Allocation of critical care resources: Entitlements, responsibilities, and benefits

ETHICS IN CRITICAL CARE

Allocation

of Critical Care Resources: Entitlements, Responsibilities, and Benefits Glenn C. Graber

Determination of allocation of limited critical care resources appears to be an inevitable development. Criteria proposed to assign such limited resources among patients are not defined. It has been argued that allocation of critical care resources could be based on the principals of patient entitlements to health care, responsibilities of the physician to the critically ill patient, and benificence. However, based on an analysis of the philosophical tenants of the Hippocratic Oath, there is little to support the concept of “sin” taxes or patient triage on the basis of judgment on the moral merit of the patient. Copyright o 1993 by W.B. Saunders Company

HE PATIENT in bed A of the medical intensive care unit (MICU) is a young man admitted for his third bout of bacterial endocarditis secondary to intravenous (IV) drug abuse. As soon as he is released from the hospital, he will begin serving a 20-year prison sentence for his second conviction for armed robbery. He robs for money to buy drugs. The patient in bed B is a young woman who is suffering from extreme exposure and frostbite. When she left home to go camping in the woods, she knew that snow was predicted, but she did not expect the blizzard that left her stranded for several days in subzero weather. The patient in bed C is an elderly man who has been an alcoholic for many years and is now in end-stage liver failure. This is probably his final admission. The patient in bed D is a teenaged boy who tried to impress his friends by showing he could pick up a rattlesnake without getting bitten. He was mistaken. He has been in the ICU for nearly a month. The rescue was dramatic, and his recovery is nearly complete, but his care has been enormously expensive.

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From the Department of Philosophy, Universiy of Tennessee, Knoxville; and the Department of Medicine, University of Tennessee Medical Center at Knoxville, Knoxville, TN. Received April 2, 1993; accepted April 5, 1993. Address reprint requests to Glenn C. Graber, PhD, Department Philosophy, The University of Tennessee, Knoxville, X01 MeClung Tower, Knoxville, TN 37996.0480. Copyright (I? 1993 by W. B. Saunders Company

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The patient in bed E is in the terminal stages of acquired immune deficiency syndrome (AIDS) with a CD4+ T-lymphocyte count below 100. The patient in bed F is in the terminal stages of cystic fibrosis. A typical MICU census? Probably not. Yet, is there any such thing as a “typical” census in today’s MICU? However, this list is probably typical in that most of the patients in the unit are here because of their own choices and actions. Thus, the issues of entitlement and responsibility arise. What is the entitlement of patients to health care, and how (if at all) is this entitlement affected by patients’ responsibility for threats to their own health? Can we say that patients are entitled to health care no matter what they do? If not, where should we draw the line? THE HIPPOCRATIC

TRADITION

Actually, this is not a new concern. Some scholars interpret one section of the Hippocratic Oath as addressing this same issue. The relevant provision of the Oath says: I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.’

What kinds of “harm and injustice” are being referred to here? This is often taken to refer to iatrogenic harm (and thus as a call for “due care” in the course of medical practice) or harm from third parties (and thus as a call for the physician to serve as patient advocate and defender), but the classics scholar Ludwig Edelstein maintains in his commentaries based on a life-long study of the Oath2 that what is actually being referred to here are harms that patients inflict on themselves. In further discussions of this section of the Oath, the Hippocratic corpus focuses on many of the ways that some patients inflict harm and injustice upon themselves, eg, poor diet, lack of exercise, and other aspects of Journalof

CriticalCare,

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1993: pp 128-132

ENTITLEMENTS,

RESPONSIBILITIES,

BENEFITS

what we today would call poor “lifestyle” choices. The attitudes of the Hippocratic physicians are as realistic (or, as some would say, cynical) as the most pessimistic of today’s physicians. They do not hold much hope that these patients will take their physician’s advice and change their behavior. And yet, in spite of the recognition that these patients have “brought this upon themselves” and that they will undoubtedly do it again (or some new harm that is equally devastating to their health), Hippocratic physicians perceive an obligation to apply their skills “for the benefit of the sick.” This nonjudgmental approach to rescuing the patient in crisis has been the tradition of Hippocratic medicine throughout Western history. It seems clear that the high level of esteem in which physicians are held in our society today is due in significant measure to the dedication of generations of physicians to providing benefit to patients, even when patients themselves have been less than fully responsible. These patients have a strong expectation that, when they go to their physician, they will receive treatment, perhaps advice for changing behaviors, but rarely if ever condemnation and judgment of their lifestyle choices. Some patients have come to count on the ability and willingness of the medical community to rescue them from the consequences of their own actions. At a community forum on issues in medical ethics several years ago, one member of the audience succinctly asserted the attitude of some patients. He said, “I’ll tell you what we want from medicine. We want to be able to eat as much and whatever we want, drink as much and whatever we want, carouse as much and however we want, and you see to it that we live to be a hundred or more.” THE CONCEPT

OF ENTITLEMENT

Are patients entitled to this? Surely not; for one thing. it is an impossible goal. And we cannot speak of anybody’s obligation to provide what it is impossible to provide. Are patients entitled to any measure of health care? This is an issue currently under vigorous national debate. One premise in the crusade for a universal national health care system is the claim that thcrc is a universal entitlement to

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health care, at least in any society as affluent as ours. It is pointed out that some 30 million or so Americans have no form of health insurance nor any government program that will assist them in paying for medical treatment. and this is said to be a scandal and an injustice. However, it is far from clear how a claim of entitlement for these people would be based. The language of rights is problematic at best. and debates about rights quickly become mired in fundamental political disagreements. Nevertheless, let me try to outline some fundamental points about entitlements that are relevant to our issue. The clearest basis for an entitlement is a promise. If I promise my daughter that I will take her to the circus on Saturday, she thereafter becomes entitled to go. The entitlement is even stronger if the promise is made conditional on some performance on her part, as when I promise her that, if she keeps her room neat all week, I will take her to the circus. She has worked diligently to keep her room neat all week long. She has every right to feel that she is entitled to go to the circus. We might see something such as this as a basis for a sort of entitlement on the part of those with whom one already stands in a physician-patient relationship. One can view the process of accepting someone as one’s patient as making a “promise” to them to provide care when it is needed. This way of thinking is the root of the judgment that abandonment is an injustice against a patient. But those who have not been accepted as patients have received no such promise. How could they be considered entitled to treatment’? We might acknowledge that it is a tragedy that 30 million Americans find themselves without access to medical care, but who promised them any such thing? Certain social “entitlement” programs may be said to be based on this sort of a promise. Take Social Security, for example. The promise is made that if I pay to the Social Security system now while I am productively employed, 1 will be provided for by that system later, during my retirement, in case of disability, etc. This is quite parallel to my agreement with my daughter to reward her for cleaning up her room, including the coercive element of each arrange-

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ment. I do not offer my daughter an unlimited range of choices: if the enticement of a reward were not effective in getting her to clean her room, a punishment, or at least threat of punishment, would probably be forthcoming to achieve the same goal. So she is not really free with regard to this chore. At present, our interest is not with the coercive element, however, but with other aspects of these sort of entitlements. Is there any sort of promise, or especially any performance-basedon-expectation, involved in current claims for universal entitlement to health care? Not really. The closest thing to a promise we have seen in this area are certain campaign promises to deal with this issue. But it is significant that these have been made, not by the medical profession, but by politicians. With rights or entitlements, it becomes important to identify who the right is held against,” ie, who must satisfy the obligations that are correlative with the rights. If I make the promise to take my daughter to the circus, clearly she has a right against me to go. I face the obligation to take her, or at least to see that she gets to go, and I would be morally remiss if I failed to fulfill this obligation. Similarly, if you accept a patient into a physicianpatient relationship, the obligation not to abandon them is on your shoulders. They have a right against you to treatment. In parallel to this, any entitlement to health care is thus an entitlement against the government, not against the medical profession. The government must devise policies to provide for treatment for those who are entitled to it. Thus, little about this entitlement would transfer to the individual physician facing questions about the day’s census in the MICU. This form of entitlement would do little to help us decide whether it might be appropriate to limit care to some or all of our six patients. Physicians might be linked to the entitlement system at a second level. It might be argued that society in general is entitled to some service from physicians as sort of a debt of gratitude in return for benefits the society has bestowed on the phsicians, benefits ranging from the concrete ways in which the government subsidizes medical education to the more amorphous ways in which members of society manifest support and respect for physicians. And society may

C. GRABER

claim its entitlement as a part of its system to provide for the entitlements it owes to its citizens, thus giving the physician an indirect obligation to honor these entitlements. This basis of physician obligation would complicate any entitlement-based decision-making about limits to treatment, because not all elements of entitlement are equally transferable. To continue the circus analogy: if a crisis arose making it impossible for me to honor my commitment to take my daughter to the circus, I might persuade my neighbor to take her; but she would not have the same claim to snacks and souvenirs against him that she might have against me if I had taken her myself. The upshot is that the notion of entitlement raises at least as many problems as it solves in addressing our question of the appropriateness of limiting treatment for our six MICU patients. THE CONCEPT

OF BENEFIT

Indeed, medicine has not traditionally made much use of the concept of entitlement at all in its thinking about treatment issues. Instead, the traditional concept used by medicine has been the notion of “benefit” as in the excerpt from the Hippocratic Oath quoted earlier. There are important differences between the notion of entitlement and the notion of benefit. Entitlement is a term within the theory of justice. This accounts for the somewhat adversarial and demanding tone in which claims of entitlement are often expressed. Furthermore, it accounts for the fact that claims of entitlement can be influenced by judgments of merit, or demerit. I may both gain entitlements to something and lose them because of my own actions. To use a simple example, I may become entitled to one of the cookies that I, my siblings, and my parents are baking because of my contribution to the group effort. But I may also lose my entitlement if I misbehave and detract from the group effort. It seems quite reasonable to say, “You threw flour on your sister, so you are no longer entitled to a cookie, whereas she cleaned up the mess you made, so she is entitled to two.” But it is less clear that whether a cookie would benefit me is influenced by issues of merit

ENTITLEMENTS,

RESPONSIBILITIES,

BENEFITS

or demerit.* The nutritional value of the cookie is the same whether I misbehaved or not, so it will benefit me in the same ways and to the same degree in either case. In general, the language of benefits does not link up with the justicelanguage of responsibility and merit in the same way as the language of entitlements. Thus, the traditional approach of medicine (let us call it the Hippocratic perspective) has been to more or less ignore issues of merit and to do what needs to be done to benefit the patient. THE MORALE

OF CAREGIVERS

Yet, this approach can lead to frustration on the part of caregivers. To have patients readmitted again and again in a crisis that could have been avoided if they had followed your advice is bound to be demoralizing. Even though you can be pretty sure that you can benefit the patient again on this admission, it can be difficult to motivate yourself to expend the effort when you can be sure they will begin to undo your work immediately upon discharge. This sort of feeling finds natural expression in the language of merit and demerit: “They are irresponsible. They do not deserve my efforts on their behalf. Others in the unit are more deserving, and perhaps I should concentrate my efforts on them.” If you have never heard this sort of talk among your MICU staff (or even coming out of your own mouth), you have a staff that is so tolerant that it amounts to saintliness. In today’s cost-containment crusades, similar issues emerge. It seems natural to question whether these irresponsible patients are entitled to the resources necessary to overcome their medical crisis or whether it would be a more ,just use of limited resources to divert them to other, more deserving patients. Thus, there is discussion of “sin” taxes or penalties in current proposals.

Actually. there is one sort of benefit that merit does affect. the benefit of moral training or development. For me to receive an undeserved cookie might undermine the moral lessons you are trying to teach me. and for me to fail to receive ~1cookie when I misbehave may reinforce the point that I ought not to behave in that way. We will discount this wrt of benefit for the moment. We will return to it briefly hefore the end of the essay.

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DEGREES

OF RESPONSIBILITY

The obvious problem this sort of talk raises is the question of how we are to determine dcgrees of merit and demerit to serve as a basis for these allocation judgments. At what point can we say that the long-term alcoholic or drug addict made a choice to pursue this “lifestyle”? And if we cannot speak of the pattern of behavior as stemming from a deliberate choice, can we say they are responsible for the consequences of this pattern of behavior? If we probe into the social history of these patients, is it not equally plausible to view them as victims as to consider them irresponsible? If alcoholism is classified as a disease, does this not suggest that it is more something that happens to one than a matter of choice for which one is personally responsible? If one becomes an alcoholic OI drug abuser at least in part because one grew up in a severely dysfunctional, codependent family. is this not as little one’s own responsibility as having cystic fibrosis because one’s parents chose to reproduce even though they knew something of their genetic risk? Why, then, do we tend to regard the alcoholic as personally responsible but not the patient with cystic fibrosis? Is it that some “sins of the fathers” but not others are ascribed to the sons? Furthermore, how do we comparatively weigh different forms of irresponsibility? Is the person who engaged in sexual relations with a prostitute one time and became infected with human immunodeficiency virus (HIV) more or less meritorious than the long-term drug addict who uses shared needles and thus runs the risk of infection on a regular basis? Is the person who goes camping in the mountains in the face of a snow forecast more or less responsible than one who takes the risk of unprotected sex‘? Is our judgment of personal responsibility to be varied solely on the basis of the probability of the risk (ie, is the probability of a blizzard greater OI lesser than of infection from unprotected sex) or must we take into account the magnitude of the risk or its avoidability or how widely known the risk is, or other such factors? Attempts to answer these questions in any rationally dcfcnsible way seem hopeless. Perhaps WC could attempt to work out a calculus of responsibility. We do something like this in the criminal law

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GLENN

when we affix punishments, but even this is widely criticized as arbitrary in its application. BACK TO BENEFIT

Perhaps the best solution is to return to the Hippocratic tradition’s language of benefit and avoid taIk of entitlement and responsibility altogether. This could clearly be helpful in determining what procedures to limit, if some must be curtailed. The first to go should be treatment that we can expect to be futile, ie, nonbeneficial. Furthermore, in determining benefit, we should think not merely of the short-term, ie, getting past this particular and immediate crisis, but of the long-term and broad picture,4 includ-

C. GRABER

ing a realistic appraisal of the likelihood that the patient will change the behavior that precipitated the crisis. This is a different judgment than an appraisal of responsibility or demerit. It is continuous with the judgments of effectiveness that pervade medical reasoning in all its facets. It should be possible to avoid being in any way judgmental, ranking some patients as more worthy than others, playing judge and jury, or anything of the sort, and yet to make triage decisions about setting limits to treatment when resources are scarce. This approach is more consonant with the Hippocratic tradition than one that imports notions of responsibility and demerit into medical thinking.

REFERENCES 1. Edelstein L: Bulletin of the History of Medicine, Supplement 1. Baltimore, The Johns Hopkins Press, 1943 2. Temkin 0, Temkin CL: Ancient Medicine: Selected Papers of Ludwig Edelstein. Baltimore, Johns Hopkins University Press, 1967 3. Graber GC, Beasley AD, Eaddy JA: Ethical Analysis

of Clinical Medicine: A Guide more, Urban & Schwarzenberg,

to Self-Evaluation. 1985, pp 107-108

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4. Graber GC, Beasley AD, Eaddy JA: Ethical of Clinical Medicine: A Guide to Self-Evaluation. more, Urban & Schwarzenberg, 1985, pg 186

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