If there are no places, the immunized disabled pass first. The Constitutional Court: “Who suffers from a disability must be protected”
A scene seen a thousand times in the medical series of all latitudes: two patients are brought at the end of life in the emergency room at the same time. One is a disabled young man and the other – suppose – a fifty-year-old family man who is not vaccinated for covid 19. Who should be given priority by the doctor in case of choosing between one and the other when there are no places in intensive care? And according to what criterion?
It is on this that the German Constitutional Court ruled yesterday, urging Parliament to provide provisions for resolving dilemmas of this type. In the specific case, the Karlsruhe Court upheld the appeal of 9 people with disabilities who felt their right of access to treatment was threatened in the event of the choice of the patient to be saved, in the absence of sufficient places in intensive care. He then signaled the “legislative vacuum” to be filled “in a timely manner” with a law that protects the right of disabled people to receive adequate care in view of the next pandemic wave. “The legislator is obliged to adopt effective provisions to ensure that no one is disadvantaged due to their disability in the event of triage”, as the choice of patients according to priority of care is defined. So we read in the official statement of the judges of Karlsruhe. “There is a risk that people with disabilities in a triage situation are disadvantaged in the allocation of resources for intensive medical treatment”, and in this case it would violate the right to health protected by Article 3, paragraph 3 of the German Constitution . The principle expressed by the German Court is that no one can be disadvantaged because of their handicap, while in fact during the pandemic the sick and disabled run a greater risk of infection, especially when their livelihood depends on third parties, and a higher danger of run into a severe course of the disease.
The point under discussion is that according to the indications of the German association of intensive care and emergency care doctors (Divi), the criterion of choice in the case of triage is linked to the evaluation of the patients’ “fragility”. Who has the most right to live? Anyone or who has a higher life expectancy? The applicants to the Constitutional Court fear that the lower chances of survival linked to the previous pathologies of the disabled could lead to a severe penalty in their access to care, if not a death sentence.
The Court’s ruling was welcomed by the two main German ministries concerned, Justice and Health, but with different nuances. Health Minister Karl Lauterbach, Spd, said that “now it is a question of avoiding triage with protective measures and vaccinations”, while the Minister of Justice, the liberal Marco Buschmann, commented: “Now the first objective is that you don’t really get to triage “. On the vaccine, the liberals are split: about twenty Fdp deputies presented to the Bundestag a motion against the obligation to vaccination, as a “violation of fundamental rights”.
Meanwhile, infections in Germany are decreasing while the vaccinated population increases (73.9% have at least a first dose of vaccine). The weekly incidence is much lower than a month ago (215.6), just over 21,000 new infections with 372 victims in 24 hours. But the downward curve is linked to the exhaustion of the Delta variant. However, the Rki public health office has already warned that a heavy Omicron wave is to be expected in January, which could put a well-equipped but constantly understaffed health system on the ropes.
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