Юридические исследования, 2020-9
Criminal law characteristics of medical sorting (triage): COVID-19 and shortage of resources

Berchanskiy Kirill Alekseevich Postgraduate student, the department of Criminal Law, Criminology and Penal Law, Saint Petersburg Law Institue (branch) of the University of Prosecutor's Office of the Russian Federation 191014, Russia, Sankt-Peterburg, gorod Sankt-Peterburg, Liteinyi prospekt, 44 cyrillbears@gmail.com Other publications by this author

Introduction. The XX century was marked by tremendous progress in medical science and its fight against infectious diseases. Smallpox, which has plagued humanity for thousands of years, has been completely eradicated. Cholera, plague, polio, measles – although not completely defeated, but now in the ranks of negligible infections, which outbreaks can be controlled, and the sick can be successfully treated. The only thing that could dampen the joy of the medical community was their complete defeat by the power of weapons that killed people faster than they could save them.

In our time, wars are no longer on the list of everyday concerns for the most of humanity. The main cause of our sorrows is the economy, and medical science continues its victorious march towards the goal proclaimed by the World Health Organization: to achieve the health of all peoples, and through it – the peace and security of mankind ^[1].

With the arrival of a new coronavirus infection, our largely mythologized view of modern medicine has been shattered. Suddenly, it became clear that the main problem in a pandemic of a new disease is not its nature as such – not some special complexity of the pathogenic organism and not the fundamental problems that it poses to scientists.

Such a problem will be, as well as more than 100 years ago – during the Spanish flu epidemic, as well as 400 years ago – during the plague in Moscow, the lack of time, skilled workers and other resources.

Problem statement. To demonstrate the possible criminal consequences of a lack of medical resources, it is appropriate to consider the following modeled example.

The ER receives two patients and each of them requires emergency medical care in terms of Paragraph 1 Part 4 Article 32 of the Federal law No. 323-FZ by November 21, 2011 «On the basics of healthcare in the Russian Federation» (hereinafter – FL No. 323) – due to their critical condition. After examining them and applying appropriate diagnostic procedures, the medical worker charged with their care understands that without appropriate treatment both patients will die within a short period of time.

However, due to certain objective reasons – lack of time, drugs, clinical staff, inability to carry out medical evacuation, etc., the doctor can only help one of them. The second patient without the required treatment will inevitably (or in rather high probability) die. The medic is thus faced with the question – who should be saved and who should be left to die?

The first issue in assessing criminal liability of a medical worker in this situation is the mental element of the act.

The mental element of guilty behavior consists of intellectual and volitional aspects, which are respectively characterized by an attitude to the public danger of such an act and its consequences.

In the given example, the medic is aware of the danger that his or her actions entail, i.e. the occurrence of socially dangerous consequences in the form of death of a person, which is typical for the criminal intent (Article 25 of The Criminal Code of the Russian Federation (hereinafter – the Criminal Code)) and recklessness (Part 2 of Article 26 of the Criminal Code) ^[2].

The volitional element of culpable behavior is in the attitude to socially dangerous consequences: desire or unwillingness of their occurrence, indifference to them or a conscious concession.

In this example, the doctor, acting out of considerations for rational use of medical resources, and not out of personal or other reasons, does not want any of the patients to die. However, refusing to treat one of them for reasons of saving the life of the other, he or she deliberately allows the patient's death.

Such a combination of intellectual and volitional elements of guilty conduct – awareness of the likelihood of detrimental outcome, absence of desire for it, but it's conscious admission, is characteristic to indirect intent, provided for in Part 3 of Article 25 of the Criminal Code.

It is difficult to imagine the inability to provide emergency medical care to all in need of it in the XXI century, when government spending on healthcare amount to 10% of GDP ^[3], and giant medical centers provide hundreds of services, many of which were have not been heard of just 2 years ago. However, in the seemingly economically prosperous countries of Europe, and the even more prosperous United States of America, during the most difficult periods of the COVID-19 pandemic, this is exactly what happened.

In March 2020, we began to receive reports from Italy of a catastrophic shortage of hospital beds and devices of assisted lung ventilation (hereinafter referred to as ventilators), which forced doctors to make difficult ethical decisions ^[4]. A similar situation has developed in the United States ^[5], Spain, Brazil ^[6], the United Kingdom ^[7] and other countries that are at the forefront of the spread of infection.

This misfortune did not pass Russia up, although without negative consequences this pronounced ^[8]. The possible comeback of such a situation is associated not only with the possibility of death of a significant number of people, but also with high risks to the medical professionals. As mentioned above, when making a decision to provide the necessary treatment in a situation where the patient's life is threatened, they act intentionally, which, if there are other requirments of criminal liability, qualifies as intentional causing of death, i.e. murder (Part 1 of Article 105 of the Criminal Code). This circumstance dictates the need to explore the criminal aspects of this problem as soon as possible, which is the purpose of this study.

Statutory defenses (Chapter 8 of the Criminal Code). It is obvious that not every act (even committed with direct intent) leading to criminally relevant outcome is a crime. The most obvious defence for a medical professional in this situation would be an appeal to the circumstances that exclude the criminality of the act, first of all – to the institution of extreme necessity.

Part 1 of Article 39 of the Criminal Code , as a condition for recognizing an act as committed in a state of extreme necessity, indicates the need to eliminate the danger that directly threatens the person or other people, the interests of society and the state protected by law, if this danger could not be eliminated by other means and the limits of extreme necessity are not exceeded.

Part 2 of this article describes the conditions for overstepping those limits, that apply when the harm caused does not correspond to the nature and degree of danger and circumstances at which danger was eliminated, when the interests harmed are equal to or greater than prevented. Such excess entails criminal liability only in cases of intentional harm.

The main problem with the application of this law are the extreme disagreements in the domestic criminal doctrine. Even a seemingly obvious case of causing death to one person in order to save many, which under Article 39 of the Criminal Code is most clearly read as causing harm less significant than prevented, is often not considered as a case of extreme necessity ^[9].

The latest Review of the practice of courts applying the Chapter 8 of the Criminal Code by the Supreme Court of the Russian Federation dated may 22, 2019 does not contain any explanations on applying this rule to assessing the death or bodily harm, only repeating the provisions of Article 39 in relation to harm to other interests of the individual, society and the state ^[10].

However, the interpretation of Article 39 of the Criminal Code in the framework of the analyzed model is quite obvious. Article 20 of the Constitution of the Russian Federation proclaims the right to life as an inalienable right to everyone, which does not allow the assessment of individual lives as unequal values that require different degrees of protection in the same conditions. In such a situation, providing treatment to one patient at the expense of another, subject to the occurrence of his or her death, will exceed the limits of extreme necessity – as causing harm equal to the one being eliminated. For the doctor, the situation is also aggravated by the fact that Part 2 of Article 39 protects his or her rights in the event of careless harm. As it was shown above, in the disputed situation the medic acts with indirect intent, which makes this rule also inapplicable.

The use of provisions on reasonable risk (Article 41 of the Criminal Code) is also not possible, even though the risk is deemed justified if there is a threat to the lives of many people, environmental catastrophe or other disaster. This rule necessitates taking sufficient measures to prevent harm, which is impossible in the situation under examination – an unfavorable outcome for one of the patients in this case is a conditional inevitability and cannot be effectively prevented.

The defense of causing harm without fault (Part 2 of Article 28 of the Criminal Code) is also not applicable, for although it involves extreme situations in which the harm is caused, but connects it with psycho-physiological qualities of the perpetrator – characteristics of his of her organism, such as reaction speed, physical strength and pain threshold, but not objective capability.

The concept of medical triage and its development during the COVID-19 pandemic. The process of determining the priority of medical care to several patients when it is impossible to provide it to them all, as described above, is called medical sorting or triage (from the French «triage» – «to sort»).

In the history of medicine, the discovery of the concept of triage is usually associated with the name of the pioneer of military field surgery Nikolai Ivanovich Pirogov, although similar ideas were expressed earlier, also by Russian scientists ^[11]. Nikolai. I. Pirogov prescribed to provide medical aid in the battlefield by distinguishing five categories of injured, separated by the criterion of necessity: from wounded, able to walk that require bandaging or extraction of a surface bullet, to the hopeless and mortally wounded, requiring only pain medication. In his writings, Nikolai. I. Pirogov pointed out the necessity of prioritizing medical care in a massive influx of injured people, relying on the likelihood of their recovery and the potential effectiveness of treatment: «To profit from the sorting it is necessary to ensure that the benefits of early operations do not entail the damage from the uneven distribution of care for most. The sorting principle is the choice of two lesser evils...» ^[12].

Legacy Of Nikolai. I. Pirogov continues to live in modern healthcare, mainly in disaster aid ^{[13, 14]}.

Currently, different medical triage systems are used in different countries. Many states in the wake of the COVID-19 epidemic have revised existing regulations to take into account the lack of medical resources, primarily ventilators, that arose soon after the infection began to spread.

In the United States, due to its governmental structure, said regulations are established at the state level.

The researchers identified 26 states that have adopted legal standards for the distribution of ventilators. Another 15 states adopted standards for the distribution of ventilators in pediatric departments. To determine the priority of medical care in 15 states, the SOFA («Sequential Organ Failure Assessment») system is used to ascertain the severity of a patient's condition.

In 6 states the prioritization by an assessment of life expectancy is established, in 22 states – the procedure for stopping artificial ventilation to adult patients in case of a shortage of devices , in 9 states – to children ^[15].

The most detailed recommendations were adopted in the state of New York and also include an initiative to limit the criminal liability of a medical professional in a pandemic ^[16], and for volunteers such a restriction has already been introduced at the federal level ^[17].

The UK government has abandoned plans to create a national guide for triage during the pandemic. Currently, the United Kingdom uses ethical recommendations adopted by the Scottish government, as well as the «COVID-19 Rapid Guideline» – recommendations of the National Institute for Health and Care Excellence (NICE)) ^[18].

Similar recommendations were adopted in Switzerland, Austria, Germany, Belgium ^[20] and Italy, where a bill was also proposed to limit the criminal liability of a medical professional to cases of malicious intent or gross negligence during the pandemic ^[19]). These recommendations equally emphasize the need for equal application of standards to all patients.

Differences in them are mainly related to some ethical issues, such as the application of the long-term (when the end-life expectancy is considered) or short-term (probability of living through the particular episode of illness) survival standards. The use of the age criterion for refusal of treatment is also controversial.

The presence or absence of standards of medical triage, such as the above, is crucial in identifying possible criminal ramifications of a medic's actions, which is the subject of the next section of this study.

Bona fide performance of duty as a criminal defence. In addition to the defences specified in Chapter 8 of the Criminal Code, the domestic doctrine also allows a number of circumstances that exclude criminal liability, which, according to some authors – due to their self-evidence, are not presented in the law ^{[21, p. 175]}. There is an example of such a defence from the practice of the Constitutional Court of the Russian Federation.

In 1995, the Court deemed unconstitutional the qualification of crossing the state border and refusal to return to Russia as high treason under Article 64 of the Criminal Code of the Russian Soviet Federative Socialist Republic (replaced by the current Code in 1996). The Court ruled that the rights to choose a place of residence and to freedom of movement are provided for by the Constitution of the Russian Federation and could be restricted only on the basis of federal law in order to protect the interests listed in Part 3 of Article 55 of the Constitution. Since the existing restrictions of movement could not be applied in that particular case, using the right to choose a residence could not be considered to be a violation of the criminal law, being a form of permitted behavior ^[22].

In other words, bona fide exercise of a right or performance of a duty in observance with the established rules of conduct, does not constitute a crime, even if the consequences established by criminal law occur. If a physician is guided by the requirements of the law when performing triage, then the death of a patient in the situation described above does not entail criminal consequences, for he or she simply fulfills a duty.

So, if we add the existence of a regulatory requirement to refuse a ventilator to one of the patients as a condition to our model example, for instance, if he or she suffered a heart attack, then such a refusal cannot be qualified as a crime. At the same time, a violation of this requirement: prescribing treatment to a patient with a heart attack, and refusing it to a patient who falls within the formal criteria, would be a violation of the statutory obligation, and qualify as a criminal offence if the required consequences occur.

If there is a regulatory requirement to prioritise patients' care based on the criterion of their condition's severity – when it is prescribed to help the one in the most danger first, then, in turn, the treatment of a patient with a heart attack may be considered a lawful discharge of duty, and the use of «Pirogovsky's criteria» (treating the one who has the best chance to survive) – the basis for criminal prosecution.

Thus, the answer to a question of whether a medic is criminally liable in performing medical triage falls on the nature of his or her duties to a patient. However, this answer in Russian medical law framework is not as obvious as we would like in to be.

Legal framework for medical triage in the Russian Federation. The term «medical triage» is found in a significant number of Russian statutes: from professional standards ^[23] to standards of emergency medical care ^[24]. However, no regulatory document in the Russian Federation prescribes prioritization of medical care in conditions of acute shortage of resources.

The most complete description of this process is provided in GOST (State Standart) R 22.3.02-94 «Safety in emergency. Medical and evacuation support. General requirements» (hereinafter - StSt), Section 8 of which is fully devoted to the medical triage.

Paragraph 8.1 of this Section indicates the division of patients into groups based on the need for uniform treatment and evacuation measures in order to ensure the timely provision of the most effective medical care to the afflicted and the rational use of medical resources.

Combined analysis of paragraphs 8 and 9 («Medical evacuation») of StSt allows us to conclude that medical triage is carried out in order to divide patients into homogeneous groups for timely delivery to a medical facility, where assistance is provided to the seriously injured first, and to those in no mortal danger later. However, this document does not contain instructions on providing medical care to patients simultaneously requiring emergency aid.

The most relevant in resolving this issue would be the analysis of the regulations of emergency medical care, which is provided in an emergency and urgent form.

Order of the Ministry of Health of the Russian Federation of June 20, 2013 No. 388n «On approval of the procedure for providing emergency (including specialized) medical care» ^[24] (hereinafter referred to as the Procedure) prescribes implementation of medical triage according to the severity of the condition by the ambulance teams (Paragraph 15 of Appendix 2) and clinical emergency departments (Paragraph 6 Of Appendix 9). This document does not, however, contain any rules regulating the procedure for prioritizing medical care.

The standards of medical care for certain conditions approved by the Ministry of Health also do not contain relevant regulations and only describe treatment of each individual patient ^{[25, 26]}. Clinical recommendations do not contain it either ^[27].

Finally, the most up to date document approved by the Ministry of Health – the temporary guidelines «Prevention, diagnosis and treatment of new coronavirus infection (COVID-19)», also does not contain instructions on treating patients in acute shortage of medical resources, in particular, indicating the conditions for withdrawing from and refusing ventilators to patients only for reasons of inefficiency or danger of such treatment.

This allows us to conclude that the Russian Federation does not have an established regulatory procedure for prioritizing emergency medical care in scarcity of medical resources. In terms of our model situation with two patients, this means that the medical worker acquires a duty to provide care for both of them at the same time, and the order of its fulfilment is determined by the worker at his or her own discretion.

Such a situation – the lack of regulation in an area, where death of a patient is extremely likely, may seem strange, dangerous and even unacceptable from the point of bioethics. However, oddly enough, health professionals are its main beneficiaries.

Positions of foreign scholars. For an unknown reason, the issues of criminal liability for medical workers performing triage have escaped the attention of domestic scholars.

In foreign legal doctrine, the situation is somewhat better. A group of authors from Harvard Law School and the University of Pittsburgh believe that the interpreting as murder harm done in course of medical triage is questionable, as long as the medic acts in accordance with current standards. The authors believe that it is much more likely that a doctor can be held criminally liable for disconnecting a patient from a ventilator. The authors also reasonably point to the impossibility of applying the defence of extreme necessity for reasons similar to described above ^[28].

Professor Robert Gerry of the University of Missouri Law School devoted a paper to the analysis of emergency rules adopted in the United States implemented to limit liability of medical workers in performing triage, pointing out that the need for those defences is obvious in a pandemic, but it should not completely exempt them from criminal prosecution ^[29].

On May 12, 2020, Università Cattolica del Sacro Cuore («Catholic University Of the Sacred Heart») and Fondazione Policlinico Universitario Agostino Gemelli («Agostino Gemelli University Clinic» – national strategic center for combating the COVID-19) (Italy) held a conference on legal issues related to the pandemic. The final resolution for the event included conclusions about the likely bump in prosecution of medical workers, as well as proposals to limit the liability of doctors by cases of malicious intent and gross negligence ^[30].

The analysis and conclusions in the above mentioned studies are extremely superficial – they do not highlight the main criteria for distinguishing criminal behavior of a medic in triage from non-criminal, do not discern the elements necessary in criminal law (in particular, intellectual and material aspects), which does not allow us to draw the necessary conclusions from them.

The most useful for the purposes of this research is the work of Professor Igor Vukovich of the University of Belgrade (Serbia). Professor Vukovich points out that it is unlikely that a doctor's actions in triage could be qualified as murder, but points out that a medic can be held accountable under Article 251 of the Criminal Code of the Republic of Serbia (hereinafter referred to as the Serbian Code): «A doctor who uses deliberately inappropriate means or deliberately inappropriate methods of treatment, or does not apply appropriate hygiene measures, or acts clearly in bad faith and, thus, causes deterioration of a patient's health».

Serbian criminal legislation does not contain a provision similar to Part 2 of Article 24 of the Russian Criminal Code, which provides for a direct indication of negligent character of a crime in a particular article. For this reason, Article 251 of the Serbian Code provides for reckless conduct or indirect intent, which gives this article a priority in deciding whether it is murder.

Professor Vukovich comes to similar conclusions on the criminal liability in this case being dependant on the nature of duties that the medical professional has to fulfil: in the case when he or she has two mutually exclusive duties in relation to two patients, and there are no rules for prioritizing between them, he or she actually have no opportunity to avoid the dangerous consequences. In such circumstances, the doctor does not have the opportunity to make a free choice between lawful and illegal behavior. This situation is characterized in terms of Roman law as impossibilium nulla obligatio est – «the impossible cannot be charged to», and can not be the basis for either criminal or any other liability ^[31].

We are inclined to agree with Professor Vukovich's conclusions. The free choice between illegal and law-abiding behavior is a generally recognized philosophical justification of criminal responsibility in the domestic ^{[32, p. 50] [33]} and foreign ^{[34, p. 186]} criminal doctrine. The author's conclusions allow us to identify the main criterion for the illegality of causing death in medical triage – the presence or absence of duties, as well as the principle of resolving their conflict if there is one. The next step is to find analogous concepts in the Russian criminal doctrine.

Positions of Russian scholars. Tatyana Y. Oreshkina considers such circumstances to be force majeure, defined by her as the inability to exercise free choice in the current situation, due to either physical coercion on the part of another person, or objective reasons (natural phenomena, man-made disasters, unintentional acts of other people) ^[35].

Lilia Gyrla includes causing harm as a result of a lack of medical resources in the concept of irrelevant medical error, i.e. one that does not entail criminal liability ^[36].

Alexander V. Savinsky points to the possibility of implementing in the criminal legislation the defence of the commission of acts prescribed or permitted by law ^[37].

These authors point out the need to introduce special defences that exclude the criminality of such deeds. This approach can be considered reasonable, but not completely rational.

The defenses in Chapter 8 of the Criminal Code are among the most conservative rules in Russian criminal legislation and haven't significantly been changed since the adoption of the first version of the Code. This indicates the legislator's confidence in their sufficiency and it is somewhat unrealistic to hope for reform, especially if such changes are urgently needed.

In the case of the situation with two patients we have modeled, a change in the legislation is not necessarily required. In the absence of established order, using discretion during triage of patients in equally dire condition, though implicitly, but permitted by applicable law, and, thus, is a form of faithful implementation of duty at the moment, and can not be considered a criminal offence.

Conclusions and suggestions. Thus, the answer to the question posed at the beginning is as follows: in the Russian Federation, if it is necessary to provide emergency medical care to two or more patients, when providing one of them entails the impossibility of providing aid to others, as well as a higher probability or inevitability of death, the medical professional cannot be held criminally liable, since he or she acts within the lawful limits.

While this situation provides protection for individual members of the medical profession, the medical community as a whole has cause for concern.

First, in a situation where a medic is not burdened with objective standards in triage, he or she can act with impunity based on any considerations: from the conditionally benevolent «Pirogov's» goals of saving the lives of as many people as possible, to radical utilitarian criteria of greater social benefit, which consideres the life of a scientist to be more expensive than the life of a homeless person. After all, a medic may refuse to provide care to a person for reasons of organ removal – if his or her fellow in calamity is lucky enough to suffer from a disease that prevents transplantation. It is unlikely that the medical community would want to put up with such behavior.

Secondly, the absence of criteria for medical triage in shortage of medical supplies is the most reasonable, but only one of the possible interpretations of the current legislature.

Paragraph 3 of Appendix 15 of the above-mentioned Procedure indicates the function of the ER doctor to be the determination of the severity of the patient's condition, the urgency and priority of diagnostic, therapeutic and resuscitation measures. The most logical interpretation of these provisions is that they relate to the duties of the doctor in relation to each individual patient – for he or she is indicated in the singular.

However, researchers have repeatedly noted the extremely poor understanding of medical legislation among the investigators ^{[38, 39]}, which may lead to incorrect understanding of this provision in law enforcement: it may be interpreted that the criterion of triage in emergency is the severity of condition (i.e. the patient who is more likely to die first has the most severe one), since the determination of severity and priority of treatment is a function of the medic.

Thus, in order to eliminate uncertainty in the legal status of a medical professional in the Russian Federation, to exclude the possibility of unjustified criminal prosecution, to improve the ethics of medical care and protect the rights of patients, it is necessary to introduce uniform standards for performing medical triage in the event of a lack of medical resources. Such standards should contain clear instructions on how to determine the order of treatment, ensure transparency of this process and be based on the principles of non-discrimination of the most vulnerable groups.