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The German Bundestag must take precautions to protect people with disabilities in the event of triage.
“Nobody may be disadvantaged because of their disability”: This is what it says in Article 3 of the German Basic Law. The Federal Constitutional Court in Karlsruhe comes to the conclusion that precisely this fundamental right has been violated.
It is responding to a constitutional complaint that a group of plaintiffs with severe impairments had already submitted in the summer of 2020. If it is no longer possible to adequately care for all patients due to the overburdening of the hospitals, the treating doctors would find themselves in an extreme decision-making situation, according to the message.
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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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You would have to decide who should receive the scarce intensive care resources – and who should not. The court held that only the current and short-term survival probability of the patient should be decisive.
But as of now, it cannot be ruled out that there will be discrimination. For example, it could happen that a doctor wrongly underestimates the chances of survival of a person with a disability. Even under normal circumstances it often happens that the life situation of people with disabilities is misjudged and that they are disadvantaged by medical decisions as a result.
The Bundestag must act “immediately”
In the extreme situation of triage, it could be particularly challenging for doctors to consider these people without discrimination. The court bases its assessment on both scientific studies and the assessments of specialists and social associations that were allowed to comment.
The court gives the legislature – ultimately the German parliament – a clear mandate: legally binding guidelines are needed that ensure that disadvantages due to a disability are effectively prevented – and immediately.
Until now, doctors in Germany could rely on the Recommendations of the German Interdisciplinary Association for Intensive Care and Emergency Medicine (DIVI) support. But that is not enough, according to the court: A clear legal basis is needed.
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Tanja Krones works at the University Hospital Zurich.
SRF
Tanja Krones, as a senior physician in clinical ethics at the University Hospital Zurich, helped write the triage guidelines. And she was also involved in drawing up the guidelines in Germany. She welcomes the verdict.
“It is good that the Federal Constitutional Court says that the legislature is also responsible for striving for protection obligations and also dealing with the issues in terms of content.” She demands that the legislature in Switzerland also deals with it and does not leave medical professionals alone with the subject of triage.
The legislature has various options, says Krones. “For example, by specifying content-related criteria, but also by saying that a certain procedure is required, for example the principle of multiple eyes.” Corresponding further and advanced training for health workers is also necessary in order to prevent discrimination. It is true that the court emphasized in the judgment that the substantive criteria for the triage are medical criteria and that these are very well presented.
But there were also non-medical questions such as: “If you posteriorise a patient because of the scarcity situation – that is, he does not receive intensive medical treatment, but normal ward treatment – and he dies, is that an extraordinary death? And who takes the responsibility to say that you are in a shortage situation? ” According to Krones, it would be desirable for an instance, an authority, the federal government or the canton to take over. “This cannot be regulated by the directive, the legislator is responsible for that.”