DE: Legislator must regulate triage for people with disabilities

Feb 11, 2022 Benn-Ibler Rechtsanwälte

The German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) sees an urgent need for action to protect persons with disabilities from disadvantages in a (pandemic-related) triage situation. It orders the legislature to take appropriate precautions without delay.

The so-called triage is a situation in which intensive care capacities are not sufficient to adequately treat all patients who need such care. Doctors must then decide to whom care should be allocated. There are currently no legal guidelines on the allocation of intensive care capacities within the framework of triage. The clinical-ethical recommendations of the German Interdisciplinary Association for Intensive Care and Emergency Medicine (Deutschen Interdisziplinären Vereinigung für Intensiv- und Notfallmedizin) are among the decision-making guidelines that have been used so far. The basis for the decision is the clinical prospect of success of the patient's treatment.

Several people with disabilities feared being excluded from medical treatment in the case of a triage situation, as their life situation is often wrongly assessed. Stereotyping can cause people with disabilities to be disadvantaged too quickly in medical decisions. They complain that the legislature has violated the prohibition of discrimination in Art 3 para 3 sentence 2 of the Constitutional Law.

As a result, the BVerfG determined a legislative omission. The prohibition of discrimination results in a duty to act - to effectively protect persons with disabilities from discrimination - which turns into a duty to protect in cases of pronounced need for protection, when there is a risk of violation of high-ranking legal interests. The duty to protect intensifies here because there is a risk of disadvantage in an extreme situation such as triage.

According to the BVerfG, the legislature has leeway in the triage regulation. It must itself determine whether and which requirements become criteria for distribution decisions. In doing so, it must take into account the duty to protect the lives of other patients and the limited capacities of the health care system. The German Medical Association, on the other hand, is against a legal regulation and continues to advocate for a medical decision, because triage decisions are highly dependent on the individual case.

BVerfG 1BvR 1541/20 (16.12.2021)