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Influenza, commonly known as flu, is an infectious disease of the respiratory tracts caused by influenza viruses which can be potentially life threateneing (Australian Government, Department of Health, 2014). An influenza pandemic occurs where a new subtype of the influenza virus emerges to which most people are not immune, therefore causing illnesses and deaths to large numbers of people worldwide and resulting in social and economic disruptions (Australian Government, Department of Health, 2014; Kotalik, 2005). This essay will introduce key stakeholders in response to planning and implementing and discuss the ethical and legal concerns around key issues of responsibilities of an infected person, duty of authorities to treat, allocation of potentially scarce resources, emergency powers and coercive regulation. Finally, a summary of the assessment of these issues and recommendations to policy and legal changes will be provided.
A potential influenza pandemic poses a serious population risk and various stakeholders exist to effectively tackle this health issue. A pandemic will lead to an extremely high number of ill people over a large geographic area, all requiring care simultaneously (Kotalik, 2005). This will result in rapid strain on human and material resources of health care such as extended hospitalisation, diagnostic facilities, availability of drugs and well trained workers if they are to have a chance to survive (Kotalik, 2005). The World Health Organisation (2019) is an important stakeholder in response planning and implementation, for example, developing and updating pandemic influenza preparedness, risk management and increase vaccine supply. Moreover, The Australian Government, Department of Health is accountable for preparing and implementing procedures at a national level such as prevention, readiness to meet community health needs, reduce a pandemic impact and assist in rapid recovery of individuals, communities as well as services. The Australian Health Management Plan for Pandemic Influenza (AHMPPI) was developed to reduce the impact on the health of Australians and the health system (Australian Government, Department of Health, 2014). Furthermore, continuous and extensive consultations with stakeholders such as states and territories continue to provide crucial feedback to improve the development of the framework (Australian Government, Department of Health, 2014) to ensure the overall health of Australians. Various other health sector stakeholders also play a significant role in developing their own pandemic plans compliant with national measures and for incorporating pandemic influenza into their overall business plans (Australian Government, Department of Health, 2014).
There are numerous ethical and legal concerns around key issues such as the responsibilities of an infected person. If an individual gets sick, it is their responsibility to stay at home, avoid public places such as schools and work or wear a mask to avoid contact with others to prevent spreading of the disease (Australian Government, Department of Health, 2014). Furthermore, a healthcare professionals duty to treat infectious patients, when it poses serious risks of infection and possibly death to themselves raises legal concerns as well as ethical debates (Selgelid, 2009). A common viewpoint is that facing such risks are part of the healthcare workers job, providing implicit consent related to the codes of conduct. Malm et al. (2008) discusses the grounds for a duty to treat which include: express consent, special training, reciprocity, implied consent, and professional oaths and codes which healthcare workers should abide by. Regardless of such duties, when confronted with pandemic influenza, these healthcare professionals also have potentially conflicting duties. For example, if a nurse becomes ill or dies as a result of treating a patient, she will not be able to fulfil duties to family members (Selgelid, 2009). The moral and legal obligations suggest that healthcare workers have a duty to treat, however, the limitations within the codes of conduct provide no clear guidance for workers to treat patients under those extreme circumstances (Malm et al., 2008).
Moreover, there are various ethical and legal concerns around allocation of scarce resources including inadequate supplies of vaccines, drugs, ventilators, beds and personal protective equipment (Selgelid, 2009). Verweij (2009) argues the main principles for priority setting such as utility and equality. There are strong moral reasons to save as many people as possible; however, limited medical resources should also be fair and equitable.
Within reason of social utility and consequentialist ethical theory, endorse the idea that one should maximise expected value- saving the most lives there are various reasons that healthcare workers should receive prioritisation. For instance, treating a health professional is not only beneficial for themselves, but will contribute to saving others, hence reducing overall mortality (Verweij, 2009; Selgelid, 2009). The favour prioritisation of health workers is depicted through Bailey et al. (2011)s study which found that the biggest priority was given to heath care workers (89%) of participants and supported saving the most lives (39.9%). However, even if prioritisation is given to healthcare workers, the question then becomes how much priority should they receive? It might be counterproductive considering if they receive large amounts of medicines, they would not be able to treat patients due to little treatment remaining (Selgelid, 2009). On the other hand, egalitarian approaches suggest that some will give priority to treating the elderly, assuming they run a higher risk of severe disease and death than others; while others will give importance to children, considering they have not had the many life opportunities compared to the elderly (Verweij, 2009). For example, the AHMPPI provides priority to people at high risk of exposure to the virus, such as the elderly and infants to the virus and provide essential services, then to people most vulnerable to severe illness from infection (Selgelid, 2009). Therefore, even though decisions regarding scarce resources before and during a pandemic influenza needs to reflect best scientific evidence available, the decisions are also deeply ethical and public values need to be considered to ensure a fair and equitable distribution of such resources (Bailey et al.,2011).
Finally, emergency powers and coercive regulation such as isolation and quarantine also raise extremely important ethical issues. Social isolation can be central to the protection of public health, although it clashes with basic human rights and freedom. Closing schools will aim to reduce spread of influenza as children are at a greater risk of transmission and more vulnerable to most respiratory viral infections than adults. Although, implementing this would have many consequences. Additionally, closing workplaces would result in direct and indirect business losses and question the rights of that (Australian Government, Department of Health, 2014). It should be used as a last resort (Selgelid, 2009). It is essential that those subjected to isolation and quarantine and ensure they are as comfortable as possible and be given basic necessities to promote fairness and furthermore, a system of compensation would assist in the formation of trust in the public health system. On the other hand, such measures should not be used, due to the discriminatory nature evident throughout history against the marginalised populations (Selgelid, 2009).
The assessment of these above issues are difficult to establish as developed nations employ implicit authorisation of western philosophical values of individual autonomy, and utilitarian liberal bases for public health interventions. This can be challenging for some people who come from different cultural traditions and do not share similar assumptions (Bennett and Carney, 2010). Based on above arguments, the potential limits on personal freedom are outweighed by the public good, however further research should be conducted. Countries such as the USA and Canada all have human rights agreements which provide procedural protections for citizens in regards to quarantine and detention, whereas Australia is yet to develop a Bill of rights at a national level (Bennett, 2009). Currently Commonwealth quarantine legislation and state as well as territory public health and emergency laws provide legal measures that rely on voluntary compliance rather than legal enforcement, wherever possible. Australian state and territory governments have started enacting human rights legislation, no there no comprehensive inclusion of human rights safeguards in the federal which raises issues about the mechanisms for ensuring procedural safeguards in the event of a pandemic. (Bennett, 2009). Hence, a nation legal framework needs to be developed that are based on the understandings of the role of law in responding to pandemics are necessarily informed by relational bonds between individual in society, and by the meanings of rights and responsibilities for public health laws when dealing with infectious disease (Bennett, 2009). The principal areas of legislation available to support pandemic actions are described in the following subsections. Governments should continue to improve policies and regulations that reflect cultural and ethical acceptability of pandemic planning that are more flexible (Bennett and Carney, 2010). In addition, during a pandemic influenza, laws should be implemented regarding healthcare workers willing to face dangers by higher pay (deserve) or given priority in the provision of influenza needs as discussed above. Also, affected healthcare professions and their families in the event of death should also receive financial compensation. This aligns with notions for reciprocity (Selgelid, 2009). Moreover, instead of forcing all healthcare workers to have a duty to treat in a pandemic emergency, laws and policies agreeing use of expressed consent for example, contract- based consent would be beneficial. As a result, more necessary workers acknowledge the duty to treat during a pandemic as it is more explicit and no blurry lines and becomes a compensated responsibility (Malm et al., 2008).
In conclusion, this essay discussed key stakeholders in response to planning and implementing, discuss the ethical and legal concerns around key issues of responsibilities of an infected person, duty of authorities to treat, allocation of potentially scarce resources, emergency powers and coercive regulation. Despite some concerns related to potential limits on personal freedom, they are outweighed by the public good. The issues regarding pandemic influenza planning are complicated and multifaceted, therefore further research needs to be done to ensure for an effective and ethical legal framework.
References
- Australian Government, Department of Health (2014). Australian Health Management Plan for Pandemic Influenza. Commonwealth of Australia.
- Kotalik, J. (2005). Preparing for an influenza pandemic: ethical issues. Bioethics, 19(4), 422- 431. doi: 10.1111/j.1467-8519.2005.00453.x
- Malm, H., May, T., Francis, L.P., Omer, S.B., Salmon, D.A., & Hood, R. (2008). Ethics, Pandemics, and the duty to treat. American Journal of Bioethics, 8(8), 4-19. doi: 10.1080/15265160802317974.
- Selgelid, M.J. (2009). Pandethics. Public Health 2009, 123(3), 255259. doi: 10.1016/j.puhe.2008.12.005
- Verweij, M. (2009). Moral principles for allocating scarce medical resources in an influenza pandemic. Bioethical Inquiry, 6(2), 159 -169. Doi: 10.1007/s11673-009-9161
- Bailey, T., Haines, C., Rosychuk, R., Marrie, T., Yonge, O., Lake, R., Herman, B. and Ammann, M. (2011). Public engagement on ethical principles in allocating scarce resources during an influenza pandemic. Vaccine vol 29(17):3111-3117 DOI: 10.1016/j.vaccine.2011.02.032
- Bennett, B. (2009). Legal rights during pandemics: federalism, rights and public health laws – a view from Australia. Public Health,123, 232-236. doi: 10.1016/j.puhe.2008
- Bennett, B. and Carney, T. (2010). Law, ethics and pandemic preparedness: the importance of cross-jurisdictional and cross-cultural perspectives. Australian and New Zealand Journal of Public Health vol 34(2):106-112. Doi 10.1111/j.1753-6405.2010.00492.x
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