Plenary session in the Bundestag in Berlin, January 12, 2022.
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In a December 2021 ruling, Germany’s Federal Constitutional Court ordered lawmakers to protect people with disabilities against discrimination during medical triage decisions. Nine people with disabilities had filed a complaint with the court in June 2020 alleging that the absence of federal guidance on triage decisions left people with disabilities at risk of discrimination. The complaint related specifically to intensive care treatment during the Covid-19 pandemic.
Triage involves the evaluation of who should be prioritized for medical treatment in situations where resources are scarce. During the pandemic, many hospitals in Germany have faced severe overcrowding.
The court found the legislature had failed “to take measures to ensure that no one is at risk of being disadvantaged on the basis of disability in the allocation of life-sustaining treatment if shortages in intensive care resources arise.” The court ordered lawmakers to introduce stronger measures based on the constitutional right to nondiscrimination. They should consider disability rights training for medical staff and the creation of stronger procedures to identify disabilities.
People with disabilities and disability rights organizations in Germany welcomed the court’s ruling.
Throughout the pandemic, several of these organizations have criticized some local triage guidelines and expressed fears that others might be given priority during emergency treatment due to stigma and negative attitudes about the quality of life for people with disabilities. Experts confirmed to the court that administering intensive care involves complex decisions with considerations that risk leading to discrimination.
The ruling is an important step towards ensuring nondiscrimination of people with disabilities when accessing life-saving treatment. Going forward, triage policies should be designed in collaboration with organizations of persons with disabilities, in line with Germany’s human rights commitments. Policies should include recommendations on reasonable accommodations during intensive care treatment.
As the German government continues to implement Covid-19 preventive measures aimed at reducing the need for triage, it is critically important that when hospitals do determine emergency care is needed, people with disabilities enjoy the right to health, including life-saving treatment, on an equal basis with everyone else.