Justice and Guidance for the COVID-19 Pandemic

Numerous authors and institutions have drafted guidance in response to the 2020 COVID-19 pandemic. These documents represent sincere efforts by individuals and groups to map out the relevant considerations for making the difficult decisions that have to be made in the face of this life threatening, highly contagious communicable disease and the sudden and tremendous demand for medical care that overwhelmed medical capacities.

Rather, they are the conclusions we reach after gathering the available information, sorting out critical considerations from tangential ones, and weighing the range of foreseeable consequences of alternative choices in order to choose a plan that is most appropriate to the circumstances. In sum, answers turn on the context, and arriving at good solutions requires discernment and judgment. In that light, we need to start deliberation with understanding what was known and unknown when decisions about the COVID-19 virus had to be made.

THE FACTS

The virus causing COVID-19, identified as SARSCoV-2, is a new coronavirus mutation that emerged first in China, in late 2019. It very quickly spread around the world, infecting and killing humans in its wake. Doctors were called upon to treat infected patients, but they knew almost nothing about the disease. They were uncertain about how the disease wastransmitted, when in the disease course it was contagious, what symptoms or complications to expect, and who was especially vulnerable or relatively safe from its effects.

They knew nothing about treatments that might be effective or counterproductive, and were left to extrapolations and guesses based on experience with conditions that looked to be somewhat similar. What they did know was that the disease appeared to be highly contagious and deadly. Although it resembled flu in some respects, the duration and course of the disease were remarkably unpredictable. And because the disease was new to humans, no one had yet developed immunity to the new virus.

Based on what had occurred in China, South Korea, Spain, and Italy, medical experts anticipated hospitals would be overwhelmed with hordes of extremely ill patients. At the same time hospitals in large U.S. cities typically operate at close to full capacity, so experts recognized that there was negligible surplus capacity to absorb the demands as the new disease spread.

Experts expected that not only would there be insufficient protective equipment for hospital staff, but there would be inadequate intensive care unit (ICU) beds and insufficient supplies of ventilators to help seriously afflicted patients breathe until they could recover from the illness. They anticipated the demands for resources to quickly exceed the available supplies and also to exhaust the human resources for responding to patient needs.

Although experts expected many COVID-19 victims to die, the experience in other countries suggested that many of the most seriously ill patients who received aggressive treatment would survive. That information is critical because more draconian policies are justified in more dire circumstances, and limitations on offered treatments should be scaled to the anticipated level of resource shortfall.This means that different allocation principles are appropriate to different circumstances. It also means that judgment isneeded to identify the metrics for guiding specific allocations.

POLICY RECOMMENDATIONS

Around the United States, institutions and scholars scrambled to develop policies for guiding public health measures and directing the difficult clinical decisions of determining which patients would have access to the limited supply of ventilators and which would not be offered ventilator assistance. Public health officials identified the need for physical distancing in order maximize a public good, that is, “to save the most lives.” At the same time, hospital leaders around the country identified inadequacy of the human and material resources to fully respond to all demands and the need for adopting triage policies “to avoid the worst outcome,” in this case, the most avoidable deaths.

Although these principles might appear to be making the same point, it is important to recognize that these are two different principles of distributive justice for two different purposes, and both of these principles are widely endorsed as the appropriate guidance for the relevant decisions under today’s circumstances.

“Ethical Challenges Arising in the COVID-19 Pandemic: An Overview from the Association of Bioethics Program Directors Task Force,” by Amy McGuire and colleagues (2020), is largely focused on surveying various policy statements. McGuire and colleagues’ ecumenical and uncritical acceptance of all those assorted recommendations suggests that the various irreconcilable positions should all be incorporated into pandemic policies. Allow me to explain why I find these and other similar approaches problematic.

JUSTICE

Whenever we allocate a resource, we should be attempting to achieve justice. Justice requires treating similarly situated individuals similarly or “equally” (Rhodes 2020). The difficulty in achieving justice is that there are many competing principles for governing allocations. Discernment is required to identify the appropriate principle(s) for a particular allocation, and commitment is needed to pointedly set aside other (i.e.,irrelevant) considerations. Equality then demands that the same principle(s) be employed in making each distribution decision for that circumstance.

For example, we allocate movie seats by first-comefirst-served, seats at a holiday dinner go to family and friends, Nobel Prizes are awarded to individuals based on past performance, and places on the Olympic team go to those who are most likely to perform well and bring home medals. These are fine principles for those particular allocations, but none of them is appropriate for allocating medical resources.

MAXIMIZATION

Utilitarian maximization, in the case of COVID-19, “to save the most lives,” is the most appropriate principle for directing public health policy during the pandemic. It directs government officials to institute physical distancing orders, lockdowns, and quarantines because those measures are likely to curtail the spread of the disease and thereby save lives. It doesn’t take a lot imagination to recognize that these measures are also likely to inflict greater burdens on some than on others.

Many of the well-heeled can purchase protective masks, work from home, or leave their elevator building apartment in the congested inner city for a country house. Those who are less well off have no surplus wealth to sustain them without a paycheck and health insurance, rely upon public transportation, and reside in crowded homes.

TRIAGE VERSUS MAXIMIZATION

Triage in hospitals reflects the principle “avoid the worst outcome.” Triage is implemented by ascertaining the inadequacy of available resources, calibrating the level of shortfall, and identifying those least likely to survive. Triage involves drawing a threshold line for access to limited resources based on the degree of scarcity.

Anyone whose survivability falls below that line is ineligible for treatment from that limited supply, while those above the threshold are treated based on the urgency of their medical needs. In contrast, maximizing benefits requires ranking all comers according to their amount of benefit (e.g., the number of life-years) and allocating resources so as to produce the greatest aggregate benefit. To appreciate the difference, recall the 2004 flu vaccine shortage. Health departments around the country issued directives on how the limited supply should be prioritized, and the guidance was the same everywhere. Available vaccine was directed to health care providers, the immunocompromised, the very young, pregnant women, and elderly.

In sum, I endorse McGuire and colleagues’ support for “the efforts to write policies that are fair and equitable” (McGuire et al. 2020). I also agree that far more needs to be done in our society to address the profound health, wealth, and social disparities that afflict our society. The COVID-19 pandemic has revealed how far-reaching and consequential these problems are and that they require our society’s urgent attention. Nevertheless, it is important to think clearly about the issues that need to be addressed, recognize responsibilities that are incumbent upon all of us, and identify the specific agents and agencies that should take action in our name.

Today, in response to the COVID-19 pandemic, there are some measures that can be taken to address the health disparities that afflict African-American and Hispanic communities. Mayor Lori Lightfoot of Chicago, for example, has deployed accordion-style buses to allow for greater social distancing on public transportation in minority areas and created a Racial Equality Rapid Response team to provide information on treatment availability and distribute masks.

Author: Rosamond Rhodes

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