By Govind Persad
On March 28, 2020, the Department of Health and Human Services issued guidance regarding the application of antidiscrimination law to triage policies — that is, policies for fairly allocating scarce medical treatments, like ventilators, in the COVID-19 pandemic.
Many news outlets incorrectly portrayed HHS as prohibiting triage guidelines from considering disability. But the guidance is more nuanced.
It does not prohibit considering disabilities as part of an individualized, evidence-based assessment, even when doing so might be bad for some patients with disabilities.
It states that “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities,” and that decisions “concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence.”
This guidance followed criticisms of triage by disability advocates. Some of these rejected triage in favor of a first-come, first-served approach. Others argued that allocation should ignore patients’ likelihood of benefit, expected amount of time needed, or life expectancy after recovery. Recent recommendations by disability advocates repeat these points.
However, as I argue in a working paper (“Why Disability Law Permits Evidence-Based Triage in a Pandemic”), triage policies that use medical evidence to save more lives and years of life—which I call evidence-based triage and which is exemplified by recent model triage guidelines—are legal, ethical, and better for patients with disabilities than alternative approaches.
Triage Policies May Legally Consider Disability
While disability law prohibits inaccurate stereotyping, it permits evidence-based medical judgments even if they disadvantage people with disabilities.
Lung allocation is a useful analogy: instead of allocating lungs randomly, or to anyone who can benefit, lung allocation policy considers patients’ prospects of post-transplant survival. The National Council on Disability’s recent report on transplantation did not reject the use of survival benefit in lung allocation, instead, it emphasized the need to avoid disability stereotypes or quality-of-life judgments.
Triage policies may also legally consider how disabilities affect how much of a scarce treatment someone will need.
Disability law permits giving the same benefit to all patients (like an initial ventilator trial or dose of a scarce medicine), even if that generates unequal outcomes. And it recognizes that decisions to give more resources to people with specific disabilities must consider the interests of others, including people with other disabilities.
And, because medicine cares not only about whether a patient will benefit but also how much, triage may incorporate evidence-based life expectancy predictions.
While patients, not experts, have the best insight into how they are feeling — which justifies the model triage guidelines’ decision to exclude quality-of-life judgments — experts, not patients, are best placed to predict how long a patient will live if treated.
Using short-term rather than long-term life expectancy predictions, as both lung allocation and model triage guidelines do, could be ethically preferable in cases where social injustice affects the long-term life expectancy of people with specific disabilities. But using factually-grounded predictions is legal even if it disadvantages patients with certain disabilities.
Last, requiring that triage decisions be individualized supports evidence-based triage, which employs individualized medical determinations. It contrasts with approaches that ignore relevant information, like random selection and first-come, first-served.
Evidence-Based Triage is Ethically Justified, and Better for People with Disabilities
Recent legal scholarship has equated triage with utilitarianism, or claimed that triage will be worse for people with disabilities as a group than random selection would be. Both claims are wrong. Evidence-based triage is better overall for people with disabilities, and doesn’t require utilitarian thinking.
Most non-utilitarian ethicists agree that when there is not enough of a scarce resource to save everyone, we should save more lives rather than fewer. Saving more lives comes closest to fulfilling our duties to each person, and recognizes the “equal significance of each person.” Laypeople agree that a physician should save ten people who need one dose of medicine rather than one who would need all ten doses.
Saving more lives will also save more patients with disabilities. Most disabilities — blindness, deafness, and psychological disability, for example — are unrelated to the efficacy of COVID-19 treatments. This means that patients with disabilities are more likely to receive scarce treatments under evidence-based triage, which allocates scarce treatments to save more lives, than under random selection.
For instance, giving ventilators to patients with advanced lung cancer who are unlikely to benefit sacrifices the lives of patients with other disabilities who could benefit.
Believing that evidence-based triage harms “patients with disabilities” buys into a fallacy disability advocates have eloquently rejected in other contexts: that all disabilities identically limit patients’ ability to benefit from medical care. Neither ethics nor disability law require equating patients whose disabilities don’t affect their prospect of benefit from a ventilator with patients whose disabilities do affect their prospect of benefit.
Patients who believe they will be harmed by triage are also better placed to organize and offer personal stories than the patients with and without disabilities who stand to lose if triage is abandoned.
As a past Petrie-Flom center conference examined, psychological research indicates that we often prioritize a visible person over an equally disadvantaged but less visible group. But advocacy shouldn’t favor the visible over the invisible.
Physical distancing and postponement of many medical procedures — widely endorsed responses to the COVID-19 pandemic — aim at saving more lives, including more of the lives of people with disabilities, even while disadvantaging some patients with specific disabilities. If we endorse these, we should endorse evidence-based triage as another way of saving more lives.