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Posted on April 22, 2020 at 4:36 AM

By Julian Savulescu and James Cameron

Cross-posted with the Journal of Medical Ethics Blog

 

Countries all around the world struggle to develop policies on how to exit the COVID-19 lockdown to restore liberty and prevent economic collapse, while also protecting public health from a resurgence of the pandemic. Hopefully, an effective vaccine or treatment will emerge, but in the meantime the strategy involves continued containment and management of limited resources.

One strategy is a staged relaxation of lockdown. This post explores whether a selective continuation of lockdown on certain groups, in this case the aged, represents unjust discrimination. The arguments extend to any group (co-morbidities, immunosuppressed, etc.) who have significantly increased risk of death.

The Ideal of Equality and the Concept of Unjust Discrimination

Aristotle described the principle of equality as treating like cases alike, unless there is a morally relevant difference.

For example, if men are allowed to vote, and women are not, the only difference is sex, and that cannot of itself make a difference to the capacity or performance of voting – it involves a mere chromosomal or anatomical difference. Unless one could point to an inherent property that tracked with sex that affected ability to vote, then this violates Aristotle’s principle and is unjust discrimination.

Discrimination is not always unjust. The government invest millions in screening women for breast cancer, but not men, even though breast cancer does occur in men. The reason for this is that breast cancer is much more likely in women. So you will save more lives with the limited resource the government has available for prevention and treatment of breast cancer if you (justly) discriminate between men and women in this way.

This is not sexist because there is a morally relevant difference sufficient to justify different treatment: the probability of developing breast cancer. (However, if there were a better, more accurate proxy for breast cancer risk besides sex, say some genetic mutation, then to continue to discriminate on the basis of sex would be unjust, all else being equal.)

Isolation and Quarantine

The same principles apply to isolation and quarantine. Those who are quarantined are those most likely to have been in contact with a pathogen. Early on in the COVID-19 pandemic, those who had been in contact with someone with COVID-19 or who had travelled were tested, then later isolated. This is because they were statistically more likely to have COVID-19.

Selective Isolation of the Elderly

One possible delockdown strategy is to allow those in the workforce to return to work and social life, but continue to isolate the elderly. Call this selective isolation of the elderly. This would not be permanent but temporary until there is sufficient herd immunity or a vaccine/treatment emerges.

Now we cannot settle here where exactly the cut-off for “elderly” is. It will have to correlate with the elbow of an exponential curve and be easily enforceable. And any cut-off will have an element of arbitrariness. For the sake of argument, here we will pick 70. The average age of death in Italy from COVID-19 is 78. Those over the age of 70 are much more likely to die and more likely to need hospitalisation (and also much less likely to be employed).

This has already been practised in Sweden with no significant overburdening of the health system. New Zealand also practices a two tier lockdown with those 70 and over not being allowed to go to the supermarket while under 70s can.

Currently lockdown aims to “flatten the curve.” Some countries, like New Zealand, are aiming to eradicate it but this seems very unlikely in countries like the UK where there is already a significant pool of infected individuals and prolonged border closure is unlikely to be effective or tolerated. The aim is to slow infection so that hospitals are not overwhelmed until a vaccine or treatment arrives.

However this can also be achieved by preventing those most likely to become ill from becoming ill: those who are elderly or who have relevant comorbidities.

Would this constitute unjust discrimination against the elderly? Would it be Ageism?

Selective Lockdown of the Elderly and Ageism

Some have claimed it would. A Daily Mail headline reads:

“It’s divisive and wrong — please don’t stigmatise my generation: Former Home Secretary DAVID BLUNKETT, 72, says ordering the elderly to quarantine themselves is unfair.”

David Blunkett writes:

“All it would do is divide society on grounds of age – and that is as wrong as separating people because of their race or gender.

“Surely we oldies should have the right to choose our own destiny. We understand the risks. We know there are higher mortality rates from this virus among the elderly.

“I don’t know of any evidence to suggest that pensioners spread COVID-19-19 more virulently than younger people either.”

But the issue, unlike usual quarantine, is not their spreading the virus but the probability that they will require NHS resources if they do become ill. It is not a question of direct harm to others, but indirect harm to others through use of a limited resource.

So is it unjust discrimination to selectively isolate those most likely to get sufficiently ill to need a limited public resource? No, it’s analogous to only screening women for breast cancer on the basis of their higher probability of getting sick.

It is using age like sex as a basis for a medical decision only because that feature correlates with a robust statistically higher likelihood of getting ill. That feature is the best available proxy, given the efficiency limitations on systematically screening for a more nuanced risk factor for a morally relevant outcome – i.e. the likelihood of getting seriously ill. Isolating only the elderly for COVID-19 is no more ageist than only screening women for breast cancer is sexist.

One might object that breast cancer screening is voluntary while lockdown is not. Indeed, the real issue is coercion and loss of liberty. We will come to that. For the present, it is worth noting that if coercion is bad, it is worse if more people are coerced (complete lockdown) than if fewer are (lockdown elderly). And coercion is used in standard quarantine on the basis of risk of harm to others. That is precisely the same justification as in the elderly except it is indirect harm to others through consumption of resources.

Symbolic value of equality

One objection to this proposed policy is that, as Blunkett said, this stigmatises a group. Equality has a symbolic value. But how much should we pay for this symbolic value to protect one group at the expense of another group

Often quite a significant amount. I (JS) remember a few years ago my 82 year old mother being directed into a body scanner at Heathrow. Although some staff deny it, these scanners use ionising radiation. This increases cancer risk. They reassure you by telling you it is the same amount or less than you would receive from cosmic radiation on the same flight. But flights are dangerous too. Over the whole population (billions) being screened, some small number of people probably get cancer from this exposure.

And of course, it would be easy to tell that there was virtually zero chance of my 82 year old mother being a terrorist. You could plug in her data from several sources and come up with a probability that is next to zero (age, sex, religion, travel history, places where she has lived, etc).

But we don’t profile people – we expose everyone to radiation. The reason for that is equality and avoidance of stigmatisation.

The Difference with Isolating the Elderly and Levelling Down Equality

But isolating the elderly is different from screening people more likely to be terrorists at the airport. The young male who attends a radical Islamic mosque has nothing to gain from being selected for enhanced screening. The elderly do – they are the ones most like to die.

And there is another reason why isolation of the elderly is different from profiling terrorists. The costs of applying the lockdown to everyone, and not just the elderly, are massive. Not only directly in terms of immediate loss of well-being, jobs, delayed or forgone medical care, but long term through economic collapse and subsequent effects on health and well-being.

Not only does selective isolation of the elderly benefit the healthcare systems and allow economic recovery and participation in social life of the rest of the community, it also benefits the elderly by lowering their chances of dying from COVID-19.

While one reason for not profiling people for risky screening procedures is to prevent stigmatisation, it is also an example of “levelling down equality.” In order for there to be equality, people who could be better off are made worse off in order to achieve equality. As Derek Parfit has famously put it, one way to achieve equality for the blind is to make everyone blind. That is what levelling down equality requires. If we can’t cure everyone’s cancer, we cure nobody’s because that will achieve equality.

Levelling down equality has nothing, in our view, to be said in favour of it. But when we lock down those at low risk as well as those at high risk, that is what engage in: levelling down equality.

Adverse Effects on the Elderly

Blunkett points out that isolation can have mental and physical adverse effects on the elderly. That is surely true. He was writing before the lockdown. But now everyone is locked down experiencing those side effects. To argue that low risk people should not be released from lockdown because of these effects on the elderly is to advocate levelling down equality. If not everyone can have the benefit, no one shall, this principle advocates.

The effects on the elderly may be worse. They may have fewer social networks and already be more isolated. And they may have only one or two years to live, so a year in isolation is a relatively greater loss. These are important considerations.

One solution is to give greater weight to liberty and tolerate its costs. One could allow the elderly to deisolate while also restricting access to health resources, such as isolation or intensive care. Using age as a determinant of access to resources is not necessarily discrimination. However, societies have been reluctant to embrace this strategy to avoid depleting limited health resources. They have preferred total lockdown with likely economic disaster.

The Real Issue: Liberty

The real issue is not equality, but liberty. Are the restrictions of liberty reasonable and proportionate? At present, everyone’s liberty is restricted. We should prefer less liberty restriction to more. Is the liberty restriction of the elderly for up to a year a reasonable restriction? That is the essential question, not one of equality. Given the benefits to them, it may well be. Importantly, it is less justifiable to people who are at lower risk of themselves getting seriously ill.

Conclusion

Ethically, selective isolation, as currently practised in Sweden, is permissible. It is not unjust discrimination. It is analogous to only screening women for breast cancer: selecting those at a higher probability of suffering from a disease.

Even if it were unjust discrimination, it would be proportionate because it brings benefits to the elderly and is proportionate and necessary given the grave risks to the economy and subsequent well being of the population of an indiscriminate lockdown. To oppose selective lockdown is to engage in levelling down equality which is itself morally repugnant.

 

 

 

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