Laurence McCullough

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by Laurence B. McCullough, Ph.D.

The COVID-19 pandemic has prompted multiple responses from bioethicists and bioethics organizations. One prominent response has come from The Hastings Center, “Ethical Framework for Health Care Institutions and Guidelines for Institutional Ethics Services Responding to the Novel Coronavirus Pandemic”:

An ethically sound framework for health care during public health emergencies must balance the patient-centered duty of care—the focus of clinical ethics under normal conditions—with public-focused duties to promote equality of persons and equity in distribution of risks and benefits in society—the focus of public health ethics. Because physicians, nurses, and other clinicians are trained to care for individuals, the shift from patient-centered practice to patient care guided by public health considerations creates great tension, especially for clinicians unaccustomed to working under emergency conditions with scarce resources.

Implicit in this approach is the assumption that physicians and other healthcare professionals lack experience with responsibly managing scarce medical resources, particularly in conditions of severe scarcity during pandemic emergencies. This assumption does not withstand scrutiny from the perspective of the recent history of the professional ethics of critical care medicine and the professional ethics of triage.

Critical care management has been understood for more than two decades to be a trial of management, with ethically justified, beneficence-based criteria for its initiation and discontinuation (Consensus statement of the Society of Critical Care Medicine’s Ethics Committee regarding futile and other possibly inadvisable treatment. 1997; Kon et al. 2016) . Critical care management should be initiated when, in deliberative (evidence-based, rigorous, transparent, and accountable) clinical judgment, it is reliably predicted to result in the clinical benefit of reducing the risk of mortality and preserving at least some interactive capacity, i.e., when initiating critical care management is medically reasonable. Critical care management should continue until it is no longer medically reasonable (the patient is well enough to be discharged to a lower level of clinical management, the patient is too sick to benefit from critical care management, or the patient dies). No patient for whom the test of medical reasonableness fails should be started on or continued on critical care (or any other form of) clinical management (Brett and McCullough 1986; Blackhall 1987).

Art by Craig Klugman

This rule applies without change to conditions of scarcity, in which the focus shifts from beneficence-based ethical obligations to an individual patient to beneficence-based ethical obligations to a population of patients. The goal becomes prevention of unacceptable opportunity cost: the use of a critical care bed for a patient for whom in deliberative clinical judgment that use is not medically reasonable and that use blocks access to that critical care bed for a patient for whom it is medically reasonable to initiate critical care management. To prevent unacceptable opportunity costs and thereby to prevent unacceptable clinical harm to other patients, critical care management should not be initiated and should be discontinued when it is not medically reasonable. Inasmuch as intubation is time sensitive, decision making must be rapid, to end the unacceptable opportunity cost.

This is the professional ethics of triage. The clinical criteria of triage ethics are beneficence-based: their focus is on the ethical obligation to reduce mortality while preserving at least some interactive capacity in a population of patients, the clinical needs of which outstrip available resources. This ethical obligation can be understood without reference to “public-focused duties to promote equality of persons and equity in distribution of risks and benefits in society”. The textual evidence for this is that criteria for triage management in statements from professional organizations appeal solely to the beneficence-based goal of reducing mortality while preserving at least some interactive capacity (using Glasgow Coma Scale) (Consensus statement of the Society of Critical Care Medicine’s Ethics Committee regarding futile and other possibly inadvisable treatments 1997; Consensus statement on the triage of critically ill patients 1994; Guidelines for intensive care unit admission, discharge, and triage 1999; Nates et al. 2016). Moreover, omitting public health ethics meets a fundamental criterion of acceptable triage policies: “Triage systems must be simple, easy to remember, and amenable to quick memory aids” (American Academy of Pediatrics et al. 2011, 125). Claims about equality, equity, fairness, and equal or equitable distribution of resources are unavoidably contentious, because there is no authoritative philosophical specification of the ethical principle of justice (Chervenak and McCullough 2015). The required specifications are not provided in the Hastings Center statement, resulting in appeal to five indeterminate concepts that fail to satisfy the stringent criterion of clinical utility.

The use of the phrase “objective criteria” in triage statements from professional associations signals that sources of bias must be eliminated or minimized. The ethical principle of respect for autonomy is eliminated, because patients’ preferences are irrelevant to evidence-based, beneficence-based deliberative clinical judgment. Moreover, there is no time to address patients’ preferences when the unacceptable opportunity cost is urgent. The exclusion of autonomy-based considerations from the formulation and clinical application of triage clinical criteria has three implications.

First, the informed consent process is not required for the authorization of non-initiation or discontinuation of critical care management when either is not medically reasonable. It is not the case that professional ethics in triage “can require limitations on individual rights and preferences”. Individual rights and preferences should be overridden in admission and discharge planning for which physicians have ethically justified unilateral authority based on their ethical obligation to prevent harm to other patients. This is not paternalism. Unilateral authority overrides individual autonomy but does so to prevent the impermissible harm to other patients from irresponsibly managed unacceptable opportunity costs. This is a straightforward application of the harm principle.

Second, when every critical care bed is occupied by patients under the condition of medical reasonableness, patients in the emergency department or elsewhere in the hospital for whom a trial of critical care management is medically reasonable should be informed that access to critical care clinical management in the hospital will not be offered and the team will attempt transfer or, failing transfer, do the best that it can. This means that the outcome for some patients of acceptable opportunity costs will be ethically justified deaths, an inevitable outcome of the application of professional ethics in triage that expands an already existing clinical ethical category that includes deaths subsequent to ethically permissible discontinuation of life-sustaining treatment.

The chronological age of the patient by itself is irrelevant to the reliable prediction of outcomes and is therefore irrelevant to a deliberative clinical judgment about medical reasonableness. This rules out discontinuing medically reasonable critical care management of an older patient in favor of a younger patient and prioritizing patients based on age simpliciter. So too for quality of life (engaging in valued life tasks and deriving satisfaction from doing so) and disability.

Healthcare organizations should be fully committed to the application of the professional ethics of triage in response to conditions of severe scarcity. In their internal and external communications healthcare organizations should affirm this commitment, acknowledge that patients’ deaths may nonetheless occur in conditions of extreme scarcity, and explain that these unavoidable deaths will be classified as ethically justified deaths in the professional ethics of triage. Ethically justified deaths resulting from triage should be disaggregated from overall mortality statistics so that they do not adversely affect the mortality statistics of individual physicians and healthcare organizations.

Third, Engel justifiably warned against the perils of biomedical reductionism in everyday clinical practice when he proposed the biopsychosocial concept of health and disease. Triage criteria, because they focus on reduction of mortality and preservation of at least some interactive capacity, are biologically reductionist by design, to eliminate and minimize bias. This becomes a powerful asset in triage management because biological reductionism ensures that “[e]thnic origin, race, sex, social status, sexual preference, or financial status should never be considered in triage decisions” (Nates et al. 2016, 1567). Such factors play no role in justifiably biomedically reductionist deliberative clinical judgment about triage criteria. Approaches to triage that propose to take into account the preferences of patients or their families create and therefore do not minimize, much less eliminate, sources of bias and the uncontrolled variation (the definition of poor quality) that biases unavoidably introduce.

Critical care physicians, emergency medicine physicians, and other specialists are very accustomed to the professionally responsible management of scarce resources, including the severe scarcity that can occur in mass casualty events or a pandemic. Their professional associations, often in consensus with other professional associations, have created evidence-based, beneficence-based statements on the clinical application of the professional ethics of triage that can be routinely applied to the COVID-19 pandemic. These statements express professional commitments that have been forged from decades of clinical experience and reflection, passed from generation to generation, refined in training programs and clinical investigation, and embodied in day-to-day clinical decisions about the allocation of all sorts of scarce critical care and other healthcare resources. From this historical perspective, the promulgation of quick, urgent bioethics guidelines outlining the professional responsibilities of critical care and emergency physicians and other specialists in response to the COVID-19 pandemic should be considered odd and unnecessary.

The task of bioethicists and bioethics organizations in response to the COVID-19 pandemic and those that will follow it is simple: Call for organizational leaders and government officials to support physicians who already know what should be done about severe scarcity and how to do it by deploying the professional ethics of triage. The role of clinical ethicists is restricted to contributing to the rapid and reliable organizational adaptation of existing triage guidelines into organizational policy. The resulting policies will require only deliberative clinical judgment about the interpretation and clinical application of objective triage criteria. The skillset of the clinical ethicist does not include deliberative clinical judgment, making clinical ethics consultations in individual cases unnecessary.

A commentary on this piece by Susan Dorr Goold can be found here.

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