Fukuoka – Earlier this month the national government and the Tokyo Metropolitan Government squabbled over which businesses should be requested to shutter under the state of emergency declared to control the spread of the new coronavirus pandemic. One subject of compromise was izakaya dining bars and restaurant opening hours. They were to cease serving alcohol at 7 p.m., and to close at 8 p.m.
I was incredulous when I read this. Why were they not requested to shut down? Crowded venues in which people share food and drink alcohol are hot spots for infection spread, I thought. What were the authorities thinking — that the economy mattered more than human life?
I realize now that my judgement was unfair. That decision by prefectural government authorities reflected a trade-off between protecting public health in a pandemic crisis, and protecting the incomes of many small businesses and of the people they employ. We can argue about the wisdom of the trade-off in this case, but sympathetic understanding of its different stakes is needed for thoughtful participation in such argument.
The fact is, most readers of this article — at least, those from wealthier nations — have only known a post-1945 era of prosperity and robust public health. We are unfamiliar with the agonizing trade-offs and drastic measures that governments, communities and individuals have contemplated in containing past pandemics, and in coping with the manifold economic, social and psychological ills generated in their wake.
Because we are so unfamiliar, we may leap to conclusions that the Japanese government’s declaration of a state of emergency is the prelude to a power grab that will crush civil liberties — or that it was slow to make that declaration because it cared only about the economy. We may also express horror and outrage at the idea of overwhelmed hospitals denying treatment to some critically ill patients, effectively letting them die.
There are ethical theories I want to discuss here that can help us to better understand and if necessary, criticize the reasoning behind such trade-offs, where there are negative side-effects for whatever is chosen.
One such theory, developed in the Catholic philosophical tradition, is called the “double effect doctrine.” This doctrine is applied to evaluate whether certain types of actions should be permitted that also have foreseeable side effects we ordinarily think are bad, such as death or other physical, psychological or economic harms to others.
There are four measures by which we judge such an action to be permitted: that the action is morally right or at least not wrong, that the negative side effect is merely allowed but not actually intended, that it is not also set up to work as a means to the end we are aiming at, and that the desired result is not brought about in a way that generates disproportionately negative side-effects.
Consider the following nightmarish pandemic scenario, which could yet happen in Japan.
Underprepared hospitals are overwhelmed by surges of ill patients, there are insufficient resources such as mechanical ventilators for the most critical cases, and medical staff are also falling ill. There is no choice but to impose disaster triage procedures, in which scarce resources and personnel are directed to prioritizing treatment of critically ill patients judged most likely to benefit from (and not expire during) treatment.
That means certain classes of critically ill patients with severe pre-existing medical conditions, often but not always the elderly, may be denied admission to intensive care units where ventilator intubation could sustain their blood-oxygen supply at levels essential for their survival.
This is done on the assumption that they are less likely than others to survive, especially after intrusive intubation procedures. However, they will definitely die without admission. Is setting them aside and giving them palliative care a case of deliberate or even negligent homicide once they die?
According to the doctrine of double effect, when such a decision is made carefully by trained medical professionals, we should say no. Yes, their death can be said to be an effect of setting them aside. There may have been a slight chance for intensive care treatment prolonging their life relative to their situation in palliative care.
While foreseeable, their deaths are not the intended effect, though the number of such deaths should not be disproportionately high relative to the number of people receiving intensive care, who are judged to have some chance of survival. The intention is just to focus scarce resources on those whose condition is most likely to be stabilized and possibly improved. Such triage procedure is therefore permissible.
Contrast this with the situation where a doctor secretly euthanizes some elderly, critically ill patients. He may convince himself that killing them will save more lives, and more valuable lives, because he and his colleagues can then focus resources on younger patients whom he thinks have a greater chance of survival. Nevertheless, his aim is to kill others as a means to his ends. According to the doctrine of double effect, that would count as the intentional killing of an innocent person. It would be murder.
Disaster triage procedures can quickly exhaust frontline medical personnel and impose anguishing choices that they would never make in normal medical circumstances.
The Japanese government’s emergency declaration and physical distancing measures are meant to contain infection spread and keep hospitalization rates at levels where the public health system is not overwhelmed and forced to implement such procedures. The intention is to stay this course until infection is suppressed or a vaccine is developed, though Japan has not yet developed legal means to enforce lockdowns and social distancing like other countries have.
Nevertheless, a second moral theory, utilitarianism, will raise questions about the economic and social costs of pursuing strict physical distancing and lockdown measures over the longer term.
Utilitarians like Peter Singer will ask us to consider this as a matter of moral account balancing. On one side we should tally not just the lives lost to coronavirus infection, but also the number of life years lost to an illness that is mostly fatal to the elderly.
However, we should also tally the “well-being of the community as a whole” in different countries as lockdowns and social distancing drag on.
This includes accounting for the preferences of poorer workers who cannot telecommute for their jobs, who lack adequate safety nets if they become unemployed, and who will starve in the poorest nations.
We must also acknowledge the preferences of elderly people willing to accept risks to their health and life if there is a relaxation of lockdowns, or if there is a “herd immunity” strategy that allows younger members of their families to get out to work or school again, while acquiring immunity to the virus through monitored exposure to it.
Advocates of the double-effect doctrine will object that there is a troubling intent in the notion of vulnerable elderly people offering, or subtly being “encouraged” to take one for the team. They will also argue that it is the responsibility of authorities, experts and citizens to access reliable information on the foreseeable consequences of lockdown relaxation or a herd immunity strategy.
For instance, poorer working age people more afflicted by conditions like diabetes, obesity, respiratory illness and heart disease have a higher risk of severe coronavirus infection. Both previously healthy and also unhealthy people in the 20-54 age group accounted for 38 percent of moderately and critically ill patients requiring hospitalization in a cohort studied by American epidemiologists in March.
Double-effect theorists would want us to consider the potentially disproportionate side effects of strategies for relaxing lockdowns or pursuing herd immunity before a vaccine is developed or infection suppressed. Such possible effects include the economic, public health and humanitarian impact of large numbers of elderly and working-age people being painfully incapacitated by infection — or dying from it.
As I write, Japan faces the prospect of exponential spread of COVID-19, and its hospitals are already under strain. Its governments, citizens and residents must cooperate to contain that spread, protect the interests of the most vulnerable and strengthen Japan’s welfare safety net for those whose livelihoods are now threatened.
It is frightening to think how many other nations are struggling in this crisis. But Japan at least has the advantages of an equitable public health system, and a constitutionally protected civil society in which the trade-offs and choices described above can be evaluated by moral, public reasoning, and elected officials held to account.
Shaun O’Dwyer is an associate professor in the Faculty of Languages and Cultures at Kyushu University, and the author of book “Confucianism’s Prospects.”
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