„Triagegesetz“ – Regelung mit fatalen Folgen

With the coming into force of § 5c of the Infection Protection Act (IfSG), the so-called Triage Act, on 14 December 2022, a protracted discussion has come to a provisional conclusion, the result of which physicians and social associations but also lawyers and ethicists are equally dissatisfied. The explicit exclusion of the discontinuation of treatment that has already begun in favor of new patients with better chances of success (so-called tertiary or ex-post triage) prevents allocation decisions with the aim of enabling as many patients as possible to beneficially participate in medical care under crisis conditions. The result of the new regulation is de facto a first come first served allocation, which is associated with the highest mortality even among individuals with limitations or disabilities and was rejected by a large margin as unfair in a population survey. Mandating allocation decisions based on the likelihood of success but which are not permitted to be consistently implemented and prohibiting, for example the use of age and frailty as prioritization criteria, although both factors most strongly determine the short-term probability of survival according to evident data, shows the contradictory and dogmatic nature of the regulation. The only remaining possibility is the consistent termination of treatment that is no longer indicated or desired by the patient, regardless of the current resource situation; however, if a different decision is made in a crisis situation than in a situation without a lack of resources, this practice would not be justified and would be punishable. Accordingly, the highest efforts must be set on legally compliant documentation, especially in the stage of decompensated crisis care in a region. The goal of enabling as many patients as possible to beneficially participate in medical care under crisis conditions is in any case thwarted by the new German Triage Act.