Vexing Vaccine Ethics: Denying ICU Care to Vaccine Refusers

This article refers to:

Rationing, Responsibility, and Vaccination during COVID-19: A Conceptual Map

Park and Davies (2024) address the question of whether vaccine status can be an ethically legitimate criterion for the allocation of scarce medical resources, such as access to an ICU bed and ventilation during the peak of COVID-19. More precisely, may individuals who have refused vaccination be given low-priority or no priority for access to potentially life-saving treatment, which they needed due to advanced disease related to COVID? The authors themselves take no position on this question but instead are content to “map out the moral terrain in which the arguments have proceeded.” For them, the relevant moral terrain includes the values of responsibility, reciprocity, and justice. However, I will argue that this list is deficient. What is missing are the ethical commitments of the physicians who would have direct responsibility for making these allocation decisions. Those commitments include: (1) equal concern and respect for meeting the medical needs of each patient, no matter how those needs might have been acquired; and (2) fair allocation of limited lifesaving resources with primary criteria being urgency of need and likelihood of benefit from those resources (Sulmasy et al., 2019).

To illustrate my points, imagine an understaffed Emergency Room. Two patients are brought in at the same time, both involved in the same auto accident. One was the drunk driver; the other was the driver of the car struck by the drunk driver. The drunk driver is bleeding out and is almost certain to die if not treated immediately. The other driver is seriously injured, and there is a small chance that individual could die if treatment is delayed for an hour. No one in the ER has any doubt regarding who is responsible for the accident. Still, a responsibility-sensitive judgment to treat the innocent patient first would be unjustified from the perspective of the two core ethical commitments of physicians as mentioned above. Such a choice would result in the certain death of the drunk driver, thereby violating both commitments above. This same argument applies in the case of a COVID patient who has been a vaccine refuser.

Imagine two COVID patients showing up in the ER and needing the last bed in the ICU. One of them is fully vaccinated and the other is a vaccine refuser (not just careless about their health). The vaccine refuser may be ignorant, misguided, susceptible to health-related demagogery by authority figures, or just very rigid in their thinking. We can imagine varying degrees of responsibility attached to each of those circumstances. Assume (unrealistically) the ER physician could know these facts about this patient. This patient needs ICU care immediately. Without ICU care they will be dead within 24 hours. The vaccinated COVID patient will likely need ICU care within the next 24 hours, though their care can be managed for now outside the ICU. If no ICU bed became available in 24 hours, there would be a high likelihood this latter patient would die. The clear obligation of the ER physician would be to admit the vaccine refuser to the ICU for the two reasons above.

To go one step further, if at twenty hours the vaccine refuser in the ICU had failed to improve and was now most likely going to die, despite continued ICU care, the ICU director would be justified in removing that patient from the ICU and admitting the fully vaccinated patient, the assumption being that this latter patient had a much better chance of survival (Fleck and Murphy 2018). This is in keeping with the two ethical commitments of the ICU physician. Note that this physician can be agnostic with respect to the vaccine status of both patients so long as that status has no medical relevance.

If the vaccinated patient were to die (not having been admitted to the ICU), that result would be unfortunate, but not unjust. Robertson (2022) contends that a decision to treat the vaccine refuser would represent an unjustified harm to that other patient that was being imposed by the vaccine refuser. Robertson sees the physician as an unjust “accessory” to the imposition of this harm. He writes, “If healthcare must be denied to some patients, rationers who ignore vaccine status will become complicit in externalizing the consequences of refusing vaccination onto those who did not refuse” (1). What Robertson claims is that vaccine refusers are “free-riding,” and that is unjust. However, that judgment strikes me as an odd re-description of what counts as free-riding.

Ordinarily, one is free-riding when one gains a benefit at no cost to self while everyone else must pay for that benefit. However, vaccine refusers can hardly be seen as getting a benefit; they are taking a serious risk, often for very misguided reasons. To be precise, in December of 2021, they would have been eighteen times more likely to die of COVID compared to a fully vaccinated individual. Of note, if one had been initially vaccinated but failed to get booster shots before December of 2022, one would be twice as likely to die of COVID compared to a fully boosted patient (Our World of Data 2023). What should be concluded from that last statistic? Should non-boosted patients only have a 50% chance of an ICU bed compared to someone who was fully vaccinated? Should they be favored for that last ICU bed compared to a patient who was a complete vaccine refuser? Assuming such details could be known when a rationing decision must be made, the ethical commitments of the physician charged with making such a decision require indifference to whatever the background circumstances might have been that brought any of these COVID patients to the ER, as illustrated by our drunk driver example.

Is the ICU rationing physician complicit in imposing an unjust harm if she gives the last ICU bed to the vaccine refuser because of the urgency of their need and the likelihood of substantial benefit compared to the fully vaccinated patient? The assumption behind that question is that good health behavior is meritorious and renders one more deserving of that last ICU bed compared to someone who has been careless or indifferent to their health. However, no such index of health meritoriousness exists anywhere. If such an index were constructed and used to allocate ICU beds, we would be faced with a dystopian world in which some ICU physicians would be identified as health prosecutors, committed to punishing bad health choices, and others would be committed to health defence work, seeking plea bargains for their irresponsible unhealthy client-patients. How many fast-food hamburgers (and the health needs attributed to them) would be equal to the potential health needs of the vaccine-refuser (and the risk of displacing a more health-conscious person from an ICU bed) (Fleck 2012)? How is a conscientious physician responsible for allocating the proverbial last bed in the ICU supposed to seek or use such information?

From a political perspective, it is easy to imagine the broader public disagreeing with these judgments. That is, the broader public would insist that the vaccine refuser be denied access to the last bed in the ICU in favor of the vaccinated patient. That same public would also deny that bed to the drunk driver or to an HIV+ patient in favor of a patient who was not HIV+. All three of these judgments represent social prejudices which a conscientious physician would be ethically obligated to ignore. More generally, in a liberal, pluralistic society physicians would risk violating those fundamental political commitments if they started to make responsibility-sensitive judgments as a basis for allocating their therapeutic talents, i.e., vegans would be more worthy of their therapeutic efforts than meat-eating, animal-rights-denying patients.

Finally, what if our two COVID patients both had immediate need of that last bed in the ICU, meaning that the other would die. Under those circumstances a coin toss, or some other equalizing mechanism, would need to be used to determine which patient received access to that ICU bed. What could not be justly used as a decision criterion would be the vaccine status of either patient. What must matter to the ICU physician as a physician is only the medical needs of those two patients and likelihood of benefit. This is integral to correctly mapping the moral terrain associated with vaccine refusers needing ICU care during the COVID epidemic.

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