The Amoral Cure for Quarantine: A dip into Dystopian Advocacy

by Hugo Carter

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We walk in a world of moral topsy-turvy, polluted in paranoia as a COVID-19-shaped shadow seems to probe our peripheral vision. It is immoral to go to the shops twice in one day. It is immoral to see your loved ones. And it is still immoral to kill someone. There appears to be a hierarchy… Somewhere amongst the upside-down into which we appear to have entered there may just be a ‘right’ thing to do. What I analyse in this article is not that. But it is unprecedented times such as these where morality and law have the potential to become muddled and dystopian laws seem justified through pandemic-tinted glasses. I shall play the dystopian advocate.

The Origins

Quarantine allows for a lot of thinking time. And one train of thought indubitably on the minds of many is how to end this pandemic. A vaccine could be years; some sort of super drug is a pipe dream; conspiracy theorists will have you believe it’ll all be over once they install the last 5G towers. Meanwhile, the effects of recession loom large — so the mind goes astray. Some ponder the effects of a gradual release, weighing up the costs and benefits of freedom and death; Presidents posit ideas of ingesting disinfectant. Stray too far and you arrive at the dark idea of murder to stop the disease. Never mind the impracticality at this stage of the spread, even pure utilitarian accounts wouldn’t support such slaughter in the hope that it prevents the death of more than one person per person killed. Yet, there is perhaps a dystopian middle ground. An undiscovered path amongst the hierarchy of immorality. And so, I shall take you down the draconian path less travelled and discuss the legal and moral implications of where my mind has strayed.

The perverse idea is a qualified herd immunity tactic. In its bare bones, it is the chicken-pox-party principle of forcing oneself to catch the disease, and thereby build immunity once recovered – you’ll have to imagine immunity is definitely possible for COVID19. One would apply to do so, evincing proof of medical fitness and general healthiness, and, having met the criteria, would go to a COVID ‘hub’ of sorts with multiple other applicants, and catch the disease. The volunteers forego their right to medical care.

I have omitted many details to allow for a fluctuating analysis below — even many of the smaller innocuous details cause different legal outcomes. Ridiculous? Yes. Would it work? Invariably not. Does it pose interesting legal and moral questions? Absolutely.

Firstly: can you pre-emptively waive your right to treatment?

The stipulation to forego treatment is necessary to remove the burden on the NHS. These ‘herds’ simply curate a steeper curve, accelerating immunity to the point that quarantine can be lifted. The entire point of quarantine, however, is to flatten the curve and remove such a burden on the world’s healthcare systems, thus maximising the saviour of life. Hence, to prevent this burden, the volunteers would be unable to receive NHS healthcare to treat their COVID-19 symptoms. These camps play on the basis of minimising the silent transmitters who pass the disease on to high-risk individuals but who would be able to cope with the disease in any case. The low-risk teenagers through adults who are in good health have a very low mortality rate (roughly 1 in 500, including those with underlying health problems). If such people believe themselves to be in a good enough state to cope with the disease, they catch it, recover and eliminate themselves as vehicles of dispersion. Logistical problems are a-plenty. For one, where they stay during the incubation period and further weeks of contagiousness? For the purposes of this hypothetical, imagine they are able to stay in this ‘hub’ until recovery, and all other such practicalities have been solved.

Now the interesting part: some will still get ill enough to warrant hospitalisation. And some will die. So, are they legally able to forego their right to treatment before they get ill, essentially agreeing to die? My mind first turns to the patient autonomy principle: the idea that a patient has the right to know all the facts and make a decision as to what treatment they undergo, including the right to refuse life-saving treatment. One finds authority in Montgomery v Lanarkshire[1] and Re B (Consent to treatment: Capacity)[2]. The former gave the patients the right to bring a civil action against doctor’s who acted against their will, and the latter, more poignantly for our instant discussion, confirmed the right of a mentally competent person to refuse treatment, even if the result is death. As Lord Donaldson MR stated in Re T (Adult: Refusal of Treatment), a Court of Appeal decision from 1992:

“This situation gives rise to a conflict between two interests, that of the patient and that of the society in which he lives…It is well established that in the ultimate the right of the individual is paramount”[3]

thus laying down good authority for the ability to forego treatment. I would note that ‘society’s interests’, which he describes as the preservation of the sanctity of life, potentially align with the patient’s interests in our hypothetical, given the overall aim of overcoming coronavirus. This may aid the potential banana peel laid by Re B insofar as it seemed to require Ms B to have ‘good reasons’ for refusing treatment which coalesced with the analysis of her ‘capacity’ to make the decision.[4]

The tricky aspect, however, is foregoing treatment pre-emptively. Patient autonomy is not absolute and is founded on the pillars of information, capacity and freedom. We can assume our volunteers are free from undue influence and have the capacity to make the decision (i.e. not impaired by psychiatric or psychological problems and are of proper age — no children or senile pensioners) and hence meet the first two requirements. But it is the pillar of being informed that poses a threat to our first question. Tom Beauchamp stipulates that ‘if and only if the person with substantial understanding and in substantial absence of control by others, intentionally authorises a health-care professional to do something’[5] can it be said that a patient has given informed consent. The problem is it is impossible to know the full nature of the condition of the volunteers’ future illnesses, even within the scope of what we know about COVID-19. Indeed, were a volunteer to contract a different disease, with corona-Esque symptoms, and be declined treatment based on the probability of the illness being COVID-19 and subsequently die of a different disease, a finding of murder or gross-negligent manslaughter would be unavoidable. This is because there is zero informed consent. The disease was not foreseeable from the ‘herd camp’ and the volunteer obviously does not refuse treatment for that particular disease. Thus, more acutely relevant to the general scheme, are the effects of coronavirus foreseeable? To my understanding, it may affect people quite differently. Where one gets a serious version of the disease, it is because their immune system has reacted violently and is almost self-defeating in causing over inflammation. The reaction of an immune system is somewhat unpredictable, causing different parts/ aspects of the body’s systems to shut down. Thus, to ‘forego treatment’ is akin to accepting that someone will break one of your bones; they do not tell you which bone nor how severely. Can this reasonably be said to be foreseeable? Given the stricter approach taken to the principle of autonomy in situations of life and death, it is unlikely that autonomy can extend this far.

However, my insertion of ‘reasonably foreseeable’ may be somewhat misplaced. It is no doubt a concept that extends throughout the law and one used prevalently in the discussion of harm and homicide, but that it is relevant to informed consent is an assumption on my part. Indeed, that information is a pillar of patient autonomy does not render it a precondition to fulfilling the will of said patient. In this respect, Sir Thomas Bingham M.R remarks that

‘the right to reject treatment extends to deciding not to accept treatment in the future by way of advance directive or “living will.”’

This ‘living will’ conception is as it seems — it is a will for while you are living (in relation to treatment). You make it while you have the capacity to, and it invokes your wishes on treatment should it become necessary. While this usually applies to those incapacitated at the time of choice, the act of being away from the hospital, voluntarily, is akin to such incapacity. Substantially similar to a Mormon (whose faith objects to many forms of treatment) falling ill at home and refusing to call emergency services. Thus, we have some authority for the pre-emptive refusal of treatment. I would note that the pitfalls of ‘information’ are still operative, but that a finding of legality for an antecedent waiver of treatment would not be normatively void.

Act v Omission

An underlying theme so far has been the distinction the law makes between an act and an omission. Turning off a life-support machine, for example, was heavily debated as to whether that was an act, laying down the necessary actus reus (and oblique mens rea) of ‘active euthanasia’ that English law regards as murder.[6] The seminal case of Bland rejected such an argument, deeming it to merely be the cessation of ongoing treatment that was itself started by the doctors. [7] This distinction, and the deep moral debate it promulgates, is vital to our herd immunity camps — but not in reference to their treatment. Instead, it is the contraction of the disease that requires classification and justification. This is where legality teeters on detail.

For one, the very notion of patient autonomy considered above relies on the existence of some form of medical duty to the volunteers. It relies on medics controlling this whole ‘camp’. Indeed, ECHR justifications, policy reasons and general common-sense dictates that these camps could not be conducted informally, run by the public themselves. However, where such medical practitioners actively set up this controlled proliferation of disease, the more control they exert, the more it can be said that they are actively giving the disease to these people. If one of them dies, the doctors in control will have the actus reus for murder. Where the number of volunteers is such that it is a ‘virtual certainty’ that someone would die, they will have an oblique intention, and hence the mens rea, for murder.[8] If medical evidence can prove an objective improbability of death and a reasonable subjective belief on behalf of the doctor that they could not reasonably foresee death, then recklessness will downgrade the crime to manslaughter. If, however, consent and relaxed control can put the ‘act’ into the hands of the volunteers wishing to gain immunity, the doctors are not liable. An innocuous detail that determines whether a doctor goes home to their family or faces a mandatory life sentence.

Even where we can tiptoe our way into a finding that there is no ‘act’ we fall into the omission exceptions. Of the five, two apply: assumption of responsibility and creation of danger. The doctors present at such camps can either be seen to have created the danger in aiding the contraction of disease or assume responsibility by overseeing the whole thing. In which case we fall upon the patient autonomy principle to allow the omission of treatment. There is, however, another train of thought. Ashworth argues that it is “wrong that criminal liability or non-liability should turn on such fine points… The proper solution is not to warp the concepts of omission, duty, knowledge and causation, but to provide for such cases to be determined on new principles of justification.” And so, we shall put ‘acts and omissions’ to one side and discuss an existing principle of justification.

The Defence of Necessity

Necessity is the law’s version of ‘the lesser of two evils’. It is a justificatory defence that renders action lawful and is an absolute defence — it will not vary in force based on the distinction between specific and basic intent crimes such as its sister defence of duress. So what does the greater of two evils look like? Well, the courts have been reluctant to express the very existence of this defence (London Borough of Southwark v Williams [1971] 2 All ER 175 CA) so our evidence is quite anecdotal and usually in the medical context. It is clear that ‘the defence of necessity is going to have to develop on a case by case basis…’ in the judgment of Howe [1987] AC 417. The test, as laid out in the infamous Re A (Children) (Conjoined Twins: Surgical Separation) [2001], is threefold:

• The act is needed to avoid inevitable and irreparable evil.
• No more should be done than is reasonably necessary for the purpose to be achieved.
• The evil inflicted must not be disproportionate to the evil avoided.

So, what is the evil that we’re facing? This may have been your pressing question from the beginning: what would be the point of accelerating the curve and expediting quarantine’s end? The answer is, broadly, the recession. It may seem a banal economic pain, but this pain will reverberate around the world more severely than many appreciate. While Christopher Ruhm, repeating Ogden and Thomas’s early 20th-century study, once demonstrated that economic depressions actually correlate with decreased mortality[9] he has qualified that such correlation has weakened in more recent times and even stated that some countercyclical patterns have emerged, for instance, deaths caused by overdose of prescription drugs, which rose dramatically in recent recessions. Indeed, the one certain point is that suicides rise dramatically in recession. Any reason for lower mortality in times of recession is not indicative of a healthier society. As Jeff sparrow notes: “If we can’t afford alcohol and tobacco, we might live longer but poverty-induced restrictions do not bring happiness, any more than the prolonged lifespan of captive animals induces enthusiasm for cages.” Paradoxically, the longer we remained caged in quarantine, the longer the cage of recession will last when we’re ‘free’. Umair Haque goes as far to say that quarantine will send the US into ‘enduring, life-long poverty from which there is no real escape’ and suggesting the techno-giant-monopoly economy left in its wake can cause ‘death on an unimaginable scale.’ While this emotive language exhibits notions of overdramatized scaremongering, the Panel Study of Income Dynamics[10] did raise evidence that joblessness strongly raises the risk of death. So, while overall death may not fluctuate dramatically, that is generally because of the reduced risk-taking of the (now slightly less well-off) well-off masks over those put into survival mode by recession and die by inevitability. This economic captivity is our necessity.

Does it meet the test? The first test is quite subjective in this case of recession. It is no doubt inevitable and the lasting effect may deem it sufficiently irreparable, but there is a divide between recession and death that the court will heed. We see this causal argument in duress and necessity all the time, even developing a principle that where the defendant has time to take preventative action, such as call the police, the harm will not be sufficiently immediate. The recession may be inevitable and immediate, and the deaths irreparably evil, but the delay between the two will most likely fail this test, on orthodox conceptions of criminal defences (see Devlin v Armstrong [1971], and R v Jones & Milling [2004]). The court, however, develops necessity on a case by case basis and the novel situation may give rise to a novel ruling. Hence, we will continue to discuss the latter tests.

The first is the ‘no more than is reasonably necessary’ test. This is an objective test that simply has no objective answer in relation to our scenario. What is the least intrusive, least immoral, easiest way to end quarantine…objectively speaking? The question is more likely to be whether it is the least intrusive version of itself. The base requirement of selecting only the healthiest and risk-averse volunteers goes some way to meeting this test insofar as it reduces the probability of fatality. A threshold of herd immunity beyond which we can end quarantine is probably calculable. Thus, another requirement would be that only enough people take part to reach this number. Beyond this, I am short of ways to further reduce its scope. These stipulations alone may warrant the meeting of the second test, though I would hesitate to advise that with any conviction. Finally, the test of proportionality — where the scale of the worldwide emergency is sure to meet this test. The unparalleled effects of the disease and economic crash must surely be proportional to measures intended to reduce transmitters to high-risk people and expedite the re-ignition of economic engines.

To conclude, the defence of necessity may best be categorised as an overall policy consideration than a genuine defence in this scenario. Indeed, if patient autonomy renders the camps lawful, such a defence is unnecessary. If it is the sole instrument of defence, I would advise that it would fail, with particular regard to the first test.

ECHR implications

Much of the same debates will re-emerge in the European Court of Human Rights as the right of autonomy is protected under the ECHR Article 8 — Pretty v UK (2002). They will give the national courts a wide margin of appreciation, but the discussion of proportionality will be even greater. Under their standard form of analysis, they may find that the ground of justification for a derogation of the right to life is the protection of public health: can the detriment to public health be justified by wider protection of public health? This paradox has run throughout this article and I shall leave my discussion of the ECHR as a mere side note: whatever the national courts make of the immunity camps, the ECtHR may decide differently.

Your Morality or Mine?

The final point I will touch on is the gravitational pull of natural law — and why such a pull will suspend us in no man’s land. It is the concept of law before we ever wrote anything down: a law based on shared ethics and morality through instinct. I contend that anti-realism and relativism dismantle any one conception of morality in guiding the law. A discussion of moral relativism, especially in regard to law, may just be my dissertation topic next year; and even then, 12,000 words may not suffice. Thus, I shall just scratch the surface here and keep close to the scenario.

Firstly, utilitarianism. This is a widely held belief throughout the world. Even in ignorance of the philosophical arguments, a belief in the greatest amount of good for the greatest amount of people is logical and simple. But just as with anything, ‘good’ is subjective. Take the studies of recession and decreased mortality: if fewer people die in recession (according to the earlier studies), is recession not the right state of economic welfare rather than the increased mortality of economic expansion? One might respond that this is not the case because the standard of living is much lower, and perhaps noting some of the issues discussed in ‘necessity’ above. Thus, they appreciate that the sanctity of life and standard of living must be weighed against each other. To me, these moral ‘weights’ are incommensurable and such a balancing act is at the whims of the balancer. Applying such a belief to this scenario produces no discernible outcome: how many would die? How many would it save by eliminating transmitters to high-risk people? To what extent could it reduce the recessive effects of quarantine? Even where these very speculative questions have solid answers, utilitarianism has to weigh up a complex amalgamation of lives, and standard of living and overall ‘good’; it cannot be a guiding principle for the legal efficacy of the proposals.

The next theory — that of moral autonomy — derives from Kant. Thomas Hill, applying Kant’s deontological belief stated that:

[T]he autonomy of a moral legislator means that, in debating basic moral principles and values, a person ideally should not be moved by blind adherence to tradition or authority [and… ] must try not to give special weight to his or her particular preferences and personal attachments […]. In other words, at the level of deliberation about basic principles, morality requires impartial regard for all persons.’[11]

Essentially, he is prescribing that a moral legislator must put his subjectivity to one side and even place traditional law to one side, to reach an overall moral answer. There are two problems here when using this as persuasive authority for the scenario’s legality. The first is its over-prescription for morality as a guiding principle over law. Lord Coleridge advocated adherence to morality his famous judgment in Dudley & Stephens, but even still acknowledges that “law and morality are not the same, and many things may be immoral which are not necessarily illegal”. There are many reasons why this is the case, such as the need for legal certainty: a man must know in advance what is illegal. If he searches every corner of the law, does the act in confidence that it is lawful and is prosecuted for immorality, the very judgment would wrong him. The second problem is the requirement of putting subjectivity to one side in order to regard morality for all people. To this end, it appears an extension of utilitarianism, inhabiting the same problems aforementioned. Indeed, it is submitted that moral relativist accounts that regard process over finality, deal with a multiplicity of opinions far better than a moral theory that deduces the one ‘best fit’ moral solution.

For Kant, however, failing to respect a person’s autonomy would involve treating that individual merely as a means to another’s ends, disrespecting their own ineliminable value:

‘So act as to treat humanity, whether in thine own person or in that of any other, in every case as an end withal, never as means only.’[12]

This has a somewhat paradoxical application to the herd immunity camps. The process of accelerating the curve is clearly a means to an end, but it is doing so by taking heed of the autonomy of volunteers who wish to gain immunity. Would the volunteers be immorally taking their own best interests out of the equation — which was stipulated as a precondition for moral decision-making? Therein lies the problem of fixed accounts of morality: there are too many complex applications that subvert its principal meaning. It is unclear whether Kant would endorse the proposal, on my surface-level comprehension of his philosophy. Yet, I hazard to guess it would not be a simple tale of black and white. Thus, to interject natural law to solve the legality of our immunity camps is to leave it suspended in a void of paradox. Hence, why this is the amoral solution to quarantine.

Back down the Hierarchy

Okay so strip this all back to the start. Let’s take a more conservative road: one of vaccines. Human trials generally take about 12 to 18 months. Doesn’t matter if it works straight away or whether there are serious side effects to reconcile — to be certifiably safe to use on human beings, to pass through the hoops of safety regulation, it just takes that long. 12 more months of quarantine would dig far deeper into the irrevocable hole of recession we already find ourselves in. So, could we skip corners in the regulation of vaccines? Begin human testing well before usual? This seems far less dystopian, does it not? While it may be more palatable in the context of scientific testing, there is no defence of omission — the medical staff will be injecting alien substances into human beings, with the addition of what they hope to be a weakened version of COVID-19, and actively killing them if it goes wrong. The patient autonomy principles operate in a similar manner, but the semblance of informative consent is potentially masked further: they are intentionally diving into the unknown — the volunteers become the information for future test patients. And finally, necessity would operate in a very similar manner. So, is this a more moral option? Or simply one easier to reckon with given it would be behind closed doors?

An uneasy conclusion

You no doubt still have reservations. I do too. The idea is, after all an exercise in escaping the futility of quarantine by subverting our perceived ethics. We are dipping our toe in the pool of immorality and hoping to come out dry. But it is the murky legality and conflicting interpretations of the substance and place of morality that make this thought experiment an interesting study. The world is no stranger to ‘the greater good’ being a guiding principle that navigates into the same murky waters that this article has traversed. Take war, for example. One of the few absolute justificatory defences to murder, meaning it dismantles the illegality of the actus reus (rather than excusing the finding of murder) and does so without a test of reasonableness, nor of intention, nor of societal interests, nor of self-defence. A man will go back home with only his guilty conscience to bear down on him if, in fact, he has needlessly killed in a manner that most would regard as immoral. Luckily for him, war is a greater good (/s). Here, we constructed hypotheticals in a ‘war on covid-19’ — the trouble is, the enemy inhabits the righteous combatants. Can a man friendly fire on his comrade? What if his brother-in-arms is turning to the dark side? (what is the ‘dark’ side?).

I believe that the Supreme Court would rule against any conception of immunity camp wherein volunteers forego their right to treatment. In decisions of morality and public policy, the justices are rarely persuaded by technicalities, such as that required in our act versus omission discussion, that give our hypothetical the hope of legal efficacy. The real and genuine threat of recession would need to be far more tangible and immediate for any such drastic derogations from societal norms. I do not believe, however, that they would dismiss the arguments lightly. Some may find potency in arguments of autonomy, others an intrigue in the age-old debate of necessity. To my mind, still, they would be wary of allowing unprecedented times to pervert our laws into something we might abhor in hindsight. But remember the ‘war’ on terrorism: the USA and the UK began denigrating fundamental human rights in regard to suspected terrorists. The world applauded Bush’s commandeering efforts and cheered Parliament’s hard stance while Lord Hoffmann watched in horror: “The real threat to the life of the nation … comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for parliament to decide whether to give the terrorists such a victory.” And with that, I come to the uneasy conclusion that we have placed a foot on the first rung of dystopian law before, what’s to say a global pandemic can’t do the same?

About the Author

My name is Hugo Carter, a 2nd-year law student at Durham University. A graphic designer, rugby player and currently an anti-realist moral relativist. However you have viewed this dive into dystopian advocacy, I hope you continue to consider the crazy alternatives in life before coming to conclusions.

Note:

I was very sloppy with referencing but can give citations upon request.

[1] Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 1 AC 1430

[2] [2002] EWHC 429

[3] [1993] FL 93, at 113

[4] M Stauch, ‘Comment on Re B (Adult: Refusal of Medical Treatment) [2002] 2 All England Reports 449’ (2002) 28 J Med Ethics 232

[5] T Beauchamp, ‘Informed consent’ (1997) In R M Veatch, Medical Ethics. (2nd ed, Sudbury, Massachusetts: Jones and Bartlett), pp. 194

[6] R (Nicklinson) v Ministry of Justice [2014] UKSC 38

[7] Airedale NHS Trust v Bland [1993] Appeal Cases 789, at 866

[8] R v Woollin [1999] AC 82

[9] Ruhm CJ. Are recessions good for your health? Q J Econ. 2000;115:617–50.

[10] Tapia Granados JA, House JS, Ionides EL, Burgard SA, Schoeni RF. Individual joblessness, contextual unemployment, and mortality risk. Am J Epidemiol 2014;180:280–87

[11] Hill, 1991, p.45

[12] Kant, [1785], 1993

[13]Jeff King, ‘Rights and the Rule of Law in Third Way Constitutionalism’ (2015) 30 Constitutional Commentary 101, pp.71, referencing Adrian Vermeule’s ‘the nirvana fallacy’: A Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (Harvard University Press 2006) 10