The recent release of government data in the form of the “The National Preparedness Survey on Covid 19” by the ‘Department of Administrative Reform and Public Grievance’ revealed some horrifying statistics. Two statistics stand out: there are not enough ICU beds and ventilators.
This is worrying because the current trends show massive per day jump in the number of infections and the percentage of infected requiring ICU admissions is currently stated to be 5 % of the total infected. In such a context, it becomes important to understand how and in what manner will the scarce hospital resource, particularly ventilators, which will be required by around 2.3 % of the infected population, be divided in case our medical infrastructure is overrun.
The division of scarce hospital resources amongst multiple individuals requiring the same is encompassed by the principle of ‘triage’. Formulated during the Napoleonic wars in Europe and Africa, the principle of Triage therein was to ensure that primacy is given to soldiers who were able to fight.
Triage in the present sense is nothing more than a protocol to decide how scarce and life-saving medical equipment is to be used in the hypothetical eventuality of the health infrastructure being overrun. The idea and principle behind the use of medical triage is a result of simple mathematics: Say in a hypothetical case if there are 10 critical patients who require a ventilator at the same time, and there is, in fact, a singular ventilator, who gets it?
A perusal of the news feeds originating from Italy and other COVID hotspots encapture heartbreaking and disturbing instances where doctors have had to make these difficult decisions.
A doctor works in an intensive care unit expanded to handle COVID-19 patients at Papa Giovanni XXIII Hospital, in Bergamo, Italy on March 21, 2020. Fabio Bucciarelli/The New York Times
Marco Resta, Deputy Head of Policlinico San Donato’s Intensive Care Unit, told Euractiv in an interview, “Every time a bed comes free, two anaesthesiologists consult with a specialist in resuscitation and an internal medicine physician to decide who will occupy it. Age and pre-existing medical conditions are important factors. So is having a family. Even if there is no chance, he says, you have to “look a patient in the face and say, ‘All is well.’ And this lie destroys you.”
And there are plenty of heart-breaking reports of how older patients are giving up ventilators. In Italy, a 72-year old Italian priest gave up his ventilator so that the same may be used to save the life of a younger patient, while in Belgium, 92-year-old Suzanne Hoylaerts refused to take a ventilator, asking instead that the same be used for a younger patient.
The United States which now has the maximum cases of the disease too has woken up to the reality of the strong possibility of ventilator rationing. It bears mentioning that the United States has made progress in evolving guidelines to cover triage in medical disasters.
The New York State updated its ventilator guidelines in 2015, to respond to an overwhelming of the hospital infrastructure in times of an influenza outbreak. The said guidelines consist of four parts namely the Adult Guidelines, Pediatric Guidelines, Neonatal Guidelines and legal considerations while implementing the guidelines.
These detail the constitutional and fundamental challenges that the concept of triage would face. It notes the fundamental right to life as enjoyed by every American Citizen and tries to harmonize the same with the concept of rationing and even denial of life-saving treatment to some in the case of a crisis.
In India, the response to the Covid-19 disaster has been founded on the legal infrastructure of the Disaster Management Act of 2005. It was under this Act that the 21 days lockdown was announced and it is under this that the National Disaster Management Authority chaired by the Hon’ble Prime Minister has taken charge of the situation.
The National Disaster Management Guidelines (Hospital safety) deals with the issue of how hospitals are to act in the times of a National Disaster.
However, the chapter of Triage therein namely chapter 4.9 contains a singular page of instruction and utilizes the principle of “the sickest is seen first”. The guidelines far from discussing the issue of overwhelmed hospital infrastructure fail to even consider the possibility. There is nothing in the guidelines with regards to the mode of procedure to be adopted in deciding, who amongst the many hypothetical individuals who require a ventilator during a crisis is to be given one.
There is no modus of guiding hospital authorities and attending physicians about how limited life-saving equipment is to be rationed out.
It is pertinent to understand the significance of this lacuna: As mentioned at the start, if in a hypothetical situation out of 10 individuals who are equally critical, a hospital is forced to choose only a single one on account of a shortage of life-saving equipment, then by virtue of that choice the remaining 9 could die.
The absence of a clear and predetermined strategy with regards to rationing of scarce life-saving equipment will not only cause confusion and less than optimal utilization of an already scarce resource but also runs contrary to the most cherished of ‘Fundamental Rights’ enshrined in the constitution: Art. 21 the Right to Life.
The constitution Notes “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” The absence of detailed procedures and guidelines regarding life-saving triage runs contrary to the fundamental requirement of denying Art. 21, the right to life, “procedure established by law”.
The need for a procedure, which in this case would be comprehensive triage guidelines, thus becomes a fundamental requirement. It is this procedure which will -- in the hypothetical but scenario of India following the United States in infection numbers-- form the bedrock upon which the entire ventilator policy will be based.
The importance of the phrase “procedure established by law” was first clarified in the landmark judgment of the Hon’ble Supreme Court in ‘Maneka Gandhi v. Union of India’ wherein the court deliberated on how the fundamental right under Art. 21 could only be curtailed on the basis of clear, cogent and valid legislation. The rationale of the same was simple: a procedure established by law will first give legislative backing to the actions to be committed, second the fact that a procedure exists will show that the State while exercising its executive power has given adequate thought to the situation and has devised the best possible mode of addressing the problem. Finally, it ensures that the populace is aware of the eventuality that may befall an individual interacting with the procedure established in question.
In the present case, the lack of proper guidelines/procedures to ration and use ventilators ensures that none of these conditions are met. If hospitals start rationing ventilators, it will be on the basis of a bare-bones policy. More importantly, many in the general public will have no means of understanding how these life and death decisions are being made.
In the absence of clear guidelines, the arithmetic reality of the situation will force hospitals and health service providers to innovate at the local level, while making these life and death decisions. The decisions themselves will be untested, non-uniform and eventually a great insult to the spirit of the Indian Constitution.
Abhimanyu Tewari is a Supreme Court lawyer.