Coca Vila, I. (2021). Triaje y colisión de deberes jurídico-penal : una crítica al giro utilitarista. InDret : Revista para el Análisis del Derecho, 2021(1), 166–202. doi:10.31009/InDret.2021.i1.06
The feared collapse of health care systems as a result of the rapid spread of COVID-19, has recently led many criminal law scholars to advocate a utilitarian turn with regard to solving conflicts of (criminal law) duties that may arise due to limited medical resources. This view has two major implications. On the one hand, the treatment’s chances of success as well as the patient’s life expectancy should play a decisive role in the hierarchization of conflicting duties. On the other hand, this approach does not accord to the patient who is already connected to a ventilator a stronger right to treatment than it does to future patients. This article offers a critique of this utilitarian turn. Within the framework of a liberal criminal law system, respectful of the individual rights of each of the citizens involved in the conflict, the opposite conclusion should be reached. Neither can a doctor be forced —under threat of punishment— to save either the patient whose treatment has the best prospects or the one who has a longer life expectancy, nor can the homicide that a doctor commits by interrupting a treatment in order to save a new patient with a more favorable prognosis be justified.