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High Court Mintabie book-up
(Image: AAP/Lukas Coch)

If recent mob panic over groceries has already led to brawls, what will happen when the hospitals start to overflow?

As it turns out, to the surprise of no sociologist, we can get pretty irrational pretty quickly when the things we have never had to think about are replaced by empty shelves. And then, breakdown.

If the direction the data is pointing to turns out to be approximately right, then Australia’s world-class health system is going to come under a strain exponentially greater than anything ever contemplated or experienced.

There are 2000 intensive care beds across the whole country, usually enough but clearly not if potentially tens of thousands of people are going to require hospitalisation at once.

The stories coming from that other first world nation, Italy, are horrific. Doctors are having to triage patients on the basis that some will be denied treatment for lack of resources, and essentially consigned to what would normally have been preventable death.

We all hope that won’t happen here, but we know it might. If the worst statistical prognosis is correct, it will.

What if you find yourself trying to get medical attention for your elderly parent who has come down with a bad case of COVID-19 and you’re told that the next available bed isn’t going to be given to them because there are others more likely to survive?

As a more extreme example, will people occupying ventilators and ICU beds be forcibly kicked off to make way for other patients with a higher likelihood of pulling through?

Primarily, of course, the ugly questions are going to be posed as matters of medical ethics.

In wartime and natural disasters, doctors have no choice but to apply triage approaches to prioritising medical care. That does not, in itself, present an ethical dilemma.

This is subtly different though, because of its scale and universality. The presenting quandary is largely one of category choice: very old people are encountering a mortality rate with COVID-19 of 14%-plus, while children and young people almost all survive infection.

Will it be ethically right to give medical preference to the young, when the sheer volume of patients is too overwhelming to permit case-by-case assessment, and tough generic selections must be made?

As to whether there are legal consequences to this, well, we are operating without much precedent.

Medical care is not a human right recognised by Australian law (as I like to say at least once every three columns, the only right enshrined in our law is freedom of religion), so no joy there.

Hypothetically, denial of care could amount to negligence, either on the part of individual doctors or the health system itself. That would present some challenges, but the ethical issue I mentioned may translate into the legal arena as well. There’s no clear answer to that.

One thing I’ve been noticing as I try to pick through the potential legal responses to COVID-19, whether they’re contractual, litigious or anything else, is an inherent limitation of the law about which we never think because, usually, we don’t have to.

Ordinarily, including when there’s some crisis or other going down (GFC, SARS, bushfires, etc), the law plays a central role in delineating and managing the fallout of our interrelations.

It will deliver outcomes for contracts in dispute or where businesses have gone under; it will deal with looters, arsonists and the nastily antisocial. It can do so because what it has to contend with is always limited in scope, time and classification.

COVID-19 is not ordinary. Right up and down every supply chain, businesses are facing the same problems. Each business is doing exactly the same things that their suppliers and their customers are doing: working from home, reducing activity, thinking about what they don’t have to spend money on, basically battening down the hatches and going into survival mode.

In this context, the law can still supply some answers (for example, it can determine whether any particular contract has been frustrated or is subject to force majeure).

It cannot, however, offer much justice or fairness. It isn’t fair that our yoga teacher, who runs classes for businesses, has just lost all her customers. The fact that we’re not obliged to pay her isn’t fair, but neither would it be if we had to.

In fact, what the law will do, to the extent it does anything, will be arbitrary or even capricious, in the face of a breakdown that is systemic and universal.

The same result will apply if and when the law tries to apportion legal blame and consequence for COVID-19’s economic carnage. Maybe some of us can and will sue each other, but not to any positive social end. Lawsuits won’t repair the damage.

We’re in territory that nobody knows how to navigate. Law, like politics and policing, is just a social tool. Its utility is not limitless. There are things with which it cannot deal.

I think, in some respects, that’s where we’re heading.

Peter Fray

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