WHO will be allocated a ventilator, and who will miss out? Who decides, and on what basis?
Australian intensivists and emergency physicians have not had to answer grave questions like these during the coronavirus disease 2019 (COVID-19) pandemic, although we have all seen how they have occupied their peers in countries worse affected by the virus. We’ve thus far been spared the overwhelming surge in demand for life-saving health care resources precipitated by the pandemic, although the current situation in Victoria is a reminder that the risk remains. We hope that our community’s prevention and capacity building measures mean we never have to face it. Nevertheless, health services and their ethics advisors wouldn’t be doing their jobs if they hadn’t prepared for this eventuality here.
Whenever we answer questions of scarce resource allocation, we embed values and conceptions about what is good and just. This is because these are ethical decisions, which require serious ethical reflection. Do we prioritise people based on need? Prognosis? Age? Social worth or utility? Quality-adjusted life-years? Dealt with adequately, such questions cannot be resolved with the means we so often revert to in our decision making, such as practicalities, efficiencies, or balance sheets.
In the main, ethical reflection on allocation questions has focused on the moment of triage and what criteria should be employed in determining who gets access to a scarce treatment (a question of distributive justice), and how and by whom that decision should be made (a question of procedural justice). There is some consensus around the latter: it is widely agreed that allocation decisions should be made by a small team of two or three with relevant expertise and experience, in consultation with patients and families. They should be based on publicly available guidelines that are consistent with principles of justice and should be clearly recorded for the purposes of review.
More contentious have been the differences that have arisen in the area of distributive justice. Should a person’s age be a deciding factor in allocating resources? If they are a health care worker, should they be prioritised for treatment? Do our normal principles for treating patients continue to apply under the extraordinary pressure of the pandemic?
Disagreements in answering such questions can be understood through an observation that rests at the heart of Alasdair MacIntyre’s seminal work, After virtue. In contexts where different worldviews and ethical frameworks exist side-by-side, there are corresponding differences in arguments about what justice requires. If I deploy a utilitarian conception of justice, I may well answer these questions differently, and be led to allocate a ventilator to someone different than my colleague who deploys a neo-liberal one. Well known thought experiments, such as Philippa Foot’s trolley problem, illustrate these differences when they meet complex ethical decision points. The question of resource allocation during a pandemic accentuates them.
In a number contexts, ethical considerations have expanded beyond bioethics and into the domain of social ethics. For example, some have addressed questions of systemic health care injustice for specific populations which exacerbate vulnerabilities and might count against them in allocation criteria. Harald Schmidt’s article in The New York Times made this case strongly in terms of the country’s Black and Latino populations. In Australia, such analysis is significant for a number of populations, including for Aboriginal and Torres Strait Islander people, who face health care injustice both in general and in relation to COVID-19. Advocates for the disability community in the United Kingdom have raised similar concerns, which again have echoes here.
We have been working through these, and many similar questions, in our own context at St Vincent’s Health Australia. We share our reflections here in the hope that they will generate dialogue and debate and will ultimately support other organisations. Even if we never face a surge in demand that exceeds our available resources, we have found this process helpful for our ongoing commitment to bolster competency and rigour in ethics across our organisation.
To illustrate how these commitments have been expressed at St Vincent’s, it is worthwhile remembering that over the past 160 years, St Vincent’s has been called on to provide professional and compassionate care during several pandemics, including the Spanish flu, typhoid and human immunodeficiency virus (HIV) infection and acquired immunodeficiency syndrome (AIDS).
The latter is a case in point that has frequently been referenced during the pandemic. St Vincent’s in Sydney was one of the only hospitals to open its doors to patients with HIV/AIDS in the early days of the virus. It did not do this as an exception to its ethical framework, but rather as an expression of this framework in an extraordinary circumstance. This arose out of a commitment to the dignity of all people and an approach to care which saw treatment directed on the basis of urgency of need. Just as this recognition of the dignity of all people impels a particular kind of care when times are good, it does so even more when times are challenging, and indeed leads to a special focus on those most vulnerable, whose urgency of need is accentuated in such times.
This observation has been foundational for our work on resource allocation decisions during the pandemic. Whereas a dominant feature of public discourse seems to be that in this “new normal” all bets are off, and that what we previously believed about the world no longer applies, we hold the view that it is in extraordinary times that it is most important to make decisions in a way that is consistent with our ethical framework.
As with HIV/AIDS, it is consistency, not exception, which guides us.
Were we to face a surge in demand that exceeds available resources, this leads to an approach that allocates resources based on urgency of patient need, prognosis and the prospect of success for therapy. Treatment decisions are thereby based on relevant clinical criteria, such as an assessment of the patient’s current health status, pre-existing conditions, known prognostic factors, and potential responsiveness to treatment. Resources are therefore allocated if they are worthwhile, never because a patient is deemed “worth treating”.
These considerations are held alongside an understanding of, and respect for, patients’ care preferences, including any informed refusal of available treatment. And if escalation of treatment is not available for a patient, they (and their loved ones) continue to receive whatever care is appropriate and possible for their condition. We also recognise that care extends beyond medical treatment and includes our commitment that no patient will die alone.
We are also watchful that people whose vulnerabilities are accentuated because of injustice remain a focus of our practice, noting that their prognosis and prospects for success for therapy are often worse than others. This includes creating dedicated care pathways for people who are homeless or who are experiencing issues with alcohol and drug use, as well as targeted programs to improve health outcomes for our Aboriginal and Torres Strait Islander patients. More recently, we have embarked on a project focused on identifying issues of systemic injustice for the latter group in triage settings, which will see managing such issues embedded into our urgency of need considerations. In so doing, we aim to respond to any health care disadvantage that could be further accentuated for vulnerable groups in allocation decisions.
We note that our approach stands in contrast to two positions that have received some coverage during the pandemic.
First, the position that suggests that exclusion criteria for resources should be based on personal characteristics such as age, which received widespread coverage early in the pandemic, especially in Italy. This does not accord with the approach we have taken, because it undermines the more fundamental commitment to treat a person according to their dignity. Taking this position never holds out age as an absolute criteria for allocation. To do as much would be to unjustly discriminate against large parts of the population merely because of their birthdate, and contradicts a commitment to the dignity of all.
Second, the position that suggests that a category such as social worth or usefulness should feature into resource allocation decisions. An article by Ezekiel Emmanuel and others is the most prominent proponent of this position, arguing that that health care workers should be prioritised over other members of the public because they will be more useful in ongoing health care response once recovered.
It goes without saying that health services should do everything they can to protect their staff, and that in upholding their professional commitments staff may take noble risks in the face of the virus. However, in its formulation, this preferencing on the basis of possible future contribution aligns with the broader public discussion around the benefits of treating certain groups before others, sometimes made through judgments about relative usefulness, quality of life, or metrics that consider the relative economic value of human lives. We argue that introducing such criteria into allocation criteria is deeply problematic in that it considers some lives as worth more than others, which undermines equal human dignity.
Both positions would undermine what continues to be at the heart of the St Vincent’s ethical framework. We trust that our reflections on our commitments will help other services in clarifying and upholding theirs.
Professor Erwin Loh is national Chief Medical Officer and Group General Manager Clinical Governance for St Vincent’s Health Australia, the nation’s largest not-for-profit health and aged care provider. He is Honorary Clinical Professor with the title of Professor at the Department of Medical Education, University of Melbourne, Adjunct Clinical Professor at Monash University, and is Honorary Professor at Macquarie University at the Centre for Health Systems and Safety Research.
Dr Daniel Fleming is Group Manager – Ethics and Formation for St Vincent’s Health Australia, a role that sees him leading ethics education, advice and strategy across the St Vincent’s Health Australia network. He is also a Fellow in the Law, Health and Justice Research Centre in the Faculty of Law at the University of Technology Sydney. He holds a PhD in moral theology and philosophy, and is the author of over 40 publications.
The statements or opinions expressed in this article reflect the views of the authors and do not represent the official policy of the AMA, the MJA or InSight+ unless so stated.