By DEACON MIKE MANNO, JD
With the coronavirus sweeping the nation, and in some places overwhelming the medical response, there is increasing talk about rationing health care.
The New York Times has reported that state health officials there have met to discuss what factors to take into consideration, such as age, health, and likelihood of survival, in making the determination of who will get full care and who will only be provided comfort care with the expectation they will die.
In Washington State, The Seattle Times has reported that hospital officials there are meeting with ethics committees planning on how to, if necessary, ration healthcare. Cassie Sauer, chief executive of the state’s hospital association, is quoted as calling this a “crisis standard of care,” creating guidelines for health care workers on which patients should be treated and which should be left to die.
Sauer says her state is also working on triage plans to serve “the greatest number of people who are likely to survive.” She says since the coronavirus appears to be the most serious among the aged and those with underlying health problems, decisions will most likely be made along those lines. “They will be less likely to receive care, and more likely to die,” she said.
Medical and hospital workers in other states are having similar discussions about how to ration health care, if necessary, and who are the favored to receive treatment and who are not. And, are the elderly and disabled disfavored in this equation?
Families wonder, do we have to worry if our elderly family members are properly cared for during this pandemic, or simply left to die? What about our siblings or children with disabilities or Down syndrome? Will health-care workers simply keep them comfortable while they die without treatment? And how about my 75-year-old ex-Marine uncle who still runs a mile each day, is he too old for treatment?
Dr. Charles Camosy, associate professor of theological and social ethics at Fordham, writing in the New York Post, says:
“Bioethicists like me disagree over which values should guide rationing, but we generally agree about focusing on those who can benefit from the treatment. If the age of a patient makes it unlikely she would benefit, the hard truth is that limited resources will likely go to someone else.
“But then there is the ‘number of life years’ the patient could ‘enjoy,’ as the Italians put it. This consideration comes from providers’ growing tendency to think either implicitly or explicitly about how many ‘quality-adjusted life years’ their interventions might produce. It is a poisonously utilitarian and inherently discriminatory mentality. It is ageist — discriminatory against the elderly — and ablest — discriminatory against the disabled — to its core.
“In many European countries, for example, medical professionals and the wider elite culture view people born with Down syndrome as having such a low quality of life that they would be better off not being born. But anyone who loves someone with Down syndrome knows that they are some of the most joyful people on Earth. What if a corona victim competing for a bed or ventilator has Down syndrome? Even some U.S. hospitals are considering using ‘quality of life’ as part of their rationing process.”
Dr. Camosy is one of three prominent scholars who raised questions about rationing after reports such as those noted above began to circulate. The other two are Dr. Robert P. George of Princeton and Dr. Jacqueline Cooke-Rivers of Harvard. They raised the question with attorneys from the Freedom of Conscience Defense Fund and the Thomas More Society.
In response, Charles LiMandri, on behalf of the two entities, produced a five-page legal memorandum that opines that prohibitions of discriminatory health-care decisions violate federal civil rights laws.
“The present pandemic may be used to try to justify the ‘hard decision’ to issue policies rationing care on the basis of disability or age,” writes LiMandri. “Doing so, however, would violate federal law regarding invidious discrimination. It will open up the purveyors of those policies to legal liability.”
Thomas More Society Vice President Peter Breen explained, “We’re reading the unthinkable. . . . The horrific idea of withholding care from someone because they are elderly or disabled, is untenable and represents a giant step in the devaluation of each and every human life in America.”
The legal analysis poses the question: Is it legal to ration medical care on the basis of disability or age? The short answer, according to LiMandri, is no.
“Federal law requires that decisions regarding the critical care of patients during the current crisis not discriminate on the basis of disability or age. In this respect, anticipated longevity or quality of life are inappropriate issues for consideration. Decisions must be made solely on clinical factors as to which patients have the greatest need and the best prospect of a good medical outcome. Therefore, disability and age should not be used as categorical exclusions in making these critical decisions.”
The report goes on, “The Supreme Court has made clear that ‘handicapped in[dividuals] are entitled to ‘meaningful access’ to medical services provided by hospitals, and that a hospital rule or state policy denying or limiting such access would be subject to challenge under federal anti-discrimination provisions.”
LiMandri goes on to note that neither the federal disability nor the age anti-discrimination statutes contain an exemption based on crisis or emergency. In fact, he notes that the federal regulations provide “that the distribution of supplies…shall be accomplished…without discrimination on the grounds of race, color, religion, nationality, sex, age, disability, English proficiency, or economic status.” Age and disability discrimination are barred, he says, because “it is not for the government or private hospitals to decide whose life is more valuable.”
He concluded that withholding care based on age or disability would be contrary to federal law, which requires: “Decisions regarding the critical care of patients during the current crisis must not discriminate on the basis of disability or age. Decisions must be made solely on clinical factors as to which patients have the greatest need and the best prospect of a good medical outcome. Therefore, disability and age should not be used as categorical exclusions in making these critical decisions.”
As Dr. Camosy concludes his Post article, “If rationing arrives, we must stand up unambiguously for the marginalized and vulnerable, the elderly and disabled, lest what Pope Francis has decried as the modern throwaway culture deems them expendable.”
So there you have it: Health-care discrimination by age or disability is neither lawful nor ethical.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday on IowaCatholicRadio.com.)
Powered by WPtouch Mobile Suite for WordPress