COVID-19: ethical issues when demand for life-saving treatment is at capacity

Get guidance on COVID-19, ethics and decision-making, including withdrawing treatment, treatment allocation, resource, equality legislation and making reasonable adjustments.

Resources are becoming increasingly restricted and choices of available care limited. The pandemic is fast-moving, relatively unpredictable and of uncertain duration. 

We hope there will be sufficient resources to meet all patients’ clinical needs but, if they become necessary, prioritisation and triage decisions will be professionally challenging.

This page addresses some of the main ethical challenges likely to arise during this pandemic.

 

COVID-19 and ethical decision-making

Ethics and legality around prioritising patients

Everything is being done to maximise resources and to limit demand. Despite this, it is possible that, at times, the need for medical treatment, including, in some cases, for life-saving interventions, will exceed the resources available. This includes the availability of ICU places and mechanical ventilation.

All patients should, to the greatest extent possible in the circumstance, receive compassionate and dedicated medical care. This includes appropriate symptom management and, where patients are dying, the best available end-of-life care.

Nevertheless, in these circumstances, in the BMA’s view it would be both lawful and ethical to refuse someone potentially life-saving treatment where another patient is expected to benefit more from the available treatment. Such decisions must be based on clinically relevant factors.

In making these decisions doctors should follow accepted local guidance and protocols. Decisions about how resources are allocated must be:

  • reasonable in the circumstances, including being based on coherent ethical principles and reasoning
  • based on the best available clinical data and opinion
  • agreed on in advance where practicable, while recognising that decisions may need to be rapidly revised in changing circumstances
  • consistent between different professionals as far as possible
  • communicated openly and transparently
  • subject to modification and review as the situation develops.
Criteria for making treatment allocation decisions

During the peaks of the pandemic, it is possible that doctors may be required to assess a person’s eligibility for treatment on a 'capacity to benefit quickly' basis.

As such, doctors may be called on to deny some of the most unwell patients access to life-sustaining treatment such as cardio-pulmonary resuscitation, intensive care or artificial ventilation.

To ensure maximum benefit from admission to intensive care, it will be necessary to adopt a threshold for admission to intensive care or use of scarce intensive treatments such as mechanical ventilation or extracorporeal membrane oxygenation. Such decisions should be made using local policies and guidance.

Relevant factors predicting survival from COVID-19 include:

  • severity of acute illness
  • presence and severity of clinically relevant co-morbidity
  • other factors, to the extent that they are clinically reliable indicators, that can be linked directly or indirectly to age, and which make recovery, or the ability to withstand the complex and demanding treatment, less likely.

Those patients whose probability of dying, or of requiring a prolonged duration of intensive support, exceeds a threshold level that would not be considered for intensive treatment though, of course they should still receive other forms of medical care. These decisions must be made on the best available clinical evidence, including clinical triage advice from appropriate professional bodies.

These decisions will not only relate to those patients with COVID-19. Similar criteria will need to be applied to all varieties of medical need.

Thresholds for granting access to, for example, intensive care or ventilation should be similar for all patients regardless of presentation. By itself, infection with COVID-19 will not guarantee priority for treatment.

Withdrawing treatment from patients who are not responding

These treatment allocation decisions extend to withdrawing treatment from patients who are currently being treated but are not responding.

In our view, there is no intrinsic ethical difference between decisions to withhold life-sustaining treatment and decisions to withdraw it, provided other clinically relevant factors are equal. Health professionals may find decisions to withdraw treatment more challenging.

There may be a need to make admission to intensive care or commencement of advanced life-support conditional upon response to treatment, such as in a time-limited trial of therapy.

If a patient has lasting power of attorney or religious views against witholding or withdrawal of therapy

It is important to involve families and to take account of patient wishes in the context of ‘best interests’ decision-making for patients.

However, the ethical basis for decisions to restrict ICU admission or to withdraw treatment because of critically short supply are not best interests decisions.

These are decisions made on the basis of distributive justice and the ethical importance of trying to benefit as many patients as possible.

If there is a need to limit the availability of intensive care for patients because of the COVID-19 pandemic and a critical shortfall in ICU capacity, it would be unethical to apply those limits differently to patients with or without appointed surrogate decision-makers or those with or without particular religious views.

It would also be unethical – and potentially unlawful – to apply those limits on the basis of criteria that have no clinical bearing on a patient’s capacity to benefit from an intervention.

Equality legislation

If patients are refused access to life-saving treatment as a result of triage or prioritisation decisions, this may be challenged by patients and relatives. Questions about possible discrimination may be raised.

During the peaks of the pandemic, doctors may be required to assess a person’s eligibility for treatment based on a ‘capacity to benefit quickly’ basis. As such, some of the most unwell patients may be denied access to treatment such as intensive care or artificial ventilation.

This will inevitably have a disproportionate impact on both the elderly and those with long-term health conditions relevant to their ability to benefit quickly.

It is essential that these decisions are based upon clinical factors related to outcome, and not, for example, on the basis of discriminatory judgments about the value or worth of individual lives.

Similarly, health conditions or impairments unrelated to capacity to benefit clinically must not be used to guide decision-making.

The presence, for example, of a learning disability would almost certainly not be a clinically relevant factor.

A simple age or disability cut-off policy would also be unlawful as it would constitute direct discrimination. A healthy 75-year-old cannot lawfully be denied access to treatment on the basis of age.

However, older patients with severe respiratory failure secondary to COVID-19 may have a very high chance of dying despite intensive care, and consequently have a lower priority for admission to intensive care.

Although a ‘capacity to benefit quickly’ test would have a disproportionate effect on the elderly and those with clinically relevant underlying conditions, in our view, where decisions are taken with the considerations discussed above, it would be lawful in the circumstances of a serious pandemic. It would amount to ‘a proportionate means of achieving a legitimate aim’, under s19 (1) of the Equality Act – namely saving the maximum number of lives by fulfilling the requirement to use limited NHS resources to their best effect.

Making reasonable adjustments under equality legislation

Any person who delivers NHS services must comply with the requirements of equality legislation. This requires those delivering public services to make ‘reasonable adjustments’ so people with disabilities can use public services as close as reasonably possible to someone without disabilities. The legal duty falls upon the institution delivering the services, not individual doctors.

The duty to make reasonable adjustments does not mean that public bodies have to ensure that everybody receives the same services. The treatment individuals are entitled to depends on a wide range of factors, including their clinical presentation and the need to make best use of limited NHS resources. Some of these factors may be relevant to disability or more prevalent for older patients.

There is no exemption from the legal duties under the Equality Act 2010 because of the pressure of a pandemic. However, the duty is to make 'reasonable' adjustments and what is reasonable will be affected by the pandemic and the resulting pressures on NHS services.

Doctors should bear in mind that, as public servants, it may be appropriate to make reasonable adjustments for those with disabilities. That could mean permitting a learning disabled patient to be accompanied by a carer even if that is generally prohibited under infection control rules.

The BMA’s view is that, if there is undue pressure on life-saving or life-sustaining treatment, the duty to make reasonable adjustments should not substantially affect decisions about access to such treatment under a ‘capacity to benefit quickly’ test. This is because:

  • the disability suffered by many disabled persons will have no relevance to their ability to benefit quickly from life-saving or life-sustaining treatment and
  • where a person’s disability does have some relevance to their ability to benefit quickly, as far as the BMA is aware, there is no clinical evidence which could set out adjustments to the policy to achieve a fairer balance between the interests of disabled and non-disabled persons.

A capacity to 'benefit quickly’ test does have the potential to have a disproportionate impact on some disabled persons and some elderly persons (although that is not its intention). However, having carefully considered the alternatives, including having no test at all, the BMA’s provisional view is that such an approach would be lawful in the circumstances of a serious pandemic.

It would amount to 'a proportionate means of achieving a legitimate aim', namely saving the maximum number of lives by fulfilling the requirement to use limited NHS resources to their best effect.

Fitness to practise and the pandemic

The GMC will take into consideration the circumstances of the pandemic should fitness to practise questions be raised.

It has made it clear that it will consider:

  • the facts of the case, including the environment in which the doctor is working
  • the pressure doctors are working under, the resources available, and the scale of the challenges in delivering safe care
  • relevant information, guidelines or protocols in place during the pandemic.

The primary requirement for all doctors is to respond responsibly and reasonably to the circumstances they face.

BMA statement
BMA statement

This statement addresses in more detail the relationship between our guidance and those patients who are elderly or who have disabilities.

It emphasises that neither age nor disability are in themselves relevant criteria for making decisions about treatment.

View statement

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