“As cases related to the novel coronavirus continue to strain
hospitals, doctors face difficult choices about rationing
scarce medical resources like ventilators – choices that will likely determine
who lives and who dies.
“Several states’ policies tell providers to allocate scarce
resources to those most likely to benefit. For example, Washington state
recently adopted a policy that favors ‘the survival of
young otherwise healthy patients more heavily than that of older, chronically
debilitated patients.’ Similar new guidelines have been issued in Massachusetts as
well.
“In several other states, existing policies that were developed
in anticipation of an emergency – including pandemics – recommend rationing
that prioritizes giving ventilators to otherwise healthy people who are most
likely to benefit. The policies may be mandatory in some contexts, depending on
state law, but are likely to be influential even when not required.
“While seemingly sensible, policies that focus exclusively on
saving as many lives as possible may miss something just as important about
whose life is spared and whose is not.
“As a scholar who studies the law and ethics of discrimination,
I know that what matters morally and legally is not only the benefits and harms
of a policy, but also who gets affected the most.
“In this case, people with existing chronic illnesses or
disabilities are most likely to be denied lifesaving treatment by state
protocols on medical rationing.
Who gets the ventilator
“The Americans With Disabilities Act, or ADA, is
the main law that protects the disabled from discrimination. It applies to two
types of discrimination: policies that explicitly exclude disabled people and
policies that have the effect of excluding disabled people, even if
unintentionally.
“For example, the state of Alabama had a policy adopted in 2010
which explicitly excluded people with intellectual disabilities, stating that ‘persons
with severe mental retardation, advanced dementia or severe traumatic brain
injury’ will not be given ventilators in the event of scarcity.
“Disability rights groups filed a complaint about this with the
Office of Civil Rights at the Department of Health and Human Services, which on
April 8, 2020 determined that the policy should not be used and the guideline has
been withdrawn as a result.
“But just because policies don’t explicitly single out people
with disabilities does not mean that they won’t have the effect of excluding
people with disabilities from lifesaving care.
“Many state policies direct that when medical supplies are
scarce, they should go to the people who are most likely to survive. For
example, New York’s ventilator allocation guidelines, which were
set up in 2015 in anticipation of a potential influenza pandemic, state that
ventilators should be given to patients who are ‘deemed most likely to survive
with ventilator therapy.’
“Indeed, doing so will save the most lives. But this policy will
mean that people with chronic health conditions or disabilities will have a
very hard time getting ventilators if their underlying conditions give them
less of a chance of survival.
“This leads to the question of whether it is fair for
individuals with disabilities to have a lesser chance of getting lifesaving
medical treatment, even though there are laws that ensure equality of access
for them.
“To be sure, not all people with disabilities will be affected
by this kind of policy. Someone who is blind and has no other underlying
condition may have the same likelihood of survival as someone who is not. But
people with many types of disabilities, especially those that compromise their
lungs or other organs, will suffer more than others.
“The Americans With Disabilities Act requires organizations to take
affirmative steps to level the playing field. When
Congress passed the ADA, it stated categorically that disabled people have been
excluded from all aspects of society, including employment, housing, education,
transportation, voting and others, in ways that were both “outright intentional
exclusion’ and also the result of neglect. In that regard, Congress
specifically discussed the difficulty that people with disabilities experience
in gaining access to health services.
“The ADA requires states and hospitals to take affirmative
steps to level the playing field so that disabled people are treated equally. For
example, the ADA requires architectural changes such as ramps so that people
can get into buildings; it also requires organizations to modify the way they
provide their services. However, the ADA only requires these steps if doing so
is ‘reasonable,’ a term that is defined differently by courts in different
situations. In this new and difficult context in which lifesaving ventilators
are scarce, the task, then, is to determine what is reasonable.
“On the one hand, more lives will be saved by a policy that
gives priority to patients who are most likely to survive. On the other, this
same policy will mean that the disabled will be overrepresented among those who
do not get ventilators.
“Both facts about the policy are important, as Kate Nicholson, a
disability rights attorney formerly with the U.S. Department of Justice, and I
argue in a new paper. In this paper, we explain that
state policies that prioritize saving the most lives don’t consider who bears
the brunt of the loss of life. Some groups, as a result, suffer more than
others.
How can we be fair?
“As new projections for deaths and hospitalizations are shifting, it may be that for now we can avoid
difficult choices, as there may be enough ventilators to go around.
“But questions regarding who gets lifesaving treatment may well
recur if this virus returns or a new one surfaces. So it is critically
important to think seriously about what a ‘reasonable’ balance is between
saving the most lives and making sure that this loss of life isn’t mostly felt
by people with disabilities and others who are already socially
disadvantaged. That balance must not compound discrimination on disadvantage,
as civil rights protections prohibit.”
Deborah Hellman, Professor of Law at University of Virginia, The Conversation
Kate Nicholson, a civil rights and disability
rights attorney and advocate, contributed to this piece.
Then the question becomes, if the disabled are going to be denied this life saving therapy, what kinds of accommodations will be put into place, so they are not exposed to the life threatening agent? It only seems fair that if the decision is made to reserve scarce treatment for the healthiest that the healthiest be subject to restrictions that limit their ability to infect those who are most at risk of dying. Hence, no beaches or bars while the risk may deny someone else healthcare due to your poor choices.
ReplyDelete