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Submission for the appellant

The Court of Appeal was correct in affirming the decision of the learned trial judge that :

  1. Z had been arbitrarily denied vital medical treatment, contrary to Article 2 of BOR and Article 28 of the Basic Law, because Z had, without justification, been less favorably treated than Patient 2 on grounds of age.

The Court of Appeal erred in affirming the decision of the learned trial judge that :

  1. The Authority was restrained from removing Y from the ventilator even though there was a breach of Article 2 of BOR and Article 28 of the Basic Law.

  2. Even though X was not able to establish disability discrimination under the DDO and hence there was a breach of Article 2 of BOR.

The Court of Appeal also erred in:

  1. Allowing the Authority’s appeal against the learned trial Judge’s decision that the authority was in breach of Article 2 of BOR and Article 28 of the Basic Law, on its failure to acquire more ventilators and/or ECMO machines.

 

1 The Authority should not have been restrained from removing Y from the ventilator since there was a breach of Article 2 of BOR and Article 28 of the Basic Law. 

The Right to Life is engaged if an individual feels is denied or feels threatened that their life might be at risk. Article 2 of the Convection i.e. Right to Life states, in a comprehensive sense that, the State is ordered to not only to refrain from the deliberate and unlawful taking of life but also to take suitable steps to protect the lives of those within its jurisdiction1.

The breach of Article 2 must be of some seriousness before the right to life is engaged. The question of whether the denial of this right to an individual or the individual’s feeling of being threatened is a broad one and takes into account of all the circumstances in the case including:

  1. The characteristics of the claimant

  2. The nature of activity for which the claimant has been denied the right to life

  3. The place at which it was happening

  4. The nature of repudiation

  5. The background of the situation

  6. The absence of proper judgment

 

     Recommendation 1: The Authority should not have been restrained from removing Y from the ventilator since there was a breach of Article 2 of BOR and Article 28 of the Basic Law.

Rationale: In the context of healthcare, the State is required to make regulations that make it obligatory for all hospitals to adopt suitable measures to safeguard a patient’s life2. In the wake of the situation of Cupid-19, leading intensivists (i.e. ICU doctors) from all major public hospitals and representatives from the Authority and the Department of Health attended a meeting and formulated a set of measures to efficiently use the limited number of ventilators and ECMO machines.

These “measures” were publicly available and were framed under legal authority. The doctors were facing a surge of patients with a limited number of patients. According to the measures formulated by the team members of the meeting in the wake of Cupid-19, the score of Y, who had been placed on the ventilator before the adoption of the measures, was below the score of Patient 1 since age was also a factor in the determination of the candidate for a ventilator or ECMO. Patient 1 was a woman in her 40s while Y was a 71-year-old male. Although Y was able to establish the general breach of Article 2 of BOR and Article 28 of the Basic Law, doctors cannot be forced to provide treatments that challenge their clinical decision.

Not only this, by denying the ventilator to Patient 1, not only was there a breach of the publicly available measures, but it would breach the Right to life of the patient. The Court has accepted the answerability of the State if an individual patient’s life was put in danger knowingly by a refusal of admission to life-saving emergency treatment (Mehmet Şentürk and Bekir Şentürk v. Turkey)3

Recommendation 2 – Clinically suggested ventilation must not be withdrawn before a pilot test of treatment has been completed, and it should only be done according to a triage policy that contents the above necessities for withholding treatment.

Rationale – When doctors make the decision to withdraw a patient from a ventilator on the grounds of distribution of limited resources, they are stating a patient from whom the ventilator had been clinically indicated. This judgment has been made on various factors that include the probability of the patient’s recovery, the quality of life post-treatment, and the patient’s predictable reaction to the invasiveness of ventilation and other ICU treatments. Thus, whenever medically appropriate, the patient should be removed from a sedated state and given a chance at survival until the accessibility of another ventilator, otherwise the doctor will be speeding up his death. If the withdrawal is no longer needed and the same is clinically indicated, it can be permitted.

2.The Authority was in breach of Article 2 of BOR and Article 28 of the Basic Law, on its failure to acquire more ventilators and/or ECMO machines.

In this context, Article 2 of BOR / Article 28 of the Basic law can be engaged if it were shown that the Authority

  1. knew or ought to have known that this additional equipment would be needed

  2. had failed to take steps that were reasonably within its power to obtain sufficient ventilators (etc.).

The Right to Life for the general population obligates the State to adopt appropriate measures to save a patient’s life1. The State is also obligated to ensure the effective working of the regulatory framework. Failing to do so calls for tangible, and not abstract, assessment of the suspected deficiencies4.

Recommendation – The Authority should be held accountable for failing to provide an adequate number of ventilators/ECMO or giving detailed evidence about the steps taken by it to boost ICU capacity.

Rationale- The authority was aware of the onset of the highly infectious disease since November 2020. Evidence showed that around 4% of the cases require intensive care. It was also aware that Given the total number of cases, the number of patients requiring a ventilator and/or ECMO machine in many countries had, during peak periods, far exceeded the total number of intensive care unit (“ICU”) beds available. Hong Kong had reported a sudden deluge in new cases from May 2020, and more people were in need of mechanical ventilation. The authority failed to show evidence that it had taken all reasonable and relevant steps to increase the maximum ICU capacity, particularly the number of ventilators / ECMO machines.

3.X was not able to establish disability discrimination under the DDO and but there was a breach of Article 2 of BOR.

Section 6 of Cap 487 Disability Discrimination Ordinance states that a person with a disability cannot be treated less favorably than another person without a disability on grounds of the person’s disability5. Under Article 2 of the BOR, the State cannot deprive a vulnerable person of their liberty to get proper medical assistance6.

Recommendation 1 – Any act cannot be termed as unlawful in relation to a person with a disability if it the crucial to be done in order to comply with a requirement of an existing statuary provision7.

Rationale – As in the case of X, he had arrived at the hospital after the Measures had been implemented. He suffers from congenital heart disease and was also diagnosed with HIV. X had a less score in comparison to the other patient who was prioritized over X. The measures were not part of an existing statuary provision. Hence, the act of prioritizing other patients on X can be deemed as unlawful.

Recommendation 2 – X should not have been denied proper medical assistance on grounds of being HIV positive and being a congenital heart disease patient.

Rationale – A ventilator cannot be withheld from a person if clinically indicated if the person is suffering from a disability. The disability may include considerable and long-term damage like diabetes, respiratory hypertension, COPD, cystic fibrosis, etc. It might be allowed to hold back treatment grounded on the more wide-ranging criterion that a poor consequence from CUPID-19 is predicted, but this method should be evaluated to govern whether it effectively disadvantages those with precise chronic illnesses or other disabilities. If so, the approach should only be used if there is a robust suggestion that consistently predicts poor outcomes and substitute non-discriminatory criteria could not be used instead. Direct discrimination against a patient can be constituted if the effective reason for the denial of ventilation/ECMO is the “disability”.

A fault in the medical treatment administered was found by the Court when an HIV-positive person who was suffering from numerous other serious ailments was shown a lack of medical attention. She was refused transfer to a medical facility and was refused examination due to which her condition deteriorated and resulted in her death due to HIV- related disease. (Kats and Others v. Ukraine, §§ 105-112)

Other Recommendations

4.Z had been arbitrarily denied vital medical treatment, contrary to Article 2 of BOR and Article 28 of the Basic Law, because Z had, without justification, been less favorably treated than Patient 2 on grounds of age 

Recommendation – Age-based discrimination is lawful only if the discrimination was done as a means to achieve a legitimate aim.

Rationale – Age-based determination of treatment options can vary easily give rise to an age-based discrimination9. This is particularly significant where the availability of resources is scarce and the allocation of the resources has a direct impact on the mortality rate. To avoid this, the selection criteria should be based on an morally acceptable basis instead of a patient’s belonging to a particular age group. The World Medical Associated specifies that only a patient’s medical valuation and their response to the applied medical treatment should be considered while allocating resources10. Crucial and critical resources should be allocated to patients who have a chance to certainly respond to the treatment, regardless of their age.

Age matters in that it delivers a very valuable clue as to the occurrence of underlying ailments that need to be substantiated, but age by itself cannot be the criteria for exclusion. It may not be used to discriminate against the elderly. Age is an indication to suggest the medical practitioner assess a patient for age-related ailments. It is possible that “an 80-year-old who is otherwise healthy and not frail might be more resilient in fighting off infection than a 60-year-old with many chronic conditions”11

The Guidelines’ segment on the utility is trailed by a segment on the responsibility to care that identifies a necessity to temper what appears to be a principally serviceable background for distribution:

To balance the principle of net usefulness, a mindful effort must be made to consider sturdily those who are worst off or those who have lived the least number of years. This is to be applied only in so far as it is reliable with the statement to make best use of resources. (TFG 2020).

Distinctly from going under the heading of “duty to care” this portion of the Guidelines is headed by a clarification that “superior care always for the most vulnerable” is an appearance of such a duty. Moreover, there is a clear declaration that the effort is to be made in order to “balance the principle of net utility.” It is in this context that the following points are to be understood:

  1. Those who are worse off should be considered

  2. Those who have lived the least number of years should be considered.

Elderly CUPID-19 patients are among those who are worst off because they appear to be the most likely to die due to the disease. The rate of death among the elderly is higher than among other age groups. A study of international cases shows that the probability of being hospitalized surges with age, and those aged 80 years or older are up to 18.4% of the population13.

In the case here, Z and Patient 2 had an equal chance of survival. The decisive factor under the Measures had been remaining life expectancy. That turned directly on age. This difference of treatment was not justified. There was no medical reason underpinning it; step (3) of the Measures nakedly placed a greater value on Patient 2’s life than Z’s because Patient 2 was younger. The denial of vital medical treatment to Z had been arbitrary and therefore violated Article 2 of BOR and Article 28 of the Basic Law. The Authority had therefore breached its legal duty to Z in two respects, i.e. both because the denial of medical treatment was discriminatory and also a general sense that no patient should be denied appropriate medical treatment.

Conclusion

  1. The Authority was in breach of Article 2 of BOR and/or Article 28 of the Basic Law on account of its inability to supply all Cupid-19 patients with vital ICU equipment (including a ventilator and/or ECMO machine)

  2. For the purposes of Article 2 of BOR and/or Article 28 of the Basic Law, the Authority was not justified in treating X less favourably than other patients on the basis that X had a significantly lower chance of surviving Cupid-19 because of his disabilities

  3. On a correct construction of the DDO, a person with a disability may be a victim of discrimination when they are less favourably treated, on grounds of that disability, with a person without disability.

  4. The Authority was not justified in treating Z less favourably than Patient 2 on the basis that Patient 2 would, assuming they both survived Cupid-19, have a greater life expectancy than Z.

References

  1. Council of Europe. (2020, December 31). Guide on Article 2 of the European Convention on Human Rights: Right to life. §9, Pg 8/53.

  2. Council of Europe. (2020, December 31). Guide on Article 2 of the European Convention on Human Rights: Right to life. §41, Pg13/53

  3. Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, ECHR 2013

  4. Council of Europe. (2020, December 31). Guide on Article 2 of the European Convention on Human Rights: Right to life. §43, Pg13/53.

  5. Sections 6, 21 and 26 of the Disability Discrimination Ordinance (Cap. 487).

  6. Council of Europe. (2020, December 31). Guide on Article 2 of the European Convention on Human Rights: Right to life. 4b. Pg15/53.

  7. Sections 6, 21 and 26 of the Disability Discrimination Ordinance (Cap. 487).

  8. Kats and Others v. Ukraine, no. 29971/04, (2008, December18)

  9. de Castro-Hamoy L, de Castro LD. Age Matters but it should not be Used to Discriminate Against the Elderly in Allocating Scarce Resources in the Context of COVID-19 [published online ahead of print, 2020 Jun 16]. Asian Bioeth Rev. 2020;1-10. doi:10.1007/s41649-020-00130-6

  10. WMA. 2017. WMA Statement on Medical Ethics in the Event of Disasters. World Medical Association, 24 November 2017. https://www.wma.net/policies-post/wma-statement-on-medical-ethics-in-the-event-of-disasters/. Accessed 9 Apr 2020.

  11. Begley, Sharon. (2020, March 30). What explains COVID-19’s lethality for the elderly? Scientists look to ‘twilight’ of the immune system. STAT News. https://www.statnews.com/2020/03/30/what-explains-coronavirus-lethality-for-elderly/.

  12. Task force Ethics Guidelines COVID-19 Philippines. 2020. Ethical Guidelines for Leaders in Health Care Institutions during the COVID-19 Pandemic.  https://www.pcp.org.ph/index.php/pjim/pjim/1094-phil-journal-of-internal-medicine-vol-58-no-1

  13. Verity, Robert, Katy Gaythorpe, Will Green, Arran Hamlet, Wes Hinsley, Daniel Laydon, Gemma Nedjati-Gilani, Steven Riley, Sabine van Elsland, Erik Volz, Haowei Wang, Yuanrong Wang, Xiaoyue Xi, Christl A. Donnelly, Azra C. Ghani, and Neil M. Ferguson. (2020, June). Estimates of the severity of coronavirus disease 2019: a model-based analysis. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7158570/


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