CYIL vol. 12 (2021)

martin šolc CYIL 12 (2021) In a similar way, some authors note that ethics is not capable of setting useful pandemic criteria for health care providers and professionals. Jonathan Lewis and Udo Schuklenk, for example, explicitly claim that “ bioethics met its COVID-19 Waterloo ”. 21 While modern bioethics was navigated by the aim to abandon (or at least modify) medical paternalism, Lewis and Schuklenk believe that Covid-19 guidelines represent “ the ultimate triumph of ‘doctor-knows- best’ ”. 22 They observe that the said guidelines usually refer to principlism and contain “ typically nice sounding, but conflicting and disparate ” 23 ethical principles that are, however, too vague to provide applicable guidance. In effect, the decision-making is once again the full responsibility of health care providers and professionals. 24 We would like to stress that the situation is in fact more complicated. At least some of the guidelines contain relatively detailed algorithms. 25 Perhaps even more importantly, legal requirements in each jurisdiction limit the margin of appreciation the said decision-makers have (even though the positive law is often unclear on these issues). 26 Nevertheless, if medical ethics is not able to provide a working framework for making vital health care decisions when We have already established that the (seeming) weakening of the utilitarian approach to policymaking is probably linked to the lack of complex information on the consequences of different policy choices. The resulting approach was, nevertheless, not purely deontological. If states truly believed they have a categorical, absolute obligation to protect vulnerable persons 21 LEWIS, Jonathan, SCHUKLENK, Udo. Bioethics met its COVID-19 Waterloo: The doctor knows best again. Bioethics. (2021, Vol. 35, No. 1), p. 3. doi: https://doi.org/10.1111/bioe.12840. 22 Ibid., p. 3. 23 Ibid. 24 See ibid., pp. 3–5. 25 See for example the detailed (albeit relatively controversial) guidelines issued by the Swiss Academy of Medical Sciences or the Czech Academy of Sciences: Swiss Academy of Medical Sciences. Covid-19 pandemic: triage for intensive-care treatment under resource scarcity. Revised version . (17 December 2020.) accessed 26 July 2021 and ČERNÝ, David, DOLEŽAL, Adam, DOLEŽAL, Tomáš. Etická a právní východiska pro tvorbu doporučení k rozhodování o alokaci vzácných zdrojů při poskytování zdravotních služeb v rámci pandemie COVID-19 [Ethical and Legal Framework for the Creation of Guidelines for the Decisions Regarding Scarce Resources Allocation in the Provision of Health Services in the COVID-19 Pandemic], pp. 11, 18–21 . 2 nd ed. Kabient zdravotnického práva a bioetiky Ústavu státu a práva AV ČR. (October 2020.) accessed 26 July 2021. For an overview and analysis of selected international guidelines, see ŠUSTEK, Petr. Czech Expert Statements on Patient Prioritisation in the Covid-19 Pandemic in International Comparison. In this issue of the Czech Yearbook of Public and Private International Law, 2021. 26 This problem will be covered in national reports on health resources allocation criteria in many countries across several continents in the conference publication from the international conference “Legal Liability for Allocation of Scarce Resources in Health Care in the COVID-19 Pandemic” which took place on 15 April 2021 and was organised by the Centre for Medical Law at the Charles University Faculty of Law and the University of Bergamo Department of Law. Before the conference publication is issued, some highlights can be found in an interview with the Charles University Centre for Medical Law’s researchers Petr Šustek and Martin Šolc: TICHÁ, Vlasta. Interview: Triage of patients during the pandemic? Doctors all around the world face legal uncertainty. Charles University Faculty of Law. (17 May 2021.) accessed 26 July 2021. it is urgently needed, it might seem inconsistent and generally useless. Or, perhaps, we need to understand the whole situation differently. 3.3 Consequentialist considerations

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