Living will: Ruling by the Federal Court of Justice 14 November 2018 – Take action!
In November 2018, the Federal Court of Justice ruled on the requirements that a Living will must be met with regard to the withdrawal of life-sustaining treatment (Federal Court of Justice, order of 14 November 2018, ref.: XII ZB 107/18). In this specific case, this means that the patient in question, after years in a persistent vegetative state and following a dispute between the family members involved, is now permitted to die.
Regarding the case:
The parties to the proceedings were the woman’s husband on the one hand and her son on the other. Both were appointed by the competent local court in 2012 as guardians with sole power of representation for the woman.
The woman in question had drawn up a living will in 1998. In it, she stipulated that life-sustaining measures should not be administered, amongst other things, if there was „no prospect of regaining consciousness“ or if „severe, permanent brain damage“ remained as a result of illness or an accident. In the years that followed, prompted by two cases of persistent vegetative state among her acquaintances, the patient also repeatedly told various family members and friends that she did not wish to be kept alive by artificial feeding. She had made provision for this in her living will.
The patient suffered a stroke in 2008 at the age of 68. Following this, she was able to speak on a single occasion and told her therapist that she wanted to die. Shortly afterwards, she suffered a cardiac arrest. Since then, she has been in a persistent vegetative state and is being artificially fed and hydrated via a feeding tube.
Her son believes that artificial nutrition and hydration should be withdrawn in accordance with the wishes set out in the patient’s living will. Her husband objects to this.
The Local Court rejected the application by the person concerned, represented by her son, for authorisation to discontinue artificial nutrition and hydration. The Regional Court had initially dismissed the appeal lodged by the person concerned against this decision. The case was then referred to the Federal Court of Justice, which in 2017 (Federal Court of Justice, order of 8 February 2017, Case No. XII ZB 604/15) ruled that, in the case of certain illnesses or treatment scenarios, a living will may be sufficiently specific even if medical measures are not described in great detail. However, an expert opinion must be obtained to clarify whether there is any chance that the person concerned will regain consciousness. The Regional Court subsequently commissioned an expert report, which concluded that the functions of the patient’s cerebrum had been irreversibly destroyed.
The Regional Court has now dismissed the appeal lodged by the person concerned, on the grounds that judicial authorisation was not required (a so-called ‘negative certificate’). The appeal on points of law lodged by the person’s husband against this decision was unsuccessful.
The Federal Court of Justice (BGH) takes the view that the withdrawal of life-sustaining treatment does not require the approval of the guardianship court under Section 1904(2) of the German Civil Code (BGB) if the person concerned has already expressed their own wishes in this regard in a a valid living will (Section 1901a(1) of the German Civil Code (BGB)) I have set out, and that this applies to the current circumstances regarding the person’s life and treatment. This decision is then binding, meaning that the guardian’s consent is not required.
However, a living will is only directly binding if it is clear in which treatment situations which medical measures are to be carried out or withheld. A prerequisite is that the person concerned sets out in detail what they do and do not want in a specific life and treatment situation. It is not decisive that „the person concerned anticipates their own history as a patient and takes future advances in medicine into account in advance“. However, the Federal Court of Justice clarified that general instructions, such as a request to enable or allow a dignified death when a successful outcome of treatment is no longer to be expected, are insufficient. Even the statement that one wishes „no life-sustaining measures“ does not, in itself, constitute a sufficiently specific treatment decision. Ultimately, it must be determined through interpretation of the statements whether a sufficiently specific advance healthcare directive exists.
In the present case, the Senate concluded that the person concerned had described, in sufficiently specific terms in her advance healthcare directive, a life and treatment situation in which the directive was intended to apply, and that there was a clear condition of severe, irreversible brain damage. Consequently, the living will was validly drawn up and binding.
This decision will now have to be put into practice by the family and the doctors.
For the patient in question, whose wishes – as established by the Federal Court of Justice – had been set out in sufficiently specific terms, this means that she is allowed to die. When one then considers how long the patient had already been in a coma and how the family had been arguing over the withdrawal of life-sustaining treatment, the full horror of the situation becomes apparent – a nightmare that the family on both sides of the dispute must have endured for over 10 years. Only this brings home the full scale of such a situation.
But what does this mean for you? Take action. Make arrangements! Seize the opportunity to set out your wishes in sufficient detail in a living will, so that you and your family do not have to go through the same ordeal as the families whose stories came to light following the decisions of the Federal Court of Justice in 2016 and now in 2018.
If you have any questions about the Drawing up a living will or to the Validity of a living will that has already been drawn up do you have?
Please feel free to get in touch – We’d be happy to advise you.