Responsibility - Crime, and Punishment: Why We Should Not Allocate Intensive Care Based on Vaccination Status

This article refers to:

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

Park and Davies’ overview of arguments in favor and against vaccine sensitive allocation is a very useful summary (Park and Davies 2024). Discussions regarding whether it was ever justifiable to withhold or deprioritize care based on patients’ responsibility for their own disease have existed for some time regarding to diseases due to so-called lifestyle choices such as smoking, alcohol or drug consumption, sedentary lifestyles, and unhealthy eating. These discussions became more public and urgent as this question was asked regarding access to intensive care during bottlenecks caused by COVID19 pandemic waves, during which increasingly larger proportions of those requiring access were unvaccinated at a time of increasingly universal access to vaccination. My colleague Christine Clavien and I participated in the earlier debates and one of our conclusions was that responsibility ascription, for both theoretical and practical reasons, could not be done reliably enough to support anything, let alone withdrawal of what could amount to life-saving medical care (Clavien & Hurst 2020).

Park and Davies agree that responsibility ascription is hard. Their outline of the existing arguments, however, assumes that if we do get responsibility ascription right, then it could be justifiable to withhold intensive care from unvaccinated patients. Here, I would like to expand a little on our previously published work, because for this line of argument to work one of two additional steps would be needed: irresponsible behavior would need to be viewed as grounds to deserve the allocated resource less, or it would need to be viewed as grounds for punishment through withdrawal of the resource, despite desert being equal to begin with. Both steps fail.

Viewing anything at all, including irresponsible behavior, as grounds for lesser desert ultimately requires us to place different value on the lives of different people, since it requires us to withhold the resource on the grounds of a characteristic of the person rather than on characteristics of the disease or of the intervention being allocated. Placing different value on the lives of different people is problematic, particularly so for medicine, for several reasons. First, considering lives to be of unequal worth establishes hierarchies of value among humans and these are incompatible with commitments to human rights and other basic elements of our social contracts. Second, equal access to health care is a common good from which all persons benefit through the alleviation of the burden of disease and its effects on society in general, on the functioning of the state, of the economy, of family life, and of the possibility for associative and community activities. We all benefit not only from our own access to health care, but also from access for all others. Third, healthcare is a collectively generated resource which cannot be maintained in any other way, and holding lives in unequal regard while at the same time requesting collective support would unravel the possibility of this support (Hurst 2012). Fourth, one of the roles of medicine is to enable to rest of life, to prevent the effects of disease when it closes opportunities to us which should remain open to all (Daniels 1985). The lives medicine enables should in other words remain our lives. We may behave well or badly, and we should certainly be held accountable for our choices; none of these choices, however, should be considered as making us any less deserving of medicine itself. Fifth, the choice to remain unvaccinated is an individual one, but the choice that there should be a choice to remain unvaccinated is a collective one. In Switzerland for example, we voted on the Swiss Federal Act on Controlling Communicable Human Diseases (2012), which served as the legal basis for pandemic management, a few years before the COVID19 pandemic broke out. The most intensely discussed aspect of this legal framework was whether there should ever be grounds for vaccine mandates. The text accepted through a popular vote did contain possibilities for such mandates, but only for specific categories of the population. We thus explicitly and collectively accepted the project of navigating a -then- future pandemic with both vaccinated and unvaccinated persons in our population. The implications of such collective choices need to be borne collectively: when it comes to questions of triage in intensive care, choices collectively accepted as valid must continue to be considered as such and cannot be considered as lessening the value of individual lives or individual desert of medical care in any way. Some of these reasons may not have been articulated in this way throughout the history of medicine, but the principle according to which we should hold all lives in equal regard is a venerable one first formulated explicitly by the Greek physician Scribonius Largus under the reign of emperor Claudius (approximately 47 CE): “This is because Medicine truly promises her assistance in equal measure to all who seek her aid, and she swears never to injure anyone deliberately, for she judges men neither by their fortune nor their character” (Hamilton 1986). It may not have escaped your notice that I live in a country which, unlike the US, provides legally mandated insurance coverage with the aim of enabling universal access to health care. All the arguments stated here could be adapted to apply to financial conditions to access care and may thus be less convincing to those living in the US where financial conditions to access care do exist. In such countries, however, there is actually a sixth reason to abstain from vaccine-sensitive allocation: denying care on the grounds of personal choices which do not affect our ability to pay represents a breach of the contract such financial conditions imply.

An objection could be made that deprioritizing a person for access to a specific healthcare resource does not require considering her life to be of lesser worth even when this is done based on personal choices and characteristics rather than based on characteristics of the disease or of the intervention (such as a poor short-term prognosis). Such an objection would, however, require a convincing justification since the implication clearly seems to be that some lives are thus devalued. In principle, this justification would need to be robust enough to be convincing for a reasonable person affected by this deprioritization. It would, moreover, need to be explicitly and convincingly communicated since the mere understanding that some lives were being devalued, even absent the reality of it, could still raise some of the same issues outlined above.

Viewing irresponsible behavior as grounds for punishment through withdrawal of the resource, despite desert being equal to begin with, is even more clearly problematic. First, it amounts to punishment without a legal basis since behaviors such as refusing vaccination or living a sedentary lifestyle are legal. Second, while it is the behavior that is considered irresponsible, punishment would not target all those who engage in this behavior, but exclusively those among them who have been unfortunate enough to also become sick (Clavien & Hurst 2020). Should we wish to punish irresponsible behavior, it would be fairer to punish the behavior itself rather than the consequence of it. Third, even when punishment is warranted, it must be conducted in certain specific ways. Withdrawal of medicine is not an accepted punishment in our societies. A right to equivalent care is recognized even for convicted criminals (The Committee of Ministers of the Council of Europe 1998). Should withdrawal of medicine be considered a candidate for acceptable punishment, it would in most cases be disproportionate to the “crime” of irresponsible behavior, especially when the care being considered for deprioritization would be lifesaving. Procedural justice safeguards, such as the presumption of innocence or the right to a defence would mostly be inapplicable in a healthcare setting, a condition that is not removed by any degree of certainty regarding the ascription of responsibility, since these rights are recognized even for those caught “red-handed” after committing a crime.

An objection could be made that deprioritizing a person for access to a specific healthcare resource is not equivalent to punishment since in a triage situation someone will sooner or later be deprioritized. This is not convincing, as in this specific case the deprioritization would take place based on a decision to inflict this negative consequence on the direct basis of a disapproved behavior: this is the very definition of a punishment.

I was a member of the writing group for the Swiss Academy of Medical Sciences guidelines, which explicitly exclude vaccine-sensitive prioritization (SAMS 2020, revised 2021). In the process of writing and revising these guidelines we were aware that the alternatives, to either give up the requirement that punishment have a basis in law, or the recognition of lives as being of equal value, or both, can be implicit drivers of vaccine-sensitive allocation and should all be rejected.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).

Additional information

Funding

The author(s) reported there is no funding associated with the work featured in this article.