The Criminal Treatment Of “Triage” In German Law


This article shows that there are various forms of “triage” that are to be treated differently from a legal point of view. In the case of “ex-ante” triage, there is a justification of a conflict of duties if the physician can only save one of several dying patients, and he/she is free in his/her choice and subject only to his/her conscience of which patient to save. In contrast, the cases of “ex-post” triage and “preventive” triage need to be assessed differently. Here, the physician is prohibited from removing a patient who is already connected to the ventilator in order to make the ventilator available to another patient (“ex-ante” triage) or not connecting a patient to the ventilator because it is expected that another patient who needs the ventilator in the same way could be admitted soon (“preventive triage”). It is further shown that extraneous considerations or improper motives in connection with the selection of patients to be rescued in triage situations cannot lead to a different evaluation if the physician is fundamentally free in his decision. A corresponding subjective selection on the basis of extraneous considerations can – if there are corresponding criminal offenses, which would first have to be created – lead to an independent discrimination or corruption offense but does not constitute a crime of manslaughter.


Triage, Duty, Collision

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