Part 1 of this panel discussion with public health law experts explores key legal issues related to triage and rationing of scarce medical resources, including supplies and personnel, during a public health emergency.
Key discussion points include:
- The key issue of rationing plans is fairness, but there can be multiple reasonable approaches to fairness, including saving the most lives, prioritizing health care workers, considering age, and using a lottery-type system.
- Other crucial aspects include stewardship of resources to avoid waste and ensuring consistency across different facilities in the same area.
- Transparency and community input are critical in development of rationing plans to ensure stakeholder and community views are appropriately taken into account.
- Rationing decisions may happen at multiple levels from administration to the bedside, but emergency planning should attempt to ensure decisions are made by trained and objective committees and not by treating physicians.
- The legal standard of care is assessed based on the circumstances as they exist for health care providers at the time care is provided.
- Potential legal issues can arise in both civil and criminal contexts, but legal protections are also available in many states’ laws for health care workers.
- Provisions of the Model State Emergency Health Powers Act (MSEHPA) have been adopted in part by several states. Depending on whether the specific provisions have been adopted in a state, MSEHPA includes authority to adopt rationing plans triggered by specific emergency declarations, as well as immunity from liability for health care providers for actions that are consistent with state-adopted rationing plans.
- Most legal protections apply to civil law and do not extent to criminal law, but additional state legal protections may be adopted to address rationing in response to COVID-19.
- Other state laws (e.g., minimum staffing requirements) may waived under appropriate legal authority pursuant to an emergency declaration.