BGH: Take advance directive seriously and do not over-interpret it
The courts must take seriously the will to die stated in a living will. With one on Friday March 24th. In 2017, the decision published by the Federal Court of Justice (BGH) in Karlsruhe opposed the attempt to interpret the opposite in the declaration (ref .: XII ZB 604/15). A Catholic cannot be inferred from a rejection of active euthanasia, nor would she want to stop the artificial diet. In addition, the husband may then have to accept his wife's wish to die.
In the specific case, it is about a 76 year old woman from Bavaria. After a stroke in 2008, she had a temporary cardiac arrest. Since then she has been in a coma. It is artificially fed and supplied with fluid via a gastric tube.
In a living will written in 1998, the woman refused life-extending measures if "there is no prospect of regaining consciousness". In order to relieve pain, she may also accept a shortening of her life. "I reject active euthanasia. I ask for human and pastoral care, ”it continues to be available.
In the same document, she named her son as a "confidant" to enforce her will. The district court of Freising named him and also the wife's husband as a guardian.
In agreement with his mother's doctor, the son has been in favor of stopping artificial nutrition and hydration since 2014. This corresponds to the living will and the will of the mother. The husband, however, blocks himself.
Based on various alleged indications, the Freising District Court and the Landshut District Court rejected the son's application. The district court particularly referred to the refusal of active euthanasia. In addition, the woman was a practicing Catholic. From this, the regional court concluded a "value system", according to which the woman also refused to stop artificial nutrition.
However, according to the Karlsruhe ruling, the courts cannot simply read things into a living will. In numerous individual points, the BGH rejected the reasoning of the regional court as incorrect.
For example, discontinuing artificial nutrition was no euthanasia - and, according to what was then understood at that time, it was not. The Catholic faith alone also does not allow such conclusions, especially since none of the witnesses has ever spoken to the woman about specific beliefs.
The BGH also did not accept the argument that the woman wanted pain-relieving treatment as possible, but discontinuing her diet could cause pain. This can be countered by palliative medical treatment, which the woman herself has pointed out.
After all, the desire for home care does not stand in the way of stopping the artificial diet just because this requires relocation to a palliative care unit. The woman had in no way made her death wish dependent on home care.
"A consideration of the will of the husband can only be considered if he had presumably influenced the will of the person concerned", continues the Karlsruhe judgment. Here, however, the woman had not just named her husband, but only her son as a "confidant". Apparently, she assumed that the son understood her will better and would implement it better than her husband.
After all, the BGH assumes that the woman wills to die if "there is no prospect of regaining consciousness". According to the decision of February 8, 2017, which has now been published in writing, the district court is now to examine this. If so, a judicial approval for the end of artificial nutrition is not necessary. Otherwise, the regional court would have to investigate the patient's alleged will. With reference to two vegetative coma patients in her circle of acquaintances, she had said several times before her stroke that she did not want to be kept alive. mwo / fle