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BLOG: The Unheeded Implications of the Pandemic

ABTL Blog Post – Written by Divaani Gunalingam. Divaani is currently studying LLB (Hons) at the London School of Economics in the second year. 

Amongst the continuing lack of healthcare resources and growing demand for medical care, scarcity has been an ongoing concern for the National Health Service (NHS). However, amidst the current pandemic, already-strained public healthcare systems worldwide have been put in an inconceivably difficult situation. The UK is no exception. Prior to the pandemic, the NHS had been overspending its budget, and the sharp increase in covid cases, combined with already limited resources, may mean that not everyone can receive critical care, such as intensive care beds and ventilators. In these circumstances, rationing care becomes inevitable. Yet, this poses a horrifying conundrum for the courts; which individuals, whether they have COVID-19 or other life-threatening conditions should be given priority to intensive care?

In any healthcare system, the problem of scarcity is deep-rooted, in that there are always insufficient resources (such as monetary funds, intensive care (ICU) beds, and nursing staff) to deliver all of the possible programmes and interventions. Consequently, decisions regarding the ability of the NHS to fund that care, have been the subject of frequent challenges among the judiciary. Although each case turns on its particular facts, the trend of recent decisions over the past decade, has been to support the right of healthcare professionals to take challenging rationing decisions even though this results in patients being denied treatment that could be taken beneficial to them. This is evident in R v Cambridge DHA ex p. B, which held that the health authority had acted rationally and fairly in refusing to fund a sick girl on the basis that the treatment would be ineffective and inappropriate. The sympathy of the judges is more than apparent in the reasoning behind such cases where it has been repetitively acknowledged that ‘difficult and agonising decisions have to be made’. Nonetheless, these complications were indefinitely exacerbated in the context of the pandemic where the concept of rationing may be taken to its extreme.

Amidst the search for rationing criterion, there has been rigorous disputes amongst critics regarding which ought to be implemented. The distribution of resources on a first-come-first served approach has been criticised on the basis that they fail to prioritise individuals who are likely to survive if they receive the medical resources but who access healthcare later. The egalitarian triage has arguably been blind to patients’ likelihood of benefitting from medical resources and therefore may fail to maximise the number of lives saved with limited resources. Even the prioritarian triage which intentionally prioritises the worst-off has been criticised since the triage protocols do not allocate resources according to medical need, meaning that scarce resources are more likely to be used in ways that provide no benefit to anyone. Consequently, would judges be obliged to account for such criteria when determining whether healthcare professionals were right in denying certain patients their treatments?

Namely, what is the way forward for us? The numerous solutions for this terrifying rationing dilemma have all been bombarded with condemnation vis-à-vis their inadequacy and ineffective means for redressing broader social inequalities. Perhaps, we ought to examine the root of the problem itself. The repercussions of the pandemic should be viewed as a critical opportunity for governments and healthcare systems to expand life-saving resources and avert the need for triage protocols to be implemented. The unprincipled dilemma of rationing under the NHS, especially during such an unyielding crisis should never surface. Now, we can only wait and hope to receive a response from the government regarding this.

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