By Julian Savulescu and James Cameron
Cross-posted with the Journal of Medical Ethics Blog
Countries all around the world struggle to develop policies on how to exit the COVID-19 lockdown to restore liberty and prevent economic collapse, while also protecting public health from a resurgence of the pandemic. Hopefully, an effective vaccine or treatment will emerge, but in the meantime the strategy involves continued containment and management of limited resources.
One strategy is a staged relaxation of lockdown. This post explores whether a selective continuation of lockdown on certain groups, in this case the aged, represents unjust discrimination. The arguments extend to any group (co-morbidities, immunosuppressed, etc.) who have significantly increased risk of death.
The Ideal of Equality and the Concept of Unjust Discrimination
Aristotle described the principle of equality as treating like cases alike, unless there is a morally relevant difference.
For example, if men are allowed to vote, and women are not, the only difference is sex, and that cannot of itself make a difference to the capacity or performance of voting – it involves a mere chromosomal or anatomical difference. Unless one could point to an inherent property that tracked with sex that affected ability to vote, then this violates Aristotle’s principle and is unjust discrimination.
Discrimination is not always unjust. The government invest millions in screening women for breast cancer, but not men, even though breast cancer does occur in men. The reason for this is that breast cancer is much more likely in women. So you will save more lives with the limited resource the government has available for prevention and treatment of breast cancer if you (justly) discriminate between men and women in this way.
This is not sexist because there is a morally relevant difference sufficient to justify different treatment: the probability of developing breast cancer. (However, if there were a better, more accurate proxy for breast cancer risk besides sex, say some genetic mutation, then to continue to discriminate on the basis of sex would be unjust, all else being equal.)
Isolation and Quarantine
The same principles apply to isolation and quarantine. Those who are quarantined are those most likely to have been in contact with a pathogen. Early on in the COVID-19 pandemic, those who had been in contact with someone with COVID-19 or who had travelled were tested, then later isolated. This is because they were statistically more likely to have COVID-19.
Selective Isolation of the Elderly
One possible delockdown strategy is to allow those in the workforce to return to work and social life, but continue to isolate the elderly. Call this selective isolation of the elderly. This would not be permanent but temporary until there is sufficient herd immunity or a vaccine/treatment emerges.
Now we cannot settle here where exactly the cut-off for “elderly” is. It will have to correlate with the elbow of an exponential curve and be easily enforceable. And any cut-off will have an element of arbitrariness. For the sake of argument, here we will pick 70. The average age of death in Italy from COVID-19 is 78. Those over the age of 70 are much more likely to die and more likely to need hospitalisation (and also much less likely to be employed).
This has already been practised in Sweden with no significant overburdening of the health system. New Zealand gave advice that those 70 and over should not go to the supermarket while under 70s can.
Currently lockdown aims to “flatten the curve.” Some countries, like New Zealand, are aiming to eradicate it but this seems very unlikely in countries like the UK where there is already a significant pool of infected individuals and prolonged border closure is unlikely to be effective or tolerated. The aim is to slow infection so that hospitals are not overwhelmed until a vaccine or treatment arrives.
However this can also be achieved by preventing those most likely to become ill from becoming ill: those who are elderly or who have relevant comorbidities.
Would this constitute unjust discrimination against the elderly? Would it be Ageism?
Selective Lockdown of the Elderly and Ageism
Some have claimed it would. A Daily Mail headline reads:
“It’s divisive and wrong — please don’t stigmatise my generation: Former Home Secretary DAVID BLUNKETT, 72, says ordering the elderly to quarantine themselves is unfair.”
“All it would do is divide society on grounds of age – and that is as wrong as separating people because of their race or gender.
“Surely we oldies should have the right to choose our own destiny. We understand the risks. We know there are higher mortality rates from this virus among the elderly.
“I don’t know of any evidence to suggest that pensioners spread COVID-19 more virulently than younger people either.”
But the issue, unlike usual quarantine, is not their spreading the virus but the probability that they will require NHS resources if they do become ill. It is not a question of direct harm to others, but indirect harm to others through use of a limited resource.
So is it unjust discrimination to selectively isolate those most likely to get sufficiently ill to need a limited public resource? No, it’s analogous to only screening women for breast cancer on the basis of their higher probability of getting sick.
It is using age like sex as a basis for a medical decision only because that feature correlates with a robust statistically higher likelihood of getting ill. That feature is the best available proxy, given the efficiency limitations on systematically screening for a more nuanced risk factor for a morally relevant outcome – i.e. the likelihood of getting seriously ill. Isolating only the elderly for COVID-19 is no more ageist than only screening women for breast cancer is sexist.
One might object that breast cancer screening is voluntary while lockdown is not. Indeed, the real issue is coercion and loss of liberty. We will come to that. For the present, it is worth noting that if coercion is bad, it is worse if more people are coerced (complete lockdown) than if fewer are (lockdown elderly). And coercion is used in standard quarantine on the basis of risk of harm to others. That is precisely the same justification as in the elderly except it is indirect harm to others through consumption of resources.
Symbolic value of equality
One objection to this proposed policy is that, as Blunkett said, this stigmatises a group. Equality has a symbolic value. But how much should we pay for this symbolic value to protect one group at the expense of another group
Often quite a significant amount. I (JS) remember a few years ago my 82 year old mother being directed into a body scanner at Heathrow. Although some staff deny it, these scanners use ionising radiation. This increases cancer risk. They reassure you by telling you it is the same amount or less than you would receive from cosmic radiation on the same flight. But flights are dangerous too. Over the whole population (billions) being screened, some small number of people probably get cancer from this exposure.
And of course, it would be easy to tell that there was virtually zero chance of my 82 year old mother being a terrorist. You could plug in her data from several sources and come up with a probability that is next to zero (age, sex, religion, travel history, places where she has lived, etc).
But we don’t profile people – we expose everyone to radiation. The reason for that is equality and avoidance of stigmatisation.
The Difference with Isolating the Elderly and Levelling Down Equality
But isolating the elderly is different from screening people more likely to be terrorists at the airport. The young male who attends a radical Islamic mosque has nothing to gain from being selected for enhanced screening. The elderly do – they are the ones most like to die.
And there is another reason why isolation of the elderly is different from profiling terrorists. The costs of applying the lockdown to everyone, and not just the elderly, are massive. Not only directly in terms of immediate loss of well-being, jobs, delayed or forgone medical care, but long term through economic collapse and subsequent effects on health and well-being.
Not only does selective isolation of the elderly benefit the healthcare systems and allow economic recovery and participation in social life of the rest of the community, it also benefits the elderly by lowering their chances of dying from COVID-19.
While one reason for not profiling people for risky screening procedures is to prevent stigmatisation, it is also an example of “levelling down equality.” In order for there to be equality, people who could be better off are made worse off in order to achieve equality. As Derek Parfit has famously put it, one way to achieve equality for the blind is to make everyone blind. That is what levelling down equality requires. If we can’t cure everyone’s cancer, we cure nobody’s because that will achieve equality.
Levelling down equality has nothing, in our view, to be said in favour of it. But when we lock down those at low risk as well as those at high risk, that is what engage in: levelling down equality.
Adverse Effects on the Elderly
Blunkett points out that isolation can have mental and physical adverse effects on the elderly. That is surely true. He was writing before the lockdown. But now everyone is locked down experiencing those side effects. To argue that low risk people should not be released from lockdown because of these effects on the elderly is to advocate levelling down equality. If not everyone can have the benefit, no one shall, this principle advocates.
The effects on the elderly may be worse. They may have fewer social networks and already be more isolated. And they may have only one or two years to live, so a year in isolation is a relatively greater loss. These are important considerations.
One solution is to give greater weight to liberty and tolerate its costs. One could allow the elderly to deisolate while also restricting access to health resources, such as isolation or intensive care. Using age as a determinant of access to resources is not necessarily discrimination. However, societies have been reluctant to embrace this strategy to avoid depleting limited health resources. They have preferred total lockdown with likely economic disaster.
The Real Issue: Liberty
The real issue is not equality, but liberty. Are the restrictions of liberty reasonable and proportionate? At present, everyone’s liberty is restricted. We should prefer less liberty restriction to more. Is the liberty restriction of the elderly for up to a year a reasonable restriction? That is the essential question, not one of equality. Given the benefits to them, it may well be. Importantly, it is less justifiable to people who are at lower risk of themselves getting seriously ill.
Conclusion
Ethically, selective isolation, as currently practised in Sweden, is permissible. It is not unjust discrimination. It is analogous to only screening women for breast cancer: selecting those at a higher probability of suffering from a disease.
Even if it were unjust discrimination, it would be proportionate because it brings benefits to the elderly and is proportionate and necessary given the grave risks to the economy and subsequent well being of the population of an indiscriminate lockdown. To oppose selective lockdown is to engage in levelling down equality which is itself morally repugnant.
[Post updated on 23 April 2020 to clarify the New Zealand advice was guidance and not law]
Thanks for this blog. I do not agree that lumping all over 70s is not agist. Their age is only one characteristic. You do not consider any of the other characteristics or outcomes of this blanket characterisation of a group. Also you provide no statistics, for example – are increased deaths in the over 70s clustered in care homes? People clustered are more at risk e.g. on aircraft carriers. Are those dying already in the category of vulnerable due to health condition – not just age? Some careful analysis of the evidence would be useful to see.
You do not comment on the ethical outcomes of lumping everyone over 70 into a category e.g.
1. The mental well-being of over 70s will be at risk – it may well result in more suicides more mental health care requirements, more support.
3. It will mean that childcare is unavailable for thousands of families – how will this be dealt with?
4. The relationship of children and grandparents will be fractured or irretrievably broken – what toll will this put on family relationships?
5. Many people over 70 are salaried employees of organisations and dynamic members of our workforce – how will their salaries and contribution be addressed?
6. Voluntary organisations have a large proportion of their volunteers in that age category – how will this be addressed?
7. Many people over 70 are fitter and healthier than younger people why are you lumping all ‘over 70s’ together as if they were equally vulnerable (and they are not) – what is the rationale?
8. Many non-exec directors, business leaders, MPs House of Lord Peers, are over 70 – how will you forcibly ‘retire’ such categories for over a year? For example, MPs over 70 include:
• Jeremy Corbyn (Labour), MP for Islington North, 70
• Sir Peter Bottomley (Conservative), MP for Worthing West, 75
• Barry Sheerman (Labour Co-operative), MP for Huddersfield, 79
• Sir Roger Gale (Conservative), MP for North Thanet, 76
• Dame Margaret Beckett (Labour), MP for Derby South, 77
• Sir Bill Cash (Conservative), MP for Stone, 79
• Sir George Howarth (Labour), MP for Knowsley, 70
• David Davis (Conservative), MP for Haltemprice and Howden, 71
• Clive Betts (Labour), MP for Sheffield South East, 70
• Sir Paul Beresford (Conservative), MP for Mole Valley, 73
• John Spellar (Labour), MP for Warley, 72
• Dame Margaret Hodge (Labour), MP for Barking, 75
• Gordon Henderson (Conservative), MP for Sittingbourne and Sheppey, 72
• Graham Stringer (Labour), MP of Blackley and Broughton, 70
• Sir Christopher Chope (Conservative), MP for Christchurch, 72
• Sir Greg Knight (Conservative), MP for East Yorkshire, 70
• Sir David Evennett (Conservative), MP for Bexleyheath and Crayford, 70
• Virendra Sharma (Labour), MP for Ealing Southall, 72
• Bob Stewart (Conservative), MP for Beckenham, 70
• Pauline Latham (Conservative), MP for Mid Derbyshire, 72
• Jack Dromey (Labour), MP for Birmingham Erdington, 71
• Marion Fellows (SNP), MP for Motherwell and Wishaw, 70
• Marie Rimmer (Labour), MP for St Helens South and Whiston, 72
• Tony Lloyd (Labour), MP for Rochdale, 70
Absolutely spot on – brilliantly put.
As I said before, categorising by age is not a sensible way of protecting the health service from being overwhelmed (except perhaps by mental/emotional distress). A better way is by selecting people who are at higher risk because of health conditions of one kind or another.
NHS Digital has done this – using an algorithm that ‘initially identified around 900,000 patients, and this has now increased to around 1.28 million patients.’ They go on to say, ‘We expect GPs and hospital doctors to add other patients to the list that have not been identified by the national algorithm.’
You can look at the methodology of the algorithm on their website. https://digital.nhs.uk/coronavirus/shielded-patient-list. These people identified have now received a text from the NHS asking them to take specific extra precautions. A friend of mine aged 90 has not received the text. Nor have others I know in the over 70 category.
If it is thought to be right and ethical to make an arbitrary category, consider fat men (e.g. Boris Johnson, aged 55), as they appear to be in a higher risk group http://www.rfi.fr/en/science-and-technology/20200410-coronavirus-hits-men-and-overweight-people-harder-than-others-researchers
Tookie Davenport’s comment (above) is spot on.
To use age per se as a criterion is very, very discriminatory – especially as it is arbitrarily put at the very young (older) age of 70. There are many people of 70 and older who work full time, take part in active sports such as walking and horseriding, and a man in Japan ran a marathon at age 100 not long ago.
The risk factor is in itself another debate, but for the sake of this argument, let us say it does exist. Many fit older people would rather die in freedom than live a miserable, unnatural, isolated existence in solitary confinement – which would indeed severely impact on their mental health and probably physical as well, as their muscles atrophy from lack of exercise. It is they who are deemed to be at risk, not those they might choose to associate with. Let them take that risk if they want.
It is well known that older people are written off – denied treatment, food and water (i.e. starved to death) in hospitals, and Do Not Rescuscitate notices are hung at the end of beds in hospitals and care homes. So it is hypocritical and disingenuous to claim that it is for their own sake that this draconian measure has been put in place. It is straightforward discrimination and hopefully can be challenged in law.
Although key workers are offered care for school-aged children those whose children are under that age get no help. They are often only able to work due to grandparents looking after them. This we are not allowed to do now even if we wish to and other than doing this stay in lock-down.
I don’t want to be preserved as in a museum when the most useful thing I can contribute in the current situation is to support my children in their stressful role as key workers.
I agree entirely with Tookie Davenports comments. The age of 70 is arbitrary and discimatary.I am a few weeks into my 70s and am both horrified and frightened of the thought of 18 months incarceration.I resent being called vulnerable and to being dictated to by anonymous scientists.My GP whom I have not visited for some time I may add should be the one to judge whether I am vulnerable or not.Incidentally how will this invasive and draconian rule be enforced.
“… engage in levelling down equality which is itself morally repugnant.”
This statement appears to originate solely from a social group perspective with equality limited to the equality in a provided good or service.
Does that perspective facilitate an apparent distaste allowing the equating of particular social situations with moral repugnance? The words leveling and equality could indicate this includes individuals as well as social groups.
Looking another way: Consider the ideal circumstances where all are seen equally and each is provided with all of their individual needs. That does not equate to leveling down. So other facets appear to be involved which turn equality on its head allowing those in lesser – or better – circumstances to be viewed differently.
Moving back to the actual environment today, and most individuals have reduced their social expectations during this pandemic. So yes, an exercised social responsibility from many individual circumstances may be seen as leveling down, but repugnant responsibility? Treating motivational matters as morally relevant may provide another point.
In the UK Digital NHS has already compilied a list of ‘shielded patients’ who are advised to take extra care on coronavirus. This list is not categorised by age but by medical conditions https://digital.nhs.uk/coronavirus/shielded-patient-list identified by a ‘national algorithm’. The website says, ‘We initially identified around 900,000 patients, and this has now increased to around 1.28 million patients. We expect GPs and hospital doctors to add other patients to the list that have not been identified by the national algorithm.’ The website explains how the algorithm selects.
This seems to me to be a much better way of ensuring the health services are not overwhelmed. As I said before age is not a good method of categorising those who are likely to put a burden on the health services. (If you want to have an arbitrary category, perhaps fat men smokers would be one to consider http://www.rfi.fr/en/science-and-technology/20200410-coronavirus-hits-men-and-overweight-people-harder-than-others-researchers?)
As I said before, categorising by age is not a sensible way of protecting the health service from being overwhelmed (except perhaps by mental/emotional distress). A better way is by selecting people who are at higher risk because of health conditions of one kind or another. NHS Digital has done this – using an algorithm that ‘initially identified around 900,000 patients, and this has now increased to around 1.28 million patients.’ They go on to say, ‘We expect GPs and hospital doctors to add other patients to the list that have not been identified by the national algorithm.’ You can look at the methodology of the algorithm on their website. https://digital.nhs.uk/coronavirus/shielded-patient-list. These people identified have now received a text from the NHS asking them to take specific extra precautions. A friend of mine aged 90 has not received the text. Nor have others I know in the over 70 category. If you think it is ethical to make an arbitrary category please consider fat men (e.g. Boris Johnson, aged 55), as they appear to be in a higher risk group http://www.rfi.fr/en/science-and-technology/20200410-coronavirus-hits-men-and-overweight-people-harder-than-others-researchers
First, “Elderly” is an ill-defined word that should not be used to make laws or public policy.
Secondly, there are many medical studies that point out that the critical health factor is the “biological” or “health” or “real” age of a person – i.e., their overall fitness as indicated by their state of health, muscle mass, aerobic activity etc. That is, a person of 70 years old could be much more fit than a person of 40. It has not been proven that the above indicators of fitness can also affect a 70 year-old’s ability to weather the virus. However, it has not been shown to the contrary either. Therefore, how can it not be discriminatory to force fit 70+ year olds to stay inside when they have been devoting much time and effort for many years to obtain fitness to withstand and avoid many of the maladies often found with aging people who don’t take care of themselves? And they have certainly saved the NHS much money over the years by not using it as much by staying in good health. One would think that they deserve some recompense.
In addition, many of the elderly who died were in nursing homes where their overall health was compromised, making them susceptible. It is not valid science to take this gross statistic and extrapolate to a much wider group of people in different health and living circumstances.
Thirdly, statistics have shown also there are very high correlations between underlying preexisting health conditions and covid-19 morbidity, including obesity, high blood pressure, cardiac disease, lung disease. These unhealthy groups -including many non-elderly – strain the health system at ALL times, not only in times like this when we are experiencing higher costs of health care, Using your logic, would you then include obviously obese people, people who smoke, in your new forced lock down? Or should we prevent them from using NHS because they are a drain on it?
Fourthly, other statistics show that persons of color and of previous depravation have a much higher risk of death and severe symptoms (note the statistics in 1May2020 Financial Times on incidence in Black Caribbean population). Based on your logic, we should lock them down too. What would be the response to that recommendation – that blacks people should be continued to be locked down while richer white younger people got to get on with their lives, make a living? Can you imagine the outcry ?
Finally, an analogy which is appropriate to this situation: In the justice system, the bias is that it is better to let some one guilty go free in order to make sure that someone innocent is not imprisoned. It is clear that the UK system as well as most advanced countries’ systems of justice heartedly endorse this choice. And we should do the same by not discriminating wholesale in this lock down situation.
So very, very well said and irrefutable.
The comparison of discrimination against over 70s with discrimination against men by screening women only for breast cancer is a questionable one. There is age discrimination in this service as well, since women are only routinely screened until they are 70.
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