by Vignesh Subramanian, December 3, 2021
As of November 2021, nine U.S. states – Alaska, Idaho, Montana, Washington, Colorado, Wyoming, New Mexico, Utah and Arizona – have either officially activated statewide crisis standards of care or have been on the brink of declaring their activation. The news comes as several more states, including the southern bloc of Georgia, Kentucky, Mississippi, Arkansas, and Texas, have warned that I.C.U.s are rapidly approaching capacity (Knowles). Amid waves of largely unvaccinated COVID-19 patients besieging weary hospitals, authorities have attempted to ease this burden by hastily formulating policies that will decide the relative value of human life during public health crises for decades to come. But what does all of this mean?
Crisis standards of care institute substantial changes to the delivery of healthcare services amid pervasive or catastrophic disasters, with the understanding that standard levels or quality of care can no longer be wholly provided to patient populations. In the United States, activation of these standards is formally declared by state governments and directly alters the evaluation criteria on which decisions about triage, transfers, and use of scarce resources are made. The criteria are far-reaching but vary immensely; some incorporate ‘inclusion criteria’– encouraging treatment of patients in good standing following assessments of their major organ health, life expectancy, and the order of the first-come/first-serve basis — while others also incorporate ‘exclusion criteria’– rejecting critical care for patients with low likelihood of immediate survival or poor ‘quality of life,’ or those patients for whom it is assumed that increased sustenance will not substantially provide significant benefit (Auriemma).
Physicians’ use of this last-resort discretion can be frightening; beyond the more expected measures of postponed elective, cosmetic, and nonurgent surgeries and longer wait times in general, patients are often subject to crucial decisions made on mere whims. Physicians can send patients home to rely on inadequate in-home medical equipment, transfer them to hospice care or other centers without the appropriate specialized facilities, and even remove them from life support entirely, all over their objections. Universal ‘do-not-resuscitate’ and ‘do-not-intubate’ orders are applied as blanket protocols to all patients in cardiac or respiratory arrest if insufficient staff are available, even without consideration of patient statuses on a case-by-case basis. Ventilators are given to those who are most likely to restore their normal breathing function, nearly defeating the purpose of the devices; ambulances are not guaranteed upon emergency calls; and patients may even be denied admittance into a hospital to begin with (Chin and Harris). As the systemic capacity to treat large patient volumes shrinks, so too does sympathy for those whose lives are simply deemed worth less.
Do not resuscitate (DNR) order — A written order from a physician, issued at a patient’s request, instructing healthcare providers not to perform any form of cardiopulmonary resuscitation (CPR) – including chest compressions, cardiac drugs, or placement of a breathing tube – on the patient should respiratory or cardiac arrest occur.(Breu and Herzig)
Do not intubate (DNI) order — A written order from a physician, issued at a patient’s request, instructing healthcare providers not to place a breathing tube to assist the patient’s breathing should respiratory or cardiac arrest occur. Unlike a DNR, a DNI still allows providers to administer chest compressions and cardiac drugs as necessary.(Breu and Herzig)
It is therefore not surprising that crisis standards of care amount to a death knell for the less-abled. Already, reports are being made of elderly patients and those with disabilities receiving subjective evaluations of their ‘quality of life’ from their physicians in violation of civil right statutes, being denied care at hospitals without resource shortages due to mere anticipation of capacity being reached, and being pressured — especially in the cases of patients with intellectual disabilities, and in the absence of caregivers — to sign off on advance directives they do not understand. Despite their relative inability to accurately predict the long-term survival probability of patients with disabilities, or whether or not such patients will require use of greater treatment resources, many doctors and lawmakers continue to place ableist judgement above sound scientific knowledge. Of the twenty-nine U.S. states that issued crisis standards of care guidelines before or at the start of the COVID-19 pandemic, the vast majority did not include language prohibiting discrimination against elderly or disabled patients in the provision of critical care, and few used their administrative processes to close such loopholes. Some state plans actually explicitly prioritize younger patients and those without comorbidities, while others prohibit people with specific disabilities from being offered life-sustaining ventilation support or throw discretion to hospital policy (Cleveland Manchanda). Such fragmentation of standards forces the current array of disability rights groups engaged in litigation against these hospitals to base their petitions on tort law claims rather than righteous grounds of disability discrimination, leaving patients at the mercy of an indifferent medical bureaucracy.
Ableist — The quality of being prejudiced or discriminatory against individuals with disabilities.(Neilson)
It is inexcusable that demonstrably false stereotypes about the ‘quality of life’ experienced by a patient with disabilities or old age are allowed to dictate the quality of care they receive. While the U.S. has made tangible progress towards extricating such biases from medical practice — one could certainly point to the Americans with Disabilities Act, Title VI of the 1964 Civil Rights Act, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act (DOJ, HHS) as prominent examples — those gains have evidently not been fully incorporated into the healthcare pathway. Even during a public health crisis, acute episodes of illness must not determine the relative value of a patient’s life simply because providers are under duress. Instead, moments such as these call for the best of physicians’ work ethic and equity in screening criteria and treatment allocation decisions.
“A Guide to Disability Rights Laws.” Civil Rights Division, U.S. Department of Justice (DOJ), Feb. 2020, https://www.ada.gov/cguide.htm#anchor64984.
Auriemma, Catherine L., et al. “Eliminating Categorical Exclusion Criteria in Crisis Standards of Care Frameworks.” American Journal of Bioethics, 18 May 2020, https://www.tandfonline.com/doi/full/10.1080/15265161.2020.1764141.
Breu, Anthony C., and Shoshana J. Herzig. “Differentiating DNI from DNR: Combating Code Status Conflation.” Journal of Hospital Medicine, Oct. 2014, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5240781/.
Chin, Natalie M., and Jasmine Harris. “Examining How Crisis Standards of Care May Lead to Intersectional Medical Discrimination Against COVID-19 Patients.” Center for Public Representation, UC Davis School of Law, Feb. 2021, https://www.centerforpublicrep.org/wp-content/uploads/FINAL-Intersectional-Guide-Crisis-Care-PDF.pdf.
Cleveland Manchanda, Emily C., et al. “Crisis Standards of Care in the USA: A Systematic Review and Implications for Equity amidst COVID-19.” Journal of Racial and Ethnic Health Disparities, Aug. 2021, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7425256/.
Knowles, Hannah. “Hospitals Overwhelmed by Covid Are Turning to ‘Crisis Standards of Care.’ What Does That Mean?” The Washington Post, 23 Sept. 2021, https://www.washingtonpost.com/health/2021/09/22/crisis-standards-of-care/.
Neilson, Shane. “Ableism in the Medical Profession.” Canadian Medical Association Journal, Joule Inc., 14 Apr. 2020, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7162445/.
“Section 1557 of the Patient Protection and Affordable Care Act.” Office for Civil Rights, U.S. Department of Health and Human Services (HHS), 27 Oct. 2021, https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html.