Patient Prioritisation in Intensive Care: Ethics and Legal Liability at the Time of the Pandemic

Keywords: Patient prioritisation, triage, healthcare rationing, health law, legal liability, medical ethics, COVID-19 pandemic

Abstract: Many countries experienced a lack of health capacities during the COVID-19 pandemic. In reaction to these events, expert discussions arose across the continents on the legal and ethical rules of patient prioritisation (triage) at times of crisis. In the Czech Republic, two expert recommendations were issued in 2020, which lead to conflicting conclusions on some important issues. Because of its complexity and sensitivity, the reflection of patient triage in law and ethics is often inconsistent or vague. As a result, there are not only doubts about the very practical relevance of medical ethics but also, and above all, a high level of legal uncertainty, which further complicates the work of health professionals. The paper presents the crisis patient prioritisation from the basic ethical and legal perspectives. It first defines the significance and possible application of the most widespread ethical theories. Then, it addresses the legal framework of prioritisation in the Czech Republic, the possible liability consequences of breaching the legal obligations of a physician or a health services provider, and the discussion about the possible legal defences. Rather than definitive answers, the paper presents and analyses the professional discourse that has been intense under the influence of the coronavirus pandemic in the past two years. It would be unwise for this discourse to be neglected in the future because of the false impression that it is no longer needed.