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Real world ethics considerations in the coronavirus era

Apr 1, 2020

The Department of Health and Human Services recently released a letter that stated that using a single ventilator for two patients should be considered “an absolute last resort.”  Of course, this statement assumes that a ventilator exists in the first place, and it says nothing about how to deal with several more than two patients needing the same ventilator. 

This, however, is only the tip of proverbial iceberg.

These are extraordinary times in the truest sense of the word.  As the COVID-19 pandemic unfolds, there already have been and there will certainly be more issues that raise ethical concerns.  As with many ethics issues, there can and will be debate about how to address these issues.  Regardless of the specific issues to be addressed or the ultimate decision that are made, most people would agree that decision-making in advance is better than decision-making under duress, stress and fatigue. 

To this end, providers and health planning entities are encouraged to consider the following, among other things, as soon as possible, and hopefully before they present themselves:

  • How will limited resources be allocated?  Of course, resources can take many forms: major medical equipment (ventilators), blood, test kits, personal protective equipment, staff, cash on hand, rent, medicine, supplies, food, and, of course, time.
  • Should existing care/resources for any class of patients be withdrawn in order to provide them to others? 
  • Does the overall risk of the crisis justify the risks of “stretching” resources by putting individuals in care positions that would ordinarily be considered outside the scope of their license or experience?
  • Should ordinary rules of defaulting to providing resuscitation (CPR) be suspended?  If not, should “code” teams be limited in any way to minimize the heightened risk of exposure?
  • Should advance directives that expressly prohibit the use of ventilators (and other equipment) be ignored if it appears that the presenting situation is not what the individuals had in mind while drafting their advance care plan?
  • How are providers tending to the mental health of those on the front lines, those behind the scenes, and the public?
  • Should drugs be used off-label in any ways that differ from the ordinary course of care?
  • How much information is appropriate to share without express consent (even if relaxed HIPAA rules would allow it)?
  • Should ability to pay matter? If so, how and for what?
  • Should resources be shared between facilities or even between patients?  If so, what and how?
  • How will legal liability and care be balanced?
  • How will cost and care be balanced?
  • How will certainty and uncertainty be balanced?
  • How will risks and rewards be balanced?
  • Should specialists who are not involved in COVID-19 care be trained (or re-trained) to boost the supply of providers involved in COVID-19 care?  If so, should this be voluntary or paid?
  • What is your plan for decision-making when you don’t have a plan?
  • What is your plan for decision-making when your original plan needs to change?

The above reflect only a fraction of the real-life scenarios that are likely to present themselves as we all respond to the COVID-19 pandemic (and in the case of other catastrophic situations that call for simultaneous acute care and public health interventions within a context of limited resources).  Among other complications, these questions involve a blend of legal, financial, practical, micro, and macro concerns.

Aside from the above institutional questions, there are myriad considerations of what each of the individual states (and other countries) are doing about rationing of healthcare, if anything.  For example, the authors of this piece are located in Virginia, and as of the date of this publication, the Commonwealth has declined to provide any rationing guidance in the event demand exceeds supply.  Obviously, it remains to be seen how this situation will unfold, but it appears likely that each state will take its own approach to healthcare resource allocation, just as they have for social distancing protocols.  As a result, the various states will inherently become ethics “laboratories.”  As different results emerge from these laboratories, we are bound to see an evolution in the response to the current crisis, which should also inform our response to crises in the future.

For each of the above, the “right” answers or, perhaps, the “least bad” answers are likely to take different forms.  Waller’s team can assist in taking a deliberate approach to advance decision-making and can provided invaluable critical distance for decision-making in the heat of the moment.

Nathan Kottkamp has a Master’s Degree in Bioethics and is the founder and chair of National Healthcare Decisions Day, a nation-wide advance care planning event.

Molly Huffman is a healthcare attorney, routinely advising hospitals and health systems on a wide array of issues, including risk, compliance, end of life decisions, and related matters.

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