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Tag: Distribution

  • (Part-II) Proposing a Legal Framework for Distribution of the COVID-19 Vaccination

    (Part-II) Proposing a Legal Framework for Distribution of the COVID-19 Vaccination

    I.   Reassessing Vulnerabilities During a Pandemic

    A general problem across all conventional models is their failure to understand that vulnerabilities during a pandemic are created and compounded by socio-economic factors too. Therefore, there is a need to adopt approaches that holistically assess the correlation between socioeconomic factors and vulnerability during a pandemic.[1]

    The Syndemics Approach

    Under this approach, pandemics are understood as an interaction of that disease with other diseases and the socio-economic and political factors that increase the risk of vulnerability.[2] All these factors synergistically interact to impact the health of individuals and society. Through these risk factors, it identifies the overlapping health and socio-economic problems that increase vulnerability (‘syndemic vulnerabilities’). The socio-economic risk factors are influenced by social determinants of health, i.e., the conditions of housing, food, employment, healthcare, and education.[3] Therefore, the utility of this approach lies in its holistic conception of socio-economic factors that impact the formation, clustering, and progression of diseases.[4] Using this approach, I argue that the COVID-19 pandemic has synergistically interacted and exacerbated the existing diseases and socio-economic conditions of marginalized groups across countries.

    Higher Risks of Infection, Transmission, and Mortality: Typically, due to historic discrimination and denial, marginalized communities have a greater number of pre-existing diseases like diabetes and asthma,[5] which in turn elevates their risk of infection and mortality. Moreover, there is unequal access to healthcare among marginalized communities due to the high costs of medical care and the absence of health insurance.[6] Marginalized communities are also disproportionately poor,[7] which affects their ability to mitigate the impact of the pandemic.

    Typically, marginalized communities are housed in crowded neighbourhoods with smaller houses that lack outside space.[8] They also have higher population densities, especially in urban areas, and lower access to communal green space.[9]Due to historic discrimination, marginalized communities are over-represented in essential services, including low-wage healthcare sectors and sanitation jobs.[10] This reduces their ability to work from home, and thus increases their risk of infection and transmission. Marginalized communities are more likely to take public transportation,[11] which further increases their risk of infection and transmission.

    These syndemic vulnerabilities have increased the risk of mortality among these marginalized communities. For instance, in America, the mortality rate of African-Americans and Indigenous/Latino communities is 3.4 times and 3.3 times higher than a non-Hispanic White person.[12] Evidence from past epidemics/pandemics shows that the rates of infection and mortality are always disproportionately higher among marginalized communities.[13]

    Greater Socio-Economic Disruption: Due to a lack of quality education, members of marginalized communities tend to work in lower-wage jobs in the informal sector, which has been worst hit by the pandemic.[14] The percentage fall in employment for marginalized communities has been far greater, indicating that education was a protective factor in the first wave of job losses.[15] Consequently, there has also been greater housing evictions among these communities.[16]The access to quality education for children in marginalized communities has also been severely impacted because they lack access to the internet,[17] affecting their ability to access education. Moreover, low literacy among adults in marginalized communities indicates their inability to assist their children with any form of home learning.[18]

    Therefore, the increased syndemic vulnerabilities of marginalized communities and the consequent disproportionate socio-economic disruptions of the pandemic on them necessitate a greater strive for their inclusion in distributing the vaccine. Early access to such vaccines allows these groups the opportunity to proportionately mitigate these vulnerabilities and disruptions.

    Intersectionality

    Presently, vulnerabilities among individuals are dominantly viewed from a single-axis framework. This ignores the multiple layers and experiences of vulnerability, resulting from an interplay of power structures and different social identities, held by one individual. This ignorance is avoided when using intersectionality, which is an analytical framework that explains how different social, economic, and political identities overlap to create different modes of discrimination and privilege.[19] Thus, it explains how certain individuals in the population are relatively more disadvantaged than others.[20] Intersectionality not only provides a multi-layered understanding of vulnerabilities during a pandemic but also helps prioritize distribution within an identified category, given the scarcity of vaccines.

     

    II.   Proposing a Multi-Value Ethical Framework

    Given its rational criteria, incorporating utilitarianism’s clinical risk factors is quite valuable. However, as argued, vulnerability during a pandemic is also determined by socioeconomic risk factors. Therefore, there is a need to adopt a multi-value approach that incorporates both clinical and socio-economic risk factors. I propose to do so by simultaneously prioritizing the values of ‘collective wellbeing’ and ‘justice’.

    Borrowed from utilitarianism is the value of ‘collective wellbeing’, which aims at maximizing benefits and minimizing harms. Flowing from a syndemic conception of COVID-19 is the value of ‘justice’, which aims at reducing health inequities and treats like people alike. These values are not necessarily always distinct, but their overlap over one parameter indicates a stronger justification. They can be operationalized using an ‘intersectional multi-parameter weighted framework’.

    Operationalizing Values

    The framework is constructed through three layers: (1) for each risk parameter, there is (2) a value-based justification, along with (3) its extent of weightage. The risk parameters are viewed from an intersectional power axis, with value justifications sourced from clinical and syndemic vulnerabilities. The weightage typically connotes a three-point scale, where 3 indicates the highest priority, and 1 indicates the lowest. The priority order is based on the greatness of one’s total score. The lottery method should only be used as a tie-breaker when the score is the same, and no more doses are presently available.

    Age:    Older people are at a significantly higher risk of infection and severe morbidity or mortality due to physiological changes associated with ageing. Globally, more than 95% of COVID-19 deaths were among individuals aged 60 and above. Even among older people, more than half of all deaths occurred in people aged 80 and above.[21]

    Therefore, in descending order, weightage must be given to individuals above 80 years, individuals between 60-80 years, and individuals between 40-59 years.

    Comorbidities:          Depending on the country, between 48-75% of COVD-19 deaths are associated with existing comorbidities. Those with comorbidities are also at moderately higher risk of infection.[22]

    The prioritization has to be categorized based on the severity of the comorbidity, in contracting the infection and causing death. Therefore, in descending order, higher weightage must be given to severe comorbidities, moderate comorbidities, and mild comorbidities. The severity in infection and mortality is different for countries due to distinct socio-economic realities and evolutionary biology. Therefore, this identification and classification need to be uniquely undertaken. However, as a general rule, it is almost universal for HIV, cancer, and most cardiovascular diseases to be severe comorbidities.[23]

    Profession:     Prioritizing frontline healthcare, sanitation, and defence workers are justified because they engage in services, whose absence has the greatest negative societal impact- whether on health, safety/security, or economy. They are also in constant contact with areas and people having the greatest risk of infection. Therefore, protecting them has a multiplier effect, in that their ability to remain uninfected protects the health of others and minimizes societal and economic disruption. Since the state obligates these workers to work in risk conditions, while everyone else is working from home, it is further obligated to protect them.

    Therefore, in descending order, priority must be given to frontline workers, workers in other essential sectors, and workers in non-essential sectors.

    Income:          One’s economic status affects their ability to access healthcare, thus results in higher rates of mortality and severe morbidity.[24] The syndemic approach reveals that poverty compounds one’s syndemic vulnerability.

    Therefore, in descending order, priority must be given to individuals with low-income, middle-income, and high-income.

    Ethnic Identity:         The syndemic approach reveals that marginalized communities are at a greater risk of infection, transmission, and mortality. They are also worst affected by the pandemic, which further compounds their vulnerability. Given these vulnerabilities, prioritized vaccine access to marginalized communities also helps reduce all three risks among the general population.

    The prioritization criteria would depend on the marginalized communities within a country and the extent of their syndemic vulnerabilities. For instance, in America, the syndemic vulnerabilities are greatest for African-Americans, followed by the Indigenous/Latinos communities, and then Pacific Islanders.

    Conclusion

    The conventional models of vaccine distribution are unethical towards disadvantaged groups. While neoliberalism completely ignores the distributive function of law, utilitarianism, lottery, and FCFS at least acknowledge this. However, their criterion of distribution ignores socio-economic vulnerabilities. This ignorance can be addressed using a syndemics approach and intersectionality.

    The syndemics approach explains the socio-economic risk factors that disproportionately disadvantage marginalized communities, both medically and socio-economically. Intersectionality provides a layered understanding of how vulnerabilities affect people, even those in the same group, differently. Using these approaches, I propose a multi-value ethical framework that balances the pragmatic considerations of medical utilitarianism with greater social inclusion. It operationalizes the values of these ethical systems through the priority order generated under an ‘intersectional multi-parameter weighted framework’.

     

    Notes:

    [1] While each country has different marginalized groups, the patterns of vulnerability explored are similar. Thus, marginalized groups have been generally analyzed hereinafter.

    [2] Merrill Singer, Nicola Bulled, et al, ‘Syndemics and the biosocial conception of health’ (2017) 389 Lancet 941, 941-943.

    [3] Clare Bambra, Ryan Riordan, et al, ‘The COVID-19 pandemic and health inequalities’ (2020) 1 J Epidemiol Community Health 964, 965.

    [4] Singer (n 23) 948.

    [5] Harleen Kaur, ‘Indirect racial discrimination in COVID-19 ethical guidance’ (BMJ Blog, 27 August 2020) <https://blogs.bmj.com/covid-19/2020/08/27/indirect-racial-discrimination-in-covid-19-ethical-guidance/> accessed 8 January 2021.

    [6] Bambra (n 24) 965-966.

    [7] Melanie Moses, ‘A Model for a Just COVID-19 Vaccination Program’ (Nautilus, 25 November 2020) <http://nautil.us/issue/93/forerunners/a-model-for-a-just-covid_19-vaccination-program> accessed 8 January 2021.

    [8] Tonia Poteat, ‘Understanding COVID-19 Risks and Vulnerabilities among Black Communities in America: Syndemics’ (2020) 47 Annals of Epidemiology 1, 3.

    [9] Bambra (n 24) 966.

    [10] National Academies (n 16) 30-31.

    [11] ‘Beyond the data: Understanding the impact of COVID-19 on BAME groups’ (2020) Public Health England Report, 22-23 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/892376/COVID_stakeholder_engagement_synthesis_beyond_the_data.pdf> accessed 8 January 2021.

    [12] Harald Schmidt, ‘Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?’ (2020) 324 JAMA <https://jamanetwork.com/journals/jama/fullarticle/2771874> accessed 8 January 2021.

    [13] Bambra (n 24) 967.

    [14] Shruti Srivastava, ‘Millions Escaped Caste Discrimination. Covid-19 Brought It Back’ (Bloomberg Quint, 21 August 2020) <https://www.bloombergquint.com/politics/millions-escaped-caste-discrimination-covid-19-brought-it-back> accessed 8 January 2021.

    [15] Ashwini Deshpande, ‘Differential impact of COVID-19 and the lockdown’ (The Hindu, 22 August 2020) <https://www.thehindu.com/opinion/lead/differential-impact-of-covid-19-and-the-lockdown/article32416854.ece> accessed 8 January 2021.

    [16] Schmidt (n 33).

    [17] Deshpande (n 36).

    [18] Ibid.

    [19] Olena Hankivsky, ‘An intersectionality-based policy analysis framework’ (2014) 13(119) Intl J Equity in Health 1, 2.

    [20] Ibid.

    [21] ‘Supporting older people during the COVID-19 pandemic’ (WHO, 3 April 2020) <https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/4/supporting-older-people-during-the-covid-19-pandemic-is-everyones-business> accessed 8 January 2021.

    [22] Awadhesh Kumar, ‘Impact of COVID-19 and comorbidities on health and economics’ (2020) 14(6) Diabetes Metab Syndr 1625, 1626-1627.

    [23] Ibid.

    [24] National Academies (n 16) 68-77.

     

    Image Credit: One India

  • Proposing a Legal Framework for Distribution of the COVID-19 Vaccination [Part I]

    Proposing a Legal Framework for Distribution of the COVID-19 Vaccination [Part I]

    Introduction

    Distributing the COVID-19 vaccination has been touted as the biggest policy decision in 2021. This stems from the utility and efficacy of vaccines in immediately addressing pandemics. Specifically, the COVID-19 vaccination not only protects the injected person, with a 70%-95% efficacy[1] but also provides ‘herd immunity’.[2] That is, the non-injected population is also benefited due to a reduced risk of transmission and infection, so long as 70% of individuals in society are vaccinated. Therefore, access to the vaccine determines how much and for whom the adversity of the pandemic is mitigated.

    Currently, most vaccine developers are in the final two phases of clinical trials, with some, like Pfizer/BioNTech’s and Oxford University/AstraZeneca’s, already receiving ‘emergency use authorization’ from multiple countries. Most countries have prepared a ballpark action plan for distribution, while the United Kingdom has already vaccinated more than 3.5 million people.[3]

    In this paper, I evaluate the most ethical framework for distributing COVID-19 vaccinations, amongst the population of one country, by its government. I address this question from the perspective of marginalized communities, using the approaches of realism, syndemics, and intersectionality. In Part I of this article, I will evaluate the conventional models for vaccine distribution. In Part II, I will provide an alternative framework for reassessing vulnerabilities during a pandemic, and propose a multi-value ethical framework.

    1. Evaluating the Conventional Models for Vaccine Distribution

    The decision to distribute COVID-19 vaccines is inherently ethical because it involves allocating an important resource in a resource-scarce world. Thus, determining who can pre-maturely mitigate the pandemic’s adversity. There are four models in conventional discourse that have sought to answer the distribution question. In this section, under each model, I will critically evaluate the role of law in distribution and the ethical values that guide prioritized distribution.

    Neoliberalism

    Neoliberalism is characterized by a strict separation between the state, society, and the market.[4] The objective of all economic activity in the markets is wealth and efficiency maximization.[5] To this end, greater involvement of the private sector in the economy is justified because the market allocation of resources is more efficient. Any state intervention beyond a minimum supporting role is conceived as inefficient because rent-seeking, corruption, and capture by special interests are inevitable.[6]

    The diminished role of the state in securing redistribution means that individuals are responsible for their welfare and income. Therefore, individuals would themselves be responsible for ensuring access to the vaccination, notwithstanding their socio-economic status. They must attain this access by successfully competing in the “free market”, through instruments like price point discovery.[7] The underlying rules of competition create a level playing field where fair bargaining over market transactions can occur, so long as the requisite effort is made. This is because the rules are universal in their applicability, and create a distinct economic space, free from state coercion.[8] Therefore, access to the vaccine is determined by one’s ability to pay for it.

    State intervention is only justified when there is a market failure, but even then, preference is accorded to non-state solutions like direct public action or self-regulation.[9] Neoliberalism addresses equity concerns, like non-access to the vaccine, through safety nets and income transfers rather than through market regulation.[10] Otherwise, inefficiencies are introduced into the system, which distorts market incentives, and thus undermines the goal of economic growth.[11] This means that vaccine developers would lose the incentive to undertake expedient and mass production.

    Critique:         Neoliberalism denies that any redistribution to disadvantaged groups is covered by legal reforms. There is no focus on how economic gains are distributed, and the effect of reforms on vulnerable social groups.[12]Neoliberalism’s refusal to acknowledge the distributive function of legal regulation is flawed because rules necessarily always operate to distribute resources and powers to various groups and actors in particular ways.[13] The neoliberal machinery devises a particular allocation of risks, resources, powers, costs, burdens and benefits among different market actors. The effect is that the existing propertied class receive greater entitlement, whilst others are disadvantaged.[14] This perpetuates the inequalities already in status quo, impacting accessibility to the vaccine. Therefore, the relevant question is not whether distributive concerns must be considered, but rather their manner of incorporation in the process of market reform. To this end, the state, which guarantees the regulatory underpinnings of a market economy, must inherently play a greater role in regulating the distribution of economic gains from the market.

    The idea to distribute vaccines based on personal purchasing power is flawed because it ignores the fact that vaccines possess inelastic demand. Therefore, given short supply at short-term and medium-term levels, the price will continually go up to unaffordable rates. This increased price does not encourage new suppliers because the intellectual property rights and R&D is held only by a few developers.[15]

    Utilitarianism

    Utilitarianism assesses the morality of a decision based on its consequences, whether it maximizes benefits and/or minimizes harms. Under this rationale, priority is accorded based on the greatest clinical risks and greatest utility to social functioning. The clinical factors consider the risk of severe morbidity and mortality, risk of infection, and risk of transmission.[16] The greatest utility to society is measured in terms of the risk of negative societal impact, i.e., the public utility of one’s occupation/social role to society and other individuals’ lives and livelihood.[17]

    Therefore, in this pandemic, utilitarianism would prioritize age (above 50/60 years) and associated comorbidities (identified set of diseases) based on the risk of morbidity/mortality and infection, followed by occupation (healthcare and frontline workers) based on the risk of negative societal impact and risk of infection.[18]

    Critique:         Unlike neoliberalism, there is limited value in the utilitarian model because it recognizes the distributive role of law in allocating benefits. Moreover, it pursues this based on a rational objective criterion.

    However, its main problem lies in assessing vulnerabilities through only a clinical lens. It ignores that socio-economic factors also contribute to overall vulnerability during the pandemic, as I argue in the next section. Additionally, it doesn’t acknowledge that even within the identified categories, some are more vulnerable than others. Therefore, it has the effect of compounding existing socio-economic inequalities.

    Lottery

    This approach prioritizes distribution through a random selection of names. This is premised on the assumption that such selection is egalitarian and impartial, and also overcomes the inherent moral relativity/ambiguity of human reasoning.[19]

    Critique:         Random lotteries acknowledge the role of law in distributing benefits, but they lack any rational prioritization to effectively and immediately address the pandemic. While absolute objectivity is unattainable, avoiding moral reasoning altogether is merely “an easy method to avoid hard decisions”.[20] The assumption that everyone’s life is equally important fails to acknowledge the differential disparities that differentially threaten such lives.[21]

    First Come First Serve

    Like lotteries, this approach is premised on avoiding moral decisions and the assumption that everyone has an equal opportunity to access the vaccine.[22]

    Critique:         While this approach acknowledges the role of law in distributing benefits, it is completely blind to the socio-economic realities. Given scarcity, it is inevitable that access will be confined to those with better connections, access to information, communication, and transportation. All these factors are, in turn, tied to one’s socio-economic status. Thus, there is disproportionate denial to disadvantaged communities.

     

    References:

    [1] James Gallagher, ‘Covid vaccine update’ (BBC, 30 December 2020) <https://www.bbc.com/news/health-51665497> accessed 8 January 2021.

    [2] Rebecca Weintraub, ‘A Covid-19 Vaccine Will Need Equitable, Global Distribution’ (HBR, 2 April 2020) <https://hbr.org/2020/04/a-covid-19-vaccine-will-need-equitable-global-distribution> accessed 8 January 2021.

    [3] Lucy Rodgers & Dominic Bailey, ‘Covid vaccine: How will the UK jab millions of people?’ (BBC, 23 January 2021) <https://www.bbc.com/news/health-55274833> accessed 24 January 2021.

    [4] Manfred Steger & Ravi Roy, Neoliberalism (OUP 2010) 3-4.

    [5] Kerry Rittich, Recharacterizing Restructuring (Kluwer Law International 2002) 50-52.

    [6] Rittich (n 4) 55-59.

    [7] Sahil Deo, Shardul Manurkar, et al, ‘COVID19 Vaccine: Development, Access and Distribution in the Indian Context’ (2020) Observer Research Foundation Issue Brief No. 378, 6 <https://www.orfonline.org/research/covid19-vaccine-development-access-and-distribution-in-the-indian-context-69538/> accessed 8 January 2021.

    [8] Rittich (n 4) 131.

    [9] Rittich (n 4) 74-76.

    [10] Ibid.

    [11] Steger (n 4).

    [12] Rittich (n 4) 130.

    [13] Steger (n 11)

    [14] Rittich (n 4) 158-160.

    [15] Deo (n 7).

    [16] National Academies of Sciences, Engineering, and Medicine, Framework for Equitable Allocation of COVID-19 Vaccine (National Academies Press 2020) 102-105.

    [17] National Academies (n 16) 8.

    [18] Ibid.

    [19] Richard Zimmerman, ‘Rationing of influenza vaccine during a pandemic’ (2017) 25 Vaccine 2019, 2023.

    [20] Ibid.

    [21] Erica Moser, ‘Many ethical questions involved in prioritizing groups for vaccine distribution’ (The Day, 13 December 2020) <https://www.theday.com/article/20201213/NWS01/201219766> accessed 8 January 2020.

    [21] Ibid.

    [22] Zimmerman (n 19).

     

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