Excluding Criminal Responsibility Due To Conflicting Duties During Medical Urgency


The pandemic has created a circumstance in some countries worldwide, in which doctors were faced with the urgent necessity due to scarce medical resources, both in terms of human and material-technical resources, to decide which patient should preferentially be provided with medical services. In some European countries the actual reality of the use of medical triage was created.

The present article discusses three types of medical triage known in the criminal law doctrine: (1) preliminary (preventive) triage; (2) prior (ex ante) triage and (3) subsequent (ex post) triage. The article deals with the legal consequences of each form in terms of the exclusion of criminal liability. In this context, during the pandemic, the reevaluation and novel research of both the dogmatic and practical foundations of the conflicting duties became necessary. For this purpose, the article contains the analysis of the legal nature, content, and dogmatic place of the conflict of duties, as a circumstance for excluding criminal responsibility, in the system of the crime structure. Besides, the article deals with the assessment of the action/inaction of the doctor on the grounds of the conflict of duties regarding the individual types of medical triage, summarizes the discussed issues and makes the corresponding conclusions.


Triage, Unlawfulness, Guilt

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