April 24, 2024

New wrinkle in German advance directives

German court decides that living wills need not be written down.

A decision on end-of-life treatment in
Germany is sending confusing signals about the state of the law there. An
appeals court has struck down the conviction of a lawyer, Wolfgang Putz, who
had advised his client to cut a feeding tube which was keeping her elderly
mother alive.

Erika Küllmer had been in a vegetative
state for five years and was being poorly cared for. Apparently her gangrenous
arm had to be amputated at one stage after it had been neglected by nursing
home staff. Relations between the woman’s daughters and the nursing home staff
had broken down completely.

Germany’s highest criminal court has ruled
that withdrawal of treatment is legal if the patient has explicitly expressed a
wish to avoid burdensome treatment. “Turning off a ventilator or cutting a
feeding tube fall under the category of permissible forms of terminating treatment,”
a judge
in the Federal Court of Justice.

Because – on top of a language barrier — most
newspaper accounts have confused euthanasia, assisted suicide and refusal of
burdensome treatment, it is difficult to determine the significance of the
case. But an
opinion piece in Die Zeit
described it as ground-breaking. Although German
courts have dealt with similar cases, this case clarifies that a “living will”
need not be written. Her daughter said that Mrs K. had expressed a wish not to
be kept alive in such circumstances and this verbal request was sufficient, the
court decided.

This was criticised by Eugen Brysch, the
director of the German Hospice Foundation. “The verdict transmits a fatal
signal that does not comply with the critically sick people’s fundamental right
to self-determination and care,” he said. Mr Brysch was particular critical of an
unwritten living will. “If, as in this case, a casual private conversation
without sufficient witnesses is enough to determine the patient’s wishes, then
the floodgates for misuse are wide open.” ~ New York
Times, June 26

Michael Cook
living wills