When hospitals face surges of patients with COVID-19, fair allocation of scarce medical resources remains a challenge. Scarcity has at times encompassed not only hospital and intensive care unit beds—often reflecting staffing shortages—but also therapies and intensive treatments. Safe, highly effective COVID-19 vaccines have been free and widely available since mid-2021, yet many Americans remain unvaccinated by choice. Should their decision to forgo vaccination be considered when allocating scarce resources? Some have suggested it should,while others disagree. We offer a framework for evaluating when it is ethical and briefly discuss its legality in American law

Largent, Emily A.

Persad, Govind

English

University of Denver

University of Denver Digital Commons @ DU Sturm College of Law: Faculty Scholarship University of Denver Sturm College of Law 4-8-2022 COVID-19 Vaccine Refusal and Fair Allocation of Scarce Medical Resources Govind Persad Emily A. Largent Follow this and additional works at: https://digitalcommons.du.edu/law_facpub  Part of the Health Law and Policy Commons COVID-19 Vaccine Refusal and Fair Allocation of Scarce Medical Resources ViewpointCOVID-19 Vaccine Refusal and Fair Allocation of Scarce Medical ResourcesGovind Persad, PhD, JD; Emily A. Largent, PhD, JD, RNWhen hospitals face surges of patients with COVID-19, fair allocation of scarce medical resourcesremains a challenge. Scarcity has at times encompassed not only hospital and intensive care unitbeds—often reflecting staffing shortages—but also therapies and intensive treatments. Safe, highlyeffective COVID-19 vaccines have been free and widely available since mid-2021, yet many Americansremain unvaccinated by choice. Should their decision to forgo vaccination be considered whenallocating scarce resources? Some have suggested it should,1 while others disagree.2 We offer aframework for evaluating when it is ethical and briefly discuss its legality in American law.Relevant ConsiderationsThe typical justification for considering past choices in scarce resource allocation is reciprocity—granting priority to individuals who have acted to protect the community or ameliorate scarcity.Reciprocity informs organ allocation: for instance, the US prioritizes past kidney donors, and severalcountries also prioritize pledged donors. Some hospitals’ pandemic triage policies proposed toprioritize frontline health care professionals for ventilators in recognition of their assumption of riskto care for others.3 Though reciprocity looks backward, it can also create forward-looking incentives:prioritizing frontline health care professionals, whether for ventilators or vaccines, may incentivizethem to continue working rather than quitting to avoid infection.4Reciprocity’s proper place in scarce resource allocation rests on its interplay with 2 core ethicalvalues: (1) benefiting people while preventing harm and (2) mitigating health inequities.5 Forsimplicity, we assume reciprocity is less important than these 2 core values, appropriate only if its usealigns with both and only then for breaking ties among similarly situated patients. This simplifyingassumption leaves open the possibility, however, that reciprocity may do more than break ties, justas in organ transplantation where prior donors receive more substantial priority.Determining whether consideration of past choices aligns with benefiting people andpreventing harm requires comparing different candidates’ expected improvements in outcome fromreceiving a scarce resource. Here, science can be a guide: does the past choice directly influenceoutcomes? For example, vaccination status might affect likelihood of benefit from a scarce resource,just as other medical differences might. Moreover, even if a choice—such as becoming vaccinated—does not affect likelihood of benefit, its consideration could still indirectly benefit people and preventharm by incentivizing people to ease scarcity by becoming vaccinated.Second, whether considering past choices will mitigate inequities depends on determining howpast choices and need for the scarce resource track disadvantage. Assessing whether disadvantagedpeople are overrepresented among, for instance, unvaccinated adults depends on how disadvantageis defined. In 2022, Americans who are members of racial and ethnic minority groups report higher-than-average vaccination rates, as do women and people with serious medical conditions.6 Thisraises the concern that prioritizing unvaccinated adults for COVID-19 therapies may exacerbateaccess disparities for some disadvantaged groups. Additionally, the association betweendisadvantage and non–COVID-19 health disparities means that disadvantaged people may beoverrepresented among patients with serious conditions other than COVID-19 who would benefitfrom scarce resources needed by all (eg, intensive care unit beds). Aiming directly to prioritize thoseAuthor affiliations and article information arelisted at the end of this article.Open Access. This is an open access article distributed under the terms of the CC-BY License.JAMA Health Forum. 2022;3(4):e220356. doi:10.1001/jamahealthforum.2022.0356 (Reprinted) April 8, 2022 1/4Downloaded From: https://jamanetwork.com/ by a University of Denver User  on 04/14/2022who are disadvantaged—for instance, by incorporating vulnerability indices into allocation7—may bepreferable to ignoring vaccination status in the hope of not exacerbating disadvantage.The National Institutes of Health (NIH) treatment guideline for the scarce therapy Paxlovid(Pfizer), authorized for treatment of mild-to-moderate COVID-19,8 illustrates the interplay betweenbenefit, mitigation of inequities, and reciprocity. Tier 1 includes immunocompromised adults, whomay be unable to mount a robust immune response to vaccination, alongside unvaccinated adults 75years and older or 65 years and older with 1 chronic condition. Tier 2 includes the remainingunvaccinated individuals 65 years and older and anyone unvaccinated and younger than 65 yearswith risk factors. Tiers 3 and 4 include vaccinated individuals at heightened risk. We argue, contraryto the NIH treatment guideline, that tier 1 should be restructured to place immunocompromisedadults—particularly those older and with additional chronic conditions—before unvaccinated adults.Tiers 2 and 3 should be reorganized to prioritize vaccinated adults who are older or have chronicconditions, particularly if unboosted, over younger unvaccinated adults. This restructuring wouldbetter align the NIH treatment guideline with preventing harm, mitigating health inequities, andreciprocity. Reciprocity’s proper place, however, is limited: prioritizing vaccinated younger adults,currently in tier 4, over unvaccinated older adults in tier 1 would be difficult to justify becausereciprocity sharply diverges from preventing harm.Objections to Considering Vaccine RefusalThose categorically opposed to consideration of past choices, particularly COVID-19 vaccination, tolimit access to scarce medical resources make 4 general arguments. First, some claim that weighingpast choices violates physicians’ duty of nonjudgmental loyalty to their patients.2 While physiciansdo have special duties to their patients, appeals to such duties cannot resolve questions of fairallocation of scarce resources in a pandemic. These are questions of public health, guided by differentethical considerations and appropriately resolved by policy makers—institutional or governmental—rather than by bedside clinicians. Considering past choices as one factor in a uniformly appliedpandemic triage policy differs from denying care on an ad hoc basis.Second, consideration of past choices might be criticized as inappropriately driven by negativefeelings—vengeance, anger, or blame. But weighing past choices need not appeal to negativeemotions, as evidenced by prioritization of past organ donors or frontline health care professionals.Reciprocity may be an appropriate response to the socially valuable contributions made by thosewho are vaccinated, or an appropriate consequence for the exacerbation of scarcity caused by thosewho refuse vaccination.Third, some worry that allowing consideration of specific past medical choices, such asvaccination, will result in permission to consider all past choices, which could produce bias orarbitrariness. Yet, limiting principles exist to arrest a slide down this slippery slope. For example,relevant behaviors should be readily verifiable, broadly accessible, and directly linked to the outcomeof interest. Vaccination status is well documented; moreover, COVID-19 vaccines are widely available,safe, and alleviate preventable scarcity by dramatically reducing severe disease, hospitalization,and death.Fourth, cumulative opportunities and experiences shape choice. This has been a challenge withvaccine access and uptake,9 leading to worries that considering past choices will further harm victimsof misinformation or reinforce mistrust in the health care system. Because political identity nowappears more strongly associated with vaccination choices than do socioeconomic variables such asrace and ethnicity and income group, this concern is distinct from mitigating inequities.6 We do notbelieve the politicization of vaccination decisions justifies categorically ignoring past choices, butrather justifies evaluating ethical and practical consequences before incorporating past choices intoallocation frameworks.JAMA Health Forum | Viewpoint COVID-19 Vaccine Refusal and Fair Allocation of Scarce Medical ResourcesJAMA Health Forum. 2022;3(4):e220356. doi:10.1001/jamahealthforum.2022.0356 (Reprinted) April 8, 2022 2/4Downloaded From: https://jamanetwork.com/ by a University of Denver User  on 04/14/2022Legal DimensionsPolicies considering past conduct do not violate the Americans with Disabilities Act so long as theyinclude reasonable accommodations for those medically ineligible to engage in the requisite conduct.Voluntarily forgoing vaccination is legally distinct from medical ineligibility. Meanwhile, though thelegal status of religious objections to vaccination remains unclear, it is settled that physicians makingtreatment decisions may consider whether a patient has committed to refuse treatments, such asblood transfusions, even for religious reasons. The most likely basis for legal challenges to policiesconsidering past choices would be novel antidiscrimination laws, such as a recent Montana law thattreats vaccination status similarly to race or sex.10ConclusionsWhen allocating resources under conditions of scarcity, considering past choices may sometimes beethically defensible. Its appropriateness depends on the details of the past choice in question, thelocal context, and whether doing so prevents harm and adequately mitigates inequities.ARTICLE INFORMATIONPublished: April 8, 2022. doi:10.1001/jamahealthforum.2022.0356Open Access: This is an open access article distributed under the terms of the CC-BY License. © 2022 Persad Get al. JAMA Health Forum.Corresponding Author: Emily A. Largent, PhD, JD, RN, Department of Medical Ethics and Health Policy, Universityof Pennsylvania Perelman School of Medicine, 423 Guardian Dr, Blockley Hall, Room 1403, Philadelphia, PA 19146(elargent@pennmedicine.upenn.edu).Author Affiliations: University of Denver Sturm College of Law, Denver, Colorado (Persad); Department ofMedical Ethics and Health Policy, University of Pennsylvania Perelman School of Medicine, Philadelphia (Largent).Conflict of Interest Disclosures: Prof Persad reported grants from the Greenwall Foundation and personal feesfrom The ASCO Post and the World Health Organization. Prof Largent reported grants from the GreenwallFoundation and the National Institute on Aging.REFERENCES1. Marcus R. Doctors should be allowed to give priority to vaccinated patients when resources are scarce. TheWashington Post. September 3, 2021. Accessed March 9, 2022. https://www.washingtonpost.com/opinions/2021/09/03/doctors-should-be-allowed-give-priority-vaccinated-patients-when-resources-are-scarce/2. Wikler D. When medical care must be rationed, should vaccination status count? The Washington Post. August23, 2021. Accessed March 9, 2022. https://www.washingtonpost.com/outlook/2021/08/23/refuse-covid-treatment-unvaccinated-triage/3. Antommaria AHM, Gibb TS, McGuire AL, et al; Task Force of the Association of Bioethics Program Directors.Ventilator triage policies during the COVID-19 pandemic at US hospitals associated with members of theassociation of bioethics program directors. Ann Intern Med. 2020;173(3):188-194.4. Garrett AL, Park YS, Redlener I. Mitigating absenteeism in hospital workers during a pandemic. Disaster MedPublic Health Prep. 2009;3(suppl 2):S141-S147.5. Emanuel EJ, Persad G, Kern A, et al. An ethical framework for global vaccine allocation. Science. 2020;369(6509):1309-1312. doi:10.1126/science.abe28036. Hamel L, Lopes L, Sparks G, et al. KFF COVID-19 Vaccine Monitor: January 2022. Kaiser Family Foundation.January 24, 2022. Accessed March 9, 2022. https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-january-2022/7. White DB, Lo B. Mitigating inequities and saving lives with ICU triage during the COVID-19 pandemic. Am JRespir Crit Care Med. 2021;203(3):287-295. doi:10.1164/rccm.202010-3809CPJAMA Health Forum | Viewpoint COVID-19 Vaccine Refusal and Fair Allocation of Scarce Medical ResourcesJAMA Health Forum. 2022;3(4):e220356. doi:10.1001/jamahealthforum.2022.0356 (Reprinted) April 8, 2022 3/4Downloaded From: https://jamanetwork.com/ by a University of Denver User  on 04/14/20228. The COVID-19 Treatment Guidelines Panel’s interim statement on patient prioritization for outpatient anti-SARS-CoV-2 therapies or preventive strategies when there are logistical or supply constraints. National Institutesof Health. Updated December 23, 2021. Accessed March 9, 2022. https://www.covid19treatmentguidelines.nih.gov/therapies/statement-on-patient-prioritization-for-outpatient-therapies/9. Corbie-Smith G. Vaccine hesitancy is a scapegoat for structural racism. JAMA Health Forum. 2021;2(3):e210434. doi:10.1001/jamahealthforum.2021.043410. Montana Code Ann. §49-2-312 (2021).JAMA Health Forum | Viewpoint COVID-19 Vaccine Refusal and Fair Allocation of Scarce Medical ResourcesJAMA Health Forum. 2022;3(4):e220356. doi:10.1001/jamahealthforum.2022.0356 (Reprinted) April 8, 2022 4/4Downloaded From: https://jamanetwork.com/ by a University of Denver User  on 04/14/2022

COVID-19 Vaccine Refusal and Fair Allocation of Scarce Medical Resources

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