독일 연방헌법재판소 ‘Triage’ 결정(2021) 분석을 통해 본 장애인에 대한 차별 금지

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During the COVID-19 pandemic, there were concerns that the German healthcare system's triage system for prioritizing care could be in crisis. ‘Triage’ is the process by which healthcare providers decide which patients are prioritized for treatment in situations where critical care medical resources cannot keep up with the demand. There are understandable concerns that people with disabilities, who are at higher risk of becoming critically ill with the COVID-19 virus, could be unfavorably treated by the way these decisions are made. The applicants argued that federal and state measures to prevent this were inadequate and insufficient in the face of the uncertainty of a possible shortage of medical resources. The legislator was therefore obliged to provide a legal basis for triage and to effectively regulate the classification to prevent discrimination. The Federal Constitutional Court found that the classification of patients during the COVID-19 pandemic exposed the applicants to the risk of being disadvantaged on account of their disability in relation to the allocation of intensive care resources. The Court also ordered the legislator to fulfill its duty to act promptly and to take preventive measures to prevent discrimination against persons with disabilities. This decision has been criticized of overlooking the argument that the consideration of the severity of the disease and the course of the disease in the triage process constitutes indirect discrimination against people with disabilities. The Federal Constitutional Court also left open the possibility of indirect discrimination when it did not declare unconstitutional the criteria for determining the likelihood of clinical success, i.e., the likelihood of surviving an acute illness. The ‘triage criterion’ may also violate the European Convention on Human Rights because the European Court of Human Rights has recognized a comprehensive concept of indirect discrimination within the Convention. In this case, the Triage Criteria could put people with disabilities at a disadvantage compared to people without disabilities in that the criteria of disability could still have a negative impact on the course and severity of COVID-19-19 infection, which constitutes indirect discrimination. The Federal Constitutional Court should endeavor to decide important and urgent issues promptly, but not to lose sight of the underlying approach to the problem and the various forms of discrimination that can result from it.