Right to Treatment During the COVID-19 Pandemic

By Oluwatemilorun Adenipekun, WFU S.J.D. Candidate ’21

COVID-19 is a serious global challenge, but it is also a wake-up call for the revitalization of universal human rights principles. Governments should ensure that response measures to this novel virus do not target or discriminate against any groups, and that responses are inclusive of and respect the rights of marginalized groups, including people with disabilities and the elderly. Also, governments should guarantee equal access to emergency services for these groups, while working on combating stigma and discrimination by using mass media and school networks to expand public awareness of human rights, recognizing that the virus knows no boundaries and recognizes no distinction.

A right to health provides access to treatment.[1] It is up to the government to ensure that everyone, without exception, has the right to life-saving interventions during this pandemic. Understandably, at a time where resources are constrained and there are surges in demand it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritize individual care needs.[2] However, the scarcity of resources or the affordability of healthcare should never be a justification to discriminate against certain groups of patients.[3] This article intends to serve as a guide for these types of decisions.

Historically, during pandemic incidents a triage system is often used. Triage is derived from the French word trier, which means to choose among several.[4] It is a military term in origin, being used to describe the prioritization of wounded soldiers and the use of available medical resources for maximal efficiency.[5] It aims at producing the greatest benefits for the greatest number of people, by maximizing the number of patients who survive. When the demand for medical care exceeds the ability to provide it, care must be rationed.

“[A] hospital with 300 or 400 beds may suddenly be overwhelmed by 1000 or more cases. It is often, therefore, physically impossible to give speedy and thorough treatment to all. A single case, even if it urgently requires attention—if this will absorb a long time—may have to wait, for in that same time a dozen others, almost equally exigent, but requiring less time, might be cared for. The greatest good of the greatest number must be the rule.”[6]

The proposal above asserts that a critical and treatable patient should not be given priority for treatment if the time required to provide that treatment would prevent treatment for other patients with critical but less complicated injuries. This approach explicitly recognizes that, when resources are limited, some patients who would ordinarily be saved may be allowed to die to save others. Thus, triage relies on the utilitarian rationale and goal of achieving the maximum amount of good. Actions are judged based on their benefits and whether they provide maximum utility to their general welfare, with little or no regard for moral rights.

Human Rights Concerns

The UN High Commissioner for Human Rights, Michelle Bachelet, has said that in order to effectively combat the outbreak, the government has the responsibility to ensure that everyone, without exception, has the right to life-saving treatment.[7] It is now widely agreed, both on ethical grounds and on human-rights grounds, that the process by which these policies are decided should conform to certain standards. The most important is that the people who will be affected by the policies should be kept informed and be allowed to participate in deliberations about the policies. Furthermore, the decision-making process should allow for revisiting and revising policies in light of new evidence. Finally, there should be mechanisms to ensure that these criteria are actually fulfilled.[8]

As noted earlier, focusing solely on utilitarianism would seriously disadvantage the marginalized populations. The best result would be to modify the goal of saving the most lives while endeavoring to treat all person with equal need in an equal fashion. No matter what balance of objectives is ultimately chosen, a process that explicitly recognizes these constraints is likely to be more justifiable than one that pretends that value choices are not being made and that produces a plan based only on technical considerations.[9]


Three strategies have been recommended to combat discrimination and bias during this pandemic.

  1. First Come, First Served: This is in keeping with the ethos of medicine that “I am going to aid those who stand before me.”[10] It helps one avoid making decisions on who lives or dies. The problem is that it does not really eliminate discrimination because the people who are elderly or have disabilities are going to find it harder to get there early and will be disadvantaged.
  2. Lottery: Leaving the decisions to a lottery is taking the decision from the medical personnel and leaving it to chance. This process is expressive of the idea that every life is of equal worth. However, the problem here that the healthcare workers at the frontline face a strong risk of moral distress. When faced with patients who would have a higher chance of survival, and would deserve more care in comparison to patients with lower survival likelihood[11], care providers could be placed in a cognitively dissonant situation.
  3. Dilution: Here, the healthcare system avoids discrimination by massively increasing capacity. Thus no one is denied care, but then the standard of care is lower for all patients. In the U.K, reports show that they have avoided having to triage patients by massively increasing the amount of critical care delivered – up to about four times the usual.[12] The only way they could achieve this is by diluting the standard of care being administered as the care is being spread over a larger number of patients, but with the same number of healthcare personnel. Thus, the problem with dilution is that it does come with risks relating to the quality of healthcare received by each patient. When you have to dilute the standard of care, the outcomes get worse.[13]


It is now up to the relevant authorities to take additional social protection measures so that their support reaches those who are at most risk of being disproportionately affected by the crisis. They have to act with determination to provide the needed resources to all sectors of public health systems – from prevention and detection to treatment and recovery.

I want to use this opportunity to express my gratitude and admiration to health workers battling the pandemic. They face huge workloads, risk their own lives and are forced to face painful ethical dilemmas when resources are too scarce. Healthcare workers need to have all possible support from states, business, media and the public at large.

Photo Credit: faboi / Shutterstock.com

[1] World Health Organization. Health is a fundamental human right. https://www.who.int/news-room/commentaries/detail/health-is-a-fundamental-human-right

[2] Maves, Ryan C et al. “Triage of Scarce Critical Care Resources in COVID-19 An Implementation Guide for Regional Allocation: An Expert Panel Report of the Task Force for Mass Critical Care and the American College of Chest Physicians.” Chest vol. 158,1 (2020): 212-225. doi:10.1016/j.chest.2020.03.063

[3] World Health Organization. Human rights and health. https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health

[4] Robertson-Steel, Iain. “Evolution of triage systems.” Emergency medicine journal: EMJ vol. 23,2 (2006): 154-5. doi:10.1136/emj.2005.030270

[5] MAJ Thomas B. Repine. The Dynamics and Ethics of Triage: Rationing Care in Hard Times.

[6] Kenneth V. Iserson, John C. Moskop. Triage in Medicine, Part I: Concept, History, and Types. https://citeseerx.ist.psu.edu/viewdoc/download?doi=

[7] United Nations Human Rights. Office of the High Commissioner: “Coronavirus: Human rights need to be front and centre in response, says Bachelet.” https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25668&LangID=E

[8] Robertson-Steel, Iain. “Evolution of triage systems.” Emergency medicine journal: EMJ vol. 23,2 (2006): 154-5. doi:10.1136/emj.2005.030270

[9] Institute of Medicine (US) Forum on Microbial Threats. Ethical and Legal Considerations in Mitigating Pandemic Disease: Workshop Summary. Washington (DC): National Academies Press (US); 2007. 4, Ethical Issues in Pandemic Planning and Response. Available from: https://www.ncbi.nlm.nih.gov/books/NBK54169/

[10] American Medical Association. AMA Principles of Medical Ethics. https://www.ama-assn.org/about/publications-newsletters/ama-principles-medical-ethics

[11] White DB, Angus DC. A Proposed Lottery System to Allocate Scarce COVID-19 Medications: Promoting Fairness and Generating Knowledge. JAMA. 2020;324(4):329–330. doi:10.1001/jama.2020.11464 https://jamanetwork.com/journals/jama/fullarticle/2767751

[12] Stephen Grey, Andrew MacAskill. Who gets the ventilator? British doctors contemplate harrowing coronavirus care choices. https://www.reuters.com/article/us-health-coronavirus-britain-healthcare/who-gets-the-ventilator-british-doctors-contemplate-harrowing-coronavirus-care-choices-idUSKBN2172FC

[13] Emanuel, E. J. et al. Fair allocation of scarce medical resources in the time of Covid-19. N. Engl. J. Med. 382, 2049–2055 (2020). https://www.nejm.org/doi/full/10.1056/nejmsb2005114

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