Pandemic Ethics: Infectious Pathogen Control Measures and Moral Philosophy

By Jonathan Pugh and Tom Douglas

Listen to Jonathan Pugh and Tom Douglas on Philosophical Disquisitions  discussing  Covid 19 and the Ethics of Infectious Disease Control, a podcast interview that was inspired by this blog.

Following the outbreak of the SARS-CoV-2 coronavirus, a number of jurisdictions have implemented restrictive measures to prevent the spread of this highly contagious pathogen. In January, Chinese authorities effectively quarantined the entire city of Wuhan, the epicentre of the outbreak, which has a population of around 11 million people. There has since been much discussion of various measures that might be implemented now or in the future to counter the spread, including various forms of social distancing, further mass quarantines and lockdowns, closed borders, mandatory testing and screening and even potentially forced treatment.

There are important questions about the lawfulness of infectious pathogen control (IPC) measures. Here, though, we focus on the moral justification of IPC. How can moral philosophy help us to think through when and whether different IPC measures ought to be employed?

To do so, we will briefly summarise our analysis of the different ways non-consensual medical interventions can be justified in infectious diseases control and criminal justice settings, which we originally published open access here.

 

Philosophical Approaches

 

IPC measures challenge fundamental tenets of medical ethics. It is widely accepted that individuals have certain rights that afford them protection against interventions to which they do not consent. For instance, it is widely accepted that it would normally be morally wrong to impose a medical treatment on a competent patient who refuses to consent to it. Moreover, in normal circumstances imposing fines on people for leaving their homes would be regarded as an unacceptable restriction of liberty. However, in the context of a pandemic, an individual’s decision to refuse to acquiesce to an IPC measure can have far-reaching consequences beyond their own well-being. After all, if their decision is respected, this may significantly contribute to the deaths of others. How then should we balance the individual’s rights—for example, to bodily integrity and freedom of movement—against the need to protect the wider population?

Simple versions of utilitarianism give us a very easy answer to this question. IPC measures will be permissible if they are predicted to bring about the greatest happiness for the greatest number. It is likely that a great many IPC interventions could be justified by these lights – however, many would say that this merely highlights the implausibility of simple utilitarianism. Many would reject this theory precisely because it seems to ride roughshod over the rights of individuals. Just as we should not be persuaded by the simple utilitarian argument in favour of killing one person to use their organs to save five others, neither should we be persuaded by a simple utilitarian argument in favour of highly restrictive IPC interventions.

Instead, we should adopt a more nuanced approach. One approach would retain utilitarianism as the point of departure, but tinker with it in various ways to avoid its most unpalatable implications. For instance, we might concede that, just as more aggregate wellbeing is better than less, so too are fair distributions of wellbeing better than unfair distributions. We might also set certain constraints on the ways in which better outcomes may be pursued. For example, we might claim that, whilst it might be permissible to infringe some rights (such as the right to freedom of movement) in the name of public protection, other rights (such as the right to bodily integrity) should be sacrosanct.

Another approach would begin from common sense moral thinking about cases that are in some way analogous to the use of IPC measures, but about which people tend to have clearer moral intuitions. For example, we might start from common sense thinking about cases of interpersonal self-defence. Most people think that, if someone attacks you on the street, it’s morally OK for you to defend yourself, even if this will inflict harm on the attacker, and even if the attacker is not to blame for the attack (perhaps his drink has been spiked with an aggression-promoting drug). However, most people will also think that there are limits on when and how much harm one can impose in such a case. Moral theorists have come up with a range of moral principles intended to capture our intuitions about such cases—and to specify when self-defence is justified, and when it is not. Typically it is held that at least two conditions need to be met for a defensive harm to be justified: imposing the harm must be necessary to prevent the threat, and proportionate to the harm that the threat poses. Extrapolating to the context of IPC, we might hold that IPC measures may be justified when necessary to prevent the spread of a disease from an infected (or perhaps just potentially infected) individual, and when proportionate to the harm that such spread is likely to cause.

Which of these approaches should we adopt? The utilitarianism-inspired approach, or the appeal to intuitions about self-defence? Here, moral theorists would disagree. However, it is possible to avoid having to decide between them by adopting a pluralistic approach to the moral justification of IPC measures. Such an approach draws on principles that are likely to be endorsed by both types of theory briefly outlined above.

 

4 Considerations To Guide A Pluralist Justification of IPC Interventions

 

I –  The Gravity Of Harm The IPC Measure Aims to Prevent

 

The gravity of the harm in question naturally matters for utilitarianism-inspired approaches; however, it will also be relevant to considerations of proportionality on self-defence approaches. The gravity of harm of an infectious pathogen can be affected by a number of different elements, for example, the typical severity of the infection, how many people will it affect, and how likely the spread of the infection is. In the case of the SARS-CoV-2 coronavirus, the evidence suggests that this particular infectious pathogen poses a significantly grave threat in these regards. However, we may also be concerned with broader considerations of fairness – for instance, are particularly at-risk individuals already unfairly disadvantaged in some way? If so, we might claim that the gravity of the harm posed by the pathogen has more weight because of it compounds existing unfairness.

 

II  –  The Effectiveness of The IPC Measure

 

If an IPC measure’s imposition of harm is to be justified by either a utilitarianism-inspired approach or an appeal to intuitions about self-defence, then that measure must have some effect in either preventing or mitigating the spread of the pathogen. Moreover, when assessing the effectiveness of the intervention, we must also attend to the opportunity of costs of diverting public funds to that measure rather than other preventative measures.

Much of the debate surrounding different IPC measures so far implemented in response to the coronavirus outbreak has indeed turned on the question of whether a particular measure will actually be sufficiently effective in either preventing or mitigating the spread of the pathogen. This is an empirical matter, which we are not well-placed to resolve with respect to any specific measure implemented in response to the coronavirus outbreak. However, there are some historical examples where moral concerns about IPC measures have focused on the lack of efficacy of the implemented measures, rather than the kinds of rights they infringe.

For instance, the use of quarantine in response to the SARs epidemic was criticised in some quarters on this basis. In general, quarantine measures are only likely to be significantly more effective than the alternative IPC measures if the pathogen in question is transmissible in its pre-symptomatic or early symptomatic stages. Moreover, it must also be possible to identify those who are likely to be incubating the pathogen, and to ensure that they comply with the quarantine. Whilst some quarantine measures implemented in response to the coronavirus outbreak could plausibly meet these conditions, those imposed in response to the SARS have been criticised as failing all three.

Beyond considering the effectiveness of individual IPC measures, there is the still broader question about which overall response strategy will be most effective in preventing deaths related to COVID-19 caused by the new coronavirus in the long term – for instance, there has been considerable debate regarding the UK government’s approach to tackling the virus by building herd immunity, rather than immediately introducing the social distancing policies that other countries have implemented. Again this is an example of where the moral justification of a response to the outbreak of an infectious pathogen turns to a considerable extent of key empirical questions regarding the effectiveness of different strategies and measures.

 

III  – The Least Restrictive Alternative

 

However, the effectiveness of IPC interventions and strategies is not the only dimension to the moral justification of IPC measures. Public health authorities commonly claim that IPC measures should only be implemented if they are the ‘least restrictive alternatives’ available. Whilst utilitarian-inspired and self-defence approaches can both endorse this broad claim, they will differ with respect to their interpretation of what ‘restrictiveness’ means.

Theorists inspired by utilitarianism are likely to cash out the restrictiveness of an IPC measure in terms of the harm that it causes to those subject to it, whereas proponents of the self-defence approach might instead prefer to understand restrictiveness in terms of the moral gravity of the rights that the intervention infringes. In both cases, the restrictiveness of an intervention will turn not only on the rights/interests affected, but also the number of people it is imposed upon, and the length of time for which it will be implemented.

On either approach, it is too simplistic to say that public health authorities should always use the least restrictive measure available to them. The reason for this is that more restrictive measures may be more effective at preventing the spread of an infectious pathogen. For instance, imposing mandatory quarantine is a more restrictive measure than recommending that at-risk individuals engage in voluntary self-isolation; however, it is arguably also more likely to be more effective in preventing the spread of the pathogen. At-risk individuals may choose not to comply, or they may be ignorant of the fact that that they are at risk. Accordingly, when we are assessing different IPC measures, we should not just ask “which is the least restrictive measure available to us?’; rather, we must ask “which measure attains the optimal balance between restrictiveness and effectiveness”.

 

IV  –  Proportionality

 

Proportionality requires that IPC interventions are not excessively restrictive in relation to the harms that they aim to prevent. Assessments of proportionality are a fundamental feature of self-defence approaches to public health. However, proportionality is also relevant to utilitarian-inspired approaches by virtue of the fact that such accounts have to assess the overall harmfulness of an IPC measure, taking into account both the harms the measure imposes, and those it aims to prevent. In the context of pandemic ethics, even highly restrictive interventions may be proportionate, given the scale of the harms that the effective IPC measures might prevent in this context.

One difference between the two approaches, however, lies in the factors they take to determine proportionality. Moral theorising about self-defence often posits that it is permissible to impose a greater amount of harm on an ‘attacker’ when that attacker is responsible for the threat that they pose, than when she is not. By contrast, utilitarian-inspired approaches often take responsibility to be irrelevant, focusing solely on the balance between harm imposed and harm averted. Interestingly, discussion of IPC measures tends to leave responsibility out of the equation, but it is not clear whether this is because it is taken to be morally irrelevant, because it is assumed that people with infectious diseases are seldom responsible for the threat they impose, or because it is assumed that determining whether an individual is responsible for an infectious threat would be too costly, contrary to other principles of medical ethics, or otherwise undesirable.

On either approach though, some might hold that even the least restrictive measure available for achieving a certain level of protection would be disproportionate, because it infringes particularly important/strong interests or rights, perhaps including the right to bodily integrity.

Of course, there will be considerable debate about where and how the balance of proportionality should be struck. For instance, in the present context, some have defended holding large public events, not by downplaying the risk posed by COVID-19, but rather by claiming that “we must not stop living” in our response to it. The implicit thought behind this kind of claim is that even effective measures might be deemed to be disproportionate by some parties if they are thought to be overly restrictive. Notably, in this regard the Health and Social Care Act 2008 in England and Wales permits the use of various IPC measures, but Part 2A 45E explicitly prohibits requirements for individuals to undergo medical treatment (understood to include vaccinations). This is an example of how the law too must unavoidably seek to achieve a balance between the moral considerations that we have highlighted here. Whether the law has got this balance right, and just how the balance of proportionality should be struck, is a topic for another day.