ROUNDUP 3: ‘Immense relief’ – Bundestag must regulate triage

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KARLSRUHE (dpa-AFX) – The Federal Constitutional Court has made politicians responsible for the highly sensitive issue of triage in the corona pandemic. “Immediately” the Bundestag must take precautions to protect people with disabilities in the event that not everyone can be helped in hospitals. The Karlsruhe judges leave it to the legislature as to how that should look in practice and give them leeway. (Az. 1 BvR 1541/20)

Even if politicians of all stripes assure swift action on Tuesday after the announcement, Germany is likely to face an emotionally demanding debate. Ultimately, it comes down to the question of whose life is being fought for and who cannot use a ventilator. Eugen Brysch from the German Foundation for Patient Protection puts it in a nutshell: “It’s about the distribution of life chances.”

The German Interdisciplinary Association for Intensive Care and Emergency Medicine (Divi) had already emphasized that people with disabilities would not be worse off with their recommendations on triage. Nine affected people saw the danger, however, because the frailty of the patient and additional illnesses are relevant aspects. They fear that they will always be left behind due to their statistically poorer chances of survival – and have taken action before the constitutional court.

This gave them the right and defined disabilities according to the Basic Law as “long-term weight restrictions”, and the chronically ill, for example, are also protected. It must be ensured “that a decision is made solely on the basis of the current and short-term probability of survival”.

According to experts, there is a risk of being disadvantaged because of a disability in a situation of scarce medical resources, the court said. Unconscious stereotyping could also play a role. Such prejudices were regularly experienced by those affected, one of the plaintiffs, Nancy Poser, made clear. “I hope this is over now.”

The 42-year-old district judge from Trier described the decision as an “immense relief” and emphasized the clarity: “The legislature must protect us, and it has not done that.” She and the eight other plaintiffs are not concerned that they – like everyone else – could become “victims of triage” – but not because of their disabilities. It is now important that those affected and their associations are involved in the discussion.

Social associations, churches and disability officers all welcomed the decision of December 16. Many see this as an important signal that goes far beyond the corona pandemic. The First Senate expressly refers to obligations under international law such as the UN Convention on the Rights of Persons with Disabilities.

“Now the Bundestag can no longer shirk,” said patient advocate Brysch. So far, he has delegated decisions on prioritization in the health system, for example to professional associations. At the same time, the foundation’s board of directors admitted that the decisions to be made are certainly not easy for the MPs.

The Federal Constitutional Court derives from the Basic Law an obligation for the legislature to protect life. He injured this because he had not taken any precautions. He could make specifications himself, for example on criteria for distribution decisions, for a multiple-eye principle in selection decisions, regulations for on-site support and specific requirements for training and further education in medicine and nursing, especially for intensive care staff, to deal with disadvantages due to disabilities in a triage -Avoid situation.

On the basis of the procedure, the 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 Divi.

Divi has worked out “clinical ethical recommendations” on triage with other specialist societies. These are not enough for the court. It even sees the danger “that the recommendations in their current version could become a gateway for the disadvantage of people with disabilities”. They are also not legally binding. The Divi welcomed the fact that the Bundestag now had to take a stand – also to give the doctors legal certainty.

The word triage comes from the French verb “trier”, which means “sort” or “choose”. It describes a situation in which doctors have to decide who to save and who not – for example because so many seriously ill corona patients come to hospitals that there are not enough intensive care beds.

Federal Justice Minister Marco Buschmann (FDP) announced via Twitter that the federal government would quickly submit a draft law. Federal Health Minister Karl Lauterbach (SPD) tweeted: “People with disabilities need protection from the state more than anyone else. Especially in the case of triage. But now it is important to prevent triage through effective protective measures and vaccinations.”

It remains to be seen how quickly politics will deal with the issue. Appointments should be scheduled no later than January 2, said the plaintiff’s representative, attorney Oliver Tolmein. The traffic light coalition has the potential to make a difference here quickly. “If you want, we learned that during the pandemic, then you have the opportunity to do something.” Brysch said that the discussion that is now necessary would take 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.” / Kre / sem / hrz / rtt / jr / DP / he

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