Covid-19, cannibalism and the utilitarian calculus
Torture, murder and even cannibalism are not too hard to justify. That at least is the starting point of the riveting lectures on “Justice: What’s the right thing to do?” by Michael Sandel, the brilliant philosopher. They attract so many students at Harvard that they are held in a massive theatre. One series attracted, at the last count, 10.9 million views on YouTube.
Torture is the easiest example. Frequently it has been justified as a way to save lives. The example given is the “ticking time bomb” scenario, where a terrorist has hidden an explosive device that will kill hundreds. Only torture can force him to reveal where it is concealed. Do you torture him?
Then there is murder. Under the heading “The Case for Murder”, Sandel teases students with several versions of the trolley car dilemma, beloved of Harvard moral philosophers. The brakes of a trolley car have failed. The driver is unable to stop it. The heavy vehicle is about to crash into five people working on the line ahead, thus inevitably killing them all. You are standing on a bridge above the track with a fat man beside you. Would it be “the right thing to do” for you to push the man off the bridge, if in so doing you would block the trolley car’s path, thereby saving the five workmen at the cost of the man’s single, innocent life?
Coming to cannibalism, there’s no need to resort to hypotheticals. Sandel considers the Victorian case of Regina versus Dudley and Stephens [14 Queens Bench Division 273 (1884 ) ]. Shipwrecked hundreds of miles from the Cape of Good Hope, the four-man crew of the yacht Mignonette took to its flimsy lifeboat with no fresh water and only two small tins of turnips.
Eventually, days after consuming the second tin of turnips, the four were nearing death through thirst and starvation. Closest to death was the 17-year-old cabin boy; he was the sickest through drinking seawater. Two of the other seamen decided to kill him with a penknife so that the three who would be left could survive on his flesh and blood in the faint hope that they would be rescued. The boy had no dependents, whereas Dudley and Stephens were the fathers of families. Days later, while having what one of them later described as “breakfast”, the survivors were indeed rescued. Taken home to Cornwall, they were tried for murder, found guilty, but released after only six months. Their actions, though established as illegal by the judges in this celebrated case, had been in keeping with long-established seamen’s lore.
Professor Sandel gives these examples and many more to provoke students to consider the basis of justice and morality, as set out by the contrasting schools of the utilitarian Jeremy Bentham and of Immanuel Kant , who advocates doing what’s right, irrespective of the consequences.
Tragically, this academic debate has been brought to the centre stage of current British life in a paper issued last week by the medical ethics committee of the British Medical Association. The committee’s chairman, a general practitioner and himself beyond the normal age of retirement, warned that the coronavirus crisis is likely to face doctors with unpalatable choices if the numbers of seriously ill patients exceed the capacity of intensive care wards to treat them all. In particular, a shortage of ventilators may necessitate taking a ventilator away from one person in order to treat another. Crudely, it will be a matter of deciding whom to try to save and whom to let die.
The BMA’s medical ethics committee considered but rejected the idea that the choice of life or death should be decided by lottery. Interestingly, the sailors on the Mignonette had also considered whether to decide by this method who should be murdered, so that the other three could survive by eating and drinking his body. It was a procedure which had been used by shipwrecked mariners in other cases, too, in order to achieve the utilitarian aim of trying to save the greatest number of them.
The BMA’s committee also rejected the “first come, first served” principle, namely that those already on ventilators should remain on them even when that would deny treatment to a subsequent patient.
Demanding what the chairman called “robust” choices, the BMA committee has plumped firmly for a Benthamite, utilitarian code of ethics. Whatever benefits the greatest number is to be the choice. While age and previous medical conditions will not automatically be decisive, the criteria set out mean that this will, in practice, tend to be result.
In the words of the chairman: “People who, in normal circumstances, would receive intensive treatment may instead be given palliation — pain relief without a cure — in order to favour those with a greater likelihood of benefiting. Nobody wants to take these decisions, but if resources are overwhelmed, they will have to be made… The question will no longer be how best to meet individual need, but how to maximise benefits from severely stretched resources. To the criterion of medical need, must also be added the patient’s likelihood of benefiting. It is preferable to save the lives of three patients with high need and a high likelihood of benefiting than one patient with high need and a low — but nonetheless real — chance of benefiting. The principle that everyone matters is in tension with the requirement to maximise overall benefit.”
Undoubtedly, there may in extremis be a weighty case for the utilitarian view. But for those who believe in unalterable moral principles, the idea of selective murder is as objectionable as the case for torture in the “ticking bomb” example, or for the murder of the cabin boy on the Mignonette. What the BMA’s ethics chairman calls “the requirement to maximise overall benefit” needs also to take account of the fundamental and long-term damage to social values of sacrificing the weak for the strong, of putting a greater value on some lives than on others. Obviously, it is a grossly unfair comparison, but is removing life-saving ventilators, as envisaged, from patients in a stable condition but with poor prospects so very different from the euthanasia of the mentally ill by Nazi doctors? After all, the principle of “maximising overall benefit” was a justification for that too.
There are several other issues. In practice, it is unlikely that euthanising those with poor prospects of survival would be applied equally. It is hard to envisage some elderly, very sick but high prestige persons having their ventilators removed. Then there is the question of preferential treatment for particular categories of patients. Should doctors themselves and other essential workers have priority? Should criminals or those without dependents have lower priority? Is it for doctors to make these choices, or should the rules be made by others such as ministers of religion, moral philosophers, social workers or even politicians? What of the legal consequences? Are relatives of the euthanised to be denied the right to sue the doctors who have removed their ventilators in order to assign them to others?
Thankfully, I have never had direct experience of any of the extreme examples debated by moral philosophers or those now set before the public by the BMA. The nearest I have come to them was as a young reporter for the Times during the Vietnam War. There, I encountered discussions about the use of torture on enemy prisoners. It has taken many years to begin to absorb the lessons. One of them is the ease with which it is possible for people under exceptional pressure to slip into unacceptable ways of thinking. A second is that the theoretical discussions of moral philosophy tend to use examples which rarely correspond with real, far more complex situations.
In truth, the choices outlined by the BMA’s ethical leaders with admirable bravery would be so unacceptable that the task must be to ensure that doctors cannot be placed in the situation where they are obliged to make them. We need to regard their proposed criteria for deciding whom to save and whom, effectively, to euthanise as a reductio ad absurdum . We ought not to be lured into that debate.
Rather, the BMA report must be used as a call to accelerate the supply of ventilators for the emergency intensive care units which the government is setting up at the ExCel Centre, the National Exhibition Centre and elsewhere. As days pass, not only the numbers affected by Covid-19, but its life-threatening character become ever more obvious.
At the same time, the scope for rapid production of new equipment is also evident. As Daniel Johnson pointed out recently in TheArticle, the Government needs to take full advantage of the many different small and medium-sized engineering companies in the UK, as well as our universities, to ensure that technical ingenuity, innovation and administrative drive produce the goods.
