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COVID-19 and Justice Doi:10.1136/Medethics-2020-106877 John Mcmillan, Editor in Chief

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COVID-19 and Justice Doi:10.1136/Medethics-2020-106877 John Mcmillan, Editor in Chief Concise argument J Med Ethics: first published as 10.1136/medethics-2020-106877 on 23 September 2020. Downloaded from COVID-19 and justice doi:10.1136/medethics-2020-106877 John McMillan, Editor in Chief John Rawls begins a Theory of Justice arrives at a fair outcome (what Rawls calls following summarises one of the key argu- with the observation that 'Justice is the perfect procedural justice, p. 85) there is ments in their article.7 first virtue of social institutions, as truth little prospect of that. As they observe, 1. COVID-19 immunity passports are a is of systems of thought… Each person reasonable people can disagree about way of demonstrating low personal possesses an inviolability founded on the outcomes we should aim for in allo- and social risk. justice that even the welfare of society cating health resources and ICU triage for 2. Those who are at low personal risk as a whole cannot override'1 (p.3). The COVID-19 is no exception. Instead, we and low social risk from COVID-19 COVID-19 pandemic has resulted in should work toward a transparent and should be permitted more freedoms. lock- downs, the restriction of liberties, fair process, what Rawls would describe as 3. Permitting those with immunity pass- debate about the right to refuse medical imperfect procedural justice (p. 85). His ports greater freedoms discriminates treatment and many other changes to the example of this is a criminal trial where against those who do not have pass- everyday behaviour of persons. The justice we adopt processes that we have reason to ports. issues it raises are diverse, profound and believe are our best chance of determining 4. Low personal and social risk and pre- will demand our attention for some time. guilt, but which do not guarantee the truth serving health system capacity are rel- How we can respect the Rawlsian commit- of a verdict, and this is a reason why they evant reasons to discriminate between ment to the inviolability of each person, must be transparent and consistent (p. 85). those who have immunity and those when the welfare of societies as a whole Their proposal is to triage patients into who do not. is under threat goes to the heart of some three broad categories: high, medium and Brown et al then consider a number of of the difficult ethical issues we face and low priority, with the thought that a range potential problems with immunity pass- are discussed in this issue of the Journal of of considerations could feed into that ports, many of which are justice issues. Medical Ethics. evaluation by an appropriately constituted Resentment by those who do not hold an The debate about ICU triage and clinical group. immunity passport along with a loss of social COVID-19 is quite well developed and Ballantyne et al question another cohesion, which is vital for responding to this journal has published several articles issue that is central to the debate about COVID-19, are possible downsides. There that explore aspects of this issue and how COVID-19 triage.4 They describe how is also the potential to advantage those who different places approach it.2–5 Newdick et utility measures such as QALYs, lives saved are immune, economically, and it could al add to the legal analysis of triage deci- seem to be in tension with equity. Their perpetuate existing inequalities. A significant sions and criticise the calls for respecting central point is that ICU for COVID-19 objection, which is a problem for the justice a narrow conception of a legal right to can be futile, and that is a reason for of many policies, is free riding. Some might treatment and more detailed national questioning how much weight should create fraudulent immunity passports and it guidelines for how triage decisions should be given to equality of access to ICU for might even incentivise intentional exposure http://jme.bmj.com/ be made.6 COVID-19. They claim that there is little to the virus. Brown et al suggest that disin- They consider scoring systems for clin- point admitting someone to ICU when centives and punishment are potential solu- ical frailty, organ failure assessment, and ICU is not in their best interests. Instead, tions and they are in good company as the raise some doubts about the fairness of the scope of equity should encom- Rawlsian solution to free riding is for 'law their application to COVID-19 triage situ- pass preventing 'remediable differences and government to correct the necessary ations. Their argument seems to highlight among social, economic demographic or corrections.' (p. 268) instances of what is called the McNamara geographic groups' and for COVID-19 Elves and Herring focus on a set of on September 30, 2021 by guest. Protected copyright. fallacy. US Secretary of Defense Robert that means looking beyond access to ICU. ethical principles intended to guide those McNamara used enemy body counts as Their central argument can be summarised making policy and individual level deci- a measure of military success during the as follows. sions about adult social care delivery Vietnam war. So, the fallacy occurs when 1. Maximising utility can entrench exist- impacted by the pandemic.8 They criticize we rely solely on considerations that ing health inequalities. the British government’s framework for appear to be quantifiable, to the neglect 2. The majority of those ventilated for being silent about what to do in the face of of vital qualitative, difficult to measure COVID-19 in ICU will die. conflict between principles. They suggest or contestable features.6 Newdick et al 3. Admitting frailer or comorbid patients the dominant values in the framework are point to variation in assessment, subtlety to ICU is likely to do more harm than based on autonomy and individualism and in condition and other factors as reasons good to these groups. argue that there are good reasons for not why it is misleading to present scoring 4. Therefore, better access to ICU is un- making autonomy paramount in policy systems as ‘objective’ tests for triage. In likely to promote health equity for about COVID-19. These include that infor- doing so they draw a distinction between these groups. mation about COVID-19 is incomplete, so procedural and outcome consistency, 5. Equity for those with health inequal- no one can be that informed on decisions which is important, and hints at distinc- ities related to COVID-19 should about their health. The second is one that tions Rawls drew between the different broadened to include all the services a highlights the importance of viewing our forms of procedural fairness. While we system might provide. present ethical challenges via the lens of might hope to come up with a triage Brown et al argue in favour of justice or other ethical concepts such as protocol that is procedurally fair and COVID-19 immunity passports and the community or solidarity that enable us to J Med Ethics October 2020 Vol 46 No 10 639 Concise argument J Med Ethics: first published as 10.1136/medethics-2020-106877 on 23 September 2020. Downloaded from frame collective obligations and interests. The COVID-19 pandemic is pushing © Author(s) (or their employer(s)) 2020. No commercial They observe that COVID-19 has demon- ethical deliberation in new directions re- use. See rights and permissions. Published by BMJ. strated how health and how we live our and many of them turn on approaching lives are linked: that what an individual medical ethics with a greater emphasis on REFERENCES does can have profound impact on the justice and related ethical concepts. 1 Rawls J. A theory of justice. Oxford University Press: health of many others. Oxford, 1972. Funding The authors have not declared a specific 2 Solnica A, Barski L, Jotkowitz A. Allocation of scarce Their view is that appeals to self- resources during the COVID-19 pandemic: a Jewish determination ring hollow for COVID-19 grant for this research from any funding agency in the ethical perspective. J Med Ethics 2020;46(7):444–6. and their proposed remedy is one that public, commercial or not- for- profit sectors. 3 Herreros B, Gella P, Real de Asua D. Triage during the Competing interests None declared. COVID-19 epidemic in Spain: better and worse ethical pushes us to reflect on what the liberal arguments. J Med Ethics 2020;46(7):455–8. commitment to the inviolability of each Patient consent for publication Not required. 4 Ballantyne A, Rogers WA, Entwistle V, et al. Revisiting person means. They explain Dworkin’s Provenance and peer review Commissioned; the equity debate in COVID-19: ICU is no panacea. J Med Ethics 2020;46:641–5. account of 'associative obligations' which internally peer reviewed. 5 Liddell K, Skopek JM, Palmer S, et al. Who gets the occur within a group when they acknowl- This article is made freely available for use in ventilator? Important legal rights in a pandemic. J Med edge special rights and responsibilities to accordance with BMJ’s website terms and conditions Ethics 2020;46(7):421–6. for the duration of the covid-19 pandemic or until 6 O’Mahony S. Medicine and the McNamara fallacy. J R each other. These obligations are a way of Coll Physicians Edinb 2018;47(3):281–7. otherwise determined by BMJ. You may use, download giving weight to community considerations, 7 Brown RCH, Savulescu J, Williams B, et al. Passport to and print the article for any lawful, non-commercial without collapsing into full- blown utilitari- freedom? immunity passports for COVID-19. J Med purpose (including text and data mining) provided Ethics 2020;46:652–9.
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