Don't know how many of you have read @TheBMA ethical guidance on Covid19? It's a really tough read, which makes vividly apparent how bad things could get: https://www.bma.org.uk/media/2226/bma-covid-19-ethics-guidance.pdf

It tries to circle a square, between respect for each individual's equal rights & acting in the 'greater good'. One of the principles is that 'everyone matters and everyone matters equally, but this does not mean that
everyone will be treated the same.'

It is saying that the starting point must shift to to saving the most lives possible, not putting equal effort into saving every life, even if that means denying or withdrawing treatment to people who in other circumstances might benefit from treatment.

Hence the guidance is about how to make decisions about who does and does not get treatment, within an escalating set of pressures.

It says 'it is likely that priority will ordinarily be given to those whose conditions are the most urgent, the least complex, and who are likely to live the longest, thereby maximising overall benefit in terms of reduced mortality and morbidity.'

If under extreme pressure, it suggests priority might be given to 'essential workers'

A crucial part concerns discrimination: 'During the peak of
the pandemic, doctors are likely to be required to assess a person’s eligibility for treatment based
on a ‘capacity to benefit quickly’ basis. As such, some of the most unwell patients may be denied
access to treatment..

...such as intensive care or artificial ventilation. This will inevitably be indirectly discriminatory against both the elderly & those with long-term health conditions, with the latter being denied access to life-saving treatment as a result of their pre-existing health problems

A simple ‘cut-off’ policy with regard to age or disability would be unlawful as it would constitute direct
discrimination. A healthy 75-year-old cannot lawfully be denied access to treatment on the basis of
age.

However, older patients with severe respiratory failure secondary to COVID-19 may have a very
high chance of dying despite intensive care, and consequently have a lower priority for admission to
intensive care

Although a ‘capacity to benefit quickly’ test would be indirect discrimination, in our view it would
be lawful in the circumstances of a serious pandemic because it would amount to ‘a proportionate
means of achieving a legitimate aim’, under s19 (1) of the Equalities Act

– namely fulfilling the
requirement to use limited NHS resources to their best effect.'

So on the one hand the guidance is clear that disability or age alone should not determine whether or not a person accesses life saving treatment, but it acknowledges that some older & disabled people may encounter indirect discrimination by being less likely to access treatment

While this may be for a 'legitimate aim' there remains a question about proportionality. This isn't a fixed concept. So for example, what it proportionate when levels of demand are relatively low will be quite different from when they are very high.

Crucially, it also relates to the availability of resources. The more capacity in the NHS, the less chance these decisions have to be made. The less capacity, the more they will have to be made. How does this influence what is deemed 'proportionate'?

The guidance doesn't address the issues of 'reasonable adjustments' under the Equality Act 2010, which permit 'more favourable treatment' (i.e. a disabled person benefiting from 'additional' support or resources to achieve a similar outcome)

This seems a significant omission, given the guidance allows for prioritisation based on how quickly a person is expected to recover. A failure to make an adjustment to this policy will place some disabled people at a 'substantial disadvantage'.

It may be that allowing a disabled person more time to recover would not be a reasonable adjustment in the circumstances, but the guidance needs to address it.

I'm also struck that, while it says that age alone should not determine whether a person accesses treatment, that prioritising on the basis of those 'likely to live the longest' is in effect prioritising on the basis of age. I think this needs much more explanation.

Of course, we know disabled people - and especially ppl with learning disabilities or mental health problems - have historically faced discrimination in accessing NHS treatment. The proposal by NICE to use the 'clinical frailty scale' to assess people with learning disabilities..

...the instances of GPs recommending that disabled people sign DNACR notices & both ambiguities in & the failure of @TheBMA guidance to mention reasonable adjustments inevitably have caused widespread fear and concern.

That's why over 2000 people signed this statement https://www.disabilityrightsuk.org/news/2020/april/covid-19-and-rights-disabled-people & why this response is a welcome signal https://www.disabilityrightsuk.org/news/2020/april/response-open-letter-covid-19-and-rights-disabled-people

We look forward to the @TheBMA response.