Age-based triage and human rights
| Author | Veronika Bílková |
| DOI | http://doi.org/10.1177/09240519231151943 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Age-based triage and
human rights
Veronika Bílková
Head of the Centre for International Law at the Institute of International Relations,
Prague, and Professor in International Law at the Faculty of Law of the Charles
University in Prague, Praha, Czech Republic
Abstract
The article provides the first comprehensive assessment of age-based triage from the perspective
of human rights. Triage, that is the sorting of patients into categories of priority of treatment, has
been known for decades. It has however got larger prominence during the Covid-19 crisis. The
crisis has exposed healthcare systems in many countries to a critical shor tage of resources, forcing
them to consider resorting to triage. The absence of legal rules has been compensated by non-
binding triage guidelines, adopted by professional medical and ethical associations. This article ana-
lyses 11 guidelines, showing that none of them is truly age neutral. Some use allocation criteria that
entail disparate treatment of older persons, consisting of their de-prioriti zation or exclusion from
access to life-saving treatment on account of their age. Others rely on allocation criteria whose
application has disparate effects on older persons. The article argues that whereas the latter
approach could be compatible with human rights standards, the former entails violations of the
principle of non-discrimination and of several other human rights (the right to life, the prohibition
of inhuman and degrading treatment, the right to private life, and the right to health).
Keywords
European Court of Human Rights, healthcare, non-discrimination, older persons, triage
1. INTRODUCTION
Should age play a role in deciding who will get access to life-saving treatment? Should some
persons be denied this access because they are ‘too old’? These questions might seem cynical,
misplaced, and unwo rthy of any serious disc ussion. And yet, in the p ast three years, they ha ve
been repeatedly raised due to the scarcity of resources that several national health systems
Corresponding author:
VeronikaBílková, Head of the Centre for International Law at the Institute of International Relations, Prague, and Professor
in International Law at the Faculty of Law of the Charles University in Prague, Praha, Czech Republic.
Email: bilkova@iir.cz
Article
Netherlands Quarterly of Human Rights
2023, Vol. 41(1) 13–34
© The Author(s) 2023
Article reuse guidelines:
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DOI: 10.1177/09240519231151943
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have been confronted with during the Covid-19 crisis. Media and non-governmental organisations
have reported instances in which these questions have been answered in the affirmative, and when
persons over a certain age have been excluded from access to life-saving devices.
1
Moreover,
some of the Covid-19 tr iage guidelines iss ued by professional me dical and ethical asso ciations
in various countries since spring 2020 recommend using age as a triage factor. These develop-
ments, and the age-b ased triage as such, h ave given rise to rich de bates among medica l research-
ers, (bio)ethical experts, and moral philosophers. They have stirred less interest among human
rights scholars.
This article seeks to fill this gap by providing a human rights analysis of age-based triage. The
analysis unfolds in two steps. Section 2 explains the concept of triage and introduces the main allo-
cation criteria used in triage. It also analyses 11 triage guidelines adopted since the outbreak of the
Covid-19 crisis in 8 European and 3(4)
2
non-European countries. These guidelines rely on different
allocation criteria and, as such, take different approaches to the factor of age. Three main models
can be distinguished, none of which is fully age neutral. Section 3 discusses the compatibility of
these three models with human rights standards, that is the principle of non-discrimination and
several other human rights. The article argues that whereas triage based on criteria whose applica-
tion has disparate effects on older persons may be compatible with such standards, triage foreseeing
disparate treatment of older persons violates them. Age should thus never be one of the factors on
which triage decisions are based. Section 4 concludes.
2. AGE-BASED TRIAGE IN HEALTH CARE
The concept of triage, that is the sorting of patients to determine the priority of their treatment, has
been known and applied in the provision of health care for decades. Triage decisions are based on
various allocation criteria, which are usually not age neutral (Section 2.1). Since spring 2020, pro-
fessional medical and ethical associations in many countries have issued special Covid-19 triage
guidelines. The analysis of 11 such guidelines adopted in 8 European and 3(4) non-European coun-
tries shows that although they rely on different allocation criteria, all three models that can be dis-
tinguished foresee age-based triage (Section 2.2).
2.1. TRIAGE IN HEALTH CARE
In the most general sense, triage denotes prioritisation carried out in any area of activities. The
European Court of Human Rights (ECtHR), for instance, uses the term when referring to triage
of cases in court proceedings,
3
triage of communications to determine their intelligence value,
4
or triage of detained illegal migrants.
5
More commonly, however, the term is reserved for health
1. Euractive, ‘“All is well”. In Italy, triage and lies for virus patients’(17 March 2020); HelpAge International, ‘COVID-19.
Everyone Matters’(April 2020).
2. One set of guidelines applies in both Australia and New Zealand. See ANZICS, ‘Guiding Principles for Complex
Decision Making during Pandemic COVID-19’(16 April 2020)
complex-decision-making-during-pandemic-covid-19> accessed 10 July 2020.
3. Zimmermann and Steiner v Switzerland App no 8737/79 (ECtHR, 13 July 1983) para 17.
4. Big Brother Watch and Other v the United Kingdom App no 58170/13, 62322/14 and 24960/15 (ECtHR, 13 September
2018) para 12.
5. Mahammad and Others v Greece App no 48352/12 (ECtHR, 15 January 2015) para 46.
14 Netherlands Quarterly of Human Rights 41(1)
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