Ethicists, Lawyers See Dangers in Rationing of Scarce Health Resources

Apropos the last post I shared, this article points out that 'triage' based on age violates federal laws against age discrimination.

From Catholic News Service

By Nancy Frazier O’Brien 

BALTIMORE (CNS) — Catholic ethicists and legal experts are sounding the alarm that the scarcity of resources such as ventilators and hospital beds during the current coronavirus pandemic could prompt health care decisions based only on age and disability — and in some cases already is.

Decisions on life-saving care based solely on those criteria are unjust, discriminatory and a violation of federal civil rights law, they say.

One of the strongest and most persistent voices has been that of Charles Camosy, an associate professor of theological and social ethics at Fordham University in New York, one of the hardest-hit U.S. cities.

“It should not be up to physicians to decide whose subjective quality of life deserves to be prolonged,” he wrote in a March 19 opinion piece in the New York Post. “If rationing arrives, we must stand up unambiguously for the marginalized and vulnerable.”

He was especially critical of the Italian government for reportedly recommending that health care resources be rationed by age and limited to those who “could enjoy the largest number of life-years saved.” Italy has had nearly 70,000 confirmed cases of COVID-19 and more than 6,800 deaths as of March 25.

Camosy also joined with Robert P. George, a law professor at Princeton University, and Harvard sociologist Jacqueline Cooke-Rivers in asking the Freedom of Conscience Defense Fund and the Thomas More Society to provide legal guidance on possible health care rationing during the pandemic.

“Decisions regarding the critical care of patients during the current crisis must not discriminate on the basis of disability or age,” said the legal memorandum drawn up by the two organizations. “Decisions must be made solely on clinical factors as to which patients have the greatest need and the best prospect of a good medical outcome. Therefore, disability and age should not be used as categorical exclusions in making these critical decisions.”

Peter Breen, Thomas More Society vice president and senior counsel, added: “The horrific idea of withholding care from someone because they are elderly or disabled is untenable and represents a giant step in the devaluation of each and every human life in America.”

Brian M. Kane, senior director of ethics for the Catholic Health Association in St. Louis, said the key question in Catholic social thought is how to balance the principles of “the primacy of the dignity of the person” with the common good, while also maximizing the resources available.

“Across the country after the last pandemic (the H1N1 swine flu in 2009), an awful lot of work was done to articulate” the factors that should guide such decision-making, he said, praising the “Ventilator Allocation Guidelines” issued by the New York State Task Force on Life and the Law in 2015 and the “Patient Care Strategies for Scarce Resource Situations” issued by the Minnesota Department of Health in April 2019.

The New York guidelines use a mortality prediction scoring system called SOFA, or sequential organ failure assessment, to evaluate each patient. The evaluations and periodic reassessments are done by a triage officer or committee and not by the physicians treating that patient.

“The guiding principle for the triage decision is that the more severe a patient’s health condition (i.e., higher the SOFA score) and worsening/no change in mortality risk (i.e., increase or little/no change in the SOFA score), the less likely the patient continues with ventilator therapy,” the guidelines say.

“For some people, if we gave resources to them it would not be very effective in changing their outcome,” Kane explained. “Others will get well even without the resources.” But for patients in the middle, the SOFA score provides a “hierarchical system” for allocating resources, he added.

“It’s Catholic social teaching principles applied in a specific way based on clear, concise medical criteria,” he said.

The 21-member New York task force included two priests, a rabbi, an ordained Protestant chaplain and a physician who was identified as New York Cardinal Timothy M. Dolan’s “delegate for health care.”

Kane also warned that allocation of scarce resources must taken into account the Catholic social teaching of concern for the poor by making sure that “the distribution of resources does not reinforce disparities that we already have.”

Both Camosy and Kane said they were uncomfortable with any health care decisions based on so-called “quality of life” considerations. Kane said quality of life should only be a factor for patients themselves to judge in deciding whether to accept certain kinds of treatment.

“Physicians almost always rate the quality of life of their patients significantly lower than patients do themselves — and miss the fact that their patients often prefer length of life to quality of life (whatever that means),” Camosy wrote in the Post. “In short, they are terrible deciders about who should live and who should die.”

Father Tadeusz Pacholczyk, director of education at the National Catholic Bioethics Center in Philadelphia, said there is no “one-size-fits-all answer” to resource allocation questions.

“In calamities, of course, hard questions arise,” he said. “If a very sick man with COVID-19, who also has leukemia and congestive heart failure, is using the only available ventilator at a small rural hospital, would it be fair to unplug him and give the ventilator to a woman, slightly younger, who just arrived by ambulance and needs it, and who seems to have somewhat better prospects of survival? It really depends on the details.

“If continued ventilation were likely to result in his improvement and survival, and was beneficial with few burdens, it could be wrong to take it from him,” Father Pacholczyk added.

But especially at Catholic hospitals in these difficult times, he said, “pastoral attention and caring for every person, especially every weakened and vulnerable person,” must be paramount.

“We must avoid yielding to a kind of panic, and losing the calm of accompaniment that should be part of the experience of every visitor to our hospitals, including those facing their final days and hours,” he said.

Fordham’s Camosy told Catholic News Service he hopes the coronavirus crisis will help spark “a national conversation about these matters.”

“Strangely,” he added, that discussion “has not been on the radar screen of most media that I’ve seen covering” the pandemic.