BY: JASON T. EBERL, PhD and G. KEVIN DONOVAN, MD, MA
The COVID-19 pandemic has prompted an unprecedented need for health care institutions to develop and implement triage policies for allocating scarce resources if they experience a surge of patients needing life-sustaining treatment for severe acute respiratory distress. In the absence of definitive guidance from the Church's Magisterium concerning specific requirements of such policies, there is space for moral disagreement concerning triage criteria and allowable practices.
One point of disagreement among policies developed by Catholic health care institutions is whether mechanical ventilation may be unilaterally withdrawnfrom one patient, who has a relatively poor expected outcome, to benefit another who is predicted to survive to discharge. We understand "unilaterally" to mean that ventilation is withdrawn without, and perhaps against, the explicit consent of the patient or an appropriate surrogate. As Catholic health care leaders and ethicists develop or revise institutional triage policies, understanding the arguments on both sides of this vexed question will better inform their discernment of whether to allow this practice.
Development of Triage Policies
Under non-triage conditions, it is generally held in secular and Catholic bioethics that, if one has sufficient ethical justification to withhold a life-sustaining treatment, one has equivalent justification to withdrawan already implemented treatment.1 Standard justifying criteria include autonomous refusal by the patient or their surrogate, disproportionate balance of the anticipated burdens and expected benefits of the treatment, or physiological futility.
In triage situations, it is widely asserted that one may withhold a scarce life-sustaining treatment from one patient who may not sufficiently benefit from it and allocate it to another in greater need, or who is in equivalent need but seems to have a better chance of benefitting from the treatment. Criteria for assessing need and likelihood of benefit differ across policies.2 In line with secular triage policies, several policies that have been proposed by Catholic health care institutions also allow for the unilateral withdrawal of life-sustaining treatment so that it may be reallocated to another patient. One possible justification of withdrawal and reallocation is to appeal to the rule of double effect.3 One such policy states,
"Withdrawal of Invasive Mechanical Ventilation is ethically permissible, but not obligatory, if:
- There has been neither stabilization nor improvement in clinical status in 21 days;
- There is the development of complications (i.e. pulmonary hemorrhage, pneumothoraxes);
- There is the development of additional organ system failures; and/or another patient is deemed to be more likely to benefit from these therapies."4
Another Catholic policy that justifies unilateral withdrawal states the following:
"In mainstream bioethics in the United States and Catholic healthcare ethics, there is consensus that there is no moral difference between withholding and withdrawing a life-prolonging treatment. If there is only one ventilator available, it is ethically sound to provide it to a patient whose prognosis is good rather than another whose prognosis is dismal. Similarly, it is ethically equivalent to remove a ventilator from the latter patient to give it to the former. While informed consent and shared decision-making are important values in medicine, they are not absolute and cannot eradicate the duty of healthcare facilities to steward community resources responsibly in a time of disastrous scarcity such as a pandemic."
Not every Catholic health care system or facility's triage policy, however, allows for unilateral withdrawal and reallocation unless one of the standard ethical justifications noted above is in effect. In other words, the rule of double effect does not justify unilaterally withdrawing life-sustaining treatment from a patient who is benefitting from it. Here is a statement from one Catholic hospital's triage policy:
"Ventilator care should not be withdrawn unilaterally based solely on the judgment that another patient has a better chance of recovery. Ventilator care can be withdrawn, per hospital policy, based on a discussion with the patient or surrogate that the burdens of treatment outweigh the benefits. Ventilator care can be unilaterally discontinued if it becomes futile (if it is judged that, to a reasonable degree of medical certainty, the patient will not survive to hospital discharge even if ventilator care and other life sustaining treatments are continued)."6
This position is also affirmed by Fr. Tadeusz Pacholczyk of The National Catholic Bioethics Center:
"It is generally immoral to take away without consent the ventilator of a patient still in need of it in order to give it to another patient who may die without it.
In situations where a patient on a ventilator is clearly deteriorating, and where COVID-19 and its complications can reasonably be expected to cause the patient's death even with continued ventilator support, dialogue should be initiated with the patient or his designated health care agent to obtain consent to remove the ventilator."7
It is important to emphasize that the extraordinary circumstances of a pandemic do not, and should not, require abandoning or altering ethical values and principles. Rather, this is precisely the type of situation in which "ethics as usual" ought to guide policy formation and clinical decision-making.8 In this vein, we will present point/counterpoint arguments concerning whether Catholic ethical principles, specifically the rule of double effect, support unilateral withdrawal and reallocationof ventilators in triage situations. Our aim is not to endorse a single definitive answer to this question, but rather to outline the ethical rationales for and against such a policy being adopted by Catholic health care institutions to help inform continued policy development.
Does the Rule of Double Effect Support Unilateral Withdrawal in Triage Circumstances?
The rule of double effect is widely applied to justify various treatment interventions within Catholic health care. Paradigmatic cases include the administration of palliative medication that may hasten death or the removal of a gravid cancerous uterus resulting in fetal demise. The rule has held since the writings of Thomas Aquinas on a person's right to self-defense, in which he affirms that one may permissibly perform an act aimed at an intended good end that also has a foreseen and unavoidable side effect that is outside of one's intention.9 The principle has evolved to include the following standard criteria:
- There is a good end that one intends to attain by the action performed;
- The action performed is itself morally good or at least neutral;
- The foreseen negative effect is not intended either as an end or as a means by which the good end is brought about;
- The good end attained is proportionate to the negative effect caused by one's action.10
To establish a baseline, let us first see how these criteria are satisfied in a non-triage example of ventilator withdrawal due to its having been autonomously refused by a patient's duly-appointed surrogate. First, one is aiming at the good of respecting the patient's best interests based on the surrogate's reported assessment. Second, the act of extubating a living patient from a ventilator is itselfmorally good or at least neutral; otherwise, one could not extubate a patient who had recovered from an acute respiratory episode and was able to be discharged. Third, the negative effect that results from extubation — the patient's death — while foreseen and unavoidable, is neither sought as an end nor is it a means toward attaining the end of acting in accord with the patient's best interests; if the patient were to miraculously start breathing on their own, it would not be counted as a failure. Finally, the good of acting in accord with the patient's interest in not living in an ICU bed perpetually hooked up to a ventilator, as validly assessed by their surrogate, is arguably proportionate to however many years of continued biological life they could have experience if ventilation had continued.
The Argument for "Yes, It Does"
Now, let us consider the case of unilateral withdrawal under circumstances requiring triage decisions. First, the intended good end is to make a vital resource available to save a person's life, which immediately points to a fundamental difference between the two cases. In the baseline case, the intended good end and foreseen negative effect both accrue to the same person; in the triage case the negative effect is borne by one person while the good is enjoyed by another. Consider, though, Aquinas's original case, in which one may kill an unjust aggressor in self-defense; there, too, one person benefits at another's expense. Admittedly, Aquinas's example involves an unjust aggressor who is directly threatening one's life, which differs from the triage scenario. However, the fact that the person killed might be construed as meriting death by virtue of their guilt is immaterial insofar as a) Aquinas holds that only a sovereign authority can legitimately kill someone guilty of a capital offense,11 and b) it is arguable that one may kill even an innocent material threat in self-defense: consider an insane gunman engaged in a mass shooting incident; though not responsible for the violence he is committing, it would be permissible to use deadly force to defend the lives under threat.12 The first criterion of the rule of double effect is thus met insofar as one may pursue the good end of saving another person's life even if so doing entails the foreseen negative effect of someone's death; it need not be the case that the good end and negative effect both accrue to the same individual.
The second criterion is satisfied insofar as extubation is a good or at least morally neutral act, as it was in the non-triage case. Here, one might claim that the act in question is not merely "extubation" but the "reallocation" of the ventilator. This claim points to the question of what constitutes a directly intended end from a more remote end toward which what one directly intends is aimed. We do not need to address this question here, though. For, even if the act is construed as "reallocation," it is considered in itself good or at least morally neutral: if a father were autonomously to refuse a ventilator so that it could be reallocated to save his daughter, it would be considered a heroic act of self-sacrifice, not a directly intended suicide. Neither extubation nor reallocation is the issue at hand, but rather that such an act is done unilaterally — that is, without or against the patient's or surrogate's explicit consent. Should we thus consider the directly intended act to be "extubation/reallocation without consent"? Again, considered in and of itself, neither act is essentially bad, for extubation (with or without reallocation) could occur for reasons of disproportionate burden or physiological futility regardless of the patient/surrogate's consent.
The third criterion is clearly met insofar as the foreseen death of the patient who is extubated is neither intended for its own sake, nor is it a means of bringing about the good of saving the patient to whom the ventilator is reallocated. If, against medical expectations, the first patient were to continue breathing on their own post-extubation, and perhaps even eventually recover and be discharged, it would be a desirable outcome. Finally, the proportionality criterion is satisfied insofar as what is gained/lost are two equally valuable lives of persons with intrinsic dignity. One is not being favored over the other due to morally irrelevant criteria such as race, ethnicity, color, national origin, religion, sex, disability, veteran status, age, genetic information, sexual orientation or gender identity,13 or other conditions such as socioeconomic status or ability to pay for the care provided. Rather, the only criterion being utilized is who is more likely to benefit physiologically — to survive to discharge or at least one year post-discharge — from the utilization of this scarce resource.
The Argument for "No, It Does Not"
At least three reasons may be given for why the rule of double effect does not justify unilateral withdrawal of life-sustaining treatment in triage situations. First, we must recognize that we are not describing a single action to which the rule of double effect should apply; if the rule of double effect is applicable, it should apply to each and every act involved. When a patient is withdrawn from a ventilator because it no longer seems to offer sufficient benefit to the patient or is considered futile in that patient's care, the rule of double effect could be construed as justifying that specific action. The bad effect of the patient's demise is proportional to the good effect of relieving them of the burden of staying on a ventilator that is offering them no benefit. This is not the case proposed for mandatory, nonconsensual reallocation of that ventilator. Rather, it removes a ventilator from a patient whose potential for recovery is still in play in favor of another patient whose potential is presumably greater. Therefore, it is recognized that the withdrawal from the first patient must result in their death, which means we must also allow the intention of their death. With no proportional good accruing to the first patient, this is no longer a neutral act. Moreover, the paired action of reallocation must then admit that the preservation of the second patient's life has occurred through the action that resulted in the first patient's death. The good effect has occurred through the means of the bad effect, violating the rule of double effect.
Furthermore, the way most triage policies are constructed, there are multiple agents involved in the situation: the treating physician (or physicians) and a "triage committee" rendering allocation and reallocation decisions. As Daniel Sulmasy and Edmund Pellegrino point out, the rule of double effect applies only in cases involving a single moral agent whose action has multiple effects.14 If any action or any intention of the multiple agents is considered immoral, delegating the decision to a triage committee cannot make it moral or excuse a physician from complicity through cooperation with such an act.
Furthermore, such a reallocation policy would inevitably damage the trust relationship between the physician and the patient. It does not allow for or resolve the patient's just claim on the ventilator. The patient's moral right to continue life-sustaining medical treatment is based on its supposed benefit to them. When that benefit fades and is lost, the moral claim to continued ventilatory support is also lost, but that is not what is proposed here. Vague and unsupportable statements of a percent likelihood of survival are used to judge between the proportional benefit for patients competing for the same ventilator. This demands more precision in prognosis than medicine can routinely supply. So long as the continued ventilation is not autonomously refused by the patient or their surrogate, does not become disproportionately burdensome to the patient, or is shown to be physiologically futile, then the patient continues to benefit from the ventilation. This is true even if their prognosis appears poor in comparison to another patient. As Marie Hilliard emphasizes, physicians' ethical obligations are first and foremost to the individual patients entrusted to their care, and only secondarily to wider public or population health concerns.15 Fidelity to trustis an essential virtue that physicians should cultivate and embody in the care of their patients.16 Violating that trust by unilaterally withdrawing necessary life-sustaining resources to provide it to another patient in need, just because the latter may have a greater chance of survival, is not only inherently questionable, but it also compounds the degree of mistrust that many people have of the medical community. There is thus much more lost than just a human life when physicians are empowered to make or carry out unilateral withdrawal decisions.
Pandemics should not make us abandon our usual ethical principles; in fact, we should depend on them even more in desperate circumstances. If we continue to focus on the good of the patient in regard to decisions concerning ventilatory support, we will not go far afield from current ethical practice. We routinely make medical determinations that certain types of care may no longer offer a benefit to an individual patient. We can then allow patients or their surrogates to request that support be continued or discontinued based on their values. In a pandemic situation, all that we may need to change is the ability of a surrogate to overrule a strong medical determination of non-beneficial care to the patient in question. The reduced importance of surrogates' input is justifiable by the pressing need for those scarce resources to be used elsewhere, but it is ultimately justified only by the lack of medical benefit to that individual patient, because of a proper judgment of physiological futility. This still focuses on the patient's good, rather than the anticipated needs of others who would be served to the patient's detriment.
As noted at the outset, it is not the aim of this article to resolve the question of whether the rule of double effect justifies unilateral withdrawal of scarce life-sustaining resources in situations calling for triage decisions. Rather, our purpose was to present arguments that should be carefully assessed by Catholic ethicists, policymakers and those who will be required to make or carry out triage decisions in Catholic health care institutions. Of course, it may also be possible that an ethical principle, or set of principles, other than the rule of double effect could potentially justify unilateral withdrawal. Such a justifying principle, however, is not immediately apparent without devolving into purely consequentialist reasoning – the view that the ends justify the means and that there are no intrinsically right or wrong actions – which is inimical to Catholic moral theology and bioethics.17 Unilateral withdrawal thus seems to depend on the valid applicability of the rule of double effect.
JASON T. EBERL is professor of health care ethics and director of the Albert Gnaegi Center for Health Care Ethics at Saint Louis University. G. KEVIN DONOVAN is professor of pediatrics and director of the Pellegrino Center for Clinical Bioethics at Georgetown University in Washington, D.C.
- See Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 6th ed. (New York: Oxford University Press, 2009), 155-8. This purported equivalence has been challenged, however; see G. Kevin Donovan, "Nutrition/Hydration and PVS: Ethical Considerations in the Provision of Life-sustaining Food and Water for the Permanently Unconscious Patient," MA Thesis, University of Oklahoma (1994), 27-28; Daniel P. Sulmasy and Jeremy Sugarman, "Are Withholding and Withdrawing Therapy Always Morally Equivalent?" Journal of Medical Ethics 20, no. 4 (1994): 218-22. For a response, see John Harris, "Are Withholding and Withdrawing Therapy Always Morally Equivalent? A Reply to Sulmasy and Sugarman" Journal of Medical Ethics 20, no. 4 (1994): 223-34.
- See Armand H. Matheny Antommaria et al., "Ventilator Triage Policies During the COVID-19 Pandemic at U.S. Hospitals Associated With Members of the Association of Bioethics Program Directors," Annals of Internal Medicine, April 24, 2020, DOI: 10.7326/M20-1738. For a survey of ethical concerns with the formulation and implementation of triage policies, see Amy L. McGuire et al., "Ethical Challenges Arising in the COVID-19 Pandemic: An Overview from the Association of Bioethics Program Directors (ABPD) Task Force," American Journal of Bioethics (in press).
- Following Daniel Sulmasy, we will refer to the "rule of double effect" as opposed to referring to it as a "principle," "doctrine" or "dogma" as others tend to label it; see Daniel P. Sulmasy, "'Reinventing' the Rule of Double Effect" in The Oxford Handbook of Bioethics, ed. Bonnie Steinbock (New York: Oxford University Press, 2009), 115.
- Another Catholic policy differs slightly in specifying that continued ventilation should be reconsidered, with potential withdrawal being permissible, after 14 days of continuous ventilation or if sequential SOFA scores are increasing.
- A recent set of guidelines published by The National Catholic Bioethics Center also affirms the permissibility of unilateral withdrawal if "extreme circumstances warrant," but also stress that patient/surrogate consent should always be obtained when feasible; see John A. Di Camillo, "Triage Protocol Guidelines" The National Catholic Bioethics Center, April 16, 2020, https://ncbcstore.org/ncbc-resources-for-covid19/triage-protocol-guidelines. Daniel J. Daly asserts more unequivocally, "Medical facilities can withdraw a treatment from a patient in order to reallocate a limited resource to a different patient who is expected to realize a more significant medical benefit from the treatment. This applies even if the cessation of the treatment is expected to result in the death of the patient." "Guidelines for Rationing Treatment During the COVID-19 Crisis: A Catholic Approach," Health Progress, 2020, https://www.chausa.org/publications/health-progress/article/pandemic-coverage/guidelines-for-rationing-treatment-during-the-covid-19-crisis-a-catholic-approach.
- MedStar Georgetown University Hospital, "Ethical Principles of Resource Allocation in the Event of an Overwhelming Surge of COVID-19 Patients," https://kennedyinstitute.georgetown.edu/wordpress/wp-content/uploads/2020/03/CovidEthics-MGUH.pdf.
- Tadeusz Pacholczyk, "Column 177: Thinking Through the Rationing of Ventilators," Making Sense of Bioethics Column, April 17, 2020, https://ncbcstore.org/making-sense-of-bioethics/column-177-thinking-through-the-rationing-of-ventilators.
- G. Kevin Donovan, "Catholic Ethics and the Challenge of COVID-19 - Part One: DNR Orders for COVID-19 Patients and Reallocation of Ventilators," Catholic Health Association and Pellegrino Center for Clinical Bioethics Webinar (April 16, 2020), https://www.youtube.com/watch?v=8oezcKaQ6MY&feature=youtu.be; Julie Minda, "Sulmasy Says It Should Be 'Ethics as Usual,' Even in Extraordinary Times," Catholic Health World, April 14, 2020, https://www.chausa.org/publications/catholic-health-world/archives/issues/pandemic-coverage/sulmasy-says-it-should-be-%27ethics-as-usual-%27-even-in-extraordinary-times.
- Thomas Aquinas, Summa Theologiae, IIa-IIae, q. 64, a. 7: "Nothing prohibits one act from having two effects, only one of which is in the intention, while the other is outside the intention. Now moral acts receive their species according to that which is intended, but not from that which is outside the intention" (trans. Eberl).
- For historical and contemporary formulations and discussions of double-effect, see Joseph Mangan, "An Historical Analysis of the Principle of Double Effect" Theological Studies 10 (1949): 41-61; Joseph Boyle, "Toward Understanding the Principle of Double Effect" Ethics 90 (1980): 527-38; P. A. Woodward, ed., The Doctrine of Double Effect: Philosophers Debate a Controversial Principle (Notre Dame: University of Notre Dame Press, 2001); and T. A. Cavanaugh, Double-Effect Reasoning: Doing Good and Avoiding Evil (New York: Oxford University Press, 2006).
- See Summa Theologiae IIa-IIae, q. 64, aa. 2-3.
- See Charles C. Camosy, Beyond the Abortion Wars: A Way Forward for a New Generation (Grand Rapids: Eerdmans, 2015), 63-66; James Mumford, Ethics at the Beginning of Life: A Phenomenological Critique (New York: Oxford University Press, 2013), 163-67.
- These non-exclusion criteria are all affirmed explicitly in at least one Catholic health system policy surveyed. Concerns have been raised by disability rights advocates that some triage policies may be, either explicitly or implicitly, discriminatory against persons with disabilities. The specific policies against which such complaints have been directed, however, do not include those adopted by Catholic health care institutions that we have reviewed.
- See Daniel P. Sulmasy and Edmund D. Pellegrino, "The Rule of Double Effect: Clearing Up the Double Talk," Archives of Internal Medicine 159 (1999): 545-50.
- Marie T. Hilliard, "Duty to Care & Triage: Moral Choices When Not All Can Be Saved & Professionals Face Risks," The National Catholic Bioethics Center (2010), https://ncbcstore.org/ncbc-resources-for-covid19/moral-choices-when-not-all-can-be-saved.
- See Edmund D. Pellegrino and David C. Thomasma, The Virtues in Medical Practice (New York: Oxford University Press, 1993), Chapter 5; Griffin Trotter, The Loyal Physician: Roycean Ethics and the Practice of Medicine (Nashville: Vanderbilt University Press, 1997).
- See John Paul II, Veritatis Splendor (August 6, 1993), nos. 74-75, http://www.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_06081993_veritatis-splendor.html.
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