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New “Triage Law”: everyone is equal before the doctor – really?

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All people are equal before God and the law. The first part of this popular phrase describes a reality. Before God – or the Last Judgment or the flying spaghetti monster or whatever the final authority is called – all are indeed equal.

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In the second part, the sentence describes a claim. All people should be equal before the law. It shouldn’t be about sympathy, celebrity or wealth. Unfortunately, it sometimes does – as another popular phrase puts it: the little ones are hanged, the big ones let go.

Even before the doctor, all people are equal. Physicians must not discriminate. You may not make decisions based on age, skin color, religion, gender, disability, medical history or wealth. Even the phenomenon of a two-class medicine contradicts this principle. Nevertheless, the principle of the equality of all human life is one of the pillars of the constitution.

Any balancing, weighing and prioritizing is prohibited

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This so-called indifference in the value of life prohibits any balancing, weighing and prioritizing. The life of a young single mother who also cares for her mother who has dementia is worth no more than that of an old, homeless alcoholic.

But what if doctors have to decide who to treat when there aren’t enough intensive care resources available? That is the dilemma of a triage. It can occur in a pandemic, in war, or after a natural disaster. The number of seriously ill patients exceeds the capacity of the hospitals. What to do?

A week ago, the Bundestag passed a supplementary regulation in the Infection Protection Act. In the event of a pandemic, the “current and short-term probability of survival” of a patient should in future be the sole criterion for who should be given a scarce treatment place. Discrimination of any kind is prohibited – for example due to age, disability, degree of frailty, origin, religion, gender or sexual orientation.

The judges saw a possible “gateway” for discrimination.

The legislature had to act. In December 2021, he was instructed by the Federal Constitutional Court to prevent arbitrariness and discrimination in a triage.

The decision expressly rejected a guideline from the “German Interdisciplinary Association for Intensive Care and Emergency Medicine” (DIVI) from spring 2020. It described “other serious illnesses in the sense of comorbidities and frailty as negative indicators of the chances of success of intensive care treatment”. . The Chief Justices saw this as a possible “gateway” for discrimination.

The ban on discrimination that has now been enacted puts the utilitarian maxim of wanting to save as many lives as possible in a triage into perspective. Because then people with disabilities, the chronically ill or the elderly would have fewer chances of being treated because of an often lower probability of survival.

The government decrees that this has to go. But she doesn’t say how

Oliver Tolmein, who represented the case before the Federal Constitutional Court, says: “When a ship goes down, the motto is not: save yourself, who can”, but: women and children first. “This does not ensure that most people will be saved, but that those most in need will have a chance to survive.”

But the dilemma is not resolved. Rather, the new regulation deepens the decision-making process of many doctors. They are still faced with the question: How should the “current and short-term probability of survival” of a patient be assessed if all potentially discriminating factors have to be ignored? When neither previous illness nor disability, neither vaccination status nor chronic illness, neither age nor weight may be taken into account?

There is often a residual doubt as to whether everything was correct

The government decrees that this has to go. But she doesn’t say how. The problem of implementation is borne by the physicians. You will be sent to a dead end with the request “Get well received!”.

There are situations in which doctors cannot and must not act according to ethically impeccable criteria. Whether in the abortion, euthanasia or triage problem: Often there is a residual doubt as to whether everything was correct. On the one hand, wanting to relieve doctors of this burden by means of clear legal regulations is commendable, on the other hand, the intention usually ends in impractical postulates.

The fairest thing in a triage would probably be a kind of first-come-first-serve procedure: seriously ill people who are brought in first are treated first. Of course, there is also a difficult question of definition. Who is considered seriously ill?

All people should be equal before the law and medicine. Nobody should be favored or disadvantaged. Not living up to this principle in all situations does not mean that you have to give it up. In dilemmatic situations, the will to get as close as possible is enough.

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Source: Tagesspiegel

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