Discrimination

Decisions regarding the allocation of critical care resources clearly engage the right to life, which is protected under international,2 European3 and domestic human rights law.4 But measures undertaken to protect life are also subject to other important human rights considerations, principally the prohibition of discrimination.5 6 A discriminatory policy or practice is one that directly or indirectly disadvantages members of certain groups, such as older people, without an objective and reasonable justification for their differential treatment. This is a first area where we see the potential for human rights analysis to refine the Bath protocol.

One of the many tragic facts about COVID-19 is that epidemiologically relevant determinants of survival rates often coincide at the population level with traits that are ‘protected characteristics’ under human rights standards, including age and disability. COVID-19 triage procedures must accordingly walk something of a tightrope: incorporating sensitive epidemiological data into clinical decision-making without lapsing into discrimination. Citing guidance from the BMA, Cook and colleagues repudiate critical care ‘cut-off’ policies based on age or disability, on the grounds that they amount to unlawful direct discrimination. We concur. And we applaud the central pillar of their proposed alternative, which emphasises that triage decisions must always be made on an individual basis, taking into account individual circumstances and leaving scope for clinical judgement. Age will certainly inform individualised assessments, but under the Bath protocol the ultimate driver would be prognosis—specifically prognosis for recovery with the help of emergency treatment.

But avoidance of across-the-board age-based cut-offs does not suffice to safeguard against age discrimination. A triage policy built on the foundation of human rights must also be alive to the possibility of indirect discrimination. The Bath protocol’s incorporation of a life-years approach certainly raises the spectre of indirect discrimination, as its implementation would result in triage decisions that particularly disadvantage older persons. This by itself does not show that a life-years approach is unacceptable, but it does mean that such an approach calls for strict scrutiny. Specifically, it would need to be shown that there exists an ‘objective and reasonable justification’ for a life-years approach. Does it pursue a legitimate aim, and are the chosen means proportionate to that aim?7

We are doubtful about the ability of the life-years component of the Bath protocol to survive strict scrutiny. Cook and colleagues have not themselves specified how the second conjunct of their prime imperative would work in practice. Consider two possibilities. A life-years criterion might contribute to triage decisions as a straightforward function of age, with younger people assigned a higher life-years rating than their elders. But such an approach would be functionally indistinguishable from an age cut-off, which the Bath protocol rightly renounces. It would also not constitute an objective assessment of prospective life-years since life expectancy varies by factors other than age. An alternative more in keeping with the Bath approach would be to undertake an individualised assessment of expected life-years for each patient, taking into account the various demographic factors that influence life expectancy, including socioeconomic status and disability.8 The negative impacts of such an approach on already disadvantaged groups within society is difficult to gauge, but they are sufficiently grave to raise doubts as to whether such a policy could pass a proportionality test, which is satisfied only if it can be shown that the impact of the policy on the interests of those groups is not ‘excessive’ in relation to the aim being pursued.9

Equality and equal worth

The overarching purpose of the modern human rights movement is to protect the equal dignity and worth of all human beings.10 In order to fulfil this purpose in the context of healthcare, international human rights standards call for individuals to be provided with equal opportunities to access healthcare services.11 This equal access imperative is in turn echoed in the NHS Constitution.12 The principle that all lives are of equal dignity and worth provides additional grounds for scepticism about a life-years approach to triage, which implicitly treats a longer life as intrinsically more worth saving than a shorter one. But its importance as a supplement to the ethical framework of the Bath protocol becomes particularly clear in the context of so-called ‘tie-breakers.’

Prognosis-driven triage reaches an intrinsic limit when clinical factors do not suffice to distinguish among patients. At that point, some supplementary principle of distinction must be adopted. The most prominent tie-breaking recommendation within the Bath proposal is that a ‘random allocation, such as a lottery’ be used to rank patients with similar prognoses. But the protocol also invokes two more controversial tie-breaking mechanisms: priority for individuals with the potential to contribute to the maintenance of critical infrastructure; and priority for volunteers in vaccine trials and other medical research relevant to the pandemic. These additional tie-breaking standards have an equivocal status within the protocol; the authors describe them as “retained but downgraded.”

The prioritisation of patients based on ‘factors that might benefit wider society’ clearly invites scrutiny based on the principle of equality. For every patient moved up in a triage queue on the basis of their social utility, someone else is moved down, limiting their access to healthcare services on the basis of an assessment of their lower predicted value to society.

How do the two ‘downgraded’ tie-break mechanisms fare when assessed in a human rights framework? Consider first a policy of ‘rewarding’ volunteers in vaccine trials. Suppose that the aim of such a policy is to ensure that there is a sufficient supply of participants in these vitally important trials, and more broadly to ensure that the trials can be successfully completed. This would certainly pass the ‘legitimate aim’ arm of the test. But in the absence of some compelling link between such a system of rewards and the success of the trials programme, it would fail to satisfy the proportionality test and so fail to constitute a permissible departure from the duty to promote and respect equality—a duty which stands at the head of the NHS Constitution. Otherwise put: individuals have a right to be treated equally in triage regardless of whether they volunteered for a vaccine trial, chose not to, or were never presented with the opportunity in the first place.

Applying the same standard of scrutiny to priority for ‘front line workers’ is more challenging. Ensuring the continuing operation of critical infrastructure certainly passes the legitimate aim test. Where staff shortages are sufficiently acute, prioritisation of care for frontline workers might become a necessary means for protecting the workforce. But prioritisation on the basis of ‘social utility’ still faces two acute challenges: objectively identifying the point at which infrastructural strains justify prioritisation and providing a reasonable definition of ‘frontline worker’ for those purposes. Because these challenges are not addressed in the Bath protocol, it does not provide an adequate justification for using such a principle of prioritisation.