by John Coggon, Professor, Law School, University of Bristol
Since the early stages of the covid-19 pandemic, urgent attention has been given to expediting the approval and provision of treatments that are shown to prevent or limit the harms that people experience when they contract covid-19. Such treatments have both reduced the burden of disease and lessened rates of mortality. As with any treatments within a healthcare system, these come against considerations of rationing and prioritisation. Any treatment is a finite resource, and in some instances there may be insufficient supply to provide it to all people who might benefit clinically. How, in such instances, may the NHS best, and most fairly, allocate a limited resource?1
It is clearly the case that people’s risk of becoming unwell with covid-19 is higher if they are not vaccinated. Where people have refused vaccination for reasons relating to so-called anti-vaxx sentiments, could this provide an ethical rationale for de-prioritisation if they are sick with covid-19 and there is a limited supply of treatment?
Despite calls for such a policy, there are compelling ethical arguments against it. Here I summarise five distinct points. Each taken alone provides sufficient reason to reject the idea. Taken together, I believe they show that we cannot countenance such a move.
First, a policy of deprioritising people who have refused vaccines would necessarily change a vital and fundamental principle. As spelled out in the NHS Constitution for England, the NHS is founded on the core idea that healthcare should be freely accessible to all who need it at the point of delivery. Need for care is defined clinically. It is not based on ability to pay, or on moral or social judgment about more or less deserving patients. Deprioritising “antivaxxers” would be a powerful and destructive attack on the moral heart of the NHS.
In ethical debates about vaccine passports, differential treatment has been mooted—for instance in relation to attendance at football matches. There are challenging questions here of inequity and unfairness. But regardless of the merits of arguments that would favour vaccine passports, at least the policy of differential treatment towards which they drive, however unequally, aims for restoration of fundamental rights. Even if differential treatment were permissible in other sectors (not an argument that I can engage with here), the default must remain that NHS care should be free to all equally.
The point about the moral foundations of the NHS, considered in the specific context of the vaccine programmes, leads to a second objection. A policy of deprioritising people who have refused to be vaccinated would ignore or undermine the value of a fundamental moral and legal right that the UK’s vaccine rollout upholds by design. Vaccinations have been provided on the basis of each person’s voluntarily given, informed consent (or a sound, individual best interests decision if a person is deemed to lack decision making capacity). A fundamental tenet of medical ethics and medical law is that a person may refuse an intervention for any reason, including irrational reasons, or no reason at all. Covid-19 vaccines have been offered to the general population on the basis that people are not compelled to get vaccinated. This includes there not being a legal mandate to be vaccinated, as well, if the principle is to hold true, as not suffering measures that effectively compel—such as the denial of healthcare rights.
Thirdly, the policy focuses on one point of personal responsibility, without regard to others. A person’s decision not to be vaccinated is stark, and provides an apparently clear link between a choice (refusing vaccination) and a poor outcome (contracting covid-19). Yet this is too simplistic on causation. Vaccines are not guaranteed bars to contracting the disease. And an exclusive focus on the irresponsibility of refusing vaccination begs questions about other points where poor moral responsibility may also be in question, but which are not being given as a ground for deprioritisation. For example, it is not clear why the NHS would not instead, or as well, deny treatment for people who have breached social distancing rules. There is no obviously non-arbitrary way of answering the question “why, in this context, single out responsibility based on non-vaccination?”
Fourthly, the policy is desert based: that is, it is grounded in the idea that people must suffer the consequences of their choices and get what they deserve—their just deserts. This is a moralistic idea, but in the greatest part misses its moral target. In so doing, furthermore, it compounds inequities. There is a profound moral case against propagators of anti-vaxx movements because of the grotesquely harmful disinformation they promote. However, general targeting of those who refuse to be vaccinated serves as highly punitive victim blaming; it targets those who have been misled, rather than those who mislead. It also ignores and compounds structural inequities that need to be addressed, worsening health inequalities when there are obligations to mitigate them. Public engagement is needed to instil change, not punishment.
Finally, an anti-anti-vaxx policy would anyway be impracticable, and accordingly place an unfair burden on healthcare practitioners. In practice, it is not reasonably possible to ascertain the detail of a person’s reasons for having refused a vaccine, less still ethically to assess their moral soundness, in a clinical interaction. Clinicians should not be made into “gatekeepers”: for their own sake, and for the sake of patients’ trust in their carers.
For any or all of the above reasons, it is not ethically justifiable to institute a policy of medical treatment prioritisation that discriminates between people on the basis of their willingness or otherwise to be vaccinated. Looking to moral judgment of patients would alter basic principles underpinning NHS care, and would wrong those whom it denied access to treatment. It would arbitrarily single out one irresponsible choice. And it would compound social inequities while missing its moral target and placing unfair burdens on healthcare practitioners. It should not feature in resource allocation decisions.
1. Keith Syrett, Law, Legitimacy and the Rationing of Health Care. Cambridge: Cambridge University Press, 2007.
This work was supported by the UK Ethics Accelerator Grant, reference UKRI/AHRC:AH/V013947/1.
All views expressed are personal and should not be taken as being held by any of the above organisations.
This article was first published on August 4, 2021 on the BMJ opinion blog.