The hope, of course, is that it will not come to that.

That Germany will also survive this fourth and the probably inevitable fifth corona wave without overflowing the intensive care units, without doctors having to decide which seriously ill patients to treat and which not.

This terrible decision is called triage.

The Federal Constitutional Court is not interested in whether it remains a hypothetical scenario or not.

In a decision that was published on Tuesday, the First Senate ordered the legislature to take "immediate" precautions so that no one is disadvantaged because of their disability when allocating vital resources that are not sufficient for all.

Helene Bubrowski

Political correspondent in Berlin.

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When resources in Italian and French hospitals became scarce at the beginning of the pandemic, the criteria according to which doctors should make a decision about life and death were also discussed in Germany.

Medical societies agreed on a recommendation for action in March 2020.

Accordingly, the prioritization should be based solely on the clinical prospects of success, i.e. on the higher probability of survival or the better overall prognosis.

Thereupon a debate broke out in political Berlin as to whether the Bundestag should pass a law on triage.

Parliament has to settle the essential questions - and what is more important than the question of life and death?

But nothing happened, and so nine severely disabled people between the ages of 22 and 77 moved to Karlsruhe because they feared being treated worse in a situation in which not enough intensive care beds are available for everyone or being completely excluded from life-saving measures will.

Karlsruhe sees a concrete duty to act

The Federal Constitutional Court found them right, at least eight of them.

In one case, the constitutional complaint was unsuccessful because the complainant had not adequately explained the impairments he suffered from his heart disease.

Karlsruhe considers it a violation of the principle of equal treatment that the legislature has not yet done anything to effectively protect disabled people from discrimination in the event of insufficient resources.

The ban on discriminating against people because of their disabilities also includes the state's mandate to protect them from being disadvantaged - this follows from the general doctrine of fundamental rights. In view of the risk to people's lives, Karlsruhe sees a specific duty to act, which the legislature has not complied with.

Without an express regulation, there is a risk that people with disabilities will be disadvantaged when it comes to making decisions about life and death. The First Senate relies on the presentation of experts that the living situation of people with disabilities is often factually incorrectly assessed due to unconscious stereotyping. What is meant is the danger that doctors in such an "extreme decision-making situation" assess the overall prognosis of a disabled patient as worse than it actually is.

According to the assessment of the Federal Constitutional Court, this risk will not be eliminated by the clinical-ethical recommendations of the German Interdisciplinary Association for Intensive and Emergency Medicine from March 2020.

They expressly make it clear that prioritization based on underlying illnesses or disabilities is not permitted.

Karlsruhe nevertheless sees the possibility that the recommendations in their current version could become a "gateway" for the disadvantage of people with disabilities.

Legislation is getting difficult

In the recommendations for action, comorbidity, i.e. the coincidence of an underlying disease with other diseases, and frailty are described as negative indicators for the chances of success of intensive care treatment. Karlsruhe deduces from this that it cannot be ruled out that a disability is generally associated with comorbidity or frailty or that disabled people are considered frail, for example because they depend on assistance in everyday life.

The new federal government is now facing a difficult task, because as clear as the request to the legislature is to take action, it is just as unclear when it comes to what needs to be done. The Federal Constitutional Court does not specify which measures must be taken. According to the decision, the legislature has a wide scope for assessment, evaluation and design.

In this case, that is quite a burden: An abstract general norm should find a solution for all possible constellations of triage that protects disabled people from discrimination regardless of the type of limitation and does not exhaust itself in a repetition of the prohibition of discrimination.

And what if other groups now complain, for example older people, who for their part have reasons not to be treated when resources are scarce?

Perhaps the parties in the new government would have liked a hint here.

However, there is pretty unanimous praise for the decision from politicians.

The SPD, Greens and FDP promise to quickly submit a draft law.