The Covid-19 crisis raises profound issues of social, economic and civil rights.
How we, as a society, balance those rights to protect the health and wellbeing of our population is the most significant challenge of our time. What might be regarded as acceptable trade-off during an emergency could, in hindsight, be seen as damaging or discriminatory in the long term.
Negotiating this difficult balance serves to underscore the importance of keeping the principles of human rights and equality to the forefront in considering how decision makers and legislators respond to this pandemic.
One of the most fundamental and sensitive choices any State has to make is how it allocates healthcare resources.
This is difficult at the best of times: consider debates about funding for certain types of high-cost drugs or therapies. It is precisely because the allocation of healthcare resources raises such weighty questions of values and benefits that states are advised by the World Health Organisation to prepare in advance for how they would allocate these resources in the worst of times, such as a pandemic.
Ireland's policy guidance regarding the allocation of critical care resources in a pandemic is set out in three documents published since the end of March: 'Ethical Framework for Decision Making in a Pandemic'; 'Ethical considerations relating to critical care in the context of Covid-19'; and 'Ethical considerations relating to critical care in the context of Covid-19 - Supplementary Information'. This guidance for healthcare managers and frontline clinicians sets out the principles and considerations that should inform decision-making about the allocation of resources, in the event that demand for access to intensive care unit beds exceeds supply.
It is to the credit of the Government and HSE - which expanded critical care capacity at the onset of the pandemic -and the efforts of the entire community to suppress the virus that this guidance has not had to be invoked.
Nevertheless, as a formal guide to policy, it is critical the direction it provides is given due consideration and is open to challenge.
It is important and welcome the ethical framework specifies "it is not appropriate to prioritise [access to critical care] based on social status or other social value considerations eg income, ethnicity, gender".
The subsequent supplementary information clarifies that "no single factor should be taken, in isolation, as a determining factor [in prioritisation]. Age is given as one example: however the statement equally extends to other factors including disability."
However, this and the subsequent documents are in fact ambiguous about how exactly age and disability are to be treated in a critical care triage process. Indeed, an emphasis on "long-term functional status" would appear to give significant weight to such considerations in the prioritisation of care.
In making these observations, the Irish Human Rights and Equality Commission (IHREC) is not seeking to place itself between clinicians and their patients.
Doctors making clinical decisions are bound by their own professional ethics and duty of care. However, it is a fact that even strictly clinical factors may disproportionately affect certain groups such as older people, some groups of disabled people, and possibly other vulnerable groups.
Crucially, any disproportionate impact on them will most likely be greater where factors such as quality of life, or duration of survival, are factored into the prioritisation. The IHREC is therefore concerned the current guidance appears to significantly weigh these factors in the determination as to what - and thereby who - is to be prioritised in a critical care triage process, without sufficiently addressing the potentially profound implications for these vulnerable groups.
We recognise these documents were developed at a moment of acute crisis, when it was difficult to predict if the Covid-19 virus could be suppressed and contained.
However, the issues raised are too profound not to be open to further consideration and public scrutiny. For example, none of the guidance to date specifically considers relevant domestic or international equality and human rights law and standards, and there is no discussion of the legal and human rights requirements clinicians need to follow in making decisions about patients. There also appears to have been limited or no consultation with groups most likely to be affected.
The IHREC has written to the health minister regarding its concerns about the policy guidance as it stands. It is our view the publication of the ethical guidance should be seen as opening an important values debate with potentially far-reaching implications for rights and equality.
This requires a consultation process, which engages with relevant rights holders or their representatives, and draws on human rights and equality expertise, a process that should be initiated as soon as possible to further inform the guidance documents and policy in this area.
As a commission, we know there are no easy answers to the questions posed by a need to prioritise access to critical care.
As a society, however, we can protect and uphold our values by explicitly considering such fundamental decisions through the prism of human rights and the equal dignity of each person. We are not always able to control events: we are responsible for how we respond to them.