How do we decide who gets a chance to live and who dies, when those outcomes depend on who gets access to or is denied scarce health-care resources? Who should decide? On what basis? Using which processes? The H1N1 influenza pandemic raises a large cluster of such ethical issues.
A letter in The Globe and Mail this week in response to an article on Ottawa's pandemic preparations asks: "Why not use the criteria that already appear to be in place for prioritizing access to critical medical resources: (1) physicians and others of high status in the system, their families and close friends; (2) politicians and others of means, influence and/or celebrity, with contacts to category 1; (3) the rest of us." There is some truth to this criticism. What might ethics tell us about how to address it?
First, everyone must be able to trust that the system is fair. That means we need transparency in decision-making and its implementation, and we must be able to trust the decision-makers. Then we need to consider the ethics of decision-making at the physician-patient level, the institutional level (hospitals, for example), the societal level and even the global level.
Physicians owe each patient a primary obligation of personal care - that is, they must not put the interests of others before the "best interests" of the patient. Physicians are constrained by the resources available in the health-care system, but they must make reasonable efforts to obtain the resources the patient needs, especially if the patient's life is on the line. Patients must be able to trust physicians to be their primary advocates.
Hospitals have ethical obligations to all their patients, including ensuring the just and efficient use of their limited resources. They need ethical principles on which to base their policies to deal with an H1N1 pandemic and ethical processes to implement these policies.
Such policies, for instance, can address decisions about preparedness - how many and what kind of ventilators to buy (experts warn that patients with H1N1 flu might need the $40,000 models, not the $10,000 ones) or, likewise, cardiac bypass machines used as a last resort for patients too sick to be placed on a ventilator. Or decisions about staffing the highly specialized intensive-care units needed to use that equipment. Would it be ethical to allow trainees to undertake tasks they're not usually permitted to carry out?
These policies can also deal with ethical issues in preventive measures, such as priority of access to flu shots. And with criteria for allocation of and access to treatment - that is, triaging H1N1 patients (deciding who gets treatment and, for those who do, in what priority).
Almost everyone agrees health-care workers should be the first to receive flu shots when a vaccine becomes available. That is not only fair to those workers, but benefits the rest of us who need their care. As well, infected health-care workers would spread the virus to vulnerable sick people. And because health-care workers fear taking the virus home to their families and close associates, those people also should have priority. Likewise, because health-care workers put their lives on the line to care for others, they should have priority in access to treatment.
But who should be next?
Medical need will play a major role in that decision. But what about situations in which that does not give a clear answer?
An ethical principle says we should act so as to implement a preference in favour of the most vulnerable people. But who are they in relation to H1N1 infection?
Should we take only medical vulnerability into account or should factors, such as being the parent of young vulnerable children, weigh in the decision?
And what about socioeconomic vulnerability, such as in first nations communities, which increases the risks associated with the H1N1 virus? I believe ethics requires they be given preference.
Should young people be "preferred" over elderly people? If young people are at greater risk of serious complications from H1N1, they should have priority. That's a medical reason. That contrasts with the argument that elderly people have had a "fair innings" and young people have not, so giving priority to the latter is just. That's discrimination on the basis of age, which is not usually justifiable.
The companion question to "Who should be next?" is the one implied by the Globe letter writer: "Who should not be next?" To take just one group, I would suggest that politicians and their families should be subject to the same criteria as all other Canadians. When we take a public role in deciding for others, we must be prepared to live according to the rules we impose on them.
Our largest experience in making decisions on the allocation of scarce, life-saving, health-care resources has been in relation to allocating organs for transplant and some expensive medical technologies, such as cardiac assist devices - people who are likely to have a sudden cardiac arrest are fitted with a device that shocks their heart back to normal rhythm. More people could potentially benefit from these than the health-care system is willing to pay for.
It's been argued that, ethically, a lottery system to decide who gets access is the most fair, because everyone has an equal chance of receiving or being denied treatment. But most people find pulling a life-or-death ticket out of a hat unacceptable. Although it makes logical sense, we probably have a moral intuition or emotional response warning us this is not the best ethical approach.
On the whole, we use a "first come, first served" allocation mechanism that allows for exceptions. For instance, if the person at the top of the list would live until another organ became available and one further down the list would not, the latter could be given the organ. This system is not ethically perfect, because, for instance, people of higher socioeconomic status tend to get on the list before those of lower status and, therefore, get priority, and some discretion is involved in allocation decisions, meaning that subjective factors (often characterized as "medical considerations") can play a role. But, overall, it works ethically well enough.
So what about the ethics of our societal decision-making? Should taxpayers have a say in what the total bill for dealing with H1N1 should be? Might they want to spend more than the government does? What services are needed for rural Canadians if we're to act justly? Patients on ventilators need to be in critical care units in tertiary level hospitals. Do we have the Medivac capacity to give them timely access?
At the global level, the World Health Organization has asked developed countries to consider sharing some of the health-care resources needed to deal with H1N1 flu, such as vaccine, with developing countries with almost no supplies.
And what about the ethical decision-making process? What's ethically required will vary depending on the situation, from individual physicians to health-care administrators, ethics committees and government bodies, but will always require care to avoid conflict of interest.
H1N1 flu presents us with what we call in ethics "a world of competing sorrows" - that is, one in which there is no response that does only good and not also harm. And that's before we even touch on the enormous emotional toll on individuals, institutions and society that will be involved in these situations and decisions. We will all need to be as wise and courageous as possible.
Margaret Somerville is founding director of the Centre for Medicine, Ethics and Law at McGill University.