GER: Triage Regulation Set to Come

Dec 2, 2022 Benn-Ibler Rechtsanwälte

Should ICU beds once again become scarce, sometimes difficult decisions will have to be made as to which patients are entitled to survival-critical intensive care treatment and which are not. Until now, this decision has been made exclusively by doctors and based on decision-making guidelines for intensive care and emergency medicine. Now, German lawmakers have passed a law for triage cases, according to which only ‘current and short-term survival probability’ are to be taken into account. Age and disability are not allowed to be factored in.

In its December 2021 ruling, the German Federal Constitutional Court saw an urgent need for action to protect persons with disabilities from being disadvantaged in pandemic-related triage situations. The court compelled the legislature to fulfil its duty to protect and to adopt a statutory regulation.

In order to comply with this protection duty, regulations on triage have now been included in Germany’s Infectious Diseases Protection Act. The objective is to protect patients from discrimination, at the same time creating legal certainty for those physicians who are responsible for making these decisions. The provision shall apply to all patients in need of intensive care for whom intensive care treatment capacities are not sufficient on account of a transmittable disease.

Accordingly, the decision of intensive medical care may only be made according to the criterion of the ‘current and short-term probability of survival’. Besides disability or frailty of age, ethnic origin, religion or belief as well as gender or sexual orientation may not be taken into account in the decision to allocate a bed for intensive medical treatment. 

Draft bill of the German Federal Government, printed matter 20/3877 (10 October 2022)