Julian Sheather: Anticipating, identifying, and responding to ethical controversy and uncertainty

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

Dr Julian Sheather is a writer and ethicist. He is special adviser in ethics and human rights to the British Medical Association, an ethics adviser to Médecins Sans Frontières and an independent consultant in humanitarian ethics.

During the pandemic my job was a straightforward one, which was to bring some guidance out from the British Medical Association (BMA), for whom I work. We saw what was happening in Italy and the potential for intensive care to be overwhelmed and the risk of having insufficient ventilators. We knew that this may be coming to the UK and that some guidance was going to be needed.

It’s important to say straight out that the guidance I worked on was primarily for the BMA. Therefore part of its focus was on protecting the interests of our members, who are doctors.  Having said that, we can’t put out guidance that’s not legally coherent and based on good ethical reasoning, because that’s what you do in an ethics department.

So when this came to us, we had no extant guidance on the issue around triage. There was nothing substantive on this issue. So I dug back into the files, to things developed over the years, for example in the previous pandemic H5N1. I gathered this together, and then I drew on the expertise of the BMA medical ethics committee.

A lack of centralised guidance

One question that arises is “on what authority does the BMA speak?” We turned to the government, we wanted centralised guidance, we wanted something about which there was consensus, and where the legal risk had been analysed – but it wasn’t there. And it couldn’t be developed in time.

You can understand a certain moral queasiness, but there was an enormous reluctance to grasp the fact that we might have had to set some people aside for non-treatment who may in other circumstances have benefited. That was the kind of ethical nub of it. And we saw a great reluctance in government to go anywhere near this issue. They wanted to push back and leave the question to doctors. But how were they to make these decisions?

So we wrote some guidance. It was a collective effort, sent rapidly around the ethics committee, which included QCs, and two great intensivists – it was clearly going to be in their bailiwick. We worked very quickly. The day after we published, legal claims started coming in.

Facing criticism

We had one of the defence bodies saying we were inciting people to murder. We had several City law firms saying the guidance was fundamentally discriminatory and unlawful. Everyone was concerned about the criteria for these triage and allocative decisions. There was a lot of criticism saying these were the wrong criteria, but nobody was willing to put forward positive criteria. So how do you operate in these circumstances? We were being criticised for what we had put out, and people said it was not adequate, but nobody was willing to put forward a coherent set of clinical criteria that could be used as a basis for resource allocation in those circumstances.

So we had to put our guidance out and defend it. Criticism and defence can be incredibly helpful, if it’s happening over a reasonable period of time and you’re not right up against it. It can be a very productive process because you finesse and improve, and you get a more dialogic production of guidance. But we didn’t have much time, and we had members saying “Look, we’re going to be forced to make these decisions whether everyone likes it or not, and we don’t want to do it unsupported.” 

Obviously, it was an important role for us to play – we had to step in – but there were also other professional medical bodies wanting to step into the field and produce guidance. What happens if the guidance disagrees? How do you achieve some kind of consensus?

Those were the central problems for us. 

Planning for the future

Looking forward, one of the things we’ve got to come out with is a way of having guidance that’s ready-prepared so that we can respond, where there is a consensus around it. Throwing it back on individual organisations and moving out into enormous legal and ethical uncertainty to try to provide support for individuals working in these contexts is radically less than ideal.