Dr Oliver Künzler

Wenger Plattner, LifeScience Group, Zürich

oliver.kuenzler@wenger-plattner.ch

Introduction

This paper deals with the question of how the Covid-19 vaccination was prioritised in Switzerland and how this distribution can be legally and ethically justified.

National vaccination regimen in Switzerland

The Swiss Federal Office of Public Health (FOPH) publishes recommendations and guidelines on vaccinations to fight communicable diseases (art. 20 and art. 9 public health law in Switzerland concerning epidemic control SR 818.101). Based on this competence, the FOPH published a national vaccination regimen.^[1] This regimen deals with the shortage of vaccines during its roll-out and establishes priorities amongst the population. This categorises people into groups based on their vulnerability to Covid-19. Since the government’s actions are bound by the guaranteed human rights, it must determine a righteous distribution amongst its population. The vaccination regimen divides the population into five priority groups:

1. People at particular risk (excluding pregnant women), which includes people over 65, as well as people with chronic diseases and pre-existing conditions;
2. Health care workers with patient contact and caregivers of people at particular risk;
3. Close contacts (household members) of people at particular risk;
4. People in community facilities with an increased risk of infection and outbreaks (eg, homes for the disabled) and their personnel;
5. All other adults who wish to be vaccinated.

In case of severe scarcity, the regimen allows the following subdivision, accounting for age-based risk (and comorbidities, if applicable), of the first group: Adults aged ≥ 75 years, then (if necessary) first persons with comorbidities and, finally, adults aged 65 – 74 years.

Legal and ethical reflections

As there are not enough vaccine doses to vaccinate all target groups immediately, the prioritisation of target groups is needed, depending on the number of doses available. In its vaccination regimen, the FOPH has been guided by the following goals^[2]:

1. Reducing cases of the disease, especially severe and fatal Covid-19 cases;
2. Ensuring health care provision; and
3. Reducing negative health, psychological, social and economic impacts of the Covid-19 pandemic.

The prioritisation presented above follows the recommendations of the WHO^[3]. These, in turn, are based on guidelines of recognised ethical groups^[4]:

Emanuel et al. states four fundamental values: maximising the benefits produced by scare resources, treating people equally, promoting and rewarding instrumental value, and giving priority to the worst-off.^[5]

But no single value alone is sufficient to determine which patients should receive scarce resources. In the case of vaccinations during the Covid-19 pandemic, these four values can be specified as: maximise benefits; prioritise health workers; do not allocate on a first-come, first-served basis; be responsive to evidence and recognise research participation.^[6]

Maximising benefits means that people who are sick but could recover if treated are given priority over those who are unlikely to recover even if treated and those who are likely to recover without treatment. In the end, priority should be given to those who are worst off, because they are at risk of dying young and not having a full life. The priority should be based on saving the most lives and providing years of life.^[7]

Nevertheless, vaccines should primarily be given to front-line health care workers and others who work closely with vulnerable patients. Especially those, who are difficult to replace. These people are essential to pandemic response. If they are missing, not only patients with Covid-19 will suffer from greater mortality and years of life.^[8]

Under the point of human well-being, which also includes maximising benefits and prioritising health workers, the goal of avoiding social and economic disruption should also be mentioned.^[9]

Patients in comparable conditions and circumstances should be randomly selected, such as a lottery, rather than at a first-come, first-served basis. A first-come, first-served basis would benefit patients living nearer to health facilities.^[10]

As Switzerland is a small country, there are fewer problems with the physical journey to the health facilities, than with the registration process for the vaccination. This varies from canton to canton, but is mainly done online, which is difficult for some people. Since there is a lot of time pressure during the pandemic, a random selection is also more efficient than a finer-grained prognostic judgement within a group of roughly similar patients.^[11]

It is important that the vaccination regimen responds to changing scientific evidence.^[12] Similar to health workers, should people who also participate in Covid-19 research receive some priority for Covid-19 vaccines?^[13] The individual recommendations must then be evaluated and weighed against each other. This must be done transparently so that society believes in their justice.

In case of a pandemic, the FOPH states the principle of equality, which is regarded as the highest maxim between individuals, and the utilitarianism principle (maximising of the overall benefit) as the main principals. The starting point is the principle of equality, which is limited by the scarce sources in favour of the principle of utilitarianism.^[14]

Critical evaluation

When the FOPH issued the vaccination regimen approach, in which the principle of equality stands as core value and the utilitarian principle may be applied during periods of crisis, is recognisable.

After the vaccine’s approval, it was distributed to people in the first group (people at particular risk). Due to the extreme scarcity shortly after the roll-out, the first group was subdivided, and adults aged ≥ 75 years were given the highest priority. A consequence of the relatively high case fatality rate amongst this demographic group.^[15]

This approach can be questioned at least in some cases. Mainly if giving the highest prioritisation to the eldest should be denied to those who are left with extremely low life expectancy (eg, terminate an ill patient, who passes away a couple of weeks after the vaccination due to the pre-existing sickness). Another patient with a higher life expectancy might die due to Covid-19, after having been denied a prioritised access to the vaccine. This raises the question if prioritising an extremely sick old person is an inefficient approach to issue the vaccine. Especially in times of crisis and extreme scarcity. A study by Simmy Grover et al also showed, that people tend to prefer the utilitarian instead of the egalitarian principle during times of crisis.^[16] Which leads to the question: if the FOPH should have implemented the utilitarian principle more prominently in its vaccination regimen? All in all, the balancing between saving more lives against saving more years of life is a very delicate task.

To launch this discussion would be an unpopular political task. It would include weighing the worth of people’s lives more dominantly and defining who should be denied the prioritised access in order to use vaccines on people who might have a higher life expectancy left or are crucial to medical infrastructure. People in general tend to think, on an ethical basis, that a life should be saved no matter the cost. But for an efficient distribution of the vaccine this principle should be limited in times of crisis.

The vaccination regimen of the FOPH must rely on democratic legitimation. The FOPH is part of the federal administration and acts on behalf of the Federal Council of Switzerland. The regimen is an act that relies on the competence granted by the public health law in Switzerland concerning epidemic control. Considering its big role during a pandemic, it could be asked, if this act should rather be a law, and thus be voted on by the national parliament.