“Ethical Policy Advice Can Provide Orientation in Crises and Help Justify Decisions”

Controversially discussed: ex ante triage and ex post triage

In developed countries, medical resources are usually available in sufficient quantities. “However, if a major disaster occurs, such as a terrorist attack, with a sudden large number of people being seriously injured at the same time, urgent treatment is required,” Buyx said. During the COVID-19 pandemic, she said, the number of patients in need of treatment increased dramatically for a long time, so that intensive care resources such as ventilators or critical care beds became scarce. “Due to this shortage of resources, in 2020 doctors in the Italian city of Bergamo had to use triage to decide who should be treated,” said the chairwoman of the German Ethics Council, adding, “At that time, there were no specific guidelines worldwide on which criteria should be used as a basis for decision-making in such a situation.” The German Ethics Council, as a body of experts, therefore dealt with the basic normative precepts that apply to acute intensive care decisions in a triage situation. “These decisions extend the scope of medical action: it is no longer just about the optimal care of an individual patient, but about the question of which criteria to apply in order to decide who should be helped first in the case of extreme scarcity of resources,” explained Buyx.

Against this background, the German Ethics Council considered which criteria could be applied. It became apparent that age, sex, social status or lifespan were not permissible as selection criteria under constitutional law. Meanwhile, the type of triage also played a role in the discussion: ex ante triage is applied when there are too many COVID-19 patients who cannot all be treated at the same time because, for example, there are not enough ventilators. However, the decision as to who should be treated first in this case is simpler and also legally less problematic than with ex post triage. In the latter case, due to limited medical resources, a decision must be made as to which treatment measure should be discontinued for a patient with a poor prognosis in order to be able to treat another patient with a better prognosis. “There are also no material guidelines from the government for different types of triage. However, expert associations can develop guidelines for this. Criteria can be, for example, the clinical prospects of success based on scores, although in the view of the Ethics Council, it is essential that the assessment be carried out by more than one doctor in order to prevent arbitrary action by individuals,” Buyx reported. According to legal experts, ex post triage in particular is currently illegal and even punishable under criminal law. However, a parliamentary debate on this issue and a possible legal amendment are still pending.

How are vaccination groups prioritised?

The second topic that is currently subject of controversial debate is, according to Buyx, the prioritisation of access to vaccines. The initial shortage of the new vaccines made it necessary to prioritise the vaccination order, she explained. The decision of the German Standing Committee on Vaccination (STIKO), the German Ethics Council and the German National Academy of Sciences Leopoldina on possible vaccination priority groups was based not only on medical but also on legal ethical principles. Relevant legal ethical principles had been, for example, self-determination, harm avoidance and beneficence, justice, solidarity and urgency. “The four vaccination goals of the German Ethics Council are the prevention of severe courses of the disease; protection against exposure; prevention of transmission and protection in environments with a high proportion of vulnerable individuals as well as in those with a high outbreak potential; and the maintenance of essential state functions and public life,” said the Ethics Council chairwoman. Based on this, three vaccination priority groups were recommended: People with a significantly increased risk of severe disease or even death should be vaccinated first. Priority should also be given to health care workers with increased exposure, as well as people with key functions in areas of public service and the maintenance of central government functions with increased risks.

The STIKO took up these recommendations of the Ethics Council and linked them to the evidence available for the individual risk groups. The resulting recommendation was then incorporated into the vaccination ordinance of the Federal Ministry of Health. “These ordinances must be continuously adapted, for example when new vaccines are approved. In our opinion, prioritisation was fundamentally necessary,” says Buyx. Ethical policy advice could indeed provide orientation in crises and help justify or even improve decisions. Ultimately, however, the final decision must be made by politicians. Revisions and adjustments of decisions are also necessary, even if this leads to frustration. “From an ethical point of view, a changed situation also requires a changed approach. An ethical analysis can promote public debate and create trust,” was the conclusion of the keynote speech.

In the following exchange with ZEW President Achim Wambach, the topics under discussion included triage criteria such as age, the question of why the government should not prescribe material criteria, and personal preferences in vaccination prioritisation. Further subjects of discussion were special rules for vaccinated persons, whether participation in paid infection studies, such as those conducted in England, would be ethically justifiable, and why no scientist from sociology or economics is currently represented on the German Ethics Council.