Germany, Constitutional Court, 16 December 2020, No. 1 BvR 1541/2020
Case overview
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Link to the full text of the decision
General Summary
The case concerns access to health services by severely disabled people, who need access to ventilation therapies.
During the COVID-19 pandemic the allocation of medical resources was restricted, so the Claimants did not consider themselves to be sufficiently protected from discrimination in the event of medical triage decisions.
If the event of a triage, medical doctors have the difficult decision of decide who will receive the available medical resources. Disabled people should be treated in a non-discriminatory way. The legal regulation in question simply repeated the constitutional prohibition of discrimination and stated that special needs be taken into consideration. Also, the medical professional law does not guarantee protection against discrimination.
The Claimants alleged an infringement to the equal application of the law and to the UN Convention on Disabilities. The Claimants looked for objective legal criteria, on which the decision of the doctors about prioritization could be verified.
The Constitutional Court has upheld the claim and called the German Parliament to act on this topic through the appropriate legislation.
Facts of the case
The Claimants are severely disabled persons. One of the Claimants has Moya-Moya syndrome and another one suffers from spinal muscular atrophy and neuromuscular hyperventilation syndrome, so he regularly requires eight-hour nightly noninvasive ventilation therapy. Another Claimant suffers of limb-girdle muscular dystrophy with ventilation issues in the lungs and paralysis of the muscles of the shoulder and pelvic girdle.
Due to the COVID-19 pandemic, the Claimants feared receiving poorer treatment or being excluded from life-saving medical treatment, in case of limited availability of medical resources. The health status of the Claimants is considered as comorbidities or frailty in the medical perception and especially in the clinical-ethical recommendations of the scientific societies. Without a legal basis for the prioritization of decisions or for protection against discrimination it cannot be verifed whether decisions were made based on verifiable criteria.
The Constitutional Court sent the complaint to third parties, such as the German Ethics Council, the German Medical Association and Interdisciplinary Association for Intensive Care and Emergency Medicine, to their opinions. The Constitutional Court reported the comments and statements of all the parties involved.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
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Reasoning of the deciding body
The Court began its reasoning recalling that a claim for a violation of a protection duty requires that specific burdens of proof be met. The Claimants should prove that a protection duty under a fundamental right exists. Further, this protection duty can be infringed. Accordingly, the Court can only ascertain an infringement of a protection duty in three cases:
1) there are no protection measures at all,
2) the regulation provided is obviously unsuitable or completely inadequate to achieve the required scope, or
3) the protection measures fall considerably short of the protection goal.
According to the Court, the Claimants have met the above mentioned requirements.
The Court has recalled that the principle of equality, art. 3 comma 3 sentence 2 of the Constitution, provides a duty to the State to effectively protect people from being disadvantaged because of a disability and under certain conditions a duty of legislative action. According to this provision a disability exists if a person is impaired in the long-term in his or her ability to lead an individual and independent life. This does not refer to minor impairments, but to longer-term restrictions. This fundamental right also applies to chronically ill persons who are correspondingly impaired for a longer period.
A discrimination on account of a disability occurs in two cases. The first one arises, if opportunities, which are open to others, are denied to a disabled person and they are not adequately compensated for by an affirmative action measure related to the disability. The second one arises, if regulations and measures worsen the situation of disabled persons. According to the Court, if there is a risk that people in a triage situation will be disadvantaged in the allocation of intensive medical treatment resources because of a disability, the protection duty of Art. 3 comma 3 sentence 2, means there is a concrete duty for the State to take effective measures against this discrimination. This duty is also based on Art. 2, which poses a duty of the protection of health and life, in such situations a concerned disabled person cannot protect him or herself.
The DIVI professional recommendations for intensive care decisions in the event of pandemic-related shortages, do not eliminate the risk of discrimination because they are not legally binding as the medical standard, according to the Court. Moreover, according to the recommendation, the probability of surviving the current illness through intensive therapy is a decisive criterion in the allocation of insufficient resources in intensive care medicine.
The Court has further analyzed the guidelines and has concluded that the actual version of the recommendations could not completely rule out a potential discrimination against disabled persons.
The Court has also analyzed the legal framework concerning people with disabilities. The Court has ascertained that there are no specific rules for the allocation decision on scarce medical intensive care resources. The generic provision, as the one current medical professional law does not ensure protection against discrimination in a sufficiently effective manner, according to the Court.
Conclusions of the deciding body
The Court has concluded from the evidence put before it that disabled persons face a concrete risk of being disadvantaged in the allocation of scarce medical intensive care resources because of their disability. The Claimants cannot effectively protect themselves from these risks in the acute situation of needing treatment, nor can they avoid it. For this reason, the Court required the legislature to act without delay by making the appropriate legislation.
Implementation of the ruling
The claim has been upheld.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Access to health services and human dignity, Art. 2, German Constitution
- Principle of equality, Art. 3, German Constitution
- Art. 25, UN Convention on Disabilities
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout its decision, the Constitutional Court has applied the rule of law. It has pointed out the requirements which should be met for a claim concerning a violation of a protection duty and has recalled how the constitutional provision are interpreted.
Further, to ascertain the absence of a provision about the allocation of scarce intensive medical resources, the Court has analyzed the legal framework concerning persons with disabilities.
