by Ann Mongoven, Ph.D., MPH

As COVID-19 surges across the country, more hospitals face the agonizing question: whom shall we try to save when we cannot save all? The question is particularly acute for allocation of ventilators and continuous renal replacement therapy (CRRT), a support system for acute critical kidney failure.

In the absence of federal guidelines, rationing policies are being developed by individual hospitals or regional collaborations. Many of these policies have been called into question by the U.S. Office of Civil Rights’ (OCR) statementthat age cannot be considered. The OCR blanketly equates any consideration of age with morally indefensible age-discrimination. That is a mistake.

Including age as one among several factors in rationing does not devalue the elderly. Indeed, it should co-exist with the highest priority on protecting the elderly in efforts to flatten the curve. Decisions about when to relax shelter-in-place and social-distancing to restart the economy should revolve around protection of the most vulnerable groups, foremost the elderly. The more we succeed in flattening the curve, the less likely our healthcare system is to become stressed to the point of denying intensive care to anyone likely to benefit.

But what if it does get to that point? (It has in some places and will in others.) OCR did not distinguish between exclusion criteria in rationing, and prioritization criteria. Ethically, however, that distinction is crucial. Exclusion factors are those that would remove a patient from the pool of consideration for a scarce resource. While rationing policies developing around the country differ in other ways, they agree that age should not be an exclusion factor—rightly a strong social stand against pernicious age discrimination.

The first step in rationing under conditions of scarcity is to identify those likely to die even with treatment and those likely to live even without it, using clinical criteria. At this stage, the ethical goal is to save as many lives as possible. Allocation of scarce resources such as a ventilator is then focused on the group who is in danger of dying without one, but has a good chance with one. Curve-flattening aims to enable offering intensive care to all in that group.

When we can’t, we must prioritize among those who are simultaneously medically needy and likely to benefit. Some argue that a lottery is the most ethical approach,
testifying to the value of equal regard. The case for a lottery would be strong other things being equal. But what if one factor is very unequal: the age of those between whom one must choose? Favoring the younger seems disallowed by a strict reading of the OCR statement, though it is embraced by several institutional policies, including one widely adopted model policy.

When we don’t have enough life-saving resources to save all save-able lives, the ethical goal should shift to saving as many life-years as possible. The number of additional years of life possibly enabled by emergency treatment of a much younger patient is greater than that of a much older patient. Trying to give as many patients as possible the chance to live a full human lifespan is a worthy ethical goal, albeit a tragic one in circumstances where not all save-able patients can be saved. (Considering age as a secondary rationing factor seems all the more valid in the COVID-19 pandemic, since at the population level age per se, independent of other comorbidities, is a negative factor for likelihood of survival with acute COVID —though one can’t predict its effect for individuals.)

Imagine this scenario: In your intensive care unit, you have a 40-year old and an 86-year-old both gasping for breath, both considered to have solid odds of survival with a vent. But you have only one. To whom should you give it?

If you said the 40-year old, you may risk sanction by the OCR. But I would give it to the 40-year old, even if that 86-year old was my actual beloved father. I tested my belief that my father ethically would agree with that decision by asking him: He agrees. I believe most people would agree. They would conclude that under tragic conditions, we should give as many as possible the chance for a full lifespan.

If that is true, then the OCR statement may discourage transparency and consistency in policies whose purpose is public transparency and consistency. For hospital ethics committees and triage committees unwilling to flip a coin between the 40-year-old and the 86-year old, the temptation will be to veil non-medical ethical goals as objective clinical factors in order to favor the much younger patient without admitting age came into play. Succumbing to that temptation will save them from any need to make a politically bold moral argument. The missing argument would be that under these circumstances, the coin-flip is less a noble testament to the ethical ideal of equal regard than a problematic hand-washing. It is a hand-washing that ignores another important value (preserving lifespan), and misses that the chance for a full life-span is one good for which we ought demonstrate equal regard.

Our willingness to discuss openly when age is and is not an ethically relevant factor in the allocation of resources may be crucial throughout the COVID-19 pandemic. Just as COVID ‘s press on ventilators has affected non-COVID patients needing ventilators, the pandemic if unmitigated could render scarce many basic general medical resources. A pediatric intensivist I know at a hospital consumed with an adult COVID surge worried about whether a ventilator would be available if a pediatric trauma arrived, while she scrambled to cobble adequate IV lines for her patients. She wondered aloud whether pediatric patients will become quiet collateral damage of COVID, ironically because kids are believed to be less vulnerable to COVID itself. But one could argue that we have a special obligation to ensure children’s needs are met during the pandemic, because they are not just little people, but our offspring. Offspring “with their full lives ahead of them.”

In terms of COVID specifically, when treatments and vaccines are hopefully successfully developed, scaling them up to a global level will take time. In the meantime, we will have to decide who gets them first. What ages are the most likely to spread disease, become ill, become acutely ill, and die are relevant epidemiological questions. The answers may push in different directions for the allocation of different kinds of resources. But there are also valid ethical questions. Where does the goal of supporting a full natural lifespan for as many as possible fall among a spectrum of other worthy ethical goals? How does its relative placement direct the allocation of different kinds of risks and benefits to different demographic groups? Tragic tradeoffs that must be negotiated are not only between individual patients whom we would all wish to save, but also between ethical values that we would all wish to support.

Under extreme conditions of scarcity, disfavoring the elderly in rationing prioritization for intensive COVID-19 interventions is ethically defensible. It is also consistent with extreme favoring of the elderly in decision-making about shelter-in-place and social distancing policies. We should cherish our elderly by flattening the curve, not by obscuring ethically valid considerations in rationing policies.