Enlarge image
Care of a corona patient in the intensive care unit
Photo: Robert Michael / picture alliance / dpa / dpa-Zentralbild
The legal scientist Tatjana Hörnle advocates that in the event of a possible triage in the clinics in the course of the corona pandemic, the vaccination status of the patients should be taken into account. A prioritization decision can be based on the assumption that a decision-making, adult person who is capable of making decisions has caused his or her distress essentially or even exclusively through his or her own behavior, "argues the director at the Max Planck Institute for Research into Crime and Security in Freiburg and right.
In the triage debate, the prevailing opinion is "that the behavior of patients should not be taken into account when making treatment decisions." However, this only applies to “normal situations”, but “not to the tragic extreme case in which not all patients who need intensive medical care can be cared for,” says Hörnle. It remains "legitimate and rational to point out that the preference to avoid vaccination risks inevitably entails accepting the residual risk of disease." It does not matter whether the decision against a vaccination is understandable for others. Under the extreme constraints of a pandemic, this omission is sufficient as "sufficient reason to prioritize other sick people," said Hörnle. The prerequisite for this isthat there are no more other rational decision criteria. Such a prioritization according to the vaccination status should also be preferred to a possible lottery procedure.
Enlarge image
Tatjana Hörnle: At the beginning of the year she published the compilation »Triage in the Pandemic«
Photo: Baschi Bender
In order to clarify the, from their point of view, decisive difference between normal situations and a possible extreme situation, Hörnle draws the following theoretical comparison: If a wrong-way driver caused a mass accident, all seriously injured people would have to be cared for, including the wrong-way driver, even if the background of the collision was unequivocally established and he would even have intentionally driven onto the Autobahn.
"As long as his treatment is possible, failure to do so could only be explained as a sanction," said Hörnle.
However, it is under no circumstances the task of the public health system to impose sanctions for breach of duty.
However, if the number of accident victims after the above-mentioned collision exceeds the capacity of accessible intensive care units and not all accident victims can be brought to the nearest intensive care unit, then an extreme situation has also been reached.
In such a case, according to Hörnle, as long as there is a serious chance of survival for everyone, priority should be given to the other accident victims and not to the wrong-way drivers.
Under no circumstances does she want to equate non-vaccinated people with ghost drivers, explains Hörnle;
The only thing comparable is that in both extreme situations, personal responsibility for the emergency may play a role in the decision as to who is given preferential treatment.
more on the subject
Legal scholar on triage in the pandemic: Do doctors face manslaughter charges? An interview by Alexander Preker
Clinics on the verge of collapse: who can be saved, for whom is there no longer a bed?
Hörnle had initially published her theses on triage in the "Verfassungsblog";
there, however, they had not met with any appreciable response.
Hörnle is a criminal lawyer and legal philosopher.She has been Director of the Max Planck Institute (MPI) in Freiburg since June 2019, where she heads the criminal law department; before that, she held a professorship at the Humboldt University in Berlin.
There she is still an honorary professor and a member of the "Leopoldina - National Academy of Sciences".
At the beginning of the year, together with the constitutional lawyers Ralf Poscher and Steffen Huster, she published the compilation »Triage in the Pandemic«.
