Ruthless Utilitarianism? COVID-19 State Triage Protocols May Subject Patients to Racial Discrimination and Providers to Legal Liability.

As the coronavirus pandemic intensified, many communities in the United States experienced shortages of ventilators, intensive care beds, and other medical supplies and treatments. Currently, there is no single national response to provide guidance on allocation of scarce health care resources. Accordingly, states have formulated various "triage protocols" to prioritize those who will receive care and those who may not have the same access to health care services when the population demand exceeds the supply. Triage protocols address general concepts of "fairness" under accepted medical ethics rules and the consensus is that limited medical resources "should be allocated to do the greatest good for the greatest number of people."1 The actual utility of this utilitarian ethics approach is questionable, however, leaving many questions about what is "fair" unanswered. Saving as many people as possible during a health care crisis is a laudable goal but not at the expense of ignoring patients's legal rights, which are not suspended during the crisis. This Article examines the triage protocols from six states to determine whose rights are being recognized and whose rights are being denied, answering the pivotal question: If there is potential for disparate impact of facially neutral state triage protocols against Black Americans and other ethnic groups, is this legally actionable discrimination? This may be a case of first impression for the courts to resolve."[B]lack Americans are 3.5 times more likely to die of COVID-19 than [W]hite Americans … . Latinx people are almost twice as likely to die of the disease, compared with [W]hite people." 2 "Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism … . HHS is committed to leaving no one behind during an emergency, and this guidance is designed to help health care providers meet that goal." - Roger Severino, Office of Civil Rights Director, U.S. Department of Health and Human Services. 3.

Reciprocity and Liability Protections during the Covid-19 Pandemic.

During the Covid-19 pandemic, as resources dwindled, clinicians, health care institutions, and policymakers have expressed concern about potential legal liability for following crisis standards of care (CSC) plans. Although there is no robust empirical research to demonstrate that liability protections actually influence physician behavior, we argue that limited liability protections for health care professionals who follow established CSC plans may instead be justified by reliance on the principle of reciprocity. Expecting physicians to do something they know will harm their patients causes moral distress and suffering that may leave lasting scars. Limited liability shields are both appropriate and proportionate to the risk physicians are being asked to take in such circumstances. Under certain narrow circumstances, it remains unclear that the standard of care is sufficiently flexible to protect physicians from liability. Given this uncertainty, the likelihood that physicians would be sued for such an act, and their desire for such immunity, this limited protection is morally legitimate.

Rapid response to the COVID-19 pandemic: Vietnam government's experience and preliminary success.

BACKGROUND: The COVID-19 pandemic has hit all corners of the world, challenging governments to act promptly in controlling the spread of the pandemic. Due to limited resources and inferior technological capacities, developing countries including Vietnam have faced many challenges in combating the pandemic. Since the first cases were detected on 23 January 2020, Vietnam has undergone a 3-month fierce battle to control the outbreak with stringent measures from the government to mitigate the adverse impacts. In this study, we aim to give insights into the Vietnamese government's progress during the first three months of the outbreak. Additionally, we relatively compare Vietnam's response with that of other Southeast Asia countries to deliver a clear and comprehensive view on disease control strategies. METHODS: The data on the number of COVID-19 confirmed and recovered cases in Vietnam was obtained from the Dashboard for COVID-19 statistics of the Ministry of Health (https://ncov.vncdc.gov.vn/). The review on Vietnam's country-level responses was conducted by searching for relevant government documents issued on the online database 'Vietnam Laws Repository' (https://thuvienphapluat.vn/en/index.aspx), with the grey literature on Google and relevant official websites. A stringency index of government policies and the countries' respective numbers of confirmed cases of nine Southeast Asian countries were adapted from the Oxford COVID-19 Government Response Tracker (https://www.bsg.ox.ac.uk/research/research-projects/coronavirus-government-response-tracker). All data was updated as of 24 April 2020. RESULTS: Preliminary positive results have been achieved given that the nation confirmed no new community-transmitted cases since 16 April and zero COVID-19 - related deaths throughout the 3-month pandemic period. To date, the pandemic has been successfully controlled thanks to the Vietnamese government's prompt, proactive and decisive responses including mobilization of the health care systems, security forces, economic policies, along with a creative and effective communication campaign corresponding with crucial milestones of the epidemic's progression. CONCLUSIONS: Vietnam could be one of the role models in pandemic control for low-resource settings. As the pandemic is still ongoing in an unpredictable trajectory, disease control measures should continue to be put in place in the foreseeable short term.

Age discrimination in critical care triage in South Africa: The law and the allocation of scarce health resources in the COVID-19 pandemic.

No one may be refused emergency medical treatment in South Africa (SA). Yet score-based categorical exclusions used in critical care triage guidelines disproportionately discriminate against older adults, the cognitively and physically impaired, and the disabled. Adults over the age of 60, who make up 9.1% of the SA population, are most likely to present with disabilities and comorbidities at triage. Score-based models, drawn from international precedents, deny these patients admission to an ICU when resources are constrained, such as during influenza and COVID-19 outbreaks. The Critical Care Society of Southern Africa and the South African Medical Association adopted the Clinical Frailty Scale, which progressively withholds admission to ICUs based on age, frailty and comorbidities in a manner that potentially contravenes constitutional and equality prohibitions against unfair discrimination. The legal implications for healthcare providers are extensive, ranging from personal liability to hate speech and crimes against humanity. COVID-19 guidelines and score-based triage protocols must be revised urgently to eliminate unlawful discrimination against legally protected categories of patients in SA, including the disabled and the elderly. That will ensure legal certainty for health practitioners, and secure the full protections of the law to which the health-vulnerable and those of advanced age are constitutionally entitled.

View. The Dutch Critical Care Triage Guideline on Covid-19: Not Necessarily Discriminatory.

Recently, the Dutch Medical Doctors Association (Federatie Medisch Specialisten en de Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst) drafted the 'Covid-19 triage guideline ICU admission' that has age cut-offs that deprioritise or exclude the elderly. Such an age limit for intensive care unit (ICU) admission in case of a national emergency seems discriminatory, and thus, is it inappropriate to use, or not? The question is whether age in itself can be considered as an acceptable selection criterion.

We Need to Talk About Rationing: The Need to Normalize Discussion About Healthcare Rationing in a Post COVID-19 Era.

The global COVID-19 pandemic has brought the issue of rationing finite healthcare resources to the fore. There has been much academic debate, media attention, and conversation in the homes of everyday individuals about the allocation of medical resources, diagnostic testing kits, ventilators, and personal protective equipment. Yet decisions to prioritize treatment for some individuals over others occur implicitly and explicitly in everyday practices. The pandemic has propelled the socially taboo and unavoidably prickly issue of healthcare rationing into the public spotlight-and as such, healthcare rationing demands ongoing public attention and transparent discussion. This article concludes that in the aftermath of COVID-19, policymakers should work towards normalizing rationing discussions by engaging in transparent and honest debate in the wider community and public domain. Further, injecting greater openness and objectivity into rationing decisions might go some way towards dismantling the societal taboo surrounding rationing in healthcare.

Who Gets Scarce Medical Resources during a COVID-19 Pandemic? Let's not beat about the Bush.

Except for such rare situations where it might be determined absence of physician's imputability, physicians cannot ̳save the most lives while respecting the legal rights of the patient' without violating the overarching principle ̳every human life has equal value'. Arguing to the contrary is a conscious hypocritical attitude, or in other words, a fiction. Medical law and ethics long since carry with its various fictions. Furthermore, in a public health emergency such as the current COVID-19 crisis, medical law and ethics change and shift the focus from the patient-centered model towards the public health-centered model. Under these particular circumstances, this fiction becomes striking, and it can no longer be swept under the rug. As health emergencies can happen anywhere, anytime, the patient prioritization in circumstances of limited resources should be accepted. Medical law and ethics should back away from strict commitment to placing paramount emphasis on the value of human life. It is time for medical law and ethics to leave taboo-related hypocritical attitudes, and venture to make a historic compromise. To do so, three principles should be met: subsidiarity, proportionality, and consensus and social proof.

Tragic choices in intensive care during the COVID-19 pandemic: on fairness, consistency and community.

Tragic choices arise during the COVID-19 pandemic when the limited resources made available in acute medical settings cannot be accessed by all patients who need them. In these circumstances, healthcare rationing is unavoidable. It is important in any healthcare rationing process that the interests of the community are recognised, and that decision-making upholds these interests through a fair and consistent process of decision-making. Responding to recent calls (1) to safeguard individuals' legal rights in decision-making in intensive care, and (2) for new authoritative national guidance for decision-making, this paper seeks to clarify what consistency and fairness demand in healthcare rationing during the COVID-19 pandemic, from both a legal and ethical standpoint. The paper begins with a brief review of UK law concerning healthcare resource allocation, considering how community interests and individual rights have been marshalled in judicial deliberation about the use of limited health resources within the National Health Service (NHS). It is then argued that an important distinction needs to be drawn between procedural and outcome consistency, and that a procedurally consistent decision-making process ought to be favoured. Congruent with the position that UK courts have adopted for resource allocation decision-making in the NHS more generally, specific requirements for a procedural framework and substantive triage criteria to be applied within that framework during the COVID-19 pandemic are considered in detail.