© 2009
Co-Payments in the NHS: An Analysis of the Normative Arguments
Albert Weale and Sarah Clark
Department of Government
University of Essex, UK
Correspondence to: Sarah Clark, Department of Government, University of Essex,
Wivenhoe Park, Colchester, CO4 3SQ. Email: slclard@essex.ac.uk.
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Abstract
During 2008 some forms of patient co-payments – in particular patients paying privately for
additional medicines as part of an episode of care in the NHS - became controversial in
political and policy terms in the UK. In response, the UK Government published a report –
the Richards Review - examining the issues. Richards offered a particular policy solution, but
also touched on fundamental principles of social value. Using the methods of normative
policy analysis, we seek to understand these principles of social value, accepting the Richards
framework according to which the relevant arguments can be grouped under the broad
headings of equity and autonomy. None of the arguments on either side are decisive, and in
part the policy decision turns on uncertain empirical conjectures.
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Co-Payments in the NHS: An Analysis of the Normative Arguments
Albert Weale and Sarah Clark
Introduction
Co-payments, by which individual patients share the cost of treatment with an insurer or
provider, are a familiar feature of health systems. They take various forms, including charges
for prescriptions, bills for particular episodes of care, or deductibles (US speak)/excesses (UK
speak). Within the UK’s NHS co-payments have been historically limited to charges for
prescriptions or other specified treatments, for example dentistry. Payment to private
providers alongside treatment by the NHS within a single episode of care has been forbidden.
Thus, patients could pay a private provider for physiology after an operation, but the NHS
could not enhance its care to some patients by allowing those who could afford to do so to
pay extra for physiology. Such payments – often referred to as ‘top-up’ payments - were as a
matter of law and policy prohibited.
During 2008 this prohibition on top-up payments became politically controversial, sparked by
some high profile individual cases. At least two patients wished to supplement their NHS
cancer care with privately purchased pharmaceutical products that had been recommended by
their consultants, but not approved by NICE (the National Institute for Health and Clinical
Excellence). The relevant hospital trusts refused the requests. Such cases became the focus
of intense political and policy discussion. National newspapers, like The Sunday Times,
campaigned for the right of patients to make top-up payments, parliament debated the matter
and the British Medical Journal organised a symposium on the issues. This controversy
prompted the Government to commission a review led by Professor Mike Richards, which
examined if, when and in what circumstances patients should be able to buy additional drugs
not funded by the NHS, and how they might combine this privately purchased provision with
NHS care (Richards, 2008: 2). The review’s key recommendation was that patients should
be allowed to supplement NHS care with privately funded pharmaceuticals retaining their
right to continuing NHS care, provided that the treatment was administered in facilities
separate from those of other NHS patients. Richards reserved the words ‘top-ups’ for a policy
in which co-payment could be made to enhance NHS care, and judged that such a form of copayment was unjustified (see Richards, 2008: 55-56 and 57 at para.6.16).
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Table 1 itemises the key terms as used by Richards, and as we use them in this article. In the
Richards report, there is inconsistency or misformulation, so our version tidies up the
statement of the Richards options.1 Four of these options are ‘co-payments’ as we shall use
the term. The option that Richards labels ‘Either/Or’ was the prevailing policy at the time the
report was written (Richards, 2008: 47).
Table 1. Definition of options considered by Richards
Option 1
Either NHS care or
private care
Option 2
Involves co-payment
Voucher scheme
Option 3
Involves co-payment
Option 4
Involves co-payment
Option 5
Involves co-payment
Separate care
Simultaneous care
NHS top-ups
Patients lose their entitlement to NHS care
during the period they are purchasing
additional treatment.
The NHS provides patients who wish to
receive specified unfunded drugs with a
voucher to the value of NHS standard care.
Patients can receive NHS and private care
at the same time, but in a separate setting.
Patients can receive NHS and private care
at the same time and in the same setting.
Patients can pay a charge to the NHS for
providing additional drugs and associated
care.
(Based on Richards, 2008: 45)
Richards framed the fundamental dilemma of co-payments in terms of the tension between
the principle of equity implicit in the guiding principles of the NHS – that every person
should have access to healthcare on the basis of need not ability to pay – and the principle of
personal autonomy, defined by Richards as people’s right to spend their money as they chose
(Richards, 2008: 2). As one would expect in a practical policy document aimed at resolving a
controversial political question, the report did not discuss the fundamental issues of principle
involved in whether to allow particular forms of co-payment. The purpose of this article is to
address such issues. We do not aim to advocate a particular point of view. There are
important and serious arguments both for and against co-payments in any of the forms that
Richards considered. What we have tried to do is to offer an understanding of what the
relevant arguments are or might be, clarifying their conceptual foundations, logic and putative
implications. Our methods are those of normative political theory applied to policy analysis.
We have identified a number of different principles and considerations, and for convenience
have grouped them in the same way that Richards did, under the broad headings of equity and
autonomy. We precede our analysis with a characterisation of the institutional and policy
setting within which the issue has arisen.
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Institutional and Policy Setting
The NHS derives its legal form from statutory obligations laid upon government. The
Secretary of State has the duty to supply comprehensive health care without charge, unless
specific exceptions (for example, prescription charges or spectacles) are made. Conceptually
this means that patients are the intended beneficiaries of legal obligations imposed on the
government of the day. The prohibition on top-up payments was implemented through policy
guidance that precluded a single ‘episode of care’ being treated both publicly and privately.
However, the notion of an episode of care is ill-defined in law, and there was considerable
variation of clinical practice in implementing the policy guidance. Moreover, as the Richards
report itself pointed out, the policy approach reflected patterns of care suitable for elective
surgery rather than anti-cancer pharmaceuticals.
Since 1999 NICE has had responsibility for determining which treatments meet standards of
clinical and cost-effectiveness. That means that clinically effective treatments must also be
below a threshold cost for an added quality-adjusted life-year. There is a semantic issue as to
whether ‘comprehensive’ and ‘high quality’ care should be limited to cost-effective
treatments so defined, or whether, for example, care could be ‘high quality’ or ‘clinically
excellent’ (we use the terms inter-changeably, as does Richards) but not cost-effective as
NICE would determine it. In this analysis, we distinguish between ‘cost-effective’ on the one
hand and ‘comprehensive’ or ‘high quality’ on the other. This means that it is logically
possible, for example, to have high quality care that is nonetheless not cost-effective. Costeffectiveness is important value of course, but it raises different questions from those of the
quality of the care considered purely from its clinical point of view. A similar point can be
made in respect of comprehensiveness.
The original demand for top-up payments arose because certain pharmaceuticals were
expensive and not normally available on the NHS, either because NICE had not undertaken or
completed an appraisal or because its appraisal had concluded that the product was not costeffective. Expense interacts with two other elements to complicate the policy issue. The first
is that anti-cancer medicines can act in complex ways with other treatments, and therefore
need to be administered professionally. They do not provide an occasion for self-medication
or complementary medication (like homeopathy) that will not interact with pharmaceuticals
given under NHS treatment. The potential for serious side-effects, given the high toxicity of
anti-cancer medicines, may also give rise to the need for supplementary treatment for which
professional expertise and treatment is necessary. Further, to achieve maximum
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effectiveness, it may be necessary to combine two different anti-cancer medicines: the
privately purchased drug may only offer an advantage if it is taken in conjunction with
another drug - which may be available from the NHS.
Moreover, because many of the products in question are anti-cancer medicines, the diseases at
which they are targeted often occur at ages when those suffering could otherwise be expected
to have a number of years of life in front of them and when they will also have paid tax for
some a significant proportion of their working lives. The conditions in which the right to
make co-payments is sought thus often combine bad luck in the ‘lottery of life’ with a sense
of entitlement to service built up through a history of tax payments. Since there is no right in
the NHS to particular form of care conditional upon tax contributions –as patients are the
intended beneficiaries of the legal obligations laid upon the Secretary of State - this sense of
entitlement does not carry any legal consequences. But it may be an important element in
public and patient perceptions.
Given that it is the high cost of these pharmaceuticals and their low cost-effectiveness which
result in their being rejected by NICE, it might be urged that one alternative to introducing copayments would be a public policy of seeking to lower the cost to the NHS of medicines
supplied by the pharmaceutical companies. NICE has agreed in several instances to a product
being made available on the condition that the manufacturer rebates the cost of the medicine
in cases where individuals do not respond well to it. Thus, for example, Velcade
(bortezomib) for the treatment of multiple myeloma has been made available on responserebate terms due to insufficient evidence on its cost-effectiveness. It may also be urged that
patients could be enrolled on trials so that they did not need to incur the costs. In this way,
the present policy could be maintained but the patients in question gain access to medicines
that they would not otherwise obtain. It obviously makes sense to pursue cost-savings in
whatever ways are feasible, but this is not to say that such policies will solve the problems
raised by co-payments. A cost-effectiveness test within a cash-limited budget imposes
constraints on the ability to purchase medicines, even if it is a generous limit, and so by
definition there will always be some products that are judged too expensive. Moreover, in
normative terms, there are those who hold that restrictions on co-payments are wrong in
themselves, and a policy of reducing the price of products for the NHS does not address that
issue. So, we should not assume that the normatively complicated issue of co-payments could
be resolved by a policy of reducing the costs of medicines.
With these preliminaries in place, we turn to examine the normative arguments that can be
identified under the broad headings of ‘equity’ and ‘autonomy’.
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Equity
The term ‘equity’ is used by Richards in a broad sense to mean that every person should have
access to health care on the basis of need and not ability to pay. Although this phrase is often
used to characterise the NHS, it is incomplete as it stands. Taken literally, it would be
compatible with a two-tier health system in which there were separate health facilities for
those who could not afford to pay alongside mainstream facilities for those who could, which
is not the principle of the NHS. Instead, the NHS aspires to supply comprehensive, high
quality care without financial barriers to access (Weale, 1998). These aspirations form,
however, an inconsistent triad: that is to say, combining all three is intrinsically difficult,
because the satisfaction of any two threatens the third. For example, it would be much easier
to supply high quality care without financial barriers to access if the care in question was
limited to a ‘basic package’, above which individual beneficiaries would have to meet their
own costs. It is the combination of the three goals that defines the NHS (although many other
health care systems across the world also strive after these three goals). Richards does not
explicitly describe the NHS in this way, but various statements made in the report make it
clear that this is in effect what the review has in mind when the NHS is described as a system
based on equity (Richards, 2008: see for example 2, and 12 at para.1.8). So, in the remainder
of this paper, we shall take the principle of equity as used by Richards to mean that all should
have access to high quality, comprehensive care without financial barriers to access.
Within a broad principle of equity, there is also a more particular understanding of the term
which has long been regarded as being at the core of any conception of justice, however
defined. This view says that an equitable state of affairs is one in which like cases are treated
as like and unlike cases as unlike (Weale, 1978: 11). In fact, when Richards and other
participants in the debate have referred to equity, they have in practice been concerned with
equity in this narrow and specific sense, and they have argued about the rights and wrongs of
treating similarly placed patients differently in a context in which access to universal high
quality care is assumed to be the goal.
If the fundamental principle is that like cases should be treated as like, then everything
depends upon the terms in which likeness is established. As Brian Barry (1965: 152-5)
pointed out many years ago, equity is an ‘interstitial’ principle, that is to say it offers a
principle for the regulation of relations among previously defined groups that make up the
terms of comparison. Equity presupposes that the basis for relevant comparisons has already
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been established; it cannot determine what are relevant similarities and differences. In fact, in
the co-payments issue there are a number of different sources of comparison as follows:
1) Opponents of co-payments – and particularly of top-up payments - argue that
allowing such payments is inequitable because it would result in two patients with
identical clinical conditions being treated differently by the NHS. This is the
identical clinical conditions case of which the most vivid example cited is the
adjacent beds case, where two patients in adjacent beds would receive a different
quality of care, if one made a private payment and the other did not.
2) Proponents of co-payment, including top-ups, appeal to the existing co-payments
case, in which the NHS requires co-payment as part of its service, for example
spectacles or audiology. Such proponents argue that it is inequitable to prohibit copayments for serious illness when they are required or allowed for other illnesses or
conditions.
3) Proponents of co-payment also point to the other medical supplementation case, in
which for example patients are allowed to supplement their NHS treatment with
complementary therapies or care services like extra physiotherapy without that
affecting their right to NHS care.
To examine the details of these arguments, we look at the different cases in turn.
The Identical Clinical Conditions Case. For some participants in the public debate to treat the
same clinical condition differently depending upon ability to make a co-payment breaches a
fundamental principle of the NHS. For example, in a parliamentary debate Baroness
Thornton commented that ‘creating a premium NHS service by allowing people to pay the
NHS for treatments that are not offered to all would indeed lead to patients receiving different
NHS care, not because they had different clinical needs but because one person could afford
to pay a top-up and another could not. This would make a nonsense …of the founding
principles of the NHS’ (Thornton, 2008, col. 1467).
The most striking example in which patients with identical conditions were treated differently
is in the adjacent beds case. Note, however, that there is a logical asymmetry between the
identical conditions case and the adjacent beds case. Someone could hold that it was wrong
to treat patients differently in adjacent beds, but not to treat them differently in separate
settings, even though they had identical conditions. Indeed this is the Richards position,
which rules out top-ups or simultaneous care co-payments, but which does allow
supplementary co-payment in separate facilities. As such, this position seems at first glance
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to be in line with Aneurin Bevan’s position on the acceptability of pay beds in the NHS: these
‘amenity’ beds were in private rooms within NHS hospitals and were for the use of
consultants’ private patients. As for co-payment in separate settings – the Richards position pay beds were thought to be acceptable because they did not lead to patients with identical
conditions being treated in adjacent beds. As Klein points out, pay beds were not, in theory,
an affront to the founding principles of the NHS since ‘private patients were buying not the
right treatment, only the right to be treated by a consultant of their own choice in a room of
their own’ (Klein, 2006: 85). In practice, though, pay beds arguably did compromise the
principle of equal access, since there was evidence that consultants would admit their private
patients ahead of others on the waiting list, thereby facilitating unequal access in the form of
queue jumping (Klein, 2006: 85ibid.). Notwithstanding that flaw in the comparison between
Bevan’s position on pay beds and Richards’ position on co-payments for additional
treatments, there is a more significant difference between the two cases: whilst pay beds did
not give patients access to ‘the right treatment’, in Klein’s words, that is precisely what
patients who make co-payments for additional treatments are securing. Further, doubts have
been raised about the extent to which separation between patients receiving additional
treatments and NHS patients can, in practice, be achieved, and about the potential impact on
quality of care that may occur as a result of physically moving patients to separate settings in
order for them to receive privately purchased care (House of Commons Health Committee,
2008-9: for example, para. 78).
However, the Richards position – saying it is wrong to treat patients with identical conditions
differently in adjacent beds, but not to treat them differently in separate settings - does not run
into the same logical difficulty as saying that it would be wrong to treat people differently in
different settings but not wrong when they were in the same setting. Identical conditions in
adjacent beds is a special instance of the more general identical conditions case. So, although
the same treatment for identical conditions would imply the same treatment for those in
adjacent beds, the same treatment for those in adjacent beds does not of itself imply the same
treatment for those with identical conditions, although some effort is needed to show what
differences between adjacent beds and separate facilities are morally relevant – a point to
which we return later.
Accepting, for the sake of argument, Baroness Thornton’s point that allowing co-payments
for identical conditions would be in breach of the founding principles of the NHS, would it be
wrong? One line of argument denies that it would be wrong on the grounds that, with any
form of co-payment, the person who cannot afford to pay is not made worse off. That is, they
are not harmed as a result of the fact that someone else can and will pay. If A does not
Comment [APW1]: Sarah,
could you put full ref in?
10
receive the treatment for which B pays, then A is no worse off than he or she would have
been whether or not B has paid, even though he or she is worse off relative to B. In this
context, appeal has been made to the Pareto principle (see, Baron, 2008, col. 51). Here the
Pareto principle has to be understood in its strong form, namely that if some are made better
off and no one is made worse off by a policy change, then there is an improvement in social
welfare. (The weak form says that everyone has to be made better off if there is to be an
improvement in social welfare.)
The Pareto principle, especially in its weak form, is sometimes presented as self-evident, but
in fact there is considerable controversy about its force and scope (see, for example, Barry,
1965: 49-50), since treating persons less favourably may not harm them but may still do them
a wrong. Equity can be understood as simply an implication of having rules, so that dealing
with people equitably according to the rules is an expression of administrative rationality.
Williams (1962: 122) notes for example that making a distinction between the rich ill and
poor ill is ‘an irrational state of affairs’. However, we suggest that the concern with equity is
deeper than worries about administrative rationality, and that it expresses a concern about
whether people are being treated with equal concern and respect. It is this principle of equal
concern and respect which might underlie the thought that treating A less favourably than B,
whilst not harming A, nonetheless does him or her a wrong. The wrong arises because
identical medical needs are not being attended to in the same way. What is more, there is
nothing in the equity principle, understood as motivated by equal concern and respect, that
would enable us to distinguish between the Richards options of separate care on the one hand
and simultaneous or top-up care on the other. That different treatment for the same condition
is taking place in separate NHS facilities would not of itself suggest that, insofar as equitable
treatment was called for, its requirements can be met by separating the sites of difference.
This line of reasoning may suggest that basing equity arguments on a notion of equal concern
and respect undermines the case for a wide range of co-payments, but this would be too quick
a conclusion. There may be a sense in which two patients with identical clinical conditions
are not treated with equal concern and respect in the case that Richards calls ‘Either private or
NHS care’ (Richards, 2008: 47). This was the status quo before Richards reported, in which
patients who purchased additional treatment lost their entitlement to the relevant NHS
services. Someone might argue that patients forced into an ‘either/or’ choice are not treated
with equal concern and respect because they lose access to NHS care which they would have
had were it not for the choice to purchase private treatments. So, although patient A and
patient B may have made a similar level of tax contributions to the NHS during the course of
their lives, and although patient B is not by his actions making patient A or any other patient
11
any worse off, he is being debarred from access to the NHS in a sense precisely because of his
ability to pay for additional treatment. In effect, it may be argued, the either/or choice is a
denial of treatment and that the NHS ought not to be committed to denying people treatment.2
Is the forced either/or choice the same as a denial of treatment in the NHS? In at least one
obvious sense of the word ‘deny’ it is not. The patient is being offered NHS treatment. What
the patient is not being offered is the NHS treatment with the top-up integrated into it.
However, there is no sense in which one is denied X when one is denied X+Y. However, it
might be claimed that patients were being denied treatment in the sense of being denied the
best treatment, assuming that X+Y is better than X. In other words, the either/or choice is a
compromise on the promise of high quality and comprehensive care, and constitutes a wrong
for that reason. To be sure, all systems of financial risk-sharing for health care whether
public or private have to define exclusions of coverage. Whilst at the level of policy this is
inevitable, it also implies a hard choice when it comes to applying that policy for some
individuals. So, the question is not whether there is a hard choice involved here (since there
undoubtedly is) but whether in the context of that choice it is right to present a patient with a
polarised alternative between the pre-determined NHS care on the one hand and exit to the
wholly private system on the other.
One important matter in dealing with equity is not only the existence of inequity itself, but
also the perception of its existence. Thus, it has been suggested to us that patients could
suffer a sense of relative deprivation or psychological harm if they are treated less favourably
than someone who is paying.3 Similarly, Richards, Dingwell and Watson (2001) draw
attention to the concerns of nursing staff who would be treating similarly placed patients
differently, a concern that would be heightened presumably if it were a genuinely adjacent
beds case. Bloor also noted that there may be a ‘potentially destabilising effect of seeing rich
patients receive different care from otherwise identical poor patients, which could undermine
public support for our health service in ways that would be difficult or perhaps impossible to
reverse’ (Bloor, 2008).
However, there is a need to be careful at this point. The role of ‘external’ preferences in
public policy – that is to say preferences about the conditions that other citizens ought to
experience – has been extensively debated within normative political theory, with no clear
picture emerging (see Dworkin, 1977: 234-39; Goodin, 1995, chapter 9; Ware, 1978: 19-31;
Weale, 1983: 38-41). A number of theorists have argued that some types of external
preferences should not be allowed to count in the calculus of social choice, for example
preferences that rest upon racial prejudice or intolerance more generally, whilst others have
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argued that no external preferences ought to be admitted, since they involve some form of
double-counting – that is, counting once for oneself and again for one’s external preferences.
Alternatively, one might take the view that external preferences should be allowed to count,
since they are part of the stability of a just administrative and political order, but only if the
sentiments on which they rest, for example a concern for fair treatment, are justifiable,
whereas the mere sense of resentment, without there being any underlying justification of the
grounds of that resentment, ought not to be counted in the balance.
Richards makes no explicit mention of the potential for resentment either from patients or
from nursing staff, choosing instead to say that patients in ‘adjacent beds’ situations will feel
‘let down by the NHS’ (Richards, 2008; 53,55). However, Richards makes no distinction
between the likely feelings of the patient whose neighbour is in a ‘simultaneous care’
situation and the feelings of the patient whose neighbour is in a ‘top ups’ situation. Richards
suggests that they will both feel ‘let down by the NHS’. In the situation where one’s
neighbour has paid the NHS for additional treatments – that is, the top ups situation - the
grounds for feeling ‘let down’ by the NHS is presumably that the NHS has failed on its
commitment to provide healthcare on the basis of need not ability to pay. However, it is not
clear why someone would feel let down by the NHS when a patient in a neighbouring bed is
in the ‘simultaneous care’ situation, given that the paying patient has purchased the additional
treatments privately and is paying for the marginal costs of administration. The only grounds
on which it seems plausible to feel let down by the NHS in this situation - rather than simply
being envious of one’s neighbour’s wealth - is that the NHS has been unable to provide every
existing treatment to patients, no matter how clinically or cost ineffective. If these are indeed
the grounds, then the feeling of being let down by the NHS cannot properly be counted since
it rests on a failure to accept the inevitable limitations of a public health system. One cannot
be ‘let down’ by not being offered something which a particular system neither promises nor
has the capacity to offer.
The Existing Co-Payments Case. Consider the argument that it is wrong to allow patients to
pay for some services like prescription pharmaceuticals, spectacles or dentistry and not allow
patients to top up their NHS care with privately funded medicines. Can we find a justification
for any form of co-payment based on this type of equity argument?
The inference from the one case to the other is less straightforward than might at first sight be
imagined, for two reasons. Firstly, the rationale for existing NHS charges is not particularly
13
solid. Whilst it is possible to suggest that their aim is to deter excessive demand and wasteful
use, it is at least as plausible that charges serve as a convenient means by which to lower NHS
net expenditure, albeit not by large amounts. Certainly, the introduction of the first charges
for dentistry and spectacles in 1951 came at a point when NHS expenditure had grossly
exceeded estimates made at its inception two years earlier, and at which the then chancellor,
Hugh Gaitskell, was faced with the problem of financing increased military expenditure.
Given the expectation at the time that input from taxation to the new service should be limited
to the amount obtained from national insurance contributions, additional revenue had to be
sought. Charges provided a means by which to do so and, further, a means which allowed the
NHS to generate income in a way which did not put it in competition with other government
departments for tax revenues. It should be noted, however, that the first introduction of
charges inspired fierce opposition amongst a number of the key architects of the NHS and
famously led to the resignation from the government of Aneurin Bevan, Harold Wilson and
John Freeman (see Webster, 1988: 166-83). Concerns over the way in which charges
compromised the founding principles of the NHS were also recognised by the Royal
Commission on the NHS nearly thirty years later, which noted that the financial advantages of
the policy were unlikely to outweigh ‘their undoubted disadvantages in terms of equity and
administrative costs’ (Royal Commission on the National Health Service, 1979; 376,
para.22.74).
Secondly, there is a clear conceptual distinction between charging for a service which the
NHS supplies, and allowing patients to purchase additional treatments that would not
otherwise be supplied by the NHS. To say that in order to obtain an NHS service patients
must pay a charge (unless exempt from that requirement) is not the same as saying that in
order to obtain something the NHS does not supply patients should be allowed to supplement
their NHS care, rather than purchasing it entirely separately. That someone has a duty to pay
for X (unless otherwise exempted) cannot possibly provide a licence to say that someone
should be free to pay for Y.
A different, and more interesting, situation arises with the purchase of medical care amenities
or the private purchase of medical care interspersed with NHS care. John Appleby has noted
instances in which patients combine NHS-funded and privately-financed care: ‘Patients can
buy private rooms and retain NHS treatment, some go privately for diagnosis before linking
back into the NHS …. and many legitimately will seek NHS diagnosis and then go private.’
(Appleby, 2008). For example, a side ward may give an NHS patient an amenity private
room, so that their treatment is received in less public conditions than a normal ward. If we
move away from a literal understanding of ‘adjacent beds’ such a situation may seem to be
Comment [APW2]: The
resignations were only days apart,
so I think it is OK to present it in
this way.
14
close to the case of the top-up co-payments that Richards would not allow. Of course, so long
as the distinction between ‘amenity’ and ‘medical care’ can be sustained, this example will
not provide a parallel to the case of top-up care. Top-up care is an enhancement of the
medical care that a patient receives. Amenity is not an enhancement of the care but an
improvement in the circumstances in which that care is received.
However, the closest case to co-payments comes with the interspersing of private and NHS as
occurs regularly in relation to diagnostic tests, most notably for cancer. Those who can pay
for scans will pay for faster access and will be advised of this possibility by their oncologist.
There is clearly here a very fine line between amenity and treatment, such that if the purchase
of pharmaceuticals in compared to this type of case, an equity argument will support, not
prohibit, co-payments.
Other Medical Supplementation Case. What of the cases where NHS medical treatment is
supplemented by other treatments financed privately, so that a payment is made to
supplement an NHS service rather than being made as a charge for obtaining such a service?
Finlay and Crisp point out that ‘Almost half of patients with cancer use a wide range of nonprescription complementary treatments, yet no one suggests such self medication should be
forbidden if they also access NHS care.’ (Finlay and Crisp, 2008).
Because the payment is being made for something that the NHS is not prepared to supply,
there is a closer parallel to the co-payments case than there is between the co-payments and
the charges cases. Since we allow people to supplement their NHS care, it would seem that
there is an argument for allowing them to supplement their NHS care in cases where this
involves topping up that care rather than purchasing it separately. However, even in this case,
differences can be identified, the most important of which is that supplementary care does not
need to be integrated with the NHS care, whereas in the case of anti-cancer drugs it does need
to be so integrated. How far this is a crucial difference is, of course, at the heart of what is at
issue in the debate. But we cannot resolve that debate by assuming that there is a
straightforward equity argument.
One argument that is sometimes used to strengthen the parallel is that if we allow payments
for reasons of personal taste, it follows that we should allow top-ups where more urgent or
life-saving treatment is sought. John Baron stated this argument very clearly in the House of
Commons debate: ‘If co-payments are good enough for teeth whitening and contact lenses,
why are they not good enough when it comes to prolonging, extending or even perhaps saving
15
life?’ (Baron, 2008: col. 51). The implicit assumption of this argument is that if co-payment
is allowed for less serious medical conditions, then it should be allowed for the most serious
conditions. This is not quite the same as an equity argument taken literally, since by
definition it is not comparing like with like, but instead seeking to establish a parallel between
the less and the more serious. The relationship is therefore that of set inclusion: the most
serious is included in the set of medical conditions, and since we allow co-payments for the
less serious, we should allow them for the most serious.
An obvious difficulty with this position is that considerations of the importance of identical
clinical need are likely to weigh more heavily in the most serious cases than in the least
serious cases. There is not the same problem of clinical need equity in the comparison
between two patients, one of whom can afford teeth whitening and the other of whom cannot,
as there is between two cancer patients, one of whom can afford the top-up and the other of
whom cannot. There is no inequity in allowing difference by ability to pay in the case of
teeth-whitening, it may be argued, because no wrong is done to someone if their teeth are not
whitened at public expense.
Other Considerations. How far do the numbers involved make a difference? Suppose that
there were a regime of co-payments in place for some pharmaceuticals and it took a form in
which the NHS would not supply the product but would administer it if the patient paid for
the product’s marginal cost (price of product plus cost of administration). For the purposes of
this illustration, it does not matter if the administration is in adjacent beds, separate facilities
or anything in between. Then, paying is a necessary condition for obtaining the combined
benefit of the privately paid for product and the relevant NHS service. How great a financial
barrier to access this represents will obviously depend upon the cost of the product, but also
upon patients’ willingness to pay and the lengths to which they – and perhaps even their
families – are prepared to go to raise the necessary funds. This is an empirical question which
is impossible to predict. However, at the levels at which the products in question cost, it
seems reasonable to suggest that many patients would find the cost prohibitive. Indeed, the
logic of the position of those who argue for top-up payments on the grounds that only a small
number of people would use the facility requires this to be the case.
If the numbers were small, then someone could hold that there was an inequity but that it was
a tolerable price to pay for some being made better off. Even if equity is rationalised in terms
of equal concern and respect, rather than just as a matter of good conduct in administration,
someone might reasonably be willing to trade-off a small amount of equity for what were
16
seen to be benefits for individuals. The argument presupposes that there is no ‘slippery slope’
from a small number of cases to a more general system effect, a point dealt with later.
Autonomy
The notion of ‘autonomy’ is widely used in political theory in general and in discussions of
medical and health care ethics in particular. Perhaps partly as a result of this widespread use,
it has attracted a protean set of meanings (for an excellent review, see Feinberg, 1986). It has
also been criticised (O’Neill, 2002) not only for its misleading connotations, but also for its
neglect of the professional and social relationships within which high quality medical care is
given. Fortunately for our purposes, the Richards review uses the term to denote a very
specific principle, namely that people should be free to spend their money as they choose
(Richards, 2008: 2). Hence, many of the broader connotations of the term to do with selfmastery, self-control and self-direction, connotations over which there is ethical controversy,
are simply irrelevant. In the present context, it is in this specific sense that it is to be
understood.
Within a theory of social welfare, the assumption has been that people should be free to spend
their own money because they are generally speaking the best judges of their own welfare
(this view has a long pedigree, e.g., Sidgwick, 1891: 137-40, but has recently been restated, to
be criticised, by Thaler and Sunstein, 2008). Provided spending money does not harm or
offend others (for example, people should not be free to pay for loud music outside their
neighbour’s house at night) and that no duties are breached, then we should assume that
people will spend money to their own benefit unless there are specific reasons to think that
their ‘best judge’ faculty is weakened.
One way of thinking about the freedom to spend one’s own money is to suppose that it is a
defeasible (Hart, 1951) presumption. We presume that people should be free to spend their
own money, but we allow that this freedom may be validly defeated by pointing to important
countervailing considerations, including the possibility of damage to themselves (paternalistic
concerns) or a breach of duty or harm to others (external effects concerns). Taking each of
these considerations in turn, how do they affect the argument about co-payments?
Co-Payments and the Danger of Imprudence. Those willing to make top-up payments are
often in a desperate situation. High quality care means care that advances the well-being of
patients. What light does consideration of patient welfare throw on the question?
17
One possible argument against co-payments runs as follows. The cost-effective choice as
determined by NICE is the prudent choice, judged from a suitable point of view. Hence, to
stop people spending their money on cost-ineffective treatments is to enforce what is really a
prudent decision, akin to consumer protection legislation. Precisely because patients are in a
desperate situation, they are not in a good position to make such choices. ‘Prudent’ may be
defined in a number of ways, of course. However, there is an argument that, whatever the
precise content of the choice, someone contemplating an allocation of health care resources
across their life-time would not pre-empt commitments to other aspects of their lives by
investing heavily in limited end of life care. For example, in his thought-experiment of
hypothetical prudent insurance in a world in which economic resources are fairly allocated,
Dworkin (2000: 315) suggests that ‘very few people would insure to provide life-saving care
when demented, or heroic or expensive treatment that could prolong their lives by only a few
months….’ Looked at in this way, cost-effectiveness is not so much a device for regulating
the expenditure of public money as a way of seeking to capture what citizens would pay in a
situation in which they had to allocate resources to different uses and within which protection
from the financial risks of health care has to compete with other claims. If this way of
reasoning is accepted, then it is an argument for a body like NICE not authorising treatments
that have poor cost-effectiveness ratios, since as Dworkin (2000: 315) also points out it would
be a disservice to justice to force everyone to pay a contribution to a scheme to cover such
contingencies.
However, this line of argument cannot be used against co-payments, since co-payments do the
opposite of requiring everyone to make a contribution to treatments with poor costeffectiveness ratios. Instead, they involve a freedom for individuals to choose such treatments
where there is no social decision to assume collective responsibility. In other words, one
could say that the prudent choice is the choice that NICE should follow, without implying that
individuals who wished to purchase medicines that NICE deems of low cost-effectiveness
should be precluded from being imprudent within the context of NHS treatment. Indeed,
there may be a fine boundary between imprudence and a concern for high quality. Moreover,
the argument from prudence takes as its standard of prudent decision making the choices of a
hypothetical individual rather than the actual choices either of patients or of those purchasing
in an insurance market. There is legitimate controversy as to how well such hypothetically
prudent choices can be plausibly identified and how far, even if such a choice can be
identified, it ought to apply to all individuals in the same way given that people have different
attitudes to risk. Indeed, Dworkin (2000: 318) himself is prepared to allow that if a large
number of people start to purchase health care that is not covered in the collectively insured
18
package, that in itself becomes an argument for saying that the basic package should be
expanded.
If the NHS is committed to high quality care, then the restriction on treatments can be
regarded as a dilution of that quality. From this point of view, to require that only treatments
that are cost-effective should be made available is to confuse cost-effectiveness with clinical
excellence. To be sure, a compromise on clinical excellence may be necessary in order to
secure the other values, like comprehensiveness and no financial barriers to access, but that
should not provide a reason to make it more difficult for individuals who are willing to make
the financial sacrifice to do so. In this situation, so it may be argued, to prevent co-payment is
to enforce cost-effective care at the cost of clinically excellent care, in breach of the core
commitment of the NHS to high quality care. Moreover, not to allow co-payment is to
confront a patient with a ‘hard choice’. This choice may have implications for the clinical
relationship and may affect the ability of the patient to respond to treatment. In the nature of
the case, it is difficult to see what evidence there could be for these adverse effects, but they
are at least conceivable.
Allow, however, that the cost-effective choice is the prudent choice. It might be argued that
to impose the prudent choice paternalistically in the NHS is a different matter from imposing
it more generally. Since patients are free to have the treatment privately, they are not
prevented from spending their money unwisely; they are merely prevented from implicating
the NHS in the practice of that unwise choice. Suppose a patient is allowed to supplement
NHS care with privately purchased pharmaceuticals but runs out of money before the
treatment is completed. The NHS would then be faced with the dilemma of withdrawing the
supplementary care and returning the patient to the normal regime or continuing to pay for the
extra care from its own resources. From this point of view, the NHS is being asked to take on
an open-ended commitment that it has already decided is not prudent. How serious a
consideration this is in policy terms will clearly depend on the likelihood of its happening, but
it does illustrate the extent to which the freedom to spend one’s own money has to be placed
in an institutional context.
Collective Obligations. We have already drawn attention to the specific institutional
characteristics of the NHS. Rather than conceive it as resting on a general right to health, it
should be thought of as an institutional arrangement for supplying benefits through the
obligations that are laid on the political authorities. Those benefits fall into two broad
categories (although there are many intermediate cases). In the first place, there are
19
individual benefits. These are individual in the sense that the benefit to any particular
individual is not shared with others. The principal benefit in this category is the relief from
pain and illness that patients receive from the NHS. The main issues of allocation that arise
from these benefits have already been dealt with in the sections on equity.
The second set of benefits comprises public goods, in the standard sense in economic theory
that if they are supplied to anyone they are supplied to everyone. There are potentially at
least five such public benefits:
1) The benefit of being relieved of the financial risks of ill health.
2) The fruits of research and development, in the form of higher quality services.
3) Public health benefits such as the reduction of infectious diseases.
4) The benefits flowing from the regulation and cost control of pharmaceuticals and
medical devices, benefits that may be conceived as a form of consumer protection
plus economic saving.
5) The benefit of living in a society in which the civic value of social solidarity is
affirmed.
In order to secure these public benefits citizens have to co-operate in a scheme of collective
provision, since without such co-operation there would be no institution by which these
benefits were generated. The most obvious form of co-operation is by payment of taxes
through which the system is maintained.
One way of thinking about the restriction on co-payments is to see it as an additional
obligation imposed upon beneficiaries as one of the conditions necessary for maintaining the
institution in place that would deliver these benefits. The logic of such a justified restriction,
if there is one, rests upon Hart’s (1955) principle of fairness, according to which if a number
of persons conduct an enterprise according to rules and restrict their liberty, then those who
have submitted to the restriction have a right to a similar submission from those who have
benefited thereby (compare Rawls, 1999: 96). Following this principle, could accepting a
restriction on spending one’s money as one chooses be a form of co-operation required by
citizens valuing the NHS? Would allowing the integration of privately purchased treatments
with public provision generate effects that would undermine the functioning of the system and
thereby undermine the production of collective benefits?
To answer this question we need to clear out of the way one type of case. This is the situation
in which additional treatments integrated into NHS care lead to an increase in demand for the
20
NHS services related to these additional treatments – that is, services for the benefit of those
making the top-up payment - and thus impose an external cost on other patients. Although
this problem could be serious in practice, from the point of view of the principles involved, it
is solved by ensuring that co-payments cover the full marginal cost of the extra treatment (for
example, costs of hospital and clinical administration as well as the cost of the product itself).
Once we clear this case out of the way, we can see that the issue one of how far allowing
integration of public and private provision would undermine the public benefits that the NHS
delivers.
One tangible public benefit claimed for the NHS is that, as a monopoly purchaser, it can exert
a downward pressure on the price of pharmaceuticals, whereas with individuals purchasing
treatments there is ‘minimal downward pressure on the prices charged by companies’ (Bloor,
2008). Desperate patients willing to purchase medicines introduce the contrary effect. Since
there is presumably a general interest in reducing the purchase cost of pharmaceuticals,
prohibiting top-up payments would contribute to securing this general goal, in so far as it
would limit the number of people able to purchase additional treatments.
The crucial question, however, is the empirical one of how much the prohibition on copayments would contribute to the achievement of this goal. Whilst prohibiting co-payments
might limit the number of people able to purchase additional treatments because of the loss of
NHS entitlement and consequently the added cost of full private treatment, any option short
of Richards’ ‘Either private or NHS care’ will not deter people considering whether to buy
additional treatments. The ‘Simultaneous care’ or ‘Separate care’ options do not affect the
cost for individuals of the additional treatments or their administration. It is only the full
integration model of top-ups which would significantly reduce the amount of money an
individual patient would need to spend to secure unfunded treatments, and thereby perhaps
increase the number of patients able to do so. At one end of the spectrum then, the‘Either
private or NHS care’ option where NHS entitlement is lost if a patient purchases additional
treatments will be the most costly for a patient and is, as a result, the option which is least
autonomy-facilitating and most collectively orientated. At the other end of the spectrum, the
top-ups system, where patients pay the NHS for additional treatments, is the most economical
for patients and therefore might be thought of as the most autonomy-enhancing and least
collectively-orientated.
The medicines in question are expensive and, as currently understood, cost-ineffective. If
only a few individuals are likely to be in a position where they are willing to purchase them,
then there is no reason to think that the downward pressure that the NHS as a monopoly
21
purchaser is able to exert on costs would be reduced. However, there might be problems if an
insurance market emerged to cover additional treatments, especially if that market spread
beyond the limited list of very expensive products to less expensive medicines. Already, one
insurer, Western Provident Union, has announced such a scheme (see The Times, 25 April,
2007). If this initiative or others like it did not take off, then there would be no effect on the
bargaining capacity of the NHS. If it did succeed, however, then it would presumably
weaken bargaining capacity, since it would bring extra demand into the market.
These effects would be augmented if the insurance market developed and spread to cover a
wider range of products. The logic here – if we can mix our clichés - is that of the ‘thin end
of the wedge’ leading to the ‘slippery slope’. The NHS could cease to be the comprehensive
service to which it aspires and would become the supplier of core services, presumably
disproportionately used by the poor or those without means to obtain suitable insurance cover.
But how much reason is there to believe a slippery slope awaits, even if the wedge has opened
the door? The insurance market would have to operate in the segment of supply that did not
meet NICE’s test of cost-effectiveness, and it would have to operate over a large enough
number of people for insurance premiums to be actuarially sound. Obviously it is a complex
empirical question as to how much entrepreneurial room there is in the insurance market and
we have no expertise to bring to this question. However, we note that the NICE general
threshold for assessment is regarded by some as being high, and that NICE has been flexible
in adjusting the threshold where it has been a matter of dealing with rare conditions. In any
case, a move down the slippery slope could always be prevented by prohibiting the use of
insurance monies for specified medicinal products used alongside NHS treatment.
There are those, of course, for whom the slippery slope would not bring untoward effects, but
would instead represent a gain, since they would prefer to see a system based on mandated
health insurance replacing the NHS, with publicly funded care being directed at a core set of
services or at those patients unable to afford their own insurance. That raises more questions
than can be dealt with in this paper. We merely note that it is one thing to advocate top-up
payments within the NHS and another to advocate top-up payments as a way of ending the
NHS. Indeed, the point of view of the ‘small minority’ of people who wished to see the
debate on top-up payments as a precursor to moving towards an insurance-based system is
roundly rejected by Richards (Richards, 2008: 2)
There is, however, another way of thinking about the possible growth of an insurance market
parallel to the NHS. A tax-funded service by definition has to impose one uniform view
about what the correct amount is to spend on health care. For this reason, tax-funded
22
approaches are poor at balancing supply and demand understood as the total willingness to
pay of individuals. Within a tax-funded service, those with a higher willingness to pay are
denied the institutional opportunity to express their preferences: their ability to spend their
money as they wish is constricted. One way of thinking about co-payments is to see them as
a way by which the most quality-conscious consumers are signalling a greater willingness to
pay for improved health care than is registered through the current system of raising revenue
(essentially, tax-benefit competition by political parties augmented by inter-departmental
bargaining). Pressure to raise quality in the NHS would of itself be some form of public
benefit. To the extent to which co-payments facilitated this, without leading to the slippery
slope, it could be regarded as making an added contribution to the NHS, not seeking to avoid
such a contribution.
One public benefit is that of living in a society in which the value of the social solidarity
contained within the NHS system is affirmed. The argument here is that not only is the NHS
a just form of collective provision but that there is some public good in knowing that a just
form of provision is institutionalised. From this point of view, the NHS is both right in itself
and good in the contemplation of its existence. Aneurin Bevan once wrote that a society
‘becomes more wholesome, more serene, and spiritually healthier, if it knows its citizens have
at the back of their consciousness the knowledge that not only themselves, but all their
fellows, have access, when ill, to the best that medical skill can provide’ (cited in Foot, 1975:
103).4 However, a difficulty with this line of argument in the present context is that such a
sense of serenity would only preclude co-payments if such payments were unjustified. If copayments are justifiable, then the sense of benefit ought to be consequent upon their being
allowed. This point parallels exactly the argument about external preferences made in the
context of equity and resentment at those being able to purchase better quality care. In other
words, there is a potential circularity in arguing from a sentiment that rightful practice has
been institutionalised to a conclusion about what that rightful practice is.
It is difficult to argue that there is a breach of the principle of respect for persons if those
persons are compelled to make a contribution to a collective set of goods from which they all
benefit. There is no reason to think that Hart’s fairness principle violates the respect
principle. However, application of the fairness principle requires one to show that a particular
set of conditions really is necessary in order for the public benefits to be supplied. In
particular, for this argument to work as a reason for restricting co-payments, it would have to
be shown that there was an empirical connection between the restriction on top-up payments
and the collective benefits that were being sought.
23
Conclusion
So far we have surveyed and presented a range of arguments, rather than draw any particular
conclusions. As we noted at the beginning of this article, there are relevant considerations on
either side of the policy question, and it is not our task in this paper to offer a position on the
substance of the issue. However, in conclusion, we would like to draw two broad
conclusions.
Firstly, although the terms ‘equity’ and ‘autonomy’ are used by Richards to frame the debate
about co-payments, neither term stands in a simple one-to-one relationship with the opposing
positions in the argument. The reasoning associated with each principle is complex and can
suggest arguments both for and against co-payments. This is most easily seen in the case of
equity. On any interpretation of equity, it must involve treating like cases as like, but this
means that the interstitial character of the principle is important. Thus, a decision that copayment is adjacent beds is unacceptable but co-payment in separate facilities is acceptable
implicitly assumes that the two cases are sufficiently unlike not to lead to inequitable
treatment. The similarity or differences involved do not follow from the principle of equity,
but are instead something that the principle of equity has to presuppose; so everything
depends on how those similarities and differences are defined.
A similar point can be made with respect to autonomy. The force and implications of this
argument depend on how we relate decisions at the individual level to the collective
consequences of such decisions. For example, if it is the case that allowing co-payments will
reduce the downward pressure on pharmaceutical prices, then the exercise of that freedom by
a large number of people may be self-defeating, because products will be put out of their price
range. Certainly, were an effective market in additional treatments to emerge, the relevant
changes in relation to the monopsonistic purchasing capacity of the NHS and in relation to the
transaction costs of administration would have to be given serious consideration. To trace
out these collective consequences is then to show that autonomy will not give the results that
individuals expect, so that its claims to form the basis for policy are limited.
This leads to our second conclusion. The normative arguments are indeterminate in the sense
that they highlight conflicting considerations some of which suggest the justifiability of copayments and others of which suggest the opposite. This is not to say that the arguments are
purely matters of subjective preference; they all provide considerations ‘capable of
determining the intellect’, to use John Stuart Mill’s (1861: 135) phrase. It is simply that these
24
considerations push in conflicting directions. Moreover, to be practically effective, the
normative arguments have to make essential reference to likely empirical consequences. It is
possible, for example, that the integrity of the NHS would be threatened if an insurance
market emerged in unfunded therapies that was large enough to create a two-tier system.
Whether it is probable as well as possible requires not only more analysis than we can give
here, but it is also likely to remain a matter of conjecture more generally. We here confront
what Rawls (1996: 54-8) referred to as the ‘burdens of judgement’, as an inherent feature of
practical decision making. Although the merits of the arguments prove indeterminate, there is
still a need for policy choice. Richards resolves this problem by in effect using a census
method and taking the balance of opinion as expressed in the consultation. From one point of
view, this can be regarded as a democratic practice. Yet, it does not accord with a conception
of democracy in which elected representatives take a decision on the merits of the arguments
as they see them with the prospect of being held politically accountable. Somewhere between
the merits of the arguments and the expression of opinion we have to look for the practice of
democratic legitimacy, but exactly where that legitimacy is to be found is unclear.
25
Acknowledgements
Part of this paper was written during Weale’s tenure of an ESRC Professorial Fellowship
(Grant Number RES-051-27-0264). We should like to acknowledge the following, all of
whom offered very helpful comments on an earlier version of this paper: the late Brian Barry,
Karen Bloor, Nigel Crisp, Robert Dingwall, Graham Hart, Søren Holm, Rudolf Klein,
Theodore Marmor, Alan Maynard, Robert Maxwell, Kieke Okma, Adam Oliver, Harald
Schmidt, and two anonymous referees from the journal. Naturally, any remaining mistakes
are our own.
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Notes
1
There are two principal problems. Neither of the figures on pp. 14 and 31 of the report refer to the
voucher option, although this is discussed in the main body of the report. More seriously the ‘separate
care option’ looks mis-stated in the original reading as follows: ‘’patients can receive NHS and private
care separately, but in a separate setting’.
2
A point made to us by Graham Hart.
3
By Rudolf Klein and Alan Maynard respectively.
4
With thanks to Robert Maxwell for pointing us to this quotation.