域外 | 英国医学会COVID-19伦理指南：一个法律分析

英国医学会COVID-19伦理指南：一个法律分析

The BMA COVID-19 ethical guidance: a legal analysis

摘要：本文考虑了英国医学会最近出版的关于在COVID-19大流行病期间出现的与定量治疗相关的伦理问题的指南。它考虑了制定定量配给和放弃治疗的政策是否合法，并继续考虑这些政策在实践中的适用方式。法律分析针对指南的某些方面做出，这些方面似乎在放弃治疗上误解了法律。

1.介绍

COVID-19大流行病给世界各国政府和人民带来了前所未有的挑战。出现了一种新的、致命的呼吸系统疾病，目前还没有药物、疫苗或预先存在的免疫力，这是噩梦般的事情。封锁以及政府向个人和企业提供财政援助所引发的经济后果可能会持续数年，甚至数十年之久。

遭受冲击最大的是医疗行业。这导致了重要的医疗设备短缺的严重警告，比如那些遭受疾病影响最严重的人所需的呼吸机和氧气。人们对高危患者（主要是老年人或有各种潜在健康问题的患者）表示担忧，他们被拒绝接受治疗为了有利于那些有更高治愈几率的患者。意大利的医疗专业人员已经遇到了这个问题。

伴随着这些担忧，英国医学协会(BMA)发布了针对医生治疗COVID-19患者的指南。这个新指南题为“COVID-19—伦理问题”。指导说明（“该指南”）概述了可能出现的主要的伦理问题。本文将对指南中出现的一些主要法律问题进行简要的思考。

2.指南

该指南发布于世界卫生组织宣布COVID-19大流行病爆发后不久。它实质上是一个专业协会与会员之间的交流。它认识到：

可以理解的是，医生会担心他们提供安全和合乎伦理的医疗服务的能力，担心他们自己以及他们的家人和朋友的健康和安全。他们还会担心他们的行为可能引起刑事、民事或职业责任。

其主要目的似乎是向会员们保证他们将得到支持，并缓解对潜在责任的担忧。因此，它可能不应被视为一篇法律论文或法律建议。然而，考虑到该指南可能反映了英国医学会的立场，并可作为医疗专业人员如何应对COVID-19带来的挑战的框架，考虑上述内容可能产生的法律影响是很重要的。

3.伦理框架

该指南以英国政府包含在流感指南（英国卫生和社会保障部，2017）中的道德框架（简称“框架”）为出发点。这为可能受到未来流行病影响的各部门提出了若干关键考虑因素，指南总结如下：

• 平等尊重：每个人都很重要，每个人都是平等的，但这并不意味着每个人都会得到同等的治疗；• 尊重：让人们尽可能了解情况；让人们有机会对影响他们的事情发表意见；尊重人们对护理和治疗的个人选择；• 尽量减少流行病的危害：减少传播，尽量减少干扰，学习什么是有效的；• 公平：每个人都很重要。有平等机会从资源中受益的人们应当有平等的机会获得资源——尽管要求人们等待他们以后是否会获得相同的利益并不公平；• 共同努力：我们需要互相支持，对自己的行为负责，并适当地分享信息；• 互惠：应当支持那些承担更多负担的人；• 保持事物的比例：所传达的信息必须与风险相适应；对权利的限制必须与目标相适应；• 灵活性：计划必须适应不断变化的环境；• 公开透明的决策：良好的决策将尽可能做到包容、透明和合理。它们应当是理性的、基于证据的，是合理的过程的结果并且在实际情况下具有实用性。

该框架本身并不是为了解决个人的临床决策；它主要是为了指导地方一级的政策制定。然而，该指南本身被认为适用于“所有级别”。

该指南本身涉及三个广泛的关注领域：1. 提供治疗；2. 决策；3. 医生的责任。

尽管它也考虑了与职业条件有关的问题，例如个人防护设备的可用性或其他方面，但具有更广泛影响的指导要素可能是与患者治疗有关的部分。本文正是围绕这些问题展开的。

4.提供治疗

有关资源分配和分诊的章节涵盖了治疗的提供；在政策和操作层面上提供治疗。该指南基于两个主要考虑因素，这两个因素在文件的后半部分中阐述；

• 医疗设施；

• 程序正义。

应当首先考虑英国医学法的基本价值。

5. 法律的基本价值

英国法律传统上把“生命的神圣性”这一观念视为起点。尽管它在法律上的定义并不明确，但长期以来一直被认为是英国法律和哲学的内在价值，这也许是因为每个人的生命所体现的“复杂的创造性投资”中的价值。为此，普通法是在这样的基础上发展起来的:一个人活下去最符合他的利益。

另一种日益重要的价值是个人自决。患者参与有关其治疗的决定的权利在普通法中得到确立，并贯穿于欧洲人权法院的判例法。具有必要意思能力的个人有绝对权利拒绝治疗。对那些缺乏意思能力的人也给予类似的权利。

值得注意的是，神圣的概念并没有在指南中提及。相当多的时间花在了可能被拒绝或撤销治疗的情况上，并涉及到临终关怀的管理。考虑到英国法律中神圣性的重要性，这是一个令人担忧的疏忽。

下文将进一步讨论尊重自决的范围。但是，就目前而言，指南所设想的决策似乎集中于流程和专业意见。

转向医疗事业；框架（前文所指的英国政府自身的道德框架）突出的要素是将危害最小化。该框架本身将其描述为至关重要的。这似乎属于例如约翰·斯图尔特·密尔（John Stuart Mill）持有的最大化利益和减少损害的古典功利主义传统。

该指南认识到了这一点，并提出以下建议：如果对医疗的需求‘超过了按现有标准提供服务的能力，则必须采用更加严格的功利主义考虑，而有关如何满足个人需求的决策将让位给有关如何最大化整体收益的决策’。该指南的依据是，在某些情况下，可能需要做出艰难的决定，即是拒绝治疗预后不良的患者，还是撤销治疗实际上状态稳定但存活机会低于其他患者的患者。BMA的立场是明确的;应该优先考虑最有可能活下来的病人。

但是，该指南走得更远，它意识到，在极端情况下，可能会出现一些非临床因素，这些因素会影响优先次序。它特别指出劳动力枯竭对维持基本服务的能力造成不利影响的情况。在这种情况下，该指南认识到（BMA，2020：6）；

这可能意味着要优先考虑那些负责提供这些服务并且有很大恢复机会的人，以便使他们重返工作岗位。

这仍然是指南的功利主义方法的延伸。基本的方法是使更广泛的利益最大化，无论是通过确保那些更有可能康复的人获得优先治疗，还是通过尽量减少大流行的其他影响来寻求社会利益最大化。

那么，医生如何决定哪些病人应该优先治疗呢?这个问题被简化为一个程序性的问题。该指导明确指出(BMA, 2020: 8)：

为了使对大流行的应对在道德上是站得住脚的，必须考虑程序道德——确保各级决策（在需要作出决策的时间量程中的可能范围内）由适当的机构并有充分的公众参与公开、负责、透明地作出。在时间允许的情况下，还可以由第二位医生或适当情况下由正确组成的临床伦理委员会审查个人决策。

该指南鼓励制定明确的优先权政策，并尽可能征求公众意见(BMA, 2020: 8)。它强调作出的公开和透明。通过事先明确规定并中立适用的规则来认识一个人的权利和责任的能力是法治的一个基本方面(Bingham, 2011: 37-39)，同样也是决策之透明的一个基本方面。正如指南所认识到的，定义政策并与公众一起制定这些政策，很可能使得公众更大程度地接受那些不可避免地令人不快的决定。该指南进一步指出，医生在遵循适当的优先次序政策的情况下，在其他人对现有治疗有更高优先序列的情况下，拒绝对某人进行可能拯救生命的治疗既合法又符合道德的(BMA, 2020: 3)。

6.政策合法性

分配医疗资源的政策本身并不是非法的。但考虑到分配有限资源所固有的困难，以及必须权衡的相互竞争的优先事项，法院一直不愿触及分配稀缺医疗资源这一问题。《指南》建议，资源分配的决定必须（1）在合理情形的；（2）基于可获取的最佳临床数据和意见；（3）基于融贯的伦理原则与推理；（4）在可行的情况下事先达成一致，同时认识到在不断变化的情况下可能需要快速修改决策；（5）尽可能保持不同专业人员之间的一致性；（6）公开透明地沟通；（7）根据情况的变化进行修改和审查。

最终，只要任何资源分配的政策表面上是合理的，它就可能是合法的。也就是说，如果将稀缺资源分配给最需要帮助的人是基于客观的临床因素，这就并不是非法的。

但随后《指南》的观点却有了些微奇怪变化。因为新冠肺炎对于老年人和并发症患者尤其危险，因此将资源倾斜于治疗收益高的一方是可允许的。但指南指出，仅仅基于他的年龄做出这样的决定就是非法的，尽管如果一个人的潜在健康状况降低了他的生存几率，这样做可能是被允许的。同时，在考虑将这些政策应用于缺乏能力的人时，这些优先权决定不是“最大利益”决定。任何有关提供治疗的政策都将成为整体考虑的一部分，而不是“最大利益”审查的最终目标。

简而言之，缺乏能力的人不会自动获得优先考虑，应该首先以与其他所有患者相同的方式做出治疗决定。

但尚不清楚的是，是否应“以与所有其他需要治疗的患者相同的方式”做出决定的说法是正确的。

顺着“最大利益的考量”来看，便进一步涉及到了放弃治疗。《指南》进一步去考虑从已接受治疗的病人处放弃治疗手段的合法性。它首先阐述了这一放弃背后的艰难背景，并认可了这一行为所带来的更优结果。

但指南的说法过分简化了放弃治疗的法律；如果疫情糟糕至极，这甚至可能是一种危险的误导。从无能力之个人处放弃治疗可能是合法的，因为从其最大利益出发，他不再从治疗中受益；同时，这样做并不意味着采取了某种终结其生命的积极行动。但是，该指南却暗示，为了向可能受益的其他人提供治疗而撤回某一患者的治疗措施可能也是合法的。这一点是足值深思的。通常，以维持他人生命为基础杀死一个人是不合法的。

但是，该指南建议，在某些情况下，有理由中断治疗，以治疗被评估为可能具有更好结果的患者。虽然这与《指南》的功利主义倾向是一致的，但很难看出这怎么就是合法的了。另外，我们也很难看出这属于有限的“自卫”类型的例外情形，因为它只是基于“某些患者可能需要治疗”这一说法，而不是任何特定个人的正当理由。

另外，如果将两个肺炎病人的境况与一对连体婴儿的情况对比的话，则连体婴儿中以医疗手段故意夺走一方生命的必要性（即如果救一方，另一方会死亡；但如果不救，则双方都会死亡；也即一方的存活完全取决于另一方的死亡），很难在两个新冠肺炎病人这里看到，两个病人的命运还远未如此紧密地连接在一起。

简而言之，从某人处放弃治疗以将其提供给他者可被视为谋杀。加上对“最大利益”决策所建议的方法缺乏明确性，该指南的这一部分可能会带来严重风险。这些都是《指南》闪烁其词之处，短短几行字背后，或将引发别样人间悲剧。再加上《指南》本身的重要指导意义，紧急澄清刻不容缓。

7. 决定的做出

接下来讨论制定决策事宜。正如前文所说，指南意见中要求决策文件制定的路径透明化以及责任界限的可视化。这样的要求在绝大程度上是积极的，但也有令人担心的层面。

病人在多大程度上会参与到方案的决定是不清楚的。尽管决定的制定应当建立在清晰明确的政策之上，并且受到专家的严格监督，但病人和家人在这个过程中缺席的事实仍然是值得重视的。

尽管公众对于保证公开透明的承诺展现了欢迎的态度，但如果一个病人完全没有影响相关医护人员作出的临床决策的机会，这样的一种公开透明就是不充分的。

此外，病人或者其家属也没有相关的指南告知其如何撤回或者拒绝一项治疗方案。病人及其家属享有的医疗决定被倾听以及谨慎考虑的权利是基本人权。

尽管如此，在疫情期间这两种方法的代价都是昂贵的，并且依赖于是否能获得适当的法律建议以及法院的相关设施，而很困难的一个方面便是时间成本的花费。一个更加正式的内在审查系统可能会使得整个流程更快、更便宜，而且可以避免法院审判程序的一些关键抉择。指南正视了对伦理委员会和二次医疗观点的适用，这种方法似乎使得对医疗决策的审查有了可适用的空间，但这是否会被接受仍然是不清楚的。

8. 责任

最后，我们来考虑责任事由。指南中表明：一项政策的适用是一个行为合法性证明的决定性因素。

一种批评认为仅仅按照政策去做专业判断可能会导致专业判断退于次要地位。指南中说明一个医生免除任何行为责任的方法就是严格按照相关政策的指示去行动。GMC的指南也表明医生遵循政策应当是医生的首要和核心考虑，同时强调了治疗决定应当被分担，而不是由个体所单独承担。

然而，将很多表面上的过失行为看做是违背义务看上去也不太可能。如果一个医生是按照其行业内部的标准所行为的，那么这种行为就不应当被看作是过失行为。

值得争议的是，当出现一些新的疾病或者无法预测的医疗情境时，一项政策可能会以“为一个负责任的医疗工作人员所接受”来证明其正当性。

但指南并没有涉及到的是可能出现的刑事责任。正如前文所说，指南可能并没有真正理解法律中对于放弃治疗方案的规定，这是真正值得担忧的事情。可以预见的是，一个运气不好但是善意的医生可能会因为其基于部分指南上的政策所作出的放弃治疗的行为面对调查。虽然公诉人有自由裁量权根据公共利益标准决定不予起诉，然而，正如指南内容所呈现出的部分，风险仍然是存在的。

9.结论

在某种程度上，BMA指南是受欢迎的。呼吁为临床决策制定明确的政策和问责制是一种实用且明智的做法，可以为医生和患者提高决策的开放性和可预测性。

该指南的残酷功利主义伦理方法似乎突破了英国医学法的基本价值观。生命的神圣性和患者的自主权都可以说让主要基于最大限度最大化利益的方法退居次要。可能被慈善地视为对关于意识能力和中止治疗的法律的不明确解释加剧了这一点。于丧失能力者而言，缺乏对“最佳利益”决策的重要性的明确认识，对潜在的弱势群体构成了一个重大风险。这可能意味着安乐死的后门。这当然不是有意的；该指南可能是在困难时期为成员提供支持和建议的善意尝试。因此，这种分析可能被视为是通过法律人的有偏见和愤世嫉俗的眼光进行的。然而，不应忘记的是通往地狱的道路往往是善意铺就的。BMA可能希望迫切地仔细审视该指南的某些方面。

The BMA COVID-19 ethical guidance: a legal analysis

James E. Hurford, LLB (Hons), LLM, MA, Solicitor

The paper considers the recently published British Medical Association Gui- dance on ethical issues arising in relation to rationing of treatment during the COVID-19 Pandemic. It considers whether it is lawful to create policies for the rationing and withdrawal of treatment, and goes on to consider how such policies might apply in practice. Legal analysis is undertaken of certain aspects of the Guidance which appear to misunderstand the law in respect of withdrawing treatment.

keywords COVID-19, withdrawal of treatment, British Medical Association, ethical guidance

Introduction

The COVID-19 Pandemic has presented unprecedented challenges to governments and populations throughout the world. The emergence of a new, virulent respiratory illness for which there is currently no drug, vaccine or pre-existing immunity is the stuff of nightmares. The economic consequences of lock-downs and the financial aid provided by governments to individuals and businesses may be felt for years, if not decades.

The brunt of the impact has been borne by the healthcare sector. This has led to dire warnings of shortages of critical care equipment, such as the ventilators and oxygen required by those who suffer the worst effects of the disease. Concerns have been raised about patients at high-risk – principally those who are elderly, or have various underlying health conditions – being refused treatment in favour of those more likely to survive; a problem already experienced by medical professionals in Italy (Horowitz,  2020).

Amidst these concerns, the British Medical Association (BMA) has issued gui- dance for doctors treating COVID-19 patients. The new guidance, entitled COVID-19 – ethical issues. A guidance note  (‘the  Guidance’),  provides a summary of key ethical points likely to arise. This paper will provide a brief con- sideration of some of the main legal issues arising from the   Guidance.1

1 Although the BMA is a UK-wide body, the NHS itself is administered separately in each of the UK jurisdictions. This paper concentrates on the NHS in England, and therefore considers English    law.

© 2020 Informa UK Limited, trading as Taylor & Francis Group      DOI 10.1080/20502877.2020.1762027

The guidance

The Guidance itself was issued shortly after the World Health Organisation declared the COVID-19 outbreak to be a pandemic (BBC, 2020). The Guidance is essentially a communication from a professional association to its members. It recognizes that (BMA, 2020: 1);

Doctors will understandably be concerned about their ability to provide safe and ethical care, and their own health and safety as well as those of their family and friends. They will also be concerned that their actions may attract criminal, civil or professional liability.

The primary purpose seems to be to reassure members that they will be supported, and ease concerns about potential liability. As such, it should probably not be read as a legal treatise or advice. However, it is important to consider the possible legal implications of what is said, given that the Guidance is likely to reflect the BMA’s position and may be treated as a framework for how medical professionals will approach the challenges presented by  COVID-19.

Ethical framework

The Guidance takes as its starting point the UK Government’s own ethical frame- work (‘the Framework’) contained in its guidance  on  Pandemic  flu  (DHSC, 2017). This set out several key considerations for various sectors likely to be affected by a future pandemic, which the Guidance summarizes as follows (BMA, 2020:  2);

•  Equal respect: everyone matters and everyone matters equally, but this does not mean that everyone will be treated the same;

•  Respect: keep people as informed as possible; give people the chance to express their views on matters that affect them; respect people’s personal choices about care and treatment;

•  Minimize the harm of the pandemic: reduce spread, minimize disruption, learn what works;

•  Fairness: everyone matters equally. People with an equal chance of benefiting from a resource should have an equal chance of receiving it – although it is not unfair to ask people to wait if they could get the same benefit later;

•  Working together: we need to support each other, take responsibility for our own behaviour and share information appropriately;

•  Reciprocity: those who take on increased burdens should be supported in doing so;

•  Keeping things in proportion: information communicated must be proportionate to the risks; restrictions on rights must be proportionate to the goals;

•  Flexibility: plans must be adaptable to changing circumstance;

•  Open and transparent decision-making: good decisions will be as inclusive, trans- parent and reasonable as possible. They should be rational, evidence-based, the result of a reasonable process and practical in the circumstances.

The Framework itself was not intended to address individual clinical decision- making; it is primarily intended to guide policy making at the local level (DHSC,2017). The Guidance itself however is considered applicable ‘at all levels’ (BMA, 2020: 8).

The Guidance itself addresses three broad areas of  concern;

1.    Provision of treatment;

2.    Decision making;

3.    Liability of doctors.

Although it also considers issues relating to employment conditions, such as the availability or otherwise of personal protective equipment, the elements of the Gui- dance of wider impact may be the parts relating to treatment of patients. It is on these issues that the paper  concentrates.

Provision of treatment

Provision of treatment is covered by sections relating to allocation of resources, and triage; provision of treatment at both a policy and operational level. The Guidance is based on two primary considerations, which are laid out in the second half of the document;

•  Medical Utility;

•  Procedural justice.

One should begin by considering the underlying values of English medical  law.

The underlying values of the law

English law has traditionally taken as a starting point the concept of ‘Sanctity of Life’. As ill-defined as it may be in law, it has long been considered an inherent value of English law and philosophy (Airedale NHS Trust v Bland [1993] AC 789, 826, per Hoffman LJ), perhaps because of the value placed on the ‘complex creative investment’ that each human life represents (Dworkin, 1993: 84). To this end, common law has proceeded on the basis that it is in a person’s best interests to stay alive (Aintree Hospital NHS Trust v James [2013] UKSC 67, [35], per Lady Hale).

The other value, of increasing importance, is that of individual self-determi- nation. The right of a patient to be involved in decisions relating to her treatment is established at common law, and runs through the case law of the European Court of Human Rights (Montgomery v Lanarkshire Health Board [2015] UKSC 11, at [80] per Lady Hale). An individual with the requisite mental capacity has an absolute right to refuse treatment (see Re T (adult: refusal of medical treat- ment) [1992] 4 All ER 649). A similar right is given to those lacking capacity (Hurford,  2020).

It should be noted that the concept of sanctity does not get a mention in the Gui- dance. Considerable time is spent on circumstances in which treatment may be refused or withdrawn, and there is a reference to the management of end of life care. Given the significance of sanctity in English law, this is a worrying  omission.

The extent to which self-determination is respected will be considered further below. However, for the moment it is sufficient to say that the decision-making envi- saged by the Guidance seems to focus on process and professional   opinion.

Turning to medical utility; an element of the Framework which stands out is that of minimizing harm. The Framework itself describes it as being of central impor- tance (DHSC, 2017). This seems to fall within the classical utilitarian tradition of maximizing benefits and reducing harm such as that held by John Stuart Mill;

The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure. (Mill, 1991: 137)

The Guidance recognizes this, proposing that where demand for care ‘outstrips the ability to deliver to existing standards, more strictly utilitarian considerations will have to be applied, and decisions about how to meet individual need will give way to decisions about how to maximize overall benefit’ (BMA, 2020: 2). The Gui- dance proceeds on the basis that there may be circumstances where difficult decisions may be required about whether to refuse treatment to a patient with a poor prognosis, or to withdraw treatment from an individual who may in fact be stable, but whose chances of survival are lower than those of  another  patient (BMA, 2020: 3). It is clear where the BMA’s position falls; priority should be given to the patient most likely to  survive.

However, the Guidance goes further. It recognizes that, in extreme circumstances, there may be non-clinical factors which arise and which can affect prioritization. It particularly notes circumstances where the ability to maintain essential services is adversely affected by a depleted workforce. In those circumstances, the Guidance recognizes that (BMA, 2020: 6);

This may mean giving some priority to those who are responsible for delivering those services and who have a good chance of recovery, in order to get them back into the workforce.

This remains an extension of the Guidance’s utilitarian approach. The underlying approach is one in which the wider benefits are maximized, whether that is by ensur- ing that those more likely to recover get preference in terms of treatment received, or by seeking to maximize the benefit to society at large by minimizing the other effects of the Pandemic.

How, then, are practitioners to decide which patients should be given priority? This question is reduced to a procedural one. The Guidance makes it clear that (BMA, 2020: 8);

For responses to a pandemic to be ethically defensible, consideration must be given to procedural ethics – to ensuring that decisions at all levels are made openly, accountably, transparently, by appropriate bodies and with full public participation (to the extent possible within the timescale within which decisions need to be made). There   may also be a role for scrutiny of individual decisions by a second doctor, or where appropri- ate by properly constituted clinical ethics committees, where time  permits.

The Guidance encourages creation of clear policies on prioritisation, with the public view being sought where possible (BMA, 2020: 8). It emphasises open and transpar- ent decision making; rightly so. The ability to understand one’s rights and liabilities by way of rules clearly set out in advance and neutrally applied is a fundamental aspect of the rule of law (Bingham, 2011: 37-39), as is  transparent  decision making. As the Guidance recognizes, defining policies, and engaging with the public in framing those policies, is likely to lead to greater public acceptance of what will inevitably be unpalatable decisions. The Guidance further indicates that it would be both ‘lawful and ethical for a doctor, following appropriate prioritiza- tion policies, to refuse someone potentially life-saving treatment where someone else has a higher priority for the available treatment.’ (BMA, 2020:   3).

The lawfulness of policies

The Guidance envisages situations where an overwhelmed health service may be required to make difficult decisions in respect of prioritising treatment. Policies for the allocation of healthcare resources are not per se unlawful. In R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898, Sir Thomas Bingham MR, as he then was, held (at  906);

I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it,  no matter  how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make.

Courts recognize the difficulties inherent in allocating the limited resources available to health care providers, and the competing priorities they have to balance. In that respect, allocation of scarce medical resources is an issue on which the Courts have been reluctant to trespass.2 This position appears unchanged following the incorpor- ation of the European Convention on Human Rights into English law through Sche- dule 1 to the Human Rights Act 1998 (R (Condliffe) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910, at [40] per Toulson  LJ).

2 The same approach has been taken in respect of the Secretary of State’s duties to promote a comprehensive health service under s.1 National Health Service Act 2006 (see R (BA) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696).

One point of note is that the previous case law relates specifically to policies in respect of funding of particular forms of treatment. As with questions of public expenditure generally, decisions on the allocation of resources are the kind of ‘pol- itical’ decisions with which Courts are disinclined to interfere (Condliffe, at [40] per Toulson LJ). It could be argued that they would not necessarily apply to cases of the kind the Guidance envisages, that is, where treatment resources are not available and have to be strategically managed to ensure fair allocation between patients. Similarly, one might argue that a triage policy of the kind envisaged – which deals with circumstances where appropriate treatment is available but must be allocated between patients – is rather different to the kind of cases which have been considered until now. This issue seems to have been addressed by the High Court in An NHS Foundation Trust v MB [2020] EWHC 882 (QB). The Trust sought an injunction to remove an in-patient, who was considered well enough to be discharged but who was refusing to leave, in order to free up a bed for COVID-19 patients. Cham- berlain J grated the Trust an injunction,   holding;

In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even ceasing to provide inpatient care to one of them to leave will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life. A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by [Convention Rights] from declining to offer in-patient care to B … . Decisions taken by a health authority on the basis of  finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds. In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person. (at [55])

This suggests the same principles apply to policies relating to the distribution of existing resources as would be applied to decisions relating to funding. The Gui- dance goes on to suggest that decisions on resource allocation must  be (BMA, 2020: 3);

•  reasonable in the circumstances;

•  based on the best available clinical data and opinion;

•  based on coherent ethical principles and reasoning;

•  agreed on in advance where practicable, while recognizing that decisions may need to be rapidly revised in changing circumstances;

•  consistent between different professionals as far as possible;

•  communicated openly and transparently;

•  subject to modification and review as the situation develops.

Ultimately, provided any policy is rational on its face, it is likely to be lawful. The same principle appears to apply to triage at the operational level. The Guidance notes (BMA, 2020: 4);

It is possible we could reach a point where the decisions made in triage will determine whether potentially  large numbers of  individuals will receive  life-saving treatment   or not. It is essential therefore that the principles underlying the decisions are systematically applied. In these circumstances it is likely that priority will ordinarily be given to those whose conditions are the most urgent, the least complex, and who are likely to live the longest, thereby maximising overall benefit in terms of reduced mortality and morbidity. Priority decisions will be dependent upon the relationship between the availability of resources and the demand. If serious depletion of resources arises,  decisions about which patients should receive treatment will change over the course of the   pandemic.

Triage to allocate scarce resources to those most in need is not unlawful itself, provided it is based on objective clinical factors. The Guidance recognizes this (BMA, 2020: 4);

Ethically, triage requires identification of clinically relevant facts about individual patients and their likelihood of benefiting from available  resources.

COVID-19 appears to be particularly dangerous to older people and those with par- ticular co-morbidities, and arguably, it is permissible to prioritise those most likely to benefit from treatment. The Guidance identifies that it would be unlawful to make these decisions solely based on age, although it may be permissible to do so where an individual’s underlying state of health reduces his chances of  survival.

Here, however, the Guidance takes a strange turn. In considering the application of these policies to those lacking capacity;

In relation to adults lacking capacity, these prioritisation decisions are not ‘best interests’ decisions under capacity legislation. (BMA 2020: 3)

This much is true. Where an individual lacks capacity for the purposes of s.2(1) Mental Capacity Act 2005 (‘MCA’) – he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the func- tioning of, the mind or brain – decisions must be made in his best interests in accord- ance with s.4 MCA. In medical contexts, this requires a holistic approach, in which the decision maker;

… must look at [the patient’s] welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be. (Aintree Hospital,

at [39] per Lady Hale).3

3 This would include any religious beliefs the patient may have, contrary to the Guidance’s assertion that;

‘If there is a need to limit the availability of intensive care for patients because of the COVID-19 pandemic and a critical shortfall in ICU capacity, it would be unethical to apply those limits differently to patients … with or without particular religious views’ (BMA, 2020:  3).

The MCA requires a person’s beliefs and values to be taken into account in determining ‘best interests’ (s.4(6)(b)). Strongly held religious beliefs may well be a decisive factor in determining issues such as end of life care (see eg Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG [2019] EWCOP   21).

Any policies on provision of treatment would form part of that holistic consider- ation, rather than the be-all and end-all of the ‘best interests’ review. However, the Guidance suggests;

The fact that a patient lacks capacity does not import a ‘best interests’ decision-making model. In short, there is no automatic priority for those who lack capacity and decisions about their treatment should be made in the same way as for all other patients requiring treatment. (BMA, 2020: 3)

While it is true that lack of capacity does not automatically grant priority, it is not clear that the statement that decisions should be made ‘in the same way as for all other patients requiring treatment’ is correct. Where an individual lacks capacity, they fall within the scope of the MCA; any act must be  done,  or decision made, in his best interests (s.1(5) MCA; DCA, 2007: 66-67, paragraph 5.1, 5.2). This position is particularly concerning in the context of withdrawing treatment. It is established that where a competent patient indicates a wish to be kept alive, a doctor cannot lawfully discontinue treatment; doing so would be murder (R (Burke) v General Medical Council [2005]  EWCA  Civ  1003,  at [53], per Lord Phillips MR). In reality, policies on withdrawing treatment will only be applicable to those lacking capacity (which would  include  those under sedation, such as those placed on ventilators). The Guidance goes on to consider the lawfulness of withdrawing treatment from a  patient  already  receiv- ing  it  (BMA,  2020: 3-4);

Health professionals may be obliged to withdraw treatment from some patients to enable treatment of other patients with a higher survival probability. This may involve withdrawing treatment from an individual who is stable or even improving but whose objective assessment indicates a worse prognosis than another patient who requires the same resource.

…

The presence of co-morbidity may exclude individuals from eligibility. In these circum- stances, it may be necessary to discontinue treatment that has already been started, as there are patients in need whose outcomes are likely to be more favourable. Difficult decisions will arise where strenuous intervention could reduce mortality significantly but would mean that individual patients use resources that could lead to better outcomes for a larger number of other   patients.

At first sight, this seems to over-simplify the law on withdrawal of treatment; at worst, it could be seen as dangerously misleading. It may be lawful to withdraw treatment from an incapacitous individual who is no longer benefitting from treatment and where it is in his best interests to do so; doing so will not amount to a positive act to end life (Bland, at 867, per Lord Goff). However, the Guidance implies it may be lawful to withdraw treatment for the purposes of providing it to others who may benefit. If this is what is meant, it represents a worrying misunder- standing of the law.

It is not generally lawful to kill one person on the basis that it is necessary to pre- serve another’s life.4 In the classic judgment on this point, Lord Coleridge CJ justified this position (R v Dudley and Stephens (1884) 14 QBD 273, at   288);

It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his  own.

English law shies away from a general rule of necessity being a defence to deliberate killing. The Guidance, however, suggest that there may be circumstances where it would be justifiable to discontinue treatment in order to treat those assessed as likely to have a more favourable outcome (BMA, 2020: 3). While this is in line with the utilitarian leanings of the Guidance, it is difficult to see how this could be lawful.

Post-Bland, withdrawal of treatment from an individual who can no  longer benefit may be permissible; however if this is done for the primary purpose of giving the treatment he is receiving to another, that would arguably be a wholly different situation. It is difficult to see that this would fall within the limited ‘self- defence’-type exceptions, especially if it were justified on the basis that  some patient might require treatment, rather than any specific    individual.

One should note that necessity was invoked as a possible defence to deliberate taking of life in a medical context in In Re A (Children) (Conjoined Twins: Sur- gical Separation) [2001] 2 WLR 480. In that case, the Court of Appeal accepted that it would be permissible to surgically separate conjoined twins; an operation that would inevitably lead to the death of one,  but  would  avoid  the inevitable death of both if left conjoined. The Court of Appeal invoked necessity as a jus- tification, on the basis  that  the  death  of  the  weaker  twin  was  necessary  to avoid the otherwise inevitable death of the stronger twin. However the  Court sought to distinguish the unique circumstances of the case, and deter wider appli- cation. In particular, it sought to limit  its  authority  to  circumstances  where (at 537,  per  Ward LJ);

(1)    It must be impossible to preserve the life of X without bringing about the death of Y;

(2)    That Y by his or her very continued existence will inevitably bring about the death of X within a short period of time; and

(3)    That X is capable of living an independent life but Y is incapable under any cir- cumstances, including all forms of medical intervention, of viable independent existence.

It seems unlikely this would apply to situations with which the Guidance deals. In Re A concerned two identified individuals whose respective chances of survival were intertwined, so that the survival of one depended wholly on the death of the other. It

4 Save for the use of reasonable force to protect himself, others for whom he is responsible, or property, from immediate threat (see eg Beckford v The Queen [1988] 1 AC    130).

is difficult to envisage circumstances in which two COVID-19 patients could have their respective fates so completely linked.

In short, withdrawal of treatment from one person in order to provide  it to another could be considered murder. Coupled with the lack of clarity in the approach recommended in respect of ‘best interests’ decisions, this part of the Gui- dance arguably presents a risk of seriously vulnerable people being subject to eutha- nasia where they are considered to be taking up resources which could be better used elsewhere. It seems unlikely that this is what the Guidance means, and it may be some unfortunate wording. However, given this Guidance may be relied upon by those treating vulnerable patients, some urgent clarification is   needed.

Decision making

We now turn to decision making. As set out above, the Guidance urges a transparent approach to decision making with written policies and visible lines of accountability at all levels. This is broadly positive. However, there are points where the Guidance causes concern.

It is unclear to what extent the patient will be involved in any decision making. While it is assumed that decisions will be based on clear policies, and subject to scru- tiny by other professionals, the involvement of patients and families is notable by its absence. For reasons set out above, the involvement of a patient – and his family where he lacks capacity – in decisions relating to his own treatment is fundamentally important. Even if he lacks capacity, previously expressed wishes are relevant (s.4 (6)(a) MCA). This vital aspect of self-determination is wholly missing. While the commitment to transparency is to be welcomed, transparency is inadequate if a patient has no opportunity to influence the clinical   decision.

Further, there is no indication as to how a patient or his family may challenge a decision to withdraw or refuse treatment. The ability to be  heard  and  seek  a review of a medical decision with which one disagrees has been held to be required where fundamental rights are at stake (Tysiąc v Poland [2007] ECHR 219, at [117]). In Tysiąc, it was the ability to access abortion treatment where the mother’s health was at risk; how much more does this requirement apply where an individual’s life is at stake? It of course remains open to the patient or his family to go to court to chal- lenge any decision that he should either be refused treatment or have treatment with- drawn – presumably by way of judicial review if the individual has capacity, or via the Court of Protection if he lacks capacity (DCA, 2007; 80, paragraph 5.33). However, both approaches are potentially costly, and potentially subject to the avail- ability of appropriate legal advice and court facilities during the Pandemic; a difficult prospect where time may be of the essence. A more informal internal review system – perhaps undertaken by medics, ethicists and lawyers who are not involved in the patient’s care – may have the benefits of being quicker and cheaper for all parties, and may avoid the nuclear option of court proceedings. The Guidance envisages the use of ethics committees and second medical opinions; this seems to open a possi- bility of some form of review being available, but it is not clear whether this will be embraced.

Liability

Finally, we consider liability. The Guidance suggests application of a policy will be determinative of the lawfulness of any action (BMA, 2020:  3);

Although doctors would likely find these decisions [to refuse or withdraw treatment] dif- ficult, if there is radically reduced capacity to meet all serious health needs, it is both lawful and ethical for a doctor, following appropriate prioritisation policies, to refuse someone potentially life-saving treatment where someone else has a higher priority for the available treatment.

One criticism is that professional judgement may take a back seat to simply fol- lowing policy. The Guidance implies that a doctor’s best chance of avoiding any liability for his actions is to follow whatever relevant policy is in place. Indeed, the GMC’s current guidance suggests that following the policy should be front and centre of the doctor’s approach, and stresses that treatment decisions should be shared, rather than fall  on  individual  doctors  (GMC,  2020). However, this element of the Guidance may now be moot, given that it precedes the coming into force of s.11 Coronavirus Act  2020,  which  permits  relevant NHS bodies to indemnify doctors treating COVID-19 patients against tortious liability arising from their role in treating the patient. To this extent, a doctor will not necessarily suffer personal civil liability for any act undertaken during this time.

However, it seems unlikely that many ostensibly negligent acts would be held to amount to a breach of duty in any case. A doctor is not to be considered negligent in discharging his duty of care, if he ‘acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that  particular art’ (Bolam v Friern Hospital Management  Committee  [1957]  1  WLR  583,  at 587 per McNair J), and provided that practice has some logical basis (Bolitho v City and Hackney Health Authority [1998] AC 232, at 243 per Lord Browne-Wilkin- son). Arguably, given the difficulties presented by a novel disease and unprece- dented clinical situations, a policy on  how  to  address  potential  treatment scenarios may present the Court with evidence of practices ‘accepted as proper by a responsible body of medical men’. This will be particularly significant in light of the Guidance’s indication that any policy should be based on ‘the best available clinical data and opinion’. Coupled with the GMC’s indications that it will take into account the facts of the case in adjudicating any complaint, this may provide some comfort to   doctors.

What the Guidance does  not  address,  however,  is  possible  criminal liability. As set out above, there is a real concern that at least some of the Guidance incorrectly understands the law in relation to withdrawal of treatment. It is cer- tainly foreseeable that an unfortunate but well-meaning doctor withdrawing treatment on the basis of  parts  of  the  Guidance  could  face  investigation  for his actions. This would necessarily lead to prosecution – the Crown Prosecution Service always has discretion not to proceed if it is not in the public interest to prosecute an individual. However, as the Guidance is currently framed, this risk remains.5

Conclusion

The BMA Guidance is, to some extent, welcome. The call to create clear policies and lines of accountability for clinical decision making is a practical and sensible approach, which can contribute to the openness and predictability of decision- making, both  for doctors  and patients.

The Guidance’s brutally utilitarian ethical approach seems to cut across funda- mental values of English medical law. Sanctity of life and patient autonomy both arguably take a back seat to an approach based principally on maximizing benefits to the greatest number. This is exacerbated by what can perhaps be charitably seen as unclear explanations of the law relating to mental capacity and the withdrawal of treatment. The lack of clear acknowledgment of the significance of ‘best interests’ decision-making in respect of those who lose capacity represents a significant  risk to a potentially vulnerable class of people. At the risk of hyperbole, it could represent a back door to euthanasia. This was surely not intended; the Guidance is presumably a well-intentioned attempt to support and advise members during a difficult period. As such, this analysis may be viewed as being through a lawyer’s jaundiced and cynical eye. However, one should not forget that the road to Hell is frequently paved with good intentions. The BMA may wish to look carefully at some  aspects of the Guidance as a matter of  urgency.

Disclosure statement

No potential conflict of interest was reported by the    author(s).

Bibliography

BBC, 2020. Coronavirus confirmed as pandemic by World Health Organization. BBC Online. 11 March.

Available from: https://www.bbc.co.uk/news/world-51839944. [Accessed 23 April 2020]. Bingham, T., 2011. The rule of law. London:   Penguin.

British Medical Association (“BMA”), 2020. COVID-19 – ethical issues. A guidance note. London:   BMA.

Department of Constitutional Affairs, 2007. Mental capacity act code of practice. London: TSO.

Department of Health and Social Care (“DHSC”), 2017. Guidance: Pandemic flu. www.gov.uk. [Online]. Available from: https://www.gov.uk/guidance/pandemic-flu#ethical-framework. [Accessed 23 April 2020]. Dworkin,  R.,  1993.  Life’s  Dominion:  An  Argument  about  abortion,  euthanasia  and  individual  Freedom.

New York, NY:  Vintage.

5 Although even if a doctor were convicted of an offence arising from actions taken in treating COVID-19 patients, this would not inevitably result in professional sanction. The GMC’s indication that it will be consider the context of any complaint suggests it would be willing to take a sympathetic view in appropriate cases. Even were the  GMC to proceed, it would be open to the Medical Practitioners Tribunal to impose a limited sanction if it were satisfied as a result of the extreme circumstances that this was the most appropriate way of satisfying the statutory objective of pro- tecting the public (Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, at [78]).

General Medical Council (“GMC”), 2020. Coronavirus: Your frequently asked questions. www.gmc-uk.org [Online]. Available from: https://www.gmc-uk.org/ethical-guidance/ethical-hub/covid-19-questions-and- answers#Decision-making-and-consent.  [Accessed  23  April 2020].

Horowitz, J., 2020. Italy’s health care system groans under coronavirus — a warning to the world. New York Times. 12 March (updated 17 March). Available from: https://www.nytimes.com/2020/03/12/world/europe/ 12italy-coronavirus-health-care.html. [Accessed 23 April  2020].

Hurford, J.E., 2020. The Briggsian Heresy? Should previously expressed wishes determine best interests in decisions relating to withdrawal of Clinically-assisted Nutrition and Hydration? The New Bioethics. Forthcoming.

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Notes on contributor

James E. Hurford is a practising solicitor, with a background in public law, human rights and mental capacity law.

译者

刘庆祝、赵敏慧、杨佳琪、童心意、吕思远

中国政法大学法学院法学理论专业硕士研究生

校对

张峰铭，中国政法大学法学院法学理论专业博士研究生

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