Lack of triage regulations: a life-threatening loophole

To analyse

As of: 12/28/2021 4:36 p.m.

The Federal Constitutional Court is pushing for legal regulations on triage. What at first seems like a swipe at doctors is actually a warning shot for politicians. Because it failed to ensure everyone’s protection.

By Tilmann Kleinjung, BR

This pandemic is about survival. And it is a question that is particularly neuralgic for German society: Do I have better chances of survival if my life is considered worth living?

Under National Socialism, supposedly “life unworthy of life” was deliberately destroyed. In the Nazi racial ideology, this also included disabled people and the mentally ill. This is one of the reasons why Article 3 of the Basic Law contains the following sentence:

Nobody may be disadvantaged because of his disability.

Missing regulations are unconstitutional

The Federal Constitutional Court sees this principle endangered by the triage regulations in clinics. The legislature is acting unconstitutionally because it has failed to ensure that people with disabilities are not disadvantaged in the allocation of scarce medical resources. Politicians must act here urgently, demand the constitutional judges with unmistakable clarity.

In the case of hardship, the decision between life and death

The corona pandemic is putting our health system to an unprecedented endurance test. Most of them first had to look up the word triage in the dictionary. A term from war medicine that describes a dilemma: If there are not enough intensive care beds or ventilators available, which patient is preferred?

A horror for the patients and their relatives: What place do I get on the list? For doctors, this is a question to which there is no satisfactory answer – neither legally nor ethically: In an emergency, you have to decide between life and death.

A guide without any legal protection

The German Interdisciplinary Association for Intensive Care and Emergency Medicine published guidelines for this triage situation in hospitals at the beginning of the pandemic. Politicians failed to provide legal support for this guide.

The judgment of the Federal Constitutional Court is not directed against the doctors. They decide to the best of their knowledge and belief. But under pressure.

Disability must not become a risk

One criterion is the medical urgency, another is the treatment prognosis. And it is precisely here that there is a risk that decision-makers – whether consciously or unconsciously – prefer the patients to whom they grant greater chances of survival and recovery. Conversely, there is a great risk that people with disabilities or previous illnesses will be refused treatment.

This must be prevented by law as quickly as possible, that is the mandate of the constitutional judges. Doctors need legal certainty and potential patients protection from discrimination.

The German Ethics Council already saw a need for action in March 2020: “Every human life enjoys the same protection.” And that is why any “classification” based on age, an assumed “value” or a forecast lifespan must be omitted. Ethicists call this principle “indifference in value of life”. Even in the event of a disaster, there must be no evaluation or devaluation of human life.

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