The Ethics of Lockdown: Transparency, Accountability and Community Involvement

Andrea Mulligan, Trinity College Dublin

 

Ireland is emerging from lockdown and gradually returning to something like normality. While COVID-19 claimed many lives in Ireland, we did not face the horrors of ventilator shortages or refrigerator trucks of cadavers, as others did. For the most part, Ireland and the Irish did a good job, the lockdown worked. But COVID-19 is not gone and we may well face a second wave. Now is the time to reflect on the lockdown, on what we did well and what could have been better. This blog post offers some initial reflections on the lockdown from an ethical perspective. For most of us, lockdowns were new and unfamiliar territory, but they have a long and varied history. The first recorded lockdowns or quarantines were imposed by Italian city states in response to the Black Death. Quarantines have always been legally and ethically contested, involving as they do significant limitations on individual rights. Typically, they were resisted by the merchant classes, who saw them as posing unacceptable economic threats. In the modern world, the ethics of lockdown have been debated in the context of outbreaks such as SARS, MERS and Ebola, generating a rich body of scholarship. In response to Ebola, the World Health Organisation issued ‘Guidance For Managing Ethical Issues In Infectious Disease Outbreaks’ in 2016, an invaluable tool for evaluating the ethics of pandemic response.

 

The WHO emphasises that maintaining public trust is essential for both ethical and pragmatic reasons: it is not possible to confine infectious disease without widespread public support. Accordingly, a core requirement is community involvement, which encompasses the principles of transparency and accountability. On the whole, transparency was a priority during the Irish lockdown, with the Department of Health holding nightly briefings where the number of deaths and infections was reported and policy changes announced, followed by a Q&A with the media. The pandemic hit at a challenging time from an accountability perspective: during the tenure of a caretaker government. (Discussed by David Kenny and Conor Casey.) Unfortunate as this scenario was, it caused fewer problems than one might have expected, probably because of the high degree of consensus that existed around key policy decisions. Ideally, a caretaker administration will not be in charge when the next crisis phase arrives, but the real lesson is that it could be, and that pandemic preparedness structures must take account of that possibility.  

 

A central plank of the pandemic response was the appointment of the National Public Health Emergency Team (NPHET) and a number of subgroups, who provided expert advice to cabinet and assumed a vital decision-making role in the pandemic. Some have raised democratic concerns about the influence of NPHET, querying the extent to which cabinet was overly deferential to its recommendations. Undoubtedly, NPHET was hugely influential, but perhaps what is more remarkable is the extent to which members of NPHET and its subgroups assumed a public role in terms of communicating with the public. The most prominent communicator was Dr Tony Holohan, Chief Medical Officer and Chair of NPHET, who delivered the vast majority of evening briefings. Other scientists and medics regularly appeared in public to deliver information and take questions, both at Department of Health briefings and on mainstream news media. Many have become household names, their voices as familiar on the Irish airwaves as some long-established broadcasters. So, while one might raise questions about the influence of NPHET from a democratic perspective, on another view there was a remarkably high degree of both accountability and transparency insofar as scientific and medical expertise was concerned.  The Irish public not only knew what advice was influencing cabinet, but knew precisely who gave that advice and received regular updates from the experts themselves.

 

Transparency and accountability comprise one side of community involvement, but the WHO also emphasises the importance of an openness to diverse perspectives. Communication efforts should, it recommends, be “designed to facilitate a genuine two-way dialogue, rather than as merely a means to announce decisions that have already been made.” Decision makers should be willing to recognise and debate alternatives to the approach they have adopted, and should actively engage with stakeholders who disagree with the policies in place. This guidance recalls what has been described as “Decide-Announce-Defend” models of public decision-making, whereby decisions are made without stakeholder involvement and robustly defended against even valid criticisms. While community involvement is great in principle, pandemics present special challenges for effective public engagement. Reema Patel has identified the paradox of public engagement in a pandemic: pandemic decision-making must take place very rapidly to be effective, thereby making public engagement highly impractical, yet public engagement is more important than ever during a pandemic.

 

The Irish pandemic response fared less well in terms of two-way dialogue than it did on transparency and accountability. It was usually clear what the current policy was, but it was less clear that the government was willing to entertain a diversity of viewpoints on whether that policy should change. For the most part this was unproblematic, as the lockdown restrictions attracted high levels of public support and compliance. One example of a measure that did provoke controversy, however, was the recommendation that the over-70s “cocoon” - including a period of 5 weeks when they were requested not to leave their homes, even for exercise. While COVID-19 is highly dangerous for older people, the scientific basis for prohibiting solitary outdoor exercise was never clear, nor was it apparent that this was the least restrictive means by which the over-70s could be protected - thereby breaching other important principles of lockdown ethics. There was no formal mechanism whereby the public could raise concerns about a policy which many considered disproportionate.

 

On the whole, the Irish lockdown maintained high ethical standards in very difficult conditions. As we look towards a possible second wave of COVID-19 we must ensure that our commendable record on transparency and accountability is complemented by equally effective public engagement.

Andrea Mulligan is an assistant professor in the Law School, Trinity College Dublin and a member of the COVID-19 Law and Human Rights Observatory.

Suggested citation: Andrea Mulligan, 'The Ethics of Lockdown: Transparency, Accountability and Community Involvement' COVID-19 Law and Human Rights Observatory (15 July 2020) http://tcdlaw.blogspot.com/2020/07/the-ethics-of-lockdown-transparency.html

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