By Dominic Wilkinson and Jonathan Pugh.
This is a crosspost from the Journal of Medical Ethics Blog.
This is an output of the UKRI Pandemic Ethics Accelerator project.
Last April, in the first wave of the COVID-19 pandemic, a number of academics, lawyers, doctors and ethicists wrote publicly about the need for national ethical guidance relating to resource allocation (e.g., see here, here, here). At the time there was concern that there would be insufficient intensive care beds to meet the needs of critically ill patients, and many thought that there needed to be clear guidance to doctors to tell them what to do if that occurred.
While a number of professional groups produced guidelines (for example, the British Medical Association, Royal College of Physicians, Intensive Care Society), no national guidance was ever produced. (A draft guideline was developed but rejected in early April 2020).
Almost 12 months and two pandemic waves later, in a legal ruling last week, Justice Swift refused the application of a number of COVID-affected families who had sought a judicial review on the absence of national guidelines. The ruling is not yet publicly available, but it appears that there were three legal arguments: that there was a statutory obligation to have contingency plans in case demand exceeded capacity, that rationing in the absence of national guidance would violate Article 8 of the Human Rights Act, and that it was “irrational” not to have a national guideline. Swift J apparently rejected all three of these claims.
We will focus here on the third of these – the most ethical of the arguments.
“iii) Rationality – it is irrational not to have a national guideline.”
Read More »Is it Irrational Not to Have a Plan? Should There Have Been National Guidance on Rationing in the NHS?