TRIAGE AND FAIRNESS IN THE NAME OF QUALITY OF LIFE? Mylène Botbol-Baum, Philosopher

Mylène Botbol-Baum , PhD, (Belgium)  is full professor in the faculty of Medicine, member of the Biomedical Ethics Unit ( HELESI ), Ethics Committee (INSERM France) and Professor in the Philosophy Department, at Université Catholique de Louvain in Brussels, Belgium.
Katherine Fishkoff has been addressing the issue of fairness from a regulatory perspective and the responsibility of the mayor of New York who has decided to protect medical doctors from trials when they take a reasonable decision in a context of emergency. These decisions raise dilemmas linked to conflict of interests and interpretations around the word fairness and even about what constitutes a fairness dilemma.
My first question, as a European benefiting from a providence state, is at what condition can we have fairness in an unfair system, i.e. a non-egalitarian context? What are our basic assumptions about moral reasoning when we address dilemmas in situation of uncertainty?
We must take seriously the health system capacity of anticipation that refers to public health at large since the issue of fairness is essentially a biopolitical issue, which has global consequences during a pandemic.
We know that the pandemic reduction was not a priority for the United States government, and many other opulent countries did not prepare adequately for it, so that the enormous responsibility to confront it befell on the medical providers. This imposed on them an uneven focus on present day patients, rather than the actual and prospectively sick. If we speak of fairness, we state that reducing the pandemic risk is a global public good inscribed in a complex temporality.
According to American bioethicists, referring to utilitarian principles, maximizing benefits is the most important principle, followed by the principle of care versus stewardship of resources.
Prioritization should aim at both saving the most lives and allowing empowerment of individuals post-treatment (definition of Dalys : to ensure future years of life with minimum handicap).
But what about the subjective perception of quality of life?
What kind of dilemmas are we confronted with, if we take the subjective dimension of quality of life seriously and not only qualys?
Dr Fishkoff underlines the dilemma of providing medical assistance below our standard of care to all patients, versus normal standards to fewer patients.
Is this a dilemma between equality versus quality of care?
How does the notion of fairness lead us to respond and resolve, or not, the dilemma? It seems to me that there is no dilemma here when the basic principle is care. We should indeed maximize care. For instance, New York has a good public health system and has prolonged the obligation of social distancing. It should therefore not suffer too much of scarcity of medical resources leading to dilemma.
If we want to solve this dilemma in terms of rational arguments, we can address:
Dr Fishkoff tells us that the extreme shortage of dialysis machines conflicts with caring for all, which does not support a systematic account of triage. The difficulty is that the modern notion of dilemma confronts us with an impossible choice, even though to exclude the possibility of dilemma moral rules are precisely established to prescribe the choice of one action and exclude the other. This dilemma problem can thus be divided into two correlated parts:
  1. The epistemological choice where it is logically difficult to determine what is my duty, when facing scarcity of ventilators for instance (either / or).
  2. When both actions are necessary, but I can only do one of them, I encounter my finitude and my own vulnerability to act as an agent of choice.
So that any agent of care, or doctor here, is confronted with two sorts of conflict of obligation narratives:
  1. One obligation is stronger than the other (so the conflict is not a real one).
  2. The two obligations are equivalent, and I am facing an unsolvable dilemma because, in terms of fairness, there is no hierarchy between the two choices.
But during a pandemic, which is a natural and societal threat, we are facing the fact that rules can be consistent only if the context of disruptions of my narrative representations, my narrative world, can remain a consistent world as well…
In this disruptive moment, one realizes that rules are only useful if there are circumstances in a possible world of coherence, which is precisely what we lose in a situation of emergency, where all priorities seem to be reversed.
Choosing is the first duty in a situation when there is a clear hierarchy between the duty of care and the efficiency rule. In a state of uncertainty and urgency, the agent chooses first and foremost according to what I called her moral intuition. Facing a dilemma, she will use reason or moral rules to prioritize her decisions. These two states might be in tension with the efficiency logic of a public health ethics, where the collectivity is supposed to come before the individual interest of the singular patient… as if the collectivity was not constituted by individuals. Therefore, in a situation of uncertainty, I would prefer to advise the bottom up approach that combines moral intuition and rationality around the notion of quality of life. The reason is that it associates fairness as a form of loyalty to a subjective vision of quality of life or standard of living.
Indeed, the concept of fairness was developed within a framework in which tastes or values, although varying among individuals, remain constant.
We understand at this stage that the notion of fairness is hard to use in the contingencies of a pandemic. Perhaps because, during a pandemic, socially accepted values can be toppled upside down. This could explain that, in New York, egalitarian care became the priority over the rationing of care, which is the accepted cultural model in a highly competitive society based on meritocracy.
The climate of uncertainty and the sudden lockdown allowed for the surrealist scenario that all former economic priorities have been put aside from a quasi-species survival instinct.
So, what could have been a dilemma in normal settings? Economics versus Health becomes an evidence in terms of moral intuition in times of pandemics.
This fact is very reassuring about the human pragmatic capacity to develop solidarity, above the logic of distributive justice and the utility level associated with it.
In Amartya Sen’s terms, “Quality of life should come before Qualys in order to maintain capabilities and functioning ” (33). Life expectancy after the pandemic in opulent societies, in terms of future opportunities and capabilities, are precisely not invariant. They are related to the well-being and capabilities of surviving individuals.Dalys is a measure of the burden of diseases which combines time lived with a disability and the time lost due to premature mortality, estimated with respect to a standard age-dependent life expectancy. So, the notion of time lost because of the burden of a disease is very important to correct the abstract notion of fairness.
This leads me to have a critical gaze on a notion of fairness based on mere rationality.