Passive euthanasia

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Passive euthanasia is the failure to act (omit), reduce or not continue (cancel) life-sustaining measures for reasons of medical ethics .

Delimitations

Passive euthanasia occurs on the basis of respect for human dignity, in order not to prolong painful dying and to allow dying as a natural process. Although this is an internationally established term, many consider it to be misleading and unfortunate and believe that it should be better and more clearly to speak of “letting die” .

For the same reason, the proposed European Association for Palliative Medicine ago in euthanasia only in passive and indirect euthanasia and euthanasia (a synonym for today physician-assisted suicide to be distinguished) and the concept of euthanasia to give up.

Passive euthanasia as letting die therefore by no means means “giving up” the patient. It means doing what the patient can expect from doctors, namely not taking unnecessary or harmful curative therapy measures at all or stopping them if they prove useless for the patient or are rejected by the patient. Instead, the focus is now on "excellent symptom control" with sustained human attention.

Passive euthanasia can be used for people who are incapable of giving their consent and for whom preparatory discussions were not possible or no living will is available, but also if a patient who is capable of making a decision is receiving some (including life-extending) therapy, e.g. B. by a binding statement or a living will refuses to be spoken. This option corresponds to a legal right to self-determination guaranteed in Europe by the constitution or the Basic Law . A violation as disregard of a specific expression of will fulfills the criminal offense of bodily harm .

Passive euthanasia is therefore considered to be

Passive euthanasia can also be to continue a treatment that has already started, but not to intensify it.

Considerations

The attending physicians, the nursing staff and the relatives usually need time to accept the upcoming decision on passive euthanasia. It is therefore important to be aware of the ethical dimension of the problem, to conscientiously answer the questions that arise and to communicate the possible consequences well . Even a patient with a clear level of consciousness, for whom further therapeutic measures seem pointless, needs these discussions and time to process information. The majority of oncological patients reach for each straw when the probability of a cure is 1%. Treatment at all costs is most clearly rejected by healthy people, followed by nurses, who are most likely to face the side effects as a result of treatment. The family doctors are in the middle, while oncologists are closest to the patients in their acceptance of side effects despite the questionable benefit. These different starting points must also be considered when looking for the “right” decision.

Legal foundations in Germany

Passive euthanasia is not expressly regulated by criminal law. It is also allows for seriously ill people who are not in an acute process of dying, which provided that suspected patients will or in a living will express will of the basis for the decision taken is or is the individual presumed will even with the necessary careful consideration concrete circumstances of the finding let the sick man not be found. In these cases, criteria that correspond to general values ​​can and must be used - see the judgment of September 13, 1994 by the Federal Court of Justice (BGH).

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

“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 indications for the determination of the individual hypothetical will. "

Freedom of conscience also does not result in the right to override the patient's right to self-determination through active action and to intervene in his or her right to physical integrity.

One against the z. Treatment carried out, for example, in the patient's declared will in an advance directive, is an illegal act, the omission of which the patient can demand analogously to Section 1004 Paragraph 1 Clause 2 in conjunction with Section 823 Paragraph 1 BGB . This also applies if the coveted omission would lead to the patient's death. The patient's right to determine his body makes compulsory treatment, even if it has a life-sustaining effect, inadmissible (BGH loc. Cit., 751, with reference to the Senate resolution).

In the event that an advance directive provides for the omission of measures in the event of an illness that has not yet entered a stage of irreversible course, but compliance with the advance directive would lead to death, although there are still realistic prospects of a cure, the advance directive is for a supervisor / authorized representative is not mandatory if the patient's wishes for the specific treatment situation cannot be clearly and reliably determined.

In the event that the will cannot be clearly and reliably determined, it is at the discretion of the supervisor or the authorized representative to decide whether treatment should be discontinued or continued, regardless of the stage of the disease. 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.

“If, even with the necessary careful examination, no concrete circumstances can be found for the determination of the individual presumed will of the patient, then criteria can and must be used that 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). "

In the event of an irreversible fatal outcome, an advance directive related to the situation is binding in any case. A supervisor or authorized representative may then not assume a different will.

Treatment contrary to the presumed will of the patient, i.e. simply disregarding an advance directive, constitutes a criminal offense of bodily harm . If, on the other hand, passive euthanasia takes place without at least sufficient presumed consent from the person, it is punishable as killing by omission. Letting to die by omission is punishable in the FRG at least according to § 323c StGB because of failure to provide assistance or § 225 StGB, mistreatment of those under protection . Other homicides may also come into consideration.

A distinction must be made here:

  • A consensual waiver of further measures will not be punished if it is done at the request of a patient capable of giving consent . In incapacitated patients earlier apply wills as an important source of information for the rash then giving "presumed will" of the patient. In Germany, this group of cases is not covered by § 216 StGB, but by § 212 , § 213 StGB. The consent leads to a justification for the doctor, since he must respect the refusal of further treatment by the patient in view of the impending death in terms of human dignity ( Art. 1 GG ).
  • The unilateral waiver of further measures (both non-acceptance and non-continuation) by the doctor is extremely problematic. However, this will occur quite frequently in practice. The termination is one-sided if the patient rejects it or has not commented on it and is no longer able to do so. There are two groups of cases:
    • The first typical situation is an accident victim who can no longer express himself but is in great pain. In this case, the doctor can also relieve the pain with medication, which may shorten life if other medications do not have an adequate effect. In Germany, this group of cases, like the consensual waiver, is not criminally covered by § 216 StGB, but by §§ 212, 213 StGB. The consent leads to a justification for the doctor, since he must respect the refusal of further treatment by the patient in view of the impending death in terms of human dignity ( Art. 1 GG).
    • Another typical situation is the patient who has been in a coma for a few years and the probability of a re-awakening tends towards zero medically. The legal discussion here relates to ethical categories: It is argued that the task of the doctor is to maintain and secure human self-realization. Where communication is no longer possible and there is a lack of consciousness, the medical guarantee for the patient's life ends . Others use keywords such as “fatefulness”, “futility of further treatment” or the “naturalness of death”. Ultimately, however, human dignity ( Art. 1 GG for Germany) must be taken into account, which includes the right to a dignified life as well as the right to a dignified life.

The German Federal Court of Justice considers it necessary to obtain the approval of the Guardianship Court (analogous to Section 1904 of the German Civil Code) in these life-threatening cases in which the doctor's urgent decisions are not required (because irreversible damage must be prevented ). For this purpose, the appointment of a legal supervisor is first necessary, unless an authorized representative is active on the basis of a general or a health care proxy . Possibly. a process supervisor is to be appointed.

In a landmark ruling on June 25, 2010, the German Federal Supreme Court allowed passive euthanasia for a woman who had been in a coma for five years and was being fed artificially. Her daughter had cut the feeding tube. The Federal Court of Justice constructs the daughter's impunity with the figure of the justifying termination of treatment. This justification should be used if the person concerned has a life-threatening illness and the behavior is limited to restoring a state that allows an already started disease process to run its course. In addition, discontinuation of treatment without an advance directive must at least presumably be covered by the will of the dying person. Approval by the supervisory court is not required if the supervisor and the doctor agree on this.

Legal bases in Switzerland

Passive euthanasia is not explicitly regulated in Swiss law and is therefore not considered a criminal offense. When applying them, particular attention is paid to the "Guidelines on Euthanasia of the Swiss Academy of Medical Sciences" (SAMS), which allow treatment to be waived or discontinued if it is certain that the person concerned will never regain consciousness.

Literature and Sources

Single receipts
  1. ↑ Stella Reiter-Theil: Autonomy of the patient and its limits. In: Eberhard Aulbert, Friedemann Nauck, Lukas Radbruch (eds.): Textbook of palliative medicine. 3rd edition, Schattauer Verlag, Stuttgart 2012, ISBN 978-3-7945-2666-6 , pp. 60–76, here: p. 68.
  2. ↑ a b Stein Husebø, Eberhard Klaschik : Palliative Medicine . Springer Medizin Verlag, Heidelberg 2006, 4th edition, ISBN 978-3-540-29888-5 .
  3. ↑ Michael Stolberg : The history of palliative medicine. Medical care for the dying from 1500 until today. Mabuse-Verlag, Frankfurt am Main 2011, ISBN 978-3-940529-79-4 , p. 77 ff. ( Waiver of treatment ).
  4. ↑ a b To die and let die. In: Spiegel Online. June 25, 2010, accessed August 31, 2011 .
  5. ↑ Stella Reiter-Theil: Autonomy of the patient and its limits. 2012, p. 68 (“Passive euthanasia: omitting, reducing or canceling life-sustaining measures”).
  6. ↑ ML Slevin, L Stubbs, HJ Plant, P Wilson, WM Gregory, PJ Armes, and SM Downer: Attitudes to chemotherapy: comparing views of patients with cancer with those of doctors, nurses, and general public. In: BMJ. 1990 June 2; 300 (6737): 1458-1460. PMC 1663147 (free full text)
  7. ↑ 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.
  8. ↑ 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
  9. ↑ a b Federal Court of Justice, decision of the XII. Civil Senate of June 8, 2005 - XII ZR 177/03 - .
  10. ^ Friedhelm Hufen : In dubio pro dignitate. Self-determination and protection of fundamental rights at the end of life . In: Neue Juristische Wochenschrift , 2001, pp. 849-857 (853).
  11. ↑ 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 - .
  12. ^ Federal Court of Justice, decision of the XII. Civil Senate of March 17, 2003 - XII ZB 2/03 - , BGHZ 154, 205.
  13. ↑ Federal Constitutional Court, decision of the Third Chamber of the Second Senate of January 30, 2002 to refuse acceptance, - 2 BvR 1451/01 - .
  14. ↑ Federal Court of Justice, judgment of the 2nd Criminal Senate of June 25, 2010 - 2 StR 454/09 - , BGHSt 55, 191.
  15. ↑ Michael Kubiciel, decision-making discussion [on BGHSt 55, 191] . In: Journal for Legal Studies , ISSN  1865-6331 , 2010, Issue 5, pp. 656-661 ( PDF file , 94 kB).
  16. ^ Report of the Euthanasia Working Group to the FDJP .