In meeting the duty of care involved in treating a patient, physicians are subject to a variety of evaluative standards. These include ethical standards. In the 1979 first edition of Beauchamp and Childress’ seminal text, they identified four central principles of biomedical ethics in the treatment of patients: autonomy, beneficence, non-maleficence and justice.1 The first element—autonomy—encompasses the idea that the patient should remain free from coercion and make informed choices. Beneficence is about acting in ways that are beneficial for the patient and implicates principles of providing competent care, respecting rights of the patient, protecting patient information and maintaining the centrality of the physician’s responsibility to the patient. The ethical principle of non-maleficence is rooted in the fundamental idea of doing no harm to the patient. Last, justice in medical ethics usually entails respecting individual rights and acting fairly in the distribution of limited resources to individual patients.
Public health ethics, on the other hand, has a somewhat different vantage point. It became an organized discipline in the 2001 timeframe,2 suggesting that an individual’s autonomy is of lesser importance than the consideration of the overall impact on the community. The injunctions of the beneficence and non-maleficence principles are much more difficult to uniformly adhere to across an entire population. In the public health context, justice deals in terms of fairness in the distribution of risks and benefits of interventions and policies as they are applied to population groups.3 Although these principles are recognized, the values underlying public health ethics are frequently described as population-level utility, evidence, justice/fairness, accountability, costs/efficiencies and political feasibility.4
By March 2020, when the World Health Organization declared the increasing spread of the novel coronavirus disease COVID-19 to be a pandemic, these principles became part of a host of ethical concerns about various aspects of a healthcare provider’s duty to treat. With the increasing incidence of the disease, extensive conversation and intensive consideration of ethical concerns regarding allocation of scarce resources, triage and medical decision-making took place. In New Jersey, on March 9, 2020, Governor Murphy invoked the authority of the State Emergency Health Powers Act and in conjunction with the Commissioner of the Department of Health, declared a public health emergency.5
“The decision to institute or withhold CPR is a multi-factorial challenge.”
In the March 25, 2020 issue, the Washington Post reported debates at hospitals across the country over whether healthcare providers could unilaterally refrain from the “all hands” response involved in the cardiopulmonary resuscitation of patients with COVID-19.6 The decision to institute or withhold CPR is a multi-factorial challenge. The potential for recovery enters the decision matrix. Interventions in a patient in cardiac arrest are time-critical, and resuscitation involves intense activity. The process of CPR involves multiple staff, and there is the potential for transmission of viral droplets during either extubation or chest compressions, creating an increased risk for healthcare providers in attendance. In the early days of the pandemic, restricted availability of appropriate personal protective equipment (PPE) was a reality, adding to the increased risk for healthcare providers in attendance. Given the nature of the disease process, by extension, family members and other persons with whom there was later contact were within the scope of the risk.
On April 11, 2020, the New Jersey Department of Health published its Allocation of Critical Care Resources During a Public Health Emergency, which was adapted from a model policy developed at the University of Pittsburgh.7 This addressed a wide range of allocation concerns and ethical practices. It did not, however, have any comment on resuscitation decision-making. In April 2020, the New Jersey Hospital Association distributed guidance that had recently been developed in March at the University of Pennsylvania that focused on this issue.8 This guidance recognized that the demand for critical care resources could outstrip available supplies during a public health emergency. Such demand could trigger a shift to crisis standards of care to make use of limited resources for the best possible health outcome for the population as a whole, rather than focusing on an individual patient.
In formulating recommendations, the guidance on critical care allocation identified three particular considerations in the current context: 1) The possibility that CPR may not offer benefit for patients with COVID-19, particularly those with advanced age and comorbidities and/or with progressive respiratory failure despite maximal levels of invasive mechanical ventilation. 2) The probability that performing CPR on patients with COVID-19 will increase transmission to healthcare workers, threatening their own well-being and reducing their availability to treat future patients. 3) The value of making treatment decisions on individualized, case-by-case bases, rather than via blanket withholding of certain treatments from certain groups.
Building on this guidance, hospitals developed policies activated by the declaration of crisis standards and a vote of the medical executive committee. The resulting recommended policy is consistent with reasonable and ethically sound principles and provides for the following:
- Attending physicians are not obligated to offer or to provide CPR if resuscitative treatment would be medically inappropriate, even at the request of a patient or legally authorized representative. For patients with or without COVID-19, a determination that CPR would be medically inappropriate may be made on the grounds that CPR would not serve a medical purpose because of the patient’s prognosis with or without CPR. In addition, for patients with COVID-19, the risks to healthcare providers of performing CPR may influence a determination that CPR is not medically appropriate, if coupled with considerations of individual patients’ prognoses. Finally, if PPE is already being rationed, the need for substantial PPE use to perform high-quality CPR may inform determinations of medical appropriateness, if coupled with considerations of patients’ prognoses. In the event that the institution has implemented Crisis Standards for the current pandemic, it may also be appropriate not to offer CPR for certain patients with or without COVID-19, on the grounds that if the patient had a cardiac arrest, and return of spontaneous circulation were achieved, the patient would not receive a high enough priority for subsequent critical care. When possible, this determination should be made in coordination with the institution’s Chief Medical Officer (CMO), or with the institution’s Triage Officer (if such a position is created).
- If an attending physician, in conjunction with other clinicians involved in a patient’s care, determines that CPR is not medically appropriate for any of the reasons above, he or she should solicit the independent review of a second attending physician who is not involved in the patient’s care. If the second attending concurs that CPR is medically inappropriate, then the primary attending should enter a “Do Not Resuscitate” order in the medical record and document how this decision was made.
- Physicians who decide not to offer CPR should inform the patient or representative of this decision and its rationale, and assure the patient that all other forms of indicated care will continue. Patient or representative assent should be sought, but is not required.
Each of these elements is accompanied by some degree of controversy.
Unfortunately, even with the approval of several vaccination protocols, current public health data and statistics forecast a return of the extreme demands on healthcare providers and healthcare systems. Accordingly, sensitivity to the roles of healthcare providers and their ethical obligations in terms of a duty to care remain appropriate topics for debate and deliberation. This article will not discuss issues presenting a mixture of law and medical ethics in connection with the Americans with Disabilities Act, various forms of discrimination and emergency care.
Brief Historical Overview
The obligation to provide care in the setting of infectious pandemics has not proceeded in linear fashion through history. Scholars have demonstrated its mixed provenance. Medical history is pockmarked with instances of great Greek and Roman physicians, such as Galen, fleeing from Rome when plague struck the city in 166 AD. The time of the Black Death was not an example of courage and self-sacrifice in the face of the bubonic plague of 1347. In medieval times, physicians all over Europe sought to escape from incurable disease and incurable patients.
The same sort of response was present in the early United States. When yellow fever broke out in Philadelphia in 1793, many of the new nation’s government leaders (such as George Washington, Thomas Jefferson and Alexander Hamilton) fled to the countryside, as did some of the city’s best-known physicians. Not all Philadelphia physicians left; many of those remaining acted out of a religious obligation to the sick. Among those who stayed behind was Dr. Benjamin Rush, the revered physician, politician, social reformer, humanitarian, educator and signer of the Declaration of Independence.9 His rationale based on a perceived relationship with his patients provides a stimulus for thought.
In the middle of the 19th century, professional organizations were becoming more established, and a clearer ethical obligation to care for the sick emerged. This included the American Medical Association (AMA), which was founded in 1847, which today identifies itself as the largest association of physicians in the United States. Although a majority of licensed practitioners do not belong to the AMA, it has a dominant effect on public policy.
Role of the American Medical Association
As part of its formative documents, the AMA adopted its first code of medical ethics. It had a section entitled “The Duties of the Profession to the Public,” which included the following statement: “and when pestilence prevails, it is [the physicians’] duty to face the danger and to continue their labors for the alleviation of the suffering, even at the jeopardy of their own lives.”9 This provision remained in the AMA Code of Medical Ethics for more than 100 years.
The quoted provision of the Code of Medical Ethics has been described as serving “formally to enshrine the potential for professional obligations, distinct from matters of personal choice, charity or religion.”10 Consistent with an acceptance of a duty to treat despite personal risk, the time period between 1847 and 1957 was marked by medical heroism. This was the period of the Spanish flu of 1918, the outbreak of polio in the 1950s and tuberculosis epidemics at other points in time.9 It also was the time for ever-improving antibiotic treatments.
However, as the AMA’s Code of Medical Ethics became its Principles of Medical Ethics in 1957, the language of self-sacrifice began to change. The term “should” treat replaced the “must” phrasing along with an explicit recognition of physician autonomy in choosing whom to serve. At that time Principle 10 stated:
A physician may choose whom he will serve. In an emergency, however, he should render service to the best of his ability. Having undertaken the care of a patient, he may not neglect him; and unless he has been discharged he may discontinue his services only after giving adequate notice.10
The Principles of Medical Ethics were further amended and revised in 1980 and 2001. These were supplemented with the Ethical Opinions of the Council on Ethical and Judicial Affairs and Reports of the Council on Ethical and Judicial Affairs.11
The AMA’s Ethics Opinions currently reflect a somewhat different stance and include recognition of an obligation, to some extent, to treat:
“Individual physicians have an obligation to provide urgent medical care during disasters.”
Whether at the national, regional, or local level, responses to disasters require extensive involvement from physicians individually and collectively. Because of their commitment to care for the sick and injured, individual physicians have an obligation to provide urgent medical care during disasters. This obligation holds even in the face of greater than usual risks to physicians’ own safety, health, or life. However, the physician workforce is not an unlimited resource. Therefore, when providing care in a disaster with its inherent dangers, physicians also have an obligation to evaluate the risks of providing care to individual patients versus the need to be available to provide care in the future.12
The position in Ethics Opinion 8.3 is consistent with the analysis developed in connection with the emerging crisis standards of care and public health ethics.
The AMA has explicitly addressed the matter of CPR in patients with COVID-19 in a posting on the Internet. Drawing on other guidance recognizing a general requirement to administer CPR unless the patient had explicitly declined it, the AMA stated:
In public health emergencies, when CPR is unlikely to provide the intended clinical benefit and participating in resuscitation significantly increases already higher than usual risk for health care professionals, it may be ethically justifiable to withhold CPR without the patient’s consent.13
Public Health Ethics and Crisis Standards of Care
The terrorist attacks of September 11, 2001, and the subsequent bioterrorism threats stimulated preparation for public health emergencies in earnest. Agencies of the federal government in 2004 began planning for the need for what was then called “altered standards of care.”14
In September 2009, in anticipation of an impending pandemic involving the H1N1 influenza virus, the Institute of Medicine (IOM) was requested to prepare guidance for state and local public health officials regarding standards of care to be used in disaster situations under scare resource conditions. The resulting report advanced a concept of “crisis standards of care.”15 In an article written by the chairs of the IOM Committee, it was noted that state governments have the political and constitutional mandate to prepare for disaster events. However, “[w]hen crisis care becomes necessary, a threshold has been crossed requiring a coordinated response” and for this development, the IOM had defined crisis standards of care as “the optimal level of health care that can be delivered during a catastrophic event, requiring a substantial change in usual health care operations.”16
Dealing with the mass disaster situation presents the need to steward resources with the hope of avoiding rationing. However, a mass disaster can overwhelm the available human resources, space, medicine and equipment in a hospital, requiring allocation of scarce life-saving resources. This falls along a continuum of conventional, contingency and crisis surge responses to a point where the health system would need to allocate services to save the greatest number of lives. In their summary article, the IOM chairs recognized that, stating:
Physicians understandably feel troubled by discontinuing life-saving treatment such as ventilator support, but are ethically justified in complying with triage protocols to sustain life and well-being to the greatest extent possible. Still, ethical norms do not change during disasters—professionals remain obligated to providing the best care reasonable in these circumstances.16
The full report has more extensive consideration of the ethical framework for providing care in disasters. It acknowledges that tensions could arise between ethical principles. “Duties to care for individuals and to steward resources may come into conflict, for example.”17 However, the report also acknowledged that the duty to care is the primary responsibility of a healthcare professional including in disaster settings when there is some risk to the clinician. Ethical elements of a disaster plan should support the professional’s duty to care with division of responsibilities for such things as triage and direct treatment.
The IOM also underscored the obligation of healthcare institutions with regard to personal protective equipment, engineering controls and a variety of mechanisms to reduce the risk of infection to those who are providing care.15 Furthermore, it emphasized that “[c]risis standards do not permit clinicians to simply ignore professional norms and act without ethical standards or accountability.”18 Furthermore, although there has been some debate on the point, the term crisis standards of care was coined to avoid any suggestion that the standard of care was being lowered: In the allocation of scarce resources, “the care is different, but the standard is not.”19 The expectation is reasonable care under the circumstances.
Lessons Learned Regarding the Duty to Care from Recent Experience
Discussion and disagreement over the existence or extent of the duty to care for patients with infectious disease is not new. The literature is replete with germane and insightful articles. Some of these reviews have noted the potential for the dedication of the modern medical profession to have been undermined by increasing commercialization, poor morale, an emerging preference for easier professional lifestyles and the pervasive and corrosive self-centered individualism in recent America. Commentary may also be found in connection with the somewhat remote experience with AIDS and the more recent circumstances of Ebola, avian flu and SARS.20
A particularly eloquent expression of the analysis can be found in an article regarding the SARS outbreak in 2003:
These discussions concluded by reaffirming that devotion to caring for the sick is what distinguishes health professionals from lawyers, teachers, and businesspeople. This moral ideal defines the core element of being a medical professional. The obligation is not chosen; it is inseparable from the choice to become a doctor. To reject this ethical ideal is to reject the profession. …
Health care workers educated with this ethos responded with dedication to the SARS epidemic. This response does not mean that physicians and nurses caring for patients with SARS were not concerned [for their safety]. They asked questions, wondering how much risk they needed to take, how to deal with uncertainty in deciding about interventions, and what they—and, more important, their hospital administrators— could do to reduce the risks. But proceeding with caution is different from refusing to care for patients, different from declaring that health care workers are not obliged to risk their lives for patients with SARS, and different from threatening to quit practicing rather than care for such patients.21
Accepting this noble view of the professional obligation is not to endorse the notion that nurses or physicians should be martyrs in the treatment of patients with COVID-19.22 The policy for CPR decision-making in patients with COVID-19 set forth above is a measured and ethically sound approach to the circumstances presented by such patients. The duty of care is not absolute and unlimited. For example, a physician is under no obligation to donate a kidney to a patient.23 The limits of the duty are defined in part by the extent of the risk as a function of where the care is being provided. Another factor is the specialty of the healthcare provider. Certain specialties are inherently more likely to encounter higher-risk circumstances than others. There is an implicit consent to accept that increased risk.
That physicians have responsibilities beyond their professional obligations is also a factor to be considered. This includes protecting their families from infection. Moreover, the personal circumstances of the physician—in the COVID-19 setting, such things as age, race or ethnicity; medical conditions such as chronic kidney disease, heart disease or immunocompromised states—may also limit the expectations arising from the duty to care for these patients.
Furthermore, it is appropriate to reiterate that in asking physicians to accept the risk to personal safety, healthcare institutions and the greater society have a corollary duty to assure the availability of appropriate protective equipment and supportive measures. This might even include such things as arrangements for childcare or housing.
“As has been observed, we are all in this together.”
Effectively discharging this constellation of obligations presents challenges as well to hospital administration, as seen in the frustration in ordering necessary supplies such as PPE, ventilators, medications and more, only to encounter unavailability and lack of coordinated efforts due to supply and demand mismatches. Dependence on overseas sources threatens supply chains and undermines the effort to combat the pandemic.24 Although the ethical matrix may be different, the principles of justice and stewardship of resources are triggered. Investigation and research have begun.25 As has been observed, we are all in this together.
In the 1947 novel The Plague, Albert Camus wrote: “There’s no question of heroism in all this. It’s a matter of common decency. That’s an idea which may make some people smile, but the only means of fighting a plague is—common decency.”
That decency is, however, a reciprocal proposition.
*For purposes of this discussion, we draw a distinction between the duty of care and the duty to care. The latter phrase is equivalent to a duty to treat.
