EDITORIAL: Proportionality in Care Home Restrictions
Measures that compromise individual freedom and wellbeing – especially those imposed “for the sake of others” – require careful cost-benefit analysis
The frail elderly – particularly care home residents – are the group most vulnerable to severe and fatal COVID-19. Before vaccines became available, protecting the elderly meant, in most cases, isolating them, even from their own close family. Regardless of their wishes, underlying health, or life expectancy, they spent most of that time completely alone.
Care homes were closed to visitors, residents were confined to their rooms, and all entertainment was stopped. The aim was to prevent cases and outbreaks of COVID and to protect a health care system that might not be able to cope with a spate of hospitalisations from care homes.
Throughout this pandemic, we have focused too much on trying to achieve some collective benefit from restrictions imposed on care home residents and not enough on the subsequent costs to their individual freedom and values.
Intuitively, such restrictions seem more likely to benefit frail care home residents, both individually and collectively, than members of the broader population – especially younger and less vulnerable age groups.
Accordingly, such restrictions are “more justifiable” for care homes than national restrictions. However, “more justifiable” does not mean that such restrictions are always justifiable, nor that they are justifiable irrespective of their human costs. This should be obvious. But, as this week’s report and stories illustrate, the way restrictions have been implemented in care homes indicates that many policymakers did not find it obvious at all.
Measures that compromise individual freedom and wellbeing – especially those imposed “for the sake of others” – require careful ethical and cost-benefit analysis to determine whether they are proportionate. Not all costs are worth imposing on people, and not all collective goods are worth pursuing. Those who formulate the rules seem to have focused entirely on the potential utilitarian benefit (less COVID-19) and not enough – or not at all – on the human costs that restrictions have imposed upon residents in care homes (i.e. substantially degrading the quality of a brief residual life expectancy).
Policymakers do not understand human existence in the terms grasped by the poet Tennyson:
If we don’t sufficiently consider the harm imposed on the confined elderly, how are we supposed to know when restrictions on them cease to be proportionate? Not everything that could produce a benefit to others is necessarily justified.
Proportionality in restrictions for elderly in care homes requires at least three things. First, the collective benefit of those restrictions needs to be sufficient to justify the measures. Second, the burden imposed on individuals needs to be minimised as much as possible, giving due consideration to individual rights – including the basic human rights that pandemic restrictions have often violated – as well as the wellbeing of those restricted. Third, whilst the protection of restricted individuals from COVID-19 can be a mitigating factor that supports restrictions, it is not, in and of itself, a justification for imposing restrictions.
Individuals should be free to decide which risks they wish to take on and how to make trade-offs among different values (say, protection from illness versus social interactions). Only when a sufficient collective benefit is at stake can restrictions on individuals be justified; mere health paternalism is not a morally valid option.
Throughout this pandemic, we have focused too much on trying to achieve some collective benefit from restrictions imposed on care home residents and not enough on the subsequent costs to their individual freedom and values. The risk of disproportionate restrictions is, therefore, very high. The harms caused to older people in care homes that we discuss this week needs to be brought to the fore if we want to assess the proportionality of such interventions. Regardless of whether one believes that the collective good justifies certain restrictions on the elderly – particularly those in care – awareness of the scope and scale of the costs is required for any opinion on the matter to be truly informed and well-reasoned.
Strict restrictions might be justifiable if care home residents, once fully shielded from COVID-19, would then enjoy healthy immortality. Of course, this is not the case. We all owe the gods a death.
Two final points need to be made.
First, for several years, following a court judgement, UK Governments have required “Deprivation of Liberty (DoLs)’ assessments for everyone placed in care homes. Details are here but, in simple terms, this means a psychiatrist must visit and be convinced that the person put into care either “has capacity’ and wants to be there, or that they “lack capacity’ and are unable to care for themselves, mentally or physically. The laudable aim is to prevent awkward old relatives from being shovelled into care homes against their will. Central to this process is the presumption that, so far as possible, the wishes of the care home resident should be paramount. During the pandemic, this presumption was abandoned. Care home residents with capacity have been prevented from seeing their relatives – except maybe through a window – and have lived under conditions amounting to house arrest. Last November, in one notorious case, a retired nurse was arrested for attempting to remove her 97-year old mother from a care home.
The second point is brutal. Strict restrictions might be justifiable if care home residents, once fully shielded from COVID-19, would then enjoy healthy immortality or, at least, a long happy life once the pandemic is over. Of course, this is not the case. We all owe the gods a death. Pre-COVID-19, one’s median life expectancy upon entering a UK care home was 462 days, with a long tail, so that the mean was substantially longer at 802 days. Suppose that you entered care in March 2020, swiftly finding yourself in lockdown. Even without COVID-19, you only stood a 50:50 chance of making it to Freedom Day in July 2021. And, if you did survive until then, would your dementia have progressed so much that you could no longer recognise your children, whereas you would have done so last Christmas had you been allowed to meet?
It isn’t pretty, no matter how you look at it. End of life rarely is. But, when little quality time is left, maybe it’s best to take the risk of COVID while squeezing life’s last drops of pleasure, rather than trying to extend a long, locked-down decline with an inevitable end, sans friends, sans family and sans laughter. The late gambling tycoon, Stuart Wheeler, took this view, inviting his friends to a last supper at Chilham Castle during the first lockdown. To quote:
“From my point of view, the position is simple. As many of you know, I have cancer, and my doctors do not expect me to live more than about six months. So, what would I prefer – to never see again my and my daughters’ friends? Or to see them, taking the very slight risk of catching the virus from them, which might shorten my life by a few months? The answer is crystal clear to me…”
Care home residents – without Mr Wheeler’s millions or his castle – didn’t have his same opportunity to defy the law. But, had they been asked, how many would have shared his preference?
Alberto Giubilini is a philosopher and Senior Research Fellow in practical ethics at the University of Oxford, specializing in public health ethics and the ethics of vaccination.
David Livermore is a Professor in Medical Microbiology at Norwich Medical School, University of East Anglia.
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