Tuesday 19 May 2020

Lord Sumption ~ the lockdown should be "entirely voluntary"

The NHS belongs to the people. It is there to improve our health and wellbeing, supporting us to keep mentally and physically well, to get better when we are ill and, when we cannot fully recover, to stay as well as we can to the end of our lives - NHS Constitution for England

The Sunday Times 17 May 2020 (£) published an article by Lord Sumption - a former Justice of the UK Supreme Court with the heading "Set us free from lockdown, ministers, and stop covering your backs."  He also gave a TV Interview - HERE - in which he advocated that the lockdown should become entirely voluntary. "It is up to us, not the State, to decide what risks we are going to take with our own bodies."

Lord Sumption's view:

Sumption states that - "The lockdown was originally
justified as a temporary measure to spread coronavirus infections over a longer period. This was to allow time for the NHS’s critical care capacity to catch up. Hence the slogan “Protect the NHS”.

This, he argues, "was never much of a rationale" because the "NHS is there to protect us, not the other way round. How could its unpreparedness possibly justify depriving the entire UK population of its liberty, pushing us into the worst recession since the early 18th century, destroying millions of jobs and hundreds of thousands of businesses, piling up public and private debt on a crippling scale and undermining the education of our children?"

He then states that the NHS is no longer at risk. This is partly "because the government has done an outstanding job in increasing intensive care capacity, and partly because the threat to the NHS was always overstated."

The lockdown is now only about shielding us from the risk of infection which "raises serious questions about our relationship with the state. It is our business, not the state’s, to say what risks we will take with our own health. We are not fools or children needing to be told by ministers what is good for us, and forced by police officers to do it."

"The usual answer is that by going out and about we may infect other people. But that no longer works as an excuse for coercion. Those who do not want to run the risk of being infected can isolate themselves voluntarily. They will be no worse off than they are under the current compulsory regime. The rest of us can then get on with our lives."

The article then asks how the government ended up in this unsustainable position and answers the question  by saying - " ... having originally embarked on a sensible policy that would have avoided a lockdown, it did a 180-degree turn on the afternoon of March 23, without thinking of the wider implications. It was in a blind panic provoked by Professor Neil Ferguson’s “reasonable worst case” of 510,000 deaths. Quite apart from the fact that a worst case is by definition an unlikely one, few scientists now support this figure. But it has had disastrous consequences. It pushed the government into making a decision that mocks our humanity and treats us all as mere tools of government policy."

Furthermore, Sumption says that the government gave the impression that coronavirus was dangerous for everyone. "It is not. It attacks people with serious vulnerabilities. By most estimates, between 0.5% and 0.75% of infected persons die. Of those, 87% are over 65 and at least 90% have multiple causes only one of which is Covid-19, according to the Office for National Statistics. The death rate for those under 50 is tiny. For the overwhelming majority, the symptoms are mild."

In conclusion, Sumption says that in the Prime Minister, we see a "man imprisoned by his own rhetoric and the logic of his past mistakes." Sumption's view is that the lockdown is "now all about protecting politicians’ backs. They are not wicked men, just timid ones, terrified of being blamed for deaths on their watch. But it is a wicked thing that they are doing."

Government - early policy:

Three points immediately stand out.

1. "What was the goverment's "sensible policy" that would have avoided a lockdown." Discussion about the government's position in March 2020 may be seen at The Atlantic 16 March and also at The Lancet 28 March 2020 - "Covid-19 and the NHS - "a national scandal"

On 11 March, 50,000 people attended Anfield Stadium to watch Liverpool FC v Atletico Madrid.

13 March, the Cheltenham Gold Cup took place with the result that Covid was spread.

Whatever the "sensible policy" in early March, it did not include preventing such well-attended events. 

20 March, the Prime Minister spoke about turning the tide within 3 months by way of "testing, new medicines and with new digital technology."

23 March, the Prime Minister addressed the nation with the Stay at Home message.

2. Was the threat to the NHS "always overstated."  I will leave this to one side other than to note that there was a threat recognised both internationally and nationally by health professionals. Many of them put their own health at risk and a considerable number have succumbed to the virus and died. In my opinion, they were true to the spirit of the NHS as expressed in the opening words of its consitution.

3. Sumption expressed on TV the view that those who wish to self-isolate can do so and leave the rest of us to get on with our lives. Self-isolation is not an option available to everyone.  For instance, how many workers can afford to give up their employment and become intentionally unemployed?

Rationale for the Regulations:

A debate to approve the lockdown Regulations was held in the House of Commons on 4 May. The Minister of State at the Department for Health and Social Care (Mr Edward Argar MP) stated that - "The country has been, and still is, engaged in a national effort to beat coronavirus covid-19. Delivering a strategy designed to ensure that our NHS is protected, with capacity at all times exceeding the demand for intensive care beds for coronavirus patients, flattening the peak, and driving down the rate of transmission of disease and the number of infections, alongside the work to significantly expand NHS capacity, have all helped to protect our NHS and to save lives." [My emphasis].

Protecting critical care within the NHS was therefore a major concern within government. That has to be seen in the context of the considerable uncertainty which existed in March 2020 about factors such as the likely number of coronavirus infections and the severity of such infections. This uncertainty is revealed in documents released by SAGE - see, for example, SPIL-M-O Consensus view (20 March 2020) which refers to "huge uncertainty around the current epidemiological picture ..."  In those circumstances, it could not have been sensibly assumed that the NHS would have coped adequately without additional steps being taken to enhance capacity. It may also be that the protection of the NHS prevented (or at least minimised) the need for doctors to be forced to take many difficult decisions about which patient to treat - see The Telegraph 22 March 2020 - Official guidance for doctors to decide which coronavirus patients get critical care

The lockdown:

Details of the lockdown Regulations (which vary across the four-nations of the UK) need not be discussed here. The economic damage resulting from the lockdown is undeniable - see Resolution Foundation 14 May. Lockdown has also had consequences well beyond the field of economics - see Office for National Statistics 16 April.

The Regulations could have been more severe and enforcement powers could have been made more draconian. The government appears to have tried to strike a proportionate response to the pandemic and has already reduced the severity of the Regulations. A plan for recovery has been published - Our plan to rebuild: The UK Government's COVID-19 recovery strategy.  It remains to be seen whether the relaxation of the lockdown (to allow some to return to work) will result in a rise in coronavirus infection - previous post 16 May 2020.

The view that we are individually free to decide what to do "with our own bodies" appears to overlook any notion of responsibility to others. It further overlooks the fact that individuals do not have available to them the complete information required to make informed and responsible decisions about how, in the face of potential infection, they should deal with others with whom they have to interact - e.g. within the family, at work or in social settings.

On the whole the lockdown, hard as it is, has been generally accepted by most of the people as being necessary to prevent even greater loss of life from the virus. The lockdown has been broadly in line with action taken by many other nations and the government has set out a cautious plan to relax restrictions. It also appears that the general public continue to support the lockdown. The BBC 7 May reported that - "Other countries, notably the US, have seen very public rebellions against the restrictions, but here the call to stay home to protect the NHS and save lives seems to have been greeted with very widespread and consistent support."

None of this is to say that the government can escape fair criticism in areas such as the provision of personal protective equipment (PPE), the situation in care homes (BBC News 18 May), and the ability to provide testing and tracing where the UK has lagged behind the action taken by other States such as Germany.  Doubtless the many criticisms will come to be catalogued and may yet have to be answered for either in Parliament, at an inquiry, or via the ballot box.

A lockdown prolonged for (say) several further months will increase the economic and social pain and could be made all the worse as other nations restart their economic activity. That raises difficult questions about the length of time for which the lockdown is sustainable economically and for how long the public will support restrictions on their liberty. It may be that some restrictions will have to apply until a suitable vaccine becomes available and that will have to be combined with greater testing and tracing of contacts.

Lord Sumption puts his case with his characteristic eloquence but the simple removal of the lockdown would not be a wise move and the UK would become out of kilter with other nations which, in itself, could have adverse economic consequences. Although there is unhappiness with several aspects of the government's handling of the crisis, there is public recognition that the pandemic is exceptionally difficult to deal with and the lockdown measures are, up to now, generally supported across the population.

Sumption's view that  the lockdown is "now all about protecting politicians’ backs" is a purely political opinion and it is questionable whether it is borne out by the available evidence. Also, it is not a "wicked thing" to continue with a modified lockdown which seeks to contain spread of the virus whilst recognising the need for some resumption of further economic activity.

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1. The Spectator - Jonathan Sumption is dangerously wrong about lockdown

2. A number of articles have been published which will be of interest for those those who wish to see matters in either ethical or jurisprudential terms. For example, The Hindu - Moral dilemmas during a pandemic and Economic Times India - How coronavirus is shaking up the moral universe where response to the pandemic is considered in the light of the theories of John Rawls, the Utilitarian School etc.

3. Medical ethics -

The Guardian 14 March 2020 - Coronavirus may force UK doctors to decide who they'll save

The Telegraph 22 March 2020 - Revealed: official guidance for doctors to decide which coronavirus patients get critical care

Background links - for reference:

The report of 17 March by Imperial college London which appears to have pushed the government toward restrictive action to contain and combat the virus - Imperial researchers model likely impact of public health measures and see their COVID-19 Reports.

On 30 January 2020, the World Health Organization (WHO) agreed that the criteria were met for a Public Health Emergency of International Concern (PHEIC) and issued advice to both China (where the virsu originated) and other nations - second WHO Emergency Committee statement

On 10 February - in the UK the Secretary of State for Health used powers in the Public Health (Control of Disease) Act 1984 to make the first regulations related to coronavirus - The Health Protection (Coronavirus) Regulations 2020 (S.I. 2020/129).  Those Regulations were later revoked and replaced by the Coronavirus Act 2020 - see previous post.

The 10 February Regulations are an early indication of the fact that coronavirus was viewed within government as a serious threat.

Further Regulations were not made until around 6 weeks later when, on 26 March, the government made The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

The 6 week period resulted in criticism from many other countries - The Guardian 7 May 2020.

Those Regulations have been amended on two occasions and the details are set out in this previous post.  The second set of amendments (in force from 13 May) made the "lockdown" less severe as the government proceeded to seek a return to work for, at least, those unable to work from home.

For a time, the government did not publish the membership of the Scientific Advisory Group for Emergencies (SAGE) and did not publish papers. This is not the case today - see  UK Government: Scientific Advisory Group for Emergencies (SAGE)

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