Pandemic judicialization and guidelines: judicial self-containment in the examination of tragic choices involving vacancies in ICU beds performed by health professionals

Abstract

This article aims to investigate, from an interdisciplinary point of view - based on medical and legal science - a fact that is wide open by the pandemic: the scarcity of health services, especially ICU beds, and the criteria for choosing who lives and who dies (“tragic choices”) used daily by health professionals. As a research problem, it is intended to discuss to what extent the State-Judge should, or should not, interfere in the tragic choices made by the hospital unit screening team based on guidelines, in the context of access to justice. The judicialization of the pandemic is a natural phenomenon resulting from the worsening of the problems experienced by our society in the context of an atypical health crisis. The decision-making about who will occupy ICU beds in a factual context of scarcity of resources translates into a “tragic choice”. At first, the judiciary is deferred to medical science. In specific situations, however, a moderate intervention is necessary in order to ensure the system’s own macro efficiency. The thematic relevance of the research is based on the fact that the scarcity of health services has reached alarming levels in the pandemic. As a methodological path, the hypothetical-deductive method will be used. It is suggested as a hypothesis to be corroborated or refuted throughout the research that the Judiciary Branch is not the appropriate instance to resolve the lack of vacancies in ICU beds. As a procedure, the objective is to deepen the theory through bibliographic research in the databases of Scopus, EBSco, google scholar, without forgetting protocols of national and foreign medical associations and entities.