Federal Constitutional Court: Government must make triage regulation


Status: December 28, 2021 10:10 a.m.

In the event of triage caused by a pandemic, the federal government must “immediately” take precautions to protect people with disabilities. This has been decided by the Federal Constitutional Court.

Legislators must immediately take precautions to protect disabled people in the event of triage caused by a pandemic. This was decided by the Federal Constitutional Court and thus upheld the constitutional complaint made by several people with disabilities. According to the court, the legislature is obliged to act from the protection mandate because of the risk to the highest-ranking legal good life. He injured this because he had not taken appropriate precautions.

No specific requirements for regulation

According to the Federal Constitutional Court, people with certain previous illnesses and impairments are particularly at risk in the corona pandemic. If there are not enough beds and ventilators in the intensive care units, there is a risk that they will not be treated. That is why the legislature must enact regulations so that people with disabilities are better protected.

According to the judges, the fact that the legislature has not yet done this is unconstitutional. You refer, among other things, to Article 3 Paragraph 3 Clause 2 of the Basic Law. According to this, people with disabilities must not be disadvantaged.

The Federal Constitutional Court does not make any specific requirements on the question of what a regulation could look like. The legislature has a wide scope for assessment, evaluation and design here. However, he must take into account that when it comes to so-called triage decisions, doctors are in an extreme situation and have to decide quickly who will be treated and who will not.

Triage

In medicine, triage is a method according to which, in emergencies or pandemics, who is treated first is selected. The chance of survival, for example, can play a role here. The word triage comes from the French verb “trier”, which means “sort” or “choose”.

The term was originally coined by military medicine, but is now also used in emergency medicine or civil defense. In the military context, it was also about treating the soldiers first, who could quickly be made fit again.

Recommendations by DIVI are not legally binding

Nine people with disabilities and previous illnesses had filed constitutional complaints. They feared that doctors would give up if there were no guidelines.

The German Interdisciplinary Association for Intensive Care and Emergency Medicine (DIVI) had developed “clinical ethical recommendations” with other specialist societies. The plaintiffs were concerned about the criteria mentioned there, because the patient’s frailty and additional illnesses also play a role.

The constitutional court explained that the recommendations of the DIVI are not legally binding and “not a synonym for the medical standard in specialist law”. It also points out the possible risks in the assessment that could result from the recommendations. It must be ensured “that a decision is made solely on the basis of the current and short-term probability of survival”.

File number: 1 BvR 1541/20

Federal Constitutional Court decision on triage: Legislators must act

Klaus Hempel, ARD Karlsruhe, December 28, 2021 10:24 a.m.

With information from Klaus Hempel, ARD legal editor


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