COVID-19: Decisions to Offer Interventions With Limited Availability Should Be Decided Based on Chance of Recovery.

Dear Editor:

We read with interest the article by Cesari and Proietti, entitled “COVID-19 in Italy: ageism and decision making in a pandemic,” which rejects a priori discrimination of aged people in access to care. The issue is particularly relevant in a time when a large number of older subjects, who lived in nursing homes, died following infection by COVID-19 patients who were transferred to the facilities due to an insufficiency of hospital beds.

Individual allocation of limited medical resources is a crucial issue in the time of COVID-19 , 3, 4, 5, 6, 7 because it involves the decision to offer or deprive patients of chances of survival. To avoid discretionality and uncertainty, such decisions should be based on juridical grounds. However, liberal democracies are not well equipped for this challenge. The Italian constitution, for example, states “the Republic safeguards health as a fundamental right of the individual and as a collective interest” (article 32). Given that “all citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions,” as the constitution also states (article 3), it follows that no juridical criteria can be adopted that discriminates among individuals with regard to their right to health. For example, coming back to Cesari and Proietti, aged people cannot be discriminated against.

Perhaps ethics can offer greater rationale than law, but it too faces serious obstacles. Being pluralistic, liberal democracies do not allow for a single ethical standard. However, pertaining to a matter involving the collectivity, utilitarian ethics, which looks at the greatest advantage for society, might seem a possible path. In the time of COVID-19, it has been proposed by influential researchers to give precedence to saving the most lives and life-years, give priority to research participants and health care workers and the sickest and youngest, and apply random selection among patients with similar prognosis.

Unfortunately, a pragmatic approach also has several limitations. Generalized categorization is disputable, while specific categorizations are context-sensitive and unable to predict all possible situations.

In countries where health care is mainly private, those with resources pay for what they need. Individuals without resources, like people living in countries where health care is public, are faced with a predicament that cannot be resolved by guidelines and bureaucratic protocols. Among 2 patients with priority, for example, both health workers, who receives therapy when only 1 ventilator is available? Between patients without priority and with similar prognosis, who receives treatment first? Random selection is not a reasonable option because it clashes with common sense when other valuable criteria could be taken into consideration. Should honest citizens who pay taxes, that help buy ventilators, be privileged over tax evaders? Is it right to care differently for a person who has recently acquired citizenship compared with an individual from a family that has paid into the health care system for decades? Who has priority, the citizen or a noncitizen who does not pay taxes? Remaining in the perspective of maximizing benefit, is it right to not consider the social contribution 1 person can make compared with another? Which is more useful, the life of an older scientist or that of a young criminal or low achiever? Such rhetorical questions demonstrate that utilitarianism is unable to avoid discretionality, uncertainty, and discrimination.

The Italian position for allocation of medical resources looks to the principle of proportionality of care, with preference given to patients with the greatest possibility of therapeutic success. , However, this approach clashes with the previously mentioned Constitutional precept when framed in guidelines/recommendations and, again, when an age limit for the intensive care is set a priori. ,

The dramatic conclusion is that health operators, as well as ordinary people, are alone in the face of this current crisis. At the very end, the most reasonable solution is to give priority on a case-by-case basis to the individual who, in that moment under those conditions, and with the situation at hand, has the best chance of survival and of recovering from the infection, if provided the treatment under discussion. This criterion was that previously adopted in the case of school of the conjoined twins Mary and Jodie. Separation was required to prevent the death of both but was certain to cause the death of the weaker twin. The England and Wales Court of Appeals considered prevailing the interest of Jodie because Marie was self-designated for a very early death.

We are aware that even case-by-case criteria cannot ultimately avoid discrimination, for example, when dealing with patients with similar chances of recovery. In such cases, inevitably the “first-come, first-served” rule is in force, a seemingly impersonal fact that is not, however, a value judgment.

A case-by-case approach that depends on chance of recovery avoids a priori categorization, providing health operators with objectifiable, medical criteria. Therefore, it has universal value, freeing physicians from the burden of conscience and exposure to possible legal ramifications, as well as freeing legislators from making partisan decisions. Furthermore, it could help patients and families better comprehend the medical choices to which they are subjected.