Federal Constitutional Court overturns triage regulation of the Infection Protection Act – consequences also for criminal liability risks

IIn its ruling of September 23, 2025, the Federal Constitutional Court (Bundesverfassungsgericht – BverfG) declared the triage regulation in the Infection Protection Act (Infektionsschutzgesetz – IfSG) unconstitutional. Section 5c IfSG does interfere with doctors' freedom tp practise their profession, which may in principle be constitutionally permissible. However, the Federal Government lacks the legislative competence for the contested provisions of Section 5c (1)-(3) IfSG. Doctors can therefore no longer be bound by the IfSG’s triage regulation when making allocation decisions in disaster situations and bottlenecks. This reduces civil and criminal liability and criminal liability risks, albeit  likely only temporarily.

Initial situation

During the COVID-19 pandemic, there was intense debate about the criteria to be used for prioritisation in the event of capacity constraints. The criteria for "triage," i. e., the allocation of intensive care resources when capacity is insufficient, were highly controversial. The moral and legal dilemma is that every allocation decision potentially means the loss of one human life in favor of another.

With Section 5c (1)-(3) IfSG, the Federal Government for the first time regulated a procedure, a prioritisation criterion, and prohibited criteria for triage situations. Section 5c (1) IfSG contained a prohibition of discrimination and guidelines on intensive care capacity emergencies. Section 5c (2) IfSG made the current and short-term probability of survival the decisive criterion. Section 5c (3) IfSG determined the responsibility for allocation decisions.

The trigger for this legal regulation was a 2021 decision of the BVerfG, which obliged the legislature to effectively protect people with disabilities from discrimination in the context of health care.

Fourteen specialists in emergency and intensive care medicine filed a constitutional complaint against Section 5c IfSG, citing in particular a violation of their freedom to practice their profession.

Court’s key considerations

The BVerfG upheld the complaint and found the contested provisions to be unconstitutional. The interference with the freedom to practise a profession requires legal justification, for which the Federal Government lacks legislative competence. The Basic Law grants the Federal Government powers to combat and prevent diseases; a detailed allocation regulation for triage situations does not fall within its competence and does not necessarily require a uniform national regulation.

In short: triage is a matter for the states.

Practical note

With the repeal of Section 5c IfSG, there is no longer a federal legal obligation to prioritize according to a uniform scheme (probability of survival as the sole criterion). The exclusive focus on probability of survival was controversial among the medical profession anyway due to ambiguities and interference with professional freedom.

Allocation decisions in the event of shortages are now to be made at the discretion of the physician, in accordance with the physician's duty of care and within the scope of therapeutic responsibility – free from federal legal directives. The criteria set out in Section 5c IfSG ( ) are no longer binding and may not be applied schematically if this would contradict medical care.

Therefore, criminal charges cannot be based on the allegation that a decision was not made "exactly in accordance with Section 5c IfSG," as this standard no longer applies. This strengthens freedom of therapy and reduces the risk of formal breaches of duty due to decisions based on the contested regulation. Conversely, physicians face criminal risks if a decision fails to meet the requirements of professional medical care, even if it is based on the (formerly) statutory probability of survival.

A future triage rule is therefore not off the table. The Federal Constitutional Court already clarified in 2021 that the legislature may enact triage rules. Since the federal government lacked the authority to enact the regulation that was overturned here, the states can now create their own regulations or procedures. Physicians and clinics will then have to comply with state law requirements, if applicable.

This article was written in collaboration with our research assistant Saskia Reimann.