Gry Wester, Postdoctoral Fellow, University of Bergen
Many countries have adopted a practice whereby designated institutions play a key role in making decisions about health care priority-setting. The appropriate procedure by which such bodies should make their decisions in order to ensure legitimacy and fairness has been much discussed. In particular, Daniels and Sabin’s influential framework for procedural justice, ‘Accountability for Reasonableness’ (AFR), has been prominent in the debate . The AFR specifies four conditions that a decision-making procedure must meet in order to be fair and legitimate: the Publicity Condition, the Relevance Condition, the Revisions and Appeals Condition, and the Regulative Condition. While the strengths and weaknesses of the framework have been widely discussed, the question of how well the framework lends itself to use in a real-world institutional setting has received much less attention. There is often an implicit expectation of a higher standard of reasoning or deliberation in such public decision-making institutions – yet decision-making in a real-world institutional setting may be subject to a range of constraints and challenges that typically do not apply in the context of private reasoning. It is worth considering, therefore, how well the conditions set out in the AFR, and the concerns that they embody, map on to or capture the complexities of practice.
Here, I would like to offer some preliminary observations, building on a previous analysis of the decisions and justifications of the Norwegian National Council for Priority Setting in Health Care . The Council, which was established in 2007, is one of several institutions involved in macro-level priority setting in the health care services in Norway. The Council’s primary role is to deliver assessments and recommendations concerning priority setting in the health care services to health management and authorities and governing bodies. Recommendations typically concern questions concerning coverage of new and existing treatments and interventions – for example, whether a particular vaccine be included in the national child vaccination programme. While the Council has not formally modelled their decision-making process on the AFR framework, they have expressed their endorsement of the framework and an aspiration to comply with it. My objective is to explore whether such an analysis can tell us anything about the applicability of AFR to practice.
In my ongoing and extended analysis of the Council, I am particularly interested in their process of reasoning and deliberation – for example, how potentially relevant reasons and considerations are identified, the level of discussion of these, how they are weighed against each other, and so on. While the AFR does not as such specify how deliberation ought to proceed, improved deliberation appears to be an implicit objective. As Daniels explains, he adopts a deliberative conception of democratic legitimacy, rejecting mere majority rule as a solution to resolve rationing in health care . If we merely aggregate the preferences of voters, we leave the moral disagreements of voters as they are – instead, Daniels argues, we ought to at least try to resolve such disagreements by argument and deliberation. The AFR’s four conditions, which constitute the criteria for a fair and legitimate decision-making procedure, are at the same time intended to promote improved deliberation in various ways. In particular, the Publicity condition specifies that a decision must be given an explicit rationale. While the primary purpose of this condition is to ensure transparency and accountability, the ‘articulation of explicit reasons’ that is required in order to meet this condition is also expected to make the institution ‘more focused’ in its deliberations . Furthermore, the Appeal condition, together with the Publicity condition, enable a more comprehensive approach to identifying potentially relevant reasons: The possibility of revising a decision in light of further reasons or arguments that were previously overlooked helps ensure that a broader range of reasons are taken into account. Presumably, the underlying idea is that considering a broad range of reasons will ultimately lead to better, more well-founded decisions.
There are several aspects of the Council’s decision-making procedure that are of interest in this respect. On the one hand, the Council’s case procedure allows for the inclusion of a broad range of reasons and perspectives to be considered in the deliberative process. In particular, the Council’s Secretariat, which conducts the background assessment of a case, consults a wide range of different stakeholders and sources of information in order to identify key issues for consideration. Furthermore, the composition of the Council is broad, in order to ensure diversity in the representation of stakeholders and perspectives. On the other hand, however, there is no mechanism for ensuring that each of the potentially relevant reasons and perspectives are in fact addressed in the process of deliberation. The Council did not always attend to all the issues raised by the Secretariat as potentially relevant, which raises concerns about the systematicity of their approach and the potentially arbitrary exclusion of considerations from the discussion. A possible explanation for this was that cases were typically very complex and multi-faceted, significantly broadening the range of potentially relevant reasons, thus rendering deliberation and decision-making more demanding. Furthermore, the engagement with reasons and considerations raised was often fairly superficial. Finally, it was not always clear how the decision in a given case and the justification provided for that decision were related to the reasons and considerations that had been raised in the course of the discussion – that is, why some reasons or considerations raised in the course of the discussion featured as justificatory reasons while others did not. This could in part be due to the Council’s consensus based approach for making a decision: the chairman sums up the discussion and formulates a final statement, which is then put to the vote. Thus, the justification provided may in some sense be closer to a summary of considerations and viewpoints raised in the discussion, as opposed to reflecting a specific argument.
What, if anything, can this peek into practice tell us about the applicability of the AFR in an institutional setting? Of course, it is limited what lessons we can draw on the basis of a single case study. Nevertheless, some tentative observations can be made. Although the Council provided justificatory reasons for their decisions, reason-giving was not always indicative of systematic and in-depth deliberation. That is, adequate deliberation is not a prerequisite for providing a rationale. I would like to suggest that a further specification of the Publicity condition would allow it better to fulfil its implicit function to focus the deliberation. In particular, a further specification of what providing a justification or rationale should involve could help structure the discussion. Such further requirements could include, for example, listing all reasons or concerns that have been raised, for and against, in the course of the case process; being more specific about what, if any issues were resolved, or on the contrary remained unresolved; and being explicit about reasons or considerations that were considered not relevant or outweighed by other reasons. By thus specifying the requirements in accordance with the kinds of barriers to good deliberation that may exist in an institutional setting, the practical relevance and applicability of the framework can be improved.
 Daniels, N. and Sabin, J. (2008) Setting limits fairly: can we learn to share medical resources? Oxford: Oxford University Press
 Wester, G. and Bringedal, B. (2017) ‘The Norwegian National Council for Priority Setting in Health Care: Decisions and Justifications‘, Health Economics, Policy and Law, 2017. DOI: https://doi.org/10.1017/S1744133117000020
 Daniels, N. (2008) Just health: meeting health needs fairly, Cambridge: Cambridge University Press