CYIL vol. 12 (2021)

martin šolc

CYIL 12 (2021)

3.4 Eclectic approach For the above-outlined reasons, we believe that the legal response to the Covid-19 pandemic and its ethical roots did not abandon utilitarianism as their substantial background. Needless to say, they combine consequentialism with deontological aspects which especially consist in the prohibition of discrimination 31 (even though certain forms of discrimination are sometimes deemed legitimate, e.g., positive discrimination of health workers in their access to health care so they can be cured and keep saving other patients). 32 A combination of different ethical theories is not rare in applied ethics: in practice, it is a rule rather than an exception. As Beauchamp and Childress put it, “ [A]ffiliation with a single type of ethical theory is precarious in ethical theory and even more so in biomedical ethics ” 33 since “ each of the (…) theories (…) articulates a point of view that we should be reluctant to relinquish. This approach to theories allows us to focus on their acceptable features without being forced to choose one theory to the exclusion of the others or to judge one theory as somehow primary at the foundations. 34 ” From this point of view, the Covid-19 pandemic does not contradict the development of modern medical ethics. Quite the contrary, it emphasized its eclectic nature. Modern bioethics often strives to analyse great ethical theories to isolate what best reflects the needs of real life and combine these aspects in a unifying and practical manner. It is a demanding task since it does not provide the solidly based axiomatic principles of a particular theory and yet it requires logical and systematic reasoning. Special attention must be paid to prevent superficial and arbitrary outcomes. However, the eclectic approach in ethics might be most capable of addressing the needs of the real world in a way that is both flexible and well- argued. 35 31 In relation to the access to health services in times of depleted resources, this principle can be summarised as follows: “ Legal regulations and, in particular, the guidelines of specialised associations from different countries, are usually based on the utilitarian requirement of maximising the number of lives saved. Some guidelines even expressly provide for this requirement. However, it is limited by the principle of non-discrimination. There are different approaches to how legal regulation deals with the basic dilemma – it is necessary to save as many patients as possible while not ‘sacrificing’ anyone. ” (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. 32 See for example BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013, p. 292 or 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], p. 10 . 2 nd ed. Kabient zdravotnického práva a bioetiky Ústavu státu a práva AV ČR. (October 2020.) accessed 27 July 2021 or 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. 33 See BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013, p. 383. 34 See ibid., pp. 384–385. 35 Perhaps needlessly to say, the eclectic approach would ideally be a result of society’s consensus based on the knowledge of its benefits and disadvantages. As Julian Savulescu, Ingmar Persson, and Dominic Wilkinson write, “ [i]t is doubtful that any of the policies currently being adopted by any governments worldwide are purely or simply

378