The Marburger Bund is suing against the triage regulation in the Infection Protection Act

06.11.2023 17:26

The Marburger Bund is preparing a constitutional complaint against the change to the Infection Protection Act (IfSG), which the Bundestag passed in November 2022. The complaint is directed against procedural regulations when there are insufficient critical care intensive care treatment capacities due to a communicable disease (Section 5c IfSG).

“From discussions with many members, especially those who work in intensive care units and emergency rooms, we know that the change in the law has led to uncertainty, including with regard to possible criminal consequences. The main issue here is the question of whether the requirements for triage decisions and regulations such as e.g. "For example, the ban on so-called ex-post triage may collide with the constitutionally protected freedom of medical therapy, which seeks to ensure the survival of as many patients as possible requiring intensive care," explained Dr. Susanne Johna, 1st Chairwoman of the Marburger Bund, explains the association's motives.

“Doctors are of course committed to the prohibition of discrimination in the Geneva Medical Oath, which precedes the medical professional code. With the exclusion of ex-post triage, the criterion of current and short-term survival probability required by the Federal Constitutional Court only applies to a limited extent given limited treatment capacities essential to survival. It can lead to people with a higher probability of survival dying because they do not receive intensive care resources that another patient with a currently significantly worse chance of survival has. If intensive care capacity can no longer be freed up in extreme situations such as a resource-exploding pandemic due to the change in the law passed by the Bundestag, patients with a comparatively good prognosis, who may also need temporary ventilation due to non-infectious diseases, will die consecutively. This contradicts our medical ethos and the fundamental right to professional freedom,” said Johna.

In a situation of shortage due to communicable diseases with insufficient treatment capacity, the current and short-term probability of survival is the decisive criterion for the allocation of medical resources. The Federal Constitutional Court made this clear in its decision of December 16, 2021 (1 BvR 1541/20).

The criterion of current and short-term survival probability must apply to all patients who need the scarce treatment resource.