Why Bariatric Surgery Should be Given High Priority: An Argument from Law and Morality

People who are obese have a BMI of 30 or higher [108]. The BMI is calculated by dividing body weight by the square of height. A person weighing 90 kg and is 1.70 m tall has a BMI of 31 (90/1, 70 * 1.70 = 31). An individual with a BMI of 35 or higher is considered to be severely obese. A person who is 1.70 m tall and weighs at least 101.15 kg (101.15/1.70 * 1.70 = 35) therefore suffers from a severe form of obesity. Even though this may seem clear enough, the definition of obesity has changed over time and evaluating individuals does not appear to be as clear cut after all [96].

For Swedish statistics see Public health report 2009 [95]. Available at (in Swedish): http://​www.​socialstyrelsen.​se/​Lists/​Artikelkatalog/​Attachments/​8495/​2009-126-71_​200912671.​pdf.

For a more detailed description of the different procedures, see [31].

The data can be found here: http://​www.​sahlgrenska.​se/​upload/​SU/​HTA-centrum/​HTA%20​Obesitaskirurgi%20​2008-05-27.​pdf.

The cost was as high as US$25,000 in the United States according to Carabello [13] and was about the same in the UK at £11,000–14,000 as stated by Picot and colleagues [66].

These figures are available at http://​www.​swecare.​se/​virtupload/​content/​122/​Svensk_​sjukvard_​i_​internationell_​belysning.​pdf.

Rationing, in general, has been widely discussed (an entire issue of this journal was, for instance, devoted to the topic [2, 58, 61, 87]. The most common way to address the issue of bariatric surgery, however, is to take on a few ethical challenges without addressing the issue of whether we should assign this procedure high priority. For an example, see [42].

I will not to discuss whether adolescents should also be given high priority because this raises another set of issues regarding their eligibility to provide consent, and so on.

Some people argue that we should exercise procedural fairness in priority setting in healthcare [30]. This is, however, not meant to replace arguments similar to the one put forward in this paper. Instead, what these procedures are meant to do is to facilitate the discussions similar to those presented here. Putting forward this argument, then, does not signal my disagreement with the procedural approach. Indeed, I have argued for it elsewhere .

This is also practiced in Sweden [72].

The difference principle is meant to be applied to the fundamental structures of society and not to concrete issues such as whether bariatric surgery should be prioritized [71].

Other moral considerations, such as those from utility, can of course lead up to the same policy implications. If we ought to maximize the total sum of wellbeing, we may do this best if we focus on those who are worse off.

Because my aim is to show that any reasonable suggestion about ill health includes obesity as either an instance of ill health or a risk factor for future ill health, I use one of the more specific suggestions instead of a wide one such as the definition provided by the WHO [107].

For a slightly different view, see [24].

The differences are expressed in effect sizes “trivial and small” (0 to <0.5), “moderate” (0.5 to >0.8), and “large” (0.8+).

For a more detailed discussion about obesities impact on our quality of life, see [45, 47].

For detailed descriptions and defenses of utilitarian theories, see for example [79, 93].

The article can be found here: http://​www.​nytimes.​com/​2012/​01/​08/​health/​young-obese-and-getting-weight-loss-surgery.​html?​_​r=​1&​hp.

The data are accessible here (in Swedish): http://​www.​sahlgrenska.​se/​upload/​SU/​HTA-centrum/​HTA%20​Obesitaskirurgi%20​2008-05-27.​pdf.

This does not necessarily mean that they are completely ineffective in decreasing the level of ill health that originates from being obese. For example, exercise has been found to decrease the risk of ill health even though it does not necessarily reduce weight [78].

There may, of course, be individual treatments that work even though conventional treatments generally do not. The problem is, to the best of my knowledge, almost no longitudinal studies have been able to show this. Often, the studies are of a short term and are not longer than a year or two. Here, I am not discussing how to avoid gaining weight, although this will be tackled further in the paper. In this statement, I point to how to lose weight when you are obese. These are two completely different issues.

The most promising of the few longitudinal and successful studies performed for more than 2 years that I have found was one where a combination of behavioral therapy and dietary advice was used [4]. This was a four-year study, in which the patients underwent behavioral therapy in groups of up to five during the initial 6 weeks. In these sessions, they were provided assistance in identifying strategies for managing eating behavior. During the entire 4 years, the patients exercised three times a week, in groups or individually, and met a dietician once or twice a week to have their weights checked and to obtain more dietary advice. After 1 year, the men lost about 30 kg, while the women lost about 15 kg. After 4 years, the women retained about 12 kg of weight loss and the men around 18 kg. On average, the weight they lost was 15 kg. That is, the weight loss after 4 years was significant even though the method was resource intensive.

It is important to remember here, however, that comparison with surgical procedures would be unfair because the latter has been proven effective after 15 years, whereas the former after only four. Patients in the conventional study registered a significant weight reduction after the first year, averaging at 22.5 kg, and then gained weight (7.5 kg) the last 3 years. Because people treated with conventional therapies commonly return to their initial weights over time, it is not unlikely that these patients also will regain the weight they lost, the difference being that they show a slower weight gain.

Even though RCTs are still perceived as the golden standard of empirical evidence it is by no means free of controversy [15].

The kind of reason that is often considered relevant is that which is broadly scientific. Given our best scientific theories about how the body works, for instance, we may have reason to believe that a certain medication will have a positive effect even though we have not tested it to any large extent.

There are also utilitarian reasons for adopting a utilitarian principle that works in this manner, such as if we have legislation that is not widely supported by the public. If this support is lost, then they may be less inclined to pay taxes or seek help from healthcare systems when needed. In many instances, the public in many countries have shown that they do not accept leaving people to die or suffer if there is at least some chance of curing them through some unproven treatment. This view suggests that we should have a utility principle that imposes a low epistemic demand when the stakes are high.

A part of this effect is probably due to our mirror neurons [17, p. 1770f]. They make us, subconsciously, mimic other people’s behavior. This finding suggests that if someone consumes a substantial amount of unhealthy foods, then this behavior will most probably drive us to do the same, and vice versa. If a person undergoes surgery and consequently cannot eat the same amount of unhealthy foods, then this will probably motivate others to consume less unhealthy foodstuff.

If we are going to prioritize bariatric surgery, then entering into agreements with hospitals in countries where it is much cheaper, such as India, may be more cost-effective. High-quality care, as well as full access to journals for doctors back home, can also be guaranteed. Several problems diminish the value of this approach. One is that these types of agreements may divert qualified personnel from other part of the health care system where they are better needed [106]. These empty spots are often difficult to fill because there are so few people who are well educated in the first place. Another problem is whether patients in general feel secure enough to travel abroad and undergo surgery without having severe implications for the success of the surgery.

Many of those who have argued that people are not accountable for their ill health have used an excessively stringent criterion for responsibility. Peoples’ actions do not have to be “informed, voluntary, uncoerced, spontaneous, deliberated” as Daniel Wikler [102, p. 50] states, for them to be fully responsible for such actions. In this case, criminals would only rarely be responsible for their crimes, heroes seldom responsible for their heroic acts, and so on. We may indeed be excused in most cases, but this is quite a radical notion that would force us to revise numerous well-considered judgments. These would need substantial arguments in their favor—a task that critics usually do not contribute to. Another typical critique is that people’s unhealthy behavior can account only for a small part of the difference in health between groups who are well off and those who are not that well off. For example, a prospective study revealed that only 15 % of behaviors that cause ill health can explain why there is a difference between various groups [49]. The problem with these arguments is that we are responsible for both our actions and our omissions. Thus, we can be accountable for our ill health if we do not take the steps (such as exercising and eating a healthy diet) necessary for maintaining good health.

Those who are overweight upon entry into adulthood are 17 times more at risk of becoming obese as adults [41].

For a discussion about the development of adolescents’ brain function and whether they should be held criminally liable, see [88, 89].

About 43 million were predicted to be obese or overweight by 2010 according to the WHO (2009). These figures are quickly rising.

Segall argues that we should talk about whether it is reasonable for people to avoid X instead of whether they are responsible for X [77, pp. 19–27]. I am not going to discuss whether this is the correct discussion approach. Suffice it to say that the capabilities that we require for us to be responsible are often not in place when it is not reasonable for us to avoid something. They are, in other words, strongly correlated even if they are two different issues.

For a good overview, see [17]. Her main argument is that we are not aware of why we become obese. However, most of these pathways can be used to show why we have diminished impulse control. See also [62] for a similar discussion.

For a more detailed description and references, see [32]. See also [43] for an interesting study in rats.

There are, of course, other biological factors that explain why the obese have reduced impulse control. For example, they have a smaller frontal brain than do people with normal weight, and because this part of the brain is used for impulse control, we can conclude that the obese have a lower degree of control [8].

According to certain criteria for responsibility, such as those provided by Fischer and Ravizzas [28], we would in practice never be excused because of a lack of impulse control. I believe as Alfred Mele does, however, that this makes the criteria of Fischer and Ravizzas [28] implausible [59, pp. 146–155].

For references, see [32].

There are also several philosophers who argue that addiction is not necessarily an excuse [33, 98, 100].

Studies have revealed that “the neurophysiological events triggered at the sight of food affect the same part of the brain and appear identical to what drug addicts experience when shown images of their drugs of choice” [17, p. 1769; emphasis mine].

Several high-quality meta-analytic reviews are devoted to these topics. For the effect of advertisements and the onset of smoking see [26] and [54]. For the effect of advertisements and the effect on adolescents drinking see [1, 85, 88]. For the effect of positive portrayals of smoking in movies, see [101]. As far as I can tell, no high-quality meta-analytic review exclusively focuses on the effects of positive portrayals of alcohol in movies. However, a wide range of high-quality longitudinal studies [20, 36, 37, 75, 104, p. 40] and an experiment [27] support my idea that being exposed to these factors increases the likelihood of early onset of drinking and that people drink more when they drink in a dose–response relationship.

This after controlling for several potential confounders, such as age, gender, socio-economic status, parental and peer smoking behavior, and so on [38, p. e274].

For another view, see [73, p. 24]. This review can be found here (in Swedish): http://​www.​fhi.​se/​PageFiles/​3239/​R200424tvkonsumt​ion.​pdf. The authors argue that it is the form and not the content of the medium that causes young people to become obese. See also [14].

When this topic is discussed, a focal point is whether it is the industries’ or the parents’ fault that the children are affected. We do not have to concern ourselves with this issue here. What matters is that those who are exposed to these ads are manipulated, and hence, not fully responsible for what they do.

WHO says this here: http://​www.​who.​int/​mediacentre/​factsheets/​fs311/​en/​index.​html.

But people who are obese will probably have to cut down more calories than what is usually advised by these agencies [35].

I have some anecdotal evidence that supports the idea that weight loss may be maintained for a longer period when a person takes up interest in sports. My father, for instance, went from being obese to becoming a long-distance runner. Being this type of athlete entails running long stretches each week, which makes burning calories easier. However, this is not something we expect from people, implying that the obese are, to some extent, excused.

In the long run, as we have seen, it is a different matter. If these procedures are cost-effective in the sense that people get healthier, they will be able to work more and use less health care resources.