Covid-19 is causing countless ethical and legal challenges in medicine. A particularly vexed subject is the vacuum created by concerns about fair rationing decisions for escalation to intensive care. This vacuum is being filled with an increasing volume of guidance including an NHS Decision Support Tool.^1-5 But as indicated by features of many of these materials, such as legal caveats or references to further guidance, they are not ultimately authoritative, ethically or legally. Furthermore, they raise concerns about clarity and consistency, and leave questions—including weighty legal questions about professional liability—unanswered.⁶ To fill this vacuum, we agree with others^6,7 that overarching government guidance on rationing in this context is urgently needed. This is because professional ethical guidance and clinical judgement need to be secured within a transparent, coherent, authoritative system as a whole.

Individual patients and professionals interact within a complex organisation—the NHS⁸—that itself is part of the broader socio-political and legal structures that define and shape our society.⁹ To ensure good medical practice and a fair system of healthcare, medical law and professional ethical guidance complement, guide, and constrain what may fall within practitioners’ decision-making discretion.^{10,11,12,13,14} The nuance of context requires that clinicians retain judgement, and the complexities of medical practice require specialist advice and oversight from advisory organisations and regulators, including NICE, the GMC, the BMA, and Royal Colleges. But for the sake of public trust and understanding, and for the sake of clinicians, political and legal guidance is also needed. In the case of covid-19, authoritative governmental guidance explaining deliberative criteria for rationing decisions in ICU is essential. Below we list three reasons why.

Firstly, rationing decisions are ethically challenging precisely because they may be resolved through numerous contradictory approaches to prioritisation.¹⁵ Multiple values can reasonably be claimed to be justice-based considerations (that is, to be supported by reasons that an impartial observer would agree are good reasons) but each gives rise to radically distinct answers.¹⁶ A just system builds on recognition of this.

Secondly, clinical interactions are not isolated; they form part of a systemic whole. But individual clinicians and teams cannot be expected alone to know how their decisions will contribute to systemic effects. The aggregate impacts of individual decisions need to be accounted for and anticipated if a system is to be fair. Concerns have abounded, for example, about unfairness towards people with disabilities; indeed NICE guidance was amended following threat of a legal challenge.¹⁷

Thirdly, clinicians are worried about the legal implications of their decisions: a further unwelcome risk for those at the front line. While decision-making responsibility lies with clinicians and healthcare teams, clarity—and with it reassurance—must come from central, authoritative guidance. It is unsurprising that rationing policies and advice lack clarity and consistency if the necessary underpinning support is not found at a system level.

Overall, the key to problems here is not reducible either to coming up with the best single guidance document, or in identifying a single authoritative source and leaving everything to that person or organisation. The key is in assuring the system in its entirety works, and is seen to work, as a coherent, authoritative whole. Of course no system will be perfect. But we need clarity across it to achieve the best possible consistency through it. The ethico-legal concerns about covid-19 face the entire nation, are bound up in the creation of extraordinary legal powers, and function under the shadow of wide-reaching pre-existing legal complexities. These matters cannot, therefore, reside just with professionals or their representative organisations.

Medico-legal experts George Thomas and colleagues conclude their analysis of guidance materials, and the surrounding legal uncertainties, by saying: “as an open, democratic society, we owe it to ourselves, to patients, their families and their doctors, to confront these horrific questions and to reach specific answers we can all accept.”⁶ Answers we can all accept will likely not be answers with which we all agree. This is why political leadership is crucial. In ensuring it meets its aims fairly, guidance at all levels should—and will—receive ongoing scrutiny; through parliament, through law, and through professional and public debate. This is all the more important where guidance is being developed without the opportunity for prior public consultation.¹⁸

As well as being practically clear and direct, materials such as decision-making allocation tools must be based on transparent, fair, legally-supported principles. Guidance in which the public and physicians can be confident cannot, therefore, just be about individual documents, however well drafted. They rely on the coherence and clarity of the system as a whole. If the vacuum is to be filled, government’s part in this is essential.

John Coggon is Professor of Law at the University of Bristol, a member of the Centre for Health, Law, and Society (@CHLSBristol), a member of the Bristol Population Health Science Institute, and Honorary Member of the UK Faculty of Public Health. He has particular expertise in public health ethics and law, and mental capacity law.

 

Sadie Regmi is a Public Health Registrar at Imperial College London NHS Trust and currently a Kennedy Scholar at Harvard University. @SadieRegmi

 

 

Competing interests: JC is a member of The BMJ’s Ethics Committee, the Ethics Committee of the UK Faculty of Public Health, and the Nuffield Council on Bioethics. Within the past 36 months he is or has been a co-investigator on research projects funded by the Arts and Humanities Research Council, the Canadian Institutes for Health Research, and the UK Prevention Research Partnership, and awarded a grant by the Wellcome Trust to provide scholarships on the University of Bristol’s LLM in Health, Law, and Society.

This work was supported by the Elizabeth Blackwell Institute for Health Research, University of Bristol.

All views expressed are personal and should not be taken as being held by any of the above organisations.

 

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