CYIL vol. 12 (2021)

petr šustek CYIL 12 (2021) obligatur ” – the ECtHR cannot hold the state liable for harm it could not realistically prevent. The question, therefore, is not whether some patients might be denied access to advanced intensive care but rather how to choose these patients. From the human rights law perspective, the use of improper prioritisation criteria would represent impermissible discrimination against certain group(s) of persons. Article 14 of the European Convention on Human Rights sets the demonstrative list of the prohibited grounds of discrimination: “ sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status ”. Nevertheless, it would be hard to argue that (calendar) age or profession do not constitute prohibited discrimination grounds. We believe that positive discrimination of critically needed essential workers, especially those in health care, might be permissible if it was justified in a purely instrumental way (and not as a certain kind of reward or tribute). Negative discrimination against older people would most likely be deemed impermissible, unless connected to other criteria which, in their complexity, predict a high likelihood of futile care. Czech legal regulations, which effectively prohibits both positive discrimination of health workers and negative discrimination of the elderly, seems to be safe from the perspective of human rights law compliance. However, its position might be more ambiguous. By restraining most options of pandemic patient prioritisation, it can lead to implicit rationing: the use of untransparent triage criteria masked as clinical futility of treatment. It is easy to imagine a physician in a small regional hospital claiming that an older patient has no realistic chance to survive while it is not quite the truth only to be able to save a younger person. Such implicit rationing brings about a high risk of arbitrary decisions constituting an unequal approach to patients and possible human rights violations. For this reason, we believe it would be more beneficial if the lawmakers set well-defined criteria for patient prioritisation in critical situations, even though some of them might be controversial. Conclusion In the course of 2020, two documents on patient prioritisation in situations of critical lack of health resources were issued in the Czech Republic. The Academy of Science’s Framework uses primarily ethical arguments for which it strives to find legal justification. Its authors believe that the conflict of obligations could be introduced into Czech law as a legal defence by the courts. As a result, experts and professional societies would have a relatively broad margin of appreciation regarding prioritisation criteria. The Framework postulates a rather detailed triage algorithm including several controversial principles such as the possible prioritisation of younger people or health professionals. On the other hand, the Statement issued by the Czech Society of Anaesthesiology and Intensive Care Medicine is significantly cautious. Aiming at legal certainty, it strictly follows the narrow options left by a relatively rigid regulation. According to the Statement, a patient can only be prioritised based on the strict application of already-existing criteria regarding the seriousness of the patient’s condition and the probability of good clinical outcomes. In a hypothetical case of more patients with the equal condition, the first come, first served principle should be used. Neither of the documents is exceptional in light of international comparison. It is not uncommon that there are more contradictory recommendations issued in one country. From


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