Jonathan Montgomery: The challenges of ‘real-time public ethics’: incorporating ethics expertise in public decision-making

The following is an edited version of Jonathan Montgomery’s remarks at a UK Pandemic Ethics Accelerator event on 23rd May 2022, discussing the place of values in public policy during a pandemic

Professor Sir Jonathan Montgomery is Professor of Health Care Law at University College London, co-Chair of the Moral and Ethical Advisory Group within the Department of Health and Social Care, Visiting Professor of Bioethics Governance at the University of Oxford and Chair of Oxford University Hospitals NHS Foundation Trust. He was one of the authors of guidance on COVID critical care triage produced by the Intensive Care Society.

I’m going to share reflections on some pieces of work I was involved with during the pandemic. I’d like to start by reflecting on some problems that are implicit in the premise of incorporating ethics expertise in public decision making.

The meaning of “ethical expertise”

First of all, we need to ask ourselves what we understand by the term “ethical expertise”. There are a number of ways in which we might think about that, and they lead to different expectations about involvement:

  • It could be that we are looking for ethical expertise to give us the best answer to the concrete problems, all things taken into account. If we do that, we’re very unlikely to get any consensus about what that answer is.
  • Secondly, we might think that involving ethical expertise is about ensuring that decision-makers are aware of the range of alternative approaches to ethical decision making. Of course the problem with that is that you can’t guide decisions by explaining how complicated the question might be.
  • Thirdly, and I think more plausibly for the sorts of work that I’ve been engaged with, we might think that ethical expertise being involved in public decision making would be about ensuring that there is proper analysis of the situations for ethically-significant features, to reduce the risk that important things are overlooked.

When we look back on how we went about things, I think we should bear this in mind.

Is ethics the right discipline?

The second issue with the premise is the balance between ethics and other forms of contribution.

You might think of this as the challenge of ethical imperialism. There’s a difference between saying that something is not the best ethical solution and saying that it is unethical. However as soon as we think about those sorts of parameters, we might ask whether ethics is the right discipline, or maybe we are really thinking about the parameters, created by, say, human rights. We need to be clear that embedding ethical expertise is, in itself, challenging.

Then we have a problem around moral agency, and the danger that incorporating ethical expertise might undermine the importance of public decision-makers recognising their personal responsibility for the moral dimensions of their decisions. It may also be important to remind them that they are representatives, who are taking decisions in the public interest, not merely on the basis of their personal moral commitments – this is something we see regularly in the area of abortion. We need to incorporate our ethical expertise, without undermining the accountability of decision makers.  And this is a similar issue to the question of “following the science.”

Intrinsic and extrinsic contextual features

I want to reflect on work that I was involved with during the pandemic in terms of what you might call intrinsic contextual features, which are likely to emerge in all pandemics, and some extrinsic, or contingent, ones that seemed to emerge significantly in this one.

Urgency, uncertainty, and emerging data

The main intrinsic feature, which we will always have to deal with, is how you incorporate ethical expertise in circumstances where decision making is urgent, where the evidence is uncertain, and the knowledge is inevitably evolving.

We found ourselves being asked to do a number of pieces of work in very short timeframes. I was part of a group, giving advice on the ethics of digital contact tracing, which we produced and submitted to the Government within three weeks of our first meeting. Perhaps, with hindsight, we should have assumed it would take months not weeks for NHSX to get an app designed, and refused to give advice so rapidly. However we took the brief at face value, and produced a letter to the Secretary of State within the three weeks. It took another month for it to be published, during which we took a lot of flak for not having given any advice.

However, working on a three-week timescale meant that our scope for public engagement was extremely limited. We were able to convene some virtual roundtables, but not to do any broader consultation. That meant that what could be done in terms of incorporating ethics advice, in a short period, depended a lot on the group of people you got together and the quality of advice and information that you had.

A second piece of work involved guidance on critical care triage, which was commissioned by the four nations’ Chief Medical Officers (CMOs) in late March and was then decommissioned by them at the beginning of April. The reason for the decommissioning was that the projections showed that the UK was unlikely to run out of critical care beds in the way that had originally been anticipated. We thought we were doing something that had to be available to the CMOs for approval in a very short period of time. We got quite far towards the draft in just ten days, but we were doing this work in a context in which there was very little evidence on critical care outcomes. However, there was a narrow window of opportunity to avoid the proliferation of guidance. A key part of incorporating ethics advice into public decision making was the possibility that we might achieve what one of my colleagues described as the “Tolkien principle” (referring to The Lord of the Rings) – one guidance to rule them all. There was a lot of diplomacy behind the scenes to try and get to a consensus, all of which faded away when we were decommissioned. We continued to work as individuals and the document was subsequently published as guidance from the Intensive Care Society.

Responding to intrinsic contextual features

Given those perceived contexts of urgency, of uncertainty, and emerging, but low quality, data, we tried two different sorts of responses to incorporating ethics advice:

  • The first was to phrase our advice conditionally. In the letter from the NHSX ethics advisory board to the Secretary of State, we aimed to explain how he might go about taking a decision and the sorts of questions he would need to answer in order to act ethically, both at the time and going forward. We set out in our letter a series of principles: The first was the principle of value – did we have sufficient reason to think that there was net value to the public health by implementing digital contact tracing? This was linked to the principle of impact – did we have a good enough reason to think it will be effective in limiting the spread of the disease? We then asked about whether there was adequate protection for security and privacy of those who use the app; whether there would be accountability for decisions made as it developed; and whether we were giving as much control as possible to those who chose to engage with the app. We identified an example of the idea of using self-reporting as a trigger for notifications to isolate through the app. This would make sense in the context of asymptomatic transmission, and the slowness of knowing whether or not people were affected by COVID or something else. However our advice was that if self-reporting were used to trigger alerts, it would undermine public trust, and if this happened the app couldn’t be effective – so the value proposition that lay behind the app would be undermined. We also noted that if they were to progress on that basis, it would be crucial that there was easy access to biological testing in place before you deployed it. We then added some conditions for further accountability and development if the app were progressed. 

In essence our approach was to try to incorporate ethical advice by setting out the questions you should ask and the values you should bring into play.

We took a similar position in a background paper that three members of MEAG produced for members of SAGE on COVID vaccine certification – in trying to identify how various possible scientific situations related to the ethical arguments.  For example we had a typology of cases: does the vaccine prevent transmission, or does it just protect people from being harmed themselves? You have a different ethical framework, depending on which is the case. If all the vaccine does is prevent people from harm, then certification is actually dangerous in relation to transmission, because of the false security it creates. This was all conditional advice.

  • We approached the COVID care triage advice in a slightly different way. Here we tried to create an adaptive framework. The idea was that the guidance would incorporate an ethical framework of what was at stake, driven primarily around capacity to benefit, and avoiding questions about the value of any particular lives, but focusing only on whether a person’s life could be saved. Secondly it would incorporate a decision tool, which tried to make the best available evidence accessible to frontline clinicians, with the idea that the tool would be kept constantly under review and as evidence of capacity to benefit improved, we would be able to get clearer guidelines to frontline clinicians. Thirdly it would encompass a tool to enable the NHS to manage its capacity, through processes of mutual aid in order to avoid the need for those hard choices about triage to arise.

Effectively our approach to the embedding of ethical decision-making included a front-loaded bit around “what are the values at stake” and then tools to enable those values to be deployed, as evidence changed, in an adaptive way.

Those are things we would be likely to try again if we had another pandemic.

Extrinsic, or contingent factors

However embedding ethical expertise into actual decision-making proved tricky because of various contingent features of our particular situation.

Understanding decision-making

The first of these was that it proved very difficult, at least early in the pandemic, to identify who was taking decisions. If you can’t identify who’s taking the decisions, it’s hard to offer advice in a timely manner.

While working on the Ethics Advisory Board for the contact tracing app, as well as writing our letter to the Secretary of State, we also recognised a need to make other interventions – we sent various emails at crucial points, which are available in the report we published. For example, in relation to decisions about moving to the Google/Apple interface, which was supposedly more confidential and secure, we came to an understanding that particular weekend was when decisions were being taken; that this was happening in Number 10, not in the Department of Health and Social Care; and that the best route to influence would be to directly email the chief executive of NHSX setting out the things we thought needed to be fed into the decision-making. 

There is a real problem about knowing who’s deciding, and therefore how to influence them.

Playing the game

When you know who’s deciding, you need to think about how you can have some influence. You need to consider if you need to translate the principles as you understand them into politically-actionable language that you think might be taken into account. For example, the Moral and Ethical Advisory Group accepted the alteration of the word “solidarity” in the draft ethical framework for Adult Social Care, because it was told that it was unlikely to land.

A big part of this, in a particular contingent framework, is thinking “If I’m trying to achieve a better outcome, how can I hope to influence that? How much do I have to play the game that the decision-makers are playing?”

Choosing the opportunities

There were lots of opportunities to give advice, but it was hard to tell which ones were most likely to have impact.  My view was that you should take every opportunity that you could, in the hope that somehow something might feed in. So the Moral and Ethical Advisory Group spoke to any civil servant who wanted to come to it. We participated in a civil service teach-in around COVID status certification. We put forward views into SAGE and JCVI and when the Gove Review called for evidence, we submitted some. We collaborated with other agencies on an individual basis. Our approach to trying to get ethical advice into public policy was essentially taking every opportunity that was available, even at some degree of risk.

Trust and transparency

That leads me on to the second issue of context which is about trust. Trust cuts in many different ways.

We’ve heard a bit about transparency. Transparency is not always helpful in winning the trust of the decision-makers. The work of the Ethics Advisory Board to the contact tracing app was significantly undermined by a perception among the Secretary of State’s advisors that it was a leaky board. That undermined our ability to give advice. I pulled out of a Today program interview, despite having previously decided I would accept invitations to speak about ethics, because I was advised that, if I went on, the advice I was offering would be less likely to be heard by the Secretary of State. These are judgements that you make in the midst of a pandemic, which one would hope would be different in different pandemics.

Trust in context

There’s also something around the context of trust in terms of what connections people make between the advice you’re giving and other dimensions of their perception of what was going on. In relation to critical care triage, the key point was whether there might be so much demand on critical care beds that we might need that guidance. However, if the government were to issue guidance on triage at the same time as trying to reassure the public that there would be sufficient capacity there would be conflicting messaging, which might undermine public confidence.  Some of these questions were above the ethical “pay grade” although there were ethical dimensions to the judgements being made.

Limitations of transparency

There are also questions about who is able to be transparent about what. Independent SAGE had its own sense of its stakeholders and its responsibility to speak. But if you are a Minister, you are subject to collective responsibility. If you’re an advisory body within the Department of Health and Social Care, as the Moral and Ethical Advisory Group was, you are bound by the framework of your terms of reference and accountability. If you’re an individual advisor you have a little bit more freedom, but you also have your personal integrity to think about. Each of these things leads to a slightly different set of parameters around the expectations of transparency.

Government is entitled to expect it can receive confidential advice, but it’s not entitled to keep secrets from the public. How do you locate ethical advice within that?

And finally, in relation to the trust dimension I will share a couple of things that were said about the work that I was doing. The critical care guidance: I was told that it wasn’t a good idea for the NHS to issue this because it would put the future of socialised medicine at risk, because of the impact of the US media being able to portray the NHS as having set up ‘death panels.’ The sense from that source was that, unless you really needed it, you wouldn’t want to be seen to commit the government to the idea that some people wouldn’t get care that they could benefit from because they were selected out. Similarly with digital contact tracing there was a lot of pressure on the idea that this was a Trojan horse for a broader surveillance state and that the Government would use the pandemic to change the nature of the state in which we live. So here you have to grapple with the contingent context; what seems to you to be a focused issue is seen, by others, to be one which is indicative of something much broader.

Advice in a hostile environment

Finally, on the contingent elements of giving advice in this pandemic: it was apparent, as the pandemic unfolded, that the environment became increasingly hostile in relation to government. The critical care guidance that I’ve mentioned was portrayed by Sunday Times journalists as a form of ageist Nazi extermination programme. That didn’t help our relationship with the CMO in terms of giving trusted advice. I went on the Today program and they had absolutely no interest in the advice we were giving to the Secretary of State, which I’ve summarised earlier, about the usefulness of the contact tracing app, only whether or not we were going to tell him he couldn’t have the app that he wanted. The substance of the ethics was not of any interest to the journalist.

In relation to COVID triage, the Department of Health and Social Care has been judicially reviewed for not giving guidance, and threatened with judicial review for giving guidance that it hadn’t given. That creates a particular risk-averse context in the minds of civil servants.

Of course we were also working in an environment of Trump, and post-truth politics, all of which radically changed the way in which you could think about having influence.

An ethics ecosystem

Those are the key things that struck me as giving a flavour of trying to offer responsible, ethical advice during this pandemic. I conclude by making a couple of observations:

The first is that it is important that people who understand, and are interested in, and care about ethics are in the room, but it’s equally important that there are people outside the room, holding up a mirror to decisions and enabling us to have critical reflection. If you don’t have people in the room, it’s highly probable that ethical issues are overlooked. If you do have people in the room, of course, they risk being captured. So we want to have people who care about ethics close to decision making. But we also want to have people independent from that, if we’re going to have an effective system.

So how do we evaluate our success in incorporating ethical expertise into public decision making? Well we want to reassure ourselves that the ethical perspectives that were deployed, did capture the range of issues that are significant, so we didn’t overlook things. We also want to ask ourselves whether there were some decisions that fell so far outside the boundaries of acceptability, and the ethical implications are exposed, that it’s fair to call them unethical, as opposed to just a different ethical solution than the one we prefer. And absolutely we should hold on to the expectation that the public are entitled to have the values on which decisions are based explained to them.

So my last remark is that, if we’re thinking about the effect of ethical advice, we should think about it as an ecosystem, and we shouldn’t examine specific components separately, as if they could achieve all the things we need from ethical advice each and every time it’s offered. We should ask ourselves whether the net impact of the ecosystem that we have in place is that public decision-making is sufficiently informed by ethical expertise.