Triage Regulation Overturned: German Court Ruling

After the ruling, it is unclear whether the federal or state governments will be responsible for triage legislation in the future – there is a risk of different regulations. By Frauke Rostalski

The corona pandemic was (fortunately!) a few years ago now. Society still concerns them – in very different contexts. Be it through the processing that is to be carried out within the framework of the still relatively new study commission; be it in the form of various criminal proceedings that are still pending in the courts. The Federal Constitutional Court has also recently made a decision that reminds us of the pandemic, namely one of its particularly dark chapters: the debate about how to deal with possible “triage” scenarios.

This refers to situations of shortage in which doctors have to decide which patient should receive life-saving treatment – and which should not. In the context of the pandemic, this particularly concerned the connection to a ventilator, a ventilation device that is only available in limited numbers in hospitals, which is why there was concern that if there were an influx of too many patients, care could not be equally guaranteed for everyone.

Until then, there were only medical guidelines for making decisions in such situations, which assessed in particular the clinical prospects of success of intensive care treatment as essential for the allocation of resources essential for survival. In 2021, the Federal Constitutional Court saw this as a grievance that impermissibly affected the rights of disabled people in particular.

The court therefore called for a legal regulation. What it didn’t reveal: Who the legislators actually were that it was targeting with its first triage decision.

Following the decision, federal lawmakers went ahead and created a new triage regulation, which they incorporated into the Infection Protection Act. Surprisingly to many, the Federal Constitutional Court announced last week that the completely wrong actor was at work here: the federal legislature has no authority for such regulations, which is why the law is unconstitutional. Federal laws may be enacted to “fight pandemics,” but not to combat the pure “consequences of the pandemic.”

The distinction that the highest German court introduces at this point is certainly worthy of criticism. Because: Doesn’t it clearly serve to combat the pandemic if infected patients are treated – with the aim of ensuring that they cannot infect anyone else? And can the pandemic really be limited to the aspect of infecting other people, or doesn’t the suffering caused by the infection have to be included in the term – so that the “fight” against the pandemic also includes those who have become infected and whose lives are to be saved by medical staff?

Not only does the Supreme Court’s decision set everything at zero – there is now likely to be a lot of guesswork as to whether the federal legislature should try again, for example by placing a triage regulation in another legal position for which it clearly has legislative authority.

Alternatively, the states would have to take action, which will most likely result in different triage regulations. Which in turn brings back not-so-fond memories of the pandemic, which was characterized not least by the fact that crossing the border into another federal state often resulted in completely different rules applying, which could certainly cause confusion. And is it really appropriate that there is no uniform federal regulation when it comes to decisions about life and death, because triage is about nothing else?

It is disappointing that the Federal Constitutional Court does not comment on the content of the triage regulation in its decision. As is well known, the provision of the Infection Protection Act (Section 5c Paragraph 1), which has now been declared unconstitutional, contains the prohibition of discrimination based on, among other things, disability. Contrary to this to a certain extent, paragraph 2 then states that the allocation decision should only be made on the basis of the current and short-term probability of survival of the patients concerned.

Furthermore, “ex-post triage”, i.e. the situation in which all life support equipment has already been distributed and yet more patients arrive, was excluded. Based on the now overturned regulation, doctors were prohibited from taking these people into account. The following should apply: once someone has been provided for, they remain so and are not included in the distribution decision again.

Of course, ex-post triage is the most common case in a shortage situation. This is one of the reasons why doctors also sued against the new law. We don’t know whether the Federal Constitutional Court will find their argument convincing.

The same applies to the objection that the new regulation – unlike medical guidelines – does not focus on the criterion of the likelihood of success of the treatment, but rather on the “short-term probability of survival” – which means little is gained in terms of the protection of disabled people.

Because the Federal Constitutional Court demanded in its first triage decision that the legislature should “immediately take appropriate precautions,” there is no option to do nothing. It therefore remains exciting: What will a future triage regulation look like? And: Will we experience 16 different ones or just one, which will then hopefully be so cleverly established in law that the Federal Constitutional Court will also grant the federal legislature corresponding competence?