A recent article published by The Guardian revealed that people in the UK with learning disabilities have been issued with Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) notices should they fall ill with COVID-19. It was also recently revealed by the Office of National Statistics (ONS) and Mencap, one of the leading charities for people with learning disabilities, that COVID-19 has caused a disproportionate number of deaths among people with learning disabilities.

Whether or not these events are linked is up to the Care Quality Commission (CQC) to decide, however this situation and the events leading up to it demonstrate with clarity that which Michel Foucault and Giorgio Agamben argued last century. We are living in an era of biopolitics, the homines sacri have been chosen.

Prior to attracting controversy due to the somewhat-sceptical stance he took towards Italy’s lockdown early in the pandemic, Agamben attained prominence thanks to his philosophical work concerning biopolitics. First theorised by Foucault, biopolitics deals with, as one might guess, the intersection between life and politics. As Foucault wrote in The History of Sexuality, biopolitics gives the state the power to “foster life or disallow it to the point of death” (1978, p. 139). Agamben sought to expand upon Foucault’s project, exploring ancient customs and modern states to demonstrate that biopolitics has always been present in society and it is Agamben’s work that informs this essay.

One of the concepts described by Agamben is ‘the sacred man’, translated from the Latin homo sacer. Besides being the title of Agamben’s long-running philosophical project and its first volume, homo sacer was an archaic figure in Ancient Roman law. So archaic, in fact, that no surviving examples of anybody being declared sacred exist, only references to the law.

To be declared sacred was a death sentence, yet homo sacer could not be sacrificed nor executed. Instead, whoever killed homo sacer would not be punished for committing murder. To exist in this manner, outside the juridical and religious spheres of control, is to become ‘bare life’. For a more in depth exploration of these concepts, check out the essay I’ve written here.

Skipping forward several centuries to contemporary society, Agamben explores the question of euthanasia and how it came to be embraced by the Nazi regime. Of particular note is Karl Binding’s essay which explores the concept of ‘life unworthy of being lived’ and whether or not it should be legally permissible to destroy such lives. Implicit in such a question is the idea that certain lives have no value and as such their deaths should not be classed as a homicide. Such logic, as Agamben points out, parallels that of deeming somebody ‘sacred’:

It is as if every valorization and every “politicization” of life … necessarily implies a new decision concerning the threshold beyond which life ceases to be politically relevant, becomes only “sacred life”, and can as such be eliminated without punishment. Every society sets this limit; every society-even the most modern-decides who its “sacred men” will be.

– Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (1998) p. 139

This is a key hallmark of modern, biopolitical society. The potential to be deemed ‘sacred’ now exists within every citizen, and those in charge have the ability to dictate which lives are valuable and which are not.

The CQC is yet to release the results of its investigation into how DNACPR notices have been issued during the pandemic, however late last year it did release an interim report.

Among other things, the report details best practices around DNACPR notices. As the name suggests, DNACPR notices are instructions to not issue cardiopulmonary resuscitation in scenarios where it is likely to do more harm than good or is likely ineffectual. Such notices should be issued with informed consent and in consultation with the most senior clinician caring for said person. The report also makes it clear that such notices only apply to CPR and not other forms of treatment.

The report goes on to explain that per the Equality Act 2010 it is unlawful to issue a DNACPR notice as part of a blanket policy based on protected characteristics such as age or disability. Even more importantly, if a DNACPR decision is issued in a manner that does not protect a person’s right to life such a decision is likely in breach of the European Convention on Human Rights, which in spite of Brexit still applies.

The CQC cites specific examples where DNACPR notices had been misapplied. In some cases, patients and their families were not informed that the notice had been issued, and in others questions were raised over whether or not the person was capable of giving informed consent. In other cases, blanket DNACPR notices had been issued to residents in care homes.

Perhaps even more concerning, in some cases a DNACPR notice led to the person not receiving adequate treatment, such as doctors or ambulances not being called in emergencies and leaving care home staff to undertake tasks they were not trained to do. In some cases, this was due to confusion over the meaning of DNACPR notices however in others the lack of treatment was deliberate. Some patients even reported feeling coerced into agreements that would restrict their access to care should they contract COVD-19. The report concludes that such applications of DNACPR notices and other agreements, targeted at older people and those with disabilities, are likely to have resulted in avoidable deaths.

The complaints detailed in the report refer to the period of March 2020 to September 2020. During this period, on three separate occasions was the issue of DNACPR notices and their acceptable use raised by the CQC and the NHS. The claims published in the Guardian refer to January 2021, which suggests that not only is the issue ongoing, but reflects broader societal attitudes towards people with disabilities, learning or otherwise. Namely, that their lives are less politically valuable and thus, in Agamben’s terms, sacred.

Reading both the Guardian article and the CQC report, it is easy to become incensed. Especially, as the CQC report highlights, that even during a pandemic clinicians have a positive duty of care to protect lives. A duty of care which, given the lack of clarity and understanding surrounding DNACPR notices, went unfulfilled.

Looking at the situation more broadly, the issue becomes less cut-and-dried. During much of the pandemic, the dominant public health messaging has centred on the “Stay home, protect the NHS, Save Lives”. This, the CQC report notes, caused a degree of confusion with those subject to the DNACPR and equivalent agreements either unaware that such measures were inappropriate or left feeling like they could not contest the issue.

This urging to ‘protect the NHS’ is not without a basis in reality, as recent weeks have demonstrated. During the final weeks of January this year, nearly 10% of NHS trusts had no spare critical care beds and that nearly 2000 more beds were needed this year than at any point in the past five years, as reported by The Guardian. The Independent has also reported that most of the Nightingale hospitals, designed to be overflow facilities for Covid patients, have remained empty due to a lack of staff.

With this in mind, it is understandable that a certain evaluation of priorities needs to take place. Given how scarce resources are, not everyone can be treated properly and the question of who to treat can be a difficult one to answer. Yet, this alone does not demonstrate the extent of the problem.

The scarcity of beds and staff is nothing new, however it has been exacerbated by the need for Covid patients to be placed on mechanical ventilation, per The Guardian. Recent events are simply another chapter in a long saga which has seen the NHS struggling for the better part of a decade.

As of 2018, the UK spends nearly 30% of its public expenditure on health services, which amounts to hundreds of billions each year. While the amount steadily increases, it still falls short of the 4% increase required to maintain its level of service as of 2019. The NHS has also struggled since the financial crisis, during which its budget was slashed and more recently training bursaries for nurses were cut, leading to fewer roles being filled.

This has culminated in major staff shortages, while the demand for services increases due to an aging population among other things. Speciality areas such as care for people with learning disabilities have been some of the worst-hit, with the numbers of specialist nurses dropping by 40% between 2010 and 2018.

It is here that the biopolitics at play come into sharp relief. Every decision to cut health funding and services necessitates a judgement on the relative value of peoples’ lives. The threshold between life worthy and unworthy of being lived, between life inside and outside the political-juridical sphere is constantly being redrawn. The events also hearken back to Foucault’s initial description of biopolitics, the inappropriate application of DNACPR notices creating the conditions to disallow certain peoples’ lives to the point of death.

While this is a far cry from consciously enacting a euthanasia program the British state has, through various policies, decided that its ‘sacred’ people are the elderly and those living with disabilities. While some might shrug it off as other peoples’ problems, it might be good to remember that we will all grow old and some of us may have children with learning or other disabilities. As the song goes: if you tolerate this, your children will be next.

The pandemic was not the sole factor in the adoption of policies such as the inappropriate DNACPR notices and their unfortunate consequences as noted by the CQC. A decade of poor funding courtesy of the Conservative Party created the conditions that has led to this point. What the Covid pandemic has done is make the biopolitical logic more visible.

Agamben, Giorgio 1998 Homo Sacer: Sovereign power and bare life. Translated by D. Heller-Roazen. Stanford, Calif: Stanford University Press.

Foucault, Michel 1978 ‘Right of Death and Power over Life’, in The History of Sexuality. 1st American ed. New York: Pantheon Books.