Triage in Pandemics: Legal and Ethical Perspectives

During the Covid-19 pandemic, numerous countries have experienced a scarcity of life-saving resources, including equipment (i.e., ventilators) and free space in intensive care units. Such situations raise difficult ethical and legal questions. Which criteria should be applied to select the patients who are to receive these scarce resources? Should medical prospects of success play a role in such decision and, if so, how should "success" be defined? Is it conceiv­able or even necessary to allocate scarce resources through a lottery procedure? Who should define the positive and negative selection criteria – on-site physicians, medical societies, or the legislature? Can a person be charged with manslaughter if they apply a controversial selection criterion and the patient who was not placed in intensive care dies? Is the ex-post-triage (the termination of an already initiated treatment in favor of a newly arriving patient) punishable? We explore these issues in a joint project between the Department of Criminal Law and the Department of Public Law. The first step is the publication of a collected volume with articles by German legal and medical ethics experts (Tatjana Hörnle/Stefan Huster/Ralf Poscher, eds., Triage in der Pandemie, Mohr Siebeck Verlag, 2021). Moreover, Elisa Hoven has organized a representative opinion poll, findings of which show that some criteria which are largely rejected in the legal discourse, such as the preferential treatment of children, are considered cor­rect by the majority of the population. In a further step, the discussion is to be expanded to include an inter­national perspective, with a workshop being planned for 2021 or 2022.