The importance of medical law and ethics during the Coronavirus pandemic
By Dr Marcus Taylor
The Covid-19 pandemic has once again highlighted the moral and ethical dilemmas facing medical professionals on a daily basis. The approach of this article will be to consider medical ethics and legislation through the lens of a medical practitioner. Emotive headlines plastered across tabloid newspapers scream about “life and death decisions” being made by doctors, particularly with regards to which patients are given potentially life-sustaining treatments and which patients are declined intensive care resources. Whilst this is clearly deemed to be news (and indeed newsworthy), it is certainly not new. Determining whether or not a patient should be admitted to and treated in an Intensive Care Unit (ICU) is part of daily practice for many clinicians and involves a high level of clinical, ethical and moral decision making.[1,2] ICU doctors require a large amount of information before making decisions about whether patients are suitable to be admitted. Whilst information about the current clinical picture and the reasons why the referring practitioners feel that intensive care admission is warranted are important, one of the most crucial components of the decision making is based on background history. This focusses on the “baseline functional status” of the patient and asks key questions about a patient’s level of fitness and frailty, measured objectively and based on a patient’s ability to do things such as climb stairs, walk unaided and wash & dress independently. It is well recognised that, regardless of the reason as to why a patient is frail, the degree of frailty is strongly associated with poor outcomes after ICU admission.[3] Other important factors include those that the non-medical general public would expect to be important, such as the number of concomitant medical problems (co- morbidities) and the severity of the illness necessitating ICU admission. Consequently, it is not uncommon for ICU clinicians to decline to admit a patient, despite having capacity to house them, based on a complex and sophisticated clinical judgement which deems that the patient’s chance of survival is so unlikely, that providing ICU support is inappropriate and would more than likely be futile with regards to preventing the inevitable death of the patient.
This type of decision making and judgement is not limited to ICU doctors. As a further example, a patient admitted with a life-threatening emergency, for whom death is a certainty without an emergency operation, may still not be offered an operation. Again, for non-medical professionals, this may seem paradoxical and inappropriately restrictive, but is in fact underpinned by moral and ethical principles. The combination of profound acute pathology, advanced age and multiple comorbidities can render the chance of survival after surgery infinitesimally small. In these cases, palliation with appropriate analgesia and sedatives is more dignified and less traumatic than forcing the patient to endure complex surgery and a prolonged period of time on a ventilator in ICU. For these patients neither of the potential outcomes are palatable: usually either withdrawal of life support after a prolonged period of time spent being mechanically ventilated, or a recovery period measured in months. This recovery period is accompanied by a prolonged ICU and hospital stay, often a need for a tracheostomy and the near-certainty of never regaining the same level of function and independence experienced prior to the event. For the small number of patients surviving to this point, discharge to a nursing home facility is the norm. This therefore highlights another truism recognised by medical professionals but less so by the wider public: survival alone is not necessarily a good outcome metric to determine whether a successful outcome has been achieved. Statistics for outcomes after out of hospital (OOH) cardiac arrest reflect this: whilst approximately 10-15% of patients who experience OOH cardiac arrest survive to discharge,[4] the proportion of patients who survive with no neurological dysfunction, i.e. those patients who survived but also were not rendered incapacitated by brain damage, stroke or intracranial bleeding as a result of the OOH cardiac arrest and ensuing treatment is significantly lower. For those people who, prior to their OOH cardiac arrest, were otherwise functionally independent, it is difficult to call being discharged to a nursing home requiring 24 hour care and being unable to walk, speak or feed yourself, a successful outcome. It is on this basis that doctors make decisions about the sagacity or futility of continuing resuscitation, providing emergency surgery and admitting people to ICU for invasive ventilation and sophisticated organ support. Yet clearly there will be people who do not agree with this approach. In the United States in particular, where patients are more like customers, with payments due for “services rendered” by medical professionals and hospitals, and where the availability of resources is
less of an issue, patients are much more likely to receive additional treatment, despite all involved being aware of the impending likelihood of an unsuccessful outcome. This puts clinicians in a difficult position: if they assent to provide care that they do not feel is in the best interests of their patient, they are acting neither ethically nor morally. However, to decline to provide the care demanded in this situation exposes them to litigation from patients and their relatives. This highlights the difficulty for legislators and policy makers of ensuring the correct balance is achieved in medicolegal legislation: whilst patients must be protected from coming to harm from exposure to negligent and/or incompetent clinicians, it is imperative that legislation also offers protections to clinicians making ethically and morally appropriate decisions which may not meet with universal agreement from patients, families and colleagues. National trends, stereotypes and cultural norms also play a major role in defining these behaviours. Italy was one of the countries which seemed to be the most affected by Covid-19, in terms of the health service being overwhelmed, particularly during the first wave of the pandemic in the spring of 2020. Upon closer inspection it becomes apparent that Italy as a nation has some particular characteristics which make it susceptible to this type of problem. A staunchly Catholic country, discussions about the futility of treatment and the appropriateness of palliation are much less culturally acceptable and are much more likely to be seen as ethically reprehensible. Furthermore, this course of action can also invoke the displeasure of the Church, which remains a much more significant force in comparison to other, more secular, countries such as the UK. Hence, we encounter the concept that what is ethical in one place may not be ethical in another and it is in this scenario that we start to appreciate when an ethical issue may overlap with a legal principle. A clinician, having made a judgement in keeping with their understanding of the legal principles, and in line with their moral code, may find themselves subject to scrutiny from governing bodies or referred for criminal investigation if a patient or relative feels that the decision made by the clinician was so far in keeping from what is deemed to be morally and ethically right (based on their own interpretation of ethics and morality), so as to be criminally negligent. Clearly, the Covid-19 pandemic has altered the global landscape of medical practice, with newly encountered scenarios for which there are perhaps no relevant legal precedents. Hence it is important to remember that such legislation should be designed and interpreted for the equal protection of both the patient
and the medical practitioner, as appropriate. In some countries, during the darkest days of the crisis, doctors were palpably worried about being sued for negligence or indeed manslaughter by the relatives of those patients for whom there was no capacity to admit or treat in the manner that would have been appropriate in a resource-rich environment. When faced with several critically unwell patients in a ward-based environment (all of whom need ICU support, and all of whom would be suitable to be escalated to ICU if availability was not an issue) but with capacity to only admit one patient to ICU, the decision-making suddenly becomes deeply uncomfortable. It is important for lawyers, barristers, judges and all professionals involved in the creation, implementation and interpretation of medical jurisprudence to recognise that medical legislation should be evenly balanced in order to always safeguard patients whilst also protecting clinicians where appropriate. Lady Justice is recognised as the allegorical personification of the morality of the judiciary and is usually depicted in possession of a blindfold, a sword and a set of scales to respectively represent impartiality, authority and balance. In the field of medical law, where ethical and moral conundrums abound, the occasional lack of appropriate contemporary legislation and the frequently emotive subject matter often provide challenges and setbacks. Nevertheless, these age-old principles should be applied with equal measures of flexibility and rigour on an individual case-by-case basis, in an attempt to reach a fair and well-balanced judgement. References
1 The Lancet. A critical look at critical care. Lancet. 2010;376:1273. doi:10.1016/S0140- 6736(10)61896-X
2 Curtis JR, Vincent JL. Ethics and end-of-life care for adults in the intensive care unit. Lancet. 2010;376:1347–53. doi:10.1016/S0140-6736(10)60143-2
3 Muscedere J, Waters B, Varambally A, et al. The impact of frailty on intensive care unit outcomes: a systematic review and meta-analysis. Intensive Care Med. 2017;43:1105–22. doi:10.1007/s00134-017-4867-0
4 Sasson C, Rogers MAM, Dahl J, et al. Predictors of survival from out-of-hospital cardiac arrest a systematic review and meta-analysis. Circ Cardiovasc Qual Outcomes 2010;3:63–81. doi:10.1161/CIRCOUTCOMES.109.889576