Points in common in European recommendations

All scientific societies have shown a common concern with many issues. Some examples are the centrality that all place in the timely planning and proportionate care, in the precautionary measures with the main clinical decisions being made by experienced professionals (preferably in a multidisciplinary team), and with the concern given to transparency throughout the process (see table 6). All societies advocate that an early and shared decision on how to treat the patient should be taken, namely whether there is an indication for admission to the ICU, as well as informing and dialoguing with patients/family members whenever possible. Proportionate care is recommendedaccording to the patient stage of the disease and prognosis, avoiding unnecessary and irrational treatments that increase suffering and delay adequate palliative treatment. All advocate taking clinical records at all stages.

The principle of responsibility permeates all documents and cannot be separated from the other principles mentioned. The duty of care is articulated with the principle of reciprocity with protection of professionals being safeguarded; all documents highlighting stress among health workers.

Are clinical criteria enough?

The clinical criteria generally used in daily practice tend to be both egalitarian and utilitarian in nature, which means focusing on maximising the health-related well-being of each patient, while trying to treat without discrimination. In a pandemic context, two different forms of utility become more evident: the medical utility, which focuses on maximising the patient’s health and is person-centred, and the social utility, which focuses on maximising the well-being of society at large.9

In such a situation, it can be difficult to decide only on the basis of each patient’s clinical standards, although they should always be applied as far as possible. Prioritisation occurs when it is not possible to treat all patients as they could clinically benefit, and it is necessary to decide which ones are to be prioritised.

However, some authors think differently. McCullough, for example, considers that the criteria for allocating scarce resources in the ICU are well established and new ones are not needed during a pandemic.10 For this author, ethics in intensive care is a management trial for the initiation / discontinuation of treatment based on justified criteria of beneficence, and where biological criteria are the most important for clinical decision10 and sufficient even in very scarce scenarios.

The biological screening criteria, indeed, would ensure that the patient’s morally irrelevant characteristics, such as race, gender or social value, were not considered in the decisions.10 On the other hand, the standard approach is based on the order of arrival and it is possible that a patient most likely to benefit from the ICU would be denied treatment if arriving later.

We think that, although clinical criteria are fundamental, when capacity is forced to the maximum11 even experienced professionals will face decisions that differ exponentially from normal times12 and, therefore, guidelines should be established to guide them and to guarantee equity among patients.

Is it necessary to forego respect for patient autonomy?

The documents included in our analysis argue otherwise. An ethical framework for healthcare during public emergencies must balance the duty of patient-centred care with duties focused on public health.6 This can make respect for the patient’s autonomy a sensitive issue to be addressed. The tension created in clinicians by this shift can be alleviated by promoting respect for the patient’s autonomy as far as the resources available allow. Decisions should be discussed and shared by the clinical team and, as far as possible, in dialogue with the patient and family. Respect for the patient’s previously expressed will was considered important and was repeatedly underlined. The Spanish recommendations advise professionals to contact the Ethics Committee to help prevent and resolve conflicts in decision-making. The Swiss stress the importance of discussing in advance with all patients capable of doing so their wishes in case of possible complications. And, in general, this is a concern present in all the guidelines analysed.

In what way can Distributive justice be applied?

The principle of Distributive justice holds that any unjustified influence on allocation for resources should be excluded as far as possible. Parameters such as sex, race, age, disability, social status, nationality must be discarded. It is impossible to avoid discrimination entirely, as the existing inequalities in health tend to worsen with the crisis. These limitations need to be recognised to reduce the possibility of injustice, and this perception can help improve future access for underprivileged populations. This is fully in line with the principle of equality and non-discrimination, which is fundamental to the constitutional traditions of European Member States, the legal framework of the European Commission and human rights law. The age parameter is discussed below on a specific issue due to the special debate that has arisen.

Fair and legal prioritisation to access scarce assets in a crisis is an important and pragmatic attempt to apply the principle of distributive justice. It means trying to distribute the benefits and risks equally among the population, avoiding leaving it to chance without reflection.

To create an ethical framework for resource allocation reflecting society’s priorities, focus groups were led in Maryland, USA, to discuss community preferences.13 Participants valued the rescue of people with a greater chance of short-term survival, followed by those with a greater chance of long-term survival.14 In addition, it was recognised that, although age should not be the only allocation criterion, in some circumstances it would be appropriate to consider the stage of life in decision-making.14

Persad et al identify four ethical frameworks, that can be used in triage decisions when the clinical criteria are found to be insufficient: treating people equally (egalitarian), favouring those who are worse off (priority), maximising total benefits and promoting and rewarding social utility (both utilitarian).8 No single principle allocates interventions fairly and a scheme with several principles should be built to better manage triage issues.8 The five guidelines discussed here favoured different approaches.

Egalitarian principles in European recommendations

Most countries, except Belgium, refuse to include the first come, first served (FCFS) allocation principle. This approach, as well as random allocation (or lottery), is considered traditionally an egalitarian principle that aims to increase people’s equitable access to missing goods.

However, some authors argue that FCFS cannot be considered an egalitarian approach, since access to care is worse for low-income people, minorities and the elderly who live alone.8 In addition, a seriously ill patient waiting for a bed in the ICU may be better able to benefit from the resource than a patient already in the ICU whose condition is not improving.6

Random allocation gives equal opportunities to everyone. However, by being totally blind, it leaves out relevant factors, for instance it does not differentiate a patient who can gain 2 months of life from a person who can gain 40 years, for example.8

Utilitarian principles in European recommendations

All countries, except Belgium, have chosen a utilitarian criterion, with maximising global benefits as a priority. Belgium prioritised clinical urgency, maintaining the attitude that is generally used in ordinary times. For this medical society, the clinical judgement and established criteria for assessing the ICU were enough. They preferred to establish an early identification of patients without criteria for ICU before their arrival to the hospital, which implies a major effort of the local teams. This decision is acceptable when resources are available and a plan well established. Clinical urgency, on the other hand, seems insufficient in a situation where serious failure in resources might occur.

The utilitarian perspective is an influential moral consequentialist theory traditionally used in severe crisis situations.15 It aims to maximise the overall benefits for everyone, although there is some discrepancy as to which assets to maximise.8 In these documents, the clinical focus is to reduce mortality while preserving at least some interactive capacity in a population of patients.10 There are two major approaches within this utilitarian category: save as many lives as possibleand save people with better prognosis or more years of life ahead.

The Italian and Spanish Societies both prioritised the greater probability of survival and better prognosis or longer life-years. The Swiss and German Societies advocate for preservation of as many lives as possible.

Utilitarian triage in Spanish and Italian recommendations

The better prognosis or longer life-years criterion aims to save the lives of the people that have more years-of-life ahead of them. This means valuing not only the short-term but also the long-term prognosis. Both Spanish and Italian documents value it, but with some differences. The Italians defend the longer life expectancy determined by clinical factors such as the severity of the disease, the presence of comorbidities, the reversibility of the lesions and so on. The Spanish also defend the longest life-expectancy but introduce the quality-adjusted life years (QALY), between two similar patients.

Some argue that placing a high priority on the long-term prognosis criterion can further harm people who already face several disadvantages, such as poor people or ethnic minorities, who are more likely to have multiple and severe comorbidities due to more precarious access to medical care and health effects of poverty.14 In this sense, it might be beneficial to establish a double scoring system that would recognise patients whose comorbidities were so severe that they would not be expected to live long (more than a year) and exclude them from the ICU, in case of scarcity.14

QALY is a projection calculated by multiplying years-of -life by quality-of-life. This approach raises serious ethical concerns and it is highly impractical when facing quick decisions, in triage situations.7

Utilitarian triage in Swiss and German recommendations

Preserving as many lives as possible aims to save lives independently of other characteristics. This means valuing mostly the short-term prognosis. The Swiss and German Medical Societies prioritise the patients with the greatest probability of immediate therapeutic success and waive treatment from those with no or little chance of success.

Since each life is valuable, this principle seems to need no special justification,8 as the same value is present for the 60-year old and for the 20-year old—the rest of their lives. It is appealing because it balances utilitarian claims with egalitarian claims that all lives have equal value.15 However, using only chances of survival to hospital discharge might be insufficient—some lives have been shorter than others and similarly some lives can be extended longer than others.8

Also, further analysis of the two, show distinct ethical approaches. The German guidelines seems to be more balanced, also with an egalitarian perspective15; the Swiss recommendations are not so clear in this regard since it was stated that in extreme situations people over 85 should not have access to the ICU. Since it has been also underlined by Swiss recommendations that each life is valuable, the coherence of this may need to be discussed.

Positioning towards age as a criterion

European recommendations do not directly advocate ‘the youngest first’, but take age into account. Italian recommendations say that it may be necessary to set an age limit for admission to the ICU. Empirical reports from doctors on the Italian front line suggest that, in practice, the age limit was set at between 60 and 65.3 The Spanish recommendations give specific orientations according to age and the presence of comorbidities, complementing age with prognosis. However, age-related criteria have been considered ethically and legally unacceptable by both the Comitato Nazionale per la Bioetica of Italy16 and the Spanish Comité de Bioética de España.17 For Belgians and Germans age in isolation cannot be used for triage decisions, but should be integrated with other clinical parameters. The Swiss claim that, in extreme situationspeople over 85 should not have access to the ICU.

This is a controversial parameter subject to ongoing discussion. Some authors, valuing the principle of dignity and value of all human lives, argue that prioritisation must not be based on the patient’s chronological age per se. However, it is permissible to take into account global health status where age plays an important role.

Since age intervenes with many criteria that assess the overall health of an individual, there is a risk that age becomes ‘double-weighted’ in triage decisions, if age per se is a single criterion.3 18 Also, a misleading message about the value of older people may be conveyed in an age discrimination criterion.19

Other authors consider it is right to prioritise younger patients, as age played a role for decades in limiting access to care, especially when rationing life-saving treatments (dialysis, organ transplantation).19 The ‘fair innings’ argument favours the younger patients, who should have the opportunity to live a life of certain duration19 that would be cut-off too soon.

There has been public support for the use of the life-cycle principle in extreme crisis decisions, although never as the primary nor sole criterion.14 The idea was to give each individual equal opportunity to live through the various phases of life20 preserving intergenerational equity.15 The highest priority being given to children and adults up to 49, then adults who have not yet lived a full life (age 50–69), with the lowest priority given to patients 85 and older.14

Position towards the use of clinical scales in triage

The use of scales was suggested in some guidelines, especially the Sequential Organ Failure Assessment (SOFA) and the Clinical Frailty Scale (CFS). The SOFA score predicts mortality over the short term. The CFS is used in an overall assessment of fitness or frailty of older persons.

The use of forecast-relevant scores, such as the SOFA, was suggested in Spanish and German guidelines together with CFS. This last scale has also beenrecommended by Belgian physicians.

Although the use of SOFA provides a standardised approach that can help mitigate subjective bias, in fact bias cannot be completely eliminated and, due to the need of laboratory results, it can take up to 24 hours to complete the scale, making this approach unfeasible.1

The CFS scale is highly sensitive to disability3 and, in practice, might occur that a person who needs some help for daily activities could potentially be excluded from life-saving treatment. This can promote the idea that people with disabilities are less worthy of living. Because of this the National Institute for Health and Care Excellence reviewed their initial position and suggested that this scale should be used with caution.21