Ruthless Utilitarianism? COVID-19 State Triage Protocols May Subject Patients to Racial Discrimination and Providers to Legal Liability.

As the coronavirus pandemic intensified, many communities in the United States experienced shortages of ventilators, intensive care beds, and other medical supplies and treatments. Currently, there is no single national response to provide guidance on allocation of scarce health care resources. Accordingly, states have formulated various "triage protocols" to prioritize those who will receive care and those who may not have the same access to health care services when the population demand exceeds the supply. Triage protocols address general concepts of "fairness" under accepted medical ethics rules and the consensus is that limited medical resources "should be allocated to do the greatest good for the greatest number of people."1 The actual utility of this utilitarian ethics approach is questionable, however, leaving many questions about what is "fair" unanswered. Saving as many people as possible during a health care crisis is a laudable goal but not at the expense of ignoring patients's legal rights, which are not suspended during the crisis. This Article examines the triage protocols from six states to determine whose rights are being recognized and whose rights are being denied, answering the pivotal question: If there is potential for disparate impact of facially neutral state triage protocols against Black Americans and other ethnic groups, is this legally actionable discrimination? This may be a case of first impression for the courts to resolve."[B]lack Americans are 3.5 times more likely to die of COVID-19 than [W]hite Americans … . Latinx people are almost twice as likely to die of the disease, compared with [W]hite people." 2 "Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism … . HHS is committed to leaving no one behind during an emergency, and this guidance is designed to help health care providers meet that goal." - Roger Severino, Office of Civil Rights Director, U.S. Department of Health and Human Services. 3.

[Difficulties and Policy Recommendations Related to the Deployment of Long-Term Care Resources in Taiwan`s Indigenous Areas].

Changes in the demographic structure in Taiwan have increased the need for long-term care (LTC). Person-centered and community-based care is being advocated. The need to address the specific LTC needs of Taiwan`s indigenous peoples has been a part of national LTC policy since National Long-term Care Plan 2.0 was adopted in 2015. The provision of LTC services and the deployment of related resources in indigenous areas generally lag behind Taiwan`s other areas. Potential reasons for this disparity include lack of in-charge, dedicated units; exclusive use of normative service models in indigenous areas; and conflict between talent cultivation and rooted development. Future policy should focus more on providing cultural care in indigenous areas and on offering more flexible and diversified development possibilities. The implementation of these policies may promote the development of LTC and the successful deployment of LTC resources in Taiwan`s indigenous regions.

Dutifully Defying Death: A Right to Life-saving Emergency Treatment.

Article 12 of the International Covenant on Economic, Social and Cultural Rights provides for the right to health. Two questions are considered in this article. Does this right entail a more specific right to life-saving emergency treatment? And if so, should the latter right become justiciable in the domestic courts? Two propositions will be made in this article. First, the right to life-saving emergency treatment is a necessary component of the right to health. Second, the conventional arguments against the justiciability of socio-economic rights do not apply to the right to life-saving emergency treatment. Such a right should be justiciable at the domestic level.

Tragic choices in intensive care during the COVID-19 pandemic: on fairness, consistency and community.

Tragic choices arise during the COVID-19 pandemic when the limited resources made available in acute medical settings cannot be accessed by all patients who need them. In these circumstances, healthcare rationing is unavoidable. It is important in any healthcare rationing process that the interests of the community are recognised, and that decision-making upholds these interests through a fair and consistent process of decision-making. Responding to recent calls (1) to safeguard individuals' legal rights in decision-making in intensive care, and (2) for new authoritative national guidance for decision-making, this paper seeks to clarify what consistency and fairness demand in healthcare rationing during the COVID-19 pandemic, from both a legal and ethical standpoint. The paper begins with a brief review of UK law concerning healthcare resource allocation, considering how community interests and individual rights have been marshalled in judicial deliberation about the use of limited health resources within the National Health Service (NHS). It is then argued that an important distinction needs to be drawn between procedural and outcome consistency, and that a procedurally consistent decision-making process ought to be favoured. Congruent with the position that UK courts have adopted for resource allocation decision-making in the NHS more generally, specific requirements for a procedural framework and substantive triage criteria to be applied within that framework during the COVID-19 pandemic are considered in detail.

Who Gets Scarce Medical Resources during a COVID-19 Pandemic? Let's not beat about the Bush.

Except for such rare situations where it might be determined absence of physician's imputability, physicians cannot ̳save the most lives while respecting the legal rights of the patient' without violating the overarching principle ̳every human life has equal value'. Arguing to the contrary is a conscious hypocritical attitude, or in other words, a fiction. Medical law and ethics long since carry with its various fictions. Furthermore, in a public health emergency such as the current COVID-19 crisis, medical law and ethics change and shift the focus from the patient-centered model towards the public health-centered model. Under these particular circumstances, this fiction becomes striking, and it can no longer be swept under the rug. As health emergencies can happen anywhere, anytime, the patient prioritization in circumstances of limited resources should be accepted. Medical law and ethics should back away from strict commitment to placing paramount emphasis on the value of human life. It is time for medical law and ethics to leave taboo-related hypocritical attitudes, and venture to make a historic compromise. To do so, three principles should be met: subsidiarity, proportionality, and consensus and social proof.

View. The Dutch Critical Care Triage Guideline on Covid-19: Not Necessarily Discriminatory.

Recently, the Dutch Medical Doctors Association (Federatie Medisch Specialisten en de Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst) drafted the 'Covid-19 triage guideline ICU admission' that has age cut-offs that deprioritise or exclude the elderly. Such an age limit for intensive care unit (ICU) admission in case of a national emergency seems discriminatory, and thus, is it inappropriate to use, or not? The question is whether age in itself can be considered as an acceptable selection criterion.

Administrative cases: an effective alternative to lawsuits in assuring access to medicines?

BACKGROUND: Although public policy in Brazil supports access to essential medicines, the health system cannot meet all demand. Increasingly, the population has used legal demands to seek access to medicines, an approach that can undermine equitable access by creating policy inconsistencies (e.g., granting access to medicines outside the SUS formulary). In response, the Executive Branch has signed institutional agreements to create an administrative case for submitting requests for medicines directly to the Executive Branch. The objective of this study was to assess the degree to which the administrative cases for requests are in accordance with public policies and guidelines, e.g., if administrative cases results in fewer decisions to purchase outside the SUS formulary. METHODS: This descriptive study used secondary data from lawsuits filed against the Executive Branch from 2003 to 2015 and from administrative cases granted by the Executive Branch from 2010 to 2015 in the capital of a state located in the central-western region of Brazil. The variables included plaintiffs' sociodemographic characteristics and diseases as well as the characteristics of the medical products sought via the processes. RESULTS: Comparing the requests submitted through lawsuits and the administrative cases revealed differences in the incomes of plaintiffs and the costs of medicines. Both methods for submission recorded requests for medicines for diseases of endocrine and circulatory systems; the only difference was the prevalence of diseases of the genitourinary system in the lawsuits. A higher proportion of lawsuits sought medicines outside the SUS formulary with therapeutic alternatives, while medicines outside the SUS formulary without an alternative were more commonly requested in administrative cases. CONCLUSION: Administrative cases adhere to the public policies and guidelines of the SUS. The administrative cases results in fewer decisions to purchase outside the SUS formulary with alternative, and more decisions to purchase drugs for which there is a formulary alternative. In addition, administrative cases provide greater equity by favoring lower income applicants. However, administrative cases also reveal deficiencies in the State's implementation of existing pharmaceutical policies. The public pressure for effective implementation of existing policies may help expand access to medicines.

Chronic disease as risk multiplier for disadvantage.

This paper starts by establishing a prima facie case that disadvantaged groups or individuals are more likely to get a chronic disease and are in a disadvantaged position to adhere to chronic treatment despite access through Universal Health Coverage. However, the main aim of this paper is to explore the normative implications of this claim by examining two different but intertwined argumentative lines that might contribute to a better understanding of the ethical challenges faced by chronic disease health policy. The paper develops the argument that certain disadvantages which may predispose to illness might overlap with disadvantages that may hinder self-management, potentially becoming disadvantageous in handling chronic disease. If so, chronic diseases may be seen as disadvantages in themselves, describing a reproduction of disadvantage among the chronically ill and a vicious circle of disadvantage that could both predict and shed light on the catastrophic health outcomes among disadvantaged groups-or individuals-dealing with chronic disease.

The influence of fiscal rules on healthcare policy in the United States and the Netherlands.

Governments use fiscal rules to put a framework and limits on how budgetary challenges are addressed, but the rules themselves are still an understudied area among health policy scholars. For a long time, healthcare held a somewhat separate status because of the reliance on entitlements and dedicated revenue streams. However, the combined forces of advocates for integral decision-making, central budget control and the increasing costs might shift healthcare towards budgetary frameworks that currently apply to other spending categories. In this paper, we study fiscal rules that the US and the Netherlands have adopted since 2010 and their impact on healthcare policy. Our analysis shows that fiscal rules can have an impact on the rationing of healthcare. In the studied timeframe, the rules seem to have more impact on budget outcomes than on the budget process itself. In addition, the convergence of fiscal and program policy objectives seems to be better accomplished in a budgetary system that applies enforceable budget ceilings. Budgeting for health entitlements requires a comprehensive and tailor-made approach and the composition of traditional rules might not fully answer to the complexities of healthcare policy. This paper aims to contribute to that debate and the way we think about healthcare budgeting. Copyright © 2016 John Wiley & Sons, Ltd.

[How is the implementation of the new legal framework for health care affecting HIV-infected immigrants in an irregular situation in Spain?]. / ¿Cómo está afectando la aplicación del nuevo marco legal sanitario a la asistencia de los inmigrantes infectados por el VIH en situación irregular en España?

INTRODUCTION: The entry into force of Royal Decree (RD) 16/2012 in Spain in September 2012 led to the exclusion of the group of irregular immigrants from the National Healthcare System. With this work, GESIDA attempts to measure the impact of the entry into force of the RD in relation to its application by the Autonomous Communities (CCAA), and how it has affected the health care of irregular immigrants infected with HIV. METHODS: Information was requested from the 17 CCAA of the existence of measures to ensure the care and treatment of people with HIV infection that were left unprotected because of the implementation of the RD. Likewise, a survey was conducted on health professionals and NGOs involved in the care of these people, to find out how it has affected the implementation of the RD to their daily healthcare work and the availability of information on regulations to implement it. RESULTS: The response of the CCAA was variable, hardly contributing, in some cases, to mitigate the negative effect of the RD. To this is added a complex bureaucracy to access the benefits offered by some regions, often inaccessible to the most vulnerable subjects. Lack of information for health-care professionals and NGOs involved in the care of immigrants, hinders access of this population to health care and the establishment of control measures for diseases with an impact on the public health. CONCLUSIONS: The RD 16/2012 has had a negative impact on daily healthcare working, generating the appearance of deep inequities throughout the country.

Analysis of pediatric lung donor allocation policy: a call for change?

In an unprecedented legal ruling in June 2013, a US federal district court judge decided that the existing policy for donor lung allocation be vacated to save the life of a ten-year-old girl dying from cystic fibrosis. This case has fueled much controversy in the United States among policy makers, ethicists, and physicians who treat other patients awaiting transplant. This article examines the creation of the current US lung allocation policy and its impact on outcomes and analyzes the multidimensionality of the ruling. After analyzing the current policy and investigating alternatives for donor pool expansion, the article concludes by articulating options that may mitigate the need for current policy revision.

[Rationing in German health care with particular consideration of oncology: view points of German stakeholders--a qualitative interview study]. / Rationierung im deutschen Gesundheitswesen unter besonderer Berücksichtigung der Onkologie: Sichtweisen deutscher Entscheidungsträger--eine qualitativen Interviewstudie.

AIM: Germany is at the beginning of a discussion about possible rationing in the health-care system. Cancer treatment, which is often cost-intensive but not always cost-effective, is frequently considered as a field for rationing. METHODS: Against this background, we conducted semi-structured, guideline-based interviews with different stakeholders of the German health-care system and analysed them with the help of grounded theory techniques. The goal of the study was to collect the experiences and opinions of members of the German Medical Review Board of the Statutory Health Insurance Funds (MDK), leading officials in central administrations of the German health-care sector and health politicians (members of the Parliamentary Committee for Health of the Federal German Parliament, the Bundestag) regarding cost-considerations in treatment decisions in health care with a special focus on oncology. RESULTS: (1) Cost-considerations have a limited role in the daily routine of the interviewed experts; (2) the interviewed personnel of the MDK were open to discuss rationing, while the group of leading officials was ambivalent and the health politicians rejected rationing and its discussion altogether; (3) the awareness of the opportunity costs of medical services varied with the profession of the interviewee: the members of the MDK saw opportunity costs primarily within the field of medicine, the leading officials noted the opportunity costs for other social services, and the health policy makers interpreted opportunity costs under fiscal budgetary aspects; (4) according to the interviewees, decisions on rationing require a legal basis, which should be based on a broad public discussion and an interdisciplinary debate among experts; (5) defining criteria for rationing was regarded as being outside of the professional competence of the interviewees; however, a preference with regard to the criterion of cost-effectiveness became apparent. CONCLUSIONS: The results of this study indicate that the strongest opposition to a debate on rationing in Germany does not stem from the medical, but rather from the political sector. The criteria for rationing suggested in the theoretical debate are in need of a context-sensitive examination and specification for the field of oncology. A possible approach to constructively promote the debate on rationing is a stronger focus on social opportunity costs of health care. The exact role of experts in a discourse on rationing, which was emphasised by the interviewees, requires a thorough determination. It is necessary to differentiate between the roles of impartial experts and stakeholders. Decisions on rationing can ultimately only be legitimised politically by parliament.

Health Resources Priority and Allocations System (HRPAS). Interim final rule.

This interim final rule establishes standards and procedures by which the U.S. Department of Health and Human Services (HHS) may require that certain contracts or orders that promote the national defense be given priority over other contracts or orders. This rule also sets new standards and procedures by which HHS may allocate materials, services, and facilities to promote the national defense. This rule will implement HHS's administration of priorities and allocations actions, and establish the Health Resources Priorities and Allocation System (HRPAS). The HRPAS will cover health resources pursuant to the authority under Section 101(c) of the Defense Production Act as delegated to HHS by Executive Order 13603. Priorities authorities (and other authorities delegated to the Secretary in E.O. 13603, but not covered by this regulation) may be re-delegated by the Secretary. The Secretary retains the authority for allocations.

RATIONALIZATION IN HEALTH: A LEGAL-CONSTITUTIONAL PERSPECTIVE.

Following Portugal's bailout, several measures concerning the rationalization of resources of the national health system have been recommended, aiming to improve the efficiency of services and generate additional savings. Our purpose is to approach this issue by asking for its conformity with the Constitution of the Portuguese Republic, and by further characterizing and discussing the right to health as a typical social right, the implementation of which presupposes the "reserve of what is possible" (including its dependence on existing economic resources). By taking into account a critical overview of the legal / constitutional doctrine, our analysis will focus on the relevant constitutional precept (art. 64, d), No. 3,) - which remits to the principle of economy in the provision of public services - and on the methodological challenges concerning the sustainability of the welfare state. We arrive at the doctrine of the "essential core" of social rights, followed by the discussion of how to determine the "essential core" of the right to health. As an example, we will discuss the sensitive issue of drugs prescription, clinical guidelines and governance, and forms by which prescribing patterns may be built. According to our approach, the essential core of the right to health for all (protected by the Constitution) presupposes the improvement of efficiency and the principle of economy in the National Health System.

[The main ways in performing analysis of the activities of medical supply organizations of the Armed Forces].

Without a complex comprehensive analysis of the activities of medical supply organizations is impossible to effectively manage the processes of provision of medical equipment and property, and provide a quality control of finished products and magistral formulas, technical and metrological provision of medical services and to render better decisions. In this regard, the article provides a list of pharmaceutical services (works) provided by medical supply organizations of the Armed Forces of the Russian Federation and proposes indicators in assessing their effectiveness. Examples of analysis and assessment of the main indicators of provided services (works) in absolute values are given. At the same time, the authors give the ways of solutions aimed at increasing the motivation of various specialists to improve the quality of performance indicators in the medical equipment and property support centres of the Ministry of Defense of the Russian Federation.

[Modern aspects of organization of medical support for the Armed Forces].

The challenges that medical service of the Armed Forces of the Russian Federation faces cannot be solved without a new qualitative approach to military and medical support. In order to create a complete organizational system of the medical support, consisting of united process of material flow management and management of accompanying elements, the. structure of the medical support and its equipment must correspond to performed tasks. The article describes a set of activities that are performed in the system of military-medical support and offers some promising approaches, which are supposed to solve assigned tasks imposed upon the center of pharmacy and medical technology and its interaction with superior body control, maintainable and third party organizations.