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Posted on April 1, 2020 at 6:21 PM

by Kate Jackson-Meyer, Ph.D.

Policy makers, hospitals, and health care professionals are facing, or are likely to face, excruciating ethical decisions about resource allocation and risk calculation due to the COVID-19 pandemic and medical supply shortages.  Emphasizing the principle of proportionality in resource allocation can help to correct for the shortcomings and limits of the maximizing approach, which is the dominant approach being put forward.

A limited number of life-saving ventilators means that decisions will have to be made about who receives ventilators and who does not.  Due to a limited availability of masks and personal protective equipment (PPE), health care workers take on risks of virus transmission when they treat COVID-19 patients or suspected COVID-19 patients.  As a result, hospitals must decide how much risk is appropriate for health workers to assume in the pursuit of saving lives.  And, a limited supply of face masks has led to conflicting information and confusion about whether the public should wear face masks.

I suggest that the principle of proportionality is an important addition for decision-making in these kinds of situations.  The principles put forward by the Institute of Medicine’s Crisis Standards of Care—fairness, duty to care, duty to steward resources, transparency, consistency, proportionality, and accountability—and the principles of bioethics—autonomy, beneficence, non-maleficence, and justice—are important to include in ethical decisions, but each one alone presents little guidance for how to weigh or balance principles or how to account for harm.

Many ethicists propose to prioritize maximizing benefits when determining resource allocation. Ezekiel J. Emmanuel et al applied this concept to our current crisis: “Maximization of benefits can be understood as saving the most individual lives or as saving the most life-years by giving priority to patients likely to survive longest after treatment.”

However, there are limits to this approach as maximization has little to offer in the way of identifying goods of inherent value and it has no clear built-in limit for harm caused.  For instance, as Joseph Stramondo points out, it is liable to be used to exclude persons with disabilities from life-saving treatments due to a misconception that their lives are of “poor” quality because of disability.

Emmanuel, et. al warn specifically against that misuse stating: “Limited time and information during an emergency also counsel against incorporating patients’ future quality of life, and quality-adjusted life-years, into benefit maximization” and the “ethical and legal problems” that might cause.  But, a potential abuse as critical as this deserves more than a clause and the lives of persons with disabilities should be protected by a notion stronger than lack of “time,” “information,” vague “ethical” missteps, and “legal problems.”

This is where the principle of proportionality comes in—it serves as a corrective or a check to the predominate paradigm.  The principle of proportionality states that responses should be proportional to the good that can be achieved and the harm that may be caused.  As it relates to medical ethics, this means that medical interventions and risks should be proportionate to the possible lives saved.  Hick, et. al apply proportionality to the current crisis in a recent report from the National Academy of Medicine, explaining that the principle demands that “the risks of compromising standards in a given instance should be weighed against the need to do so to optimize benefits to patients, caregivers, and the community.”

At first glance, this might seem redundant with maximizing benefits.  However, this is not necessarily the case.  Helpfully, and necessarily, the principle of proportionality sets limits in light of valuable goods and reasonable harm.  This is what Aquinas means when he uses proportionality to qualify that murder in self-defense is licit as long as the death is unintended and the violence is proportional, that is no more violence is used than what is necessary.  (Aquinas’s thought here would become the principle of double effect).

The potential for the principle of proportionality to clarify and constrain is seen in law, as Richard Mullender explains.  And, I think it should be applied to resource allocation.

To properly use the principle of proportionality in this way, valuable goods should be determined.  For instance, goods include life, life of all without reference to quality of life, and health care workers.  Then, any allocation needs to be checked by the question, “Are we doing more harm than is necessary?”

When translated into practice, the principle of proportionality shows that policies that exempt persons from disabilities from ventilators create more harm than is necessary for that group, and so is not a proportional policy.  In response to a problem the Washington Post recently reported, proportionality illuminates that in ‘normal circumstances’ 30 health care workers acting on a ‘code blue’ is a proportionate response, but in the current crisis that approach is no longer a proportionate response when it puts so many health care workers at risk.  The principle of proportionality shows that giving limited face masks to the public creates more harm than is necessary for health care workers who find themselves in more risky situations.  Importantly, prioritizing health workers to receive masks does not create more harm than is necessary for the public who, generally, can use a bandana mask or something similar.  A benefit of considering the problem in this way is that the public can be assured they bear no more harm than is necessary.

The principle of proportionality offers a corrective to the maximizing approach by explicitly referring to goods and asking whether more harm than necessary is being done.  It might be the case that many of the limits produced by proportionality eventually emerge through rigorous discussions of the maximizing approach.  However, restrictions of the maximizing approach come out (and have come out) as ad hoc clauses and addendums, which are not necessarily helpful or clear in a crisis situation.  Adding the principle of proportionality is an organized way of checking the maximizing approach.  Finally, as Mullender also brings up using the thought of Thomas Nagel, the principle of proportionality has great power when asking people to take on risk or harm because it assures them that no more harm is done than what is necessary.

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