(with more details)
KARLSRUHE (dpa-AFX) – When medical resources are scarce in emergencies, doctors sometimes have to make the difficult decision as to who will be treated first. During the corona pandemic, the Bundestag set new rules for this so-called triage in the Infection Protection Act. But intensive care and emergency physicians saw a conflict with their professional ethics.
Some of them were now able to successfully defend themselves against the legal requirements at the Federal Constitutional Court. The First Senate upheld two corresponding constitutional complaints and declared the challenged regulations to be incompatible with the Basic Law and void. They therefore restricted doctors’ professional freedom. The federal government lacks the legislative authority for the regulations.
What is triage?
The word triage comes from the French verb “trier,” which means “to sort” or “to select.” It describes that in certain situations doctors have to decide in which order they help people. The concept exists, for example, in major accidents with many injured people, usually to bridge a short-term emergency. During the Corona crisis, the topic came into focus due to the full intensive care units.
Even during the pandemic, the Bundestag decided on new regulations in 2022, thus fulfilling an order from the Federal Constitutional Court. It decided in 2021 that the state has a duty to protect people from discrimination because of a disability – there were previously scientific recommendations on this. The law stipulated that a decision on allocation should be made “only on the basis of the current and short-term probability of survival” – expressly not on the basis of life expectancy or degree of frailty.
Criticism from doctors
One of the two complaints against the new regulation was supported by the Marburger Bund medical association and was submitted in 2023 by 14 intensive care and emergency physicians. Among other things, it was directed against the law’s ban on subsequent triage (“ex post”) – i.e. stopping the treatment of a patient with a low probability of survival in order to care for a patient with a better prognosis.
The Marburger Bund criticized that doctors were being deprived of the opportunity to save the largest possible number of people in an emergency. The triage regulations would force decisions on them “that contradict their professional self-image and cause them blatant problems of conscience,” the association said in response to the lawsuit in 2023.
The Basic Law protects freedom of occupation
In its decision, the Federal Constitutional Court emphasized the freedom of occupation protected by the Basic Law. This ensures that doctors are free from professional instructions and protects them
– within the framework of therapeutic responsibility – also their decision
about the “whether” and “how” of a healing treatment.
The court further explained that the federal government could not rely on its authority to regulate measures against communicable diseases, which is anchored in the Basic Law, when making the regulations. This only applies to certain measures aimed at containing or preventing diseases. The triage rules, on the other hand, were only linked to the effects of a pandemic, but did not serve to combat the pandemic.
The Federal Constitutional Court has made it clear that triage decisions are not medical decisions of conscience, says Eugen Brysch from the German Patient Protection Foundation. Even after the decision, it must be stated that there are limits to the professional freedom of doctors. “The constitution further prohibits age, need for care and disability from being the sole determining factor for the initiation or discontinuation of treatment.”/jml/DP/mis