In the following weeks, the corona crisis could create a situation for germany’s hospitals that has never been seen before in the history of the federal republic: with intensive care units overloaded, doctors had to decide in the worst case who could live and who had to die.
Fortunately, this is not yet the case anywhere in germany, but the epidemic has not yet reached its peak. A situation like that in italy with overburdened intensive care units must be avoided in germany, but it cannot be ruled out, the head of the robert koch institute (RKI), lothar wieler, recently said. "We do everything to prevent this from happening."
The german foundation for patient protection calls for a parliamentary debate on how doctors should decide if the worst comes to the worst. "There is only one body in germany that can decide on guidelines for life and death, and that is parliament," says the foundation’s chairman, eugen brysch. It is a terrible ethical dilemma – and high time for a broad discussion.
The extreme case was that patients were disconnected from ventilators in order to be able to save others. "That would be, if the intensive treatment was actually medically still necessary, strictly legally seen an active-deadly act", explains the legal philosopher reinhard merkel, member of the german ethics council, a council of experts appointed by the president of the german parliament.
"Take the case of a seriously ill 80-year-old who has a chance of getting out of intensive care and living for another three or four years. And now a young mother is admitted in a life-threatening condition, and the doctors decide to hang the 80-year-old man." If then the children of the man were to file criminal charges, the prosecutor’s office would be obliged to initiate an investigative procedure.
In its recently published recommendation "solidarity and responsibility in the corona crisis", the ethics council included the formulation that in such a case the doctor can "count on the excusable leniency of the legal system". This means that although the action was not legal, it will not be punished. "There is no such thing as a morally guilt-free decision in such a situation," says merkel. "But doctors must be protected as best they can from criminal law in such a dramatic situation. They are, of course, not criminals, even if they should decide wrongly in individual cases."
In the badly affected alsace region, doctors reportedly kept ventilators free for younger patients and did not even connect 80-year-olds to them. That at least saves the disconnect. "Psychologically, it’s easier," says merkel. "In terms of criminal law, however, it is still an act of death by omission."The physicians are actually obligated to save the one who is there at the moment. The university hospital in strabburg also emphasizes that decisions should not be made solely on the basis of age.
"If we start saying the old ones have to be hanged, they have to sacrifice themselves – then that’s something the legal system can’t stand," merkel said. "Because it guarantees equal basic rights for all."
Things are different in some foreign countries. There, the unconditional protection of the individual life is sometimes set aside in favor of a pragmatic approach. This moral philosophy is known as utilitarianism: the collective good is to be maximized – rough happiness for a rough number of people. In the concrete case: the decision is made according to how the highest number of years of life can be saved – and perhaps also what quality of life the patient can still expect. Merkel: "in general, it will be possible to say that this position can count on a rough acceptance in the USA, for example."
In germany it would be illegal. In 2006, for example, the federal constitutional court overturned a law that, in extreme cases, allowed the federal defense minister to deport an aircraft used as a weapon by terrorists. He was not allowed to do this even if the machine was occupied with 100 passengers, but was rushing toward a high-rise building with 1000 office workers. Because, the supreme court reasoned: human lives can never be set against each other.
If the intensive care units were overloaded, this would mean that decisions would have to be made by lot in order to ensure absolute equality of opportunity, explains philosopher and medical ethicist dieter birnbacher.
In practice, however, doctors ultimately have to prioritize patients. Birnbacher argues for the criterion of the probability of success. "We know this from the field of organ transplantation, where it is even laid down by law."Patient protector brysch disagrees on this point: in organ donation, decisions are made primarily on the basis of urgency, he says.
What was success probability concretely heiben? Isn’t it a question of age – a criterion which, according to the guidelines of the ethics council, should not play a role?? "It is a truism that age plays an important role in prognosis of survival," says uwe janssens, president of the german interdisciplinary association for intensive care and emergency medicine (DIVI).
"And yet it would be wrong to say that we decide according to age. No, it’s not the age, it’s the prospects for success."Should the younger one be in poor health due to pre-existing conditions, then the older one was given preference. Moreover, decisions of this magnitude always had to be made by the team, says janssens.
In medical terminology, a doctor’s preference for certain patients is called "triage" – a term derived from the french verb "trier": to sort, select. In germany, with its nazi history, this word has a terrible connotation. "If this comes our way, the discussion will boil up enormously," merkel believes. "Whether we could stand something like that, i don’t know yet. We can still hope to be spared from it."
Merkel has been dealing with bioethical issues for decades. He says: "philosophers have long theorized such scenarios, as an astute substitution. I never thought that this could become reality in this country."