“Ethical” Response to Emergency

1. “Ethical” Response to Emergency Tom Sorell University of Warwick

2. Outline • Emergencies and some of their moral peculiarities • Health emergency • Pandemic influenza as health emergency • UK Response to Pandemic Influenza • Some worries • Some points about morality and emergency

3. Outline 2 • DH’s Ethical principles for Pandemic Influenza • Criticism of principles • SARS • The badness of quarantine

4. Emergency and Public Emergency • Emergency: a situation in which there is a high probability of severe harm or loss of life and a need to act quickly if the harm or loss of life is to be prevented or limited • Public emergency: an emergency affecting a population in which there is a need for a public body (e.g. a government, or a supranational authority) to act quickly

5. Meta-ethics of emergency • Morality and exceptionlessness • The centrality of truth-telling, promise-keeping, co-operation, sharing to morality in normal circumstances • Morality as relatively cost-free, and safe in normal circumstances • The unthinkability of killing and the rarity of life-saving in well-ordered societies in normal circumstances

6. Does emergency create exceptions to moral precepts? 2 • In emergencies life or great harm is in the balance • Life-and-death decisions and decisions about great harm ought to be constrained • Emergency decisions urgent and often unavoidably rushed • Bad decisions understandable • Wrong actions in emergency sometimes excusable

7. Domestication of Emergency • Because of the exception-tolerating nature of emergency there is a moral need to try to anticipate and subdue by practised routines the more likely emergencies: domestication • Not all emergencies can be domesticated

8. Declaration of public emergency • Can trigger domestic emergency legislation, delivery of aid, in a jurisdiction • Declaration of health or medical emergency can introduce coercive measures, trigger aid mechanisms, including money and medical relief supplies • Declarations of non-medical emergencies raise more civil liberties issues than medical ones • Declarations of medical emergencies mainly raise welfare issues and issues of fair welfare distribution • The idea that other issues are prominent sometimes the result of assimilating health emergency response to normal health care

9. Health emergency • Any occurrence that presents serious threat to the health of the community, disruption to the service or causes (or is likely to cause) such numbers or types of casualties as to require special arrangements to be implemented by hospitals, ambulance trusts or primary care organizations PI: DH Guidance on Preparing Acute Hospitals in England, p. 4

10. Swine flu vs Avian Flu • Global swine flu epidemic began in Mexico in 2009 • Relatively mild: death toll in first wave about 18000 worldwide • UK pandemic planning before 2009 had assumed an outbreak of avian influenza • WHO used a relatively conservative estimate – from 2 million to 7.4 million deaths

11. Pandemic flu as a health emergency • 50,000 -750,000 excess deaths in UK; 25-33% of population falling ill • Other effects • Highly disrupted schooling, business • Badly affected health service provision • Significant bereavement effects • Health losses among survivors

12. Timescale of spread (Ferguson) • 2-4 months to peak at source, 1-3 months to spread to West (in absence of seasonality). • 1/3 of population would become ill, 0.5-1 million new sick people per day at peak. • 15%+ absenteeism at peak. • 1st wave over ~3 months after 1st UK case. 12

13. WHO classification of pandemic phases • http://www.who.int/csr/disease/avian_influenza/phase/en/index.html

14. Main elements of 2007 UK plan • Concentration on vaccine production and distribution and use of anti-virals before vaccine available • NHS Direct as first port of call for symptom-reporting • Individual anti-infection measures at home • Voluntary isolation • School closures on a local level at discretion of local authorities • Voluntary cancellation of mass public events

15. Main elements of UK plan 2 • SHAs and PCTs to make local arrangements for use of acute hospitals in relation to: • Influenza treatment vs other emergency, general acute, cases • Priorities among those infected with influenza e.g. children vs adults; young adults vs elderly • “anti-social behaviour” of disappointed patients presenting themselves or children for treatment

16. Main elements of UK plan 3 • Accurate and up-to-date influenza information by mass-communications • Normal maintenance of public order, legal system • Maintenance of public utilities, food distribution through pre-assessed plans of providers • “Business as usual” message from official sources

17. Some worries • Relatively unaggressive strategy on containment • Rationing of acute treatment in cases where life-threatening conditions very widespread • Business as usual: denial or reassurance

18. Emergencies and Morality • In emergencies, some moral precepts may be overridden • In emergencies, some democratic political precepts may be overridden: certain liberties are rightly taken away for the sake of saving life • In emergencies, fair distributions of goods can involve rationing

19. Pandemic flu and morality • In pandemic flu, provision of health care is far more likely than normal to be high-risk to providers and ineffective for patients • In pandemic flu, questions about whom to prioritize for treatment are harder than in other kinds of emergencies • In pandemic flu, measures for minimizing loss of life can in principle involve measures that are unusually coercive

20. DH 2007 Ethical Frameworkfor response to Pandemic Influenza • Supposed to be used by planners and strategic policy makers at national, regional and local level • Supposed to influence decisions on, criteria for hospital admissions

21. The Framework • Treat people with concern and respect • Minimize harm of pandemic • Distribute health resources fairly • Work together • Reciprocate • Keep things in proportion • Be flexible • Make decisions openly, inclusively, accountably, reasonably

22. Treating people with concern and respect • “Everyone matters • People should have the chance to express their views on matters that affect them • People’s personal choices about their treatment and care should be respected as far as possible • When people are not able to decide [decisions should be made] in the best interests of the person as a whole rather than just…their health needs”

23. Minimizing harm • Preventing spread of pandemic to UK • Minimizing spread within UK • Anti-virals • Minimize disruption to society

24. Fairness • ‘Fair’ vs equal access, equally timely access to rationed resources • ‘Fair’ in relation to the likely benefits of health resources

25. Working Together • Official planning • Mutual help among individuals • Minimizing risk • Sharing information about effective treatment

26. Reciprocity • ‘If people are being asked to take increased risks, or face increased burdens, during a pandemic, they should be supported in doing so, and the risks and burdens should be minimized as far as possible.’

27. Keeping things in proportion • Accurate public information • Decisions to disrupt daily public life should be in proportion to risk of continuing with daily public life as usual

28. Flexibility • Plans sensitive to evolving information • Opportunity for public consultation as far as possible

29. Good decision-making • Openness and transparency • Inclusiveness and accountability • Accountability • Reasonableness in decisions • Rational • Not arbitrary • Evidence-based • Result from process appropriate to circumstances • Should have a chance of working

30. Criticisms • Uncertain audience for principles –sometimes decision-makers, sometimes everyone • Not clear that principles guide the treatment of serious emergency—most might be applied all the time; some—flexibility and good decision-making-- ignore the justified suspension of normal democratic decision-making processes in emergencies

31. Criticisms 2 • ‘Harm’ over-inclusively understood, and it’s not clear that minimising harm and fairness are equally important in an emergency as opposed to normal times • Concessions to ‘choice’ agenda inappropriate; • ‘reciprocity’ as reasonable non-emergency principle for a Health Service permanently under strain.

32. More on ‘choice’ agenda • Consumerism of Thatcher reforms continued by Labour • Downplaying in medical contexts of ‘minimising harm’, reciprocity principles where they conflict with consumer/democratic choice • Kennedy report • MMR • Pandemic

33. A better framework • Priority for minimising harm • Overridingness of minimising harm where it conflicts with fairness • Framework reduced to principles of minimising harm, fairness and co-operation (combining current “working together” and “reciprocity” principles)

34. Disproportionate burdens • Public tasks should not be assigned that require their discharge to be heroic • Examples: military, police • Pandemic flu may require, or appear to require, heroic self-sacrifice on those most exposed to infection through their work • So, much more needs to be done to protect these workers, including health-care workers

35. Difficulties • Hard to put out for consultation a document that reduces liberties, scope for consultation, unless the difference between emergency and non-emergency situations widely grasped • Ethical guidelines for emergencies, if put out for consultation, will probably end up looking like DH’s

36. SARS • Very similar ethically to pandemic influenza

37. Annas’ Criticisms of Hong Kong, Canada in SARS outbreak • Worst Case Bioethics • Quarantining in Hong Kong disproportionate • Even voluntary quarantining in Canada disproportionate • Approporiate framework in normal and abnormal times is human rights framework • H-R anti-coercive

38. Annas, p. 223

39. SARS and HR • Either Annas is right and HR theory and practice open to the charge of modelling the normal on the abnormal • Or else Annas is wrong and HR limits liberties for the sake of life • HR instruments certainly limit liberties for the sake of emergency, and not even a health-threatening emergency

40. ICCPR • http://www1.umn.edu/humanrts/instree/b3ccpr.htm Article 4 Article 22