Skip to main content
Log in

Procedural justice and democratic institutional design in health-care priority-setting

  • Article
  • Published:
Contemporary Political Theory Aims and scope

Abstract

Health-care goods are goods with peculiar properties, and where they are scarce, societies face potentially explosive distributional conflicts. Animated public and academic debates on the necessity and possible justice of limit-setting in health care have taken place in the last decades and have recently taken a turn toward procedural rather than substantial criteria for justice. This article argues that the most influential account of procedural justice in health-care rationing, presented by Daniels and Sabin, is indeterminate where concrete properties of rationing institutions are concerned. Such properties inscribe substantial norms into institutions. These norms can derive validity only from democratic majority decisions, which must be seen as an instance of pure procedural justice. We therefore have to move the discussion to a meta-level and ask how concrete properties of institutions are being chosen. I suggest four criteria for sufficiently democratic institutional design choice and conclude that as institutional properties are likely to have effects on the resulting distribution of health care, design choices should be empirically informed and taken both democratically and deliberately.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Whether health-care goods that are not publicly available should remain tradeable on the market is a controversial question. Some philosophers (for example, Gutmann, 1981) have argued that the private purchase of rationed health services should be forbidden to prevent inequalities. The problem with such ‘hard rationing’ solutions is that it is often difficult to distinguish health goods from ordinary consumption goods: how should we classify massages or cosmetic surgery?

  2. For accounts of deliberative democracy, see, for example, Gutman and Thompson (1996) or Dryzek (2000), as well as collections edited by Bohman and Rehg (1997) or Gastil and Levine (2005).

  3. The model was originally used to evaluate procedures in health insurance companies, meaning that the decisions studied were not political ones, and democratic legitimacy could not be a central issue. In his latest book, however, Daniels (2008, pp. 111–113) explicitly rejects majoritarian decisions on the distribution of health care.

  4. Rawls simplifies his assumptions by postulating normal functioning, thus factoring out the issue of inequalities resulting from differences in health status. Daniels (1985) has extended Rawls’s theory to address issues of health and health care in Just Health Care, but has revised some of his earlier arguments in Just Health (Daniels, 2008, see especially, pp. 46–63).

  5. Although much of the argument made here can be transferred to other policy areas, I would be less optimistic with regard to the protection of minority interests in meta-level decisions on the set-up of appointed bodies in, for example, education policy. Much depends on the degree to which we can conceive of ourselves as placed behind a veil of ignorance and on our capacity for compassion with, and responsibility for, negatively affected groups. I believe that both differ for different policy areas.

  6. A somewhat similar argument is made by Rid (2009), who views AFR as a case of ‘constrained pure procedural justice’.

  7. In a different context, Dennis Thompson has argued for democratic deliberation on the institutional design of political systems at large, using the term ‘meta-deliberation’, which I adopt here (see Thompson, 2008, p. 515).

  8. This kind of two-track model of deliberative democracy, in which public discourses are not institutionalized but nonetheless exert pressure on political institutions, is advocated by Jürgen Habermas (1996) and James Bohman (1996).

  9. See www.nice.org.uk/newsroom/features/CitizensCouncilReport.jsp.

References

  • Aaron, H. and Schwartz, W.B. (1990) Rationing health care – The choice before us. Science 247 (4941): 418–422.

    Article  Google Scholar 

  • Appleby, J., Devlin, N., Parkin, D., Buxton, M. and Chalkidou, K. (2009) Searching for cost effectiveness thresholds in the NHS. Health Policy 91 (3): 239–245.

    Article  Google Scholar 

  • Berg, M. and van der Grinten, T. (2003) The Netherlands. In: C. Ham and R. Glenn. (eds.) Reasonable Rationing: International Experience of Priority Setting in Health Care. Maidenhead, UK: Open University Press, pp 115–140.

    Google Scholar 

  • Bohman, J. (1996) Public Deliberation. Pluralism, Complexity, and Democracy. Cambridge, MA: MIT Press.

    Google Scholar 

  • Bohman, J. and Rehg, W. (1997) Deliberative Democracy. Cambridge, MA: MIT Press.

    Google Scholar 

  • Calabresi, G. and Bobbit, P. (1978) Tragic Choices. New York: Norton.

    Google Scholar 

  • Daniels, N. (1985) Just Health Care. Cambridge, MA: Cambridge University Press.

    Book  Google Scholar 

  • Daniels, N. (2008) Just Health: Meeting Health Needs Fairly. Cambridge, MA: Cambridge University Press.

    Google Scholar 

  • Daniels, N. and Sabin, J.E. (1997) Limits to health care: Fair procedures, democratic deliberation, and the legitimacy problem for insurees. Philosophy and Public Affairs 26 (4): 303–350.

    Article  Google Scholar 

  • Daniels, N. and Sabin, J.E. (2002) Setting Limits Fairly: Can We Learn to Share Medical Resources? Oxford: Oxford University Press.

    Book  Google Scholar 

  • Dryzek, J. (2000) Deliberative Democracy and Beyond. Oxford: Oxford University Press.

    Google Scholar 

  • Dworkin, R. (ed.) (2000) Justice and the high cost of health. In: Sovereign Virtue. Cambridge, MA: Harvard University Press, pp 307–319.

    Google Scholar 

  • Elster, J. (ed.) (1995) Introduction: The idea of local justice. In: Local Justice in America. New York: Russell Sage Foundation, pp 1–24.

    Google Scholar 

  • Fleck, L.M. (2009) Just Caring: Health Care Rationing and Democratic Deliberation. New York and Oxford: Oxford University Press.

    Google Scholar 

  • Gastil, J. and Levine, P. (eds.) (2005) The Deliberative Democracy Handbook. San Francisco, CA: Jossey-Bass.

    Google Scholar 

  • Gutmann, A. (1981) For and against equal access to health care. Milbank Memorial Quarterly: Health and Society 59 (4): 542–560.

    Article  Google Scholar 

  • Gutmann, A. and Thompson, D. (1996) Democracy and Disagreement. Cambridge, MA: Belknap Press.

    Google Scholar 

  • Habermas, J. (1996) Between Facts and Norms. Cambridge, MA: Blackwell.

    Google Scholar 

  • Holm, S. (2000) Developments in the Nordic countries – Goodbye to the simple solutions. In: A. Coulter and C. Ham. (eds.) The Global Challenge of Health Care Rationing. Buckingham and Philadelphia: Open University Press, pp 29–37.

    Google Scholar 

  • Jacobs, L., Marmor, T. and Oberlander, J. (1999) The Oregon Health Plan and the political paradox of rationing: What advocates and critics have claimed and what oregon did. Journal of Health Politics, Policy and Law 24 (1): 161–180.

    Article  Google Scholar 

  • Lafont, C. (2003) Procedural justice? Implications of the Rawls-Habermas debate for discourse ethics. Philosophy and Social Criticism 29 (2): 163–181.

    Article  Google Scholar 

  • Landwehr, C. (2010) Discourse and coordination: Modes of interaction and their roles in political decision-making. Journal of Political Philosophy 18 (1): 101–122.

    Article  Google Scholar 

  • Landwehr, C. and Böhm, K. (2011) Delegation and institutional design in health care rationing. Governance 24 (4): 665–688.

    Article  Google Scholar 

  • Levine, C. (2009) The seattle ‘god committee’. A cautionary tale. Health Affairs Blog, accessed 13 September 2011.

  • Manning, J. (2005) Prioritization: Rationing health care in New Zealand. Journal of Law, Medicine and Ethics 33 (4): 681–697.

    Article  Google Scholar 

  • McKie, J. and Richardson, J. (2003) The rule of rescue. Social Science and Medicine 56 (12): 2407–2419.

    Article  Google Scholar 

  • Miller, D. (1999) Principles of Social Justice. Cambridge, MA: Harvard University Press.

    Google Scholar 

  • Norheim, O.F. (2003) Norway. In: C. Ham and G.B. Robert (eds.) Reasonable Rationing. Maidenhead, UK: Open University Press, pp 94–114.

    Google Scholar 

  • Nussbaum, M. (2006) Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge, MA: Belknap Press.

    Google Scholar 

  • Rawls, J. (1995) Reply to Habermas. Journal of Philosophy 92 (3): 132–180.

    Google Scholar 

  • Rawls, J. (1999 [1971]) A Theory of Justice. Cambridge, MA: Belknap.

    Google Scholar 

  • Rid, A. (2009) Justice and procedure: How does‚ ‘accountability for reasonableness’ result in fair limit-setting decisions? Journal of Medical Ethics 35 (1): 12–16.

    Article  Google Scholar 

  • Scharpf, F.W. (1989) Decision rules, decision styles and policy choices. Journal of Theoretical Politics 1 (2): 149–176.

    Article  Google Scholar 

  • Thompson, D.F. (2008) Deliberative democratic theory and empirical political science. Annual Review of Political Science 11: 497–520.

    Article  Google Scholar 

  • Walzer, M. (1984) Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books.

    Google Scholar 

Download references

Acknowledgements

The author thanks three anonymous reviewers and the editors for helpful comments on earlier versions of this article, as well as the VolkswagenStiftung for funding the research that this article is based on through a Schumpeter Fellowship.

Author information

Authors and Affiliations

Authors

Rights and permissions

Reprints and permissions

About this article

Cite this article

Landwehr, C. Procedural justice and democratic institutional design in health-care priority-setting. Contemp Polit Theory 12, 296–317 (2013). https://doi.org/10.1057/cpt.2012.28

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1057/cpt.2012.28

Keywords

Navigation