The Institutional Tragedy of Pandemic Triage Regulation in Italy and Germany

In: European Journal of Health Law
Irene Domenici Max-Planck-Institute for Social Law and Social Policy Amalienstraße 33, 80799 München Germany

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Franciska Engeser Max-Planck-Institute for Social Law and Social Policy Amalienstraße 33, 80799 München Germany

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This article adopts a comparative approach exploring the reactions to the scarcity of resources resulting from the Covid-19 pandemic in Italy and Germany. Both countries showed a fragmented structure including individual hospitals, medical associations and recommendatory interdisciplinary bodies, such as ethics councils. Against this background, the authors use the different constitutional frameworks in which the healthcare systems are embedded to assess the legitimacy of the intervention by non-legislative bodies. It is demonstrated that, in both jurisdictions, a certain level of parliamentary involvement in establishing triage criteria or procedures is constitutionally required, as in situations of extreme scarcity the prioritisation decision cannot be determined by a mere clinical analysis but rather demands a normative choice.

1 Introduction

The allocation choices that legal systems face in situations of extreme scarcity are often referred to as tragic choices. Especially in the case of resources essential for the health and life of the individual, selective allocation always entails a sacrifice of fundamental values such as equality or the right to life, health and dignity. Where an extremely scarce but vital resource needs to be allocated only to a specific group of individuals, any choice seems wrong.

The problems related to the allocation of scarce resources in health law harbour a fascination that has attracted the attention of various legal scholars.1 Guido Calabresi and Philip Bobbitt’s 1978 contribution2 placed particular emphasis on the importance of approaching the issue with a comparative approach. Both the perception of an allocation choice as ‘tragic’ and the procedures used to reach the allocative decision certainly depend on ‘the nature of the society making the tragic choice’.3

Starting from this assumption, our contribution aims to investigate the role of the legislature in decisions on the allocation of intensive care resources during the Covid-19 pandemic. We compare Italy and Germany – two countries that present ‘rough concurrences with regard to the status given to values of life and equal treatment’4 but experienced the actual situation of scarcity during the pandemic at a very different scale and urgency. Both jurisdictions showed an extremely fragmented approach to responding to the triage dilemma, mainly due to the regulatory vacuum left by the legislature’s failure to intervene.

On the one hand, it remains clear that the primary obligation of the legislature is to protect fundamental rights and this implies the provision of organisational and financial means to prevent a situation of scarcity. ‘First-order determinations’5 were taken at an early stage of the pandemic and were aimed at strengthening hospital care and providing funds for equipment and services.6 However, the situation of scarcity of beds and personnel could not be fully remedied. Under these circumstances, in both compared countries, an intense discussion arose as to which body shall be competent to dictate the criteria according to which patients should be prioritised for treatment. This debate culminated, in Germany, in a recent decision of the Federal Constitutional Court.7

The article seeks to contribute to this discussion by arguing that the legislature should play a key role in defining the normative framework for triage. As we will demonstrate, this conclusion derives from several considerations regarding the legislature’s duty to protect fundamental rights and its ability to provide a democratically legitimised normative and ethical framework. In addition, central legislative intervention can prevent the adoption of different criteria across hospitals and regions. Avoiding such fragmentation could prevent uncertainties and discrimination.

For this purpose, our study considers the variety of actors that have taken responsibility for elaborating criteria for triage decisions in the absence of legislative action. We assess the legitimacy of non-legislative intervention in relation to the constitutional and institutional frameworks of the two jurisdictions. Our aim is to assess the institutional framework rather than to elaborate legitimate criteria in the regulation of triage choices.8

A reflection on which body should have the responsibility to dictate the normative framework of triage is relevant not only to legally assessing the current crisis response or as preparation for future emergencies, but it also helps reflecting on the difference between various scarcity scenarios when allocating life-saving treatments.

ICUs are faced with the daily need to prioritise patients so that everyone can efficiently receive optimal care.9 This routine patient management aims to protect the individual interest of each patient10 and ultimately ensure life-saving treatment for all.11 Such prioritisation can be performed by applying purely clinical criteria. However, a situation of scarcity might be so extreme as to overwhelm the units and result in the impossibility of offering a life-saving treatment to all patients.12 In a scenario where the number of patients greatly exceeds the available resources, a proportion of them will inevitably be excluded from receiving treatment although it would be medically indicated.13 In this situation, the choice cannot be based on purely clinical criteria, nor can it focus on the individual interest of the patient. Any selection criteria will involve an ethical stance.14 For instance, age cut-offs – unless clinically relevant – and the value assigned to the ‘number of years of life saved’ are criteria involving a utilitarian ethical positioning.15 This demonstrates how the situation of extreme scarcity changes the very nature of the decision from a purely medical to an ethical one.16 In such cases, the allocation is referred to as triage, which Lübbe indicates as ‘the sorting of patients […] when the mass of patients vastly exceeds the available resources’.17

During the current Covid-19 pandemic, a well-founded fear arose that triage scenarios could occur. Enormous publicity surrounding the pandemic put the spotlight on ICU shortages, raising public awareness of the need to establish shared criteria for triage.18 However, circumstances of extreme scarcity will also occur episodically in ordinary times. Occasional triage situations might happen due to localised catastrophic events or shortage of staff or financing.19

2 Similar but Yet Different: Italy and Germany Facing Pandemic-Driven Scarcity

2.1 The Constitutional Framework of Triage Decisions

2.1.1 Italy: An Egalitarian Conception of the Right to Health

Article 32 of the Italian Constitution enshrines the right to health.20 This consists of a negative aspect according to which individuals shall be free of interferences with their health, and a positive component covering the right to receive health care services.21 For the second aspect, Article 32 requires implementation by the legislature22 which must read that right to health in conjunction with Articles 2 (inviolable rights) and 3 (right to equality) of the Constitution. The constitutional framework thus provides the basis for a strongly egalitarian and patient-centred conception of the right to health.23

These principles are enshrined in Article 1 of Law 833/1978 which, in establishing the National Health Service, assigned it the task of protecting the health of the entire population ‘without distinction as to individual or social conditions and in such a way as to guarantee equality of citizens in access to the service’. The 1978 legislature was certainly aware that this universal and egalitarian conception of the right to health would suffer from financial and resource constraints. This concern has been addressed by the Constitutional Court in several judgements upholding that the legislature, while being constitutionally obliged to ensure implementation of Article 32, may consider budget requirements when balancing the right to health and other constitutional interests.24 However, the Court has also held that financial requirements cannot go so far as to undermine the essential core of the right to health.25 Consequently, selective distribution of healthcare resources is legitimate when there are objective organisational and financial constraints.26 According to this case law, such a decision must always be the product of a balancing of constitutional interests that is exclusively entrusted to the legislature.27

2.1.2 Germany: The Duty to Stand in Protecting and Promoting Life

Article 2.2 s. 1 of the German Basic Law protects the life and physical integrity of all individuals as a subjective individual right.28 It is classically conceived as a negative right protecting against state interference.29 Its positive aspect includes the state’s duty ‘to stand in protecting and promoting life’, i.e., above all preventing unlawful interference by others.30 The enforceability of this duty to protect, however, interferes with the principle of separation of powers laid down in Articles 20.2 and 20.3 providing for the mere supervision of legislative activity by the judiciary. Hence, in principle, the Federal Constitutional Court grants the legislature an extensive discretion in the assessment and implementation of measures. A breach of the duty to protect is only assumed if protective measures are not taken at all, if the regulations and measures taken are obviously unsuitable or completely inadequate to achieve the required protective objective, or if they fall considerably short of the protective objective.31

Generally, a right to specific medical services cannot be derived from Article 2.2 s. 1.32 However, it has been acknowledged in exceptional cases regarding extraordinary treatments for life-threatening or fatal diseases for which no other generally recognised treatment is available.33 Additionally, the Constitutional Court has classified functioning healthcare as a supremely important common good that the state must ensure according to the welfare state principle.34

The right to life and bodily integrity in conjunction with the equality principle (Article 3.1) grants the right to participate in state services on an equal basis.35 This also includes access to intensive care services without arbitrariness.36 This ‘derivative right of participation’37 also requires the exhaustion of available capacities before any rejection of patients.38 However, this mainly plays a role in formulating allocation criteria.

During the pandemic, the prohibition of discrimination against persons with disabilities (Article 3.3)39 and the indifference in the value of life (Article 1.1)40 have been widely discussed. Under Article 1.1 the guarantee of human dignity prevents the state from measuring the value of a human life and weighing it against others. Every life has equal value under the Basic Law, regardless of assumed remaining lifespan or existing suffering.41 Authorities may therefore not sacrifice one life to save another.42

The principle of the rule of law (Article 20.3) and the principle of democracy (Articles 20.1 and 2) form the basis of the ‘doctrine of essentiality’ (Wesentlichkeitslehre)43 under which all essential decisions must be taken by the democratically elected legislature.44 Which decisions are classified as essential is derived from the Constitution45 and include the primacy of fundamental rights which are binding on all authorities (Article 1.3). Hence, decisions relevant to the exercise of fundamental rights are considered ‘essential’.46

Within a federal state, the attribution of legislative competence is important but the fundamental questions regarding the doctrine of essentiality and the duty to protect fundamental rights apply equally to both the federal and the 16 Landes legislatures under Articles 28.1 and 31.47 Against this background, we refer to existing studies in the literature while maintaining the focus on questions of material constitutional law.48

2.2 Autonomy of the Doctor and the Role of Medical Guidelines

The autonomy of individual doctors and medical associations is protected by the Constitutions of both jurisdictions.

In several decisions, the Italian Constitutional Court has ruled that, unless other constitutional rights are at stake, it is up to the medical profession to specify the purpose, conditions and limits of therapeutic practices.49 The power of the legislature to adopt measures under constitutional requirements stands,50 but its political discretion is limited by the need to consider the state of scientific knowledge.51 Hence, the Court recognises that the legislature’s discretion must leave room for the individual doctor’s assessment, and for policies developed by scientific societies. As a result, the scientific assessments of medical associations should be the standard by which the conduct of physicians is measured.52

The German Constitutional Court has acknowledged the physician’s constitutionally guaranteed freedom in choosing treatments,53 protected as part of the fundamental freedom of occupation (Articles 12.1 and 12.2), which is limited by patients’ autonomy and by restrictions or requirements of social security law. The scientific standard influences the scope of the freedom itself; a physician is permitted to choose methods and procedures within the framework of medical standards.54 Freedom of conscience (Articles 4.1 and 4.2)55 can also be affected in situations of triage.56

These constitutional considerations are mirrored in the rules on the civil and criminal liability potentially arising from triage choices.

In Italy, Article 5 of Law no. 24/2017 on doctors’ liability establishes a procedure through which binding guidelines for healthcare professionals can be developed by scientific organisations and published in an official collection.57 Compliance with these official guidelines influences the assessment of the doctor’s conduct in both criminal and civil proceedings. In criminal proceedings, according to Article 6, there is no liability for alleged malpractice if the doctor has complied with these guidelines, or where these do not exist, with other ‘good clinical and care practices’. According to Article 7.3, when determining the compensation for damages from extra-contractual civil liability, the judge assesses the doctor’s compliance with the guidelines.

The German legislature has stipulated that guidelines are only legally binding in exceptional circumstances.58 Otherwise, policies from medical associations are understood as general guidance for physicians. Depending on the individual case, deviation does not amount to medical malpractice. Instead, a physician might explain why choosing a therapy other than the recommended one. For instance, medical standards might require another treatment due to the circumstances of the individual patient or due to current scientific findings that are not yet reflected in the policies.59 Scientific policies are relevant for assessing the accordance of a treatment with the medical standard and thus legality of a medical treatment both under civil law as well as under criminal law. Consequently, medical malpractice can generate liability claims against health workers in for violations of contract60 and extra-contractual61 law. In terms of criminal law, medical malpractice can lead to the offences of manslaughter or battery.62

2.3 Factual Background: A (Looming) Situation of Extreme Scarcity

2.3.1 The Case of Italy: Who Decides Who Lives and Who Dies?

At the outbreak of the Covid-19 pandemic, the Italian healthcare system was suffering from years of budget cuts and ICUs were facing shortages.63 ICU bed availability was far below the average in western countries and geographical concentration affected accessibility.64

The nature and timing of the spread of the pandemic caught northern Italy by surprise and unprepared.65 At the beginning of March 2020, The Lancet published an article claiming that the number of patients would soon exceed the system’s capacities.66 The shortage became apparent at a very early stage.67 Many doctors admitted being confronted daily with the need to ‘decide who must die and whom we shall keep alive’.68 Due to the concentrated growth of Covid-19 cases,69 the hospitals in Lombardy were soon overmatched70 with on average ten patients for each available bed.71 Cases have been described of elderly patients who, despite having a good chance of recovery, died of respiratory failure due to the lack of ventilators.72 The tragic decision of to whom to assign life-saving resources was made at first by the individual doctor.73 As the extent of the crisis became clearer, hospitals started implementing age cut-offs and soon triage criteria varied from one hospital to another.74

The existing national pandemic plan developed by the Ministry of Health and the National Centre for Disease Prevention and Control (CCM) dated back to 2006.75 Regarding triage, the plan had identified the provision of guidelines as a responsibility of the Ministry of Health and the CCM – an obligation they failed to fulfil.76

Against this background of fragmented criteria,77 the Italian Society of Anaesthesia, Analgesia, Resuscitation, and Intensive Care (SIAARTI) was urged to publish guidelines.78 The resulting document79 stated that resources should be allocated, firstly, to patients with the greatest chance of survival and, secondly, to those who can have the ‘most number of years of life [to be] saved’. The society warned that an age limit for admission to ICUs might be necessary. These recommendations were met with some criticism. It was alleged that the document adopted a utilitarian approach that is incompatible with the egalitarian nature of the Italian healthcare system and the constitutional provision of the right to health.80 Criticism focused on the criteria suggesting an almost automatic allocation of resources to the youngest patients.81

Objections raised by the President of the Italian Medical Association (FNOMCeO)82 accused SIAARTI of running against the association’s code of medical ethics, according to which all patients must be treated equally.83 In April 2020, the Italian Committee for Bioethics published an opinion very critical of SIAARTI’s approach, claiming that selection criteria not purely based on clinical standards are ethically unacceptable.84

After a combined attempt by FNOMCeO and SIAARTI to agree on a position, the call for a wider public debate was acknowledged by the Italian National Institute of Health (ISS). It invited SIAARTI and the Italian Society of Legal Medicine and Insurance (SIMLA) to form an interdisciplinary working group and compile a draft to be submitted for public debate to scientific and professional societies and other stakeholders.85 After comments on the first draft,86 the final recommendations were published in the National Guidelines System. The document emphasised that triage must seek to ensure treatment for the greatest number of patients, and that age could only be considered in assessing clinical condition.87

The procedure by which this document was drafted and published is important. SIAARTI and SIMLA are included in the list of institutions entitled to issue binding guidelines under Article 5 of Law no. 24/2017. As a result, the recommendations were drafted within a procedure prescribed by the legislature and legitimised to produce guidelines for the assessment of medical liability. However, the publication did not entirely follow the procedures prescribed by Article 5.3. The document was released in the section of the National Guidelines System on ‘good practices’ and not in the section on guidelines, as would be required for binding force.88 Due to the resulting hybrid nature of the document, the legal relevance of these recommendations could be challenged in the courts.89 However, they currently represent the closest to a legally binding document in Italy.

A new national pandemic influenza plan, developed with great delay and only published in January 2021, also emphasises the need to provide criteria for prioritising access to ICUs.90 Building on the lessons of the pandemic, the plan is inspired by the prospect of preparedness for possible future pandemic scenarios caused by influenza viruses. The development of triage guidelines and criteria is considered essential in future pandemic scenarios. However, instead of developing a normative framework for triage, the plan simply refers to the previous opinion of the Italian Committee for Bioethics.91

2.3.2 The Case of Germany: Ducking Away from Decision-Making

Germany is amongst the European countries with the highest number of ICU beds in relation to the population and the shortest travel time to the nearest ICU facility92 ; its hospitals were not as badly affected by the pandemic as their Italian counterparts. The first infections also hit Germany later than Italy and the frightening images from the south had already reached German society and politics. Additionally, the National Pandemic Plan, which collects structures and measures93 to combat pandemics as well as scientific information about their development and spread,94 was updated in 2017. The document is not legally binding and refers to influenza virus pandemics, nevertheless it provided orientation for politics and decision-makers. Included are recommendations to efficiently exhaust and expand health capacities to prevent triage situations, whilst there is no word on handling an actual shortage of resources.95

Against this background, measures to combat the pandemic such as risk assessment for large events and health controls at the boarders96 were taken at an early stage of the first wave.97 The Covid-19 Hospital Relief Act granted compensation payments for keeping ICU beds free and premiums for the creation of new beds.98 The Regulation on Maintaining and Securing Intensive Care Hospital Capacity of the Federal Ministry of Health came into force on 10 April 202099 and led to the establishment of the German Interdisciplinary Association for Intensive Care and Emergency Medicine (DIVI) Intensive Care Register. Figures published daily by the register show that the number of required ICU beds never exceeded the number available, both nationwide and in the individual Länder.100 However, this does not necessarily indicate that no triage situations happened: Intensive care medicine differentiates between different categories of intensive care beds101 but they are all subsumed under the term ‘operational beds’ in the DIVI Register.102 In addition, in some regional outbreaks not all hospitals in a particular Land reached capacity, but quite possibly did so in individual cities or regions.

It is unclear whether triage decisions were made. According to official information at the time of writing, there was no triage in Germany during the pandemic but claims to the contrary have neither been officially confirmed nor denied.103 There was probably so-called ‘soft triage’,104 i.e. suboptimal care by relocating or postponing other medical interventions,105 and situations were reported in which people with disabilities or the elderly were not hospitalised, despite medically indicated, to leave beds available, so-called ‘grey triage’.106

In preparation for the possible worst case, several expert committees published recommendations. Most significant was that of the DIVI and seven other medical associations.107 Prioritisation was based on the criterion of clinical probability of success, clarifying that decisions must be made considering all patients (not exclusively Covid-19 patients) and that prioritisation based on age, social characteristics or specific underlying diseases or disabilities was not permissible.108 The German Ethics Council109 published a recommendation containing a legal assessment of triage situations and the German Medical Association stated in their ‘orientation guide’ that it was a ‘task of politics […] to create transparency with regard to medical decision-making constraints, thus giving doctors backing’ in the event of resource scarcity.110 Above all, the criminal law assessment of medical decisions to allocate resources in cases of extreme scarcity was unclear. A large number of contradictory legal opinions were published.111 The resulting fragmentation of the legal framework led to considerable uncertainty among medical staff. The Federal Office of Civil Protection and Disaster Assistance published a hospital alert and response planning manual to provide a basis for local responses to disasters of all types. However, this guidebook was not available when the pandemic began; it was not published until December 2020.112 The competence for legislative measures in the area of catastrophe protection lies with the Länder, so the area is regulated differently.

However, neither legislature nor government provided a clarification for health workers on the correct course of action with regard to extreme scarcity. This has been brought to the Federal Constitutional Court in form of an appeal against legislative omission by nine disabled complainants who feared not to be treated appropriately. In a preliminary decision, the court declined to oblige the legislature to enact protective legal measures as requested by the applicants, stating that the occurrence of a triage situation was unlikely at that time (June 2020).113 Yet, in December 2021 the final decision on the merits accepted an obligation of the legislature to immediately regulate one specific aspect of a threatening triage situation:114 From Article 3.3 the court derives the State’s duty to protect the complainants, all persons with disabilities, from being discriminated against. After a detailed analysis of the factual conditions, the court finds that the very high requirements for a legislative obligation are met, for the “persons concerned are currently not effectively protected from identifiable risks to highest-priority legal interests in a situation where they cannot protect themselves.”115

Whilst generally the probability of success of a treatment is considered a rational criterion, in this special situation where ICUs staff might be overwhelmed and would have to decide spontaneously, “there is also a risk here that the probability of survival is not clearly related only to the current illness. This is because it cannot be ruled out that a disability is associated across the board with comorbidities or stereotypically linked with poor prospects of recovery.”116 To prevent deviation from the very narrow criteria of clinical probability of success, the Constitutional Court proposes primarily procedural mechanisms (multiple-eye principle, documentation requirements).117

3 Constitutional Demand for Legislative Intervention

In both countries, the lack of legislative regulation contributed to an uncertain and fragmented decision-making framework. Yet, in spite of these difficulties, legal scholars from both jurisdictions have argued that the constitutional frameworks would prevent the legislatures from being involved in establishing criteria for triage. Their usefulness has also been questioned given their reputation for slowness or reluctance in reaching a decision and a lack of flexibility and meaningful medical knowledge.

We argue that triage criteria are indeed accessible to state regulation and that an obligation on the legislature to intervene can be inferred from the constitutional frameworks of both jurisdictions.

3.1 Italy

The Italian Constitutional Court grants medical professionals wide autonomy in deciding the conditions of therapeutic practice. This constitutionally guaranteed area of responsibility has been cited by most legal scholars to justify and legitimise the intervention of medical associations in defining the criteria for triage.118 Some have suggested that the legislature would be constitutionally required to defer the issue of triage to the self-regulation of the medical profession.119

Although this approach has been widely embraced in Italian legal literature, it is open to criticism. It fails to consider that, in the situation of extreme scarcity imposed by Covid-19, the decision-making horizon shifts from clinical criteria to ethical ones. In this aspect, pandemic triage differs from normal scarcity which requires the efficient management of large numbers of patients. The principles laid down by different entities thus generate a great deal of fragmentation in the adoption of conflicting ethical and normative conceptions.120 However, medical societies must not usurp the legislature’s prerogative to set common axiological standards.121 The rules of medical ethics remain an expression of the interests of one professional category and cannot override democratic choices in matters affecting fundamental rights.122

Moreover, the decisions of the Constitutional Court that are cited in support of the doctors’ autonomy contain two clarifications. First, the autonomy of the doctor does not exclude any possibility of legislative intervention if compatible with constitutional principles and provided there is verification by scientific bodies.123 Second, the legislature must give precedence to the responsibility of the doctor unless other constitutional rights and duties are at stake.124 However, it must intervene when necessary to balance or protect constitutional interests.125 In the case of triage, the range of criteria adopted is likely to affect not only the right to health126 but also equality and ‘equal social dignity’ (Article 3 Constitution). To guarantee those fundamental rights, it is necessary to ensure that discriminatory criteria are not used when allocating life-saving resources. The legislature must therefore prevent the adoption of unconstitutional selection criteria by civil society127 and a failure to do so would de facto nullify the right to health in its egalitarian conception.128

This is especially true in the light of the Constitutional Court’s case law on the constitutional obligation of the legislature to ensure the implementation of the right to receive health care and its balancing against other organisational and financial concerns. While the legislature enjoys a great margin of appreciation on how to guarantee the right to health, its implementation is considered a constitutional obligation.129

Leaving the determination of triage criteria to the medical profession would also run against the constitutional hierarchy of sources.130 Article 1.7 of Law no. 219/2017, for instance, states that ‘in emergency […] situations the doctor […] shall ensure the necessary treatment in compliance with the patient’s wishes’. This rule, which foresees no exceptions in the case of extreme shortage, cannot be overridden by the determinations of a medical body.131

Regulating triage through medical guidelines may have advantages insofar as it does not require legislation. In particular, the lack of adaptability to the specifics of a particular case132 and the lack of medical expertise are important. Nonetheless, the legislature has a constitutional obligation to define which triage criteria are unconstitutional.133

A solution would be to entrust the legislature with the determination of the normative approach guiding triage decisions, whereas medical societies would be responsible for establishing specific criteria. This would prevent the fragmentation of values and be compatible with the constitutional rulings on doctors’ autonomy.

The new 2021–2023 national pandemic plan simply refers to the opinion of the Italian Committee for Bioethics for the determination of triage criteria.134 Due to the broad scope of the suggestions outlined in it and the lack of democratic representativeness of the Committee, this does not seem to be sufficient to compensate for the need for legislative intervention.

The guidelines jointly issued by SIAARTI and SIMLA go in the right direction. In contrast to the SIAARTI document,135 these guidelines were adopted within a legally prescribed and legitimised procedure. Should the procedure be completed with their publication, they will acquire full legal validity.136 Until then, however, they contribute to the fragmentation of the system. As long as their legal status remains uncertain, it will be up to the individual judge to decide their legal force on a case-by-case basis.137

3.2 Germany

One could argue that the legislature should not decide on the allocation of scarce ICU resources as medical associations would be more or at least equally capable.138 However, in a situation of extreme scarcity requiring triage, the production of decision-making criteria is a political-normative one. A physician, obliged to provide optimal individual care to each patient under professional law,139 not only lacks expertise but also legitimisation to choose.140

The legislature cannot weigh medical parameters against each other in detail. However, it can set objectives to be specified according to professional standards such as giving priority to likelihood of success or urgency.141 The parliament could also exclude specific selection criteria or implement affirmative measures. Hence, there is indeed a way to find a practicable balance between medicine and politics.

In the recommendation of the German Ethics Council, the legislature’s constitutional scope for enacting an abstract triage law was considered extremely limited.142 Whilst the legislature needs to respect fundamental rights when formulating criteria,143 this observation cannot be an excuse for ducking away from decision-making. The legislature can prioritise allocation within a given framework.144 Extreme scarcity compels leaving some patients untreated. As happened in Italy, the logical consequence of the legislature’s non-decision was a shift in the burden of deciding. This leads to the simple but tragic realisation that avoiding a decision becomes impossible. The issue is who should be responsible for it in a democratic state.145

Such a decision entails an ‘allocation of life chances’146 and therefore affects a variety of fundamental rights, primarily the right to life and physical integrity of the patient and the derivative right of participation in public resources. Depending on their content, allocation criteria can infringe the principles of human dignity and equality. As for the medical profession, freedom of occupation and freedom of conscience are at stake. Therefore, the decision is of high relevance for fundamental freedoms, which is why the doctrine of essentiality applies. If the decision had to be taken, delegation by parliament to other bodies would therefore be unconstitutional.147

The real question, however, is whether the legislature is at this stage obliged to regulate decisions on pandemic triage and this cannot be presumed by reference to the doctrine of essentiality. A duty on the legislature could only be accepted if the omission constituted a breach of the duty to protect. The separation of powers obliges a moderate assessment in this context, as legislative activity is not solely constitutional execution but encompasses the power to shape policies.148 The constitutionally required measures depend both on the intensity of the violation and its probability.149 Decisive factors are ‘the nature, proximity and extent of possible dangers, the nature and rank of the constitutionally protected legal interest, and the regulations already in place’.150 In the triage case, a violation would be particularly intensive, for there is a risk that a private person (doctor) violates the ‘vital basis’ of the untreated patient – a ‘maximum value’ of the constitutional order.151 Unfortunately, the Federal Constitutional Court makes no detailed comments on the right to life in its recent decision.152 On the one hand, this is because the constitutional complaint focuses on reviewing substantive violations of rights.153 All complainants referred to a violation of the duty to protect, which stems from the prohibition of discrimination on the grounds of disability, Article 3.3. Nevertheless, explanations on the scope of the duty to protect arising from the right to life, the doctrine of essentiality or the distinction between pandemic triage and triage in other occasions would have been desirable.154 Since the court also considers the constitutional complaint procedure as an objective legal complaint procedure, there would certainly have been room for this in the context of this decision.155 Some thoughts on this could provide clarity for future scarcity cases and go beyond the special case of the (non-)treatment of persons with disabilities (which is undoubtedly particularly important in the context of the Covid-19 pandemic).

Prior consideration of occasional triage allows a better understanding of the constitutional requirements. With regard to the probability of the violation, overload in ICUs can never be predicted in timing or scope. Overwhelmed ICUs therefore always represent a risk. However, the duty to protect and promote life establishes a ‘prohibition of insufficient measures’.156 This duty does not imply an obligation on the legislature to prevent this risk precisely by regulating triage. Instead, parliament can take other precautionary measures. Due to existing general civil protection measures, a breach of the duty cannot be identified through the lack of a ‘triage law’ regulating occasional triage.

During the pandemic, triage had displayed special characteristics and has attracted worldwide publicity and awareness,157 but while triage typically occurs in disasters where time is short, the public could debate for months158 on the necessity of a ‘triage law’.159

Another characteristic is the scientific uncertainty linked to the spread, symptoms, treatment and scope of the disease.160 For unforeseen developments, the constitution in principle grants an unspecified ‘transitional period’. In this case, even intensive intervention infringements measures may be based on blanket clauses.161 Such a period to assess the situation is also to be granted to the legislature. Only after collecting solid scientific information about the disease can a meaningful regulation be expected.

The damage probability and calculability increased and scientific modelling showed that overwhelmed ICUs were not an abstract scenario anymore, but a consequence of uncontained development. The situation suddenly allowed an objective probability judgement about the occurrence of damage, which is unavailable when it comes to occasional triage where probability and circumstances of potential catastrophes are unknown. In doing so, the abstract risk approximates a real danger.162 This might require another assessment.

At first sight, the strict requirements of a breach of the duty to protect are not met: while the legislature did not issue a triage act, it enacted sweeping measures to avoid overloading ICUs. Contact restrictions or expansion of ICU capacities were neither obviously unsuitable nor completely inadequate to achieve the required protective objective, and neither fell considerably short of it.163 Nonetheless, the higher the probability of the realisation of the damage and the more intense the looming violation, the lower the requirements. Therefore, the mere application of those strict requirements falls short in exceptional situations usually alien to the German healthcare system where life-saving treatments are not subject to rationing.164

Protection can no longer be guaranteed once ICUs are overwhelmed. Therefore, the legislature’s duty is also directed into the future.165 This weighs stronger as the consequences would be deaths and therefore irreversible and non-compensable. Especially during the second wave, it became apparent how quickly an increase in hospital admissions can lead to considerable tension; triage was avoided only by an extremely narrow margin.166 Reports of ‘grey triage’ must be considered.

These considerations lead to the conclusion that, in the case of pandemic triage, the strict requirements of a breach of the duty to protect life need to be lowered to prevent erosion of the positive aspect of the right to life. A duty on the legislature can therefore exceptionally be accepted.167

4 The Rejection of Legislative Decision-Making: Another Dimension of Tragedy

A comparative look at the decision-making structures in Germany and Italy has provided insight into two aspects of pandemic triage and the related social and constitutional tragedy.

The first, unsurprisingly, is that the democratically elected legislature is reluctant to make tragic decisions. No legislation was passed either in Germany or Italy,168 although the legal uncertainty in handling triage situations was a priority in both countries for months. Instead, medical societies and ethics committees felt compelled to formulate guidance, resulting in a fragmented mix of recommendations. The decisiveness of these documents increased with the urgency of a decision; while the coffins were piling up in Bergamo,169 choices were made first by individual doctors and soon by the SIAARTI with hastily written recommendations.170 The tragic and urgent nature of the situation led to the endorsement of these controversial guidelines by several Italian legal scholars, who grounded the authority of the medical profession to intervene on the doctors’ autonomy. In Germany, an official decision could be avoided on account of the greater availability of resources. Accordingly, the professional societies took more time to draft their recommendations, which were explicitly declared as not legally binding.171 The dynamics of the process in both countries were determined by the dynamics of infection, not by institutional initiatives.

The second aspect concerns the constitutional assessment of such decision- making. The legislatures evaded an allocation decision, although they would have been constitutionally obliged to intervene due to the danger of unavoidable and intensive interferences with high-ranking constitutional interests. Nonetheless, their inactivity has been approved by a large body of constitutional literature that denied them the technical and institutional competence to make this decision. In the face of the urgency of the pandemic, the legislature’s obligation to intervene was overlooked and more effective actions by non-democratically legitimised medical societies were welcomed. The tragic aspect becomes evident when considering how the urgency of the pandemic has led to a renunciation of the values that should guide the decision-making processes in states governed by the rule of law and the principle of democracy.

Although in a situation of scarcity the primary role of the legislature is to provide additional resources to protect fundamental rights, this can hardly be the end of its duty, especially if any measure adopted is likely to be insufficient.

Admittedly, legislative intervention has its weaknesses precisely because of the time required for deliberation and the lack of flexibility and epidemiological expertise. Nevertheless, a balance can be struck by ensuring that the political decision of the legislature sets the normative framework for resource allocation and leaves extensive room for clinical decisions in individual cases. This can be done, for example, by stating the purpose of the allocation and listing illegitimate criteria. In developing this framework, the legislature has to weigh not only legal, but also ethical and medical standards in order to form an appropriate compromise. Most likely, extra-political expertise might be required for a complete assessment. To this end, Ethics committees or scientific societies, such as the German National Ethics Council and the Italian SIAARTI are available for consultation. Reports from scientific or societal stakeholders may also be requested during the legislative procedure.

As we have shown, the decision could and should be taken by a parliament. In this regard, the literature has been all too quick to condone the dropping of fundamental constitutional principles in the pandemic crisis. The term ‘tragic choice’ suggests that whatever decision is made implies ‘the rejection of values which are proclaimed to be fundamental’.172 Given such a tragic decision, the institutional and procedural framework provided by constitutions should not be undermined. In adopting selection criteria that will affect – albeit justifiably – constitutional rights and interests, procedural safeguards must be maintained and the value of democratically legitimised decision-making cannot be rejected. This is not only relevant to the current pandemic but can be taken as a lesson for any possible future crisis responses.


See, for instance, the literature on organs allocation, R.J. Jox, G. Assadi and G. Marckmann (eds.), Organ transplantation in times of donor shortage. Challenge and solutions (Cham: Springer, 2016); W. Höfling, ‘Verteilungsgerechtigkeit in der Transplantationsmedizin’, JuristenZeitung 62(10) (2007) 481–486; T. Gutmann and V.H. Schmidt (eds.), Rationierung und Allokation im Gesundheitswesen (Weilerswist: Velbrück Wissenschaft, 2002).


G. Calabresi and P. Bobbitt, Tragic Choices (New York, NY: W.W. Norton, 1978).


Ibid, p. 167.


Ibid, p. 177.


First-order determinations are defined as decisions on ‘how much of [the scarce good] will be produced’ by Calabresi and Bobbitt, supra note 2, p. 19.


In Italy, support measures for hospital care were taken by Article 3 of Decree Law 18/2020 and Article 2 Decree Law 34/2020. These were especially required in light of the fact that other, non-Covid-19 health services also had to be delayed due to limited hospital capacity. For data on the impact of the pandemic on hospital care, see Istituto Nazionale di Statistica, Rapporto annuale 2020. La situazione del Paese (Rome: ISTAT, 2020) pp. 91–99, available online at (accessed 21 January 2022).


Federal Constitutional Court, 1 BvR 1541/20, 16 December 2021, available online at (accessed 23 January 2022).


Covered by a vast amount of literature, see, inter alia, A. Engländer and T. Zimmermann, ‘“Rettungstötungen” in der Corona-Krise?’, Neue Juristische Wochenschrift 73(20) (2020) 1398–1402; T. Hörnle, S. Huster and R. Poscher, Triage in der Pandemie (Tübingen: Mohr Siebeck, 2021); G. Di Rosa, ‘Diritto alle cure e allocazione delle risorse nell’emergenza pandemica’, Nuova Giurisprudenza Civile Commentata, 36(3 Suppl.) (2020) 5–10; G.M. Caletti, ‘Il triage in emergenza pandemica. Coordinate penalistiche di uno spazio solo apparentemente libero dal diritto’, Quaderni Costituzionali 3 (2020) 616–619.


A. Brech, Triage und Recht (Berlin: Duncker & Humblot, 2008) pp. 59–61.


H. ten Have and M. do Céu Patrao Neves, Dictionary of Global Bioethics (Cham: Springer, 2021) p. 1015.


Supra note 9, p. 72.


The NATO Handbook on Emergency War Surgery states that ‘mass casualty triage treats the injured according to salvage value when the injured overwhelm available medical facilities and not all can be treated’, as reported by M. Woesler and H. Sass (eds.), Medizin und Ethik in Zeiten von Corona (Berlin: LIT-Verlag, 2020) p. 27 and C. Pertini, ‘Triage in Public Health Emergencies: Ethical Issues’, Internal and Emergency Medicine 5 (2010) 137–144, p. 143, DOI: 10.1007/s11739-010-0362-0.


‘During catastrophic events, triage may require making decisions that some patients will not receive treatment at all’, Pertini, supra note 12, p. 138; P. Sefrin, ‘Sichtung als ärztliche Aufgabe’, Deutsches Ärzteblatt 102(20) (2005) A-1424–A-1428, p. A-1426.


Supra note 10, p. 1015: while in ordinary situations the focus is on the individual patient, ‘in extraordinary circumstances the focus is unclear as to whether it is on survival of the greatest number of people or on those most likely to survive. Even when principles are proposed […] they often present a checklist of moral points […] rather than the medical needs of those injured’.


Ibid, p. 149. See also C. Casonato, ‘Salute ed eguaglianza alla prova dell’emergenza’, in: G. De Minico and M. Villone (eds.), Stato di diritto, emergenza, tecnologia (Napoli: Collana di Studi di Consulta online, 2020) pp. 120–128, p. 123; M.G. Bernardini, ‘Una questione di interpretazione? Note critiche su Raccomandazioni SIAARTI, discriminazione in base all’età ed emergenza sanitaria’, BioLaw Journal – Rivista di BioDiritto 3 (2020) 141–157, p. 149.


Casonato, supra note 15, p. 122; J. Kersten and S. Rixen, Der Verfassungsstaat in der Corona-Krise (München: C.H. Beck, 2021) p. 153; H. Lang, ‘Deregulierte Verantwortungslosigkeit’, Medizinrecht 23(5) (2005) 269–279, pp. 275–276; Höfling, supra note 1, p. 481; B. Fateh-Moghadam and T. Gutmann, ‘Gleichheit vor der Triage’, Verfassungsblog (4 April 2020), available online at (accessed 18 February 2022); even Deutscher Ethikrat, Solidarität und Verantwortung in der Corona-Krise. Ad-Hoc-Empfehlung (Berlin: Deutscher Ethikrat, 2020) p. 3, which nevertheless assumes that ‘medicine has primary responsibility for individual decisions and their implementation’.


W. Lübbe, ‘Corona Triage: A Commentary on the Triage Recommendations by Italian SIAARTI Medicals Regarding the Corona Crisis’, Verfassungsblog (16 March 2020), available online at (accessed 18 February 2022).


F. Pergande, ‘Triage braucht ein Gesetz’, Frankfurter Allgemeine Sonntagszeitung, 25 October 2020, p. 8.


M. Christ, F. Grossmann, D. Winter, R. Bingisser and E. Platz, ‘Modern triage in the emergency department’, Deutsches Ärzteblatt International 107(50) (2010) 892–898, DOI: 10.3238/arztebl.2010.0892.


And classifies it as fundamental, see D. Morana, La salute come diritto costituzionale. Lezioni (Turin: Giappichelli, 2018) pp. 64–65.


L. Busatta, La salute sostenibile. La complessa determinazione del diritto ad accedere alle prestazioni sanitarie (Turin: Giappichelli, 2018) pp. 31–39.


Ibid, pp. 36–37 and supra note 20, pp. 69–73.


Supra note 21, p. 41; R. Ferrara, ‘Il diritto alla salute: i principi costituzionali’ in: S. Rodotà, P. Zatti, R. Ferrara (eds.), Trattato di biodiritto. Salute e sanità (Milano: Giuffrè, 2011) pp. 3–63, pp. 53–55.


Corte Costituzionale, judgment no. 304/1994, para. 5; Corte Costituzionale, judgment no. 455/1990, para. 3.




Corte Costituzionale, judgment no. 200/2005, para. 2. With regard to pandemic triage, see C. Di Costanzo and V. Zagrebelsky, ‘L’accesso alle cure intensive fra emergenza virale e legittimità delle decisioni allocative’, BioLaw Journal – Rivista di BioDiritto 1 (2020) 441–446, p. 443; and R. Pucella, ‘Scelte tragiche e dilemmi giuridici ai tempi della pandemia’, Nuova Giurisprudenza Civile Commentata 36(3 Suppl.) (2020) 24–31, p. 25.


C. Della Giustina, ‘Il problema della vulnerabilità nelle Raccomandazioni SIAARTI e nelle linee guida SIAARTI-SIMLA’, Stato, Chiese e Pluralismo Confessionale 9 (2021) 1–23, p. 19.


H. Schulze-Fielitz, ‘Article 2 II’, in: H. Dreier (ed.), Grundgesetz Kommentar (Tübingen: Mohr Siebeck, 2013) marginal no. 37.


BVerfGE 7, 198 (204), 15.01.1958; F. Ossenbühl, ‘§ 15: Grundsätze der Grundrechtsinterpretation’, in: D. Merten and H.-J. Papier (eds.), Handbuch der Grundrechte Band I (Heidelberg: C.F. Müller, 2004) pp. 595–630, marginal no. 45.


BVerfGE 39, 1 (42), 25.02.1972; BVerfGE 142, 313 (337), 26.07.2016.




U. Becker, ‘Das Recht auf Gesundheitsleistungen’, in: G. Manssen, M. Jachmann-Michel and C. Gröpl (eds.), Nach geltendem Verfassungsrecht (Stuttgart: Boorberg, 2009) pp. 51–76, p. 64 and above on the historic theoretical development.


BVerfGE 115, 25, 06.12.2005.


BVerfGE 68, 193 (209), 31.10.1984.


BVerfGE 33, 303 (331), 18.07.1972.


BVerfGE 57, 70 (99), 08.04.1981; supra note 28 marginal no. 27; U. Di Fabio, ‘Article 2 Abs. 2 S. 1’ in R. Herzog (ed.), Maunz/Dürig Grundgesetz Kommentar (München: C.H. Beck, 2021) marginal no. 94.


P. Häberle, ‘Grundrechte im Leistungsstaat’, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 30 (1972) 43–131, DOI: 10.1515/9783110890211.


BVerfGE 39, 258 (265), 09.04.1975; G. Dannecker, A.F. Streng, ‘Rechtliche Möglichkeiten und Grenzen einer an den Erfolgsaussichten der Transplantation orientierten Organallokation’, JuristenZeitung 67(9) (2012) 444–452, DOI: 10.1628/002268812800567113.


Due to proceedings before the Federal Constitutional Court, 1 BvR 1541/20, 16.07.2020, GesundheitsRecht (10) (2020) 654–656.


R. Merkel and S. Augsberg, ‘Die Tragik der Triage – straf- und verfassungsrechtliche Grundlagen und Grenzen’, JuristenZeitung 75(14) (2020) 704–714, DOI: 10.1628/jz-2020-0223.


Supra note 30; T. Gutmann, ‘§ 12’, in: U. Schroth, P. König, T. Gutmann and F. Oduncu (eds.), Transplantationsgesetz Kommentar (München: C.H. Beck, 2005) marginal no. 45.


BVerfGE 115, 118 (154), 15.02.2006.


P.M. Huber, ‘§ 6 Rechtsstaat’, in: M. Herdegen, J. Masing, R. Poscher and K.F. Gärditz (eds.), Handbuch des Verfassungsrechts (München: C.H. Beck, 2021) pp. 383–436, marginal no. 23.


BVerfGE 49, 89 (126), 08.08.1978; BVerfGE 61, 260 (276), 20.10.1982; BVerfGE 88, 103 (116), 02.03.1993.


K.-P. Sommermann, ‘Article 20’ in: P.M. Huber and A. Voßkuhle (eds.), v. Mangold/Klein/Starck Grundgesetz (München: C.H. Beck, 2018) marginal no. 275.


BVerfGE 47, 46 (79), 21.12.1977.


Ibid, (55).


On triage regulation in general, supra note 9 p. 319; A. Klafki, Risiko und Recht (Tübingen: Mohr Siebeck, 2016) pp. 264–270. Regarding the Covid-19 pandemic A.F. Streng-Baunemann, ‘“Corona”-Triage – verfassungsrechtliche und strafrechtliche Perspektive’, Zeitschrift für Internationale Strafrechtsdogmatik 16(3) (2021) 170–192, p. 176; Kersten and Rixen supra note 16, pp. 163–164.


Corte Costituzionale, judgment no. 202/2002, para. 4 and judgment no. 169/2017, para. 8.


Corte Costituzionale, judgment no. 162/2014, para. 7.


Corte Costituzionale, judgment no. 282/2002, para. 5.


P. Giangaspero, ‘Ancora una variazione sul tema di tecnica, scienza e diritto: indicazioni di erogabilità e appropriatezza terapeutica, diritto alla salute, prescrizioni mediche «in scienza e coscienza» e vincoli alle Regioni’, Le Regioni 1 (2018) 133–144, pp. 142–143, DOI: 10.1443/91727.


BVerfGE 102, 26 (36), 16.02.2000; R. Zuck, ‘§ 2 Verfassungs- und europarechtliche Vorgaben’ in: M. Quaas, R. Zuck and T. Clemens (eds.), Medizinrecht (München: C.H. Beck, 2018) marginal no. 52.


A. Spickhoff, ‘§ 1 BÄO’, in: A, Spickhoff (ed.), Medizinrecht (München: C.H. Beck, 2018) marginal no. 6.


BVerwGE 27, 303 (305), 18.07.1967.


K. Scholz, ‘MBO-Ä 1997’, supra note 54, para. 2 marginal no. 2; I. Hristova, ‘Triage und Grundrechte des Medizinpersonals’ Deutsches Verwaltungsblatt (4) (2021) 224–231; A.P.F. Ehlers, J. Bartholomä and D. Menghin, ‘Rechtliche Regelung der “Triage”: Gesundheitssysteme an ihren Grenzen’ Medizinrecht 39(5) (2021) 416–423, p. 418.


The National Guidelines System, available online at (accessed 18 February 2022).


For example, para. 16.1 s. 2 Organ Transplantation Act, para. 5 No. 12 Narcotics Prescription Regulation; critically assessing the constitutionality of the delegation B. Wiegand, Die Beleihung mit Normsetungskompetenzen (Berlin: Duncker & Humblot, 2010).


C. Katzenmeier, ‘Arztfehler und Haftpflicht’, in: A. Laufs, C. Katzenmeier and V. Lipp, Arztrecht (München: C.H. Beck, 2021) marginal no. 10.


A. Spickhoff, ‘§ 630a BGB’, supra note 54, marginal no. 40.


A. Spickhoff, ‘§§ 823–839’, supra note 54, marginal no. 21.


C. Knauer and J. Brose, ‘§ 222 StGB’, in: supra note 54, marginal no. 17.


M. Piccinni, A. Aprile, P. Benciolini, L. Busatta, E. Cadamuro, P. Malacarne, F. Marin, L. Orsi, E. Palermo Fabris, A. Pisu, D. Provolo, A. Scalera, M. Tomasi, N. Zamperetti and D. Rodriguez, ‘Considerazioni etiche, deontologiche e giuridiche sul Documento SIAARTI “Raccomandazioni di etica clinica per l’ammissione a trattamenti intensivi e per la loro sospensione, in condizioni eccezionali di squilibrio tra necessità e risorse disponibili”’, Recenti Progressi in Medicina 111(4) (2020) 212–222, p. 213; M.P. Faggioni, F.J. González-Melado, M.L. Di Pietro, ‘National Health System Cuts and Triage Decisions During the Covid-19 Pandemic in Italy and Spain: Ethical Implications’, Journal of Medical Ethics 47 (2021) 300–307, p. 301, DOI:10.1136/medethics-2020-106898.


J. Bauer, D. Brüggmann, D. Klingelhöfer, W. Maier, L. Schwettmann, D.J. Weiss and D.A. Groneberg, ‘Access to intensive care in 14 European countries: a spatial analysis of intensive care need and capacity in the light of Covid-19’, Intensive Care Medicine 46(11) (2020) 2026–2034, DOI: 10.1007/s00134-020-06229-6. Data from the OECD shows that, while Germany had 33.9 ICU beds per 100000 inhabitants, Italy had 8,6 with average OECD of 12. See OECD, ‘Beyond Containment: Health systems responses to Covid-19 in the OECD’, OECD (2020), available online at, p. 13 (accessed 18 February 2022). See also Di Rosa, supra note 8, p. 5.


The link between the drastic increase in pneumonia cases and the new coronavirus was only realised two months later, see G.R. Gristina, L. Orsi and M, Vergano, ‘Pandemia da CoViD-19 e triage: la filosofia e il diritto talvolta guardano l’albero mentre la medicina prova a spegnere l’incendio della foresta’, BioLaw Journal – Rivista di BioDiritto 1 (2020) 379–397, p. 390.


A. Remuzzi and G. Remuzzi, ‘Covid-19 and Italy: what next?’, Lancet 395 (2020) 1225–1228, DOI: 10.1016/S0140-6736(20)30627-9.


L. Rosembaum, ‘Facing Covid-19 in Italy – Ethics, Logistics, and Therapeutics on the Epidemic’s Front Line’, The New England Journal of Medicine 382(2020) 1873–1875, p. 1874, DOI: 10.1056/NEJMp2005492.




K. Orfali, ‘What Triage Issues Reveal: Ethics in the Covid-19 Pandemic in Italy and France’, Bioethical Inquiry (9 November) (2020) 1–5, p. 3, DOI: 10.1007/s11673-020-10059-y.


L. Craxì, M. Vergano, J. Savulescu and D. Wilkinson, ‘Rationing in a Pandemic: Lessons from Italy’, Asian Bioethics Review 12(3) (2020) 325–330, p. 326, DOI: 10.1007/s41649-020-00127-1.


Pucella, supra note 26. See M. Mori’s dissenting opinion in Comitato Nazionale per la Bioetica, ‘Covid-19: la decisione clinica in condizioni di carenza di risorse e il criterio del “triage in emergenza pandemica”’, CNB (4 April 2020), available online at, p. 12 (accessed 18 February 2022).


Supra note 67.




Supra note 69.


The fact that this rather outdated plan was reconfirmed, without substantial changes, in 2016, raised a national scandal, see Angela Giuffrida and Sarah Boseley, ‘Italy’s pandemic plan “old and inadequate”, Covid report finds’, The Guardian (13 August 2020), available online at (accessed 26 January 2022).


Ministero della Salute, 2006, ‘Piano nazionale di preparazione e risposta ad una pandemia influenzale’, Ministero della Salute (10 February 2006), available online at, p. 36 (accessed 21 January 2022).


Supra note 70, warning that, in the absence of recommendations, decisions are left to ‘local healthcare and hospital authorities or to the clinician […] resulting in approaches both inconsistent and uncoordinated’, p. 327.


Ibid, p. 326.


Società Italiana Anestesia, Analgesia, Rianimazione e Terapia Intensiva, ‘Raccomandazioni di etica clinica per l’ammissione a trattamenti intensivi e per la loro sospensione, in condizioni eccezionali di squilibrio tra necessità e risorse disponibili’, Società Italiana Anestesia, Analgesia, Rianimazione e Terapia Intensiva (6 March 2020), available online at (accessed 17 February 2022).


Di Costanzo and Zagrebelsky, supra note 26, p. 445; L. Palazzani, ‘La pandemia CoViD-19 e il dilemma per l’etica quando le risorse sono limitate: chi curare?’, BioLaw Journal – Rivista di BioDiritto, 1(Special Issue) (2020) 359–370, p. 364; A. Pisu, ‘Diritto alla salute e responsabilità medica alla prova del CoViD-19’, BioLaw Journal – Rivista di BioDiritto 1 (2020) 399–414, p. 410.


Supra note 17; C. Del Bò, ‘Covid-19 e criteri di ammissione alla terapia intensiva. Uno sguardo filosofico sulle Raccomandazioni Siaarti’, Notizie di Politeia 37(141) (2021) 11–24, p. 16.


Quotidiano Sanità, ‘Coronavirus. Fnomceo sul documento anestesisti: “Nostra guida resta Codice deontologico. Non dobbiamo metterci nelle condizioni di applicare questi inaccettabili triage di guerra”’, Quotidiano Sanità (8 March 2020), available online at (accessed 17 February 2022).


As reported by M. Mori, ‘Il triage Covid e i Beatles’, Quotidiano Sanità (24 November 2020), (accessed 17 February 2022). See also, L. Conte, ‘Covid-19. Le Raccomandazioni di etica clinica della SIAARTI. Profili di interesse costituzionale’, (1 April 2020), available online at, p. 7 (accessed 17 February 2022).


CNB, supra note 71, p. 7.


F. Ingravallo, L. Riccioni, F. Petrini, R. Zoia, E. Cingolani, G. Forti, G. Grasselli, D. Mazzon and V. Zagrebelsky, ‘Decisioni per le cure intensive in caso di sproporzione tra necessità assistenziali e risorse disponibili in corso di pandemia di COVID-19’, SNLG (13 January, 2021), available online at, p. 6 (accessed 17 February 2022).


See (accessed 17 February 2022).


Supra note 85, p. 16.


On possible reasons, F. Gambino, C. Petrini and L. Riva, ‘Criteria for allocation of life-saving resources during the SARS-COV-2 pandemic: ethical implications and aspects of legal liability’, Annali dell’Istituto Superiore di Sanità 57(2) (2021) 113–120, p. 116, DOI: 10.4415/ANN_21_02_01.


‘We cannot exclude the possibility that a judge [may not be] convinced of [their] binding nature’, ibid, p. 119.


Ministero della salute, ‘Piano strategico-operativo nazionale di preparazione e risposta a una pandemia influenzale (PanFlu) 2021–2023’, Ministero della salute (29 January 2021), available online at, p. 122 (accessed 21 January 2022).


Ibid, p. 33 and supra note 71.


Bauer et al., supra note 64, p. 2028.


Robert Koch-Institut, ‘Nationaler Pandemieplan Teil I’, RKI (2 March 2017), available online at (accessed 23 January 2022).


Robert Koch-Institut, ‘Nationaler Pandemieplan Teil II’, RKI (4 April 2016), available online at (accessed 23 January 2022).


Supra note 93, pp. 33–34.


Bundesgesundheitsministerium, ‘Krisenstab des BMI und BMG beschließt Maßnahmen zur Gesundheitssicherheit gegen Corona-Infektionen’, Bundesgesundheitsministerium (2020), available online at (accessed 17 February 2022). Contact restrictions (12 March 2020) were followed by the first lockdown on 22 March 2020, J. Schilling, K. Tolksdorf, A. Marquis, M. Faber, T. Pfoch, S. Buda, W. Haas, E. Schuler, D. Altmann, U. Grote and M. Diercke, ‘Die verschiedenen Phasen der Covid-19-Pandemie in Deutschland: Eine deskriptive Analyse von Januar 2020 bis Februar 2021’, Bundesgesundheitsblatt, 64(9) (2021) 1093–1106, p. 1094, DOI: 10.1007/s00103-021-03394-x; Bundesregierung, ‘Besprechung der Bundeskanzlerin mit den Regierungschefinnen und Regierungschefs der Länder’, Bundesregierung (22 March 2020), available online at (accessed 17 February 2022).


Details on the phases of the pandemic by Schilling et al, supra note 96. The first registered case in Germany was on 27 January 2020, the first death on 9 March 2020.


Bundesgesetzblatt I(14) (2020) 580–586; the resulting resources increase has been described by Kersten and Rixen, supra note 16, pp. 144–145.


Bundesanzeiger Amtlicher Teil, 09.04.2020 V4; data collection already happened since 17 March 2020, albeit on voluntary basis. On the establishment of the register, DIVI- Intensivregister, ‘Entstehung des DIVI-Intensivregisters’, DIVI-Intensivregister (13 July 2020), available online at (accessed 17 February 2022).


DIVI-Intensivregister, constantly updated, ‘Zeitreihen’, DIVI-Intensivregister (2021), available online at (accessed 18 February 2022).


DIVI-Intensivregister, constantly updated, ‘Intensivregister’, DIVI-Intensivregister (2021), available online at (accessed 18 February 2022).


DIVI-Intensivregister, ‘Sie haben Fragen? Was sind betreibbare Intensivbetten?’, DIVI- Intensivregister (2021), available online at (accessed 18 February 2022), The term ‘operable beds’ does not encompass only physical presence of a bed, but also the actual possibility of putting it into operation with sufficient staff.


S. Eichstädt, ‘Corona-Pandemie: Gab es eine Triage in Sachsen? Das bleibt unklar’, Aerztezeitung (18 December 2020), available online at (accessed 18 February 2022).


FOCUS Online, ‘“Weiche Triage wird bereits angewendet”: Wer behandelt wird – und wer nicht’, FOCUS Online (19 April 2021), available online at (accessed 18 February 2022).


Partially intended and financed through the Covid-19-Hospital Relief Act, supra note 98.


Caritas Behindertenhilfe und Psychiatrie e.V., ‘Stellungnahme an das Bundesverfassungsgericht zu 8 AZ 1 BvR 1541/2’, Caritas (13 December 2020), available online at, p. 4 (accessed 18 February 2022); International Disability Alliance, ‘Letter to WHO’, International Disability Alliance (1 April 2020), available online at, p. 1 (accessed 18 February 2022); C.S. Brennan, ‘Disability Rights during the Pandemic. A Global Report on Findings of the Covid-19 Disability Rights Monitor’, Africaportal (22 October 2020), available online at, pp. 41–45 (accessed 18 February 2022).


DIVI, ‘Entscheidungen über die Zuteilung intensivmedizinischer Ressourcen im Kontext der Covid-19-Pandemie. Version 2’, DIVI (17 April 2020), available online at (accessed 18 February 2022).


Ibid, pp. 4–5. This recommendation was updated in November 2021 to state that the patient’s vaccination status must not be a criterion for prioritisation either: DIVI, press release on 26 November 2021, available online at (accessed 23 January 2022).


Deutscher Ethikrat, supra note 16, pp. 3–4.


Bundesärztekammer, ‘Orientierungshilfe der Bundesärztekammer zur Allokation medizinischer Ressourcen am Beispiel der SARS-CoV-2-Pandemie im Falle eines Kapazitätsmangels’, Deutsches Ärzteblatt 117(20) (2020) A-1084–B-912.


Engländer and Zimmermann, supra note 8; J. Taupitz, ‘Verteilung medizinischer Ressourcen in der Corona-Krise: Wer darf überleben?’, Medizinrecht 38(6) (2020) 440–450, p. 447, DOI: 10.1007/s00350-020-5558-3; supra note 40, pp. 706–713; C. Sowada, ‘Strafrechtliche Probleme der Triage in der Corona-Krise’, Neue Zeitschrift für Strafrecht 40(8) (2020) 452–460; J.F. Lindner, ‘Die „Triage“ im Lichte der Drittwirkung der Grundrechte’, Medizinrecht 38(9) (2020) 723–728, pp. 724–725, DOI: 10.1007/s00350-020-5643-7; Hristova, supra note 56, p. 228; K. Gaede, M. Kubiciel, F. Saliger and M. Tsambikakis, ‘Rechtmäßiges Handeln in der dilemmatischen Triage-Entscheidungssituation’, Zeitschrift für Medizinstrafrecht 6(3) (2020) 129–137; differentiation is made between so-called ‘ex-ante’ and ‘ex-post’ triage, for definitions, see I. Palsherm, ‘Triage und Covid-19’, GesundheitsRecht (9) (2020) 545–551, p. 546.


It even contains a chapter on triage: Bundesamt für Bevölkerungsschutz und Katastrophenhilfe, Handbuch Krankenhausalarm und -einsatzplanung (18 December 2020), available online at, pp. 50–53 (accessed 23 January 2022).


Supra note 39.


Supra note 7.


Ibid, marginal no. 110.


Ibid, marginal no. 118.


Ibid, marginal no. 128.


Piccinni et al., supra note 63, p. 216; M. Bolcato, C. Tettamanti and A. Feola, ‘L’epidemia, la cura, la responsabilità e le scelte che non avremmo mai voluto fare’, Rivista Italiana di Medicina Legale 2 (2020) 1043–1052, p. 1047; C. Ingenito, ‘Le raccomandazioni SIAARTI del 6 marzo 2020: una nuova occasione per riflettere sul rapporto tra scienza e diritto’, Rivista Trimestrale di Scienza dell’Amministrazione 2 (2020) 1–23, pp. 8–9.


M. Piccinni, ‘Scelte tragiche in terapia intensiva. Considerazioni a margine del documento SIAARTI del 6 marzo 2020’, Nuova Giurisprudenza Civile Commentata, 36(3 Suppl.) (2020) 11–23.


Bernardini, supra note 15.


B. Brancati, ‘L’integrazione tra scienza e diritto, in relazione all’ammissione ai trattamenti di terapia intensiva durante l’emergenza Covid’, DPCE Online 44(3) (2020) 3437–3442, p. 3439; C. Della Giustina, ‘Le raccomandazioni della SIAARTI durante l’emergenza sanitaria Covid-19’, 20(4) (2020) 1–28, p. 1.


E. Pulice, ‘Riflessioni sulle dimensioni della normatività: etica, deontologia e diritto. Il ruolo della deontologia in prospettiva comparata’, BioLaw Journal – Rivista di BioDiritto 1 (2020) 173–194, p. 192.


Corte Costituzionale, judgement no. 282/2002, para. 5 and judgement no. 162/2014, para. 7.


Corte Costituzionale, judgement no. 282/2002, para. 4.


A. D’Aloia, ‘Poscritto. Costituzione ed emergenza: verso la fine del tunnel, con qualche speranza e (ancora) con qualche dubbio’, BioLaw Journal – Rivista di BioDiritto 1 (2020) 13–26, p. 23; Della Giustina, supra note 27, p. 4.


V. Zagrebelsky, ‘Tutelare i diritti del paziente’, La Stampa (9 March 2020), available online at (accessed 18 February 2022).


As observed by P. Zicchittu, ‘Inerzia del legislatore e dialettica istituzionale nell’ordinanza della Corte costituzionale in tema di aiuto al suicidio’, 1 (2019) 1–44, p. 2, in the face of legislative inactivity, civil society autonomously arranges to compensate for the failures of the political decision-maker. When the urgent need for triage emerged during the pandemic, medical societies felt forced to step in.


R. Romboli, ‘Giudice e legislatore nella tutela dei diritti’, in: D. Delfino (ed.), Scritti dedicati a Maurizio Converso (Rome: RomaTre-Press, 2016) pp. 517–532, p. 526; C. Mortati, ‘Appunti per uno studio sui rimedi giurisdizionali contro comportamenti omissivi del legislatore’, Il Foro Italiano 93(9) (1970) 153–192, p. 154.


The legislature enjoys discretion in how to implement the right to health, but its failure to legislate must not jeopardise the right by depriving it of effectiveness, see D. Morana, ‘I rapporti tra Parlamento e Corte costituzionale nella garanzia dei diritti sociali’, Amministrazione in Cammino (2015) 1–28, pp. 4–9; L. Cassetti, ‘Corte costituzionale e silenzi del legislatore: le criticità di alcuni modelli decisori nel controllo di costituzionalità sulle lacune legislative e il ruolo dei giudici’, in: L. Cassetti and A.S. Bruno (eds.), I giudici costituzionali e le omissioni del legislatore. Le tradizioni europee e l’esperienza latino-americana (Turin: Giappichelli, 2019) pp. 1–26, p. 2; V. Marcenò, ‘La Corte Costituzionale e le omissioni incostituzionali del legislatore: verso nuove tecniche decisorie’, Giurisprudenza Costituzionale 3 (2020) 1985–2019, p. 1986.


Di Costanzo and Zagrebelsky, supra note 26, p. 445.


Della Giustina, supra note 121, p. 20.


As noted by Piccinni et al., supra note 63, p. 217; Gristina, supra note 65, p. 394; Mori, supra note 83.


Casonato, supra note 15, p. 124 notices how the Italian Committee for Bioethics deemed the exclusion of criteria based on pre-established categories to be a suitable means of ensuring respect for constitutional principles.


Supra note 90.


Pisu, supra note 80, pp. 407–408; Ingenito, supra note 118, pp. 11–12.


Corte Costituzionale, judgement no. 11/2014, para. 6.1.


Supra note 88, p. 119.


A.-K. Knoll and C. Rausch, ‘Was zählt, ist der Erfolg: Warum bei der Covid-Triage kein Gesetz nötig ist’, Verfassungsblog (10 December 2020), available online at (accessed 18 February 2022).


Paras 1.1, 2.2 MBO-Ä ((Model) Professional Code of Conduct for Physicians practising in Germany).


Supra note 59 marginal no. 28; Ehlers et al., supra note 56, p. 417.


Unhelpful would be orienting on the allocation of donor organs, suggested by Ehlers et al., supra note 56, p. 419, as para. 12.3 Organ Transplantation Act names contradictory criteria on an equal level. Considered unconstitutional by e.g. Gutmann supra note 41, marginal nos. 23–24.


Deutscher Ethikrat, supra note 16, p. 3; supra note 40 pp. 713–714.


Controversial is the age criterion, e.g., E. Hoven, ‘Berücksichtigung von Lebensalter und Lebenserwartung’, in: T. Hörnle, S. Huster and R. Poscher (eds.), Triage in der Pandemie (Tübingen: Mohr Siebeck, 2021) pp. 335–370.


Engländer and Zimmermann, supra note 8, p. 1402.


K. Gelinsky, Brauchen wir ein Triage-Gesetz (Berlin: 2020), p. 6 speaks about a ‘questionable signal’ to distrust the legislature in this regard.


Supra note 36 (346).


Taupitz, supra note 111, p. 447; K.F. Gärditz, ‘Grundrechtliche Schutzpflichten und medizinische Ressourcenallokation in der Corona-Krise’, Zeitschrift für Lebensrecht 29(3) (2020) 381–388, pp. 384–386; A. Brade and M. Müller, ‘Corona-Triage: Die Untätigkeit des Gesetzgebers als Schutzpflichtverletzung?’, Neue Zeitschrift für Verwaltungsrecht 39(24) (2020) 1792–1797, p. 1796.


U. Volkmann, ‘§ 16 Allgemeine Grundrechtslehren’, in: M. Herdegen, J. Masing, R. Poscher and K.F. Gärditz (eds.), Handbuch des Verfassungsrechts (München: C.H. Beck, 2021) pp. 1051–1100, marginal no. 66.


E. Klein, ‘Grundrechtliche Schutzpflicht des Staates’, Neue Juristische Wochenschrift 42(27) (1989) 1633–1640, p. 1637.


BVerfGE 49, 89 (142), supra note 44.


Supra note 30.


Supra note 7.


As required by Article 93.1 No. 4a of the Basic Law.


Likewise disappointed S. Huster, ‘Much Ado about Nothing’, Verfassungsblog (29 December 2021), available online at (accessed 25 January 2022); justifying with lack of time M. Hong, ‘Die Corona-Triage und das Verbot der Diskriminierung wegen der Behinderung als Schutzpflicht’, Verfassungsblog (30 December 2021), available online at (accessed 25 January 2022).


BVerfGE 124, 300 (318–319).


Klafki, supra note 48, p. 22; supra note 45, marginal no. 319.


A survey with 9 countries shows that 8 implemented new guidelines, K. Gelinsky, ‘Triage-Empfehlungen grenzüberschreitend betrachtet’ (Berlin: Konrad-Adenauer-Stiftung, 2020), p. 8.


Thus rejecting the term triage in relation to this pandemic, Kersten and Rixen, supra note 16, p. 147.


Inter alia Gelinsky, supra note 145; the discussion continues, M. Hoffmann, ‘Warum eigentlich nicht triagieren?’ Frankfurter Allgemeine Zeitung (27 September 2021), p. 15.


Piccinni et al., supra note 63, p. 214.


Regarding intensive infringements due to Corona protection measures, C. Katzenmeier, ‘Grundrechte in Zeiten von Corona’, Medizinrecht 38(6) (2020) 461–465, p. 463, DOI: 10.1007/s00350-020-5561-8; in general BverfG, 08.11.2012, Deutsches Verwaltungsblatt (3) (2013) 169–174, p. 171; BVerwG, 31.01.2019, Neue Zeitschrift für Verwaltungsrecht 38(17) (2019) 1291–1294, p. 1291.


Depending on the definitions used, the risk has even already changed into a danger. Klafki, supra note 48, pp. 13–17 differentiates on the basis of uncertainty with regard to probability of occurrence and severity of consequences. While such uncertainty determines a risk, an objective estimation based on existing facts is possible in the case of danger. Accordingly, we already face the danger of triage. If, instead, the categorisation as danger is additionally dependent on personal accountability, the pandemic only represents a risk with a higher probability of damage and more concrete calculability of it, see O. Lepsius, ‘Risikosteuerung durch Verwaltungsrecht: Ermöglichung oder Begrenzung von Innovationen?’, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 63 (2004) 264–316, p. 266.


See above, section 2.1.2 and supra note 30.


Supra note 33, p. 49.


BVerfG, 24.3.2021, Neue Juristische Wochenschrift 74(21) (2021) 1723–1751, p. 1732.


Supra note 103.


This shall not lead towards lowering constitutional standards due to the emergency, but conversely be a call ‘for a logical concretisation of the existing rules’, also advocated by G. Duttge, ‘Not kennt kein Gebot?’, Zeitschrift für Medizinstrafrecht 6(4) (2020) 193–194, p. 194.


As in other European Countries, supra note 157, p. 6.


M. Rüb, ‘In Bergamo stauen sich die Särge’, Frankfurter Allgemeine Zeitung (17 March 2020), available online at (accessed 18 February 2022).


Mori, supra note 83; Konrad Schuller, ‘“Die Alten lasse ich im Stich”’, Frankfurter Allgemeine Sonntagszeitung (22 March 2020), p. 3.


Supra note 107, p. 5.


Supra note 2, p. 195.

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