Triage judgment
Lauterbach: “People with disabilities need protection from the state more than anyone else”
Federal Health Minister Karl Lauterbach (SPD) expressly welcomed the Federal Constitutional Court’s ruling on triage. Now his ministry has to implement it
© Kay Nietfeld / DPA
After a year and a half, the Federal Constitutional Court upheld a complaint by representatives of people with disabilities. They feared disadvantages with triage. Politicians welcomed the judges’ decision.
In 2020 they filed a constitutional complaint. The verdict was passed a year and a half later. The Federal Constitutional Court obliges the legislature to “immediately” take precautions to protect people with disabilities in the event of so-called triage. How the Bundestag regulates that these people are not disadvantaged is left to the legislature. Doctors, however, need a legally binding basis for decisions about who to save and who not to save in the face of scarce intensive care resources due to the pandemic. (Az. 1 BvR 1541/20)
The decision was met with broad approval. Patient advocates, the social association VdK and politicians welcomed the published decision of the highest German court. “I had hoped for that, of course, but dared not wish,” said the board of directors of the German Foundation for Patient Protection, Eugen Brysch, of the German press agency. So far, he has always delegated decisions on prioritization in the health system – for example to professional associations. Now the Bundestag can no longer avoid it. The decisions now to be made are certainly not easy for the MPs.
One of the plaintiffs, Nancy Poser, said she was “relieved”. “You can’t say joy, because it is about triage. That is an issue where there can be no joy – regardless of the criteria used, it is always tragic,” said the 42-year-old from Trier.
How the protection will be implemented is still unclear
The Federal Constitutional Court declared that the Basic Law gave rise to an obligation for the legislature to protect the highest legal value, life. He injured this because he had not taken any precautions. With its decision of December 16, the court found nine people with disabilities and previous illnesses who had filed constitutional complaints. They fear being given up by doctors if there are no guidelines. The First Senate also referred to the Disability Rights Convention.
On the basis of the procedure, the constitutional judges do not believe that the protection requirement can be satisfied by a certain measure alone. They consulted numerous experts such as associations for the disabled, the ethics council, the German Medical Association and the German Interdisciplinary Association for Intensive Care and Emergency Medicine (Divi).
Divi has worked out “clinical ethical recommendations” on triage with other specialist societies. However, 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.
The Constitutional Court argued similarly and even sees the danger “that the recommendations in their current version could become a gateway for the disadvantage of people with disabilities”. These are also not legally binding and “not a synonym for the medical standard in specialist law”. It must be ensured “that a decision is made solely on the basis of the current and short-term probability of survival”.
Politics welcomes the judges’ decision
VdK President Verena Bentele stated: “It cannot and must not be that medical professionals are left alone in such an important issue, a legal basis is required for this.” Patient protection advocate Brysch said that the discussion that is now necessary needs some time. “It’s an extremely complex subject.” But he expects results within a year. “We don’t know what the situation will be like next autumn.” It is now important that the parliamentary groups in the Bundestag present a timetable. The federal government is also called upon to submit proposals.
Federal Health Minister Karl Lauterbach (SPD) welcomed the decision of the Federal Constitutional Court. “People with disabilities need more than anyone else the protection of the state,” said Lauterbach on Tuesday in the online service Twitter. This applies “even more so in the case of triage”. To Information from the “mirror” the Federal Ministry of Health is currently evaluating the court’s decision. A bill should be drawn up “promptly”.
SPD parliamentary group vice Dagmar Schmidt stated that the topic had been discussed last year and that the decision could now be implemented quickly. Greens parliamentary group leader Britta Haßelmann wrote on Twitter: “Now a careful examination and discussion will be necessary in the Bundestag as to how this can be done.”
FDP Vice President and Bundestag Vice President Wolfgang Kubicki also welcomed the decision. “The decision of the Federal Constitutional Court is legally comprehensible, since according to the value decision of our Basic Law, questions of life and death must be decided by the legislature and not by private agreement,” he told the “Rheinische Post”. The fact that the Union, which appointed the Federal Minister of Health in the last legislative period, had not been active for a year and a half unfortunately fits into the picture of a corona policy under Chancellor Merkel that is only designed for short-term, Kubicki criticized the earlier government.
However, his party colleague and Justice Minister Marco Buschmann emphasized: “The first goal must be that there is no triage in the first place.” Otherwise, clear rules are needed to protect people with disabilities from discrimination. According to Buschmann, drafts will be submitted quickly.