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Empiricism and Rights Justify the Allocation of Health Care Resources to Persons with Disorders of Consciousness

The unprecedented challenges to accessing health care in the face of the COVID-19 pandemic have illuminated the longstanding debate around allocation of resources to persons with disorders of consciousness (DoC) caused by acquired brain injury. Proponents argue that rights of persons with DoC should be retained unless these rights erode those of others who are equally deserving. Opponents contend that because it is not possible to clearly discern whether persons with DoC can enjoy an acceptable quality of life, it is unjust to offer high-acuity care to all persons with DoC as many cannot perceive benefit, and others who can benefit will be deprived. The crux of the argument is that the loss of sentience leads to uncertain moral status and less claim to limited high-cost resources. Current practice appears to align most closely with the opponents’ view. Epidemiologic studies of persons who survive moderate to severe traumatic brain injury (TBI) suggest that approximately one in five receive any inpatient rehabilitation (Corrigan et al. 2012). Moreover, despite the complexity and dynamics of the long-term sequelae, authorization requests for reevaluation and supportive treatments often result in payor denials. Peterson and colleagues (2021) appeal to the concept of expected prospective benefit to help reconcile the problems of uncertain moral status and costeffectiveness. This concept derives from prospect theory, which is employed when assessing the utility of a decision that aims to represent the best interests of a group, but must be made under conditions of risk and uncertainty (Peterson, Aas, and Wasserman). As proposed by Peterson et al., the outcome of interest is the net benefit attained by the DoC population when available health care resources are provided rather than withheld. The determination of prospective benefit is based on the anticipated proportion of favorable to unfavorable outcomes among all persons with DoC—not on the outcome of a single individual. The decision to commit scarce resources is morally-justified if the population demonstrates benefit. We endorse Peterson et al.’s prospective benefit proposal and provide corroborative empirical evidence in support of this approach by juxtaposing data on early withdrawal of life-sustaining treatment (WLST), the most pronounced form of resource constraint, against recent findings from long-term natural history studies of persons with prolonged DoC (i.e. 1month). We also supplement the prospective benefit framework by applying a complementary normative and legal-rights-based appeal that offers this vulnerable population enhanced protection against nihilism, marginalization and neglect.