Prioritization in Medicine by Eckhard Nagel & Michael Lauerer

Author:Eckhard Nagel & Michael Lauerer
Language: eng
Format: epub
Publisher: Springer International Publishing, Cham

2.5 Constitutional Permissibility of Specific Allocation Criteria

The interdisciplinary debate of priority setting and rationing as well as the experience with prioritizing allocation systems abroad has brought forward a whole number of possible criteria on which a possible decision on the allocation of health-care goods can be based upon. Beyond their societal acceptability, ethical justifiability, and economic efficiency, all of these criteria must meet the prerequisites of constitutional permissibility. This encompasses both the principle of equal chances in light of all other fundamental and individual constitutional rights of a member of the statutory health-care scheme and the avoidance of differentiations that are explicitly precluded, both of these aspects having been described above. They seem to be the most substantial requirements of the German constitution as far as the modeling of a statutory health-care system including priority setting or rationing is concerned – and they seem to be largely comparable to the ethical principles which have been discussed in many a historical surrounding of plans to introduce priority setting into existing health-care systems worldwide.51

The legal examination of a number of potential criteria for priority setting and allocation in light of the German constitution, including urgency, chances of success and prognosis, waiting time, patient behavior and compliance, cost-benefit considerations, and even chronological age, has found that the use of all of these criteria is generally permissible, as far as the specific configuration of the allocation or the individual situation of a patient does not impose otherwise by resulting in an unfair or unjustified differentiation of patients.52 Only those criteria which rely on evaluating the social worth or value of lives, or which violate explicit prohibitions of differentiation as mentioned above,53 are impermissible a priori.

The exact configuration of any system of allocation as well as the criteria to be applied to allocation decisions depends, in the end, not only on considerations of equity but also on value preferences of the affected citizens and on the ideals and conceptions of a good and successful life.54 Their determination and the necessary societal decisions require a democratic, open, and fundamental societal discussion.

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