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, Reference Thornton2008, 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 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 (Reference Klein2006: 85) 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”. In practice, though, pay beds arguably did compromise the principle of equal access, because 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, Reference Klein2006: 85). 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 (e.g. House of Commons Health Committee, 2008, para. 78).

However, the Richards’ position – saying that 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 are 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 will 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 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, though he or she is worse off relative to B. In this context, appeal has been made to the Pareto principle (see Baron, Reference Baron2008, 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 e.g. Barry, Reference Barry1965: 49–50), because 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 (Reference Williams1962: 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, which 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 by 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, Reference Richards2008: 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 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 that the either/or choice is a denial of treatment and that the NHS ought not to be committed to denying people treatment.Footnote 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.Footnote 3 Similarly, Richards et al. (Reference Richards, Dingwall and Watson2001) 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 (Reference Bloor2008) 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.”

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, Reference Dworkin1977: 234–239; Ware, Reference Ware1978: 19–31; Weale, Reference Weale1983: 38–41; Goodin, Reference Goodin1995, chapter 9). 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 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 (Reference Richards2008: 53, 55) 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’. 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 ground 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 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 that allowed the NHS to generate income in a way that 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, Reference Webster1988: 166–183). Concerns over the way in which charges compromised the founding principles of the NHS were also recognised by the Royal Commission on the National Health Service (1979: 376, para. 22.74) nearly 30 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”.

Secondly, there is a clear conceptual distinction between charging for a service that 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. Appleby (Reference Appleby2008) 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.” 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 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 is 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 (Reference Finlay and Crisp2008) point out that “Almost half of patients with cancer use a wide range of non-prescription complementary treatments, yet no one suggests such self medication should be forbidden if they also access NHS care.”

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. Baron (Reference Baron2008, col. 51) 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 life?”. 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 as 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 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.

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?

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 (Reference Dworkin2000: 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 (Reference Dworkin2000: 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, as co-payments do the opposite of requiring everyone to make a contribution to treatments with poor cost-effectiveness 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 (Reference Dworkin2000: 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 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 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. 1. The benefit of being relieved of the financial risks of ill health.

2. 2. The fruits of research and development, in the form of higher quality services.

3. 3. Public health benefits such as the reduction of infectious diseases.

4. 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. 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 (Reference Hart1955) 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 (Reference Rawls1999: 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 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 (e.g. 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 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, Reference Bloor2008). 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 co-payments 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 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 Reference Sikora2007). 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’s 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 (Reference Richards2008: 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 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 (Reference Foot1975: 103)).Footnote 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 co-payments 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.