Nine disabled people have achieved with their complaint that the legislature must now set requirements for a triage.
(Photo: dpa)
Karlsruhe Legislators must “immediately” take 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).
The judges in Karlsruhe have granted the constitutional complaint of nine people with disabilities. Because the situation threatens in the corona pandemic that intensive care units can no longer admit all patients and doctors have to make a selection, the plaintiffs fear that they will be abandoned in case of doubt. With their lawsuit, they wanted to force the legislature to set specifications and have now succeeded in doing so.
The First Senate of the Federal Constitutional Court pointed out that it had to decide on a ban on discrimination against people with disabilities alone, not on other groups. The First Senate did not decide what the content of the regulations to be adopted immediately should look like. “In terms of the specific design, the legislature has scope for assessment, evaluation and design,” says the decision.
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.
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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 have called for a legal regulation. Such a law, which is now to be drawn up, also has the advantage that it can be reviewed by a court.
Fourth corona wave brings hospitals to their limit
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. 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.
The situation is now different. The fourth corona wave has recently brought hospitals to their limit 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.
More: “Triage would be a declaration of bankruptcy” – How clinics are managing the increasing number of corona patients