RATIONING AND DISABILITY: THE CIVIL RIGHTS AND WRONGS OF CLINICAL TRIAGE PROTOCOLS

46 Pages Posted: 7 Apr 2020 Last revised: 22 Sep 2020

See all articles by Deborah Hellman

Deborah Hellman

University of Virginia School of Law

Kate Nicholson

Independent

Date Written: April 6, 2020

Abstract

As escalating COVID-19 cases threatened to overwhelm health care systems, many states issued new clinical triage protocols or resurrected old ones adopted in anticipation of a future pandemic or emergency that direct how to allocate scarce resources like ventilators. The conditions that give rise to medical rationing may yet recur as the current pandemic unfolds, or they may emerge in the context of a future epidemic or natural disaster. In either case, hospitals will be forced to make difficult moral and legal decisions about who gets access to life-saving care. These state protocols have one overriding goal: they endeavor to save as many lives as possible. While this goal is important, pursuing it in a single-minded fashion will likely harm people with disabilities and other disadvantaged groups in a way that is inconsistent with existing law.

To date, most of the attention focused on these protocols takes issue with explicit exclusions of people who have certain conditions or disabilities. Amending the protocols to address this concern, while important, will simply tinker at the margins. This Article addresses the policy choice at the heart of the triage protocols: the singular focus on saving the most lives. That goal, while laudable, will predictably have a disparate impact on people with disabilities, including those with pre-existing medical conditions currently understood as risk factors for poor outcomes from COVID-19. In addition, because many African-Americans and other people of color similarly suffer from such conditions, this disparate impact on people with disabilities is intersectional with those from other historically-disadvantaged groups.

This Article distills and examines four rationing principles that underlie the policies in the state triage protocols. While finding some of the principles more acceptable than others, the authors contend that none balances utility with inclusion, as the Americans with Disabilities Act [ADA], and the moral commitments on which it rests, require. Instead, this Article proposes an alternative rationing system that explicitly reserves resources to accommodate both the aim of saving the most lives and that of ensuring that harms do not fall disproportionately on people with disabilities, thereby better instantiating the balance that undergirds the ADA.

Keywords: Covid-19, Disability, Rationing, Health care, Discrimination, Disparate Impact

Suggested Citation

Hellman, Deborah and Nicholson, Kate, RATIONING AND DISABILITY: THE CIVIL RIGHTS AND WRONGS OF CLINICAL TRIAGE PROTOCOLS (April 6, 2020). Virginia Public Law and Legal Theory Research Paper No. 2020-33, Available at SSRN: https://ssrn.com/abstract=3570088

Deborah Hellman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Kate Nicholson

Independent ( email )

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