Can the State adopt paternalistic measures in the field of health protection?

Abstract

The recognition of health protection as a welfare right can lead to conflicts with the individual’s freedom and autonomy, either as patients or as potential patients. These conflicts arise from the adoption of measures or interpretations of the legal system that are paternalistic in nature, warranting reflection on their justifiability. Such reflection is necessary not only because of the highly controversial nature of these measures but also due to the—at least apparent—paradox that what has been arduously recognized as a right ends up being imposed as a duty.

The first form of paternalism analyzed occurs in response to the refusal of medical treatments when life is at risk. The rejection of a treatment considered vital creates a conflict between constitutionally protected rights or interests: on the one hand, the patient’s right to life, which obliges others to do what is necessary to save it; and on the other, the patient’s freedom, which justifies their right to refuse the proposed treatment. Two possible solutions to this conflict depend on how life is conceived: either as a strictly physical-existential quality, which establishes the right to life as a "super-right" that takes precedence over other rights; or as a good inseparable from the individual’s capacity for self-determination, which means there is no conflict between the right to life and freedom, as the constitutionally protected life is the one freely chosen. In the first case, coercive medical care is justified; in the second, life cannot be protected against its holder’s will. Spanish high court jurisprudence tends to favor the first interpretation, conceiving life in terms of sanctity, as an intangible value. However, this paper advocates for the alternative interpretation: life as freely desired and self-determined, which aligns better with the principles of a secular and liberal state and is also gaining traction in the jurisprudence of some courts.

The second manifestation of paternalism examined occurs when the state imposes duties that limit individual freedom and autonomy (no longer as patients but as citizens) to protect their own health. These duties raise two main questions: 1) Are these restrictions on freedom justified? If so, under what conditions? 2) If they are justified, what consequences can be attached to them? Specifically, can the failure to comply with these duties justify the denial of healthcare services? Regarding the first question, the argument here is that if these duties were purely paternalistic, they would lack justification. One of the few (if not the only) ways to justify them is to appeal to individuals' responsibility to protect a high-priority social interest: the preservation of the public healthcare system. This leads to an important consequence: the regulation in question must pass a test of justifiability (or constitutionality). This means proving that it is not purely paternalistic but aimed at ensuring the viability of the right to health for everyone (by controlling healthcare costs and optimizing resource use), that it is appropriate and necessary for that purpose, and that it is proportionate to the benefits expected from it.

As for the second question, it is argued that the “penalty” for non-compliance with such duties cannot under any circumstances involve the deprivation of the right to healthcare, as this would be unconstitutional. A more appropriate (and constitutionally legitimate) approach, particularly in cases of resource scarcity or insufficiency, might involve co-payment schemes, special taxes, or even prioritization criteria for healthcare services.