The COVID-19 pandemic challenges all of us in multiple ways, as individuals, families, communities, societies and a world. Some of us face additional challenges, for instance, healthcare workers and those providing essential services, who voluntarily risk infection, and those with special responsibilities, in particular, our governments and health and social policy decision-makers.

As an ethicist, I have been receiving many enquiries about the ethics that should govern COVID-19 decision-making. I give a few examples below.

“We’re all in this together”

First, however, let us note that this is a situation where we can start our conversation from agreement, rather than disagreement, as is more common in ethics discussions. Because we are all at risk and want to protect everyone and stop the harm of this horrible virus, we can have an experience of all belonging to the same moral universe – “we’re all in this together”.

Conclusions as to the ethics that should govern COVID-19 decisions can vary depending on the level of the decision-making, that is whether it is at the individual, institutional or societal level.

For example, an individual doctor has a “primary ethical obligation of personal care to each patient” and must put that patient’s “best interests” first. A hospital must take into account the “best interests” of all patients which means they must consider just allocation of resources and efficiency and effectiveness of their use. A government has even wider considerations to incorporate in its decision-making, but especially protection of vulnerable people and maintaining the “common good”.

The ethics of uncertainty

Good facts are necessary for good ethics and, indeed, for good law. Sometimes facts are unavoidably uncertain so we need to develop an “ethics of dealing with uncertainty”. That requires, at the least, transparency and honesty, admitting one’s errors and having the courage to say, “I don’t know” when that is the case, even though it might be pounced on by an opponent to gain political points.

These are not situations for political campaigning and I believe Australian politicians have set a good example in this regard. Excuses for lack of honesty and transparency such as “we mustn’t panic the public” are unacceptable. As the public, however, we must not demand honesty and transparency and then wrongfully punish our leaders for complying with those requirements when we do not like what we hear.

COVID-19 can face us with what is called in ethics “a world of competing sorrows”, which means there is no “no harm” option available and the choice is whom to harm. Two people needing a ventilator to have the best chance of surviving COVID-19 and only one ventilator being available or all the ventilators are already in use are examples of such situations. Who should receive the one ventilator? Should a person be taken off a ventilator to make one available for another person? In either case, who should decide? On what basis? These are vexed and very difficult ethical issues.

There have been instances in other countries of setting an age limit on ventilator support for people with COVID-19, even as low as 65 years old, but more often over 80. This is discrimination purely based on age, which is both ethically wrong and possibly legally actionable. That said, it is also true that even with treatment elderly people have a worse prognosis for surviving COVID-19 infection than the vast majority of younger people; assessment of the likely benefit of any given treatment to a given person is always a valid consideration in allocating medical resources, especially when not all people can be treated.

Care needs to be taken that a valid consideration — such as a likely lack of medical benefit for an elderly person as compared with a younger one, or for a person with a disability — is not used as a cover for unethical discrimination based on age or disability. We have seen this occur in other scarce medical resources allocation situations, for example, organs for transplantation.

The need for treatment is an ethically valid consideration. We should give preference to those most in need. As well, social justice demands a preference in favour of the most disadvantaged, most vulnerable members of our community. At present in Australia that would include many people in aged care or nursing homes.

It is more than a sobering fact, indeed, it should be a call for at the very least immense concern, that worldwide half of the people who have died from COVID-19, including in Australia, have been residents of aged care or nursing homes.

Although no fault might be involved, it is beyond horrific, as has happened in NSW, to think of elderly people being “locked in” a facility where COVID-19 is rampaging and their seeing their co-residents die. There are also anecdotal stories circulating, which might or might not be correct, that residents of some of those facilities are not being taken to hospital when they should be and that ambulances have refused to transport them. They are simply allowed to die. Their families are locked out and they die alone. Depending on all the facts, these can be serious breaches of ethics and human rights and could result in legal liability.

“Ethics preparedness”

We need “ethics preparedness”, which can include guidelines or policies listing ethically valid considerations – or even identifying ethically invalid ones – to guide decision-making regarding COVID-19 at all levels, but, in my view, it is unethical to have a predetermined policy, which would automatically exclude some people from treatment.

In short, each case must be considered individually and on its merits in making a decision regarding access to medical treatment, especially when it involves the allocation of life-saving resources. Moreover, simply following policies or guidelines does not automatically guarantee either the ethical validity of decisions or legal immunity for them. In such situations. we should also ask who and what decisions are responsible for the shortage of resources.

The COVID-19 pandemic raises a multitude of difficult ethical issues relating to care for individual patients and their families; risks for healthcare professionals; coping of healthcare systems; complex health and public policy decisions for Government, including regarding international relationships, economic fallout, and so on. What we decide in relation to dealing with COVID-19 will have impact well beyond healthcare and our national borders and far into the future.

Margaret Somerville

Margaret Somerville is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor Emerita in the Faculty...