Tuesday, April 28, 2020

"The Statutes We Are Requesting Be Suspended Under … Very Limited Circumstances … Are: Murder"

By Eugene Volokh - April 28, 2020 at 08:01AM

A coalition of Maine health care provider groups has sent a letter to the Maine governor (see Bangor Daily News [Caitlin Andrews]), "requesting that the Governor exercise an emergency power to"

[4.] Suspend the enforcement of a statute, agency rule, agency regulation, agency order, or emergency rule that is inconsistent with emergency management and to the extent that the inconsistency exists; and

[6.] Take other action (specify) necessary to mitigate an effect of the emergency.

The letter covers a good deal of territory, but I was particularly struck by the request that the Governor endorse part of a Maine draft plan from June 2017 that has not yet been adopted:

Parts of the plan set up a method for "re-allocating" scarce resources during an extreme public health emergency. These "re-allocations" can result in "withdrawing a critical resource" from a person who is likely not going to survive, and giving that resource to someone else who is both more likely to survive with the resource, and who would most likely die without it. An example is taking a patient off a ventilator to give it to another patient, when the person doing so knows it will result in the death of the first patient.

This process would result in considered actions that would result in death to the individual who is removed from the critical resource. Maine, like most states, has criminal statutes designed to criminalize such behavior, and there are no exceptions or defenses that would cover the re-allocation of a critical medical resource during an extreme public health emergency. 17-A MRS §§35, 201, & 203. Such activity would normally require the consent of the patient or their authorized representative.

And to make clear, the groups say,

They add, "We believe that the Governor, if unable to provide a limited waiver of criminal liability, may use her office to influence the Maine Attorney General's Office and the Maine District Attorneys to use prosecutorial discretion for healthcare providers during these unprecedented circumstances."

I appreciate the concern here: I don't think we can categorically reject the possibility, in extraordinary times, it would be necessary to stop treating a patient who is merely "likely not going to survive" and shifting scarce resources instead to a patient who is more likely to benefit. I can imagine this happening in a war zone or during a massive disaster or major social collapse, and perhaps it's called for in other times as well. Still, it seems like a pretty striking proposal, and I'd love to hear what others think about it.

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