‘In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.’
UCL Hospitals NHS FT v MB (Rev 1) (2020) EWHC (QB) 882
There is little new to be seen within the current pandemic crisis across Europe: various human tragedies continue to unfold and evolve, from a potentially fatal shortage of medical resources, to the wider-spectrum, not altogether unforeseen, lockdown-impacts. This piece aims to comparatively analyse the rationing of healthcare resources in both Italy and the UK throughout the Covid-19 pandemic, evaluating it against a human rights law framework and arguing the need for more meaningful justiciability of the right to health. The first part focuses on Article 3 of the ECHR (the right to not be subjected to inhuman and degrading treatment), while the second looks at vulnerability and the potential breaching of the right to not be discriminated against (Article 14 ECHR).
Rationing healthcare resources in Italy and the UK before and during the crisis
Italy was the first European country to face the pandemic and deal with the collapse of its Sistema Sanitario Nazionale (SSN) in late February 2020; the UK (at the time of writing) seems set to ultimately register the highest number of Covid-19 related deaths in Europe. Before the pandemic began in Italy there were 5,090 critical care beds (between public and private hospitals). In March 2020, as the Covid emergency unfolded, many doctors from hospitals in Cremona, Bergamo, and Brescia admitted that they’d had to make painful choices in deciding which patients they would select to ‘intubate.’ This was done in line with the recommendations of the Società Italiana di Anestesia Analgesia Rianimazione e Terapia Intensiva (Italian Society of Anesthesia, Analgesia, Resuscitation and Intensive Care – SIAAARTI). Taking a utilitarian approach, this document defined the criteria for admitting Coronavirus patients to treatment ‘in exceptional conditions of imbalance between the actual needs and available resources.’ Rather than following a ‘first come, first served’ approach, Recommendation n. 3 states:
‘[i]t may be necessary to place an age limit on entry into ICU. It is not a question of making choices merely of value, but to reserve resources that could be very scarce to those who are more likely to survive and to those who can have more years of life saved, with a view to maximizing benefits for most people.’ [our translation from Italian]
The crisis made plain the consequences of years of economic rationalisation policies. Specifically, Foundation GIMBE’s report identified that public funding to the SSN had only been increased by 8.8 billion in ten years, growing by an average of 0.9% per year, but at a lower rate than the rate of average annual inflation (1.07%). Similar insufficiencies of resourcing have long been apparent in the UK (see for examples relevant case law: here, here and here). The fragilities of its National Health System (NHS) were a chronic concern, especially where these impeded health equity and equality of treatment (Oppenheimer, 2002; Newdick, 2014). The difficulties associated with equitable allocations and fair access (Farmer, 2003; Hunt, 1996; Callahan, 2012) were evident too, long before Covid-19 forced law and policy makers to frame NHS capacity as an acute worry, meriting the status of national emergency.
Whilst in Italy the SIAAARTI clarified which criteria for accessing treatment should have been used, in the UK the situation was more confusing. As the High Court noted recently, in certain scenarios hospitals might have to choose between treating two patients, by deciding who may have the ‘better claim.’ This could occur even where ‘ceasing to provide in-patient care’ would result in ‘extreme distress or …give rise to significant risks’ to the health or life of one of them. A decision-making policy grounded in rationality and legality would likely find either that one patient’s clinical needs outweighed those of the other, or that one ‘would derive greater clinical benefit from the bed.’ As the charity CASCAIDr (2020:3) advises however, ‘if rationing scarce resources seems to be what is driving the views of those discussing hospitalisation or treatment…there will be a conflict of interest …’. (See also recent critical care Guidance by the Court of Protection published in January 2020). Guidance from the British Medical Association (BMA) similarly stresses that ‘…neither age nor disability are in themselves relevant criteria for making decisions about treatment.’ As one UN Special Rapporteur for health previously argued (albeit in respect of elderly patients), institutionalization often impacts profoundly upon both autonomy and human dignity, causing ‘deep frustration and humiliation’ (Grover, 2011:49). Actively taking steps to protect human dignity and prevent the types of suffering that might engage Article 3 ECHR rights would however prove much more costly than simply fulfilling negative obligations (to not actively do harm). Moreover, Article 3 was apparently never intended to cover challenges relating to domestic ‘allocation of finite funds between competing demands.’ In terms of requiring patients to leave hospital (or forego treatment), Article 3 is also unlikely to often be infringed, given that prior decisions may already have been taken (i.e. to not provide in-hospital care, or to suggest the signing of a ‘Do not Resuscitate’ Order). Such reasoning highlights the limitations of arguing positive human rights ‘obligations’ within a right to health framework.
Covid, vulnerabilities and the right not to be discriminated against
In terms of discrimination law, the very concept of ‘protected’ characteristics (i.e. age, physical and learning disabilities) can serve as a double-edged device to identify which vulnerabilities might legitimately exclude someone from rationed treatment. The linked medico-legal and ethical concepts of informed consent and mental capacity are therefore especially relevant here; these are perhaps to some extent now being redefined given the rapidly occurring changes to law, policy, ethics, and human behaviour brought about by the pandemic. Quality of life measurements also merit further analysis, especially where clinical frailty algorithms hold sway (see further the National Institute for Health and Care Guidance (NICE) guidance on accessing critical care).
As far as Italy is concerned, the right to healthcare without making distinctions between gender, race, language, religion, political opinion, personal or social conditions is legally guaranteed by Articles 3 and 32 of the Italian Constitution and practically carried out through the SSN, created in 1978. However, the services offered by the SSN to vulnerable individuals are characterised by a considerable degree of discretion and with reference to budgetary limitations (Vadalá, 2009: 60). Similarly, as Reyes (2020) has further observed in respect of the UK, longstanding state duties have been supplanted by the discretionary ‘power’ to provide support: some basic social care or support services (which should be regarded as basic health entitlements, and underscored by juridical rights of appeal), have now ostensibly been downgraded to mere privileges (Miller, 2015). Such sharp rationing of finite resources is not new: state-sanctioned, harsh decision-making processes have always affected many aspects of health justice (Clough and Brazier, 2014). This is so, whether decision-makers look to principles of equal access or to potentially more practicable ideals of fair and equitable resource allocation. And yet, as Lady Hale (then Baroness) had previously noted, when asking if unavoidable discrimination might be justified, one should aim to ‘concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification.’ The Upper Tribunal later noted that the Convention on the Rights of Persons with Disabilities (CPRD) clearly prohibits discrimination against disabled people, seeking to promote their fundamental rights on an equal basis with others. The Court of Appeal has also confirmed that the CRPD provides a clear framework for signatory states and – as a ‘legally binding international treaty’ – gives rise to ‘corresponding obligations’ in domestic law.
As confirmed in Humphreys (2012), for discrimination to be unlawful, it must be ‘manifestly without reasonable foundation.’ The margin of appreciation similarly cannot be ignored, given how it tends to fluctuate ‘according to the circumstances, the subject matter and the background,’ especially where ‘measures of economic or social strategy’ are at issue. Demonstrating that discrimination to protect the greater good does not amount to a ‘proportionate means of meeting a legitimate aim’ is therefore always likely to be highly problematic. Warnings from human rights advocates have however long highlighted the dangers of under-funding vital services (Shue, 1996) and side-lining socio-economic rights (Collingsworth, 2002), not least within the UK (O’Connell, 2011). Conversely, in Italy no one could have foretold the dramatic scenarios of the last few months as Lombardia, the wealthiest Italian region – and with an excellent healthcare system – registered the highest death rates (for analysis, read here). The current debate in Italy revolves around the tragic spread of Coronavirus in healthcare homes for disabled and elderly persons, whose right to health was not adequately protected from the spreading of the virus (here, here, here and here). Against these backdrops, increasing levels of global poverty, neglect, homelessness, domestic abuse, and unmet social care needs during this pandemic perhaps cast doubt on the notion that a juridical right to health exists (Harris, 2003:633). Systemic, entrenched austerities not only affect health and social care systems but generate profound impacts on other socio-economic rights and interests such as housing, family life, social security, religious freedom, and education. Weekly rounds of well-intentioned applause – or a minute of respectful silence – for frontline workers in both Italy and the UK, though heartfelt, serve as poor substitutes for adequate funding and meaningful political discourses (Braveman and Gruskin, 2003).
Put bluntly, it seems increasingly trite to advocate for basic health equity where even the right to life requires a robust immune system and/or the good fortune to be living within an adequately prepared, well-funded post-code. Future discourses on the nature of health rights must ask what can be done where public purse-strings do not stretch to the shielding of the weakest members of society. The need for a truly justiciable right to health, grounded in human dignity, has never been more acute (Miller, 2015); sadly, the concept has seldom seemed more fictive. It has long been subject to the aspirational ‘not yet-ism’ of those tasked with monitoring its realisation and progress – the paper-thin nature of the right to health has served to promise much and deliver little, for decades (Lee 1998; Price- Smith, 2001; Whitehead and Dahlgren, 2006a).
That said, it has at least become very clear that all persons should be ‘treated with as much dignity during the process of dying as they should have been in the early phases of their life course’ (Grover, 2011:60). As such, a juridical right to health might yet emerge from the more compassionate debates on human dignity that are currently aligning themselves with core human rights principles (McCrudden, 2008; Muvingi, 2009; Waldorf, 2012). Even a ‘relatively modest jurisprudential leap’ (de Londras and Dzehtsiarou, 2018:151) might yet serve to further the notion that justiciable, positive human rights obligations (grounded in human dignity and health justice) can yet be found within the area of health law.
Posted by Rosella Pulvirenti, School of Law, LJMU and Alice Diver, School of Law, LJMU
References
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British Association of Comparative Law 
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