Can We Trust Markets When It Comes to the End of Life?

Daniel Fleming

ABC Religion & Ethics | 15 June 2017

Last year, Canada legalised physician assisted suicide and euthanasia (PAS-E). Following this, a recent report noted: "Medical assistance in dying could reduce annual health care spending across Canada by between $34.7 million and $138.8 million."

That such a report was undertaken in the first place highlights the role that money and markets inevitably play in the roll-out of any such legislation, or any major social intervention. As the Harvard philosopher Michael Sandel has demonstrated, when money gets involved, moral issues arise beyond those intended by advocates and legislators.

This fact is neglected in Australia's current debate on the issue, which centres largely on the morality (or not) of the acts of PAS-E themselves. What might the implications of the market's involvement be if or when this legislation passes? How might we think through the implications of this?

These are complex questions because they touch on our economic ideologies, which means that some background work is required at the outset.

Slavoj Zizek has recently remarked concerning current attempts to develop technology that will provide an interface between the human brain and software, that "[e]very technological innovation is always first presented like this, emphasizing its health or humanitarian benefits, which function to blind us to the more ominous implications and consequences."

Zizek's comment rests on the observation that once new technologies find their way into a social context they inevitably become governed by the predominant ideology of that context. This happens quite apart from the intentions of those introducing them. The point is that the ideology has an objective force which assures that its predominant value set is enforced, even where that is at the expense of the intentions for which something was introduced. In our case, that ideology is predominantly free-market, global capitalism.

Transport provides an example of this. Imagine a city which opened train stations to service its international and domestic airports. These were planned by government to achieve greater accessibility to the airport, reduce traffic congestion, and provide a cost-effective and environmentally friendly alternative to driving. Most would agree that these are noble intentions. According to Zizek's analysis, however, the more interesting insights will be seen when those intentions find their way into the ideological context of global capitalism.

Imagine that the airport stations could not be sustained by the government's budget, and are now owned by a large multi-national bank - a company whose primary objective is not the facilitation of transport but the raising of profit. Apropos of this, while the stations still serve their originally intended purpose and do so well, from the perspective of their owner this is ancillary to their now primary purpose, which is the raising of profit for their shareholders. Anyone who has taken the airport line experiences this: a train from the city's Central Station to a public station on the same line, one stop after the airport, costs an adult $2.36 off-peak; the same trip, ending one station earlier at the privately owned International Terminal, costs $16.16.

A key part of this observation is noticing primary and secondary purposes. When things are functioning smoothly in the case of the airport train stations, it is possible to blur the lines between them. However, this does not reveal their primary purpose and the value set that underlies it.

There is a simple test to determine which of these purposes is primary: would the large, multi-national bank retain their stake in the train stations if they no longer contributed to their profit? The values of the market are primary here, and when push comes to shove they will win the day.

The imaginary example is of course based on Sydney airport and its train line, and the cost of travel cited is current as at time of publication. The train makes possible a certain margin on a private company's profit line. This happens while also achieving the originally stated and no doubt genuinely held intentions of those who brought the airport line into existence, which is no longer the primary purpose, but is held together with it. The cost increase is a qualitative change in the achievement of that purpose.

Zizek's consistent argument has been that the values of global capitalism are the ultimate primary value set of our current context: the ideology which assures its smooth-functioning and which, when a test like the one above is applied, eventually proves to be the trump-card overcoming all other values. His classic example is a recount of how this logic functioned following the global financial crisis in 2008:

"The financial meltdown has made it impossible to ignore the blatant irrationality of global capitalism. In the fight against Aids, hunger, lack of water or global warming, we may recognise the urgency of the problem, but there is always time to reflect, to postpone decisions. The main conclusion of the meeting of world leaders in Bali to talk about climate change, hailed as a success, was that they would meet again in two years to continue the talks. But with the financial meltdown, the urgency was unconditional; a sum beyond imagination was immediately found. Saving endangered species, saving the planet from global warming, finding a cure for Aids, saving the starving children ... All that can wait a bit, but 'Save the banks!' is an unconditional imperative which demands and gets immediate action. The panic was absolute. A transnational and non-partisan unity was immediately established, all grudges among world leaders momentarily forgotten in order to avert the catastrophe. (Incidentally, what the much-praised 'bi-partisanship' effectively means is that democratic procedures were de facto suspended.) The sublimely enormous sum of money was spent not for some clear 'real' task, but in order to 'restore confidence' in the markets - i.e. for reasons of belief. Do we need any more proof that Capital is the Real of our lives, the Real whose demands are more absolute than even the most pressing demands of our social and natural reality?"

Michael Sandel has long argued that the market values imposed by this "Real of our lives" are not neutral, and that we should be wary of allowing markets to deal with questions once the focus of what Kant called the "Public Use of Reason." He uses examples ranging from paid prison-cell upgrades, access to car-pool lanes for a fee, and commercial surrogacy to demonstrate that, when markets take over, they impose value sets which we might not be comfortable with. Sandel warns of two main problems with market value sets:

  • they tend towards coercion of those who are vulnerable (commercial surrogacy outsourced to the developing world being an example here); and
  • they overtake "non-market" norms (undermining normal civic rules, such as access to the car-pool lane for a cost, being an example here).

Recall Zizek's observation with which I began: "Every technological innovation is always first presented like this, emphasizing its health or humanitarian benefits, which function to blind us to the more ominous implications and consequences." In view of the analysis above, I would suggest that any major intervention in public life - especially in the technology and health domains - should be considered in a way that unmasks its "more ominous implications and consequences." This should be done in a way that overcomes a naivety which does not recognise the ideological backdrop of our current context.

To undertake such a consideration, one assumption should be held along with two questions which flow from it. The assumption is that at some point the primary value set of profit-raising will overcome in a direct way, or at a minimum effect a qualitative change in an indirect way, the original intentions for which an intervention was proposed. And the questions are:

  1. What would the likely outcomes of our intervention be when this happens?
  2. Are we willing to accept such outcomes?

My purpose here is to apply this assumption and these questions to the current debates surrounding PAS-E. I recognise I am moving into a difficult area of debate in so doing, and so wish to make a number of things clear.

First, I am not here concerned with the explicitly articulated intent of those seeking legalised PAS-E in Australia or elsewhere, which is the noble intent of reducing suffering. As has been made clear already, the analysis above is applied regardless of the intent of those who seek after an intervention in public life. In the context of this analysis it really does not matter what that intention is; the point is that once the intention makes itself present in public life, it will inevitably be appropriated by the value set of our predominant ideology.

Second, in this article I do not discuss whether PAS-E are ethical in and of themselves - or, to put it differently, an appropriate expression of the intent to reduce suffering. That debate continues, and the various positions are well-known and summarised in Appendix 7 of the Parliament of Victoria's Final Report for their Inquiry into End of Life Choices. The following analysis has nothing to do with whether one is a proponent or opponent to the proposed legislation - it should be dealt with as part of the debate for both sides.

Third, the proposed legislation in Victoria (and now New South Wales) which flows from this intention is not market-based, and includes measures which are designed to protect moral standards, such as freedom of decision-making, the avoidance of coercion and protective measures for vulnerable persons. The inclusion of such measures is also not the point here; their effectiveness in our ideological context is.

So, what happens when the first of our questions is applied to PAS-E? On this, we should note that the many safeguards and protections being built into the legislation at present will likely continue to operate while things function smoothly. However, we should reject any argument which would suggest that the inclusion of safeguards undermine the relevance of questioning proposed as above. As Zizek's example of the GFC shows, it is not only possible but proven that market values will overcome more noble ones when push comes to shove.

Soon after the legislation was introduced in Canada, the abovementioned study was undertaken which had the object of demonstrating the savings to Canadian tax-payers as a result of the legislation. At this point in time, such savings might be considered an ancillary purpose to the explicit purpose of providing PAS-E. However, they reveal important facts: end-of-life care is expensive, and it is not impossible to imagine a government or healthcare organisation which needs to face this fact during a hard budget agreeing to focus more attention on the cheaper options of PAS-E than on other forms of end-of-life care, an approach which has already been suggested by one of the world's leading economists.

This is a particularly poignant consideration for those who live in areas which are under-resourced, or are part of an "expensive" group of people, such as those living with disabilities who are nearing the end of their lives. The likely answer contradicts the position of those advocating for the legislation which suggests that it is an addition to - instead of a replacement of - other forms of end-of-life care, and that legislative protections will assure the safety of vulnerable groups. Again, the point here is not the intent of that position, but where our ideological framework will lead.

Where we make social interventions in our context, we should also remember that it will inevitably become someone's business to deliver on them. Correlatively, in answer to the first question, we should consider what the impact of private, for-profit, companies which specialise in the provision of euthanasia might be. Such companies would have as their primary purpose profit or return to share-holders. They would, assumedly, be required to increase business in order to produce better annual results. What would their marketing strategies look like? Who would their target market be?

One can quickly imagine a strategic planning meeting whereby the market of those who are dying or those who are close to someone who is dying become the aim of the product, perhaps also particularly those who would not be able to afford other forms of end of life care, or those who are suffering from some form of depression. The current proposed legislation rests on the possibility of someone making a free and fully informed decision, but freedom and coercion have a tenuous relationship when it comes to marketing strategies - especially those directed at vulnerable groups, and that is something we should consider in this case.

To put it crudely, if we agree to this legislation we should be willing to accept active and aggressive marketing strategies from companies who enact it. Just imagine the Facebook feed of someone who has been Googling about depression.

Such companies do not currently exist, but for-profit health insurance companies do, and so we should also consider what the proposed legislation might look like from the perspective of an insurance company which is trying to improve its bottom line. Could it be that insurance companies would direct patients toward the cheaper option instead of agreeing to a larger payout for more expensive care?

In the United States, for example, a physician recently claimed that "insurance companies in states where assisted suicide is legal have refused to cover expensive, life-saving treatments for his patients but have offered to help them end their lives instead." As anyone who has sat in a budget meeting will know, the logic applied here by the insurance companies is perfectly compatible with the value-set imposed by capitalism.

These are uncomfortable considerations, and they take the debate outside of its typical contours which consider the suffering of an individual and sometimes their family, and whether or not it is right for that person to end their own life with medical assistance. That debate still needs to be had. However we land there, it is crucial to remember that the debate takes place in an ideological context, and if or when the legislation is enacted it will be done in a way that takes it beyond the intent of those proposing it, and into the realm of the value set of capitalism. Any legislation or major social interventions has social consequences beyond its original purpose.

As Michael Sandel points out, when markets get involved the results are far from neutral. It may be that some of us can wear the additional $13.80 on the airport line and that we can tolerate the imposition of capitalist values in this case - though already that is a value set that impacts negatively on the poor person travelling to the airport to meet a family member.

However, things become more serious in the scenarios traced above. The troubling answers to the questions raised in these scenarios would, I am sure, be very distant from the intent of those pushing for the legislation at present in Australia. But legislation when enacted has effects far beyond those that we intend, because it is enacted in the context of a powerful foundational ideology.

Only half of the conditions of possibility for the abovementioned scenarios exists in Australia (namely, global capitalism) - the question is whether we wish to complete the conditions of possibility through approving the proposed legislation. If we do so, we should be willing to accept these and similar outcomes. If not, then perhaps we should take a leaf out of Sandel's work and keep some things out of the hands of markets for good.

Daniel Fleming has a PhD in moral philosophy and theology, and is Group Manager - Ethics and Formation at St. Vincent's Health Australia.