The Brooklyn Law School Center for Health, Science and Public Policy sponsored the most recent installment of its theory-practice seminar series, “Preventing a Disaster: Guidelines for Dealing with Epidemics,” on October 2 to address the legal and policy issues that are likely to arise in an influenza pandemic.
Recent outbreaks of avian influenza have generated concern about, and prompted health officials to plan for, the possibility of a pandemic that would overwhelm the health care system and its resources. Executive Director Karen Porter organized the event and moderated the program, while Professor Marsha Garrison introduced the panel participants. The purpose of the program, said Porter, was to “provide a forum that covers an issue of significant importance to the public where there hasn’t been enough public discourse.”
In 2006, the New York State Department of Health released its draft preparedness plan for a possible influenza pandemic. Shortly thereafter, the New York State Task Force on Life and the Law, at the request of the Department of Health, convened a workgroup to consider the clinical and ethical issues involved in the allocation of mechanical ventilators in such a pandemic. The group brought together distinguished experts in the fields of bioethics, law, medicine, and policymaking with representatives from medical facilities and government to address necessary alterations in the standard of care in an emergency. The suggestions set forth by the workgroup are based upon the premise that while there are currently a sufficient number of ventilators for use in the state’s medical facilities, in the event of a pandemic there would likely be a severe shortage of machines, as well as doctors and nurses to employ them effectively. Given that anticipated shortage, it is necessary to devise a plan for allocation of available resources whereby some individuals will receive treatment and others will not.
At the seminar, Tia Powell, director of the new Montefiore-Einstein Center for Bioethics, explained the origins of the workgroup and discussed the ethical framework on which the clinical solution must be based, as well as the critical care triage system itself. Significantly, she stated, the workgroup concluded that the most ethical and effective method of allocation is to solely use objective clinical criteria to determine which individuals have the greatest chance of survival with ventilatory support. Beth Roxland, Acting Director and Senior Attorney of the New York State Task Force on Life and the Law, discussed the legal issues that informed the recommendations of the workgroup and those that were not addressed by the resulting report. These issues include the level of liability protection for health care providers, the potential suspension of laws by the governor, and constitutional concerns of due process and equal protection that may arise when an individual appeals a decision regarding triage, i.e., whether or not that individual will receive ventilator treatment. Roxland also outlined the costs and benefits of the various mechanisms with which the workgroup recommendations can be implemented: legislation, regulation or mere guidelines.
The panel also included Ramanathan Raju, Executive Vice President and Corporate Chief Medical Officer of the New York City Health and Hospitals Corporation, the largest municipal hospital and health care system in the United States. Raju focused on the crucial issues of social justice and equitable access that must be considered when implementing a system of rationing. As a matter of procedural justice, he explained, the plan must: provide for consistent application of standards throughout the state; require that decision-making be impartial and neutral; provide that all decisions be made with dignity and respect; and insist that the voice of affected individuals be part of the process. Specifically, Raju stressed that allocation must take into account existing imbalances in access to health care resources that would be exacerbated in a pandemic and ensure that the chronically underserved, and the health care institutions that serve them, are fully prepared.
Finally, Martin Strosberg, Professor of Healthcare Management and Policy at Union Graduate School and Professor of Bioethics at the Union Graduate College-Mount Sinai School of Medicine Bioethics Program, addressed the proposed plan from the perspective of the health care provider and discussed its compatibility with the experience and constraints of intensive care units. He stated the implementation of such voluntary guidelines and supporting legislation is crucial to support physicians and nurses in their decision-making process “at the bedside.”
While the New York State Task Force on Life and the Law’s recommendations appear to provide a comprehensive and effective solution to the problem of scarce resources in the event of a pandemic, they remain just that – recommendations. The workgroup submitted this initial draft for public comment in early 2007 and continues to form subcommittees, conduct focus groups and incorporate suggestions of the public.