Journal of medical ethics 1995; 21: 144-150

Double jeopardy and the use of QALYs inhealth care allocationPeter Singer, John McKie, Helga Kuhse and Jeff Richardson Monash University, Clayton, Australia

AbstractThe use of the Quality Adjusted Life-Year (QALY) asa measure of the benefit obtainedfrom health careexpenditure has been attacked on the ground that itgives a lower value to preserving the lives ofpeople witha permanent disability or illness than to preserving thelives of those who are healthy and not disabled. Thereason for this is that the quality of life of those withillness or disability is ranked, on the QALY scale, belowthat ofsomeone without a disability or illness. Hence wecan, other things being equal, gain more QALYs bysaving the lives of those without a permanent disabilityor illness than by saving the lives of those who aredisadvantaged in these ways. But to do so puts thesedisadvantaged people under a kind of double jeopardy.Not only do they sufferfrom the disability or illness, butbecause of it, a low priority is given to forms of healthcare that can preserve their lives. This, so the objectionruns, is unjust or unfair.

This article assesses this objection to the use ofQALYs as a basis for allocating health care resources. Itseeks to determine what is sound in the double jeopardyobjection, and then to show that the defender of QALYshas an adequate response to it.

We can all agree that when we spend money fromthe public purse on health care, we should try to getvalue for money. But there the agreement stops.What is value for money in health care? Theoutcomes of health care expenditure are so diversethat we need a common standard by which tocompare them. The most promising commonstandard, many believe, is the Quality Adjusted Life-Year, or QALY. In essence, this standard says thatthe value we get from spending money on healthcare can be measured in terms of the number ofyears of life gained, as long as we provide anappropriate rate of discount for periods in which, asa result of ill-health or disability, the quality of life ispoor. Several techniques have been used to establishthe appropriate rate of discount. The most direct ofthese, the time trade-off, asks people how long a

Key wordsResource allocation; health economics; QALY.

period of life in the given health condition theywould be prepared to trade for one year of normalhealth. For example, they may say that for one yearin normal health, they would give up two yearsbedridden. Then the appropriate rate of discount forbeing bedridden is 0 5, because that is the rate ofquality adjustment at which a gain of two life-yearswhen bedridden equals a gain of one year in normalhealth (1).

There are, however, several objections to the useof the QALY as a way of measuring the value gainedby a given unit of health care expenditure. Thisarticle deals with one of them: that for those who areunfortunate enough to have a permanent disabilityor illness, the use of the QALY as a measure of valuegained by health care puts them at an additionaldisadvantage. The first appearance of this argumentin the discussion of QALYs is, as far as we are aware,in an article by John Harris, and we follow him byreferring to it as 'double jeopardy' (2). In rejectingthe Oregon plan for rationing health care, the UnitedStates Secretary for Health and Human Servicesused a form of the double jeopardy objection (3).

Here is the way Harris puts the double jeopardyargument:

'QALYs dictate that because an individual isunfortunate, because she has once become a victimof disaster, we are required to visit upon her a secondand perhaps graver misfortune. The first disasterleaves her with a poor quality of life and QALYs thenrequire that in virtue of this she be ruled out as acandidate for life-saving treatment, or at best, thatshe be given little or no chance of benefiting fromwhat little amelioration her condition admits of' (4).

What is sound, and what is unsound, in thisobjection?

1. Ameliorating the victim's conditionHarris says that if treatment is allocated on the basisof gaining the most QALYs per dollar, then 'at best'the victim of an earlier disaster will have little or nochance of benefiting from treatment that couldameliorate her condition. Is this right?

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Peter Singer, J7ohn McKie, Helga Kuhse, Jeff Richardson 145

Imagine that Karen is the victim of a disaster - tobe precise, she has been injured in a car accident thathas left her a paraplegic. She is confined to awheelchair and has persistent, often severe, backpain. Let us assume that the QALY scale rates twoyears of life in this condition as worth one year of lifein good health. Hence Karen's quality-of-life score is0 5. Given her age and general health, her life-expectancy is another 40 years. Thus the number ofQALYs that her life would be expected to contain, ifher condition remains unchanged, is 20. Now let usassume that a treatment is available for Karen's backpain. She will still be a paraplegic, and need to use awheelchair, but the pain will go entirely. Her quality-of-life score will rise from 0 5 to 0-75. The treatmentwill not change her life-expectancy. Hence theexpected QALYs in her life will rise from 20 to 30.

Another woman, Lisa, was also injured in a caraccident, but it can scarcely be called a disaster. IfLisa has no treatment, beyond the initial first aid shehas already received, she will be left with a limp, butshe will not have any pain from the injury. This givesher, we shall say, a quality-of-life score of 0 95. Herlife-expectancy is, like Karen's, 40 years, so if hercondition remains unchanged, she has anexpectation of 38 QALYs. There is, however, atreatment that will eliminate the limp, returning herquality-of-life score to 1-00, and bringing her post-treatment QALY score to 40.

For simplicity, let us suppose that Karen's andLisa's operations cost the same, $10,000 each. Is ittrue that allocating our health dollars so as toproduce the largest number of QALY's per dollarwill always give Karen - the victim of the disasterthat has left her permanently a paraplegic - lesschance of treatment than Lisa, who has suffered arelatively minor injury? Obviously not. The $10,000we spend on Karen brings a net gain of 10 QALYs,in other words we have to spend $1,000 for eachQALY gained. On the other hand the $10,000 wespend on Lisa returns us only 2 QALYs, at a cost of$5,000 per QALY. So if we spend our health carebudget in order to maximise QALYs, we will preferoperations like those that Karen needs to operationslike those that Lisa needs; there is no problem ofdouble jeopardy here.What the example shows is that where

amelioration of a disabling or painful condition ispossible, a policy of maximising QALYs does notsystematically disadvantage a person with a severedisability or illness. The reason for this is simpleenough: what is important, from the point of view ofusing our health care resources effectively, is not thehealth status of the person at any one point in time(whether that is before the treatment or after thetreatment) but rather the change in a person's healthstatus brought about by medical intervention (5).The principle of QALY-maximisation requiresdirecting resources to those groups of patients wherethe greatest QALY gains can be expected, and this is

not necessarily the patients who will have the highestQALY levels at the end of the treatment.We have not yet, however, tackled the double

jeopardy argument on its strongest ground.

2. Saving the victim's lifeNow let us consider another couple, Michele andNina, who have also had accidents, and sufferedinjuries identical to those suffered by Karen andLisa, respectively, with one important difference:there is no treatment that can help either Michelle orNina. For the rest of her life, Michelle must expectto be confined to a wheelchair, with persistent, andoften severe, back pain; and Nina will walk with alimp for as long as she lives. Initially, it seems thatthis is likely to be 40 years, in each case; but theneach of them is afflicted by a heart condition that,without treatment, will rapidly prove fatal. A hearttransplant offers the only hope, at a cost of$100,000. What are the QALY implications ofproviding heart transplants to Michelle and Nina?

For simplicity, let us assume that without thetransplant, each will die immediately, and with thetransplant, each will live for 40 years. Remember,however, that each year of Michelle's wheelchair-bound life is rated at only 0 5 QALYs, whereasNina's rates 0 95 per cent. So with the transplant,Michelle will have 20 QALYs and Nina 38. If theoperation is given to Michelle each QALY gainedwill have cost $5,000, whereas if it is given to Nina,the cost per QALY gained will be only $2,632. Ifthose in charge of the hospital budget were to rationheart transplants on the basis of these figures, Ninamight receive a transplant whereas Michelle mightmiss out. Here indeed is a solid basis for Harris'sassertion of double jeopardy: because Michelle wasonce a victim of an accident that left her with a muchreduced quality of life, now it seems she is to bevisited with a still greater misfortune. She will notreceive the treatment she needs to have a chance ofcontinuing to live.

It is easy enough to see what is going on here. Asthe case of Karen and Lisa made clear, the QALYapproach does not take notice of an individual'squality of life per se, but it is sensitive to theincremental QALY gain which a treatment makes.In the case of Michelle and Nina, the gain iscomposed of two factors: the additional length oflife, and the quality of this life. The former is thesame for everyone in the two examples, but the latteris very different. Since one year of Michelle's life isequivalent to only half a year of life in full health,whereas the same length of time for Nina equals verynearly a full year in normal health, the QALYapproach counts the gain made by the operation asmuch greater in the case of Nina than in the case ofMichelle.We accept, then, that there is some kind of double

jeopardy in these circumstances. Intuitively, this

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seems unfair. But this intuition needs, at least, somescrutiny. If our resources are limited and we cannotsave every life that could be saved by some form ofhealth care, is it really unfair to give a lower priorityto saving the lives of those with incurable conditionsthat significantly reduce their quality of life?

As a step towards an answer to this question,consider a final example. Two other patients, Ottoand Richard have not been in any accidents, but theyhave heart conditions just like those of Michelle andNina. Without transplants they will soon die, withtransplants they will be able to continue to live theirlives in full health. But Otto also has an entirelyseparate incurable medical condition that - while itcauses him no problems now - will suddenly flare upand end his life. Because of this, his life expectancy isonly twenty years, whereas Richard's is almost twicethis - to be precise, 38 years.

In QALY terms, the Michelle/Nina pair ofpatients and the Otto/Richard pair are identical, andif heart transplants were being rationed on the basisof QALYs, preference would in each case be given tothe second member of the pair. For those who countonly QALYs, it makes no difference whether thesmaller number of QALYs gained comes from alower quality of life, or from a shorter expectedlifespan. What about those who oppose the use ofQALYs as a basis of allocation of health care? Doesit make a difference to them whether QALYsdisadvantage a person with a lower quality of life, orwith a shorter expected lifespan?

Consistently with his general objection to QALYs,Harris would appear to hold that it is wrong to givepreference to someone like Nina over someone likeMichelle, and also wrong to give preference tosomeone like Richard over someone like Otto. Inboth cases, Harris thinks we should focus on thepatients' desire to go on living, rather than thenumber of QALYs gained. Considering a case inwhich more QALYs can be gained by giving a life-saving treatment to one person, who with thetreatment has a long life expectancy, rather than tosix, who even with treatment have only a short life-expectancy, he writes:

'If each of the seven wants to go on living for as longas he or she can, if each values the prospective termof remission available, then to choose between themon the basis of life-years (quality adjusted or not) isin this case to give no value to the lives of six people'(6).

And in a subsequent article Harris says:

'I believe that the value of life can only sensibly betaken to be that value that those alive place on theirlives. Consequently, ifyou and I are of different agesbut we both want to live, then it is unfair to preferyour life to mine simply because you are threemonths younger' (7).

The final sentence of the second passage invokes anexample that makes it difficult to disagree withHarris's claim. But he is making it too easy forhimself. If he wants to stand by the claim that thevalue of life is nothing else but the value that thosealive place on their lives, he would have also toobject to giving the treatment to Otto rather thanRichard if they both wanted very much to live, evenif the heart transplant could offer Otto only a year ortwo, while it still offered Richard 38 years (and, weassume, everything else about Otto and Richard arethe same - it is not the case that Otto needs the timeto finish his literary masterpiece, or carry through hispromising research into a method of achievingperpetual peace). Indeed, it isn't clear what basisHarris would have for giving the treatment toRichard rather than Otto, even if the latter wouldhave only a month, or a week, to live. No doubtHarris would want to say that there is a thresholdbelow which his argument is not valid - but if bothRichard and Otto want to live, it is difficult to seehow such a threshold could be defended,consistently with the general position Harris takes.

More troublingAlthough Harris objects to QALYs because theyfavour those who will live longer as well as becausethey favour those who have a better quality of life,some may think that the latter case is moretroubling. But what about a case in which thedifference in quality of life is as dramatic as was thedifference in life-expectancy in the version of thecase of Otto and Richard that we have justconsidered? Suppose that Michelle's accident hasmade her a quadriplegic, and she finds her existencein this condition tolerable, but very much inferior tolife before her accident. In fact, she says - and meansit - that she would gladly give up ten years of life asa quadriplegic for a single year in normal health.This makes her QALY score 0-1. She has a lifeexpectancy of 40 years. IfNina, who has a similar lifeexpectancy and a near-normal quality of life, needs alife-saving operation, would it be wrong to give herpriority?Some may say that it would be. But such

intuitions should not be accepted uncritically. Whatcould incline us to accept QALY verdicts when thedifference in life-expectancy is responsible for thedifference in QALY outcomes, but not when theoutcome is determined by differences in quality oflife? We might be more confident that a difference inlife-expectancy is an objective measure ofsomething, whereas we are suspicious of attempts toput cardinal values on people's quality of life. Inother words, we know that two years are twice aslong as one year, but we lack conviction that a yearof life in normal health really is as good as two yearsof life scored as 0 5. We may know that that isexactly what the figures mean, if the scoring is done

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Peter Singer, John McKie, Helga Kuhse, Jeff Richardson 147

correctly, but we may reasonably doubt whether, inpractice, anyone can possibly get such calculationsright.

Another ground for doubts about givingpreference to Nina takes us into more fundamentalethical questions. This is the view that becauseMichelle has suffered more from her accident thanNina, it is only fair to redress the balance by nowconferring a benefit on her rather than on Nina. Onthe QALY approach this regard for past suffering isnot relevant. The QALY approach is whollyforward-looking. All that matters is puttingresources where they will achieve the greatest futureQALY gain. In contrast, those who argue from abasis of desert or compensatory justice hold thatpeople should not have to endure more than their'fair share' of human suffering, and we should dowhat we can to smooth out great differences in theamount people suffer.

This position is supported by Kappel and Sand0e,who distinguish between two different views con-cerning the span of time within which it is proper tocompare the QALY gains and losses of differentpeople:

'The life-time view sees equality as something thatconcerns a whole life-time. To value the lives of twopersons equally we should aim at distributingresources so that each in his life viewed as a wholewill have his fundamental interests fulfilled to thesame degree as the other person.

The present time view sees equality as somethingthat concerns the present moment. To value thelives of two persons equally we should at any timeaim at distributing resources so that they get theiractual fundamental interests fulfilled to the samedegree' (8).

Kappel and Sand0e support the life-time view.According to this view, since Michelle has hadgreater suffering as a result of the accident thanNina, then, other things being equal, she is moredeserving (though perhaps not overridingly moredeserving) of treatment which will improve hersubsequent quality of life. To treat people equally weshould distribute resources so that each person'sfundamental interests are fulfilled to the samedegree, including their ongoing interest in enjoyinggood health. (Note that the greater the time intervalbetween the original accident and the need for life-saving treatment, the stronger this argument is. IfMichelle has already had to endure many years ofsuffering as a result of her injuries, the case forcompensatory preferential treatment is strong; if,however, both Michelle and Nina are still in hospital,just recovering from their injuries, when the need forlife-saving treatment arises, the case will be weak.)

In support of the view that a person who hassuffered more in the past should get priority in the

competition for scarce resources, other thingsbeing equal, Kappel and Sand0e point out theappropriateness in other contexts of compensatingpeople for ills which have befallen them. Forexample, we all think it fair if someone who worksextra hours under sufferance, because their specialskills are needed, is compensated in the form of extrapayment or some extra time off- 'even if, when thetime comes for him to be compensated, he is noworse off than other people who are not given extramoney or extra time off (9).

But there are problems with appealing in this wayto past suffering in the allocation of health careresources. For example, it is an implication of thelife-time view defended by Kappel and Sand0e thatsomeone who is now suffering moderate or mild painshould have a higher priority for treatment thansomeone who is now suffering intense pain if theformer person has suffered more in the past(provided that person's past suffering is greater thanthe anticipated suffering of the latter person, shouldhe or she fail to receive treatment). In other words, itis an implication of the life-time view that, undercertain circumstances, someone presently sufferingless should be helped in preference to someonepresently suffering more. As Kappel and Sand0eacknowledge, 'this seems counterintuitive' (9).

Kappel and Sand0e are not deterred by thiscriticism. They suggest that the intuition in favour ofhelping the person who is presently suffering moremay reflect the fact that moderate and mild pain arecomparatively tolerable without treatment, whereasintense pain must be treated unless the person isgoing to suffer badly. In support of this they suggestthat if the difference in degree of suffering is lessenedwe are more inclined to favour the person sufferingleast (if they have suffered more in the past).'Imagine that both persons suffer from intense painbut the pain of the first patient is just slightly moreintense than the pain of the other patient. In thatcase it seems more reasonable to treat the personthat earlier suffered the most pain' (9).

Timeless viewHowever, in giving credence to the intuition thatwhen the difference in degree of suffering is slight itis more reasonable to treat the person who earliersuffered the most pain, Kappel and Sandoe could beaccused of begging the question. To the extent thatthe purpose of health care is to lessen pain andsuffering, and to the extent that nothing humanlypossible can be done to lessen past pain andsuffering, it would seem more reasonable to treat theperson who is presently suffering more, since at leastthis person's suffering can be lessened. Nothing canbe done about past suffering, whereas (often)something can be done about present and futuresuffering. This does not imply a lack of sympathy,nor a callous attitude toward past suffering. With the

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passage of time, present suffering becomes pastsuffering. Therefore the best way (indeed the onlyway) to reduce past suffering, as viewed from thefuture, is to minimise present and future suffering.So ifwe take a timeless view, this is where our effortsshould be directed.The view we have just been considering is an

argument for compensatory justice. This is one

strand of the double jeopardy objection, but thedouble jeopardy objection can also, as we havealready seen, be put in a purer form, based simply onthe claim that it is unfair that those who are thevictims of one disaster should for that reason be putat a further disadvantage by resource allocationdecisions. On this view QALYs give the wrong

answer, not because they ignore past suffering, butsimply because they discriminate against those whoare now disabled or living a life of poor quality. JohnBroome, for instance, points out that the aim ofdoing the most good may tell us to give lower priorityto a disabled person, and then says flatly: 'However,we know this is unfair' (10). Although Broome thengoes on to argue that in some cases, this unfairnessmay be outweighed by a gain in the good achieved,we do not find it self-evident that it would be unfairto give lower priority to the disabled person.

In order to discuss this claim that double jeopardyis simply unfair, let us assume that we have a suitablemeasure of the value that continued life holds for theperson whose life is at stake. This value may beidentical to what is now measured by QALYs, or itmay be a measure of strength of preference, or it maybe something else altogether. For simplicity, we shallrefer to it as a person's 'interest in continued life'. Iftwo people both have an interest in continued life,and we cannot offer life-saving treatment to both ofthem, we have the choice of offering it to neither, or

using some method of selecting one of them.Offering it to neither would mean that both patientswould die; if we use a method of selecting betweenthe patients, this could be one that relies on chance,or one that employs a principle of selection. In thissituation, what course of action is ethicallyjustifiable?

Veil ofignoranceThere are many possible ways of deciding that a

social arrangement is ethical or just. Two well-known examples are Kant's Categorical Imperative,which requires us to act only on maxims that we can

will to be universal laws, and the utilitarian proposalthat each is to count for one and none for more thanone (11). Both suggest some form of impartiality;and John Rawls has drawn on this tradition bysuggesting that we can decide whether socialarrangements are just by asking if they would beagreed to by rational egoists choosing from behind a

veil of ignorance (12). The idea of the veil ofignorance is that it forces an impartial choice by

preventing people knowing whether they will beadvantaged or disadvantaged by the proposedarrangement. So, in this case, we imagine peoplechoosing a basis for allocating health care withoutknowing whether, at some point in their lives, theywill be in need of health care to prolong their lives;we imagine also that they do not know whether, ifthis happens, they will be among those whoseinterest in continued life is low, or among thosewhose interest is high.How would two rational egoists choose if they

were faced with a situation in which they eachneeded life-saving treatment, and each had aninterest in continued life, but there was enough life-saving treatment for only one? Obviously each wouldchoose the treatment for herself, if he or she could;but suppose they had to make the choice behind aveil of ignorance, in which they knew the details ofthe two patients' conditions, but did not know whichpatient they were? They would certainly not choosethe option of giving the treatment to neither patient.For this would mean that they would certainly die.In comparison with that prospect, tossing a coinwould at least give them a 50 per cent chance ofsurvival, and so would be preferable. But a randommethod would in turn seem less attractive than amethod of selection that gives preference to theperson with a stronger interest in continuing to live.For those choosing the basis for allocating healthcare will know that, if they choose a random methodof selection in order to avoid discrimination insituations when a treatment cannot be given toeveryone, then some with a higher interest incontinued life will not receive such treatment. Tomaximise the satisfaction of their own interests,rational egoists would have to choose a system thatgives preference to saving life when it is most in theinterests of the person whose life is saved. This meansthat if QALYs were an accurate way of measuringwhen life is most in one's interests, then rationalegoists would choose to allocate in accordance withQALYs. But they cannot do this without buildingdouble jeopardy into their principles of distribution.Thus by one widely accepted, and undoubtedlyimpartial, way of deciding on the justice of principlesof distribution, double jeopardy is not a sign ofinjustice or unfairness.The previous argument assumes that the rational

egoist is faced with a life-and-death decision. Asimilar argument also applies to a case in which twopeople, at present equally disadvantaged, could eachbe given treatment that would improve their qualityof life, but in one case, this would bring the patientback to full health, whereas in the other case,perhaps because of an unrelated pre-existingdisability, the treatment would result in a lowerquality of life. Let us also assume that both patientshave a similar life-expectancy, and this is unaffectedby the treatment. In this situation, since bothpatients started out from a similar level, the patient

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Peter Singer, John McKie, Helga Kuhse, 7effRichardson 149

who can be brought to full health will gain morefrom the treatment. Assuming that everything else isequal, the calculation has been carried out properlyand the treatment can be given to only one patient, arational egoist choosing from behind a veil ofignorance would choose to give the treatment to thepatient who will gain more from it.

This argument from the hypothetical consent ofrational egoists is, in our view, an adequate responseto the double jeopardy objection, since thatobjection is based on the assumption that QALYsare unjust or unfair because they lead to doublejeopardy. The argument is, however, not new, andHarris has already considered, and rejected it.Before concluding, we shall respond to what Harrishas said about hypothetical consent as a defence ofQALYs (13). Harris makes three points. The first,citing Ronald Dworkin, is that hypotheticalagreement does not provide an independentargument for the fairness of the arrangement thatwould be agreed to, because:

'... you use the device of a hypothetical agreementto make a point that might have been madewithout that device, which is that the solutionrecommended is so obviously fair and sensible thatonly someone with an immediate contrary interestcould disagree' (14).

That is true, by and large, although we would add tothe last clause, after the words 'someone with animmediate contrary interest', 'or someone who hasfixed ideas about what constitutes "unjustdiscrimination" and has not reflected adequately onthe implications of these ideas'. For while the deviceof a hypothetical agreement is certainly just anexpository device, it can reveal aspects of a situationthat were not well understood beforehand.

Harris then argues that even if arrangements arechosen behind a veil of ignorance, that does notensure they are just or impartial. He offers theexample of people choosing a slave-owning society,gambling on being a member of the large number ofslave-owners who enjoy living luxurious lives, ratherthan one of the small number of wretched slaves. Butit is difficult to know what to make of this example,because it is not clear if Harris is talking about aworld rather like our own, or one in which humannature is quite different from what it is now. If thegamble is really one that well-informed rationalegoists would make, then either the number of slavesmust be very small indeed, or their lives not sowretched after all - for in the real world, who wouldthink the difference between being the slave of aslave-owner and a citizen of a slave-owning societywas so great as to be worth even a one-in-ten chanceof ending up as a slave? Moreover, in the real world,a ratio of one slave to every ten free people wouldcertainly not be enough to make the lives of the slave-owners wonderfully luxurious. Of course, some will

impatiently wave aside such petty calculations.Slavery is unjust, and we know that much better thanwe know how many slaves it takes to create luxuriouslives for their masters. Indeed, we do, but that isbecause in the real world, those who support slaveryknow very well that they are the masters and not theslaves; if there were any uncertainty at all about this,they would not support it. In other words: if wechange the nature of human beings enough to makeit plausible that rational egoists would choose toallow slavery without knowing if they were to beslaves or masters, then yes, slavery might be just. Butas long as human beings stay roughly as they are,rational egoists behind a veil of ignorance would notchoose to allow slavery.

Finally, Harris points out that Rawls himself holdsthat rational egoists behind a veil of ignorance wouldchoose two specific principles of justice, and thesecond of these principles is that inequalities inwealth and resources are justifiable only in so far asthey operate to the advantage of the worst-offmembers of society. This second principle is, ofcourse, incompatible with the idea of distribution ina way that maximises QALYs. Harris therefore saysthat if it could be shown that the device of choicebehind a veil of ignorance leads to the reverse ofRawls's second principle of justice, this woulddiscredit the plausibility of the device itself. Here,however, we disagree. There have long been goodgrounds for thinking that inA Theory ofJ7ustice Rawls'cooked the books' in order to derive from hishypothetical device the principles that he believedsquared with our considered moral judgments aboutjustice (15). In his own later work Rawls haseffectively conceded this point, for he has shiftedaway from defending the two principles of justice interms of their derivation from a choice made byrational egoists under conditions of ignorance, andinstead has focused on the 'fundamental ideasviewed as latent in the public political culture of ademocratic society' (1 6). If we are right inconcluding that rational egoists behind the veil ofignorance would opt for a QALY-based method ofallocating health care resources, and if this isincompatible with the principles of justice Rawlsclaims to have derived from the hypothetical choicesof rational egoists, then this discredits Rawls'sderivation of the two principles of justice, rather thanthe device of hypothetical choice itself.

Overall utilityOne final point. We have rejected the claim thatQALYs are unjust or unfair because they lead todouble jeopardy. This does not necessarily meanthat we think that health care should always bedistributed so as to produce the largest possiblenumber of health-related QALYs. There is more tooverall utility than health-related QALYs, and it isplausible to suppose that tilting the balance of health

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care towards the more disadvantaged members ofsociety will reinforce feelings of concern andsympathy, and lead to a more compassionatesociety. This in turn may be a society with morecommunity feeling and therefore one that provides ahigher level of general welfare than a lesscompassionate society.

In a recent survey of the attitudes of Australians tothe distribution of health care, we found that manyrespondents were ready to depart from QALYmaximisation in order to avoid expressing a priorityfor the treatment of some patients over others, andthis may also be explained by a concern for the effectsthat a direct maximisation approach has on the kindof society we are. For example, when asked whether,among patients who are suffering equally, somepriority should be given to those who will be helpedmost from treatment, only about half (53 per cent) ofthose answering favoured doing so; the remainderthought that those who could become a little bettershould have the same priority as those who couldbecome much better. Even more striking responseswere received to a hypothetical choice betweenpatients who can be helped at low cost and those whoare equally ill, but can only be helped at high cost.Overwhelmingly (81 per cent) of respondentsfavoured equal treatment irrespective of cost, exceptwhen the costs are extremely high. Even whenpresented with a hypothetical example showing thatgiving priority to low-cost patients would allow morepatients to be treated overall, most respondents didnot choose to maximise health benefits (17).

It is at least possible that Australians (and nodoubt some other nationals as well) consider itimportant to act in ways that go beyond abstractjustice or faimess, instead tilting the balance so thatit favours those who would otherwise feel themselvesarbitrarily disadvantaged. On these grounds, wecould understand a preference for avoiding doublejeopardy, even though double jeopardy is not in itselfunjust or unfair.

AcknowledgementThe authors thank the Australian National Healthand Medical Research Council which has supportedthis research through a Public Health ResearchProject Grant to Dr H Kuhse and ProfessorP Singer.

Peter Singer, John McKie, Helga Kuhse and JeffRichardson are, respectively, Deputy Director, ResearchAssistant and Director, Centre for Human Bioethics,Monash University, Clayton, Victoria, Australia and

Director of the National Centre for Health PlrogramEvaluation, Monash University, Fairfield Hospital,Fairfield, Victoria, Australia.

References and notes(1) Torrance G W. Measurement of health state utilities

for economic appraisal: review. J'ournal of healtheconomics 1986; 5, 1: 1, 30. If we discount for futurelife-years, a small additional adjustment of thecalculation would be needed. For simplicity, in thisarticle we disregard the issue of discounting.

(2) Harris J. QALYfying the value of human life. Journalof medical ethics 1987; 13, 3: 117-123.

(3) Daniels N. Rationing fairly: programmaticconsiderations. Bioethics 1993; 7, 2/3: 227. Daniels isciting a press release by Louis Sullivan of the Healthand Human Services Press Office which was issuedon August 3 1992.

(4) See reference (2): 120.(5) Hadorn D C. The Oregon priority-setting exercise:

quality of life and public policy. Hastings Center Report1991; 21, 3: supplement: 11-16.

(6) See reference (2): 118.(7) Harris J. More and better justice. In: Bell J M,

Mendus S, eds. Philosophy and medical welfare.Cambridge: Cambridge University Press, 1988: 3.

(8) Kappel K, Sandoe P. QALYs, age and fairness.Bioethics 1992: 6, 4: 297-316.

(9) See reference (8): 315.(10) Broome J. Fairness versus doing the most good.

Hastings Center report 1994; 24, 4: 36-39. See alsoBroome J. Fairness. Proceedings of the AristotelianSociety 1990; 91: 87-102.

(11) Kant I. The foundations of the metaphysics ofmorals. In: Kant I. The philosophy of Immanuel Kant.This was first published in 1785. We refer to page 80of the edition translated by LW Beck and publishedin 1949 by the University of Chicago Press, Chicago.The utilitarian dictum is attributed to JeremyBentham by John Stuart Mill in Utilitarianism whichwas first published in 1863. We refer to page 58 of theedition published in 1960 by J M Dent and sons,London.

(12) Rawls J. A theory ofjustice. Oxford: Oxford UniversityPress, 1972: ch 1.

(13) See reference (7): 88-90.(14) Dworkin R. Taking rights seriously. London:

Duckworth, 1977: 151.(15) Barry B. The liberal theory of justice. Oxford:

Clarendon Press, 1973: ch 9.(16) Rawls J. The priority of right and ideas of the good.

Philosophy and public affairs 1988; 17: 252. See also,Rawls J. Political liberalism. New York: ColumbiaUniversity Press, 1993.

(17) Nord E, Richardson J, Street A, Kuhse H, Singer P.Maximising health benefits versus egalitarianism: anAustralian survey of health issues. Social science andmedicine [forthcoming].

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