COVID-19 ethics — fighting the last war

Last week a group of distinguished physicians wrote a letter to the IJN noting with satisfaction that all of the heinous distinctions that the Nazis imposed during the Holocaust have been ethically eliminated during the COVID-19 pandemic.

The letter represents the considered yet impassioned thinking of the Lessons Learned group of the Holocaust Genocide Contemporary Bioethics Program at CU Center for Bioethics and Humanities.

The letter stated:

“Triage, which may have to be performed in the face of a disaster, is usually not the role of the treating physician. That job should go to an independent group of clinicians who are ‘blind to the patient’s race or religious background and whether they’re disabled, homeless or a major hospital donor. The people making the triage decisions should not even have access to that information,’ says Dr. Matthew Wynia, director of the CU Center for Bioethics and Humanities.”

Wynia is also identifiedas an advisor to the Colorado Governor’s expert emergency epidemic response committee, “a team of providers helping finalize guidelines for patient care should medication, critical care equipment and ICU beds be in short supply.”

It is always necessary to remind the world of the ethical disfigurations of the Nazis. The CU program is to be saluted for sustaining this focus. It cannot be taken for granted. Especially with the growth of Holocaust denial and the simple passage of time, not to mention the passing of the survivors, programs such as CU’s are critical.

That said, the focus during the current COVID-19 pandemic needs to be broadened. Otherwise, it willdivert attention from new ethical dilemmas the pandemic poses and we will end up fighting the last war, ethically speaking.

The new ethical dilemmas presented by the COVID-19 pandemic surely need to be faced wholly without reimporting the heinous “ethics” of the Nazi era. However, to exclude Nazi ethics is necessary but not sufficient.

In the COVID-19 era, it is not enough not to discriminate on the basis of race, religion and other markers invoked by the Nazis. These markers have been so radically excluded from the definition of medical ethics in modern medicine in the US that to highlight them alone may obscure the new, devastating dilemmas of the COVID-19 era. To be sure, modern ethical standards are not always adhered to, and the Lessons Learned group at CU is helpful in reiterating these standards. But the current challenges are not covered by reference to the Nazis.

The CU letter wrote:

“Factors clinically or ethically irrelevant to the triage process (e.g. race, ethnicity, ability to pay, disability status, national origin, primary language, immigration status, sexual orientation, age, gender identity, HIV status, religion, ‘VIP’ status, or criminal history) should not be used to make Crisis Standards of Care triage decisions.”

This long list seems to be comprehensive, but it doesn’t touch the slippery slope and the slippery language of potential dilemmas in the COVID era.

For example: included in the list of irrelevant criteria for a triage process is “age.” Age should be irrelevant, but it won’t be if COVID-19forces massive triage. Given the current state of medical ethics, age will simply be redefined. Definition — language — is perhaps the one aspect from an earlier time, including but not limited to the Nazis — that distorts our current ethical decisions. We cover up ugly realities with sanitized language. So yes, “age” per se will perhaps not be invoked in triage decisions. Rather, we will have this:

“Patient X [elderly, but not referred to as elderly] cannot be expected to gain from these scarce resources as much as Patient Y [younger, but not referred to as younger], so take the resources from Patient X and give them to Patient Y”; or:

“Patient X is more likely to use up precious medical resources than someone else, so give them to someone else.”

Of course, these comments could be said of any person of any age, but in reality it is the elderly about whom they will be said disproportionately, very disproportionately. That is discrimination on the basis of age, straight out, however artfully it might otherwise be put.

De facto, if two people show up needing critical care and one is elderly, and there is sufficient equipment or personnel to care for only one of the two, the likelihood is that the elderly person will be discriminated against.

In fact, unlike the Lessons Learned group at CU, the official Colorado guidance against discrimination during the COVID-19 crisis does not even mention “age” as an excluded, discriminatory criterion for triage decisions.

Which is hardly surprising. I have before me a COVID-19 report from the Hastings Center titled, “Ethical Framework for Health Care Institutions & Guidelines for Institutional Ethics Services Responding to the Coronavirus Pandemic.” Among other things, it states:

“First come, first served is an unsatisfactory approach to allocating critical resources: a critically ill patient waiting for an ICU bed might be better able to benefit from this resource than a patient already in the ICU whose condition is not improving.”

The COVID-19 deaths have tragically shown that a “critically ill patient” who is not improving can be of any age. Equally shown is that the great preponderance of these critically ill patients are the elderly. Euphemized in the antiseptic language in the Hastings report, or in other assurances that there should be no “age” discrimination, is discrimination on the basis of age. Who is kidding whom?

There is other chilling language in the Hastings report that should rivet those concerned about medical ethics during the coronavirus. This Hastings language includes: “withdrawal of life-sustaining treatment”; “prioritize the community above the individual in fairly allocating scarce resources”; “consequences of contingency levels of care for patient-centered care.”

It is not hard to discern the ethical premises in this language.

It is not only possible but likely that all of Hastings’ ethics premises can be put into play entirely without Nazi-like discrimination on the basis of religion, race, ethnicity, ability to pay, disability status, etc.

The CU Lessons Learned letter states:

“In catastrophic circumstances, doctors should try to save as many lives as possible. But equally important is to protect the country’s social fabric and preserve confidence in institutions, which can erode when people feel as if the lives of certain citizens are valued more than others.”

What is the criterion for measuring whether “the lives of certain citizens are valued more than others”? It is, of course, the classic markers of discrimination. But not only them. In fact, they will not be major markers in the COVID era if, G-d forbid, hospitals beds are inadequate, medical equipment is scarce and personnel shortages abound. Then, the searing questions will mostly be different:

Was I pushed aside because I was not deemed valuable enough for society, based on my age, or my prior physical condition, or my lack of stamina to push hard enough, or to find the right bureaucrat or physician to advocate for me?

Without confronting these questions, yes, indeed, a massive COVID-19 run on the medical system would erode the country’s social fabric. Confidence in at least its medical institutions would decline.

The good news is that as of now, at least, it looks like we have socially distanced enough and stayed home enough to have prevented the worse case scenario of medical systems crashing down, at least in Colorado.

But the ethics questions remain. They are extremely disturbing, even if the COVID-19 pandemic is vanquished. I fear that this pandemic has opened a Pandora’s box. Prioritizing one human life over another may gain acceptance, even inevitability.

The CU letter states:

“The mistakes and shortcomings of medicine during the Holocaust should inform our decision-making in medical ethics during today’s pandemic. May we merit pursuing a principle of Jewish law in science and humanity, that of pikuach nefesh, ‘saving a life.’ The preservation of human life overrides virtually any other rule.”

The Holocaust may well be avoided by a firm commitment to pikuach nefesh. But to my knowledge, no scheme for the murder of undesirables is contemplated by any politician, medical professional or volunteer during the COVID crisis. To uphold the principle of pikuach nefesh in the COVID era is to confront challenges more complicated than swearing off the Nazi mind and methodology. That was black-and-white. The potential medical dilemmas in the COVID crisis are not.

How is the principle of pikuach nefesh to be sustained in “guidelines for patient care should medication, critical care equipment and ICU beds be in short supply”?

For guidance on this critical matter, I, for one, would not want to rely on the unstated but all too pervasive end-of-life medical ethics in this country as I have seen and heard them actually practiced.

Caring daily for my late mother, of blessed memory, for years as she approached the age of 100, I had more than enough opportunity to see these ethics as articulated by everyone from physicians to social workers to EMTs to medical equipment providers. My mother preponderantly received very good treatment, but it would have been denied had the professionals alone made the decisions (with a couple of notable exceptions). End-of-life premises in the US are scary. Again, who is kidding whom? This is the world in which pikuach nefesh is compromised. This is no secret. It is not going to be different if a full blown COVID-19 run on the medical system occurs.

Medical ethics transcends being against the Nazis and then finding some agreed upon alternative principles. There is no way to preserve the principle of pikuach nefesh without reference to a Divine system. Life is sacred, or it is not.

Whatever the ethical criteria for triage might be, they cannot ethically include choosing who will live and who will die by withdrawing treatment from one person in favor of another.