Discrimination in health care has only been exacerbated by the coronavirus, as state after state has considered Crisis Standards of Care that violate the civil rights and erode the inherent human dignity of elders and people with disabilities.
Battling these CSCs has been like a frantic game of whack-a-mole for advocates and the federal government alike. Numerous complaints to the United States Department of Health and Human Services Office for Civil Rights have been filed by disability and patient organizations. Articles in the public square have been decrying such unfair and degrading rationing protocol for months. Dr. Cara Christ and the Arizona Department of Health Services apparently didn’t get the memo.
In the wake of the COVID-19 crisis and under the pressure of a physician petition, she not only finalized a proposed CSC, but made Arizona the first state to deploy rationing protocol even though the state claims to have sufficient ICU capacity and ventilators. Although the physician petition came with requests for measures like a mask order and business closures, it also expressed the physicians’ desire not to be held liable in court for tough decisions on who lives and who dies.
The CSC activated in Arizona should be revised immediately and brought into compliance with civil rights protections that bar discrimination on the basis of age or disability, among other factors, as Tennessee has recently done. But the governor and ADHS have ignored the requests of disability and Native American advocates and thus far have failed to respond, as they promised they would. A complaint by allied advocates to OCR is sure to follow, OCR will act, and ADHS will have to waste precious time and resources correcting this at the height of the surge.
Under Arizona’s CSC, medical professionals are expected to inject often-wrong prognoses into a standard physiological assessment in order to determine who should live and who should die when there is a scarcity of medical resources. As with other life and death situations, like assisted suicide qualifications, faulty prognoses only increase the chances that people with disabilities, the elderly, and other vulnerable groups will not receive equal care if they become sick, because their perceived quality and length of life may be less than others. When the Arizona CSC explicitly directs triage teams to deprioritize people with best-guess prognostication of five years or less and one year or less post-COVID-19 recovery, they are making a life and death determination on an otherwise viable patient with a decent chance of surviving COVID-19.
Once this process is complete, if there is a tie in their skewed scoring system, Gov. Doug Ducey and Dr. Christ’s CSC has a set of tiebreakers, 4 out of 5 of which create a separate class of useful people: front-line care workers, and further discriminate based on age. Since when did usefulness to society become a litmus test for equity? It is at best unclear that if we prioritize front-line workers their recovery will result in saving a few more lives.
The real question is: Will this kind of ruthless utility, all driven by fear and thinly veiled societal ableism, cost us the principles of equality and the trust upon which the patient-physician relationship is built? And if so, where does it end? Should we prioritize smarter patients, prettier patients and famous patients? Either people with disabilities have equal human dignity or they don’t, even in crisis.
To top it all off, the Arizona CSC discourages, but ultimately allows, nonconsensual reallocation of scarce medical equipment — like a ventilator — from one patient with a chance of survival to another patient with a better chance of survival. In any other scenario, the nonconsensual removal of life-sustaining care from a patient with a chance of survival for whom the therapy is still medically indicated equals manslaughter.
It is time to reject unfair protocols like Arizona’s CSC and cruel policies like assisted suicide that involve inherent discrimination against vulnerable people and qualitative judgments on the value of their lives. We call on the governor and ADHS to use the Tennessee model CSC before the federal government embarrassingly forces them to do so. Finally, the Department of Health and Human Services and the Department of Justice should fast-track federal CSC triage protocol so states and courageous front-line physicians don’t keep finding themselves in this ethical and legal quagmire.
Matt Vallière is the executive director of the Patients’ Rights Action Fund.
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