Marcel Verweij

One of the societal problems in a new influenza pandemic will be how to use the scarce medical resources that are available for prevention and treatment, and what medical, epidemiological and ethical justifications can be given for the choices that have to be made. Many things may become scarce: personal protective equipment, antiviral drugs, hospital beds, mechanical ventilation, vaccination, etc. In this paper I discuss two general ethical principles for priority setting (utility and equity) and explain how these principles will often point in diverging directions. Moreover, each of these principles can be understood in different, again often competing, ways. Notwithstanding these controversies and conflicts, in the context of pandemic response there are at least some points of convergence: several policies can be justified by appeal to different ethical principles and theories. Convergence may be found with respect to a focus on saving the most lives (instead of other aggregative accounts); giving priority antiviral prophylaxis and therapy for life-saving pandemic responders; and, partly depending on epidemiology of the pandemic, to prioritise vaccination of children. Although decision-making about access to intensive care will involve choices with immediate tragic implications, the ethical complexity of these choices is relatively modest (although decisions will not be easy): there are persuasive moral reasons for giving priority to patients who are expected to benefit most within the shortest time. Finally, in the last section I tentatively argue that constraints on people’s freedom, as necessary for an effective public health approach, may support giving somewhat more weight to saving the most lives, than to concerns of equity.

Many nursing homes have an influenza vaccination policy in which it is assumed that express (proxy) consent is not necessary. Tacit consent procedures are more efficient if one aims at high vaccination rates. In this paper I focus on incompetent residents and proxy consent. Tacit proxy consent for vaccination implies a deviance of standard proxy consent requirements. I analyse several arguments that may possibly support such a deviance. The primary reason to offer influenza vaccination is that vaccinated persons have a significantly reduced risk of getting the flu. This reason however cannot support the assumption that each nursing home resident is ‘better off ’ if she is vaccinated. Neither can it support tacit proxy consent policies. More promising are arguments that take the collective nature of infectious diseases into account. A potentially strong, but ultimately insufficient, argument for non‐express consent is that vaccination contributes to prevention of harm to others. Other arguments emphasise the importance of group protection: herd immunity. I discuss three collective reasons for aiming at herd immunity: solidarity, a common interest in reducing the risk of illness, and a common interest in the prevention of an influenza outbreak. The latter argument appears to be most important. An outbreak is not just detrimental to the health of residents; it is detrimental to their everyday social life as well. Outbreaks can be seen as a collective evil. My analysis shows that there are valid (though not necessarily sufficient) moral arguments for a tacit proxy consent policy.