11 December, 2008


(Citizens for Health)

The road to hell is paved with good intentions. Whoever coined that phrase didn’t have healthcare in mind, but it certainly applies, especially when it comes to the role of orthodox science and law. We gave you one piece of the puzzle last time with the story about soap. Here’s another piece of the puzzle, more complex and compelling:

Imagine that for hundreds, perhaps thousands of years, you and your ancestors used nature for your health. You grow and use plants and other life forms for healing. You share with friends and family. Perhaps you even trade with or sell to others. In fact, through the wisdom and experience handed down over the years, you’ve become quite an expert on the healing properties of herbs, foods and other properties of nature. You are devoted to helping humankind with a method of healing that has been proven with time and experience.

Not everyone resonates with what you offer, but many do. Many are helped, some a great deal. Few, very few if any, are ever harmed. And the cost of what you offer is reasonable.

Your neighbor is a scientist. Her work is also in the healthcare field. She is also devoted to helping humankind. She does not draw from nature, per se, but from new discoveries in science, biochemistry and technology. The success of her work is not based on centuries of experience and use, but rather on the novel outcome of objective measurements and testing. Many are helped, some a great deal.

Her work carries a different set of risks and rewards than your work. Not better or worse – though certainly different. Indeed, you are both in the healthcare field. But that’s where the similarities end.

Your neighbor can get a patent on her work. You cannot. Patents are only available for “any new and useful process, machine, manufacture or composition of matter.” Nature does not qualify, nor should it.

Because your neighbor can get a patent, she has an exclusive monopoly for her healthcare product for a significant period of time. You do not. That exclusive monopoly allows your neighbor to collect what are often called “monopoly rents” for her products (a/k/a “darn high prices”). You cannot. You work in a marketplace where competition is the rule.

But it’s not just competition that rules in this story. There’s also a deeper perception that’s become locked in place. We’ve been largely blind to it, but the consequences are becoming evident.

Let’s explore further:

The reason your neighbor gets that exclusive monopoly, according to the system of law and public policy, is because it costs her so much to make her product and to get it approved. Those scientific tests and measurements are very expensive. American policy says that your neighbor and people like her need the incentive of patent protection. That incentive will motivate her to invest the large amount of money it takes for R&D and the Regulatory Approval process.

Law and public policy place a lot of value on the R&D process, as well as the Regulatory Approval process. That’s probably a good thing, especially considering the unique risks and rewards attendant with your neighbor’s product.

In any case, let’s restate the obvious: without patent protection for your neighbor’s health care products, no one could afford to make them, study them, sell them or improve them.

Once your neighbor has a patent, for the duration of the patent, she owns the healing property of her product, in a manner of speaking. Within reason, she can say anything and everything that is truthful about the healing property of her product, especially if it’s been proven in the lab and approved by the government. She also has to disclose any known risks.

In this case, we see more complex features of how healing becomes a commodity. For large parts of our health care system, healing is a patented commodity. Is this right or wrong? Fair or unfair? In many ways, the law and public policy that governs your neighbor’s product makes sense. But let’s compare your neighbor’s situation with your own situation in this hypothetical.

Unlike your neighbor, you can’t talk about the healing property of your natural product. You’re breaking the law if you share the generations of knowledge and experience that you’ve gained about your product. Oh, you can talk about the general “healthy” nature of your products, but you cannot talk about specific health claims like your neighbor can.

Well, actually that’s not quite true. You could talk about specific health claims for your products if you go through an R&D process and gather “significant scientific agreement” about the health claims of your products. But you’ll never get the same patent protection that your neighbor gets. And so, absent a large very large trust fund or massive donations from the public, there’s little chance you can ever afford to conduct the R&D necessary to speak about the healing properties of your products, or to speak about their history and their effectiveness as proved from hundreds or even thousands of years of experience. You certainly cannot speak in the same way as your neighbor can.

And in a world where so much information, perception and even meaning is communicated by the media and by advertising, this difference between you and your neighbor is pretty stark. Go read the Soap Story again.

The knowledge and experience attendant with natural products does not have the same value in our system of law and public policy as does technical R&D for patentable products. This is because ownership of health care as a commodity is more valuable than health itself.

Read that sentence one more time: ownership of health care as a commodity has become more valuable than health itself. Not by a lot, but by enough to create a systemic flaw in our system that’s becoming more evident and relevant day by day.

This is not just a question of health freedom and health choice. This is also very much a question of health access and health cost. These components - health freedom and health choice, health access and health cost - together constitute what we call health justice.

What do you think?

More on the question of Health Justice in Part III soon.

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