Bundesverfassungsgericht

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The legislator must take effective measures ensuring that persons with disabilities are protected in triage situations caused by the pandemic

Press Release No. 109/2021 of 28 December 2021

Order of 16 December 2021
1 BvR 1541/20

The legislator has failed to take measures ensuring 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 legislator has therefore violated Art. 3(3) second sentence of the Basic Law (Grundgesetz – GG). This is what the First Senate of the Federal Constitutional Court held in an order published today.

The complainants have severe and in some cases particularly severe disabilities, and most of them require assistance in their daily lives. With their constitutional complaint, they seek effective protection against the disadvantaging of persons with disabilities in decisions on the allocation of intensive care resources in the event that the COVID-19 pandemic leads to shortages during which treatment cannot be provided to everyone in need – in other words, if triage situations arise. According to the complainants, the law as it stands would not protect them from discrimination on the basis of their disability in such situations. Therefore, the review conducted by the Court was limited to deciding whether the Basic Law imposes a duty on the legislator to take effective measures to ensure that no person is disadvantaged based on disability in a triage situation.

The life of affected persons – a constitutionally recognised interest of the highest rank (Art. 2(2) first sentence GG) – is at stake in triage situations. In such cases, the mandate of protection against discrimination enshrined in Art. 3(3) second sentence GG imposes a specific duty to take action on the legislator. Since sufficient measures to ensure protection have not been taken so far, the legislator is in breach of this duty. Not least in view of the Convention on the Rights of Persons with Disabilities (CRPD), it is incumbent upon the legislator to take sufficiently effective measures preventing any disadvantaging on the basis of disability in the allocation of scarce intensive care resources in the event of pandemic-related shortages. The legislator must take effective measures as soon as possible. At the same time, the legislator enjoys a margin of assessment and appreciation as well as leeway in designing a viable approach.

Facts of the case:

The COVID-19 pandemic gives rise to specific risks for persons with disabilities, especially those with certain types of impairments or pre-existing conditions. Persons with disabilities who live in institutional settings or who rely on several third parties for daily assistance bear an increased risk of contracting COVID-19 and bear a higher risk of developing severe symptoms or dying from the disease. To prevent shortages in intensive care – and thereby triage situations – from the outset, the legislator has enacted and amended numerous provisions of both statutory law and ordinances. Yet so far, no binding framework has been put in place governing the allocation of intensive care resources in the event that shortages actually occur. In the meantime, several bodies have issued professional recommendations in order to provide standardised decision-making guidelines.

In the present case, the complainants claim that the legislator has violated the prohibition of disadvantaging on the basis of disability laid down in Art. 3(3) second sentence GG, as well as the requirements derived from Art. 25 CRPD, the relevant UN convention ratified by Germany. They argue that the legislator has not taken any action to ensure that they are effectively protected against disadvantaging in the event that triage situations arise in the course of the pandemic. According to the complainants, this legislative inaction could also amount to violations of their human dignity (Art. 1(1) GG) and their fundamental rights to life and health (Art. 2(2) GG).

The Court gave expert third parties the opportunity to submit statements.

Key considerations of the Senate:

I. The prohibition of disadvantaging based on disability, as enshrined in Art. 3(3) second sentence GG, requires the state to ensure effective protection against such disadvantaging (mandate of protection). In certain situations, this mandate may culminate in a specific duty to take action on the part of the legislator. 

a) In order to establish the element of ‘disability’ under Art. 3(3) second sentence GG, it is necessary to show that a person’s ability to lead their life as an independent individual is impaired for a longer period of time. This understanding focuses on considerable long-term impairments and does not include marginal impairments. By contrast, the cause of disability is irrelevant in this respect. Therefore, the fundamental rights protection afforded under Art. 3(3) second sentence GG extends to chronically ill persons whose impairments are sufficiently long-term and sufficiently considerable. In the present case, one of the complainants demonstrated having a chronic illness but failed to assert and substantiate any impairments resulting therefrom. Thus, his constitutional complaint is inadmissible.

b) The fundamental right enshrined in Art. 3(3) second sentence GG encompasses several dimensions of protection: it confers a defensive right against disadvantaging by the state; it requires that disadvantages on the grounds of disability be compensated by accommodating measures; and it contains a decision on objective constitutional values that must be upheld in all areas of law. Moreover, Art. 3(3) second sentence GG imposes a mandate of protection upon the legislator. This does not mean that the legislator is under an unconditional duty to take action addressing the entire lived experience of persons with disabilities and their social environment in any circumstances. Yet in certain situations, where persons with disabilities are particularly vulnerable, the constitutional mandate of protection may culminate in a specific duty to take protective action. This duty may arise in situations where persons are subject to targeted exclusion, amounting to an attack on human dignity, or in situations of structural inequalities. A specific duty to take action may also arise on the grounds that a disadvantaging on the basis of disability results in risks to exceptionally high-ranking fundamental rights interests. This is the case, in particular, if the protection of life is at stake (Art. 2(2) first sentence GG).

c) At the same time, the legislator is afforded broad leeway in designing the framework of protection, which results in a limited standard of judicial review as to whether the legislator has violated a constitutional duty of protection. The Federal Constitutional Court may only find a violation if no protective measures were taken at all; or if the adopted rules and measures prove to be manifestly unsuitable or inherently inadequate for achieving the required aim of protection; or if the measures in question fall significantly short of the aim of the protection. In this respect, the legislator enjoys a broad margin of appreciation and assessment as well as leeway to design a framework of protection.

II. Measured against these standards, the constitutional complaint is well-founded.

1. Where persons are at risk of being disadvantaged on the basis of disability in triage situations concerning the allocation of intensive care resources, the mandate of protection under Art. 3(3) second sentence GG imposes a specific duty on the state to take effective measures protecting against such risks. A legal order that seeks to ensure equal participation of persons with disabilities in society cannot tolerate a disadvantaging on the basis of disability in situations that affected persons cannot themselves guard against and that entail immediate risks to their life and health, thereby jeopardising legal interests recognised as exceptionally significant in Art. 2(2) first sentence GG. In such situations, it is also beyond the control of those persons to effectively ensure their own protection.

a) There are sufficient indications that the complainants are at risk of being disadvantaged on the basis of disability in decisions allocating life-sustaining intensive care resources in the event of pandemic-related shortages, and thus in decisions on life and death. Based on an overall appraisal of the assessments and statements submitted by expert third parties, and of the professional recommendations issued in practice, the effective protection of affected persons – who cannot protect themselves against the demonstrated risks – is currently not ensured. Experts from the medical field submitted that the task of administering intensive care involves complex decisions that may involve ‘subjective elements’ which entail risks of discrimination. Statements received from both professional bodies and welfare organisations confirm, in line with scientific studies, that there is a risk of disadvantaging on the basis of disability in the event that a shortage of medical resources should occur. Several third party experts submitted that professionals often err when assessing the life circumstances of persons with disabilities and that unconscious stereotyping puts persons with disabilities at risk of being disadvantaged in medical treatment decisions.

b) The professional recommendations issued by the German Interdisciplinary Association for Intensive Care and Emergency Medicine (Deusche Interdisziplinäre Vereinigung für Intensiv- und Notfallmedizin – DIVI) cannot fully eliminate this risk inherent in decision-making on intensive care resources in the event of pandemic-related shortages. These recommendations are not legally binding. They are also not tantamount to ‘medical standard practice’ under the law governing the medical profession, but merely serve as an indication thereof. In any case, it cannot be ruled out that these recommendations, in their current version, create or exacerbate risks of disadvantaging persons because of a disability. This holds true even though the recommendations explicitly state that any prioritising on the basis of pre-existing conditions or disability would be impermissible. The aforementioned risks are still present insofar as the recommendations describe serious medical conditions in terms of comorbidities as well as ‘frailty’ as negative indications for determining the prospects of intensive care treatment. In this respect, it cannot be ruled out that the existence of a disability will generally be conflated with the existence of comorbidities or lead to stereotypical assumptions that the patient has worse prospects of recovery. Moreover, in determining the prospects of treatment, the recommendations refer to the likelihood of the patient surviving. While this is in principle a permissible criterion, the guidelines do not make it sufficiently clear that it must be defined solely as the likelihood of surviving the acute medical episode in question.

2. To date, the legislator has not taken any measures to effectively protect against the risk that persons will be disadvantaged on the basis of disability in the allocation of scarce intensive care resources.

It is true that the legislator has repeatedly engaged with its mandate of protection under Art. 3(3) second sentence GG. Specifically, legislative action has been taken to bring German domestic law in line with the Convention on the Rights of Persons with Disabilities, in particular by adopting the Act on Strengthening the Participation and Self-Determination of Persons with Disabilities (Bundesteilhabegesetz). In addition, the legislator, with the Act on Equal Opportunities for Persons with Disabilities (Behindertengleichstellungsgesetz), seeks to promote accessibility. There are also general non-discrimination clauses in social law. Nevertheless, the legal order does not set out sufficiently effective requirements protecting against discrimination in healthcare, which are also imperative for giving effect to Art. 25 CRPD. Specifying such requirements is imperative for ensuring protection against disadvantaging on the basis of disability in pandemic-related triage situations.

Should the need for triage arise in the course of the pandemic, attending doctors will be confronted with a situation in which they have to take extreme decisions. They will have to decide how the available intensive care resources are to be allocated, that is who should receive treatment and who should not. In this context, it may be especially demanding for the professionals in charge to consider persons with disabilities without any discrimination. The law must therefore ensure that those in charge take into account only the patient’s short-term likelihood of surviving the acute medical episode. As the law currently stands, the legislator has enacted provisions that simply reiterate the prohibition of disadvantaging laid down in Art. 3(3) second sentence GG or merely state that the particular needs of persons with disabilities be taken into account. This is not sufficient to fulfil the specific duty to take protective action deriving from Art. 3(3) second sentence GG. Nor does the law governing the medical profession currently ensure effective protection against disability-based discrimination.

3. Regarding the details on how to fulfil the specific duty to protect arising from Art. 3(3) second sentence GG, the legislator enjoys a margin of assessment and appreciation as well as leeway to design.

The legislator has several options to effectively counter the risk of disadvantaging on the basis of disability in the allocation of scarce intensive care resources.  The legislator will have to take into account that the already strained capacities in healthcare personnel and goods must not be additionally burdened in a manner that would ultimately subvert the intended goal of strengthening effective protection of the life and health of patients with disabilities. Also, the legislator must adhere to its corresponding duty to protect the life and health of other patients as well. The particularities of clinical healthcare, such as the medical need for swift decision-making must be taken into account just like the fact that final responsibility for medical evaluations in a given case rests with the attending doctors, based on their special professional competence and clinical experience.

Within these parameters, it is for the legislator to decide whether to lay down substantive criteria for allocation decisions in the event of shortages in law. The inviolability of human dignity does not per se preclude the legal definition of such criteria. It is true that respect for human dignity prohibits any weighing of life against life. Yet it is possible for the legislator to define constitutionally sound criteria for decisions on how to allocate scarce resources necessary to save lives. The legislator may also decide to lay down procedural requirements – such as requiring allocation decisions to be taken by multiple persons (Mehraugenprinzip, “multi-eyes-principle”) or proper documentation –, and the legislator may provide for support on the ground. In addition, there is the option to specify requirements for basic and advanced training of medical and nursing staff, especially for those working in intensive care, which may also contribute to preventing disadvantages on the basis of disability in triage situations. Ultimately, it is for the legislator to design a viable approach.