Controversial recommendations for difficult choices in the pandemic. Ethical-legal notes on the responsibility of doctors and guidelines

Abstract

This paper proposes some legal and ethical reflections on the relationship between medical liability and guidelines which over time have earned particular relevance in many legal systems. The extraordinary situations due to the pandemic have made the issue even more problematic because of both the lack of actual guidelines and the proliferation of different kinds of recommendations that have generated confusions. Among these last ones, the clinical ethics recommendations developed by the Italian Society of Anaesthesia, Analgesia, Resuscitation and Intensive Care (SIAARTI) have ignited a heated debate. They have encouraged the publication of recommendations on the same subject in many other countries and this essay deals with the most relevant ones. However, the main focus is put on the Italian document because it can be considered the guideline model, also imitated in other mentioned documents, which provides for a limit on access to intensive care based on the a priori age criterion. Such a criterion raises issues not only about its ethical legitimacy, but also about the competence of a scientific society in providing rules that may seriously breach fundamental rights. This paper criticizes the a priori and extra-clinical criterion and proposes an alternative criterion, that is an integrated clinical criterion able to deal with situations of scarcity of resources and emergency. This integrated criterion would be more respectful of the physicians’ competences and would enhance their professional role, without invading the scope and competence of the democratic institutions.