Journal ofmedical ethics, 1992, 18, 12-17

Who should get the kidney machine?

Michael J Langford The Memorial University ofNewfoundland, Canada

Author's abstractThis paper considers the problem that arises when thenumber ofpatients who need a resource exceeds the supply.An initial decision-making model is proposed that uses twoessential criteria, medical prognosis and the priority oflife-threatening situations. The model is then subjected tothe criticism that it is grotesque to ignore questions relatingto the vaue of, for example, a productive mother overagainst an aged recluse, and to treat them as having equalrights to access. It is argued that this criticism need not bean expression ofprejudice but may reflect a defendableview in which utilitanran considerations enter into theselection process provided that certain fundamental, or'deontological' rights are observedfor all. In the light ofthediscussion the model is modified in order to contain both anon-utilitarianfeature that stresses the intrinsic importanceofallpersons, and a utilitarianfeature that can allow one,in certain circumstances, to take consequences into account,especially those thatfollow from the 'irreplaceability' ofsome people.

Introduction: A model for the aliocation of ascarce resource among competing patientsThere are many different issues concerning theallocation of scarce resources, including the properdistribution of funds i) between health care and otherhuman needs and ii) within the field of health care. Inthis paper I am concerned with one aspect of the latterissue, namely the proper distribution or'microallocation' of an already determined quantity ofa scarce resource, such as a kidney machine, amongcompeting patients. Sometimes the problem arisesbecause of a shortage of machines, at other times itarises because of a shortage of staff to run themachines. In either case, I shall assume that the mostobvious ways of avoiding the problem, such aslobbying for extra funds, have been exhausted (1). Theconclusions are relevant to the distribution of organsfor transplantation, except that in that case, in additionto the matters considered here, there are issues thatrelate to the consent of the donors, and these are not

Key wordsAllocation of resources; microallocation; equality;irreplaceability.

discussed in this paper.The urgency of this subject can hardly be

overstressed. In an influential Hastings Center Report,Daniel Callahan has discussed the need to consider'rationing', and pointed to ways in which, especially inthe US, there is a tendency to deflect the issue byconcentrating on the need for efficiency and 'cuttingthe fat', thereby avoiding the reality of the situation(2). Also, we need to recall the situation in the UK,where, at least in the past, many older people have beendenied the use of kidney machines because priority hasbeen given to those under fifty-five (3).

I shall proceed by positing a model for decision-making within the context that I have defined, andthen I shall refine the model by subjecting it to anobvious criticism. However, the initial model isalready devised so as to avoid some of the most likelycriticisms. For example, it seeks to avoid a prejudicewhereby the rich, or those in other positions ofprivilege, such as the children of doctors, get priorityover the ordinary person.The model suggests two basic, inter-related criteria

for the selection of patients for kidney machines orother scarce resources; medical prognosis and medicalemergency. By medical prognosis I mean, in thiscontext, the prospect of medical success 'as measuredby percentage of survival and length of survival' (4),taking into account the present state of scientificknowledge, and its likely progress during the life of thepatient. The criteria apply as follows: First, there is amedical decision that determines which patients have areasonable chance of significant long-term benefit.These patients are then placed in order of the likelydegree of this benefit unless one of them has a medicalemergency of a kind that is likely to be assisted by theuse of the resource. When this happens the medicalemergency takes precedence, but only over those whohave already been given a reasonable prognosis.What happens when these criteria leave patients

with the same level of priority, or when the fuzzinesssurrounding the criteria means that two or morepatients have a priority within the same range? Thentwo subsidiary criteria apply; first, length oftime in theline-up for the resource, and second, coming ahead ina selection process that is deliberately made random,such as the tossing of a coin. These criteria are used in

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Michaelj7 Langford 13

order to avoid discriminating between people on

account of race, gender, and alleged value to thecommunity in terms of factors such as economic andartistic contribution, while at the same time making a

selection possible in accordance with a predeterminedprocess. The motive for adopting such a model isprobably an ethical concern with a principle ofequality, perhaps reinforced by references todocuments such as the Canadian Charter ofRights andFreedoms (5).

In this model the criterion of medical prognosis isalso used to handle the difficulty that arises whenpatients are partly responsible for their condition. Thisis much discussed in the context of liver transplants forthose whose condition is the result of alcoholism (6).According to the model a past fault would not beground for discrimination, but a present condition, forexample, of continuing alcoholism, could be, if itrendered the medical prognosis poor.

Criticism of the modelThere are a number of difficulties that can easily bepointed out with respect to this model. Some of themrelate to the use of medical prognosis. For example, as

Dr Anthony Monaco has said: 'Rehabilitationpotential and capacity for mental recovery are verydifficult to use as yardsticks for predicting medicalefficiency' (7). However, the criticism that I want toconcentrate on goes as follows: Let us suppose that as

a result of following the model we are reduced totossing a coin between two patients, Julie, who is a

forty-year-old mother and Bill, who is an eighty-year-old bachelor recluse. (The scenario can be made more

dramatic by replacing Bill with a child-molesterserving a life sentence in prison, but I prefer to discussthe issue in the context of the more common case.)There is no doubt about most people's emotionalreaction to this situation. It would be grotesque, we

would hear, not to give the priority to the mother.However, if we are serious about medical ethics andregard it as an intellectual discipline, then we must askfor the reasons that can be brought forward to back upthe emotional reaction.One possible line of reasoning follows from the

adoption of a thorough-going utilitarianism that wouldcriticize the whole structure of the initial model on thegrounds that there is no need to begin with an

insistence on equality, and consequently no

requirement that we should seek to avoiddiscrimination in access to scarce resources in terms offactors such as social usefulness. However, despite theserious treatment that such a philosophy deserves, inthis paper I propose to limit the discussion by makingthe assumption that a significant principle of equalityshould govern the model, a principle that certainlylooks like a deontological principle (8).

There are at least three different grounds that mightbe used to support a principle of equality as a

framework within which any revisions of the initialmodel must be made. First, it might be supported as a

consequence of holding a Kantian-type philosophy.Second, it might be supported as a result of holding asubtle version of utilitarianism that contains anargument concerning the long-term advantages ofadopting an egalitarian perspective. Third, it might besupported by those who hold no firm meta-ethicalposition but who have decided that, given the existenceof a widespread attachment to a principle of equality(however vaguely this may be expressed), they willchoose to adopt a principle of equality as a startingpoint. Those in this third group might support theirchoice by the argument that it is in everyone's interestto find ways of reconciling conflicting interests, and ageneral acceptance of a principle of equality can assista more rational debate on ethical issues because itprovides a common premise. However, for whateverreason it is adopted, this principle of equality assertsthat all persons have aprimafacie right to be candidatesfor the use ofa scarce resource, and any allocation otherthan random selection needs justification. At the sametime, the principle does not commit one to holding thatpersons have an 'infinite' value (in part, because of theambiguities involved in such a claim) (9). What theprinciple does commit one to will become clearer insubsequent sections of this paper.

The revised modelAs a result of accepting a principle of equality as aframework for all decisions on the allocation ofresources, the model, as revised, begins by placing allin potential need of the resource on a list, and assumes'a qualified right to health care' (10). Less emphasis isplaced on medical prognosis, but there is still aminimum threshold of medical utility that is requiredbefore a name appears on the list (11). The model thenproceeds to prioritise in terms ofcriteria that do as littleviolence as possible to a principle of equality. This ispossible because adoption of a principle of equalitydoes not entail that we make no discriminations, onlythat these discriminations are i) of an appropriate kindand ii) that they are applied according to establishedrules, and not arbitrarily.

If this last point is stressed, then public concern atthe suggestion that explicit criteria are likely to entailthe denial of life-saving treatment to some patients maybe lessened. There is no way in which this concern canbe, or perhaps should be, removed, but once it isgenerally realised that some rationing is inescapable,then the concern should shift towards the issue ofwhich kinds of discrimination are least offensive.

It might be urged that what counts as an appropriatekind of discrimination depends entirely on the kind ofculture in which we live. However, there are rationalgrounds for ruling out some kinds of discrimination inany society, once a principle of equality is accepted. Inother words the principle is not infinitely flexible. Forexample, attempts to justify discrimination in terms ofrace or gender, can, I think, only be made on the basisof demonstrably false empirical accounts of the natureof race and gender, as in Nazi accounts of race and

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14 Who should get the kidney machine?

Aristotle's of gender. However, once we have arationally defendable account of who is to be countedas a person, and consequently, the ruling out of thegrosser forms of inequality, then the kinds ofdiscrimination that are rationally acceptable may welldepend, in part, on the culture, and on the creativedecisions that culture makes. For example, in the caseof access to a genuinely scarce resource, discriminationin terms of age (whether we agree with it or not), whilebeing unfortunate, is not outrageous in the same waythat discrimination in terms of colour would be, sincediscrimination in terms of age has a kind of equalitybuilt into it, namely that it can be applied to all personsin an equal way. If age discrimination is adopted by afair process, in a context of genuine shortage, then theinequality created is within a general context ofequality, and is more likely to receive publicacceptance.

If the foregoing suggestions are entertained a newquestion emerges, namely: 'How should a particularculture attempt to find the most appropriate forms ofdiscrimination within the range of what is legitimate?'My next suggestion is that with respect to this

question utilitarian considerations can properly beused, provided that we continually look over ourshoulders, as it were, to see how far we are departingfrom an ideal of equality. Such careful use ofutilitariancriteria allows for rational decisions to be made in manycases where we would otherwise be reduced to randomselection.

Let me illustrate, first, by returning to the criteria ofmedical prognosis and medical emergency. There is asense in which these too can be called 'utilitarian'criteria, since, when we follow them, the reason fordropping a patient from a list is that we want to avoidthe 'useless' employment of a resource. However, thisparticular use of a utilitarian criterion is very little inconflict with a basic principle of equality. Equality, wemight argue, means equal opportunity to benefit, notequal opportunity to use a resource, simpliciter. It is forthis reason that there is sometimes a good case forgiving priority to children who are in need of a kidneytransplantation. Accordingly, a recent article indicatesthe evidence for the need of children to have quickaccess to donated organs if the prognosis is to be good,and concludes: 'We have recently been authorised bythe centres participating in Eurotransplant to favourpaediatric patients awaiting a kidney' (12).

Next, let us go to the other extreme, and consider asuggested criterion in terms of social position. Smith, acaptain ofindustry, employs hundreds ofworkers, andit is claimed that his or her death would lead to manyworkers losing their jobs, and consequently, thatSmith should have a higher priority than a worker witha similar prognosis. My grounds for being dubiousabout this argument are not only a strong suspicionabout the irreplaceability of Smith. They include theargument that the regular use of this kind of utilitarianconsideration, even if granted some weight, wouldtend to accentuate a class-structured and class-oriented

society. It is, in other words, sharply in tension withthe principle of equality within which the revisedmodel is trying to work.Does this mean that there should be an absolute ban

on criteria referring to alleged social usefulness? I thinknot. Instead, in order to give support to the principle ofequality, and to prevent it from being whittled away bythose in positions of power, any argument from socialusefulness should have to include reference tosomething like a national emergency. For example, inBritain, it might have been proper to give priority toWinston Churchill in 1941.More typical cases of the legitimate use of utilitarian

considerations fall between the examples of medicalefficiency on the one hand and social position on theother, and concern the effects on other people whohave close personal links with a patient. In so far asthese effects can be construed in the language of rights,then their consideration is not, of course, purelyutilitarian, even though we are considering theconsequences of an action. Consider again the case ofJulie and Bill. If Julie has young children can they besaid to have a 'right' to be included in the decision-making process? One thing that makes me nervousabout saying yes is that by an extension of thechildren's claim all of Julie's friends might be said tohave a 'right', and ifshe is a doctor, all her patients, andsimilarly, if Bill is a great violinist, so can all hislisteners! Such extensions of the notion of a 'right' areclearly absurd, but they indicate that when we speak ofeffects on others we lack a clear principle that tells usexactly who has a 'right' to be considered. Mysuggestion for dealing with this problem lies at theheart of this paper and is as follows: When we areconsidering the allocation of a scarce resource, and themedical prognoses for A and B are similar, then theconsequences for other people of saving A instead of Bcan properly be considered provided there is no realisticsubstitute forA. This means, for example, that a motheris irreplaceable, in a way that a heart surgeon is not,except in rare circumstances. Even though a father orfoster mother may provide a substitute ofa kind for theloss of a mother, there is an irreplaceable loss.However, when a heart surgeon disappears from thescene, although adequate substitution may be difficult,it is not unrealistic to hope for a replacement that isfunctionally equivalent. Thus, in making decisionsregarding priority, the revised model limits the extentto which one must consider effects on other people tocases like parentage, and certain rare specialists, forexample, the only available heart surgeon in a widearea. It would not cover the great surgeon or the greatviolinist per se. There will be, inevitably, an element offuzziness in the lines that are drawn, but suchfuzziness, as I have already indicated, is unavoidable.Despite such fuzziness we need a general principle toguide us. Further, I would not complicate thisprinciple by trying to fit it into a theory of rights; Iwould admit that it is, in a broad sense, utilitarian.

If we allow arguments concerning alleged irreplace-

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MichaelJ Langford 15

ability to have weight, then although the only rationalapproach may sometimes be to toss a coin, or use someother essentially random method of selection, we shallbe forced to this essentially unsatisfactory step onfewer occasions. Further, my example of givingpriority to a Churchill in a case of national emergencycan be seen as a special case of 'irreplaceability', in thiscase, with respect to a whole population.The stress on 'irreplaceability' in the revised model

makes my position significantly different from that ofMarc Basson in his useful paper, Choosing amongcandidates for scarce medical resources (13). At firstsight Basson's position seems very different from mine,since he defends a selection process in which a suitablyappointed committee looks at the 'social worth' of thepotential beneficiaries, within a system that he regardsas 'paternal', but not 'paternalistic'. However, in acrucial passage, Basson introduces a qualification thatregisters concerns that are similar to mine, though hedoes not relate them to a principle of 'equality'.According to him, the selecting committee 'would nothave licence to impose its entire system of morals andprejudices on society. It could legitimately selectagainst a murderer or rapist because his actions areagainst society's best interests, but whether a man orwoman attends the 'correct' church, dresses'properly', or has 'correct' views about premarital sexshould not be relevant' (14). However, in my view, anysuccessful attempt to clarify the rules that a selectingcommittee should be required to follow, if it is to avoidthe prejudice that Basson wishes to prevent, wouldinvolve the enunciation of the kind of equalityprinciple that I am searching for; and this, in turn,would mean giving 'social worth' a secondary ratherthan a primary role. This is where I part company withBasson.

It is also worth noting that the principle ofirreplaceability that I am advocating has somesimilarities with one of the utilitarian principles formicroallocation considered by Gerald Winslow in hisTriage and3Justice (15), namely, 'Priority given to thosewho have the largest responsibilities to dependents'.However, most of Winslow's discussion of thisprinciple is in the context of an overall utilitarianism,whereas irreplaceability is seen here as a subsidiaryprinciple within an overriding egalitarianism (16).

The root meaning of equalityI need to be more specific about what it means to giveeveryone equality, an equality that, nevertheless,might sometimes allow utilitarian considerations tocause a mother to be preferred to a bachelor. In thissection I shall summarise and amplify the suggestionsI have already made. I am proposing that the initialmodel be revised, not only to include a consideration ofeffects on third parties of the death of 'irreplaceable'persons, but also so as to include the features listed inthe rest of this section. The result of this proposal willbe that the principle of equality involved in the modelis less vague, and the legitimate use of utilitarian

criteria will be clearer.1. Provided the prognosis is reasonable all patients

must be placed on the list of possible receivers of theresource. Being put on this list indicates that theycannot properly be passed over in favour of otherpatients within the same category of medical prognosisunless either i) the others have one or more of a seriesof specified characteristics that they do not have (suchas irreplaceability of the kind described), or ii) theylose out in a random procedure. (The result is that, inform, the proposed system has some similarity to thecombination of 'criterion-oriented and randomallocation techniques' proposed by Nicholas Rescher(17)).

2. Patients must be brought into the decision-making process in the following ways: They must beinformed about what is going on; they must be able tomake representations about the listed characteristicsthat are alleged to apply or not to apply to them; theymust have the opportunity to choose to forego theirplace in favour of someone whom they judge shouldhave priority over them. If they are not mentallycompetent, someone who 'stands in their shoes' mustbe involved in the first two of these processes on theirbehalf. These considerations arise because part of themeaning of giving respect to persons is to treat them asentities that make free decisions.

3. The list of specified characteristics cannot includerace, gender, religion, or similar factors that aresharply in tension with a principle of equality. Thismay seem rather vague, however, I think that mostdiscussions of the issue of the allocation of scarceresources take place within a context of some initialagreement at least about the 'grosser' forms ofinequality, and in particular about what it is to be ahuman person (18).

4. With respect to the obvious question: 'Whatcharacteristics should be on the list?', it may be thatprovided the list is known, and open to public debate,it can change from time to time, perhaps, as a colleaguewriting on the subject suggests, so that no interest ispermanently preferred over another (19). Also, theprecise content of the list must depend on the scarcityof the resource and on how great a crisis there exists. AsI have suggested, if really hard decisions have to bemade, then there is a case for making age a listedcharacteristic.

5. Not only must there be a list of characteristicswhich are, for the time being, accepted as beingrelevant for making distinctions between patients, thedecision-making process involved in applying thesecharacteristics to the individual case must have a basicfairness. Here some traditional elements of naturaljustice apply, such as that people cannot properly bejudges in their own causes. There are also some morespecific requirements, for example, a provision thatthe rich cannot gain a special advantage by having theirnames included in more than one list of potentialreceivers of a scarce resource (a problem highlighted ina recent paper) (20).

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16 Who should get the kidney machine?

Despite the vagueness of these five considerationsthey are sufficient to give a basic meaning to theprinciple of equality, a meaning that allows one both touphold a significant equality and properly to make thekinds of discrimination that necessity may force on usin the field of health care. They also give us some ideaof what the actual mechanism of selection would looklike were the revised model to be accepted. As I see thematter two sets of guidelines need to be generated;first, national ones, incorporating the five principlesoutlined in this section, and second, local onesoperating at the level of the agencies that actuallydetermine who will be the recipients of availableorgans. The latter guidelines would be subject to thenational guidelines, but would add certain specifics,for example concerning the composition of thecommittee that made the decisions.

In the light of the foregoing it is possible to constructan algorithm of steps with respect to a patient X.

Step 1. Review the medical prognosis. (A - suitable; B- doubtful; C - unsuitable.)Step 2. Inform and consult X, or X's representative (ifX is incompetent).Step 3. Decide whether to place X on the priority list inthe light of steps 1 and 2.Step 4. Review X's irreplaceability. (A - clearlyirreplaceable; B - arguably irreplaceable; C -replaceable.) X's place on the list is then decided.Step 5. Review the whole list in the light of the criteriapresently adopted by the guidelines under which thecommittee operates. (See item 4 above.)Step 6. Review the decision-making process, to ensurethat natural justice has been maintained. (See item 5above.)Step 7. If a choice cannot be made between X andothers after steps 1 to 6 have been taken, accept aprinciple of 'first in line', and if this gives no clearanswer, a principle of random allocation.

The relation ofthe practical and the conceptualaspects of the issue.My final note on this outline of a model for decision-making is that the whole discussion illustrates the needto find a suitable marriage between the practical andthe conceptual aspects of issues in bioethics.Awareness of the present situation forces practicalissues upon us, such as the necessity of rationing somehealth care resources. However, without sensitivity tothe conceptual aspects of the issue our acts ofdiscrimination will be blind, and 'the unexaminedchoice is not worth making' (21). The revised modelthat I have defended attempts to be the product of asensitivity both to the practical realities and to theconceptual issues (for example, concerning the natureof equality), that face us.

If such a model were to be adopted, say by a hospitalethics committee, there would be the need toappreciate the principles behind the model and therewould also be the need to fill in some of the details in

the context of the local situation. This local situation,for example, with respect to the extent of the shortageof the resource and to the nature of the localpopulation, might well demand some creativedecision-making and, as a consequence, considerablelocal variation in the details of the model.Nevertheless, the different models that emerged couldall have the kind offramework that I have attempted tooutline. If this were to happen we would be a stepcloser to some international agreement on issues inbioethics (22).

Author's noteAn earlier version of this paper was read at the ThirdInternational Congress on Ethics in Medicine, held atStockholm from September 12-15, 1989.

MichaelJI Langford, MA, PhD, is Professor ofMedicalEthics in the Faculty of Medicine, The MemorialUniversity ofNewfoundland, St John's, Newfoundland,Canada.

References and notes(1) I am omitting a discussion of the argument that by

producing a model for rationing a scarce resource one isthereby becoming party to, and indirectly supportive of,an unacceptable situation.

(2) Callahan D. Allocating scarce resources. Hastings Centerreport 1988; 18,2: 14-20. See also BassonM D. Choosingamong candidates for scarce medical resources. Journalof medicine and philosophy 1979; 4: 314.

(3) Ward D E. Dialysis or death? Doctors should stopcovering up for an inadequate health service. Journal ofmedical ethics 1986; 12: 61-63. See also Parsons V, LockP. Triage and the patient with renal failure. Jtournal ofmedical ethics 1980; 6: 173-176.

(4) This definition is used by Monaco A P inTransplantation: the state of the art. Transplantationproceedings 1990; 22,3: 897. Monaco rejects this accountof medical success as an adequate ground for theallocation of organs.

(5) Canadian charter of rights and freedoms, section 15, 1.This section, which forbids discrimination under the lawwith respect to (among other things) age, is, like all therights and freedoms, limited by the caveat of section 1:'Subject only to such reasonable limits prescribed by lawas can be demonstrably justified in a free and democraticsociety'.

(6) See, for example, the Toronto Globe and Mail 1989 Mar21: Al: 14.

(7) See reference (4): 898.(8) By a 'deontological' principle I mean one that relates to

rights and duties that are alleged to apply regardless ofthe consequences.

(9) On this point .;ee reference (2): Basson M D: 324-325.(10) See Halper T. The misfortunes of others. Cambridge:

Cambridge University Press, 1989: ch 4: 167-173.(11) Here I am accepting the argument put forward by Dr

Anthony Monaco, see reference (4), although he isarguing in the context of kidney donation.

(12) Zantvoort F A, et al. Allocation of kidneys for pediatricpatients. See reference (4): 22, 4: 1434.

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(13) See reference (2): Basson M D: 313-333.(14) See reference (2): 320.(15) Winslow G R. Triage andjustice. Berkeley: University of

California Press, 1982: ch 4: 77-80.(16) But see also Winslow's discussion of the principle in the

context of a Rawlsian theory of justice, reference (15) ch7: 138-140.

(17) See reference (2): Basson M D: 329 and Rescher N. Theallocation of exotic lifesaving therapy. In Gorovitz S etal, eds. Moral problems in medicine. Englewood Cliffs, NJ: Prentice-Hall Inc, 1976.

(18) The notable exception is the issue of whether a fetus

should be regarded as a person.(19) Mulholland L A. Rights and priorities in medical care.

Humane medicine 1987; 3,1: 46.(20) See reference (4): Monaco A P: 898.(21) I am adapting Socrates's remark, 'The unexamined life

is not worth living', found in Plato's Apology 38a.(22) One of the problems I have not addressed concerns the

situation that arises when the prognosis of the bachelorrecluse is clearly superior to that of the mother. Canstrong utilitarian considerations properly allow a changein priority in such cases without undermining thesignificance of a principle of equality?

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