The COVID-19 pandemic presents two specific risks for people with disabilities, especially those who depend on several people for daily care or who live in social care facilities: not only there is a higher risk of contracting COVID-19 but also a higher probability of developing severe symptoms or dying from the disease.

To prevent intensive care shortages - and thus triage situations - the German legislator has adopted and amended numerous legal provisions but has not yet put in place a binding framework that considers illness and disability situations when regulating the fair use of scarce intensive care resources in the event of actual shortages. 

 

The Ersten Senats of the Bundesverfassungsgericht found that, in such circumstances, people's lives are at stake, one of the highest-ranking constitutional rights, protected by Art. 2, para 2, of the German Basic Law (Grundgesetz - GG). Moreover, the second sentence of Article 3, para 3, of the GG expressly provides that "[n]o one shall be discriminated against on the ground of disability", prohibiting, in this case, the rationing of intensive care services on the basis of abstract criteria such as, inter alia, disability or illness (§44).

 

In this sense, the Court observes that "[w]hether current illness, morbidity and general state of health are determinants in this, disabled and elderly persons would have a greater risk of being classified as worse off, because they are more frequently affected by secondary health problems than persons without disabilities who need care, have a poorer general state of health and become acutely ill more quickly" (§48).

 

For now, it does not appear that sufficient measures have been enacted to ensure the protection of persons with disabilities or, more precisely, to ensure that no one is at risk of being disadvantaged on the basis of disability in the allocation of life-sustaining treatment in the event of a shortage of intensive care resources.

 

Therefore, by failing to take effective and sufficient measures to deal with this sensitive situation and prevent discrimination on the basis of disability, the legislature has violated Article 3, para 3, second sentence, of the Basic Law. The Ersten Senats of the Bundesverfassungsgericht issued a clear warning: "the legislature is obliged to fulfil its duty to act without delay by taking appropriate precautions" (§130).

 

(Comment by Tania Pagotto)