This paper argues that we ought to rethink the harm-reduction prioritization strategy that has shaped early responses to acute resource scarcity (particularly of intensive care unit beds) during the COVID-19 pandemic. Although some authors have claimed that “[t]here are no egalitarians in a pandemic,” it is noted here that many observers and commentators have been deeply concerned about how prioritization policies that proceed on the basis of survival probability may unjustly distribute the burden of mortality and morbidity, even while reducing (...) overall deaths. The paper further argues that there is a general case in favor of an egalitarian approach to medical rationing that has been missed in the ethical commentary so far; egalitarian approaches to resource rationing minimize wrongful harm. This claim is defended against some objections and the paper concludes by explaining why we should consider the possibility that avoiding wrongful harm is more important than avoiding harm simpliciter. (shrink)

Withholding or withdrawing life-saving ventilators can become necessary when resources are insufficient. In the USA, such rationing has unique social justice dimensions. Structural elements of dominant allocation frameworks simultaneously advantage white communities, and disadvantage Black communities—who already experience a disproportionate burden of COVID-19-related job losses, hospitalisations and mortality. Using the example of New Jersey’s Crisis Standard of Care policy, we describe how dominant rationing guidance compounds for many Black patients prior unfair structural disadvantage, chiefly due to the way creatinine and (...) life expectancy are typically considered.We outline six possible policy options towards a more just approach: improving diversity in decision processes, adjusting creatinine scores, replacing creatinine, dropping creatinine, finding alternative measures, adding equity weights and rejecting the dominant model altogether. We also contrast these options with making no changes, which is not a neutral default, but in separate need of justification, despite a prominent claim that it is simply based on ‘objective medical knowledge’. In the regrettable absence of fair federal guidance, hospital and state-level policymakers should reflect on which of these, or further options, seem feasible and justifiable.Irrespective of which approach is taken, all guidance should be supplemented with a monitoring and reporting requirement on possible disparate impacts. The hope that we will be able to continue to avoid rationing ventilators must not stand in the way of revising guidance in a way that better promotes health equity and racial justice, both to be prepared, and given the significant expressive value of ventilator guidance. (shrink)

This July 2020 issue of JME introduces a new section, “COVID-19 Current Controversies,” which will be a recurring section in each issue for the foreseeable future. This issue reflects on some of the most pressing ethical issues that have arisen roughly 6 months into the pandemic. Kathleen Liddell and colleagues examine important legal considerations at play in ventilator allocation decisions raised by the pandemic.1 They point out that ethics-based triage protocols that argue from the principle of “saving the most lives” (...) by withholding or withdrawing ventilators from certain patients could violate the law (U.K. and elsewhere). Patients’ legal rights are not suspended during this crisis, they remind us. The mere action of ventilator removal (extubation and proning) may constitute battery without consent, for example. Moreover, there may be problems with “evidentiary weakness” in some of the prognostic models used to inform such decisions. And, decisions that are inconsistent, subjective, and/or discriminatory may be deemed illegal. Those developing policies need to consider and consult various areas of law including criminal law (eg, murder, battery, negligence, manslaughter), human rights law, civil law (eg, battery, negligence, duty of care, consent), public and administrative law (eg, discrimination, case law), law on decision-making for incapacitated adults, professional regulations, and derogations from current law (eg, immunities and indemnities). Liddell et al offer 10 concrete, legally informed recommendations for those developing triage-policies to consider. Michael Parker and colleagues take on the issue of contact tracing using mobile apps and point out that such apps can enable people to emerge more safely from lockdowns, which provides a strong autonomy-based argument in favour …. (shrink)

John Rawls begins a Theory of Justice with the observation that 'Justice is the first virtue of social institutions, as truth is of systems of thought… Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override'1. The COVID-19 pandemic has resulted in lock-downs, the restriction of liberties, debate about the right to refuse medical treatment and many other changes to the everyday behaviour of persons. The justice issues it raises are diverse, (...) profound and will demand our attention for some time. How we can respect the Rawlsian commitment to the inviolability of each person, when the welfare of societies as a whole is under threat goes to the heart of some of the difficult ethical issues we face and are discussed in this issue of the Journal of Medical Ethics. The debate about ICU triage and COVID-19 is quite well developed and this journal has published several articles that explore aspects of this issue and how different places approach it.2–5 Newdick et al add to the legal analysis of triage decisions and criticise the calls for respecting a narrow conception of a legal right to treatment and more detailed national guidelines for how triage decisions should be made.6 They consider scoring systems for clinical frailty, organ failure assessment, and raise some doubts about the fairness of their application to COVID-19 triage situations. Their argument seems to highlight instances of what is called the McNamara fallacy. US Secretary of Defense Robert McNamara used enemy body counts as a measure …. (shrink)

The ever-debated question of triage and allocating the life-saving ventilator during the COVID-19 pandemic has been repeatedly raised and challenged within the ethical community after shortages propelled doctors before life and death decisions. The British Medical Association’s ethical guidance highlighted the possibility of an initial surge of patients that would outstrip the health system’s ability to deliver care “to existing standards,” where utilitarian measures have to be applied, and triage decisions need to maximize “overall benefit” In these emergency circumstances, triage (...) that “grades according to their needs and the probable outcomes of intervention” will prioritize or eliminate patients for treatment, and health professionals may be faced with obligations to withhold or withdraw treatments to some patients in favour of others. This piece is a response and extension to articles published on the manner of involvement for ethics and ethicists in pandemic triage decisions, particularly examining the ability and necessity of establishing triage committees to ameliorate scarce allocation decisions for physicians. (shrink)

Tragic choices arise during the COVID-19 pandemic when the limited resources made available in acute medical settings cannot be accessed by all patients who need them. In these circumstances, healthcare rationing is unavoidable. It is important in any healthcare rationing process that the interests of the community are recognised, and that decision-making upholds these interests through a fair and consistent process of decision-making. Responding to recent calls to safeguard individuals’ legal rights in decision-making in intensive care, and for new authoritative (...) national guidance for decision-making, this paper seeks to clarify what consistency and fairness demand in healthcare rationing during the COVID-19 pandemic, from both a legal and ethical standpoint. The paper begins with a brief review of UK law concerning healthcare resource allocation, considering how community interests and individual rights have been marshalled in judicial deliberation about the use of limited health resources within the National Health Service. It is then argued that an important distinction needs to be drawn between procedural and outcome consistency, and that a procedurally consistent decision-making process ought to be favoured. Congruent with the position that UK courts have adopted for resource allocation decision-making in the NHS more generally, specific requirements for a procedural framework and substantive triage criteria to be applied within that framework during the COVID-19 pandemic are considered in detail. (shrink)

Healthcare professionals are expected to deliver care that is consistent with clinical guidelines. In this article, we show that the English courts are increasingly willing to be persuaded by written guidelines when determining the standard of care in cases of alleged clinical negligence. This reflects a wider shift in the approach taken by courts in a number of common law jurisdictions around the world. However, we argue that written guidelines are still only one element that courts should consider when determining (...) the standard of care. It is possible to deliver perfect care that deviates from professional guidelines and even to deliver negligent care by uncritically following a guideline that is flawed. We further argue that written guidelines are relevant beyond defining the accepted standard of care. This is because the decision to deviate from a guideline suggests the existence of multiple approaches that should be discussed with patients as part of ensuring informed consent. It is therefore likely that written guidelines will become an even more prominent feature of the medicolegal landscape in future years. (shrink)

BackgroundThe Authors have laid out an analysis of Italian COVID-19 confirmed data and fatality rates, pointing out how a dearth of health care resources in northern regions has resulted in hard, ethically challenging decisions in terms of granting patient access to intensive care units (ICU).Main textHaving to make such decisions certainly entails substantial difficulties, and that has led many health care professional to seek ethical guidance. The Italian Society of Anesthesia, Analgesia, Resuscitation and Intensive Care (SIAARTI) has attempted to meet (...) that growing need by a set of recommendations, applying “clinical soundness” as a beacon standard; that approach tends to prioritize patients with higher life expectancy, which could be characterized as a “moderately utilitarian” approach. Yet, such a selection has engendered daunting ethical quandaries. The authors believe it can only be warranted and acceptable if rooted in a transparent decision-making process and verifiable, reviewed criteria. Moreover, the authors have stressed how clinical experimentation in a pandemic setting is a subtext of great interest from an ethical perspective. In Italy, no drug therapy and trials were undertaken for COVID-19 patients for a rather long period of time. When the epidemic was already circulating, an intervention proved necessary on the system of administrative procedures, aimed at expediting the authorization and validation of protocols, then bogged down by bureaucracy. A new system has since been instituted by a government decree that was signed about one month after the first Covid-19 case was officially recorded in the country. Such a swift implementation, which took just a few weeks, is noteworthy and proves that clinical trials can be initiated in a timely fashion, even with a pandemic unfolding. The concerted, action of supportive care and RCTs is the only way to attain effective forms of treatments for COVID-19 and any other future outbreak.ConclusionsThe authors have arrived at the conclusion that the most effective and ethically sound response on the part of any national health care system would be to adequately reconfigure its organizational mechanisms, by making clinical trials and all related administrative procedures consistent with the current state of emergency. (shrink)

BackgroundDuring the arrival of the COVID-19 pandemic, various professional ethical guidance was issued to (and for) health and social care professionals in England and Wales. Guidance can help to inform and support such professionals and their patients, clients and service users, but a plethora of guidance risked information overload, confusion, and inconsistency. MethodsDuring the early months of the pandemic, we undertook a rapid review, asking: what are the principles adopted by professional ethical guidance in England and Wales for dealing with (...) COVID-19? We undertook thematic content analysis of the 29 documents that met our inclusion criteria.ResultsThe 29 documents captured 13 overlapping principles: respect, fairness, minimising harm, reciprocity, proportionality, flexibility, working together, inclusiveness, communication, transparency, reasonableness, responsibility, and accountability.ConclusionsWe intend this attempt to collate and outline the prominent principles to be helpful, particularly, for healthcare practice during the COVID-19 pandemic and, hopefully, for future pandemic planning. We also offer some reflections on the guidance and the principles therein. After describing the principles, we reflect on some of the similarities and differences in the guidance, and the challenges associated not only with the specific guidance reviewed, but also with the nature and import of “professional ethical guidance”. (shrink)

BackgroundThe Covid-19 pandemic caused situations where, in some hospitals, there were more patients in need of urgent treatment in intensive care units (ICU) than were available. In particular, there were not sufficient ventilators or critical care resources for all patients in danger of dying from respiratory failure or other organ failures.DiscussionAs the “first come, first served” criterion was not considered adequate, more nuanced and fairer clinical criteria were proposed to assess whom to treat first. One type of patients that has (...) not been considered in the literature so far is that of “important patients”, individuals that many people might consider worthy of priority treatment for the contribution they made or might make to society as a whole.SummaryIn this article, we discuss the moral insights behind the possible treatment of “important patients” and suggest a supererogatory solution of voluntary renunciation/withdrawal. Details of the proposal are explained, and potential objections are addressed. (shrink)

The COVID-19 pandemic has placed an enormous burden on health systems, and guidelines have been developed to help healthcare practitioners when resource shortage imposes the choice on who to treat. However, little is known on the public perception of these guidelines and the underlying moral principles. Here, we assess on a sample of 1033 American citizens’ moral views and agreement with proposed guidelines. We find substantial heterogeneity in citizens’ moral principles, often not in line with the guidelines recommendations. As the (...) guidelines are likely to directly affect a considerable number of citizens, our results call for policy interventions to inform people on the ethical rationale behind physicians or triage committees decisions to avoid resentment and feelings of unfairness. (shrink)