II. Justice at the heart of the British healthcare system

The resources available and mobilised for healthcare in the UK have been out of sync with the growing needs of society long before the surge of COVID-19.^{Footnote 1} In fact, the scarcity of these resources has mandated patterns for their allocation ever since the inception of the NHS.^{Footnote 2} Aneurin Bevan, founder of the NHS, had established that healthcare resources had to be available universally based on patients’ needs rather than their ability to pay, in order to stop ill health in the population after the war. This automatically placed the national institution within a framework of justice.^{Footnote 3} Nonetheless, considerations around the basic entitlement to healthcare, whether resources should be allocated based on a patient’s, a community’s or a population’s needs or whether the NHS should aim to provide individuals with greater life opportunity by satisfying healthcare needs, still to this day occupy the policy debate, and most particularly in this time of crisis.

In theory, justice mandates that we treat equally those who are alike and those who are different in proportion to their differences. Justice balances the needs and desires of individuals with the claims of the community.Footnote ⁴ It is concerned with human relationships in the social order and issues of distribution. Distributive justice, as an element of justice, provides methods for the allocation of resources. Moral political philosophers have called on different ideas of distributive justice such as liberal equality, utilitarianism, communitarianism and libertarianism to create appropriate allocation frameworks for healthcare.Footnote ⁵ Each of these four conceptions of distributive justice can form the basis of a healthcare policy. At times, they are also merged to adjust the distribution of healthcare resources.

Granted, healthcare resources do not possess outstanding attributes in comparison to other health determinants. However, their moral significance derives from the role they play in our lives. The pattern chosen for their allocation must therefore focus on the attainment of justice.Footnote ⁶ It is the indisputability and seriousness of healthcare needs that make the distribution of these resources stand out from the allocation of any other consumer good. Their importance stems from the potential they have to alleviate risk of illness, suffering and absolute harm.^{Footnote 7}

In line with these theoretical considerations, the bedrock of liberal egalitarian justice on which rests the NHS aims to provide equal access to care through the availability of publicly financed services at the point of use.^{Footnote 8} This has fostered a sense of pride in the British population and explains in part why over the past 70 years the egalitarian core of the NHS has been adapted but has persisted in spite of major political and economic shifts.^{Footnote 9} Even though crucial turning points at the national level have triggered healthcare reforms that embraced alternative ideas of justice, at times prescribing the use of utilitarian means or libertarian principles to achieve greater efficiency and guarantee equal access to care, the original egalitarian goals have not been compromised.Footnote ¹⁰

After the war, Bevan was convinced that “illness should neither be an indulgence for which people have to pay, nor an offence for which they should be penalised, but a misfortune, the cost of which should be shared by the community”.^{Footnote 11} There was also the necessity to respond to fear with a collective action led by the state. From the start, the NHS rested on ideas of fairness and equality and an understanding that resources had to be shared in order for the rich and the poor to have the same access to services.Footnote ¹² All would be treated equally, even the most vulnerable patients, thanks to the redistribution of resources and a system of provision based on needs rather than means. The NHS was to level the healthcare “playing field” by providing more care to the least favoured and most vulnerable, as well as equal access to services for all other types of patients.Footnote ¹³

Over the years, successive governments have had to reinterpret Bevan’s commitment because of diminishing resources and growing healthcare needs. The rationing of resources became an underlying theme in healthcare policy as early as the 1980s. The change in culture embracing libertarian and utilitarian methods in healthcare that was initiated at the beginning of the Thatcher eraFootnote ¹⁴ was taken forward by New Labour in the 1990s and climaxed under the coalition government. The NHS principles of equality in healthcare were preserved, but a neoliberal approach started to be adopted for the delivery of healthcare services.Footnote ¹⁵

This historical evolution of ideas of justice in British healthcare is of interest when assessing the impact of changes brought by times of crisis. After Brexit,Footnote ¹⁶ COVID-19 is yet another crucial turning point for the NHS policy-makers having to react in urgency to a situation that may require them to leave behind its egalitarian foundations to embrace a more utilitarian approach to the provision of healthcare services.

III. COVID-19: a paradigm shift

The current pandemic confronts the NHS with unprecedented demands and pressures with a direct effect on intensive care units and the medical workforce.Footnote ¹⁷ Some groups of patients, such as the elderly and individuals affected by comorbidities, have recorded greater fatality rates; others affected by underlying socioeconomic inequalities that were at play prior to the spread of the infection are also more prone to contracting the virus.Footnote ¹⁸ Nevertheless, the infection is “non-discriminatory” in nature, affecting all social statuses and affluences.Footnote ¹⁹ This does not, however, translate into a levelling of access to healthcare resources for all.Footnote ²⁰ Dramatic ethical dilemmas relating to resource allocation are thereby brought into sharper focus. The government has to determine how to allocate scarcer resources with the growing and urgent need to mitigate the impact on the NHS and the population.

If the British healthcare system were to keep in line with its principles of egalitarian justice, healthcare services would be delivered equally to all similarly situated patients on the territory. This would entail that patients be treated alike regardless of whether or not they have contracted the virus. Additional resources would, however, be provided to more vulnerable or critical patients in comparison to less urgent cases as an exception to this strict equality rule.Footnote ²¹ However, the reality of the pandemic does not allow for the system to spread out its resources in order to preserve equality. For instance, patients cannot be rotated to share ventilator time or bed days in hospital. The system therefore automatically reverts to a de facto “first come, first served basis” until resources are depleted.Footnote ²² In the near future, a critical juncture will be reached where clinicians will be forced to choose between providing life-sustaining conditions to patients or abandoning treatment.

Such concrete discussions around death and the cost associated with life-sustaining treatments have never been so pressing, but the race against the virus no longer allows for a pause to reflect on a collective decision around the allocation of healthcare resources in times of crisis. Thus, the government, along with other European counterparts, is operating a shift in healthcare policy towards a utilitarian model of rationing with equality in access as a second-rank priority. The aim is to maximise healthcare outcomes by favouring individuals with a greater chance of survival and introducing a ranking of patients.Footnote ²³

For instance, on 21 March 2020, the National Institute for Health and Care Excellence (NICE) has introduced, at breakneck speed, its COVID-19 rapid guidelines to facilitate intensive care clinicians’ assessment of patient needing to be admitted into critical care. The recommendations suggest that doctors consider the medical benefit, including the patient’s likelihood of recovery from critical care admission, to an outcome that is acceptable.Footnote ²⁴ The advice requires upstream decision-making upon the patient’s admission and a certain level of speculation on how well they will respond to critical care. Only time will tell whether these criteria have indirectly imposed age-based rationing in the sense that elderly patients tend to have a greater propensity for comorbidities and may be assessed as having less of a likelihood of recovery from critical care. At a philosophical level, our society also needs to decide whether forgoing equality in access to care for the elderly is a choice that needs to be made in a time of pandemic; whether these older patients have had their “fair innings” and should sacrifice their care for younger patients more likely to recover from the infection,Footnote ²⁵ an approach that seems to have been taken by the current government.

Other vulnerable groups of patients also feel the repercussions of this change in allocation strategy, mostly patients suffering from chronic conditions such as diabetes or cancer. Individuals in need of living-donor transplantation have also had their surgeries postponed or cancelled for fear that they would take up intensive care beds at post-op. Routine check-up appointments have for some part moved online, but patients suffering from chronic illnesses that may require additional attention tend to refrain from asking for help for fear of overburdening the healthcare system.Footnote ²⁶

At the diagnostic level, utilitarian considerations are also coming into play. As the UK entered the “delay” phase of its plan to fight COVID-19 on 12 March 2020, policy shifted with regards to the testing of individuals at risk of having contracted the virus. The NHS no longer offered testing in the community and reserved the process to the hospital setting for immunocompromised and intensive care patients.Footnote ²⁷ Other patients with symptoms that did not require inpatient medical care were asked to self-isolate without an official diagnosis.Footnote ²⁸ These measures were rolled out in parallel to a letter sent to primary care doctors that set out a list of activities to be halted or postponed in GP surgeries.Footnote ²⁹ Equality in access to preventative medicine was thereby replaced to allocate scarce resources to individuals more at risk.

In addition, in an effort to provide a centralised response to the crisis, the government has drafted emergency legislation. Among other special stipulations, the Coronavirus Act encloses provisions to grant a temporary authorisation of practice to designated healthcare professionals and emergency volunteers.Footnote ³⁰ The effort to rally a greater number of medical professionals raises other ethical questions that should be addressed in light of the new utilitarian approach to resource allocation. Even though, after much pressure, the government took the decision to test healthcare workers showing symptoms, the lack of routine testing of key workers certainly endangers patients.Footnote ³¹ Not aware of their health status, asymptomatic health workers may transmit the disease while providing care.Footnote ³² It may well be that we should now consider providing preferential treatment to this essential group of workers. In times of health emergency, it is important to guarantee that the medical forces be as fit as possible and in the event that they do fall sick that they return to work swiftly for the benefit of the population. Simply put, prioritising healthcare professionals’ wellbeing and treatment can be justified because it would help maximise the health outcome of the entire population.Footnote ³³

Most striking is the emphasis put by public powers on individual responsibility and collective action. Without any available treatment or vaccine, the government sought to relieve pressure from the NHS by incentivising the public to adopt social distancing measures and for individuals to self-isolate if they suspected they have the virus.Footnote ³⁴ In an effort not to detract resources from the healthcare system, British society could now reflect on another conception of distributive justice that would embrace communitarian approaches to rationing. Communitarian thoughts and justice theories tend to focus on a balanced allocation of resources that takes into account a patient’s illness but also the needs of the local community to achieve just outcomes for society as a whole.Footnote ³⁵ If we are to think collectively about healthcare outcomes, we should also seriously account for underprivileged groups such as rough sleepers, drug users and the homeless during a pandemic. These groups are less likely to have access to the NHS as they are for most part unregistered residents and may not be able to practice daily hygiene, putting them at a greater risk of getting infected.Footnote ³⁶

Protection of vulnerable groups and at-risk patients is an upstream process that will require some redesign of current healthcare institutions after the pandemic. Offering appropriate healthcare support to immigrant populations, improving sanitation and access to medical services in shelters as well as increasing access to care for people with disabilities are only a few examples of initiatives that must be put into place to protect these groups from future epidemics.Footnote ³⁷