Nine complainants have applied to the Federal Constitutional Court for protection; rarely in the Karlsruhe proceedings has the need for protection of the people affected been so obvious. One of them, 30 years old, has been severely mentally and physically handicapped since he had a stroke shortly after birth; he cannot walk, stand, or speak. Others suffer from spinal muscular atrophy, i.e. a stunted muscle that can lead to paralysis – also in the respiratory muscles. The oldest of them is well over seventy, has a serious heart condition and is diabetic.
For all of them, the corona pandemic is a high-risk phase anyway. Now, however, there is another risk in addition to the risk of infection – the risk of being sorted out in the race for the intensive care beds that are becoming scarce. With the approaching Omicron-Wave and the shortage of staff in the intensive care units could threaten in Germany, which has found its way into the corona vocabulary with a French term: triage.
This Tuesday, the First Senate of the Federal Constitutional Court will decide on the constitutional complaint written by the Hamburg lawyer Oliver Tolmein; The court rejected an urgent application in July 2020. A year ago, Nancy Poser at interview with the taz formulated; she sued in Karlsruhe and is herself a judge in Trier. If she is admitted with a heart attack, according to the rules for the allocation of intensive care beds with her wheelchair and her muscle disease, she will probably be rated worse than a smoker with Covid-19. Then she will not get an intensive care bed “and will have to die, exactly”.
Initially, the complaint only wants to enforce that the rules of triage are laid down in a law – by the democratically elected Bundestag and not by any doctors’ associations. The case law of the court sets high hurdles when it comes to forcing the Bundestag to enact laws. From Tolmein’s point of view, however, this dictates the principle that essential social and legal questions must be answered in a law.
Discrimination that can mean death?
At the same time, however, it is clear that the complaint in Karlsruhe aims to achieve far more than the creation of a democratically clean basis. Because in practice there are already rules for triage, laid down in the clinical-ethical recommendations of the medical societies for the “allocation of intensive care resources in the context of the Covid-19 pandemic”. From Tolmein’s point of view, these recommendations are discriminatory – which can also mean “fatal” in the context of the pandemic.
The central criterion for distributing intensive care beds to too many patients is the “clinical chance of success”. The guideline, which was only recently updated, expressly states that prioritization is “not permitted on the basis of calendar age, social characteristics or certain underlying illnesses or disabilities”. In other words: Even the fit 80-year-old can be given preference over someone in their mid-forties.
The principle of treating the patient with the best chance of survival first is recognized in medicine, for example in the event of a disaster, when resources suddenly become insufficient. Then it is important to save as many human lives as possible.
It is complicated to find a different and at the same time fair solution
In the triage recommendations, however, from Tolmein’s point of view, this is a promise that is broken again a few paragraphs later. Because among the criteria for prioritization is also the general condition – including a “frailty”, which is to be assessed with the help of the “Clinical Frailty Scale”, ie a technical guide for practice. “This is used to determine the individual chances of success of the treatment. The data that form the basis of the decision about life and death come from very different sources. They therefore result in values that are at best inadequately comparable,” said Tolmein der Süddeutsche Zeitung. Treatment must be based on the individual medical indication to be determined. With the orientation on abstract success prospect values there is the danger that people with disabilities would be structurally judged worse. “Survival of the fittest,” Nancy Poser sarcastically pointed it out.
As understandable as it is that these rules could disadvantage certain groups – including old people – it is just as complicated to find a different and at the same time fair solution. It was discussed, for example, that unvaccinated people should receive a penalty at the gate to the intensive care unit. Of course, this would be a fundamental break with the principle that all people have the same right to treatment, be they extreme athletes, smokers or motorcyclists. Oliver Tolmein could rather imagine calculating a longer treatment time from the outset for the survival prognosis of people with disabilities. As a kind of compensation for discrimination in the intensive care unit.