‘Rights and Privileges’
CAERS SUBSTACK ARTICLE #39
Although we humans are programmed to live within social structures like communities, we also need opportunities to be alone and to make our own choices, which includes keeping some parts of our lives to ourselves. In other words, we still want to function as autonomous individuals even though we want to be a part of a collective that we value. We crave intimacy with members of the collective, but within fairly strict boundaries that respect the need for us to control our own destiny, which means limiting our personal transparency to some degree. These two potentially conflicting desires require careful balancing, and how we manage that defines the kind of people we are or want to become.
It is likely clear that the idea of freedom is of primary importance when attempting to resolve these dilemmas. I spoke in articles #7 and #30 that our rights have their origin in the concept of freedom, but obligations to others are the necessary flip-side of rights; without both of them meaningful freedom cannot exist.
If a society desires freedom but wants to avoid anarchy, there must be some fundamental rights that apply to everyone: the right to nutrition, shelter, safety, etc. All of these require fundamental reciprocal obligations. Some rights are positive—the right to something like food—and some are negative—the right not to be assaulted for no reason. Sometimes we are so used to having something, or we enjoy it so much, that we assume that we must have a right to it. But that is not always true. It is not uncommon that some things we consider to be rights are in fact privileges that we grant to one another with expectations that must be met, and limitations that must be adhered to in order to remain valid. To some degree we must prove our worthiness to have them; we have to earn them, perhaps even on an ongoing basis. I cannot enter your private residence without your permission, unless I have a justifiable reason (a warrant, or your house is on fire). I cannot drive a tractor trailer in your neighbourhood until I have demonstrated competency to do so.
With respect to health care in Canada, although you have the right to appropriate care, you do not have the right to walk into an operating theatre in street clothes and contaminate it, or to be present for a patient’s gynecologic exam without their permission. Neither do you have the right to walk freely onto a hospital cancer ward full of immunocompromised patients when you are actively sick with a communicable disease. You must be granted the privilege to do any of these, and there are mechanisms for enforcement, including penalties for noncompliance.
In the case of privileges, you may be required to sacrifice some of your freedoms or privacy in order to gain them. That doesn’t mean that you have to sacrifice them; you will simply be refused the privilege if you don’t, and in a free society that is your choice to make. You may be expected to reveal your intent and motivation before being allowed into someone’s residence, and you will be held accountable accordingly. You will have to agree to confidentially reveal some private medical information, such as your visual acuity, before being allowed to continue to drive a motor vehicle. A surgeon is expected to prove competency, cognitive and physical, in order to perform surgery in a hospital operating room. If your actions have a potential to adversely affect another person, you may have to agree to some level of personal transparency in order to be allowed to do so. The greater the risks of harm to others, the greater level of transparency required, for example, in the doctor-patient relationship or with elected leaders and their constituents.
Our western society greatly values autonomy, and rightly so given the severe abuses when autonomy has been ignored in the past. However, many cultures value individual sacrifice for the collective as much or even more than personal autonomy. Extremes of either may not provide for the best functioning society; it is for each society to decide the best balance of rights and obligations, and for each member to decide if they want to comply or leave.
Has there been a shared understanding of the difference between rights and privileges during the pandemic? Have we been confused about the two? Sometimes it can be difficult to tell one from the other because of context. For example, we often limit nursing homes visits only to those who are well. Is it a right to visit a nursing home resident or a privilege? As a resident, do you have the right to limit visitors or is that a privilege? Are the answers different for access to public spaces like parks or public businesses like supermarkets?
Given that flu shots are nowhere near 100% effective, is it reasonable to limit visits to nursing homes only to those who have had their flu shot? Or limit visits just to those who are well? The COVID vaccine has been even more disappointing than the flu shot in its efficacy. Rather inexplicably, we have not utilized immune testing, irrespective of vaccine status, as a mechanism to reduce risk of disease and transmission, and the associated anxiety of COVID.
Should people have the right to free movement if they have evidence of immunity, vaccinated or not? If they are not immune but they are well, regardless of vaccination status, should there only be restrictions on their contact with the vulnerable who have been isolated? Those who are anxious about contracting disease may want to limit their own activities. Perhaps the best way for them to be protected is for healthy people at low risk of serious COVID disease, and who are comfortable with being exposed to COVID, to gain immunity naturally as quickly as possible (and to prove that with testing). Maybe that is more justifiable than merely demanding a poorly effective vaccine that is not followed by testing for immunity?
To some degree the discussion of rights and privileges examines our ability to put ourselves in the shoes of the other people in our community. Doing so might encourage us to more closely examine the balance of personal autonomy with communal obligations. I’ll examine this in more depth in my next article on narcissism and altruism.
J. Barry Engelhardt MD (retired) MHSc (bioethics)
CAERS Health Intake Facilitator