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The criminal law of triage: A rights-based approach to justificatory defences

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Coca-Vila,  Ivó
Criminal Law, Max Planck Institute for the Study of Crime, Security and Law, Max Planck Society;

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Citation

Coca-Vila, I. (2025). The criminal law of triage: A rights-based approach to justificatory defences. In T. Crofts, L. Kennefick, & A. Loughnan (Eds.), The Routledge International Handbook of Criminal Responsibility (pp. 193-205). London: Routledge.


Cite as: https://hdl.handle.net/21.11116/0000-0010-364E-B
Abstract
Allocating scarce medical resources (triage) in pandemic situations may, at least prima facie, involve killing. The question then arises: under what conditions are doctors’ conducts justified? This chapter defends a rights-based reading of the system of justificatory defences in criminal law. Its aim is not to maximise scarce medical resources, but to find a solution that respects the rights of all subjects involved. Thus, I propose that in situations of ex ante triage, doctors will not commit homicide regardless of which patients they treat, and that ex ante preventive triage and ex post triage constitute forms of killing that deserve to be punished.