Disabled people fear that they will be the first to give up if they have insufficient resources – and have made a constitutional complaint. After the urgent application has been rejected, the main decision now follows.
Supply bottlenecks lead to difficult selection decisions.
If there are too many, who should be saved? Disaster medics have to ask themselves this question regularly, for example in the event of natural disasters, accidents, major accidents or assassinations, i.e. sudden events that require quick and effective action to ensure the survival of as many people as possible. But this situation can also arise in a pandemic. If too many needy people can no longer be cared for by overloaded intensive care units, a selection must be made who has the best chances – nobody wants that, but it can become necessary.
People with disabilities and previous illnesses fear that in such a case the choice would be made at their own expense. Nine applicants have therefore lodged constitutional complaints with the German Federal Constitutional Court in Karlsruhe. Your urgent application was rejected in July 2020. This Tuesday the court wants to publish its main decision.
The applicants suffer from various disabilities as well as previous illnesses and, according to the definition of the Robert Koch Institute, belong to the risk group in which serious disease courses are to be expected in the event of Covid 19 disease. You are against the inaction of the legislature, which has not made any specifications for a situation of so-called triage, provided that such a situation could arise due to capacity bottlenecks in the context of the Covid-19 pandemic.
With their constitutional complaint, they want to force the legislature to specify the decision-making criteria and for the federal government to set up a body that will make a provisional regulation by then. According to the court, however, such a body would not have the competence to adopt binding regulations that are of particular importance to the complainants. The court rejected the application.
Injustice through omission?
In addition, the judges announced at the time that the constitutional complaint raised difficult questions that could not be answered quickly. In the summer of 2020 there was also no reason to rush: the spread of the disease and the utilization of the intensive care units made it unlikely that a triage situation would arise. That has changed in the meantime, however. The fourth corona wave has pushed hospitals to their limit in many places in the past few weeks, and the emigration of staff has led to a decrease in the number of beds. Experts warn of the possibility of an even more dramatic development due to the spread of the new virus variant Omikron.
The constitutional complaint raises the question of whether and when legislative action in fulfillment of the state’s duty to protect people with disabilities is constitutionally required and how far the legislature has room to regulate specific medical prioritization decisions.
Triage is a procedure for prioritizing medical assistance in the event of insufficient resources, for example due to an unexpectedly high number of patients. People are assigned colors. For example in the case of a subway accident: All injured people are spotted at a fast pace. Worst of all is the one to whom a blue sign is assigned: He cannot be saved. A red sign, on the other hand, means the highest priority: vitally threatened, must be treated immediately. Yellow and green mark decreasing urgency. The principle can be transferred.
Tremendous emotional and moral burden
Those who have to make such a decision are themselves under high emotional and moral stress. What if he’s wrong? As early as March 2020, when the fear was great, but the numbers were low, the German Interdisciplinary Association for Intensive and Emergency Medicine (Divi) published a first guide for concrete decision-making in hospitals. The Divi recommendation has since been updated several times.
It can be read on the Internet under the title “Decisions on the allocation of intensive care resources in the context of the Covid 19 pandemic” – as of the end of November 2021. According to this, the prioritization of patients should be based on the criterion of clinical success. There it also says that it is not justifiable to prioritize “only within the group of Covid-19 sufferers”, nor because of the calendar age or social characteristics, because of underlying illnesses or disabilities – and also not because of the Sars- CoV-2 vaccination status.
There is controversy among lawyers and medical professionals as to how legal certainty can be created in a situation of unavoidable selection decisions. Can and should the democratically legitimized legislature pass a triage law? Is the criminal code sufficient as a framework for orientation? Should the medical prospect of success be the only focus, and should age be a selection criterion? The Federal Constitutional Court is facing a delicate decision.