Introduction

Health resources are the means of any kind that serve to provide both public health and health care services. They can refer to those used in public or private medicine ⁽¹⁾. Every human being makes use of various health resources to care for their health, and without these the achievement of it would be unthinkable.

However, distributing resources is an unavoidable task, since these are limited anywhere in the world. It is the task of a goverment to carry out a distributive task of public goods so that citizens can enjoy the opportunity to achieve health. In order to exercise good governance, this task must be done in an equitable, efficient or useful way and that it prioritizes the most vulnerable;¹ that is, in accordance with fairness ⁽²⁾.

However, the distribution of resources is not carried out in a neutral or aseptic way. It is subject to various interests, for example, benefiting the person with whom you have a relationship of interest, such as kinship, friendship or moral ancestry; or prioritize with certain resources those who are economically worse or those who are in a worse situation of health ⁽³⁾, depending on the ideology or political interest that the resource distributor may have.

Conflicts of interest are those situations in which the judgment of a subject and the integrity of his actions tend to be unduly influenced by another interest, which is often of an economic or personal nature ⁽⁴⁾. Interests are part of life: everyone proceeds in an interested way when looking for what is necessary for his/her fulfillment and well-being, which does not entail any ethical fault. The problem is when such interests compete with the primary interest. Then there is a conflict of interest secondary to the service of the individual or a certain purpose, and the primary one that must be the service to the health of people.²

Conflicts of interest should be oriented in order to clarify what is correct. Justice is the greatest of virtues ⁽⁵⁾, and although it has several specifications according to the theory of fairness that is invoked, fairness, efficiency and to look after the most vulnerable, help to avoid conflict of interest, by guiding in the right sense when making a decision that can be clouded by the secondary interest that everyone has.

The objective of this work, is to show some conflicts of interest that can occur in the distribution of health resources in light of three principles or specifications of fairness: equity, efficiency and seeing for the most vulnerable.³ For this, the importance of fairness in the distributive task will be made clear, through the aforementioned principles.

Next, certain distributional issues of importance for Mexico and countries that face great social injustice will be discussed, such as: the fulfillment of the right to health care; the definition of the item for health care, the priorities in the health services, and the model of the health system; and the fair choice of subjects before scarce treatments. Some conflicts of interest that may occur when exercising the distribution of resources will be shown, both at the level of design of institutions or policies and at the level of choice among patients.

The main agents responsible for the distribution of health resources will be appealed: the State as the main guarantor of this right to health and healthcare and limiting benefits; health institutions, direct managers of care, which must combine efficiency, equity and privilege the vulnerable; and lastly, health professionals, true final distributors of resources ⁽⁶⁾.

Situations that disapprove of all ethical standards in justice and that have to do with corruption are not addressed here. For example, the production, possession, trafficking or proselytizing and other acts in the field of narcotics (⁷, Arts. 193-199), or crimes for acts of corruption such as abuse of authority or illicit enrichment (⁷, Articles 215 and 224), which disapprove of any principle of justice.

1. The distribution of resources and their relation to justice

Designing the scope of basic healthcare institutions involves distribution decisions.⁴ Now, the important thing is that it must be done in order, that is, under certain reasonable criteria.⁵ Such order is required since the distribution can be made partially, or under interested criteria, giving reason for conflicts of interest.

What is sought is to determine the following: What kinds of health care services should there be in one place? Who will receive them and on what basis? Who will distribute them? How will your financing charges be distributed? How will the coordination of these services be distributed? ⁽⁹⁾. These distribution decisions have to do with the economic funds, with the amount and type of health care to be distributed, and with the type of problems that are intended to be solved.

Neither the free market, nor technology, nor new governments, nor the hoarding of natural resources... nothing can avoid limits on resources. And the same is true in the field of health. No one can have all the healthcare they want, because it is limited and shared with others. Nor can unlimited resources be devoted to health care because other areas are neglected. The greater the budget a State dedicates to health care, the lesser it can allocate to other goods and services, such as education, security, housing, etcetera.

Conflicts of interest are those situations in which the judgment of a subject, in relation to a primary interest for him or her, and the integrity of his actions, tend to be unduly influenced by a secondary interest, which is frequently economic or personal type ⁽⁴⁾. Or when professional responsibilities diverge from personal interests ⁽⁹⁾. The desire to earn money, increase reputation, obtain political favor or only to improve self-esteem are common reasons for scientific malpractice because they cause conflicts of interest, that is, conflicts with the scientific standards of the search for true knowledge. In the case of the distribution of resources, it could be said that the desire to earn money or to gain political favor may prevail, postponing what is mandated by the distributive ethical criterion.

In the latter lies one of the main contributions of justice. Because the rationing of health resources is a task that cannot be postponed anywhere, justice must offer normative criteria so that this task is done in an orderly manner, that is, in a fair way. For example, the economic globalization characteristic of the expansion of the free market in a universal way has resulted in an overabundance of resources in a few people and a shortage of resources in the vast majority of the earth. The danger is that this system will expand more and more in the health sector, through market medicine, with efficacy and economic performance prevailing over other more equitable ethical criteria or of prioritizing the most vulnerable.

Now, knowing what is fair or the content of justice must be given by that theory that is considered ideal for distributing resources ⁽⁹, ¹¹⁾, taking into account, for the purposes of this chapter, the three central ones in Western philosophical ethics: the Aristotelian, the Kantian and the Utilitarian, whose central principle can be specified as: «give each person what he is entitled to», «treat everyone with equal consideration and respect», or «seek the greatest utility for the greatest number» ⁽¹²⁾. In reality, all three are important, because they highlight key elements for a fair distribution: equity, the rights of people beyond their socio-economic level and efficiency.

Each of these principles has different concretizations depending on the circumstances. In the case of giving each one his due, equality is measured according to medical needs, which gives rise to the famous criterion «equal cases, equal treatments; different cases, different treatments». That is, in the face of the same disease, the same treatment should be given. But it would be contrary to the principle if, for economic or educational inequality, two patients with the same medical need one is better treated than the other one.

From the Kantian principle «treating everyone with equal consideration and respect», John Rawls’ theory of justice through a procedural and democratic methodology reaches three central principles for the distribution of resources: 1. Civil liberties are governed by the principle of equal freedom of citizenship; and 2. The assignments and positions must be open to all, in accordance with the principle of fair equality of opportunity. But it also adds the difference principle, by which the unequal distribution of these goods is only fair if it obeys the «maximum» criterion, that is, if no other way of articulating social institutions is capable of improving the expectations of the least favored group ⁽¹³⁾. With this, two key principles for an equitable distribution of resources are clear: fair equality of opportunities ⁽¹⁴⁾ and the duty to prioritize the most disadvantaged ⁽¹³, ¹⁶⁾.

Economists’ own need for efficiency is championed by the principle «the greatest utility for the greatest number». From here derive the criteria for prioritizing patients in favor of a resource according to the utility it will represent. The analysis programs of cost minimization and profit maximization will be decisive. However, the conflict of interest can emerge when only these criteria are used, which can leave the least advantaged without adequate attention, for example, the elderly or those who will take less advantage of the resource because they have less health.

The aforementioned must also be seen from a justice perspective that is not limited to the health field, but rather takes into account the social, cultural or environmental factors that make a person or a population sick, the social determinants of health. (SHD), widely considered by theories of social justice ⁽¹⁵, ¹⁶⁾. In places of high injustice such as Mexico, not considering the macro factors that predispose subjects to become ill, can lead to committing more injustice with those who have the least. For example, when considering equal cases and giving equal treatments for referring patients with the same clinical entity, without taking into account what factors such as economic or cultural poverty influence in the non-adherence to treatment of one of them.

Below are some topics on the distribution of resources and certain conflicts of interest that may arise. The former are at the structural level or of a macro distributive character level, and the latter at the patient or micro distributive level. In macro-distributives, there is a danger that decisions, based on statistics or numbers, or referring to institutions, will relativize conflicts of interest or the impact of what has been decided. In the micro distributive conflicts of interest occur in doctors or health professionals who distribute resources among specific people, the decisions involved are more drastic, and therefore, reveal more the need for impartiality in distribution. Both call for awareness and education on justice matters.

2. Some topics that require fair administration of healthcare and possible conflicts of interest

3. Assign scarce treatments for patients and possible conflicts of interest

Within the micro-distribution, the reflection will focus on the distribution of scarce therapeutic resources. It is an inescapable issue on which doctors make decisions, perhaps often little aware of the ethical implication that it entails, driven by different criteria such as medical necessity, urgency of treatment, usefulness, etc. They are usually taken in secret and there is difficulty in making them public due to the conflict that they entail, since nobody likes to be rationed a resource ⁽³⁶⁾. All in all, the triage system is a valuable ethical resource that has been established in the outpatient clinic and in the emergency services for the distribution of health resources in both public and private medicine.

The question that best defines this level is: which patient is the available therapeutic resource? Or in harsher terms: who should be saved when everyone cannot be saved? Making decisions is more difficult when a disease threatens life and the scarce resource is potentially capable of saving the patient.

Micro-distribution decisions are affected by the right to UHC under the principles of equity and utility, but not by preferential attention to the vulnerable, at least directly. In the face of two patients who need a scarce resource, the ability to pay should not determine access to the medical resource, either because you have it or because you don’t have money. Neither should influence position, kinship, friendship, religious belief, gender, etc. In other words, let yourself be carried away by the «law of the most influential».

Therefore, decisions regarding scarce medical resources should be made under priority schemes to select recipients, often in emergency cases. The strategies of maximum benefit for patients and social efficiency are highlighted; and those of equity of personal merit and fair opportunity ⁽³⁷⁾. From equity and efficiency, as presented in this work, the considerations of maximum benefit would be fair, but not those of social efficiency. The objective is the highest productivity under criteria focused on medical considerations, for example, giving the resource to those who have the greatest possible success, or to those who achieve more days with quality of life measured by the Quality Adjusted Life Years (QALYS) or fewer days with disability through the indicator Disability Adjusted Life Years (DALYS); but not to choose from social considerations, for example, to provide the resource to the subject of «greater social value» or to exclude «unworthy candidates». However, combined considerations may be valid, such as privileging the resource for the youngest ⁽³⁸⁾. The objective of the second strategies is equity, beyond the fact that maximum productivity is not achieved. Fair equality of opportunity is more akin to equity raised here than fairness of merit, which is controversial ⁽³²⁾.

One way to avoid conflicts of interest in healthcare professionals and patients is to act by correct procedures and fair rules so that decision-making process is adequate, which requires awareness and ethical education, especially in our Latino culture that is not accustomed to procedural ethics. First, criteria and procedures are needed to determine a qualified pool of potential recipients, such as heart transplant eligible patients. Second, criteria and procedures are required for the final selection of patients, such as the patient who will receive a specific heart.

The criteria for screening potential health care recipients can be organized into three basic categories: circumstantial factors, progress in science, and the perspective of success. Within the circumstantial cases, one very frequent in contexts of high injustice, fostered by models of segmented health systems and that can reveal conflicts of interest, is to offer ample medical resources to those who have the capacity to pay. Another similar case is to offer organs for a transplant only to nationals, excluding immigrants.⁹ Both attempt against the fairness of justice. Those related to the progress of science refer to giving priority to patients whose treatment will give the most useful scientific information; they are for research and their use rests on moral and prudential judgments about the most efficient use of resources.

The probability of success is an important criterion to take into account, because a scarce medical resource should be distributed only to patients who have a reasonable opportunity of benefit. To ignore this factor is to commit an injustice, because its consequence is to waste resources; for example, offering a heart transplant to a patient who, because of his health condition, will take little advantage of it.

Judgments about the probability of success are value loaded, and the operational criteria for patient selection and their choice require careful institutional and public scrutiny to ensure that these values are defensible. For example, the debate about what counts as success in a transplant: graft survival time, patient survival time, quality of life, or rehabilitation ⁽⁹⁾.

The proposed standards for final patient selection have been more controversial than those for the initial selection. The debate has focused on medical usefulness, of which a word has already been said; impersonal mechanisms such as lotteries and waiting lists, which will be discussed below; and social usefulness.

The use of waiting lists is justified by considerations of equality and fair opportunity considerations, if social resources are scarce and not divisible in portions, and when selection determines life or death. Lists are an inevitable and rational planning resource. When the waiting time is reasonable, for example, a range of 14 days to 4 weeks, and when there is no urgency for treatment, waiting lists are a morally acceptable means, because they promote rational planning of benefits, as well as the proper use of available services and facilities. However, given the growing demand for hospital care in Mexico, waiting lists are one of the reasons for the greatest dissatisfaction among the population. Waiting lists have become an indicator of the level of health care, but we have not yet reported in Mexico ⁽²⁰⁾.

Within the waiting list method, three criteria have been used to establish treatment priority: attention in order of arrival, need for medical attention and possibility of medical success. All three criteria are morally valid. The first is that the time you have been waiting on the list is the main indicator of how long it takes to be treated, and never the favoritism or friendships or other types of influences that would go against the right to health care of the injured parties. The second is that a real emergency must take precedence over a lesser need, despite being an exception to the principle: equal cases should expect the same treatment opportunity. The third has already been discussed and is a decisive criterion for entering the waiting list ⁽³⁹⁾.

One factor to consider is that some people do not enter the list or lottery on time, due to factors such as difficulty seeking help, inadequate or incompetent medical care, the delay of the health systems in sending the patient, or open discrimination. A healthcare system is unfair if it does not prevent some from gaining an advantage over others in access, because they are better educated, better related or through money they get more frequent visits to doctors. In other words, in places of high social marginalization, equitable policies must be put in place that lead to the fulfillment of the right to health care for vulnerable patients ⁽⁹⁾.

In summary, waiting lists can be considered an adequate instrument for the fair distribution of resources in conditions of moderate scarcity. It is in these circumstances when it becomes possible to apply the moral principles that underlie the very existence and use of waiting lists. In conditions of excessive scarcity, the disparity between the demand for care and the supply of services increases in such a way that too many patients have to wait a long time. It happens then that the moral principles that serve as the basis for the waiting list lose their discriminatory capacity. This is a factor to consider in places like Mexico.

Conclusion

The necessary distribution of limited health resources can be a source of conflicts of interest that must be regulated by a series of principles of justice. When dealing with elementary distribution issues such as the right to health or health care, or an adequate prioritization of health services, or the design of an adequate model of the health system, the principles converge in indicating elements of usefulness, equity and prioritization of the vulnerable, inalienable in any society or health institution that boasts of being fair. Equity and usefulness also regulate the conflicts of interest inherent in the distribution of resources when it is necessary to choose which patient has a certain means to save his life. It is the level in which the urgency of impartiality in the allocation is more visible and asks to learn to abide by a series of impartial procedures and rules. However, both distribution levels call for awareness and ethical education regarding the potential conflicts of interest that may arise. In countries with high social injustice such as Mexico, it is imperative to work for a fair distribution of resources that limits conflicts of interest that partially benefit some, neglecting equity, efficiency, and priority for the most vulnerable.