Status: 10.11.2022 8:35 a.m
Today the Bundestag votes on the so-called triage law. It is intended to prevent disadvantages for disabled and elderly people in hospitals. However, concerns about this are great.
It’s a nightmare scenario: one free intensive care bed and three patients are admitted at the same time. All are in such a condition that they basically have a chance of surviving provided they are treated. Who should the clinic give the last free bed? Experts speak of a triage decision. The term comes from French and means selection, sorting.
A law is now to lay down decision criteria for such an extreme situation of a lack of intensive care treatment capacities. A decision should be made “only on the basis of the current and short-term probability of survival” of those affected. Whether or not the patient will still be alive in ten years is irrelevant.
So far only recommendations
So far, there have only been recommendations from medical societies for triage cases. Last December, the Federal Constitutional Court instructed politicians to take precautions to ensure that no one is disadvantaged due to a disability in the event of pandemic-related treatment bottlenecks. A group of people with disabilities had previously filed a constitutional complaint.
Nancy Poser was one of the complainants at the time. The lawyer from Trier, who uses a wheelchair because of a congenital muscle disease, sharply criticizes the draft law: “It doesn’t protect people with disabilities at all.” Precisely the criterion was chosen that discriminates against people with disabilities the most.
The draft law expressly states that nobody should be disadvantaged when allocating intensive care treatment capacities. The age of the patient is just as irrelevant to the decision as gender or disability. But the law also says: comorbidities, i.e. concomitant diseases, may be taken into account if they significantly reduce the short-term probability of survival.
risk of discrimination
This is a point that worries Poser. Because she sees the danger of discrimination against people who, like herself, have a disability. Many of those affected have comorbidities due to their disability. “And that’s exactly what doctors are allowed to take into account in order to make a decision about who – they think – can survive better. That’s exactly what we feared.” If someone has spent their life in a wheelchair, then at the age of 50 or 60 they are certainly not as fit as someone who has been an athlete.
The German Institute for Human Rights (DIMR) is therefore critical of the law. According to Leander Palleit from the DIMR, the criterion of “probability of survival” is a gateway to the fact that in practice unconscious prejudices and stereotypes against old people and people with disabilities unintentionally flow into the prognosis decision.
Ethikrat: Do everything possible to prevent triage
The German Medical Association considers these concerns to be unjustified. “For us, no human life is worth more than another,” emphasizes Vice President Günther Matheis. Therefore, in the case of triage, discrimination based on age, gender or disability, for example, is also prohibited. “Only medical categories that lead to treatment and ultimately determine the chance of success apply.” There are also many people with secondary illnesses in the intensive care unit who are not disabled.
For the German Ethics Council, one thing is certain: everything must be done to avoid such an extreme situation in the first place. Once you’re faced with such a scarcity of treatment resources, you can never bring about a just situation, says Alena Buyx, the council’s chair. “It’s always terrible, it’s always a tragic decision. And there’s a potential for certain groups to be disadvantaged.”
Random principle instead of forecast
From Nancy Poser’s point of view, the random principle, i.e. a drawing of lots, for example using a computer program, would be fairer than a decision based on medical prognoses. Leander Palleit from the German Institute for Human Rights also considered this to be the best solution from an ethical point of view. Then decisions would really be made without regard to the person and every life would be worth the same – as required by the Basic Law and human rights.
The German Medical Association rejects a random triage decision. “We decide according to medical opinion and to the best of our knowledge and belief – and not by lot,” says Vice President Matheis. The German Ethics Council has no official position on this requirement. “Personally, in my role as a medical ethicist, I see a random decision as very problematic,” says Alena Buyx. However, the chairman of the committee immediately adds that there are also voices within the Ethics Council that favor the random principle.
“This is where Pandora’s box is opened”
It is important for Nancy Poser to emphasize that the law does not only discriminate against people with disabilities. In the case of triage, all the weak, especially the elderly and those with previous illnesses, are at risk of being disadvantaged. “This is where Pandora’s box is opened. Survival probabilities are now compared and then the stronger one is decided.” The German Institute for Human Rights criticizes that this would make “‘Survival of the Fittest’ a legal requirement”.
Despite all the criticism, the German Medical Association considers the criterion of the probability of survival to be correct. “The overall prognosis of survival is significantly better for patients with higher chances of success,” explains Günther Matheis. “As a medical profession, we must aim to save as many people as possible.” And for that, the medical profession needs legal certainty.
The German Medical Association thinks it makes sense if a treatment that has already started could be ended in a hopeless situation in favor of another patient with a higher probability of survival. This so-called ex-post triage was provided for in a first draft of the law, but was canceled again due to legal concerns and heavy criticism.