Decision of the Federal Constitutional Court of the 16th of December 2021
In its decision of 16 December 2021, the Federal Constitutional Court ruled that in certain constellations of pronounced need for protection, the state has a duty to effectively protect people from discrimination on the grounds of their disability, including by third parties. The Federal Constitutional Court saw such a situation of pronounced need for protection in the risk of discrimination on the grounds of disability in the allocation of scarce intensive medical resources that are essential for survival, and therefore ordered the legislature to take protective measures for this case.
24th of August 2022: Cabinet approves regulations on triage
The Cabinet approved the draft of a second law amending the Infection Protection Act, which is intended to regulate triage in a special exceptional situation. If, due to a communicable disease, there is insufficient intensive care treatment capacity, the current and short-term probability of survival is the decisive criterion for the allocation decision. The draft law serves to implement the decision of the Federal Constitutional Court of 16 December 2021 (1 BvR 1541/20) on risks of discrimination, especially for persons with disabilities, in triage. The law regulates decisive criteria and procedural regulations for the allocation decision.
The draft law provides for the following regulations in particular:
Equal treatment: the regulations on the allocation decision of intensive care treatment capacities that are insufficient for survival due to a communicable disease apply to all patients, regardless of the cause of the need for intensive care treatment.
Current and short-term survival probability: The decisive criterion for the allocation decision is the current and short-term survival probability. Comorbidities, i.e. other diseases, may be taken into account to a limited extent when assessing the current and short-term probability of survival. In addition, it is clarified that criteria such as, in particular, age, disability and degree of frailty, which do not affect the current and short-term probability of survival, may not be taken into account.
Exclusion of ex-post triage: The bill explicitly excludes the discontinuation of a treatment that is still promising and supported by the patient’s will in favour of another patient with a higher current and short-term probability of survival.
Multiple-eye principle: According to the draft law, allocation decisions must be made within the framework of a multiple-eye principle. In addition, the assessment of a person with special expertise must be taken into account if a patient with a disability or comorbidity is affected by the allocation decision.
The draft law also regulates documentation obligations and the obligation of hospitals to ensure the implementation of the prescribed decision-making processes through procedural instructions.
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