Antidiscrimination laws effects on allocation plans during public health emergencies: A comparative approach

Public health officials across the globe continue to prepare for an international pandemic. Although less severe than 2009's H1N1 flu, this year's flu season has led to shortages and overburdened hospitals. Should a severe pandemic hit, shortages will likely be severe, necessitating difficult decisions about who should get access to scarce medical resources, such as ventilators and critical care beds. The answer will often mean the difference between life and death for those affected. In the United States, there has been little guidance from the federal and state governments on how to prioritize distribution between individuals, although public health and medical organizations have promulgated protocols to fill this gap and guide allocation decisions during a public health emergency. Although these efforts at advance planning are to be lauded, they raise a number of troubling civil rights issues. Several of the protocols exclude some people with disabilities from receiving care even when their disabilities do not affect the likely success of the medical interventions at issue. Both the legality of such plans and the ethical implications of promoting the health of the community at the expense of people with disabilities are highly problematic. In this presentation, we will describe approaches taken by other countries, including providing constitutional protections against discrimination based on disability and evaluate whether those approaches result in better protection of people with disabilities during a public health emergency.