檢傷分類之立法可能性——評釋德國聯邦憲法法院判決【醫法新論】 試閱
The Possibility of Legislation for the medical Triage: Comment on Judgment of the German Federal Constitutional Court
新冠肺炎疫情期間，大量確診病患湧入醫院，醫療檢傷分類的應用，便在於減緩醫療量能的負擔，使醫院得以在醫療資源匱乏的情況下，盡可能拯救最多人。有鑑於德國目前檢傷分類並無法律規定，僅以醫學協會之非正式指引為依據，為避免身心障礙者會有陷於因身心障礙而為不利對待之歧視可能，德國聯邦憲法法院判決要求立法者應履行＝保護義務，積極立法。然而，以「即時成功治療可能」作為檢傷分類的唯一標準是否真能使身心障礙者免受歧視之風險，容有疑義。
The application of medical triage is to relieve the burden of medical capacity due to the influx of positive patients into hospitals during the COVID-19-pandemic, so that hospitals can save as many people as possible in the absence of medical resources. In view of the fact that in Germany there is currently no legal regulation for the medical triage of patients, but only informal guidelines from medical associations, and in order to avoid the possibility that people with physical and mental disabilities may be discriminated because of their physical and mental disabilities, the German Federal Constitutional Court has judged that legislators should fulfill their duty of protection and actively legislate relevant regulations. However, it is questionable whether the sole criterion of “short-term success prognosis” for the medical triage of patients really protects the physically and mentally disabled from the risk of discrimination.
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