Dhe triage law presented by the government and discussed by the Bundestag today is a document of suspicion. So far, no cases have been reported in this country in which a person is said to have been disadvantaged in the distribution of therapy places in intensive care units, for example due to disability, sexual orientation or old age. Nevertheless, last year the Federal Constitutional Court instructed the legislature to take “immediately” precautions to protect people with disabilities in the event of a necessary triage.
So far, doctors have tended to be suspected of treating their patients for too long and too intensively, but now it is assumed that they can treat people too briefly or not at all. It’s hard to imagine what that means for the often apostrophized relationship of trust between patients and their doctors.
In other areas of life, which are also of existential importance for those affected, one does not come up with the idea of preventive anti-discrimination. Deprivation is like evil – always and everywhere. But one can hardly imagine that similar legal precautions should be included in the Code of Civil Procedure.
decisions about life and death
The Bundestag must now pass a law on a situation that has obviously been very regulated so far, even without regulation. Because decisions about the allocation of medical measures in view of scarce resources do not only occur in the pandemic, for years there have been cases such as that of a person with craniocerebral injuries having to be skipped back and forth in the ambulance for long hours until the region free intensive care bed is found.
A law therefore seems superfluous. Overregulation is to be feared. In view of this fact, one can certify that the draft law from the house of Lauterbach will at least probably cause little harm. In particular, the ban on ex-post triage was hotly debated. This means that intensive care treatment, once it has started, cannot be ended straight away when another patient arrives at the clinic with perhaps a slightly better prognosis. Patients must be able to trust that once treatment has been initiated, which also puts them into a coma-like sleep, it cannot be terminated.
The Federal Council had called for a regulation on this. The federal government saw no reason to change anything else in the draft law, because it contains the succinct sentence “allocated vital intensive care treatment capacities are excluded from the allocation decisions”. However, this formulation suggests misinterpretations.
Every medical treatment must be checked again and again for its chances of success. It took intensive care medicine many years to learn how to stop treatment that had started, such as treatment on a breathing machine, when the prognosis had become marginal. The prognosis may have been good when the treatment was started, but the course now shows that the treatment is hopeless. Then it has to end. Then only palliative medical measures are indicated. The wording in the legal text seems to oblige doctors never to end treatment in the intensive care unit once it has started. It was a painful process until medicine learned to end intensive care therapy once it had started if the prognosis was hopeless. And in the event of a pandemic, the prognosis of all patients receiving intensive care, for whatever reason, must be checked again and again at short intervals. When it comes to allocations of medical resources, all patients are equal.
This points to an oddity. The triage should only be regulated for the case when, due to a communicable disease, there are not enough vital intensive care treatment capacities available. In view of the shortage of staff in the clinics, bottlenecks in intensive care are the order of the day. This exposes the venture as a do-gooder law, a tranquilizer for all who have once again stood up to inequality.
The sole criterion for the allocation of treatment capacities should be the short-term probability of survival during the current intensive care stay, or even better, the chance of being able to leave the clinic again after the episode of illness. It is widely overlooked that patients are highly vulnerable in the days following the completion of intensive care. The lethality increases again. Therefore, the only target criterion can only be the chance of being able to leave the clinic again. The criterion has been criticized by many, but absolutely no other can be imagined. All other conceivable criteria led to manifest discrimination.
Stephan Sahm is a doctor and philosopher. He works as chief physician at the Medical Clinic I of the Ketteler Hospital in Offenbach.