Daniel Sokol and Benjamin Gray
Despite the dramatic increase in intensive care capacity in the United Kingdom in recent weeks, most experts recognise the possibility of intensive care units (ICUs) being overwhelmed. If this happens, clinicians will have to make life-and-death decisions about who gets an ICU bed.
There is broad consensus that priority should be given to patients with the greatest medical need and the greatest capacity to benefit from treatment.
However, if several patients fit the description, should greater priority be given to healthcare workers? Several ethicists, including one of us (DS) in The BMJ, have argued that this is ethically desirable. Once recovered, clinicians may return to the front line to save life and limb. Priority treatment may maintain morale and reduce absenteeism. It is also a way for society to recognise those who assume a greater level of risk to care for the community.
As respect for the law is itself an ethical obligation, an important question is whether such exceptional treatment would be lawful.
For example, there is a risk that a policy prioritising healthcare workers could indirectly discriminate against people with disabilities or the elderly, contrary to section 19 of the Equality Act 2010. Any such policy therefore has to be objectively justified as a “proportionate means of achieving a legitimate aim.” Moreover, NHS trusts and other healthcare providers are bound by the Public Sector Equality Duty to have due regard to the need to eliminate discrimination when exercising their public functions.
Discrimination aside, legal challenges could be made on other bases, such as in negligence against the hospital authority, the Human Rights Act 1998 (Article 14), or judicial review.
This is not the place for detailed legal analysis but our view is that a hospital policy giving preferential treatment to healthcare workers if several patients are equally suitable for ICU treatment could be lawful if the rationale for such treatment was to:
- enable the return to clinical practice of the healthcare worker. ICU beds and equipment are of little use without sufficient staff to operate them, and
- maintain necessary morale to ensure the adequate delivery of healthcare in a pandemic situation.
These reasons may constitute legitimate aims for justifying the preferential treatment of healthcare workers so long as there is a reasonable risk of a shortage of such workers in the foreseeable future and preferential treatment is an appropriate and reasonably necessary means of reducing that shortage. The overall aim of the policy should be to maximise the life-saving capacity of the NHS.
The decision-making process itself should be structured, with clear, transparent and objective criteria. These criteria may include something along these lines:
- There is a current or foreseeable shortage of critical workers such that this would impair significantly the Trust’s ability to provide lifesaving treatment;
- The patient falls within that category of critical workers; and
- There is reasonable evidence that the patient could recover within a reasonable time and rejoin the workforce in a critical role in the foreseeable future.
As decisions may need to be made at all hours of the day and night, in times of crisis, the criteria must be easy and quick to apply consistently and fairly.
The “net” of healthcare workers captured by the policy should also be cast tightly. It is safest to limit this to workers critical to the pandemic effort, such as ICU and Accident & Emergency nurses and doctors. A list of those categories should be drawn up in advance to ensure transparency and avoid accusations of bias and discrimination on the part of the decision-makers. The list need not be exhaustive, but it must be clear.
From a legal perspective, it is easier to justify preferential treatment if the prioritisation of the person or group is likely to save more lives. We believe a limited scope for the preferential treatment, capturing workers who are obviously life-saving, will also be more likely to command public support.
The prioritisation of critical workers who may be in short supply in the foreseeable future and who stand a reasonable chance of rejoining the healthcare effort to save more lives is a policy that, in our view, is reasonable, supportable by a body of reasonable medical and indeed public opinion, proportionate, and in pursuance of a legitimate aim, namely maximising the lifesaving capacity of the NHS.
When presented with the idea, some clinicians have told us that prioritisation of healthcare workers will take place “under the radar” even if the guidance is silent on the issue. This is ethically and legally problematic. If the decision-making process and the selection criteria are not followed, this would open the NHS Trust to judicial review and the decision-maker to severe disciplinary sanction. Decisions may be made on the basis of assumptions and unconscious biases, with the potential for an unjustifiable discriminatory impact. It could also dent public confidence in the medical profession. If preferential treatment will happen anyway, then it is better for it to be done in a structured, transparent and lawful manner.
When developing an ICU triage policy, decision-makers should consider both the risks of allowing preferential treatment and the risks of not allowing this, such as a depleted workforce, loss of morale, and the possibility of clinicians flouting protocol to favour friends and colleagues.
Finally, in a fast-moving situation, the policy should be kept under review. As new information becomes available, what may be justified one week may not be the next.
Daniel Sokol is a medical ethicist and barrister specialising in clinical negligence. He is the author of ‘Tough Choices: Stories from the Front Line of Medical Ethics’ (Book Guild, 2018)
Benjamin Gray is a barrister specialising in discrimination law.
The article does not constitute legal advice. Specialist legal advice should be obtained in relation to specific circumstances.
Competing interests: None declared.