Legislators must take “immediate” precautions to protect people with disabilities in the event of so-called triage. The Federal Constitutional Court announced on Tuesday in Karlsruhe that he had to comply with the obligation to act in pandemic times. (Az. 1 BvR 1541/20)
Nine people with disabilities and previous illnesses feared that they would be given up by doctors without such guidelines and had filed a constitutional complaint in Karlsruhe (Az. 1 BvR 1541/20).
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The word triage comes from the French verb “trier”, which means “sort” or “choose”. It describes a situation in which doctors have to decide who to save and who not – for example because so many seriously ill corona patients come to hospitals that there are not enough intensive care beds.
The German Interdisciplinary Association for Intensive Care and Emergency Medicine (Divi) has worked with other specialist societies to develop “clinical-ethical recommendations”. The plaintiffs are concerned about the criteria mentioned there, because the frailty of the patient and additional illnesses also play a role.
They fear that they will always be left behind due to their statistically poorer chances of survival, and are calling for a legal regulation. Such a law would also have the advantage that it could be judicially reviewed.
The constitutional complaint had been pending in Karlsruhe since mid-2020. Associated with this was an urgent motion – which the judges of the responsible First Senate under Court President Stephan Harbarth, however, had rejected.
No need to rush in the summer
They said at the time that the process raised difficult questions that could not be answered quickly. In the summer of 2020, they saw no reason to rush: the spread of the disease and the utilization of the intensive care units do not make it seem likely at the moment that a triage situation will occur.
In the meantime, the situation is different. The fourth corona wave has recently brought hospitals to their limits in many places, and patients had to be relocated to other regions. And experts warn of an even more dramatic development due to the spread of the new virus variant Omikron.
The Basic Law states: “Nobody may be disadvantaged because of their disability.” In response to an urgent decision, the Senate announced at the time that the question was particularly “whether and when legislative action is constitutionally required in order to fulfill the state’s duty to protect people with disabilities”. In addition, the judges want to sound out the “scope of the legislature to assess, evaluate and shape the rules of medical prioritization decisions”.
After the constitutional complaint became known, the Divi and co-authors of their guidelines had assured that no one would be excluded from care due to age, underlying illness or disability. The criteria would only be relevant if they reduce the likelihood of surviving the current disease. In this assessment, everyone would be treated equally. At the same time, the Divi also called for a legal basis to give doctors legal security.
The German Foundation for Patient Protection also sees the Bundestag’s duty to establish regulations on triage. “The members of the Bundestag are the only ones who are democratically legitimized to make such a decision,” said Eugen Brysch, board member of the German press agency. The main question is whether someone will be taken off the ventilator. The rules should be the same in all hospitals, demanded Brysch.
The discussion and the decision are certainly not easy, admitted Brysch. “But you don’t become a member of the Bundestag just to do fair weather policy,” he said. “It’s about the distribution of chances in life.” He was hoping for a clear decision from Karlsruhe as to whether parliament has to pass rules – and ideally also on the basis of which criteria. A conflict often arises from urgency and the chances of success, as the patient advocate made clear: “With someone who urgently needs therapy, the chances of success are usually not the greatest.” (Dpa)
