Status: December 28, 2021 2:48 p.m.
The decision to triage in Karlsruhe was not necessarily to be expected. But what does it mean? What exactly has to change now? The most important questions and answers.
How do the judges justify their decision that the legal situation regarding triage is currently unconstitutional?
It is considered unconstitutional that there is currently no legal regulation according to which criteria a triage has to take place. The state has a duty to protect people with disabilities from discrimination, and it must also protect the highest legal good of all, life. Especially in a situation like the corona pandemic in which intensive care beds and ventilators are scarce, the legislature must ensure legal security so that people with disabilities are not disadvantaged when deciding whether to receive care. According to the court, these protective obligations result from the Basic Law – and the legislature has violated them.
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.
If there is no law on triage, what has applied so far?
So far, there have only been clinical-ethical recommendations from medical societies as to which Covid 19 patient will get a bed or a ventilator and who will not initially. The decisive factor is who, after a medical examination, has the better chance of success. The Basic Law forbids weighing the value of the sick against that of the healthy, and nobody may be disadvantaged because of a disability.
Did the constitutional judges only justify this legally or did they also take a look at the reality of clinics?
You have obtained expert advice from specialist institutions and social organizations. The court sees indications that people with disabilities are not adequately protected in a triage situation in which it is a matter of life and death. On the contrary, they run the risk of being judged factually incorrectly, even unconsciously, stereotypically because of their disability. Because they are given poorer chances of recovery due to their illness, non-disabled people could be given preference in intensive care.
The professional recommendations for doctors from the German Interdisciplinary Association for Intensive Care Medicine (Divi) did not rule out the risk of disadvantage. They could even become a gateway for disadvantage: On the one hand, the information is not legally binding, on the other hand, frailty is already a negative criterion for the chances of recovery and could rule out treatment.
Does the BVerfG say what the legislature has to do specifically?
Karlsruhe calls on the legislature to do something as effectively as possible to prevent people with disabilities from being disadvantaged in the triage. Berlin does have a margin of appreciation, assessment and design. The Federal Constitutional Court does not want to act as a substitute legislator – keyword separation of powers. But the court has a few general tips: Life must not be weighed against life. Therefore, a multiple-eye principle should apply when deciding who will be cared for first, so that the decision is comprehensible. But that is already being done now. For the same reason there should be documentation of the process. The surviving dependents then have the opportunity to understand the triage decision. The legislature could regulate the support on site. And: Medical and nursing staff should be well trained and well educated in advance.
According to the court’s decision, the legislature should take the precautions “immediately”, but the parliamentary break will not end until January 10th. What exactly does immediately mean here?
With this, the BVerfG only makes it clear that the problem is urgent, that the legislature’s inaction must cease until now. And that time is of the essence because of the new Omikron variant. When the hospitals fill up, it would simply be too late.
Is this decision a success for the plaintiffs?
The decision was by no means to be expected. The Federal Constitutional Court is happy to hold back because of the separation of powers between the judiciary and the legislature if it could penetrate the legislature’s area of competence. The fact that the red robes nevertheless urge the legislature to act because the guidelines of the medical societies are insufficient, because people with disabilities are disadvantaged and could die as a result, is a clear and courageous signal from Karlsruhe.
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.