Liberty, solidarity and the biopolitics of COVID-19

Two weeks ago, I came down with a respiratory infection that produced a high fever and a persistent, dry cough. Following the current official guidance, I went into isolation and my family entered quarantine.

My world contracted. Meals were left and collected from the bedroom door. Interaction with family members moved online. For a few days I could do little more than stare into space, gasp and shiver. The fever gave way only to fatigue. Viruses affect people differently; I want to say only that, even if you are not at a high risk of complications, you would do well to avoid getting this one.

There was one consoling thought on which I fixed during my temporary isolation. It was that, when I finally emerged, it would be with a circulatory system throbbing with antibodies against SARS-CoV-2, the virus that causes COVID-19, my presumptive gaoler. While my family languished in their second week of quarantine, I imagined myself tripping through the aisles of deserted shops, collecting food parcels for self-isolating friends and bringing succour to older neighbours without the fear or risk of infection. In more lucid moments I took steps to discover who might be researching passive antibody treatment and whether I might donate blood serum to the national effort, reasoning the growing army of convalescents might even provide a temporary prophylaxis for front line workers and those at risk from COVID-19 while we await the longer term development of a vaccine.

It is a bizarre feature of how the virus has wrong-footed the political response that COVID-19 became a ‘notifiable disease’ – one that medical practitioners are legally obliged to report to the authorities – only a short time before people showing symptoms were told emphatically to keep themselves to themselves. This means that for most people following the self-isolation guidance, the course of their disease will circumvent the health service entirely. As a consequence, most people who have been infected with SARS-CoV-2 will not have a laboratory confirmed diagnosis. Two types of tests provide this information: direct PCR tests to identify the presence of the viral RNA in active infections, and antibody tests that confirm that there has been an immune response to the virus, persisting for some time after the infection has cleared. Because this is a new virus, there is still much to discover about antibody persistence.

Having a confirmed diagnosis is prima facie valuable for individuals (so they know the individual risk of infection they run or might pose to others) and for public health surveillance (tracking the spread of the virus through the population). Direct tests are being channelled to critical cases and frontline responders. Serological tests are also promised: imminently, according to Sharon Peacock of PHE when she appeared before the House of Commons Science and Technology Select Committee on 25 March; some time later, following further testing to determine their sensitivity and specificity parameters, as Chris Whitty, the Chief Medical Officer, subsequently advised. But let’s imagine that an effective serological test can be made widely available soon. And let’s suppose that there will be a significant interval between this event and the time when an effective vaccine becomes universally available. (This seems, after all, to be the most likely scenario.) Several questions need to be anticipated. Most of these questions are fairly standard although it’s probably worth rehearsing some of the peculiar considerations relevant to the current situation. They include: Who should have access to the test? How should they get access to the test? Who should have access to the test results? And: What will be the social and political consequences of introducing the test?

Testing questions

A PCR test will reveal an active infection and the need to self-isolate. It will not tell you whether you were infected an hour after the test swab as taken, so it will need to be repeated continually. The object of a serological test is to confirm past infection and supposed current immunity. Given that this is a new virus, there is still much to discover about how long the antibodies persist. There are certainly people for whom this information would be of greater immediate value than others (frontline health care workers, for example). In an epidemic situation, there is probably almost no one to whom it is irrelevant or inappropriate to offer such a test, however. So, the question here is largely one of prioritisation.

It makes sense for test is to be provided to front line and essential workers first. These are fluid definitions in the present circumstances, as the virus reveals the critical paths of societal functioning. These tests will probably be provided in the context of employment. This has to be handled with care. Employees cannot be compelled to take a test but the test is clearly relevant to their duties. It could lead some to volunteer for certain tasks or create oppressive expectations. It may not, though, be used as a reason for failing to provide all staff with effective personal protective equipment, part of the employer’s duty of care for their employees.

For the public at large, Professor Peacock suggested that tests could be available ‘via Amazon’ or through outlets ‘like Boots the Chemist’ for a nominal charge. This seems extraordinary but is contextualised by the desperate efforts on all sides to keep non-critical COVID-19 cases away from front line health care workers. There are obvious risks with such approaches, though. One is that putting test kits on the market might lead to consumers hoarding and commoditising them; another is that lack of control over the test delivery will lead to a proportion of failures and false findings (not to mention the inherent risks of ‘kitchen table’ phlebotomy) and misunderstandings (for example, it will not identify those with early-stage infections prior to seroconversion, who have the greatest potential to spread the virus). Furthermore, over-the-counter or direct-to-consumer release of test kits will complicate the collection and verification of data for epidemiological purposes. Whether these limitations are acceptable or not will depend on, first, how the primary objective is framed and, secondly, what collateral benefits it might be worth the cost of securing. It matters, then, whether the testing is being provided for the private benefit of individuals or the benefit of the population. While these interests may overlap very substantially they do not always align.

One place in which potential conflicts between privacy and public interest arise is access to the test results. There is clearly an interest in an individual having information about their infection status since it has implications for their conduct. There is also a public interest in disease surveillance, from which we may gain understanding that will help to target interventions like vaccination and social distancing and learn better to respond to future epidemics (and the predicted ‘second peak’). There is therefore a good reason to feed test results into population studies. For this, it is useful to identify who has been tested (to avoid double counting, to locate them geographically or demographically, etc.). Additional, linked information about those people can further enrich the analysis but the need for this needs to be considered in relation to the privacy implications. While, in principle, all this information could be collected and aggregated in ways that protect the privacy of individuals, doing so requires infrastructure, resources and organisation. Is this necessary, however, in the circumstances? Is it ‘letting the best be the enemy of the good’? ‘Dirty’ data fed through some well-designed models might offer some value in the circumstances. (Perhaps encouraging voluntary reporting, perhaps through a mobile phone ‘app’ could be enough?)

The major privacy concern comes, however, not from well designed population studies but other people, companies, employers etc. having access individuals’ personal information. Information about one person’s status is valuable to another, too, since it can tell them whether that person presents a risk to them. Of course, people who have been tested might volunteer this information – there are many reasons why they would (for example to reassure or warn others). But they might also wish not to disclose it or even to dissemble. They might, for example, conceal a test result to get access to a face-to-face service. So we need to know what decisions might be based on the self-reported information and how that affects different kinds of liability. The information could also be stigmatising (for example, it might be used in conjunction with contract tracing to establish responsibility for a transmission path, one that may have resulted in an adverse outcome for someone). It cannot be ignored that, throughout the UK’s COVID-19 epidemic, there have been sporadic reports of low-level discrimination and hate crime.

Liberty, solidarity and biopolitics

The information from serological tests will empower those who have it in specific transactional situations. This power may be distributed symmetrically or asymmetrically. But the information will also partition society between those who have survived COVID-19 and those remain at risk from it. Some will no doubt begin to see the interests of these two groups as potentially at odds: if you have survived infection you may be eager to return to normal social intimacies; if you haven’t you should avoid these at all costs. As time moves on, the first cohort will inexorably grow and the second will shrink, possibly even to the point at which it becomes a minority. For the time being, we understand that the freedoms of all must be limited for the good of all. But, in time, democratic politics could favour restoring freedoms for the seropositive while continuing to restrict (or even further restricting) the freedoms of the seronegative. This is biopolitics: the inscription and control of human bodies and life processes by the exercise of organised power. After all, for how long must everyone’s freedoms be limited for the benefit of a small minority? Wouldn’t it be better to let most people get back to normal, let them crank the economy back into life?

At present we are living under a state of exception. The rhetoric of crisis is used to explain the suspension of pre-existing norms and the liberty ordinarily granted to individual rationality, to be replaced by the obligation to comply. Given how quickly and zealously such powers have been embraced by executive authorities it is more important than ever that serious political and judicial checks are maintained by Parliament and the Courts, and by the Supreme Court, in particular. However serious the threat to individual liberties during a state of exception may be we must, nevertheless, anticipate a new order of normality. But can we envisage what practices will return to the way they were before and what will have changed forever as a result of the coronavirus? Will we come, eventually, to appraise this as a transition rather than a period of exception? When freedoms return, how will they be exercised? In whose interest or at whose expense?[i]

We should not forget that the UK was socially and politically divided before the coronavirus made landfall. Insofar as the injunctions to which we are now subject are unprecedented, they constitute a potentially revealing experiment on British society. While the ‘adaptive suppression’ strategy (based on the critical care capacity of the NHS rather than keeping people from illness) seems rather like the hospitality offering of Procrustes, it may be that the modellers are rather more conscious of the behavioural dispositions and interests with which they must trade.

It is to be hoped – and there is much evidence to suggest – that the tragic experience of the coronavirus may countervail some of the forces of social division exposed by Brexit. Solidarity can be described as a willingness to carry costs to assist others in recognition of a shared feature, situation or interest.[ii] But there are two competing notions of solidarity in the current rhetoric. One references a solidarity that concretises out of social practices that are produced through encounters in the public sphere, in recognition of a common threat and in a determination to explore how it may be better faced down together. This kind of solidarity tends naturally towards cosmopolitanism. It is a particular cruelty of disease epidemics, though, that the first casualties are the traditional venues of the public sphere, casting us out into the divided neighbourhoods of social media. It is nevertheless possible that, despite aberrant examples of stigmatisation and selfishness, focal points for solidarity might be emerging (perhaps emblematised by public institutions like the NHS and through shared dependence on institutions and organisations that are belatedly discovered to provide a socially important function). There is a danger, though, that where social encounters are limited or controlled, appeals to solidarity find a focus in symbolic identity. This kind of solidarity is based not on extending inclusion through a shared situation but producing exclusion through a shared claim. We should listen carefully to the rhetoric from our political leaders, some of which has continued to reference tropes from the Brexit campaign. COVID-19 will be a test of society, not of nationality.

[i] The last Act of the UK Parliament has been to pass the Coronavirus Act 2020, which conferred sweeping powers on executive agencies to limit the freedoms of citizens – In The State of Exception, the political philosopher Giorgio Agamben suggests a tendency in all Western democracies, that ‘the declaration of the state of exception has been gradually replaced by an unprecedented generalization of the paradigm of security as the normal technique of government.’

[ii] In a descriptive ethics of ‘solidarity’ funded by the Nuffield Council, the Nuffield Foundation and the Arts and Humanities Research Council, Prainsack and Buyx characterise ‘solidarity’ at three levels: at an interpersonal level (‘Tier 1’) solidarity is found in ‘manifestations of a willingness to carry costs to assist others with whom a person recognises sameness or similarity in at least one relevant respect.’ (p.47); at the level of group practices (‘Tier 2’) it appears as ‘manifestations of a collective commitment to carry costs to assist others (who are all linked by means of a shared situation or cause)’ (p.48); at the level of contractual and legal norms (‘Tier 3’) it is codified ‘contractual or other legal norms’. We can easily identify manifestations on all three levels in the present situation. See (2011) Solidarity: reflections on an emerging concept in bioethics (London: Nuffield Council on Bioethics).