Updated: May 14, 2021 9:30:11 am
The unprecedented public health emergency from Covid-19 has thrown up myriad ways in which different jurisdictions are tackling the situation. The situation has revealed deficiencies in law-making, legislative and executive action to address the difficult constitutional medico-legal questions which have the potential of opening the floodgates to massive litigation.
The rapid spread of Covid has resulted in the number of intensive care patients exceeding the healthcare capacity. The decisions to give scarce resources to one patient instead of another requires consideration. How does a clinician determine which patient to treat without violating his legal, ethical and moral duties? What parameters must be taken into consideration to save different human lives? An extremely challenging question is regarding the extraneous factors influencing the decision to allocate resources. Who decides that a ventilator be allotted to a father of three over an aged widow? The Constitution of India guarantees the right to equality and the right to life to every citizen. How would an action of giving preference to younger people over the elderly be justified under these enshrined constitutional rights? Would Section 4 of the Epidemic Diseases Act, which exempts suits or legal proceedings taken in good faith, expressly ratify the acts of doctors who could likely be influenced by such superfluous factors? How does the state propose to tackle the possible legal ramifications of either withholding or withdrawing a ventilator from a patient who would ordinarily receive such aid in the absence of a public health emergency? Given that there is no legislative enactment, rules prescribed by the state or any regulation adopted by the local administration to determine the sanctity of actions being taken by various states and the Centre, the potential of setting off a maelstrom of legal disputes looms large over the courts.
In an emergency situation, such as the pandemic, circumstances are greatly altered. Consequently, decisions that might normally constitute negligence in routine care may not constitute negligence in an emergency. Yet, clinicians could be sued for negligence, medical malpractices, criminal charges and civil suits by survivors of people who have died as a result of ventilator triage decisions. The medical “standard of care” in India, which is basically what a minimally competent physician in the same field would do in the same situation, with the same resources, has evolved largely from the decisions of the Supreme Court. There is no legislation which defines the applicable standard of care in different situations such as a pandemic, which shall differ from the standard of care under ordinary circumstances. A clinician facing such charges could argue that removing the ventilator helped in saving the life of a patient who had a higher chance of survival. However, if the loss of one life is nullified by saving another life, it falls foul of the Constitution which prescribes equal value to each life. Each public health strategy adopted by the government entails legal ramifications.
While the full legal impact is difficult to ascertain, mere reliance upon the archaic Epidemic Diseases Act shall hardly be an effective counter to constitutional principles. The US has adopted the “Crisis Standards of Care” guidelines to determine how the medical community should allocate scarce resources such as ventilators during a catastrophic event. There are no guidelines which have been implemented during the current pandemic in India, which has the potential of giving rise to legal challenges. Pertinent legal quandaries remain unaddressed and the present vacuum in determining these decisions will largely be left to interpretations by courts of law.
Governments must bring into place either legislative enactments, ordinances or regulations to provide a solution to these impending questions to safeguard themselves and health care officials from potential future litigation. “Triage committees” can be formed which take the decision of resource allocation and segregation of patients, rather than clinicians. New guidelines and policies must be established and implemented by hospitals to ensure a transparent allocation system.
This article first appeared in the print edition on May 14, 2021 under the title ‘A sword over the scalpel’. The writer, an attorney, specialises in public health law.
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