Two patients, one ventilator

Are triage courts necessary, and how important is lifelong learning for medical professionals? The question of who should be treated first when the healthcare system is overwhelmed has not yet been regulated by law. Prof. Dr. Erik Hahn addresses this issue in the SZ.

So who decides who gets treated and who doesn’t?

Regardless of whether a disaster situation exists, the assessment and prioritization of patients can only be carried out by doctors. The primary factors here are medical criteria such as the prospects of success and the urgency of treatment. Even in an emergency, this can only be assessed by a doctor. As in any other situation in life, this does not, of course, protect the doctor from having the legality of their decision reviewed retrospectively by the courts.

What legal issues has the COVID-19 pandemic raised?

In the event of a major train accident, the emergency physician must decide right at the scene which of the injured people to treat first, which can wait a little longer, and—in the worst-case scenario—which victims have no chance of survival despite the best possible efforts. In the context of the COVID-19 pandemic, it may be the case that a patient requiring moderate treatment has already been connected to a life-support machine, and now another patient in even more urgent need of treatment is admitted to the hospital. This raises the question of whether treatment of the first patient may be discontinued or at least reduced in favor of the second patient. An even more serious problem arises from the question of whether, in the event of a shortage of ventilators, a patient with a lower chance of recovery may be disconnected in favor of another patient with a higher chance of recovery. Selection based on urgency and prospects of success at the start of treatment is widely accepted among medical law experts, since the legal system cannot demand the impossible from anyone. In contrast, influential voices—including the German Ethics Council—reject the right of a physician to disconnect a patient who is already on a ventilator based on the aforementioned criteria in favor of another patient.

How do you assess the Ethics Council’s position?

I am not convinced by the strict distinction between active action and omission. Nor does it correspond to parallel developments in the implementation of advance directives. The Ethics Council points out that a physician who makes a decision of conscience in such a situation can likely hope for exculpatory leniency from the legal system. However, this concept still raises so many questions that it is unlikely to reassure the doctor who is actually making the decision and who might then face criminal prosecution. These considerations become more tenable, if at all, only if one accepts the principle of chance and rejects any subsequent correction of it. According to this concept, a patient who received the last available ventilator slot just ahead of another patient was just as fortunate as an organ recipient who, at the decisive moment, had good criteria compared to other people on the waiting list.

In your view, are triage courts necessary?

In my view, triage courts do not bring about any substantial improvement. There is no doubt that the doctor faces an ethical dilemma. However, even a special triage court cannot resolve this problem. The idea of establishing such courts stems from arguments that, on the one hand—convincingly—cast doubt on the general moral superiority of doctors, but on the other hand—less convincingly—have called for special decision-making bodies based on the argument of democratic legitimacy. In my view, this merely shifts the problem, if not actually obscures it. In making their decisions, the courts would once again have to rely on a physician’s assessment of the medical situation, particularly in terms of urgency and prospects for success.

The full interview with Prof. Dr. Hahn is available to read in the *Sächsische Zeitung*.