victims might create a no-fault insurance scheme by default. (Mr. Justice Krever, who recommends the creation of a no-fault assistance plan for those infected through tainted blood, explicitly recognizes this problem. He leaves it for others to solve, quite appropriately wrapping himself in the narrow mandate of his commission of inquiry.3) This is not the place to explore the considerable merits of a no-fault assistance plan. But we can at least raise a warning about political process. Our government should be wary of blundering into such a plan as the result of an ad hoc solution to a current pressing problem. Fundamental changes in social policy should follow a serious public discourse. It might be argued that the discussion so far has ignored a crucial consideration: those who contracted hepatitis C through tainted blood are a homogeneous group (not just a political coalition) and their plight is unique. They are not just people who, through no fault of their own, have unmet needs; they are the innocent victims of someone else's wrongdoing. All of them have been wronged in this way. And they have been wronged even if their health has not, to date, been harmed. Because of this, they have a unique claim upon the public purse. Payment is not just reimbursement for the cost of additional care or replacement of lost income. Those in charge of the blood system failed to take appropriate precautions so they bear responsibility for the contracting of hepatitis C, therefore they should pay damages to their victims. The success of this approach depends upon establishing that those in charge of the system failed to take appropriate precautions. But when we examine this issue closely - taking into account how science, technology and standards of professional care evolve over time - it is hard to maintain that those infected through tainted blood form a homogeneous group. There are at least two, and possibly three groups, distinguished by when they got infected. On one point there is agreement. Since 1990 all reasonable steps have been taken to keep hepatitis C out of the blood supply. The implication of this agreement is significant, but seldom noted. Infections occurring during this most recent period are tragic, to be sure; but there is no reason to hold the keepers of the blood responsible for this outcome. In order to decide whether those infected before 1990 form one group or more we need to answer the following question: At what periods prior to 1990 did the blood system's practices fall below acceptable standards of care? The government clearly believes that appropriate standards were being met prior to 1986. Its critics disagree. We need some method of settling this dispute. The courts provide a mechanism, albeit imperfect, for doing this. The government's plan does not interfere with this legal mechanism for establishing liability. Several pundits try to change battlegrounds from the legal to the moral, opining that the government's decision, while legally correct, is morally wrong. In many situations moral obligations are more demanding than legal ones, so this sally is plausible. But we should expect more than mere plausibility. What we need here is a clear account of how the standards of moral responsibility differ from the standards of legal liability. Then we need an argument showing that the government fails to meet the former standard. Until these critics provide these details we may fairly suspect that they are merely squatters on the moral high ground. Dr. Glenn Griener is a Philosopher and an Associate Professor with the John Dossetor Health Ethics Centre at the University of Alberta.
Endnotes
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