Discussion

Lately, there has been greater discussion of whether HCPs confronted with an ASI at their place of work should first seek to protect patients and then themselves.^{Reference Inaba, Eastman, Jacobs and Mattox15} This moral dilemma translates to whether the duty to care for (and possibly, to protect) patients can be outweighed by the right to protect one's self from harm. Some authors have suggested that the healthcare professional's responsibility is to first save themselves in an ASI although they are ultimately still responsible for the welfare of their patients-“We are expected not only to survive, but to turn right around, respond, and treat casualties.”^{Reference Palmer30} Iserson et al. addressed the moral obligations of EPs during a disaster, stating the following:

The bioethics literature has yet to provide clear guidance on the obligations in ASIs. To name a few, Deontology, which is the study of a person's duty or moral obligation, fails to provide specific answers or guidance for this concern. Virtue ethics demands moral characteristics, which although viewed as noble and admirable to some are not universally accepted prerequisites for all practitioners of medicine. Consequentialism, which is defined as the doctrine that the morality of an action is to be judged solely by its consequences, immediately loses as a moral source for answers because of the inherent uncertainty of ASIs. The Principlism movement brought forth by Beauchamp and Childress with its four principles, is patient-centric in nature, but inadequate in guiding physicians' moral choices in an ASI.³² Our literature search yielded some case-based (casuistry) discussions on ASIs, but these also fail to provide specific guidance for the HCP in resolving the moral dilemma. Lastly, analysis of Codes and Oaths of various governmental agencies and professional organizations reveals mostly self-protective recommendations, although many generally acknowledge an obligation to patients. We believe the following conclusion from Iserson et al. is most instructive, “However noble it seems to appeal to values, religion, virtues, professionalism, and ethical theory, fear, the ‘apprehensive feeling toward anything regarded as a source of danger,’ often determines people's actions in crises that encompass significant risk, such as during epidemics.”³³

Notwithstanding the above, most medical ethicists believe HCPs have a professional and moral duty to care for their patients. This is not only adopted in the AMA Code of Ethics, but in numerous subspecialty organizations as well.³⁴ Pellegrino suggests that HCPs have taken an oath, which demonstrates the gravity of their calling, and further purports, that the nature of illness, the non-proprietary character of medical knowledge, and the oath of fidelity to the patients' interest, all generate strong moral obligations.^{Reference Pellegrino35} However, it seems unlikely that an oath is a sufficient and legally binding contract for physicians or that it even generates a strong moral obligation. The generally accepted legal definition of an oath or its non-religious equivalent, an affirmation, is a “declaration made according to law, before a competent tribunal or officer, to tell the truth.”³⁶ However, there is no such tribunal or officer individually certifying physicians' oaths or affirmations in medical schools or residencies in the U.S. Additionally, the recitation of an oath has become more of a ceremonial rather than a substantive act in the career of medical practitioners. Hence, holding a physician to an oath is unlikely to persuade those unwilling or unable to put their lives in danger.

Inaba et al. stressed the conundrum faced by medical professionals who recognize a responsibility to patients and are also given directives to “Run” first: “matters are further complicated by the fact that healthcare professionals have a moral and ethical duty not to abandon their patients, which directly conflicts with the primary directive to run.”³⁷ Inaba et al. also pointed out some of the logistical issues with an ASI in a healthcare facility. Unlike a school or other non-healthcare venue, hospitals are filled with infirm and debilitated patients who may not be able to heed the FBI's recommended “Run, Hide, Fight” mantra. Inaba et al. suggest that healthcare institutions follow “Secure, Preserve, Fight” instead: “for professionals providing essential medical care to patients who cannot run, hide, or fight owing to their medical condition or ongoing life-sustaining therapy, a different set of responses should be considered — secure the location immediately, preserve the life of the patient and oneself, and fight only if necessary.”³⁸ This recommendation is instructive as there is no encouragement to escape when possible nor to necessarily put one's self in harm's way, but to either secure patient care areas to limit ingress or egress of a shooter or avoid such areas, and return when safe to render care to the infirm. Inaba et al.'s recommendation shares with others a soft-pedal of the responsibility to stay with patients who cannot “run”: they encourage that their recommended set of responsibilities should be “considered.” This recommendation matches a recent study on the response of healthcare students during an ASI: a “significant majority of interprofessional health care students…declared they would act to protect themselves and their patients during an active shooter event” and reject the provider-centric recommendation to “run” as a first option.^{Reference McKenzie39}

In our view, the latitude of Inaba et al.'s recommendation is appropriate. Ethics may prepare one to make good judgments about what one ought to do, but such preparation will remain too abstract and high-level for decisions in the heat of a moment defined by extreme uncertainty and ignorance (and of course, fear). It is enough for the healthcare professional to know that they will be making a judgment that attempts to balance their responsibilities to care for their patients in the moment with their responsibility to survive so that they can continue to care for patients in the future. Instead of HCPs, the first focus of responsibilities regarding ASIs rests on the organizations within which these situations are likely to arise. In order to secure an area during an ASI, appropriate institutional resources need to be dedicated to such a project, i.e. barrier entry systems and system designs limiting access points.^{Reference Braun40} Providing clear guidance about responsibilities to individuals who will be in positions of limited information and significant (and changing) risks will be difficult at best. The focus on organizations is important because the safety and wellbeing of patients and staff falls principally on the organization itself. In respecting the rights of persons to a safe setting, there is a duty to provide a safe environment, which is why most recommendations in the literature for the management of ASIs have tended to focus primarily on increased security and other protective measures. As further elucidated by Eckenwiler:

An ASI is not under the control of a physician, and although patients (and staff) have a right to safety, it is the institution, not the physician, who has a duty to provide for their safety.

Many authors have compared the ethics and obligations of HCPs in an ASI with other potentially life harming events to the HCP. Thirty years ago, substantive questions were raised about physician responsibilities to put themselves at risk in light of the HIV/AIDS crisis in the United States. Edmund Pellegrino's (1987) response to these questions emphasized and argued for the special obligations medical practitioners accept by becoming part of a medical profession. His arguments reflect the general view that HCPs, by becoming part of the profession, accept that they have responsibilities beyond what is required of the average person or citizen.⁴² In 2014, the spread of the Ebola virus brought these issues back to the surface once again, but in a situation with more substantial risks of harm and death. Specifically, healthcare workers treating patients sickened by Ebola were 21-32x more likely to contract the disease, and this was fatal 2/3 of the time per the WHO. These grave risks have explained why there was difficulty in recruiting physicians to help. The increased and mortal risk of Ebola demonstrated that the duty to care at the risk of personal harm was not interpreted by physicians as unmitigated. To explain this limit on what has been typically understood as a foundational responsibility of HCPs, Yakubu et al. call the obligation to care despite risks of harm to self a “professional” but not a “moral” obligation.^{Reference Yakubu43} Perhaps acknowledging that a professional obligation cannot in and of itself mandate a duty to treat given the risks of harm to the HCP. Whereas those HCPs who choose to help do so at the behest of their own personal moral code.

Historically (and again with the Ebola virus), infectious diseases provide the context of the question about HCPs responsibilities to help others in the face of threats to their personal well-being. And there are some valuable corollaries between an ASI and an infectious disease outbreak or epidemic. Both involve threats to well-being and, perhaps, life. From both situations, the practitioner could “run away” either figuratively or literally. And in both situations physicians and other medical practitioners are in a unique position to provide help and to protect the well-being of patients and others. However, the differences are more profound. Most notable are the differences between the unique positions of HCPs in cases of infectious disease and ASIs. In cases of infectious disease, the practitioner's unique position is due in large part to the specialized training they have received. Pellegrino highlights the significance of this training in establishing the responsibilities of physicians to help others even when it puts themselves at risk.⁴⁴ In ASIs, however, only the details of their circumstance put them in a unique position, i.e. that they work at that particular hospital on that particular day in that particular area under the siege of an active shooter. Additionally, in ASIs, the medical practitioner's expertise does nothing to put them in a unique position to help or protect. Although they are uniquely qualified to help after the damage has been done, their medical expertise does not provide special help in dealing with an active shooter. Importantly then, if HCPs have a responsibility to help and protect patients in ASIs, and this responsibility arises from their unique position, this same responsibility would apply to everyone else who happens to be in that hospital, on that day, and in that area.

Second, the uncertainties that accompany an infectious disease epidemic are less dynamic than those that accompany an ASI. Once an epidemic level spread of an infectious disease has been realized, the general nature of the disease, the disease vectors, and the range of harms to infected individuals have usually been identified. The degree of risk and the harms associated with that risk can be relatively well-defined, as they were for the Ebola Virus outbreak. In ASIs, however, no set of universal precautions will limit likely exposure to harm. The vectors of harm, the spread of that harm, and the risks to individuals remain unknown and unknowable within the situation. Indeed, even attempts to flee could take the practitioner into the line of fire rather than away from it.

Another possible comparison we can draw to ASIs is the expected response during a natural disaster. If an earthquake, fire, flood, or other similar disaster were to befall a hospital full of patients, there is no question that the hospital and HCPs would be obligated to protect patients from harm. As the bioethicist Bob Baker suggests, “The duty of care requires taking some non-medical risks to save one's patients, but not risks so great that they are likely to end in the deaths of both physician and patient.”⁴⁵ We agree, however in our view, such obligations arise from the HCPs presence during the event as well as their likely greater familiarity with protocols for evacuation at that particular hospital. Similarly, the insignificance of medical expertise in protecting patients in ASI and the dynamic uncertainty of ASIs categorizes these obligations less as obligations of HCPs per se, but as individuals who happen to be in a position to help in some more or less limited ways.

The dynamism of ASIs precludes an algorithm or even steps to guide HCPs and others in these situations. Further, the unimportance of medical expertise in addressing the threats of the situation lead us to conclude that the obligations of HCPs in ASIs are no different than the obligations of other individuals who happen to find themselves in this tragic circumstance.

Given that oftentimes ethics intersects with legal statutes and guidelines, an analysis of the legal obligations of HCPs during an ASI may be instructive. Legal precedents exist governing the duty of physicians to treat patients in everyday and extreme scenarios such as pandemics, which can help guide the duty of physicians in an ASI given the threat to a provider's safety that inherently exists in these situations.

In a 2010 Canadian Medical Association Journal article surrounding physicians' legal duty of care during a pandemic, Davies and Shaul state that “physicians owe a duty of care only to their existing patients, even in an emergency” because in that case a physician-patient relationship already exists. However, it can be presumed that in the case of an active shooter, HCPs will not just pick their own patients to save over others. In most western countries, in the event a physician comes to a person's aid during an emergency, a physician-patient relationship is created “and therefore [has] assumed the resulting liability.” However, in such cases liability of physicians is usually “limited to that of gross negligence or acts that are committed in bad faith,” which is consistent with the Public Readiness and Emergency Preparedness (PREP) Act in the United States. This act provides immunity from liability except for willful misconduct to those combating a public health emergency.^{Reference Davies and Shaul46} This is also consistent with the Good Samaritan doctrine that exists in all U.S. jurisdictions as a common law which shields healthcare providers who volunteer their services in an emergency situation from liability.^{Reference Rosenbaum, Harty and Sheer47} Current U.S. law “protects practitioners from being held to standards of conduct that are not reasonable under the circumstances, including severe constraints prevalent in disasters.”^{Reference Bensimon48} Therefore, if a physician came to the aid of a victim in an active shooter situation they would be establishing a physician-patient relationship thereby assuming liability; however given that the situation would be deemed an emergency or disaster scenario, it would follow that they would be liable only in the event of gross negligence or if acting in bad faith.

As was alluded to earlier, there are certain acceptable hazards with being an HCP and “when physicians join the healthcare profession, they implicitly accept a level of risk associated with the profession.”⁴⁹ It is reasonable to assume that physicians in a position in the front line of the hospital, such as emergency medicine, understand the possibility of caring for patients in a pandemic when joining the healthcare profession, but it is unlikely that same emergency physician would consider an ASI to be an acceptable hazard of their profession. That said, there are protections for employees from dangerous working environments under the Occupational Safety and Health Administration (OSHA). The Occupational Safety and Health Act of 1970 mandates that employers provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”⁵⁰ An employee does have the right to refuse work but only when the following conditions are met: 1) they have asked the employer to eliminate the danger and they have failed to do so; 2) the employee believes that an imminent danger exists; 3) a reasonable person would agree there is real danger; and 4) there is no time to request OSHA inspection.^{Reference Simonds and Sokol51} If an employee were to refuse work secondary to the dangerous condition, the employee “would be protected against subsequent discrimination.”⁵² Given the now federally mandated training and awareness that healthcare employees must obtain on ASIs, it would be hard to argue that an ASI is not considered a “recognizable hazard.” It is reasonable to conclude that existing Good Samaritan laws should provide legal protection to physicians who volunteer their services during an active shooter incident, but OSHA laws may protect those who deem the environment too unsafe to respond.