Triage: Plaintiff’s attorney Oliver Tolmein on the Constitutional Court judgment – background

By Daniel Bräuer

Heidelberg. Oliver Tolmein (60) is a lawyer in Hamburg. He has handled a number of constitutional complaints on medical issues. Before his career as a lawyer, he was a journalist, for example at “taz” or as a founding member of “Ecotest“and worked as an assistant director at the Nationaltheater Mannheim, among others.

Mr. Tolmein, the Federal Constitutional Court more often overturns existing laws than it admonishes a non-existent one. Did you make legal history with your lawsuit?

Photo: zg

The court is not calling for a law. The legislature could also pass an ordinance, as in the case of vaccination prioritization. But I do think that the decision writes a piece of legal history, because it gives the prohibition of discrimination for people with disabilities once again a very special status and makes it very clear that it is a particularly important provision with high practical relevance.

Where exactly is the problem at the moment? Where is the threat of discrimination in the medical recommendations so far?

The danger is everywhere where people are assessed on the basis of their disability. This can happen consciously or unconsciously, directly or indirectly. Doctors also know that you cannot say, “You are disabled, you are not getting any life-saving treatment.” But the view of people with disabilities is often deficit-oriented. One thinks: What can he not do? How long will the treatment take? Many of the complainants experienced that only a short survival time was predicted – and they are still alive today. If there is a shortage of resources, the deficit-oriented view of disability can lead to doctors saying: “In case of doubt, we prioritize in favor of people without disabilities.”

But how should the legislature regulate this specifically? The Ethics Council says: Not according to age. The Constitutional Court says: Not according to degree of disability.

There is no such thing as a good solution for triage. That is why it is to be avoided as a matter of principle. Perhaps the moment you hold the legislature responsible for making a regulation that protects people with disabilities – perhaps this will increase the ambition to prevent triage in any case. The question is also: do we ever have decisions in which two people compete for a bed? Or 100? The criteria may have to be different. What we, the complainants and I, consider necessary is to try to start a constructive discussion on an equal footing between politicians, medical representatives and people with disabilities. It will possibly be so, when we have triage, many people without disabilities are not treated in the same way as people with disabilities. The point is that the handicap or the need for assistance are not the starting point for the decision.

Can the vaccination status play a role? Anyone who is seriously ill through their own fault, who could have protected themselves – may they be rejected in favor of others?

In principle, extreme athletes and motorcyclists are treated in the same way as others in our medical law and do not have to pay increased health insurance contributions. That is right as well. But when you have to make a decision in a situation of scarcity, I do believe that independent behavior can be one factor among several. But it has to be discussed. These are explosive questions. We as a society have to look: How do we get through there? This cannot be determined by individual groups alone.

Now, in a hurry to get such a complex and ethical matter into law – that’s not ideal, right?

No. Politicians would have had the opportunity to prevent that if they had started to deal with the subject more intensively earlier. Unfortunately, the new Bundestag now has to drag along a legacy of the old Bundestag. On the other hand, we learned from the pandemic: You can make decisions very quickly. It is also not as if we are only at the beginning of a discussion about triage. If there is a serious effort from politics to consider the provisions of the Federal Constitutional Court, including people with disabilities in the decision-making process, then you can make good progress. It is also a question of political will.

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