Hard Choices in the Pandemic and Guidelines: Ethical and Juridical Remarks on Medical Responsibility and Liability

This paper proposes some legal and ethical considerations on the relationship between medical responsibility (in the sense also of medical liability) and guidelines, which over time have earned particular relevance in many legal systems. The pandemic situation has made this issue even more difficult as, on the one hand, there were no concrete guidelines and, on the other hand, several recommendations of various kinds and origins have spread, leading to confusion among healthcare professionals. In particular, the ethical-clinical recommendations developed by the Italian Society of Anaesthesia, Analgesia, Resuscitation and Intensive Care (SIAARTI) has produced an intense debate not only in Italy but also abroad; indeed, SIAARTI recommendations have encouraged the publication of recommendations on the same subject in many other countries. This essay deals with the most relevant recommendations, but it mainly focuses on the Italian document since it can be considered the model for other documents. Furthermore, the restriction on access to intensive care unit that is based a priori on the age raises questions concerning not only its ethical legitimacy but also the competence of a scientific society in providing rules that may seriously infringe the fundamental rights. The paper criticizes this a priori and extra-clinical criterion and proposes, in turn, an integrated clinical criterion, which can deal with situations of the state of emergency and the lack of resources. 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.