Criminal law characteristics of medical sorting (triage): COVID-19 and shortage of resources

Abstract

The subject of this research is the legal norms that regulate the procedure of determining priority of patients (triage) in the Russian Federation, as well as the grounds for bringing to criminal responsibility of the representatives of medical profession for causing death during this process. The object of this research is the social relations arising in terms of prioritizing  treatment  of patients under the circumstances of severe shortage of medical resources, namely in case of mass infection. Analysis is conducted on the established by Chapter 8 of the Criminal Code of the Russian Federation conditions that exclude criminal nature of the act. The conclusion is made that on their inapplicability in similar circumstances. The author examines the nature of the process of medical sorting  – allocation of patients according to certain characteristics and order of their treatment, regulatory norms, as well as analyzes  the trends in the context of COVID-19 pandemic. Due to the fact that the Russian criminal law science does not feature special research dedicated to triage, the article provides a brief overview of the works of foreign legal scholars along with similar positions of national scholars, as well as determines the circumstances that affect the criminal nature of patient's death that takes place in the conditions of severe shortage of resources. The novelty lies in the cross-sectional study of the norms of Russian criminal law and the corresponding norms of medical law, based on which the author develops solution to the problem that did not previously receive due coverage in the Russian science. The author answers the question regarding criminal responsibility for the death of one of the two patients when it is not feasible to provide simultaneous medical treatment to both. It also The article also describes potential amendments to the sectoral medical legislation for the purpose of consolidation of legal status of medical professionals, protect their rights from unsubstantiated criminal prosecution,  protect rights of the patients, and maintain ethical well-being of medical profession.