By Dominic Wilkinson and Jonathan Pugh.
Last April, in the first wave of the COVID-19 pandemic, a number of academics, lawyers, doctors and ethicists wrote publicly about the need for national ethical guidance relating to resource allocation (e.g., see here, here, here). At the time there was concern that there would be insufficient intensive care beds to meet the needs of critically ill patients, and many thought that there needed to be clear guidance to doctors to tell them what to do if that occurred.
While a number of professional groups produced guidelines (for example, the British Medical Association, Royal College of Physicians, Intensive Care Society), no national guidance was ever produced. (A draft guideline was developed but rejected in early April 2020).
Almost 12 months and two pandemic waves later, in a legal ruling last week, Justice Swift refused the application of a number of COVID-affected families who had sought a judicial review on the absence of national guidelines. The ruling is not yet publicly available, but it appears that there were three legal arguments: that there was a statutory obligation to have contingency plans in case demand exceeded capacity, that rationing in the absence of national guidance would violate Article 8 of the Human Rights Act, and that it was “irrational” not to have a national guideline. Swift J apparently rejected all three of these claims.
We will focus here on the third of these – the most ethical of the arguments.
“iii) Rationality – it is irrational not to have a national guideline.”
The reference to ‘irrationality’ comes from the legal grounds for a judicial review. It is possible to challenge the decision of a public body (like a government department) if it is “so unreasonable that no reasonable decision maker could have come to the same decision”.
One reason not to have a rationing plan is that it is too late. With winter waning, cases falling and vaccinations rising, there is good reason to think that the worst is behind us. But if that turns out to be true, it provides no excuse for not having had a plan in earlier phases, when there were legitimate concerns about the tsunami of cases that was looming
Another reason not to have had a rationing plan is because it was unnecessary. Part of the rationale given for shelving a draft national triage guideline is because it was anticipated that (with cancellation of surgery and expansion into other critical care areas) there would be sufficient ICU capacity to meet demand. Although some have repeatedly denied that this was a problem, there have been reports by a number of doctors in the UK that over the past winter that they had to be “selective on who we admit [to intensive care]”, and that in the first wave deliberate efforts were made to avoid transferring to hospital elderly or frail patients. Moreover, even if it were predicted that the UK would likely be able to avoid the worst case scenario, that does not mean that preparation was not needed. Disaster planning and preparedness is vital even if disasters don’t end up arriving. Failure to prepare for a predictable potential catastrophe is a serious moral mistake.
But these were not the reasons given by the judge for rejecting the irrationality argument. He intimated that given that there are arguments on both sides, the decision could not be considered unreasonable.
There are a number of very important reasons in favour of a guideline.
First, it would ensure consistency of decision-making (so that the approach taken does not vary by hospital or professional). Consistency is a key ethical virtue – it is perhaps particularly important in relation to something like resource allocation.
Second, it would ensure that decision-making is transparent – and the community understands how and why decisions would occur. In a publicly funded healthcare system, it would be particularly important to ensure that the community is able to understand the basis for allocation.
Third, it would help ensure that decisions were based on a set of agreed ethical principles (and were not based on morally irrelevant considerations).
Fourth, it would potentially reduce moral distress and burden on those professionals forced to allocate treatment.
Fifth, such a guideline would potentially provide some legal protection to professionals who follow it. There have been repeated concerns about the implications for doctors forced to make difficult decisions in the pandemic, and the risks that they could subsequently be prosecuted.
What of the opposing reasons?
One reason not to have a guideline is because of the potential controversy arising from acknowledgment of the need for rationing, or from the guideline itself. The judge cited potential distress for those who might be excluded from intensive care on the basis of such guidance (for example, those with severe underlying medical conditions). But this seems like a patronising (and hard to defend) reason not to have a guideline. If it is ethically justified to make rationing decisions on a particular basis (for example, to prioritise those who have the highest chance of survival, and who will survive for a long time), the health system ought to be prepared to be open about this and to defend it. On the other hand, if the community would overwhelming reject such an approach to rationing, it seems indefensible to expect professionals to enact such decisions without public backing. Some other approach ought to be taken. (There is very little data on what the public would support, but our own large survey indicated that faced with triage scenarios, the UK public supported doctors making broadly utilitarian triage decisions).
Another reason not to have a guideline is because it is difficult to put in writing a detailed description of how to approach decisions. Rationing would have to take into account the availability of resources at a particular time and in a particular place, as well as the circumstances of an individual patient. However, again, this seems like a poor excuse. There has been no shortage of potential models developed. Ethicists have proposed numerous approaches. A number of professional organisations within the UK developed guidance for allocation. Overseas, health systems developed detailed guidelines based on prior public engagement. A University of Pittsburgh model guideline was published in April 2020, and has been widely adopted in the US. It seems ironic that the UK, with its long history of open rationing within a publicly funded healthcare system, should struggle where the US succeeded.
Finally, a guideline might lead to mistakes – inappropriately excluding some patients from treatment. However, the risk of inappropriately excluding patients is also a risk of triage occurring in the absence of guidance. The question is whether decisions made in the presence of a guideline are more likely to err than those occurring absent such guidance. In virtually every other area of medical decision-making, the NHS prefers to set clear policies, even if those might sometimes risk being unfair in individual cases. That is because of the merits of having a consistent approach.
There are pros and cons of rationing guidance, but it seems that the arguments against it are weak, and easily outweighed by the very significant reasons in their favour. That might not be enough to characterise the failure to produce guidance as ‘irrational’ (the bar set by the law seems extremely low).
But if, in the coming months, it does become apparent that at the peak of this pandemic doctors in the UK were having to make rationing decisions without a clear framework or support for doing so, there are some who should be held to account. That should not be the doctors – rather the policy makers and politicians who chose, in the face of a predictable threat, to ignore it. They are ethically, (even if not legally) responsible.
Acknowledgements: Dominic Wilkinson and Jonathan Pugh are part of the UKRI funded UK Pandemic Ethics Accelerator, providing ethical analysis and reviews relating to ethical aspects of the response to the pandemic.
Authors: Dominic Wilkinson and Jonathan Pugh.
Affiliations: Oxford Uehiro Centre for Practical Ethics, University of Oxford
Competing interests: None declared
Social media accounts of post authors: @NeonatalEthics