The justification for lethal disconnection of medical devices. The reassignment of ventilators in dilemmatic contexts (ex post triage).

Abstract

Many criminal law scholars have recently defended the legitimacy of discontinuing —against the patient’s will— mechanical ventilation in order to reassign the ventilator to a new patient whose treatment will ensure a better chance of success. According to this view, the physician’s homicide by interrupting the ongoing treatment is justified by a collision of duties. In this paper I argue that this conclusion is wrong. Given that the intubated patient has a consolidated claim over the ventilator, its withdrawal constitutes the infringement of a patient’s right, which can only be justified by the state of aggressive necessity defense. Nevertheless, assuming the (qualitative) imponderability of human life, the withdrawal of mechanical ventilation never would protect a substantially outweighs interest, so that ex post triage cannot in any case be justified.