The idea of “distributive justice” is concerned with a fair distribution of healthcare resources. However, there is reasonable disagreements about what we think constitutes a “fair” distribution of resources and what measures are morally permitted (if any) in order to “rectify an injustice.”

When it comes to resource allocation and distribution, there are many different theories of justice that can help us to consider what “fairness” amounts to (prioritarian justice, egalitarian justice, communitarian justice, utilitarian justice, libertarian justice, etc.), with each theory offering a different account of what constitutes a “fair” distribution of resources. However, to keep things manageable, we will only focus on understanding and applying two approaches to justice: “prioritarian justice” and “utilitarian justice.” Each of these approaches starts with a different conception of what is “fair,” leading to different goals and utilizing different criteria for the distribution of healthcare resources. And assessing issues of resource distribution requires not only understanding the criteria for each approach, but also determining when each approach becomes most relevant or appropriate for guiding our thinking.

Prioritarian Justice

The idea behind “prioritarian justice” is that those who are in the most critical and urgent need of medical care should be prioritized over those who are less critical and can wait longer to receive care. On this account of justice, a “fair” distribution of resources is to provide all the necessary resources (including the time and attention of healthcare providers) to those who are in the greatest need of them. An everyday example of prioritarian justice is an emergency department (ED). Imagine that you fell while playing soccer and injured your knee, which then quickly swells and bruises, so you go to the ED out of concern that you tore a ligament. When you arrive at the ED, you provide them with your information and take a seat, wait to be seen. After two hours of waiting they’re finally about to call you back to be seen, but just as they’re about to examine you, two ambulances suddenly arrive with three severely injured individuals from a multi-car pile-up on I480. They send you back to the waiting room where you end up waiting two more hours before being seen. Was it “fair” that you had to wait longer and the patients in the ambulances got to “jump the line?” While it might not feel fair to you in the moment, you would probably appreciate this arrangement if the roles were reversed, meaning if you and your loved ones had been the people severely injured in the car crash. All things considered, it seems right that someone’s life-threatening injuries should be prioritized over another person’s bruised knee.

Emergency departments are clear examples of prioritarian justice being applied in real-world healthcare settings because they prioritize treating patients who are in the greatest & most urgent need of care. As a society, we think healthcare professionals should try and save every individual in need of help, and that it would be unfair or unjust to simply let people die for the convenience of others. This is the philosophy behind prioritarian justice. By prioritizing the care of those in the greatest need, we can attempt to save the life of each person we treat. And while it undoubtedly sucks when you need to wait longer for care because someone in critical need “jumps the line,” the truth of the matter is that saving that person’s life likely requires stabilizing them very quickly, whereas your injury is non-life-threatening and can wait a bit longer to be addressed.

And just like emergency departments, intensive care units (ICU) also function on the basis of prioritarian justice. While patients don’t generally “jump the line” into an ICU, the goal of an ICU is to provide significant amounts of attention and other life-sustaining resources to those in critical need, giving them significantly more resources as compared to what most other patients in the hospital receive. So is it fair that patients in the ICU get so many more resources and such dedicated attention compared to everyone else? Well, if the goal of healthcare is to try and save every life that we can, then yes, this requires us to prioritize giving dedicated attention and resources to those who are worst-off. And given that each of us may one day become the worst-off person in the greatest need of resources, it is rational for each of us to accept this conception of fairness, even when it sucks waiting an extra hour or two for care as a result.

Another thing to consider is the importance of each person having the opportunity to live a “normal lifespan” relative to others. Taking this into consideration brings us to the “fair innings argument,” which is based on a baseball metaphor. For example, we assume that anyone purchasing a ticket to a Cleveland Guardians’ playoff game should be able to enjoy all nine innings, until the baseball game is over. But what if someone has an allergic reaction to the crackerjacks and is forced to leave after the second inning, while their friends get to stay for the rest of the game? That person could rightly complain that “it was unfair I didn’t get to stay for most of the game while you did.” While life isn’t always fair, if we think that most people are entitled to enjoy a normal amount of “innings” in the game of life, then the fair innings argument suggests that we should distribute resources to help ensure everyone can achieve a “normal lifespan.”

Tying this back to our discussion of prioritarian justice, the fair innings argument means that in addition to thinking about the “worst-off” in terms of relative medical need, we should also think about the “worst-off” in terms relative ages of the individuals who need resources. According to the “fair innings argument,” when younger people become seriously ill and are competing for resources with older people who are similarly ill, the younger individuals are “worse-off” relative to the older individuals because they have had fewer opportunities (fewer innings) to live a full life. So another way to think about applying prioritarian justice when we have two critically ill patients in similar need of resources, is that we should then prioritize giving the resources to the younger patient over the older patient because it is worse for a younger person to die than for an older person to die because they have already lived their fair share of innings.^[6]

Lastly, it is important to note that because prioritarian justice aims at prioritizing care for the worst-off, this will sometimes include giving resources to patients who are so critically ill or injured that they still end up dying despite our best efforts. This means that acting based on the idea of prioritarian just can often be quite inefficient in terms of resource use. In fact, emergency departments and intensive care units tend to use many more resources than other areas of healthcare, given the number of resources they need to keep on hand for emergency situations and because sustaining patients in critical condition itself requires significant amounts of healthcare resources.

As this example demonstrates, prioritarian justice directs us to do everything possible to save the patient in front of us, regardless of how many resources that patient might need or whether other people were already in line and waiting for those resources. While this may seem “unfair” in certain ways, it is the only way to ensure that each person in our society has a fair opportunity to have their life saved if/when needed. No matter how much money the person does or doesn’t have, or how many resources they may or may not need, prioritarian justice tells us to prioritizing saving their life whenever we can. This is why emergency departments are not allowed to turn patients away and must provide care regardless of the patient’s ability to pay. However, this doesn’t stop the patient from then getting billed (often a lot) for their emergency care afterwards.

Utilitarian Justice

Given that prioritarian justice directs us to spend any amount of resources to save a life, yet also keeping in mind our earlier discussion of resource scarcity, it would appear that we need another account of justice that directs us to be very thoughtful and judicious in our use of everyday resources. As previously discussed, we never know when seemingly abundant resources might become very limited, and some resources are by nature limited (such as organs, blood, and specialized equipment). To help capture the idea that we need to be very mindful and efficient in our use of resources, we can turn to a second approach  called “utilitarian justice.” Utilitarian justice stems from the broader moral theory of “utilitarianism,” a consequentialist theory that claims actions are morally right when they produce good consequences by maximizing the net-benefit (also referred to as “utility”) for everyone. When we apply this theory to examine issues of resource distribution, the idea behind “utilitarian justice” in healthcare is that the best way to benefit society is by helping as many people as possible, and this requires that we use our resources very efficiently so that we have enough for everyone in need of help. This means that we should distribute and use our resources where we think they will produce the most good overall, and we should refrain from waiting resources as much as possible. For example, even though it seems like hospitals have a never-ending supply of gauze, utilitarian justice would still direct us to only provide as much gauze is actually necessary to treat each patient, just in case a large number of patients suddenly needed to get bandaged all at once. 

These examples help to demonstrate that when it comes to utilitarian justice, the idea of “benefitting society” means that each resource should be used where it is expected to do the most good in terms of promoting good health outcomes and lengthening patient lives. Interestingly, the “fair innings argument” can also be applied to a utilitarian justice approach on the grounds that younger individuals often have a higher chance of recovery and the opportunity to live more life years as compared to older individuals. It is important to note that idea such as “promoting good health outcomes” and “lengthening patient lives” are objective measures of success regarding how efficiently the resource was utilized. And when we talk about aiming to “benefit society,” this does not mean choosing to treat the patient who you think has the most “social worth” and will likely benefit society the most through their actions, such as choosing to help a city mayor instead of fast-food worker. Healthcare providers don’t have any meaningful training or data to help them make these types of social determinations, meaning these would be subjective measures of how well the resource might be utilized. And allowing healthcare providers to make subjective judgements about the social worth and values of individual in society can easily allow personal biases to affect patient care. This matters because even if we disagree about exactly what counts as a “fair” use of resources, as members of society, we should all agree that allowing providers to discriminate by denying patients resources solely based non-medical factors such as their religion, skin color, ethnicity, or job status would be inherently unfair and unjust.

It has now been established that unlike prioritarian justice, utilitarian just does not often aim at providing resources to the “worst-off” or patients who are critically ill. This is because those patients tend to use a significant amount of resources, as discussed in the examples involving emergency care, and the amount of resources needed for one critically-ill patient could instead be spread around to help a large number of moderately-ill patients and benefitting society by helping as many people as possible. However, this means that when thinking in terms of utilitarian justice, we may decide not to help certain patients when treating them is unlikely to be an efficient use of resources. So when applying prioritarian justice, we have to accept that some patients might die if we use too many resource on just a few patients and run out, and when applying utilitarian justice, we have to accept that some patients might die because we choose not to treat them in order to conserve our resources for other patients who are more likely to survive when treated. These are tough choices to make, and when it comes to issues of resource distribution and resource scarcity, we have to accept the fact that there will be times we simply cannot save everyone, forcing us to make though choices about who to attempt to save before others.

Consider a scenario in where there is only one donor heart available but two patients, Mrs. Sea and Mr. Dee, are both matches for transplantation. Prioritarian justice would tell us to give the heart to the patient who is the “worst off” and most urgently in need of the heart to survive, which would be Mrs. Sea. But what if Mrs. Sea is so critically ill that there is a 37% chance that she will die even after receiving the heart transplant, whereas Mr. Dee is much less ill and only has an 8% chance of dying post-surgery? Unlike prioritarian justice which would say to prioritize Mrs. Sea because she will likely die without the transplant, utilitarian justice would say to give the heart to Mr. Dee because he has a statistically higher chance of living, making it a more “efficient” use of the scarce resource (aka the donor heart).

So which approach, prioritarian justice or utilitarian justice, should we use to guide our decision? A strong case can be made for prioritarian justice given that Mr. Dee is more likely to survive because he is much less ill compared to Mrs. Sea, meaning he could possibly wait for another heart to become available whereas she could not. This is why patients on organ transplant waiting lists are in part ordered based on how critically they need the organ. However, a strong case can also be made for utilitarian justice because if we do give the heart to Mrs. Sea yet she still dies post-surgery, and if another heart doesn’t become available soon enough for Mr. Dee to receive one, then we haven’t saved any lives and have failed to benefit society. So on one hand, it makes sense to think in terms of utilitarian justice by only giving life-saving resources to the patients most likely to live another 10+ years as a result, because that means we have benefitted society by thoughtfully and efficiently using the limited resource to provide many more years of life. On the other hand, it also makes sense to think in terms of prioritarian justice to ensure that patients who are in critical need don’t get abandoned in favor of always giving resources to patients who could likely still survive without them.

This suggests that both approaches provide us with meaningful guidance, and because these two approaches to justice are prima facie just like the other bioethical principles, we need to be thoughtful about which approach is most appropriate to guide our thinking for the specific situation at hand. Sometimes prioritarian justice should be prioritized over utilitarian justice, and sometimes it should be the other way around. And sometimes ideas of justice will also conflict with some of the other bioethical principles, requiring us to consider if we should prioritize justice above beneficence, non-maleficence, or respect for autonomy. Thinking about the conflicts between justice and the other bioethical principles is the focus of the next section discussing “medical futility.”

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4.3) Medically Futile Care

We now have the fourth and final bioethical principle of justice in addition to our other three principles, and two different approaches for understanding how we should apply the principle of justice. As it has now become clear, ethical issues primarily arise when we cannot satisfy all of our principles at the same time, and one particularly challenging issue referred to as “medical futility” stems from a conflict between the principles of justice and respect for autonomy. The word “futile” means “ineffective,” so the phrase “medically futile care” describes a situation in which a treatment or therapy is not expected to provide a meaningful benefit to the patient. In other words, medically futile care is care that is not expected to provide a net-benefit.

However, because the first step in our ethical order of operations is always to “evaluate each option by calculating the net-benefit,” allowing us to determine which options are appropriate to discuss with the patient and recommend, it might seem obvious that providers should not offer or recommend medically futile care. Namely, healthcare providers are justified in refusing to give care that would not result in a net-benefit for the patient, and by definition, medically futile describes care is not expected to result in a net-benefit. Therefore, one argument for why providers are justified in refusing to provide futile care is because it fails to satisfy the principles of beneficence and non-maleficence.

Another argument for why providers are justified in refusing to provide futile care is because it would also fail to satisfy the principle of justice by wasting valuable medical resources. When thinking in terms of utilitarian justice, providing futile care would be an inefficient use of resources because it would give those resources to patients who would not medically benefit from them, and this means those resources can’t be given to other patients who could benefit from them. Therefore, providing medically futile care fails to satisfy justice on a utilitarian approach. And it can also be argued that if we waste valuable resources, there won’t be enough resources left to help the worst-off in their time of need. Therefore, providing medically futile care can also fail to satisfy justice on a prioritarian approach.

So why would we ever be concerned that a provider would give futile care to a patient? There are actually several reasons. One is that it can be unclear when a patient’s care changes from being potentially life-saving to likely futile. By nature, a critically ill patient is a patient who needs life-sustaining resources, but there is no guarantee that the resources we provide will be enough to save that patient’s life. Consider a patient in an ICU with a likely brain in jury. They might be hooked up to a ventilator for respiratory assistance among other equipment, and so long as we think the patient may have a chance at recovery, that would make the ventilator medically appropriate (it would produce a net-benefit). But what if further testing reveals that the patient has suffered brain death, meaning that the patient’s brain is unable to ever recover, and by extension the patient cannot recover. Once the patient has been pronounced clinically dead according to brain death criteria, we can question to what extent the ventilator is then medically appropriate. If the patient cannot recover, is the ventilator helping to promote the patient’s well-being, or is it simply keeping a body from further declining but without hope for improvement? So while the ventilator was appropriate medical care initially, once the patient’s diagnosis changed in light of further diagnostic information, we might think that the use of the ventilator also changed to now being futile care given that it will not help the patient to recover.

Another reason that futile care might be given is that a patient or the patient’s family may “have hope” that an intervention could provide some small benefit, if even by miracle, despite a very low statistical chance of improvement. It’s important to give patients and families hope, given that they need the motivation to keep going through often difficult and painful treatments, especially when those treatments are expected to improve the patient’s well-being. But sometimes people hold onto hope even when unlikely or unfounded, and sometimes having too much hope can lead to interventions that cause prolonged harm without any meaningful benefits. So while providing resources “in the hope they will help” can be a justified course of action when there is some likelihood of improvement, if that likelihood of improvement becomes too small, at what point does continuing this care to satisfy respect for autonomy fail to become the best course of action overall? And what other issues might arise if we provide non-beneficial care to a patient simply because they request it? When that care involves scarce or limited resources, it can start to affect the ability of other patients to access necessary care, which brings the principle of respect for autonomy into conflict with the principle of justice.

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4.4) Mass Disasters & Triage Protocols

The last type of challenging scenario we’ll consider are those that affect large numbers of patients all at once. These are often referred to as “mass casualty situations” because so many people are affected that large numbers of individuals inevitably tragically die despite our best efforts.  These tragic events happen throughout history for a number of reasons:

• Natural disasters in the form of earthquakes, tornados, tsunamis, or hurricanes.
• The rapid spread of diseases leading to mass outbreaks and pandemics.
• Human-created conflicts resulting in wars, famine, or terrorist attacks.

What these different types of scenarios all have in common is that they threaten the lives of hundreds or thousands of people in a very short amount of time, often resulting in significant casualties. Despite the significant advances in healthcare delivery in the past century, there are still only a limited number of resources at any given location, as discussed previously. So when disaster strikes and large numbers of people quickly become in need of those precious resources, suddenly there are more potential patients than resources available. As you might expect, this leads to difficult choices about who to prioritize giving resources to, knowing that you can’t feasibly treat everyone and some patients will die because they were unable to access the resources they needed. So should we think about allocating resources in these challenging situations?

We must think about how best to “triage” patients according to our accounts of justice. Many hospitals already have established “triage protocols” are policies outlining how patients should be prioritized to ensure that limited resources are allocated efficiently to maximize patient outcomes. As discussed in our earlier example of an emergency department, triage protocols in that context use a prioritarian account of justice to ensure that the patients in the most urgent need of care are prioritized over patients who can wait longer for care. And when assessing patients during an emergency, such as a multi-car pileup where many people may be injured all at the same time, emergency first responders will use a color-coding system to indicate which patients need help most urgently. This makes sense in an emergency department because by nature it has an abundance of resources so that providers can respond to almost every situation effectively.

However, does this prioritization still make sense in larger-scale disasters when the abundant resources in an emergency department, and perhaps even in all the emergency departments in an entire region, would quickly be used up while more patients are still waiting for care? For example, during the Covid-19 pandemic, there were far too many patients to use the color-coding system and resources became severely limited across the globe. This challenges us to consider whether we should continue to employ ideas of prioritarian justice in these instances, or whether employing utilitarian justice begins to make more sense at a certain point. Either way, providers have to make tough decisions about who gets what resources and who gets left out, knowing that no matter how we prioritize our resources, we simply don’t have enough to treat every patient in need. This is what makes mass casualty situations so challenging to navigate, requiring us to think carefully about what our goals of care are in these devastating scenarios so that we can create clear healthcare policies to help guide providers in these challenging times.

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