Twenty years ago, the Catholic bioethicists of Australia came together to write the first ever Code of Ethical Standards for Catholic Health and Aged Care Services in Australia. Two years of robust discussion, informed by wide consultation, followed by even more robust discussion resulted in a set of guidelines which have stood the test of time.
Perhaps the greatest use has been made of the chapter on ‘end of life’ and in particular the explanation of the grounds for withholding or withdrawing life-sustaining treatments. The Code reminds clinicians that ‘the fundamental ethical principle in this regard is that treatments may legitimately be forgone (withheld or withdrawn) if they are therapeutically futile or overly-burdensome to the patient or not reasonably available without disproportionate hardship to the patient, carers or others’.
There are, thus, three different grounds for withholding (or withdrawing) a treatment, even a life-prolonging one.
First, if it is not genuinely therapeutic (and this distinguishes appropriate end of life care from ‘voluntary assisted suicide’ and ‘euthanasia’). Second, if it imposes too much burden on the patient as an individual (and this underlines the significance of advance care planning). Third, if it imposes unwarranted hardship on others.
Until now, the third of these reasons has not often come into play in so affluent a country as our own. Now, however, we need to think about it.
Generally, the clinician is the best judge of the first ground: that is, whether a treatment would be futile (by which is meant ‘therapeutically ineffective’). Generally, the patient is the best judge of the second ground: that is, whether a treatment would be overly-burdensome. Today we Australians need our healthcare clinicians to be reliable judges of whether a treatment for one person would impose a disproportionate hardship on others.
If it turns out that we do not have enough life-saving treatments for people suffering from COVID-19, then we shall be faced with the challenge of working out how the resources which are available to Australians should be allocated. What priority criteria should be employed?
A good way to begin is to identify ways of allocating resources which would be obviously unjust (‘unfair’).
An easy one is a person’s skin colour: other things being equal, there is no defensible reason why a black-skinned person should be offered treatment ahead of a white-skinned person or a white-skinned person ahead of a brown-skinned person.
Another obviously irrelevant factor is a person’s capacity to pay for expensive treatment: other things being equal, there is no defensible reason why a relatively affluent person should be offered treatment ahead of a relatively poor person.
A third, not so obvious perhaps, is a person’s age: other things being equal, there is no defensible reason why a younger person should be offered treatment ahead of an older person.
As American bioethicist Daniel Sulmasy pointed out last week, a crisis can sometimes provoke cruelly cold rationality, that is, thinking that is merely about maximizing the total ‘quality-adjusted life years’ saved. As he said, all patients are of equal dignity and so are equally worthy of our efforts to help them. Doctors, nurses, emergency medical technicians need to devote themselves to the care of all sick and injured persons, regardless of their personal characteristics or any perceptions of them as ‘surplus’ (as Scrooge in Charles Dickens’ A Christmas Carol intimates that the poor and the hungry are!).
True, age is sometimes a marker (or ‘proxy’) for other things (such as extreme frailty) which may be relevant to therapeutic decision-making. But, in and of itself, age is irrelevant.
Having cleared the ground a little of answers that are infected by prejudices in favour and against various categories of people, let’s turn to the topic of scarce resources.
If sick people find themselves, through no fault of their own, competitors for the same resource, what policies should inform the decisions made by those with the responsibility for deciding whose treatment should take priority?
Twenty years ago, a then-younger Dominican, Anthony Fisher, now the Archbishop of Sydney, studied at the University of Oxford under the supervision of the great Australian philosopher John Finnis. His research took the form of an investigation into the implications of the thinking of Aristotle and Aquinas for the ethics of resource allocation in health care. That research, summarized in a book he subsequently edited with Luke Gormally provides us with what we need to think clearly about justice requires if we have to ‘ration’ some forms of medical treatment. (1)
Of course, we all hope that it won’t come to this in Australia: that’s the point of the current severe measures which are intended to slow down the pace of the spread of this virus. But hospitals are preparing for the worst whilst hoping for the best and the rest of us may be called upon to support clinicians in making very difficult decisions on our behalf.
To set out the factors which ought to be considered relevant, I borrow directly from Anthony Fisher’s research. The need for treatment is the central idea. So, by extension, medical needs should be addressed in order of importance and preference given to the patient in greater need.
That conception of distributive justice, that allocation of healthcare resources should be based on medical need, can be further spelt out into a range of factors, any one of which may be properly central to a decision to give priority to one person’s treatment over that of another.
If choices become unavoidable, then it would be reasonable (that is, just, defensible) to give preference, other things being equal:
- to the patient whose need is more urgent,
- to the patient who is more likely to benefit therapeutically from the available treatment,
- to the patient who is likely to gain the greater or longer therapeutic benefit from the treatment,
- to the patient who is likely to suffer the lesser burden from the treatment,
- to the patient who is likely to suffer the greater harm without the treatment,
- to the patient who is less at risk of various ill-effects from the treatment,
- to the patient who is likely to gain the same therapeutic benefit from less of the treatment,
- to the patient who is likely to need the treatment for a shorter time or less frequently,
- to the patient who has fewer or no alternative avenues of satisfying the need, or
- to the patient who is more likely to infect others if untreated.
These ‘priority criteria’ cannot be expressed in any fixed or invariable rule (or ‘algorithm’). Rather, they offer a kind of conceptual backdrop against which to assess the justice of particular institutional policies and individual clinical decisions.
As already noted, these priority criteria are extensions of the normal practice of Hippocratic medicine. Patients have the moral right to refuse any treatment. On the other hand, good doctors do not provide (or even recommend) treatments they think would be therapeutically ineffective. In addition, good doctors are always sensitive, in their recommendations, to the possibility that a treatment will impose burdens, not only on the patient or on the family but also on the wider society.
Of course, in the circumstances of a pandemic, we face many other ethical challenges.
One that is central to anyone in healthcare concerns how best to look after courageous women and men who puts themselves in harm’s way in order to help to save lives. In addition to everything else, they have a responsibility to steward our healthcare resources so that they can both provide treatment for present patients and preserve resources for future patients. They need ready access to protective equipment, vaccines, prophylactic medicines, etc. And if any of them were to become ill they should be offered whatever treatment is needed to enable them to return to the workforce to help others. (Of course, if they become seriously ill, they should be offered the same treatment and care as are other seriously ill patients.)
There are other ethical challenges indirectly connected with healthcare.
So, for instance, we need to be attentive to the possibility (or even probability) that powerful corporations may take advantage – in ways which will create ill-health and misery in the future — of the fact that the community’s attention is currently turned elsewhere.
For twenty years, the Code of Ethical Standards has stood us in good stead. Once or twice in that time, the suggestion has been made that it needs updating. Maybe so. Perhaps the ethical challenges of a pandemic will require us to spell some things out a little more explicitly. Time will tell.
(1) Anthony Fisher & Luke Gormally eds. Healthcare Allocation: an ethical framework for public policy, The Linacre Centre, 2001
Bernadette Tobin is director of the Plunkett Centre for Ethics, a joint centre of St Vincents & Mater Sydney and Australia Catholic University, in Sydney. Her article is published with permission