Published 17 May 2021
Burden of Proof
Time is no different from other resources: the less there is, the greater its value. The older one gets, the more one’s time matters.
Wasting a week of your life when you are 20 years old is bad. Wasting a week of your life when you’re 80 years old is even worse, all else being equal. When it comes to wasting months and years, it can be tragic, especially when it is not your choice but the result of state imposition.
The threshold for justification is very difficult to meet and requires exceptionally dire circumstances.”
Not being allowed to see or hug your close family members at a point in life when family connections are, for many, the primary source of meaningfulness might be necessary in very extreme cases, but it is always extremely hard. Being denied the comfort of loved ones in the last moments of one’s life is simply cruel. And yet, dying alone is what pandemic restrictions have imposed on many people (Capozzo 2020), in addition to all the physical and mental health costs that we explore this week.
None of this means such restrictions are never ethically justifiable, of course. But the threshold for justification is very difficult to meet and requires exceptionally dire circumstances. The burden of proof for enacting such restrictions requires those who wish to impose them to provide solid ethical justification.
Even in those rare cases where such restrictions are justifiable, the longer you deprive older people of their freedom and sources of meaningfulness, the more difficult it becomes for that justification to stand.
Public Health or Paternalism?
From an ethical point of view, the risk here is that of slipping from policies justified by a legitimate public health concern – for example, protecting vulnerable people from COVID-19 – to outright state paternalism, where a Government restricts specific individuals’ freedoms ‘for their own good’.
The line between state paternalism and the legitimate protection of public health interests is thin, but it exists. State paternalism is rarely justifiable in contemporary liberal societies. The presumption is that individuals should be free to perform risk assessments about their health and make their own choices unless there are significant public health concerns and no other reasonable alternative is available.
For any old or otherwise vulnerable person, we should never assume that they would value protection from COVID-19 over freedom – and whatever risks it involves.
Some people would choose one, and some people the other. It is not for medical experts, governments, or any other individual to make that judgment. We cannot simply assume that merely being kept alive – existence without meaningful experience – is either intrinsically valuable to anyone or equally valuable for everyone. The right balance between the length of life and quality of life is a matter of personal assessment. Barring any significant public health concern, the risks people should be allowed to take is a matter of personal assessment, too.
Restrictions – especially after a year of quasi-isolation – significantly diminish the meaningfulness of those encounters and do not make up for what has been lost.”
Deciding on behalf of someone else that certain risks are not worth taking means deciding on behalf of them that living longer is more important than living well. This is what restrictions for the elderly have implicitly concluded and there is no reason to assume that this is the case for everyone. The issue here is not just about the value of freedom itself, but rather about how meaningful life can be when you’re free to do what matters to you instead of what matters to the State.
At some point during this pandemic, focussed protection strategies might have required some level of state imposition. But in the long term – and one year for an older person is a very long time – the idea that the harms and restrictions we have imposed on the elderly have been more paternalistic than by public health-focused is more than legitimate.
Our Final Years
Consider a country like the UK. Even after all the vulnerable people – including those in care homes – were offered a vaccine (with a vaccine uptake over 90%), and after 60% of the population was vaccinated, people in care homes still had to wait months to see their loved ones. And after all those months, they have only been allowed to do so under very tight restrictions, including limits on the number of visitors, prohibitions on hugging and physical contact, and requirements to wear PPE. These restrictions – especially after a year of quasi-isolation – significantly diminish the meaningfulness of those encounters and do not make up for what has been lost. In the UK, the average stay of people in care homes is two years (Forder and Fernandez 2011). Thus, the loss of value for them is immense. When you can expect to live only one or two years longer, having your liberty withdrawn for an entire year is very close to having your freedom, your connections, and the meaningfulness of your life taken away for good.
And even for those who are not in care homes, that year is very likely a large proportion of time they have left to live.
Again, one year is closer to “forever” for an old person than for a young one. One year out of two is fifty percent of a person’s remaining years, while one year out of fifty is only two.
It is critical that we do not forget that the value and meaning of the last years of one’s life are not just prospective – the relatively short time one has left to live , they are also retrospective – looking at one’s life as a whole. The way one spends the last portion is an essential component of what that life, as a whole, has meant.
Adapting the words of Ronald Dworkin about our duty towards older people,
“When we ask what would be best for them, we are not judging only their future and ignoring their past. We worry about the effects of their lives’ last stages on the character of their lives as a whole, as we might worry about the effect of a play’s last scene or a poem’s last stanza on the entire creative work”.(adapted from Dworkin 1994)
One’s freedom and opportunities for meaningful life matter a lot when one is old because they have very scarce resources and because they reflect who a person has grown up to be. When considering whether we should restrict the freedoms of the elderly, we should not forget why and to what extent such freedoms matter.
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Capozzo AV (2020) Dying Alone Due to COVID-19: Do the Needs of the Many Outweigh the Rights of the Few—or the One? Front. Public Health 8:593464
Dworkin, Ronald 1994. Life’s Dominion, New York: Vintage Books
Forder, J., & Fernandez, J.‐L. (2011). Length of stay in care homes. Report commissioned by Bupa Care Services, PSSRU Discussion Paper 2769, Canterbury: PSSRU.
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.
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