Triage decision and value judgments
Value judgments about justice or fairness are neither easy nor conclusive. However, this does not prevent value judgments from being made on a daily basis. When a judge attempts to determine the culpability of an accused, the procedural and evidentiary rules assist her in making those value judgments about the guilt, culpability or moral wrong. Without clear procedures, the process of making those decisions would depend upon discretion and understanding of the judge, and justice would then depend upon the personality of the judge, rather upon the norms of justice. Therefore, the trust in the content of those value judgments is premised upon the content of the procedures to make those value judgments.
During the COVID-19 pandemic, the healthcare professionals are put in a spot where similar value judgments, of justice, and fairness, need to be made. Facing paucity of necessary resources, sometimes far less than what is needed, healthcare professionals are required to make a ‘triage’ decision. A triage decision is when according to ‘a system of priorities’ a decision is made about the priority of a patient for medical treatment. Beyond the emotional strain, making triage decision is neither easy nor determinate. Denial of treatment, immediate or long term, to any patient in need is against the moral fabric which describes healthcare professional. And yet, the pandemic has conjured ineluctable circumstances where healthcare professionals need to involuntarily breach their Hippocratic oath, to the extent they have to consciously delay, or in some circumstances even practically deny medical treatment.
Absence of universal template for triage decision
Across the globe, healthcare professionals, policymakers, and even mathematicians, have attempted to manufacture a template for triage decision making which at least in theory aspires to be just and fair by relying upon the fulcrum of maximum good to maximum people. However, though the content of the objective receives near-ubiquitous approval, the content of the factors involved in making a just and fair triage decision has always remained controversial.
However, no formal, universal, or common ‘triage template’ exists, and most healthcare institutions make institution-level triage decisions. Therefore, one hospital could be making these choices differently from another implying a lack of consensus upon ‘a system of priorities’. Further, governments across the globe have shied away from formalizing triage decisions through guidelines, or rules. An attempt by governments to formalize triage decisions could reasonably subject them to political turmoil, and hence the shying.
‘Denial of treatment’ versus ‘triage decision’
It must be noted that a triage decision based on ‘a system of priority’ is distinct from ‘denial of treatment’. Where denial of treatment is final and absolute, triage decision is about setting an order of priority, where medical treatment could ultimately be received. In such cases where the list of priority is broad, making it impractical to wait for the turn, even in such cases it is not, theoretically, denial of treatment because it still recognizes the right to health. This distinction makes a denial of treatment unlawful, but triage priorities lawful as long as triage decision is made on lawful grounds. Therefore, the inquiry whether the culpability of the patient should be a factor while making triage decisions is consequential.
A reasonable conclusion is that unless health professionals can reasonably record circumstances validating triage decisions at the level of infrastructure at their individual disposal, merely referring to the culpability of the patient, or reference to a future possibility of circumstance requiring triage decisions, to deny medical intervention to a patient with culpability should not be permitted.
‘Culpable’ or ‘potentially culpable’ patients and triage decisions
Distinct from the oft-quoted assortment of factors, one factor which remains unengaged is ‘the effect of culpability of the patient upon the triage decision’. How does one factor ‘criminal charges of promoting the spread of a pathogen, to oneself or to others’ while making triage decisions? Should the state allocate scarce resources, on priority, to a citizen without culpability charges as against a citizen with culpability charges? Furthermore, should culpability unrelated to the pandemic or pathogen also factor in triage decisions?
The right to health is a basic human right. Therefore, it does not distinguish upon any qualification and is available to everyone. Consequently, even a culprit has an undeniable right to health. Therefore, culpability cannot be invoked to ‘deny treatment’. However, where pragmatic governance demands that without refuting the right to treatment, lawful triage decisions be made, should health professionals be allowed to account for the culpability of the patient while making triage adjustments? Fundamentally, this is as much a question of public health policy, as of criminology in times of pandemic when public health infrastructure is stretched to its limits.
This further raises concerns over questions about patients with ‘potential culpability’. When criminal action is being taken against those resisting state efforts to contain the COVID-19 pandemic, or upon those accused of deplorable attacks on the medical staff or security personnel on duty, the issue of whether their ‘potential culpability’, in absence of a judicial determination of guilt, could be factored in triage decision is another issue which needs resolution. Merely an accusation of crime does not determine criminality; a judicial determination of guilt is mandatory. Especially when political factors may influence using agencies of criminal law in dealing with deviations from the prescribed conduct.
It is well recognized that abuse of the process of law does not prove that the law is bad. It only means that a valid law is being misused. Similarly, if criminal sanctions are discriminately employed, it is the discriminatory employment which is wrong and not the criminal law itself. Similarly, if the state proactively overreacts using agencies of criminal law, to prevent a future accusation of under-reaction, the public message of dubitability of criminal actions could further complicate factoring of ‘potential culpability’, even if such factoring of culpability is not wrong in itself, or is even promoted.
Inevitable individual value judgments in absence of state guidance
Responding to these questions dependent on principles require inevitable value judgments to be made, besides policy choices. While keeping, for example, a rape convict, a death row convict, or a malicious transmitter of pathogen alive at the cost of a law-abiding citizen, when resources are insufficient to help both, is an issue which raises questions of justice, fairness and equitable treatment for which, as previously mentioned, there can be no easy answers. Sometimes, the dividing line between an option forsaken and option undertaken is the choice of pursuance itself. A criminal does not cease to be a human. Crime does not end the law itself. So, the rule of law which binds the social conscience in a liberal democracy must not be sent to gallows for the fact of the crime itself. Therefore, it is important that the issue of culpability as a factor in triage decision be engaged with or contested, least should the issue be left to determination by individualistic human prejudices.
Author: Nikunj Agarwal
Affiliation: Ministry of Commerce and Industry, Government of India
Competing interests: None.