Presumed will

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In law, the presumed will denotes a will that has been assumed as an alternative. So is z. B. a management without order is entitled if the takeover of the business corresponds to the interests and the real or presumed will of the principal (cf. § 683 BGB ).

Medical law liability and living will

According to medical law, the presumed will is decisive if a patient who is unable to consent requires medical treatment without having previously declared in writing or orally to carry out the specific medical treatment in a state capable of consenting. The treatment must then be carried out or omitted according to the presumed wishes of the patient. From freedom of conscience there is no right through action on the self-determination of by his authorized agent or supervisor defy patients represented and in turn in the right to physical integrity intervene. If, despite careful examination, no clues can be found to determine the individual presumed will, criteria can and must be used that correspond to general values ​​- in case of doubt, the treating physicians therefore decide ( "paternalistic" ) to preserve life. Medical treatment contrary to the patient's declared will in spite of a medical indication, such as the deliberate disregard of an advance directive or an orally expressed patient's will (assuming the ability to give consent!), Basically constitutes the criminal offense of bodily harm . If, on the other hand, a medically indicated treatment is terminated without being covered by the patient's declared or presumed will, this basically constitutes bodily harm through omission or failure to provide assistance . If, on the other hand, medical treatment is continued despite a medical indication that is no longer given , this basically also constitutes the offense of bodily harm according to § 223 StGB ff. And should therefore be ended.

Researching the presumed will of the patient means assessing to the best of our knowledge and belief "what the patient would decide for himself in the situation if he could", formulates the German Medical Association.

An existing and valid living will is generally binding. If a medical situation is covered by a living will, a caregiver or authorized representative may not assume any other patient will. A living will can, however, be revoked informally at any time by the declaring person.

If an advance directive provides for the failure to take action in the event of an illness that has not yet entered a stage of irreversible fatal course, but compliance with the advance directive would lead to death, although there are still realistic prospects of a cure, the current legal situation is the advance directive Not mandatory for a supervisor / authorized representative if the patient's wishes for the specific treatment situation cannot be clearly and reliably determined. If the will cannot be clearly and reliably determined, it is at the discretion of the supervisor or the authorized representative to determine the presumed will and to decide whether treatment should be discontinued or continued. This applies regardless of what stage the disease is at. If the court is aware of a power of attorney, it may not appoint a supervisor even if the person concerned rules out life-saving treatments by means of an advance directive.

The supervisor is also responsible for his or her actions towards the person being looked after ( § 1833 , § 1908i BGB). If a caregiver or authorized representative of a patient does not comply with this despite a situation-related living will, the person concerned can demand compensation from him in accordance with Section 253 (2) BGB . The supervisor's obligation to pay compensation to the person being looked after is not excluded by the fact that the guardianship court has approved something (BGH rulings of January 15, 1964 - IV ZR 106/63 - FamRZ 1964, 199, of May 5, 1983 - III ZR 57/82 - FamRZ 1983, 1220, and from September 18, 2003 - XII ZR 13/01).

Legal regulation

In the meantime, § 630d Paragraph 1, Sentence 3 BGB has standardized: "If consent for a measure that cannot be postponed cannot be obtained in good time, it may be carried out without consent if it corresponds to the presumed will of the patient."

Section 1901a (2) BGB reads: "If there is no living will or if the provisions of an living will do not apply to the current living and treatment situation, the supervisor must determine the treatment requests or the presumed will of the person being cared for and decide on this basis whether he Consents or prohibits a medical measure according to paragraph 1. The presumed will is to be determined on the basis of concrete evidence. In particular, earlier oral or written statements, ethical or religious convictions and other personal values ​​of the person being cared for are to be taken into account. "

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Extract from BGHSt 40, 257:

“In the interests of protecting human life, however, strict requirements must actually be placed on the prerequisites for the acceptance of such a presumed consent of the patient unable to make a decision. What is decisive is the presumed will of the patient at the time of the offense, as it appears after carefully weighing all the circumstances. Earlier verbal or written statements made by the patient must be taken into account, as well as his or her religious convictions, other personal values, age-related life expectancy or suffering from pain (cf. BGHSt 35, 246, 249). Objective criteria, in particular the assessment of a measure as generally 'reasonable' or 'normal' and usually corresponding to the interests of an understanding patient, have no independent meaning; they can only be reference points for the determination of the individual hypothetical will.
If, even with the necessary careful examination, concrete circumstances for the determination of the individual presumed will of the patient cannot be found, then criteria can and must be used which correspond to general values. However, restraint is required; in case of doubt, the protection of human life takes precedence over the personal considerations of the doctor, the family member or another person involved. In individual cases, the decision will naturally also depend on how hopeless the medical prognosis is and how close the patient is to death: the less the restoration of a life worthy of human beings can be expected and the shorter death is imminent, the more likely it is that treatment will be discontinued appear justifiable (see BGHSt op. cit. p. 250). "

Extract from BGHZ 154, 205:

"However, the consideration of such an (individual) presumed will is only considered as an alternative, if and to the extent that an 'anticipatory' expression of will of the person concerned made in a state capable of giving consent - may it be presented as consent to or as a veto against a certain medical treatment - cannot be determined. If there is such an expression of will, for example - as here - in the form of a so-called "living will", it binds the supervisor as an expression of the continued right to self-determination, but also of the personal responsibility of the person concerned; because the dignity of the person concerned (Article 1, Paragraph 1 of the Basic Law) requires that a decision made by him or her on his own responsibility is respected even if he has meanwhile lost the ability to make decisions on his own responsibility. The person concerned 's declaration of intent for or against certain medical measures must therefore not be' corrected 'by the caregiver by' recourse to the presumed will 'of the person concerned, unless the person concerned distances himself from his earlier decision with a recognizable will to revoke it or the situation has subsequently changed so significantly that the earlier decision made independently does not include the current situation. "

Individual evidence

  1. ↑ a b c Federal Court of Justice, judgment of the 1st Criminal Senate of September 13, 1994 - 1 StR 357/94 - (PDF; 31 kB), BGHSt 40, 257.
  2. ^ Federal Court of Justice, decision of the XII. Civil Senate of June 8, 2005 - XII ZR 177/03 - .
  3. ^ Friedhelm Hufen : In dubio pro dignitate. Self-determination and protection of fundamental rights at the end of life. In: New legal weekly . 2001, pp. 849-857 (853).
  4. ↑ a b Federal Constitutional Court, decision of the Third Chamber of the Second Senate of January 30, 2002, to refuse acceptance, - 2 BvR 1451/01 - .
  5. ↑ Recommendations of the German Medical Association and the Central Ethics Commission at the German Medical Association for dealing with health care proxy and living will in medical practice ( memento of the original from April 16, 2009 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.baek.de
  6. ↑ a b Federal Court of Justice, decision of the XII. Civil Senate of March 17, 2003 - XII ZB 2/03 - , BGHZ 154, 205.
  7. ↑ a b Federal Constitutional Court, decision of the Third Chamber of the First Senate to reject it from August 2, 2001 - 1 BvR 618/93 - .

See also