COVID?19, rationing and the right to health: can patients bring legal actions if they are denied access to care?

There is little legal recourse in Australia for someone who denied care on resource grounds, particularly the context of a pandemic As health providers worldwide respond to coronavirus disease 2019 (COVID-19) pandemic, clinicians and communities are asking questions about will be given access scarce resources. While allocation decision-making frameworks have been developed, or adapted, govern unprecedented impacts may, now future, restricted ways previously unimaginable. broader community may accept need rationing, individuals COVID-19 other might look law protect their interests. Clinicians any consequences denying patients services. This article explores nature rights difficulties bringing cases that challenge decisions during its aftermath. The right central work United Nations lies at core 1948 Universal Declaration Human Rights international human instruments.1 Article 12(1) International Covenant Economic, Social Cultural (the Covenant) states that: “The States Parties present recognize everyone enjoyment highest attainable standard physical mental health”.2 signatory all Australian jurisdictions anti-discrimination laws3 which prevent discrimination when accessing services (a negative health). However, positive expression (an obligation provide access) has not directly incorporated into domestic law, except limited fashion Queensland.4 In contrast, countries such as South Africa Canada there constitutional health, legislative ones exist Israel New Zealand.5 Commonwealth legislation does explicitly enshrine envisaged by Covenant. Government argues obligations maintained through laws funding services.6 World Health Organization acknowledges provision universal coverage practical it same creating an actual right.7 An individual having range guarantee them specific service treatment, especially situations scarcity. Three introduced legislation: Queensland, Victoria Capital Territory. Victoria8 ACT9 much same, they arising from life. compel actually particular services.10 unlikely effective matters, this type found limited, where treatment considered futile, ineffective accordance with clinical guidelines. explicit albeit one. Act (Qld) contains services, defined “Every person without discrimination”, “A must refused emergency medical immediately necessary save person’s life serious impairment person”.4 these provisions first jurisdiction, only partially put effect, confined treatment. ensure care, oblige provider ongoing required treat COVID-19, conditions waiting lists. It also uncertain how intersects common established doctor under duty benefit patient patient’s best interest, relevant context.11 attributed being designed hold public authorities high rights, create mechanisms action uphold those rights. respective jurisdictional Commissions, address majority legislation, do power treatments invalidate declare decision inconsistent related resources, authority remake decision, showing clear transparent process, Whether rationing could subject negligence claim dependent state territory civil liability legislation. wording differs between jurisdictions, holds if professional can find another would undertaken acts, cannot established. For example, Queensland states: A breach acted way (at time was provided) widely accepted peer opinion significant number respected practitioners field competent practice.12 makes matter, because it, successful independent experts limit using broadly agreed upon guideline, ANZICS guidance complex making pandemic.13 Further, resources inevitable requirement ration recognised open claims.14 response, attract liability. Additionally, disaster management apply declared. Wales, were made declared emergency, proceedings brought against anyone acting pursuant powers whose actions omissions good faith.15 Satisfactory resolution administrative process influenced judicial review processes remedies available. Administrative concerned procedural rather than substantive matter means made, outcome. role court determine merits branch government, but establish whether maker had make decision; lawfully; information exercised appropriately. relation deny aftermath, entitlement fair such. satisfactorily resolved complaints purpose Although legislated systems dealing necessarily avenues decisions. seek outlined Charter Healthcare (https://www.safetyandquality.gov.au/consumers/working-your-healthcare-provider/australian-charter-healthcare-rights), legally enforceable created. intent is, among things, framework resolve most efficient manner possible, mechanism pursuit claims providers, private.14 complaint body, likely constraints policies recourse. raised should allocated, complexities balancing ethical perspectives future realities. concerns Unlike many countries, constitutionally legislatively protected health. available shows broad consensus situation fiscally challenged Michelle Gunn recipient Royal Australasian College Surgery Foundation Louis Waller Medico-Legal Scholarship, provided PhD research based. We thank Glen Gole, University Kelly Purser, Technology, assistance preparation article. No disclosures. Not commissioned; externally reviewed.