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\begin{document}

\title{COVID 19 : ETHICAL DILEMMAS IN HUMAN LIVES}



\author[1]{Smadar Bustan}%
\author[2]{Mirco Nacoti}%
\author[3]{Katherine   Fischkoff}%
\author[4]{Mylene Botbol-Baum}%
\author[5]{Laure Madé}%
\author[3]{Rita Charon}%
\author[6]{Meinhard Kritzinger}%
\author[3]{Jeremy  Simon}%
\affil[1]{Paris Diderot University Faculty of Clinical Humanities}%
\affil[2]{Papa Giovanni XXIII Hospital}%
\affil[3]{Columbia University}%
\affil[4]{Catholic University of Louvain Humanities Sector}%
\affil[5]{Hopital Bichat - Claude-Bernard}%
\affil[6]{City Clinic}%


\vspace{-1em}



  
  \date{June 17, 2024}


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\selectlanguage{english}
\begin{abstract}
The outbreak of the Covid-19 pandemic obliged us all to handle many
dilemmas, some of which we took upon ourselves as philosophers,
ethicists, doctors and nurses to discuss around four key ethical notions
: responsibility, dignity, fairness and honouring death. The following
collection of the symposium acts held online in May 2020 with the Paris
Global Center of Columbia University and Columbia Global Centers,
attempts to testify to the ongoing pandemic emergency and difficult
challenges while evaluating whether the ethical principles in the
official recommendations were able to meet the lived reality. Looking at
accountability and consistency in regard to the context of exercise, it
seemed equally important to examine, through an international exchange,
whether the contextuality of Coronavirus across countries and cultures
affected the ethical decision making processes. We hope that our
discussion can serve as a resource for advanced care planning, helping
medical providers and other specialists to consider the shared important
aspects of medical ethics in times of great uncertainty.%
\end{abstract}%



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\section*{Keywords : to select 6 key
words}

{\label{keywords-to-select-6-key-words}}

\begin{itemize}
\tightlist
\item
  \textbf{humanity}
\item
  \textbf{philosophy of medicine}
\item
  \textbf{public health}
\item
  \textbf{epistemology}
\item
  \textbf{healthcare}
\item
  \textbf{medical ethics}
\end{itemize}

THIS PUBLICATION WAS DIVIDED INTO TWO PARTS FOR THE PURPOSE OF
SUBMISSION and as agreed upon with the editors and in order to respect
the word count. We would like them to be united into one section upon
publication.

{\label{this-publication-was-divided-into-two-parts-for-the-purpose-of-submission-and-as-agreed-upon-with-the-editors-and-in-order-to-respect-the-word-count.-we-would-like-them-to-be-united-into-one-section-upon-publication.}}

\section*{PART 1}

{\label{part-1}}

\section*{General Introduction to the
Section}

{\label{general-introduction-to-the-section}}

\section*{COVID 19 : ETHICAL DILEMMAS IN HUMAN LIVES --
INTRODUCTION}

{\label{covid-19-ethical-dilemmas-in-human-lives-introduction}}

\section*{Dr. Smadar Bustan,
Philosopher}

{\label{dr.-smadar-bustan-philosopher}}

The novelty of the global outbreak of the highly contagious coronavirus
disease brought the entire world together as it shared a collective
experience, while at the same time, pulled us apart with closed borders,
home lockdowns, extreme social distancing and isolation. This
coronavirus threat presented a unique set of features: everyone had to
be treated as potentially positive as it is possible to be infectious
while being asymptomatic. The disease often became a death sentence
because there is no treatment or vaccine. Moreover, our contemporary
evidence-based medicine was challenged as the notion of knowledge
became\emph{in transitu} , knocking the solid bottom of the entire
healthcare practice. Decisions need to be grounded in science but there
was no science to rely upon. Information has been confirmed and refuted
on a daily basis: face masks were publicly announced as protective
measures but then their viability was debated, medical protocols at
hospitals changed continually, confuse the frontline medical staff
trying to save lives while feeding substance back to the experiential
knowledge of medical care. Nations became indistinguishable by the worry
and grief that joined hands: the long lists of hospitalized people
shared on social media, the death tolls portrayed by endless lines of
military fleet transporting bodies of coronavirus fatalities for burial
in North Italy, the mass graves in Latin America or the extent of
reported cremations of the Covid-19 victims in China, as well as the
alarming cry of healthcare personnel worldwide.

The risk and prevention required to limit the coronavirus spread and
rapidly work out the most efficient containment measures, divided the
tasks between the political, medical-scientific, public and industrial
sectors. Despite their exceptional collaboration, we seem to have turned
back to population-oriented medicine after an accomplished era of
individualized medicine, looking at the mass instead of the ill human
being. In addition, when the whole world seemed to be coping as one,
differences emerged in regard to national or even regional
anti---Covid-19 management strategies, including sanitary and medical
interventions. Since the onset of the outbreak, while keeping people
alive has certainly been the immediate and primary imperative,
healthcare professionals have been overwhelmed by pressing ethical
challenges, having to make hard decisions for which they were
accountable and to provide reasons for their actions and omissions.
Clearly, clinicians are trained for ethical decision-making, but in view
of the pandemic chaos paired with the incredible shortage of medical
resources, ethics committees or advisory groups had to help by providing
specific guidelines such as those endorsed by the `Covid-19 ethical
decision-making tool' (1).

The reality was and still is represented as being constituted in the
same fashion as that of decision-making in times of war where the
urgency, scarcity of medical supply or critical care beds, rapid
spreading of new cases, time sensitive procedures, and fighting the
unknown during a public health emergency continue to weigh efficiency
(\emph{Is it the most effective? What will be the end result?)} over the
ethical (\emph{Is it the right thing to do} ?). The dramatic phrasing
regarding ``the war against Covid-19'' announced by politicians and
health organization directors-general became integrated into the health
care system. It forced challenges that no longer strictly applied to
individual patient care (allocation of limited resources such as
ventilators, the sharing of patients' confidential information with
relatives or even the media, denying opportunities for families to say
goodbye before a death) but also applied to the role of practitioners
who found themselves in a newly created chain of command.

The essential service of medical ethics and its decision making process,
as I see it, consists in allowing for one part of the decision to lean
upon another part of the decision in order to become unambiguous. In
this way, each one of the several aspects in which the ethical decision
may be considered, assures the values of the right and the good.
Obviously, dilemmas put us in a situation of conflict where a difficult
choice has to be made between different options. Medical ethics dilemmas
create even more conflict than most because they touch upon human lives.
The Covid-19 pandemic obliged us all to handle many dilemmas, some of
which we took upon ourselves as philosophers, ethicists, doctors and
nurses to discuss during the symposium\emph{Covid-19: Ethical Dilemmas
in Human Lives} held on May 7\textsuperscript{th} 2020 and organized by
the Paris Global Center of Columbia University and the Columbia Global
Centers. Humbly, we may not provide ready-made solutions, especially as
the epidemics storm still rages.~This discussion testifies to the
ongoing pandemic emergency and its difficult challenges while evaluating
whether the ethical principles in the recommendations were able to meet
the lived reality. Looking at accountability and consistency in regard
to the context of this emergency, it seemed equally important to
examine, through an international exchange, whether the contextuality of
COVID-19 across countries and cultures affected the ethical decision
making processes. The following collection of the symposium's acts
maintains the discussion format whereby each dilemma is addressed by a
Covid clinician and then analyzed by a philosopher or an ethicist, who,
at times, is also a practicing physician. I organized the discussion
around four ethical key dilemmas with leading questions, even though
others clearly come up in the various discourses.

\textbf{The Four Ethical Dilemmas:}

\textbf{RESPONSIBILITY} :

Can medical responsibility~change in times of~pandemic?

\textbf{FAIRNESS} :

In times of emergency, scarce equipment,~and contaminated medical staff,
where do we draw the line of whom we treat and whom we cannot, who will
live and who~will die (triaging resources)?

\textbf{DIGNITY} :

Does the~need for~increased awareness of public harm in a pandemic
justify impinging on patients' rights to~bodily and personal dignity~and
privacy?

\textbf{HONOURING DEATH} :

Does public interest~in~social distancing~outweigh~the patient's~right
not to~die~alone~and the family's right to be with their~dying relative?

The ethical values at risk may be clearly striking and in this respect,
the challenging questions raised are intended to reinforce our values,
speak of the well-being of the sick human being, of the
dead\emph{person,} in referring to a patient as a person to be cared for
rather than a critical case or a contaminating agent. And while the
coronavirus continues to widely spread across the globe, we hope that
our discussion can serve as a resource for advanced care planning,
helping medical providers and other specialists to consider the shared
important aspects of medical ethics in times of great uncertainty.

For the symposium video, please view:\emph{COVID-19 ETHICAL DILEMMAS IN
HUMAN LIVES.}

I would like to thank the Paris Global Center of Columbia University and
their wonderful team for hosting the symposium in these exceptional
times along with the Columbia Global Centers in Amman, Nairobi, and
Istanbul. And last, I would like to thank all the healthcare and
essential workers worldwide for their daily engagement to overcome the
COVID-19 virus.

Smadar Bustan University of Paris Diderot May 2020, France

\section*{First Ethical Medical
Dilemma}

{\label{first-ethical-medical-dilemma}}

\section*{RESPONSIBILITY}

{\label{responsibility}}

\section*{Can medical responsibility~change in times
of~pandemic?}

{\label{can-medical-responsibilitychange-in-times-ofpandemic}}

\section*{RESPONSIBILITY: Clinician, Mirco
Nacoti}

{\label{responsibility-clinician-mirco-nacoti}}

Mirco Nacoti, MD, ~(ITALY) ,~is an emergency, anesthesia and intensive
care physician at Bergamo Hospital, Italy. An expert in international
health and bioethics, he has extensive field experience in humanitarian
crises and community approach to~vulnerable people.

{\label{mirco-nacoti-mditalyis-an-emergency-anesthesia-and-intensive-care-physician-at-bergamo-hospital-italy.-an-expert-in-international-health-and-bioethics-he-has-extensive-field-experience-in-humanitarian-crises-and-community-approach-tovulnerable-people.}}

Two months after the beginning of the crisis I still have major problems
sleeping.

I've dragged the corpse, from the bathroom to the bedroom, of a 50 years
old man who had died at home.

I've seen dozens of people piled up in emergency rooms with severe
dyspnoea and frightened eyes.

I've spoken on the phone to a friend of mine and said to her: you must
choose between your father and your mother.

I've run at night to my hospital, taken a drug for sedation and come
back to look after an old man dying, as my hospital was too crowded.

I've obeyed an order to transfer to Germany by flight an intubated man
and he has died on his way. I've never spoken to his parents.

I know many young anaesthetists in my hospital who have decided alone
who were to live and who were to die.

I feel a persistent smell of people suffering on my skin.

The pale light of an old humanitarian actor, with some studies in
bioethics, is now a fire. 40 years later, the Alma Ata definition (2) of
primary health care seems vital to me.

I've done and watched a lot over these past 2 months. But my night-time
question is: have I thought enough? That's why I'm very grateful to have
this occasion to think.

Bergamo is a rich and populous city of northern Italy (1.000.000 people)
and one of the epicentres of the worldwide COVID 19. Despite the
generosity of health workers, we are undergoing a severe humanitarian
crisis that is stressing every aspect of daily life.

From outside it is very hard to understand, because houses are closed
for lockdown and are not destroyed as they would be in an earthquake.
Furthermore, in regard to the dilemma of moral responsibility, the World
Health Organisation figures do not represent the reality. WHO is doing a
great job, as usual, but the figures provided are a dilemma, as usually
occurs during an outbreak. Today WHO shows about 3.500.000 confirmed
cases with 240.000 deaths (3) worldwide and in Bergamo 13.000 confirmed
cases with about 2500 deaths (4). Unfortunately, the actual deaths
reported by town halls are about 6.000-7.000 (nearly 1\% of the
population) (5). Considering that a fatality rate of 20\% is a
non-sense, because the Chinese experience (even in Hubei province)
reports a rate between 1 and 3\% (6), the number of people contaminated
in Bergamo is likely to be between 250.000 and 500.000 (which means
25\%-50\% of the population). More than 2.000 people with mild-severe
hypoxia, at the peak of the outbreak, stayed home because all the
hospitals were overcrowded. These are the real figures. This is the
picture of Bergamo's disaster.

For this reason we wrote a paper which appeared in the New England
Journal (7). In regard to the dilemma of moral responsibility, when the
global medical community is called on to face a pandemic of
unprecedented scale, with little scientific evidence and ``crazy
numbers'' describing the situation, honest and forthcoming advocacy is
an ethical duty, and that paper was a wake-up call for those involved in
system preparedness and strategic planning.

An outbreak is neither a simple disaster casualty incident like an
earthquake or a ``simple'' disease, but it's a social phenomenon.
Historical and social elements are key factors for development (for
example, intensive promiscuity between animals and humans) and spread
(for example health workers and ambulance rapidly become vector of the
virus) of an epidemic (7).

A first consequence of this translation into a social horizon concerns
the theme of responsibility. And in regard to the dilemma of moral
responsibility, how much does the social narrative about the infection
numbers weigh, for example, on the decisions to be taken and on the
concepts that guide them (for example, that of proportionality)?

How do inaccurate narratives, from an epidemiological point of view,
affect the ''judgment in situation'', that takes place in triage or in
prevention strategies in other countries? How many shocking images are
needed if figures are not reliable ?

Another aspect of the dilemma of moral responsibility concerns the care
of decision-making process and the fragmentation of responsibility.
Modern western medicine has centralized the care of patients in the
hospitals (and our region does represent this process), preventing the
community from being the main actor in the sphere of public health and
putting into practice an ``expropriation of health'', as Ivan Illich'
says in Medical Nemesis (8). Body has been progressively fragmented in
small pieces by super-specialized doctors and responsibility has ended
up being a question of legal responsibility, an economic matter, and not
an ethical one. In this fragmentation, it has been acceptable for us to
execute orders, even if epidemically dangerous or not ethical, because
we were living an urgent situation, and during the fight against COVID
19 the mantra was ``to do and not to think''. It seems, as Hannah Arendt
writes in her ''Banality of evil'', that ``nobody was responsible, or
rather, nobody felt they were; they just did their job'' (9). Would have
been useful to have a mechanism of control of decision makers in close
contact with territories? Only the awareness that the weight of a
decision is to be shared can prevent us from turning the triage into a
moment of irresponsible superhomism.

A further aspect of the dilemma of moral responsibility is the ethics of
the research in urgent situation. As Derek C. Angus wrote in a JAMA view
point (10), one stark example is the debate over prescribing available
drugs, such as chloroquine, or testing these drugs in randomized
clinical trials. At the heart of the problem is one of the oldest
dilemmas in human organizations: the ``exploitation-exploration'' trade
off. Exploitation refers to the ``just do it'' option. Exploration
refers to the ``must learn'' option.

During his captivity in the 1940s, Archibald Cochrane treated many
prisoners, often ill with tuberculosis, by observing how the disease
benefited more from a good caloric intake than from drugs of uncertain
or zero efficacy. The germs of Evidenced Based Medicine arose from those
observations. 80 years later, in regard to the dilemma of moral
responsibility, how many helmets to deliver respiratory assistance have
been placed without any enteral feeding in Bergamo? Chloroquine,
antiviral, anti IL6, anti-complement, steroids, antibiotics have been
distributed without a real methodological approach, without monitoring,
with people arriving at the hospital worn out after days of dyspnoea.
What data, what ethical research can be produced in such a mess, what if
you publish on an important indexed medical journal but the
''\emph{garbage in, garbage out''} approach is still considered the
right one (11)? Furthermore, in regard to the dilemma of moral
responsibility, what about signatures extorted for consensus from a
dyspneic patient with no family member nearby? Such a touchy a matter
would require competence and experience, and yet it was often managed by
residents instead of specialists. Not everything is lawful in urgency
and there is an ethics of research even in urgency.

Derek C. Angus suggests at the end of Jama view point (10) that an
integrated approach of ``learning while doing'' is essential in a
crisis. Nevertheless, in our current context, it's very important not to
lose the capacity to think and probably we have to subtly shift from
Angus' suggestion to a ``thinking/learning while doing'', as Hannan
Arendth writes (12).

Goisis, a philosopher coauthor of the New England article, says that it
is not true that nothing will be as it used to be before COVID 19.
Millions of people in the world will be more vulnerable and isolated.
But the economic, scientific, political and social mechanisms leading to
this pandemic humanitarian disaster are still there. ``Doctors have to
give back to the community the capacity to promote health'', could have
said Ivan Illich today.

\textbf{Acknowledgments}

The author thanks Dr. Matteo Cavalleri and Dr. Giuseppe Goisis for their
help with philosophic suggestions and English editing.

\section*{RESPONSIBILITY: Philosopher, Smadar
Bustan}

{\label{responsibility-philosopher-smadar-bustan}}

Smadar Bustan, PhD ,~(FRANCE) ,~ is a~philosopher, ethicist and
scientist at the University of Paris Diderot.~In her research on human
suffering and pain,~she~developed~a tool for~evaluating~the suffering of
chronic patients following experimental and clinical~studies
in~Luxembourg and France. She~co-founded at Harvard~and heads~the
International Program on~Suffering and Pain~(www.suffering-pain.com).

{\label{smadar-bustan-phdfrance-is-aphilosopher-ethicist-and-scientist-at-the-university-of-paris-diderot.in-her-research-on-human-suffering-and-painshedevelopeda-tool-forevaluatingthe-suffering-of-chronic-patients-following-experimental-and-clinicalstudies-inluxembourg-and-france.-sheco-founded-at-harvardand-headsthe-international-program-onsuffering-and-painwww.suffering-pain.com.}}

The dilemma discussed here bears on responsibility, a Latin term from
1590 \selectlanguage{polish}\emph{respōns(us}\selectlanguage{english} )~or response, which became philosophically
prominent rather late in the 18\textsuperscript{th} century. Our
question is, does responsibility,~and more specifically medical
responsibility, change during a global health crisis? Is responsibility
limited in the avalanche of an infectious transcontinental disease,
obliging us to~relieve clinicians from the burden of decision-making
process carried out in individual cases?

A broader conceptualization of the nature of responsibility is necessary
in order to deal with this dilemma, by first asking: \emph{what does it
mean to be responsible in times of pandemic?} Responsible behavior
during the coronavirus infection outbreak was very much present in every
household and country around the globe. Yet the lack of adequate
knowledge caused significant inconsistency leading to public panic and
raised doubt about what it means to act in a responsible manner, both
personally and collectively. The problem with a pandemic is that the
personal and the social intermingle to the extent that the most casual
individual acts, such as coughing, sneezing, going out of our homes, or
walking around maskless, turns a person into a biological agent engaging
into irresponsible behaviors that some would qualify as criminal or
immoral. This Covid-19 Epidemic has been enhancing \emph{mutual
accountability} to such an extent that individual responsibility is
transferred from an autonomous self to a self intrinsically bound to
others. One can no longer exert free will to live carelessly and be
prepared to risk contamination.

What we have learnt from this epidemic as a globalized society is that
individual responsibility is no longer \emph{exclusively centered} on
what we are bound to undertake by duty, of a person being
responsible\emph{for} something or someone (a parent for their child, a
doctor for their patient) since \emph{simply by being, breathing,
existing, we are accountable, all of us together and every one of us
individually.}

Unfortunately, under such circumstances, our responsibility becomes as
vulnerable as we are.

The fragility of a pandemic causing this
involuntarily\emph{responsibility by existence} , with its inevitable
sharing of accountability, leads us back to our main ethical dilemma
when asking what motivates us to make the right choice for a responsible
act during a health crisis. For the overwhelmed practitioner inquiring
how to fully know what the right act is, how to best choose in relation
to the available resources and to whatever is in one's power, the
resignation to do `the best we can' may provide protection from
liability but not necessarily satisfaction or peace of mind. When the
medical model of responsibility is guided by reasoned thought in regard
to what we can do and the means that lead us to better ends, It is
difficult not to notice the unrest when this intellect-based definition
of being responsible entails a sense of feeling morally, medically or
even humanly irresponsible. When reading Dr. Nacoti's testimony, it
becomes clear that even though a well-regarded thought led him and his
colleagues to make decisions for saving lives, the strong remorse
experienced following the death of their patients shows that a
reason-based decision for acting responsibly with a negative end result
may leave clinicians with a feeling that they are partially at fault for
the failure.

The severity of the pandemic has exposed many of the medical workers, as
those in the frontline in north Italy where Dr. Nacoti works, to face
the toughest triage procedures in medical care with the prospect of
having to ration equipment and care, sacrificing certain people for
saving others and facing unthinkable choices regarding life and death.
The lack of treatment led to the use of drugs on the basis of limited
evidence concerning their effectiveness and therefore not without risk
while trying to assure the highest rate of survival. In this respect,
even when providing immunity against malpractice during the emergency of
Covid-19 and hence excluding any legal responsibility, as Dr. Fischkoff
recounts about the State of New York, the problem with ethical
responsibility persists not only in regard to the possible damage caused
by one's own act, but also to the consequences of this act on the people
to whom they must answer. We find here the two aspects of the modern
idea of responsibility, associating legal and moral responsibilities.
The interdependence of these two aspects may explain why, despite
excluding any legal sanctions and therefore legal responsibility in a
time of unprecedented crisis (facing scarce resources and exceptional
emotional burden on healthcare personnel), the ethical dilemma persists
because medical decisions remain attached to our moral obligations.
Treating clinicians whose actions are based on well justified rational
decisions may still carry blame, unable to wash away the guilt, because
these fail to comply with their moral convictions.

The lived reality of the pandemic obliges us to go beyond the first form
I named \emph{responsibility by existence} to better examine the
medically relevant form of \emph{responsibility by deliberation} ,
introducing the idea of making a choice as a result of deliberation and
of fully \emph{knowing} what is the right thing to do. Two philosophers
who represent this strand of thought with the traditional concept of
responsibility as dependent on knowledge, striving to certainty and
regulatively knowing everything or at least as much as possible, are
Aristotle (4\textsuperscript{th} century BC), in his account of Ethics,
and John Stuart Mill almost two millennia later with his utilitarianism
(13) (19\textsuperscript{th} century). In the third book
of\emph{Nicomachean Ethics} (14), Aristotle examines what is good for
the human being--- what we need to undertake, aim at, and act upon, in
order to do good. In our case, medicine aims at health, and physicians
aim at healing. In this respect, what Aristotle also taught us is that
when we deliberate, we always have some end in view. If I deliberate
about whether to put a mask, I consider this in light of a future end in
view, which is to avoid catching or spreading the COVID-19 virus. If I
deliberate about whether to respect the extreme social distancing of the
quarantine and stay at home, I consider this in light of a future end in
view which is to slow down and eventually stop the epidemic's spread.

Aristotle claims, however, that there are two things we cannot
deliberate about: facts (which could only be examined) and end views,
for the simple reason that we cannot change them. Hence our choice based
on deliberation of doing good and acting responsibly are dependent on
end purposes and on sticking to the facts, and basically on knowledge.
At the same time, if during the Covid-19 pandemic we apply this
philosophical recipe with reason-based choices regarding medical
responsibilities, we soon realize that clinicians are being severely
undermined, which only intensifies our dilemma. In reality, we have
witnessed misinformation emanating from situation reports and official
communications, including from public health authorities, through
inaccurate or misguided information. For example, It was said that
smokers are less likely to be contaminated, ibuprofen or aspirin can
worsen the Coronavirus symptoms, or the virus is unstable at high
temperatures and therefore will go away when the weather warms up. In
the upheaval of the aggressively spreading epidemic, scientific facts
continuously evolved so action based on facts had to adapt, inducing
further confusion relative to our standard approach of evidence
based-medicine that canceled out knowing beforehand and making a
contingency plan accordingly. Furthermore, at the outbreak of the
pandemic, the end view of medicine and its therapeutic goals, shifted
from healing to prevention from dying, totally destabilizing the
standard therapeutic goals.

Under a state of emergency and threatening rapid death, we could simply
proclaim that without a solid foundation to rely upon for making
choices, the entire undertaking of medical and social responsibility is
bound to perplexities. Medical professionals must respond when facing
flows of Covid patients with severe respiratory distress out of active
commitment to vulnerable patients. De facto, they do respond. But do
they need, in this unique scenario, to take responsibility for their
medical response? In respecting their devotion and diligence, can we
relieve~clinicians from a part of the responsibility in the
decision-making process as normally carried out in individual cases?

A comprehensive approach should be compatible with extant principles of
responsibility under the given circumstances. A broad approach to
analyze responsibility for pandemic diseases should consider both forms
of responsibility, by existence and by deliberation. This would be
better overall for society and healthcare, considering the disruption
due to shifting facts and undermined medical ends, thus promoting more
careful policies and actions.

At the same time, the outcome of the discussion so far has been to show
us that a person or an act can be considered responsible so far as one
is bound by it, or thinks it to be right. My first observation in
examining ``what is it to be responsible'' in times of pandemic consists
in introducing the idea of \emph{responsibility by existence for all} ,
regrettably excluding the freedom to be able to do otherwise. And my
second observation examining ``what is it to act responsibly'' consists
in introducing the idea of \emph{responsibility by deliberation} , of
accountability for our actions and their consequences, and the praise
and blame attributed to the moral agent. Deliberation is a reasoned
thought about what we can change by our efforts and where we need to act
differently in various occasions. And yet, in times of pandemic the
foundation for well-reasoned and thoroughly discussed decisions,
fostering a collegial consultation as standardly required, is damaged
because neither the facts nor the end views are stable enough to serve
as references for deliberately acting responsibly. Dr. Nacoti raised
this point when he spoke about referring to the general qualification of
the Covid pandemic as a war with a chain of command whereby clinicians
were to simply obey, following the mantra of ``do and do not think'' and
inexperienced doctors found themselves having to decide alone who will
live and who will die. The resulting epistemological helplessness of the
Coronavirus pandemic puts the idea of responsibility in a new light due
to the conflict between the medical naturally learned profession and not
knowing. This novel chaotic situation cancel's Aristotle and Mill's
rationalist view of acting by virtue and for the benefit of good on the
ground of knowledge, as clinicians who have an occupation requiring them
to be well-informed in order to act responsibly lack in effect the
necessary knowledge.

This outcome for the practice of medicine and our philosophical inquiry
requires to rethink the notion of responsibility and moral obligation by
moving philosophical fields, going from Aristotle's guiding but failing
rationality to Levinas' field of ethical phenomenology. The reason is
that none of the perspectives that have been actually presented here has
paid full attention to a third form of responsibility, based on an
entirely different philosophical pattern and that provides a way out of
this dilemma regarding acceptable or unacceptable changes in medical
responsibility~in times of~pandemic. \emph{This alternative view
consists in arguing that responsibility is involuntary, not bound by
rational choice, certainly not a deliberate one and is totally
experiential. Becoming responsible for a sick person is imposed upon us
by his needy, vulnerable presence when calling for help, often
without}words, in an appeal conveyed by the misery and helplessness of
their facial expressions. This sense of ethical responsibility goes
beyond that of a reflective commitment. And just like the first form of
responsibility by existence, it separates one from oneself by giving
precedence to the other person, while emphasizing here that this other
person is weaker and more at risk. Levinas considers the experience of
responsibility as what binds one person to another, as the foundation
for humanity and ethics which he demonstrates through the well-known
theme of the meeting face-to-face, when encountering the face of the
other person causes a phenomenological shock that makes one feel
inevitably responsible for their fellow human being (15).

I have to admit that in my writings on ethics and the sufferer and
especially in my review of what I call the ``French School of the Ethics
of Suffering'' (16), I always criticized this uncompromising level of
responsibility and priority Levinas claims we can grant another person,
even when we are ourselves sick, exhausted and emotionally strained
(17). But when I caught the Corona virus at the beginning of the
outburst here in France, the sense of responsibility and giving priority
for the well-being of another took over me. My symptoms were mild, but
sudden. I fell down on the floor without being able to get up again,
feeling the chill and honestly the fright of the unknown progression of
this aggressive virus that literally took control over my body within
minutes. While lying on the floor, what bothered me most was the
possible contamination of my children and particularly of my asthmatic
elder son who was designated as part of the Covid-19 risk group. I was
sick, not being able to give anything, let alone move my body, and yet,
just as Levinas claims, the disinterested sense of responsibility
towards another invaded me and my responsibility for not contaminating
them became my absolute priority. It was not a voluntary or deliberated
sense of responsibility and it very much obsessed me when I was most
helpless.

Obviously, one could contest this example by rightfully claiming that
children are an extension of the parent and do not represent a `real
Other' in the full Levinasian sense. And as I demonstrate in my book on
Levinas' ethics, the unreflective encounter with the other person rather
represents a situation that makes me surrender myself to them, often
against my own will and without being able to expect anything in return
(18). The Other could be a stranger one has to commit oneself to despite
wanting to walk away, a patient entering an already overbooked Covid
unit whom an overburdened doctor would rather put to wait or a
contaminated elderly person placed in the care of a scared nurse,
wearing a plastic bag due to lack of proper protective equipment
(reminding us of the institutional responsibility towards the caregivers
and the safety protocols). The other person may even constitute a threat
but since their urgent call for help precedes me and is imposed upon me
immediately, I am obligated to be there for them, unable \selectlanguage{ngerman}«to get out
from under responsibility» (19). It is the lived experience and
encounter between human beings that make us responsible, not knowledge
or deliberation on the account of facts. Human responsibility is simply
being there for the other, claims Levinas (20). The activated sense of
responsibility towards the survival of others places them first, prior
to worrying about our own survival and prior to any conscientious
processing. One is compelled to worry and care for the other says
Levinas, since responsibility does not originate from within oneself,
but is rather an \emph{order} or command that one receives. It precedes
us in the sense that it originates from a prior time and our ascendants
(ancestors or past generations), as Ezekiel Mkhwanazi beautifully
explains (21), it is pre-original (22)(23).

In transposing this view to our discussed dilemma of medical
responsibility, it soon becomes clear that what stems from this sense of
duty, of a caregiver or a medical worker, is not a Greek agency or
freedom to choose the good, but a fundamental archaic obligation of
oneself towards another, and that it ``commands me and ordains me to the
other'' (24). In this perspective, this amounts to saying that our
dilemma is cancelled since no judgement can be made about treatment or
availability of the medical caregivers during a pandemic. Their mere
presence beside a Covid patient's bed is a celebration of being there
for the patient and of human responsibility at its best.

\textbf{Acknowledgments}

The author thanks Dr. Jeremy Simon and Dr. Javier Escartin for their
help with English editing.

\section*{Second Ethical Medical
Dilemma~}

{\label{second-ethical-medical-dilemma}}



\section*{FAIRNESS}

{\label{fairness}}



In times of emergency, scarce equipment,~and contaminated medical staff,
where do we draw the line of whom we treat and whom we cannot, who will
live and who~will die (triaging resources)?

{\label{in-times-of-emergency-scarce-equipmentand-contaminated-medical-staff-where-do-we-draw-the-line-of-whom-we-treat-and-whom-we-cannot-who-will-live-and-whowill-die-triaging-resources}}

\section*{FAIRNESS : Clinician, Katherine
Fischkoff}

{\label{fairness-clinician-katherine-fischkoff}}

Katherine Fischkoff, MD, MPA (USA) ~is an Acute Care Surgeon and
intensivist at Columbia University and is the Medical Director of the
Surgical Step Down Unit. She is an active member of the Columbia Ethics
Committee, the SCCM Ethics Committee and an ethics consultant.

{\label{katherine-fischkoff-md-mpa-usais-an-acute-care-surgeon-and-intensivist-at-columbia-university-and-is-the-medical-director-of-the-surgical-step-down-unit.-she-is-an-active-member-of-the-columbia-ethics-committee-the-sccm-ethics-committee-and-an-ethics-consultant.}}

Fairness has been a driving principle of the treatment of COVID patients
throughout the pandemic response. However, given the overwhelming number
of patients in New York City, the challenges to fairness evolved as the
COVID crisis unfolded.

To begin with, on March 16, 2020, all elective and semi-elective
surgeries and other procedures were cancelled in New York City to allow
hospitals to free up resources in anticipation of the surge of patients
(25)(26). This presented the first questions of fairness. Patients who
were scheduled for often time-sensitive treatments were postponed in
order to be able to care for the thousands of COVID + patients. This
was, of course, not just a question of fairness, but also of patient
safety, reallocation of resources and preservation of PPE. However, any
time one group of patients is prioritized over another, we must ask
ourselves whether the outcomes were proportional. In this case, the
overwhelming answer is yes. Shutting down normal hospital operations was
essential in being able to safely take care of the enormous crush of
patients that presented. However, should there be another wave, the
proportionate harm to those patients who would be postponed needs to be
considered and alternative options proposed in order to avoid
interrupting their care again.

The second question of fairness came when questions of triage arose. In
the United States, there is a strong cultural and legal emphasis on
patient and family autonomy. This American phenomenon persists in part
because the health care system is so resource rich. As an example, New
York State law in the form of the Family Health Care Decision Act (27)
does not permit physicians to withhold or withdraw life-sustaining
therapy over the objection of patients and their families. In this
cultural and legal context, when the COVID surge began and there were
serious concerns about scarcity of resources, the governor of New York
decided that rather than approve a triage system to decide which
patients would get a ventilator and which would not, he would work to
provide ventilators for everyone and New York hospitals committed to
rapidly expanding their ICU capacity (28). My hospital typically has 117
ICU beds but over the course of two weeks, we expanded to nearly 300 ICU
beds and pop up tents provided extra inpatient beds. This was done
without a compensatory increase in staffing. But because of this, no
patient was turned away.

In 2008 after the H1N1 flu outbreak, many states put together a resource
allocation plan that could be used in the case of crisis when resources
were overwhelmed. The New York State Ventilator Allocation Guidelines
(29) were built on the ethical principle of fairness- that all patients
would be given equal access to ventilators regardless of socioeconomic
factors. It begins with a set of immediate exclusion criteria that are
applied to a patient when he or she is determined to need a ventilator,
such as unwitnessed or recurrent cardiac arrest, severe traumatic brain
injury or irreversible hypotension refractory to fluids and pressors. If
a patient meets any of those criteria, he or she is not given a
ventilator but is offered either best medical management or palliative
care. If a patient needs a ventilator but does not meet any of the
immediate exclusion criteria, he or she goes on to evaluation by a
``Triage Committee'' which follows a very specific pre-determined
algorithm to decide whether a patient would be given access to a
ventilator.

The goal of the Allocation Guidelines is to determine a patient's access
to a ventilator based on prediction of likelihood of survival and not
based on value judgements. In fact, to uphold the fairness of the
process and to ensure there would not be any decisions based on social
or economic factors, the triage committee is a third party whose
representatives are not directly involved in the care of the patient and
does not receive any demographic information.

As noted above, the Allocation Guidelines were not activated during the
COVID crisis. With an incredible show of collaboration, creativity and
immense hard work, hospitals in New York City were able to care for all
patients who had COVID. The question must now be asked, is it\emph{ever}
fair to activate a triage process and deny access to critical care
resources if there is the option to stretch resources further? The
Institute of Medicine describes the spectrum of hospital expansion in
response to a public health emergency (30). Conventional capacity is the
normal operating capacity of a hospital. Contingency capacity is defined
as operating significantly above a hospital's usual capacity but is a
state in which normal standards of care can be delivered. Crisis
capacity is the final stage in which hospital resources are stretched so
thin that normal standards of care cannot be provided. It is often
recommended that triage systems be activated before a hospital enters
crisis capacity as a mechanism to help avoid providing crisis standards
of care.

New York made a decision to enter crisis capacity rather than activate a
triage system. This necessarily meant that hospitals were providing
crisis standards of care to \emph{all} patients rather than normal
standards of care to \emph{fewer} patients. Nursing and physician ratios
were tripled, non-ICU trained physicians were caring for ICU patients
and all manner of hospital spaces were repurposed to create rooms for
ICU level patients. One particular example was the provision of
dialysis. So many critically ill patients required dialysis that
hospitals quickly ran out of machines and supplies (31). This meant that
in some cases, in a manner not consistent with typical standards of
care, patients received fewer hours of dialysis than normal or had
peritoneal dialysis as a manner of stretching the supply of dialysis to
meet the demand.

As an acknowledgment of crisis standards of care and in order to support
clinicians' ability to continue to care for so many patients, the
governor of New York passed the Emergency Disaster Treatment Protection
Act (32). The Act's stated purpose is to broadly protect health care
facilities and professionals from liability for the treatment of
patients during the COVID-19 pandemic. The Act shields health care
professionals from civil and criminal liability in connection with
services provided to any patient as a result of and during the COVID-19
crisis, so long as decisions are made in good faith. For decisions that
are alleged to be unlawful, the Act also provides immunity if they
result ``from a resource or staffing shortage.'' Such legal protections
were imperative to allow healthcare workers to continue to practice in
the crisis environment but also are a recognition that the provision of
crisis standards of care may contribute to adverse events.

While there are many ongoing conversations about whether New York should
have activated triage systems, I have never been prouder of my city and
my colleagues for their response to the COVID crisis. Taking care of
nearly 120,000 New York City patients required perseverance, courage,
resourcefulness and a willingness to accept personal risk. It will be
months before we have outcomes data on the COVID patients and even
longer before we will fully understand the consequences of our decision
to treat all New Yorkers. But until then, we can stand tall in the
knowledge that while our healthcare system was under unprecedented
stress, we performed heroically and fairly.

\section*{TRIAGE AND FAIRNESS IN THE NAME OF QUALITY OF LIFE? Mylène
Botbol-Baum,
Philosopher}

{\label{triage-and-fairness-in-the-name-of-quality-of-life-myluxe8ne-botbol-baum-philosopher}}

Mylène Botbol-Baum ,~PhD, (Belgium) ~is full professor in the faculty of
Medicine, member of the Biomedical Ethics Unit ( HELESI ),
Ethics~Committee (INSERM France) and Professor in the Philosophy
Department, at Université Catholique de Louvain in Brussels, Belgium.

{\label{myluxe8ne-botbol-baumphd-belgiumis-full-professor-in-the-faculty-of-medicine-member-of-the-biomedical-ethics-unit-helesi-ethicscommittee-inserm-france-and-professor-in-the-philosophy-department-at-universituxe9-catholique-de-louvain-in-brussels-belgium.}}

Katherine Fishkoff has been addressing the issue of fairness from a
regulatory perspective and the responsibility of the mayor of New York
who has decided to protect medical doctors from trials when they take a
reasonable decision in a context of emergency. These decisions raise
dilemmas linked to conflict of interests and interpretations around the
word fairness and even about what constitutes a fairness dilemma.

My first question, as a European benefiting from a providence state, is
at what condition can we have fairness in an unfair system, i.e. a
non-egalitarian context? What are our basic assumptions about moral
reasoning when we address dilemmas in situation of uncertainty?

We must take seriously the health system capacity of anticipation that
refers to public health at large since the issue of fairness is
essentially a biopolitical issue, which has global consequences during a
pandemic.

We know that the pandemic reduction was not a priority for the United
States government, and many other opulent countries did not prepare
adequately for it, so that the enormous responsibility to confront it
befell on the medical providers. This imposed on them an uneven focus on
present day patients, rather than the actual and prospectively sick. If
we speak of fairness, we state that reducing the pandemic risk is a
global public good inscribed in a complex temporality.

\begin{itemize}
\tightlist
\item
  Who gets healthcare resources?
\item
  Can it be based on meritocracy, age, or function?
\item
  Can we apply the same principles to all Covid19 and non-Covid19
  patients?
\item
  How to prioritize access to healthcare?
\end{itemize}

According to American bioethicists, referring to utilitarian principles,
maximizing benefits is the most important principle, followed by the
principle of care versus stewardship of resources.

Prioritization should aim at both saving the most lives and allowing
empowerment of individuals post-treatment (definition of \emph{Dalys} :
to ensure future years of life with minimum handicap).

But what about the subjective perception of quality of life?

What kind of dilemmas are we confronted with, if we take the subjective
dimension of quality of life seriously and not only qualys?

Dr Fishkoff underlines the dilemma of providing medical assistance below
our standard of care to all patients, versus normal standards to fewer
patients.

Is this a dilemma between equality versus quality of care?

How does the notion of fairness lead us to respond and resolve, or not,
the dilemma? It seems to me that there is no dilemma here when the basic
principle is care. We should indeed maximize care. For instance, New
York has a good public health system and has prolonged the obligation of
social distancing. It should therefore not suffer too much of scarcity
of medical resources leading to dilemma.

If we want to solve this dilemma in terms of rational arguments, we can
address:

\begin{itemize}
\tightlist
\item
  Moral intuition
\item
  Symmetry
\item
  Incommensurability of the previous point
\end{itemize}

Dr Fishkoff tells us that the extreme shortage of dialysis machines
conflicts with caring for all, which does not support a systematic
account of triage. The difficulty is that the modern notion of dilemma
confronts us with an impossible choice, even though to exclude the
possibility of dilemma moral rules are precisely established to
prescribe the choice of one action and exclude the other. This dilemma
problem can thus be divided into two correlated parts:

\begin{enumerate}
\tightlist
\item
  The epistemological choice where it is logically difficult to
  determine what is my duty, when facing scarcity of ventilators for
  instance (either / or).
\item
  When both actions are necessary, but I can only do one of them, I
  encounter my finitude and my own vulnerability to act as an agent of
  choice.
\end{enumerate}

So that any agent of care, or doctor here, is confronted with two sorts
of conflict of obligation narratives:

\begin{enumerate}
\tightlist
\item
  One obligation is stronger than the other (so the conflict is not a
  real one).
\item
  The two obligations are equivalent, and I am facing an unsolvable
  dilemma because, in terms of fairness, there is no hierarchy between
  the two choices.
\end{enumerate}

But during a pandemic, which is a natural and societal threat, we are
facing the fact that rules can be consistent only if the context of
disruptions of my narrative representations, my narrative world, can
remain a consistent world as well\ldots{}

In this disruptive moment, one realizes that rules are only useful if
there are circumstances in a possible world of coherence, which is
precisely what we lose in a situation of emergency, where all priorities
seem to be reversed.

Choosing is the first duty in a situation when there is a clear
hierarchy between the duty of care and the efficiency rule. In a state
of uncertainty and urgency, the agent chooses first and foremost
according to what I called her moral intuition. Facing a dilemma, she
will use reason or moral rules to prioritize her decisions. These two
states might be in tension with the efficiency logic of a public health
ethics, where the collectivity is supposed to come before the individual
interest of the singular patient\ldots{} as if the collectivity was not
constituted by individuals. Therefore, in a situation of uncertainty, I
would prefer to advise the bottom up approach that combines moral
intuition and rationality around the notion of quality of life. The
reason is that it associates fairness as a form of loyalty to a
subjective vision of quality of life or standard of living.

Indeed, the concept of fairness was developed within a framework in
which tastes or values, although varying among individuals, remain
constant.

We understand at this stage that the notion of fairness is hard to use
in the contingencies of a pandemic. Perhaps because, during a pandemic,
socially accepted values can be toppled upside down. This could explain
that, in New York, egalitarian care became the priority over the
rationing of care, which is the accepted cultural model in a highly
competitive society based on meritocracy.

The climate of uncertainty and the sudden lockdown allowed for the
surrealist scenario that all former economic priorities have been put
aside from a quasi-species survival instinct.

So, what could have been a dilemma in normal settings? Economics versus
Health becomes an evidence in terms of moral intuition in times of
pandemics.

This fact is very reassuring about the human pragmatic capacity to
develop solidarity, above the logic of distributive justice and the
utility level associated with it.

In Amartya Sen's terms, ``\emph{Quality of life should come before
Qualys in order to maintain capabilities and functioning} '' (33). Life
expectancy after the pandemic in opulent societies, in terms of future
opportunities and capabilities, are precisely not invariant. They are
related to the well-being and capabilities of surviving
individuals.\emph{Dalys} is a measure of the burden of diseases which
combines time lived with a disability and the time lost due to premature
mortality, estimated with respect to a standard age-dependent life
expectancy. So, the notion of time lost because of the burden of a
disease is very important to correct the abstract notion of fairness.

This leads me to have a critical gaze on a notion of fairness based on
mere rationality.

\section*{Rationality and consistency}

{\label{rationality-and-consistency}}

In terms of rationality, the main rule of public health ethics is that
whatever rule is chosen must be applied consistently. Reasonable life
expectancy does not consider the dimension of narrative or care ethics.
Is it fair, can it be justified? For instance, young versus old, and the
equal value of life. One of the main issues of triage is the
discrimination based on age. When do we begin to count the value of
life? Is a fetus more important than a teenager? The idea of withdrawing
treatment in a situation of scarce resources, in order to provide a
respirator to a younger person for instance, may reach consensus in
times of war, but here the metaphor of war is certainly not appropriate.
This pandemic emphasizes mostly a bad governing of resources and not a
lack of resources in the long term. The lack of anticipation cannot
justify withdrawing treatment. It would be unfair.

In a utilitarian model, scarce resources go first to efficient patients.
What do we lose in such a simplistic model? Should we provide care only
to those who have instrumental value? This should be a societal choice,
which goes far beyond medical ethics and raises true biopolitical
dilemmas of distributive justice. Do we want to survive in a society of
care, or in a mere society of efficiency? We have known this situation
in Africa for access to drugs during the HIV/AIDS epidemic. Drugs where
so scarce that medical doctors had access priority, but then nothing was
left for the patients. The efficiency model can thus lead to absurd
decisions, if no good decisions can be made to resolve the dilemma.

\section*{Rationing policies and the limit of their
rationality}

{\label{rationing-policies-and-the-limit-of-their-rationality}}

Is a pandemic the appropriate moment to erase the plurality of
judgements and stop weighing each particular case in the name of
urgency? The risk of non-transparent rules of experts is to lose the
confidence of the public. Real time decisions are certainly harder than
applying efficiency rules. We should make room to moral intuition in
entering the framework of decision that leads to adapt the rules in
context. Should ethicists then help apply guidelines or assist with
rationalizing decisions? I doubt it. It would mean to transfer the
responsibility from the patient or his/her family to other efficiency
bodies. I would suggest avoiding these real and false dilemmas to
prevent the scarcity of medical resources by collaborating in solidarity
with those who are still handling the matters, the medical doctors
themselves.

Paradoxically, this pandemic has isolated half of humanity. It reminds
us first that we are all mortals, and that is what makes us equals.
Secondly, solidarity is the main ethical principle to escape from false
dilemmas. What is a false dilemma? It questions rational evidence in the
face of moral intuition. It is interesting to note that no regulation of
triage rules has been adopted internationally, which reinforces the
decision-making dimension associated with the survival and the
preservation of people's abilities to survive. It could simply mean that
it is a matter of isolating patients at risk of dying or losing their
motor or cognitive abilities, if they are not treated, as an arbitrary
priority of these rules, or at least their relativity and adaptability.

These reflections force us to redefine the fairness models introduced in
this rationalizing, and to rethink a model of public health founded not
only on data driven medicine, but on deep and responsible democracy.

Can we really talk about scarcity, in our societies of abundance, or is
it more linked to ineffective management of priorities for the social
good, or to inadequate assets management?

The question will be \emph{why} , and many speakers in the public debate
have stressed the unpreparedness of most states. It will also be
necessary to ask in what healthcare model this unpreparedness has been
possible, to clearly determine the responsibilities shared among the
different actors. We talk in peace time about the prioritization of
care, but some rulers preferred to talk about war, a term used to
justify all ethical transgressions. The wording of scarcity conditions
is not acceptable. It is necessary to give common reasons to all
caregivers as well as to the patients and their loved ones.

The procedural decision grids exist, but they do not free the medical
doctors from the difficult freedom of personal responsibility in the
heat of the moment. These tools are necessarily incomplete and therefore
do not exist, because a clinician will always have to use his ethical
imagination to practice a coherent care, adapted to any context and to a
diversity of needs in terms of gender, race, or class, having fairness
as its main horizon.

Indeed, if these decision-making grids are tools that have some
effectiveness in the emergency, we must not overlook the after-effect of
these decisions on the doctors and nurses in the aftermath of pandemics.

Prioritization is a societal choice that makes us all co-responsible.
The main issue remains prevention, which can avoid both lockdown and
tracking, and foster collective intelligence instead of infantilization.
Fairness is thus more than equality because it is sensible to plural
forms of vulnerability, while always aiming at the recovery of
capabilities for each person. Fairness is a plastic notion that implies
the articulation of care and justice.

\textbf{References}

R McDougall, L Sheahan, D Ko. Planning for and managing COVID-19:
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May 27,
2020\emph{https://mspgh.unimelb.edu.au/\_\_data/assets/pdf\_file/0015/3330060/COVID-ethical-tool-McDougall-Sheahan-Ko-v3.pdf}Accessed
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