End-of-Life Decisions Amid the Covid-19 Pandemic as a Practical Problem of Criminal Law Theory

7 Pages Posted: 19 Apr 2020

See all articles by Stefan Kirchner

Stefan Kirchner

University of Lapland, Arctic Centre

Date Written: April 15, 2020


The current Covid-19 pandemic threatens to overwhelm health care systems. Because many patients have to be provided with ventilators, there is a risk that not all patients will receive the medical help they require. This has already happened for example in Italy, Spain and France and at the time of writing, during the second week of April 2020, it appears likely that other countries will face the same shortages. In some countries, guidelines have been created to determine under which circumstances a patient will be allocated a ventilator. This allocation of scarce life-saving resources raises significant concerns regarding the protection of the right to life and respect for human dignity. By determining that a person’s life has to end in order to re-allocate resources such as a respirator in an intensive care unit the patient is no longer an actor but becomes the mere object of the decision made by others. This is incompatible with the concept of human dignity, in particular when one takes into account the definition of human dignity employed by the German Federal Constitutional Court in several cases. This notion can be traced back to Immanuel Kant. In practice, however, medical decision-makers will be forced to choose between different patients. These choices can be deadly for one patient and potentially life-saving for the other, violate human dignity and place an inhuman burden on those who have to decide. This text aims to investigate this matter from the perspective of criminal legal theory and to provide guidance as to whether ending life-saving measures amounts to an action or an omission.

Keywords: Covid-19, Corona Crisis, health care, criminal law, action, omission, Germany

JEL Classification: K14

Suggested Citation

Kirchner, Stefan, End-of-Life Decisions Amid the Covid-19 Pandemic as a Practical Problem of Criminal Law Theory (April 15, 2020). Available at SSRN: https://ssrn.com/abstract=3576543 or http://dx.doi.org/10.2139/ssrn.3576543

Stefan Kirchner (Contact Author)

University of Lapland, Arctic Centre ( email )

P.O. Box 122
Rovaniemi, Lapland 96101
+358404844001 (Phone)

HOME PAGE: http://www.ulapland.fi

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