At some point in this terrible pandemic doctors will have to make some unbelievably difficult life and death decisions. This much is certain. For how long they will have to do so and to what a degree is less clear. It is the point at which the demand for the intensive life saving resources outstrips their supply. At that point doctors will have to decide who receives care and who does not. No one should have to make such decisions, and yet they will have to be made.
What is unclear and a matter of dispute is how they should make these decisions. It is surely not enough simply to announce that doctors always make these kinds of choices and it is up to them how they choose. It is also not enough to list a number of moral principles that might guide them in their provision of care. These are principles such as: do the best you can to minimise suffering and loss of life; or be equitable in your treatment of patients. These are important principles and they can certainly form a general ethical framework for medical care. Yet often as set out such principles are merely listed as relevant moral considerations without any statement of how they should be ranked. Principles can conflict and leave it unclear what one should do in any particular situation.
Most importantly such principles do not, as generally stated, provide a clear and definitive answer to the question of who, here and now, should be offered treatment when it is not possible to treat everyone who needs treatment. What does it mean in such a circumstance to be equitable? Or how exactly should one seek to do the least harm and most good?
It helps to distinguish between procedural and substantive matters. There are the questions of who provides the requisite guidelines, of whom they apply to, and of how in concrete terms should they be applied. The following seems to be desirable. The guidelines should be authoritative. It is best then that they should come from a recognised and relevant professional organization such as the BMA or the Royal Colleges. The guidelines should be clear so that there is no or little room for ambiguity and uncertainty in their application. They should be robust so they can be continuously used without any need for significant modification or change. They should be transparent so that what is being done can be seen and understood by all. They should be agreed, or at least there should be no serious contention over them, least of all by those who must use them. They must be consistent across the health service. It surely cannot be good if different hospitals make use of different guidelines.
Finally, there is a question of time. There is an opportunity now to discuss any such guidelines and to maximise the opportunities for full consultation on them. But time will press in another context, that is when they are applied. Doctors need to make clear and final decisions under pressure; they will not necessarily have time to engage in extended deliberation of whether and how the guidelines apply in any particular case. This fact serves to underline the importance of clarity and robustness in their formulation.
So, what should those guidelines be? There are a number of documents that might serve as models or sources: official documents published in the UK in response to previous pandemics such as the Department of Health’s updated 2007 framework ; guidelines devised within other countries such as those in Switzerland; and academic publicationson appropriate ethical guidelines.
What is striking about these documents is the considerable agreement on what might be the appropriate criteria for making the decisions; and considerable disagreement as to which criteria should be adopted or in what order of importance.
There is insufficient space to offer a full evaluation of these criteria. What can be done is indicate why there might be such disagreement over them. Here is a brief run through of what is suggested and of why in each case there is space for serious disagreement as to their suitability. Note, first, that all of the criteria offered presume that an initial threshold has been reached. This is that the patient is not beyond the possibility of life saving treatment. Note, second, that at least some criteria are easily set aside: first come, first served; and the tossing of a coin. Note, finally, that what is being offered is a means of deciding between patients who both urgently need but cannot both receive treatment.
So, doctors might give priority to the worst-off patient. But should they do so without giving attention to the kind of life this patient when recovered might enjoy? Doctors might choose the patient with the greatest chance of survival. But, again, should they not consider the likely length and quality of life a surviving patient will have? Doctors might operate then with a simple calculus of which treatment secures the greatest number of extra years of life. However, they surely need to consider not just the number of years of additional life but also the quality of life that can be led. But it is clearly hard to make clear determinations of how to balance lives of both different lengths and different degrees of quality. At which point – and in an emergency with the pressure of time – doctors are being asked to make extraordinarily complex decisions.
Why not, as some at least have argued, simply use age as a convenient marker of what these criteria might mean and give priority to the young over the old? Need it necessarily be discriminatory to use age in this way? Of course, age as such should not be a relevant criterion; and if age is being used instead as a marker of other factors it needs to be recognized how crude and unreliable it might be. Moreover, we should not underestimate the derogatory expressive force of using age in this manner. Do we really want to say that old people matter less to us or have a lower value than others?
There is another criterion sometimes invoked, and often quickly dismissed, that of social usefulness. Should we give priority to the members of certain social categories? But which might these be and how could we agree as society which of our members count for most? Nevertheless, it is worth noting how this criterion relates to the vital imperative of protecting those who provide care in the emergency: health workers. We can certainly protect them by providing them with the necessary resources such as adequate protective wear. It is, however, an entirely different matter to give them priority in care. And to do so would be deeply controversial.
There is a final important issue of protection. That is one of safeguarding the psychological health and well-being, both now and in the future, of those who make these unbelievably difficult decisions. Doctors and nurses experience moral distress in being compelled by circumstances to do what they believe has serious moral costs. We should recognise these potential harms and ensure that those who suffer them are properly supported. And after the crisis has passed no doctor should fear that they will be held liable or sanctioned for what they had to do.
All of this emphasises, once more, the importance of getting the right guidelines agreed and in place. This has a certain urgency and the difficulties of getting them right have been outlined. Yet using these guidelines will be in a context of even greater urgency. The debate should begin now.