Legal challenges to ICU triage decisions in the COVID-19 pandemic: How effectively does the law regulate bedside rationing decisions in Australia?

Close, Eliana and Young, Simon ORCID: https://orcid.org/0000-0002-8835-7164 and Cockburn, Tina and Willmott, Lindy and White, Ben P. (2021) Legal challenges to ICU triage decisions in the COVID-19 pandemic: How effectively does the law regulate bedside rationing decisions in Australia? University of New South Wales Law Journal, 44 (1). pp. 9-59. ISSN 0313-0096


Abstract

The COVID-19 pandemic has raised the difficult question of how to ration scarce intensive care resources when a health system is overwhelmed. Despite substantial ethical scholarship addressing these rationing decisions, little is known about the legal position in Australia. This article considers various legal challenges in response to a clinical scenario denying intensive care admission and a ventilator to a critically ill patient with COVID-19. The article considers key challenges in negligence, criminal law, administrative law, human rights law, and under the parens patriae jurisdiction and guardianship legislation, and how they would apply to this scenario. The article concludes that while there are many obstacles to a successful legal challenge, the law can provide important scrutiny and guidance in the design of decision-making processes and triage policies. To adequately protect individual interests, the article supports calls in the ethical literature to make these policies transparent for public scrutiny.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Faculty/School / Institute/Centre: Current - Institute for Resilient Regions - Centre for Heritage and Culture (1 Aug 2018 -)
Date Deposited: 15 Dec 2021 02:57
Last Modified: 15 Dec 2021 03:36
Uncontrolled Keywords: COVID-19; policy; triage; risk; rationing; resources; challenges
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180126 Tort Law
11 Medical and Health Sciences > 1117 Public Health and Health Services > 111709 Health Care Administration
18 Law and Legal Studies > 1801 Law > 180103 Administrative Law
Fields of Research (2020): 42 HEALTH SCIENCES > 4203 Health services and systems > 420306 Health care administration
48 LAW AND LEGAL STUDIES > 4806 Private law and civil obligations > 480605 Tort law
48 LAW AND LEGAL STUDIES > 4807 Public law > 480701 Administrative law
Socio-Economic Objectives (2008): C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940405 Law Reform
C Society > 92 Health > 9202 Health and Support Services > 920208 Health Policy Evaluation
C Society > 94 Law, Politics and Community Services > 9402 Government and Politics > 940204 Public Services Policy Advice and Analysis
Socio-Economic Objectives (2020): 23 LAW, POLITICS AND COMMUNITY SERVICES > 2302 Government and politics > 230204 Public services policy advice and analysis
23 LAW, POLITICS AND COMMUNITY SERVICES > 2304 Justice and the law > 230405 Law reform
20 HEALTH > 2002 Evaluation of health and support services > 200205 Health policy evaluation
Identification Number or DOI: doi:10.53637/FSJG1698
URI: http://eprints.usq.edu.au/id/eprint/44205

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