By L. Syd M Johnson
As the Covid-19 pandemic intensified worldwide, grim reports out of Italy’s embattled and overwhelmed hospitals foretold the need to plan for rationing ventilators in the event that the number of patients requiring them exceeded the number available. Hospitals, ethics committees, and government agencies around the US began planning for the worst by developing ventilator allocation policies to determine who would get life-sustaining ventilators, and who would not. Advocates for the disabled filed a complaint against the policy developed in Washington State, one of the first states to have a significant outbreak, claiming it used discriminatory criteria that would disadvantage or exclude disabled individuals from life-sustaining ventilators. In particular, there were concerns about the use of “Baseline functional status” (which includes physical ability, cognition, and general health) in allocation decisions, because both “physical ability” and “cognition” might easily pick out disabled persons for lower priority.
The criteria generally most favored in allocation policies are known as “clinical criteria” that look primarily at survivability. Judging which patients have the best chance of surviving involves looking at other medical conditions or the general health status of the patient. Patient priority is based on whether there are conditions that might limit the chances of survival, such as chronic heart and lung conditions, diabetes, or being immunocompromised. Clinical criteria, the thinking goes, help accomplish the primary goal of allocation policies, which is to save as many lives as possible, while making allocation decisions based on objective, unbiased medical criteria. As an example, in 2015, New York State’s Task Force on Life and the Law proposed ventilator allocation guidelines developed with the explicit goal of saving “the most lives in an influenza pandemic” by giving priority to “patients for whom ventilator therapy would most likely be lifesaving.” In Washington State’s guidelines, the presence of “Significant underlying disease process that predict poor short term survival” is one of several clinical criteria to be considered in allocation decisions.
New York’s guidelines rule out non-clinical allocation criteria, such as first-come first-served, randomized lottery, or prioritizing certain social categories (including healthcare workers). Those criteria, the guidelines claim, are either subjective, or do not support the goal of saving the most lives. Age was also rejected because of the potential for discrimination against the elderly (who, it must be noted, are more likely to be caught by the clinical criteria, such as chronic heart disease, that are often more common in the aged). Data released last week by the UK’s Intensive Care National Audit & Research Centre indicate that older patients are indeed less likely to survive, and as age increases, so does the percentage of patients who die. Data out of New York City show the same pattern.
Here’s the catch. Clinical guidelines that emphasize “objective” criteria like preexisting and chronic health conditions will reinforce existing structural injustice and discrimination that disadvantages and burdens the poor, the disabled, and people of color. Current data reveals that people of color are being infected and dying in numbers disproportionate to their representation in the population. In the UK, blacks and Asians make up nearly 12% and 14% of hospitalized Covid-19 patients, but only 3% and 5% of the population, respectively. In Louisiana, 70% of those who died of Covid-19 were African American, despite comprising only 33% of the state’s population. As we are seeing in American cities like New York, Detroit, Chicago, New Orleans, and Milwaukee, the usual social determinants of heath — poverty and race — allow Covid-19 to disproportionately burden Latinx and African American populations, and they are dying in disproportionate numbers. Could we include race as a consideration in survivability-based allocation decisions (or alternatively, give someone extra points for being white)? Surely doing so would not only be overtly racist and discriminatory, but it would also pile on, further disadvantaging people who are already disproportionately burdened by Covid-19.
Consider another possible allocation criterion: sex. The number of men hospitalized with Covid-19 is nearly three times the number of women. Men are also more likely than women to require intensive care, and less likely to survive. Data from the US and UK indicate that about two thirds of those who die are men, although they make up slightly less than half the population. Could we justifiably use being male as a criterion for giving someone lower priority in ventilator allocation decisions? By no measure are men worldwide the disadvantaged sex, but many people would still agree that it would be unjustifiably discriminatory to allocate ventilators on the basis of sex.
The hard truth about Covid-19 is that the evidence available now indicates that most patients who are sick enough to need a ventilator will not survive. Data from the UK and US show that two-thirds of patients die despite being ventilated. Most of them will spend weeks on the ventilator, dying a slow death. Thus the one factor that is best at predicting death is a strictly clinical one: needing a ventilator. If we are using the possibility that the patient will survive as a clinical criterion for deciding who gets a ventilator, we ought to give lower priority to Covid-19 patients who need a ventilator, since the evidence so far shows that most of them will not survive. Of course, denying a person a ventilator results in a self-fulfilling prophecy – they will die in part because we predicted they would die, and denied them a ventilator as a result of that prediction. If that is clearly absurd and unjust, so is basing allocation decisions on race, sex, and age. And similarly for any other clinical criteria we might choose, including chronic health conditions and disabilities. The risk of self-fulfilling prophecy exists for all of them. Those self-fulfilling prophecies also have the pernicious effect of skewing the survival data. Using heuristics for “survivability” thus infects with bias our seemingly objective clinical criteria, and allows existing health disparities to worsen, creating a vicious circle. Doing that worsens life prospects for the most disadvantaged in society, in the name of saving the most lives.
The fundamental flaw with allocation policies is the underlying rationale for using them: saving as many lives as possible given limited resources. While saving as many lives as possible is a reasonable and laudable goal in a pandemic, one in keeping with shared public values, it need not be the only or prevailing goal. There are other, competing values and goals that can and should inform ventilator allocation policies. One such goal is to promote justice by minimizing the added burdens and disadvantages for those who come into the pandemic already disadvantaged by health disparities. Both the disabled and people of color experience reduced lifespans and live with health conditions exacerbated by the chronic stress, economic burdens, and limited access to healthcare that result from structural discrimination and inequality.
A more just allocation might borrow from the idea of the Difference Principle proposed by philosopher John Rawls in A Theory of Justice. Whatever structure or policy we adopt under circumstances of inequality (or difference), justice requires that we choose the one that is as advantageous as possible to those who are the least advantaged members of our society. That certainly means not giving lower priority for life-sustaining ventilators to people who are disabled, or those with the kind of underlying health conditions worsened and made more common by structural, systemic discrimination and socioeconomic inequality.
The need for ventilator allocation policies exists because there will inevitably be inequality when there is not enough of a resource available for everyone who needs it. But the ideal of saving as many lives as possible cloaks injustice in an appealing Utilitarian form, allowing pernicious and persistent bias against those considered unfit for survival by virtue of their health or disability status. It fails to recognize that objective “clinical criteria” are themselves unjustly allocated through the inequitable allocation of social, economic, and health advantages. Prioritizing justice in a ventilator allocation policy requires not making unavoidable inequality even worse by increasing existing social and health-related inequalities. We should not widen the circumference of an already vicious circle.
Author: L. Syd M Johnson
Affiliation: Center for Bioethics and Humanities, SUNY Upstate Medical University
Competing interests: None declared