Legal regulation required: Constitutional court decides on triage


As of: 12/28/2021 02:16 a.m.

With Corona the question arose: Who will be treated when there are too few intensive care beds? This is not regulated by law. People with disabilities fear that if in doubt they will be abandoned and have complained. Today the verdict will be given.

By Klaus Hempel, ARD legal editor

The corona crisis can mean that there are too few intensive care beds in hospitals for the patients to be treated. With the preparation of the Omikron variant, the situation in the intensive care units could soon worsen again significantly. In an extreme case, the clinic staff would be faced with an extremely difficult decision: who will be treated and who will not? Such a situation is called triage, which is derived from the French word “trier” – to choose or to sort.

In view of the scarce resources, nine people with disabilities and previous illnesses have sued the Federal Constitutional Court. With their constitutional complaints, they want to ensure that the legislature sets specific requirements for triage situations, taking into account the interests of the disabled and previously ill.

Legal situation with triage unclear

There is no clear legal position in triage situations because the legislature has so far remained inactive. So there are no specific legal requirements as to how medical professionals have to deal with such extreme situations. Regardless of the outcome of the Constitutional Court’s decision, one can already state that even if the legislature were to act, it would in any case have to comply with certain requirements that our constitution prescribes.

One human life must never be weighed against another life. This arises from human dignity. Specifically, this means, for example: the life of an old person is no less worth than that of a young person. For this reason, older people should not be given secondary treatment based on their age alone.

Only medical guides so far

In March 2020, when the topic of triage was widely discussed in public, the German Interdisciplinary Association for Intensive and Emergency Medicine (DIVI) published an initial guide to the selection process. This guideline has been updated several times to date, most recently in November 2021. The “clinical chance of success” should be a decisive factor in the selection of patients. This means: Those who, according to the medical experts, have a higher probability of survival should receive preferential treatment.

Older people should not be disadvantaged in this – nor those with underlying illnesses or disabilities. Social aspects should also not be legitimate criteria in the triage decision. The vaccination status should also not be used as a selection criterion. In other words: the unvaccinated should not be disadvantaged. However, these guidelines are only “clinical-ethical recommendations”. Even if most intensive care physicians are allowed to adhere to the recommendations, they are not legally binding.

Plaintiffs fear being sorted out

The recommendations are insufficient for the plaintiffs. They demand legally binding requirements from the legislature. According to the definition of the Robert Koch Institute (RKI), all of them belong to the risk group in which serious disease courses are to be expected in the event of Covid 19 disease. Thus, the plaintiffs argue, their chances of survival in the event of illness are significantly lower than with other patients. Therefore, if the intensive care units were overloaded, they would have no chance of life-sustaining treatment. They consider this to be unconstitutional.

In their lawsuits, they refer to Article 3 Paragraph 3 of the Basic Law, according to which disabled people must not be disadvantaged. In addition, they see their human dignity and their right to life and health violated. The state has a duty to enact legal regulations on triage, because this is the only way to protect their fundamental rights.

Urgent application was rejected in 2020

The plaintiffs had linked their constitutional complaints with an urgent motion last year. With this in mind, they wanted to ensure that a committee, in which disabled people are also represented, would work out rules for the meantime until the required legislative process was completed. The Federal Constitutional Court did not comply with this. The reasoning was, among other things: The constitutional complaints would raise difficult questions that could not be answered quickly. Now the responsible First Senate, after intensive examination and consultation, will announce its main decision.

File number: 1 BvR 1541/20


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