Back with a vengeance?

At this point, inception of a triage system is likely to be required, as suggested in the Department of Health’s own pandemic flu guidance.

Triage will operate both to determine who should be admitted to critical care facilities and who should remain in those facilities. This poses stark ethical problems, already the subject of discussion by the Committee on the Ethical Aspects of Pandemic Influenza (CEAPI), set up by the Department of Health.

Allocating resources

The English courts have long recognised that health bodies are required to make difficult decisions about the allocation of scarce resources: see, for instance, R v Cambridge Health Authority ex parte B [1995] 2 All ER 129, [1995] 1 WLR 898.

However, as far as we are aware, they have never had to consider questions of rationed access to critical care or the application of Art 2 of the European Convention on Human Rights (the Convention).

The European Court of Human Rights has accepted that Art 2 arguably imposes a duty upon the state to provide the healthcare necessary to save life: X v United Kingdom [1978] 14 DR 31, E Com HR. In our view, however, it is highly unlikely that a court would find that the imposition of an appropriate triage system would itself breach Art 2 of the Convention.

Analogy

A useful analogy can perhaps be found in the South African case of Soobramoney v Minister of Health, KwaZulu-Natal [1997] 4 BHRC 308, concerning a challenge to the refusal of dialysis treatment due to insufficient hospital resources.

Notwithstanding a constitutional right to life and a right not to be refused emergency treatment, the constitutional court dismissed the claim on the basis that “there will be times when [the need for the state to manage the competing demands upon it] requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society”.

A claim could certainly be brought under Arts 2 and 14 of the Convention if the triage system implemented differentiated between patients on the basis of anything other than clinical criteria.

There is a vigorous debate in the medical profession about the extent to which it is appropriate to take age into account as a criterion.

The World Health Organisation appears to suggest in guidance published in 2007 (Ethical Considerations in Developing a Public Health Response to Pandemic Influenza) that age as a discriminating factor would be acceptable but the department of health’s recent guidance concludes this is inappropriate.

Criteria

Some expert commentators suggest a rigorous adherence to objective clinical criteria when operating a triage system, almost a “tick-box” approach. We consider a “blind” adherence to objective criteria would be characterised as an unacceptable abdication of clinical judgment.

The Department of Health’s guidance states the staged triaging structure for any particular locality should be created following local consultation. Transparency is of signal importance in the implementation of any triage scheme.

This places health authorities in the impossible situation of trying to ensure adequate consultation in their local area without engendering panic. However, implementation of triage without suitable consultation is likely to leave the health provider at risk of potential challenge on the basis of a breach of a legitimate expectation that such consultation would be carried out.

It is most unlikely that it would be possible to introduce a formal appeals process in any triage protocol, as this would work contrary to its purpose by delaying the rapid deployment of critical care resources.

One way in which to ensure a measure of public confidence is maintained is for the process to be reviewed on a regular basis by a senior clinician who is not involved in the making of triage decisions.

Despite all precautions, a health provider may take in the adoption and implementation of a triage protocol, given the extreme potential ramifications of such a practice, we anticipate that judicial review challenges are still likely to be brought against adverse triage decisions. In anticipation of such challenges it is incumbent on clinicians to record their decisions in a clear and comprehensive fashion.

Clinical approach

Individual clinicians are going to be placed in an entirely invidious situation, at every level. For their own legal protection, as well as for reasons of practical and moral support, it is advisable that triage decisions are carried out by more than one clinician, of more than one discipline.

This is particularly so when the decision is being taken to withdraw treatment from a person already in intensive care; while it might be ethically equivalent to withdraw treatment and to withhold treatment, the stakes will undoubtedly be (and be seen and felt by all to be) much higher when it comes to withdrawing treatment.

Alex Ruck Keene is a barrister at 39 Essex Street. E-mail: alex.ruckkeene@39essex.com Tom Armstrong is a partner at Kennedys. E-mail: t.armstrong@kennedys-law.com
 

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