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- Title
Understanding the Distributive Equity Framework for Allocating Scarce Medical Resources in Times of Crisis.
- Authors
Culotta, Emma
- Abstract
The goal of this Note is to examine the moral and legal questions raised by scarcity of life-saving medical resources from a distributive justice perspective. This Note argues that the traditional antidiscrimination framework cannot resolve questions of resource allocation because antidiscrimination laws focus on eliminating barriers to access without addressing issues of substantive equity. Because a solution requires prioritizing across similarly legitimate claims to healthcare to ensure equitable access to health for all, resource allocation is a substantive concern better suited for analysis under a distributive equity framework. This Note identifies the proper space-or good-of distribution as the basic human capability of health and the appropriate metric for distribution within that space as a structured balance of utilitarian and prioritarian principles called the Principle of Proportionate Priority (PPP), a new principle of distributive justice developed by Professor Talha Syed of Berkeley Law. This Note contributes to its relevant field of scholarship by applying this novel principle in the context of medical-resource allocation and proposing it as a useful tool for states to improve resource-allocation protocols like the Crisis Standards of Care developed in response to COVID-19. Under the proper distributive equity framework, the Principle of Proportionate Priority appropriately affords priority as a matter of degree based on how much worse off a patient is relative to others and how much they stand to benefit from treatment. In practical terms, this means a patient's claim for priority is strongest when they have both the greatest need, because of their young age or poor lifetime levels of health, and the greatest potential for benefit, because of their chance of survival or the effectiveness of treatment. This comparative priority approach is preferable to a strictly utilitarian principle that ignores the plight of the worst off or a strictly need-based prioritarian principle that disregards the importance of efficiently stewarding resources, particularly in times of scarcity. When developing protocols for the allocation of scarce medical resources, states can fairly consider the rationing factors of age, severity of condition, probability of survival, and life expectancy after treatment to determine whether a patient suffers from greater need or stands to reap greater benefits from treatment.
- Subjects
MEDICAL supplies; RESOURCE allocation; ANTI-discrimination laws; EQUITY (Law); UTILITARIANISM
- Publication
Texas Law Review, 2022, Vol 100, Issue 4, p803
- ISSN
0040-4411
- Publication type
Article