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German appeal court ruling gives support to right to die campaign

BMJ 2010; 340 doi: https://doi.org/10.1136/bmj.c3501 (Published 29 June 2010) Cite this as: BMJ 2010;340:c3501
  1. Ned Stafford
  1. 1Hamburg

    Germany’s highest criminal appeals court has overturned the conviction for attempted manslaughter of a lawyer who advised a woman to cut the intravenous feeding tube keeping her comatose mother alive.

    In a landmark ruling hailed as a victory by advocates of the right to die, the Federal Court of Justice ruled on 25 June that terminally ill, comatose patients who had previously signalled their opposition to life prolonging treatments have the right to have such treatments stopped. The ruling gives legal cover for what some call “passive” euthanasia of terminally ill patients but is not applicable to the administration of a lethal substance, which remains illegal.

    “The ruling gives legal clarity on a fundamental question in the conflict over what is permissible in the passive sense and prohibited in the active sense on assisted dying,” said Germany’s justice minister, Sabine Leutheusser-Schnarrenberger. “There can’t be forced treatment against a person’s will. This is about the right of self determination and therefore a question of living in human dignity until the end.”

    The case in question involved a woman in her early 70s who in 2002 became comatose after a cerebral hemorrhage. She was transferred to a nursing home and fed intravenously. The woman’s daughter, who said her mother had previously told her she would not want to be kept alive artificially, asked for the tube feeding to be stopped, but the nursing home refused.

    Her lawyer, the Munich based medical law specialist Wolfgang Putz, advised the woman to cut the tube, which she did in 2007 in the presence of her brother and Mr Putz. The tube was later replaced, but the woman died two weeks later.

    The daughter and Mr Putz were charged with attempted manslaughter. A district court in Fulda, in the central state of Hesse, acquitted the daughter, as she was acting on advice of attorney. Mr Putz was convicted in April 2009 and given a nine month suspended sentence, which he appealed to the High Court.

    Gian Domenico Borasio, professor of palliative medicine at Ludwig Maximilian University, Munich, told the BMJ that the ruling reaffirms a new law enacted last year. This law not only allows previously signed declarations (advance directives) as a basis for terminating life prolonging treatments but also “very clearly states” that the “presumptive will of terminally ill patients” has to be used as a basis for decision in the absence of an advance directive.

    Dr Borasio said that the daughter knew her mother did not want her life prolonged in a terminally ill comatose state and therefore felt obliged to act. “This was an act of desperation and self-defence by a daughter who did not want her mother to be force fed any more against her will.

    “This situation does not have anything to do with assisted suicide, as erroneously reported by some media. It is instead an example of withdrawal of treatment in accordance with the patient’s will. In Germany this is termed ‘passive help in dying’ [‘passive Sterbehilfe’] and was first explicitly allowed by the Federal Court of Justice in 1994. Assisted suicide, which entails providing somebody with a means to actively end his or her life, is a completely different issue.”

    Jörg-Dietrich Hoppe, president of the German Medical Association, issued a statement after the court ruling repeating the association’s fierce opposition to active euthanasia while avoiding a direct comment on the issue of doctors’ involvement in terminating life prolonging treatments of terminally ill patients.

    Dr Hoppe said that the association’s basic principles make it clear that “comatose patients, like all patients, have a right to therapy, care, and attention,” including life prolonging treatments such as intravenous feeding. “In cases in which the patient’s will is not clearly established, then the preservation of life has absolute priority,” he said, emphasising that “it should never happen, that people in comas” over the course of time gradually come to be judged by others as “tired of living.”

    “It is obvious, that we, as doctors, must stand by terminally ill patients and attempt to reduce their suffering,” he said.

    Notes

    Cite this as: BMJ 2010;340:c3501

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