German High Court rules that cutting off life support for
a terminal patient with patient’s consent is not criminal offense under German
law
The Defendant in this case is a lawyer specializing in
health law. The Patient is Ms. K, born in 1931 and in a persistent coma since
2002. Ms. K made oral statements shortly before she fell into the coma that she
did not wish any life‑extending measures and that she did “not want to be
connected to any tubes.” A dispute broke out between Ms. K’s children and the
Nursing Home where Ms. K was staying. Eventually, the parties agreed in 2007
that the Nursing Home would provide only palliative care and the children could
terminate Mrs. K’s artificial nutrition. The Nursing Home administration later
prevented the termination of artificial nutrition.
The Defendant advised the children of Ms. K to simply cut
the tube that provides the nutrition. The children did so, but were discovered
within minutes. Police were called in, and Ms. K was taken to a hospital where
she died two weeks later from her multiple diseases. The district court in
Fulda, Germany, convicted the Defendant of attempted manslaughter and sentenced
him to nine months imprisonment. This appeal ensued.
Germany’s highest court, the Bundesgerichtshof (BGH),
reverses. The Court summarizes its holdings as follows: (1) assisted suicide
through withholding, limitation or termination of medical treatment is
justified if this complies with the actual or presumed intent of the patient
(Section 1901a BGB), and allows a terminal medical condition to take its
course; (2) a termination of medical treatment can occur not only through
withholding of treatment but also by affirmative acts; (3) specific acts that
affect human life, which are not related to the termination of medical
treatment, cannot be justified with the Patient’s consent.
The Court notes that this case arose before the federal law
on “living wills” (advance health care directives) became effective in
September 2009 (Patientenverfuegungsgesetz, Gesetz vom 29.07.2009, BGBl. I. S.
2286). The oral consent given by the Patient in September 2002, which has been
corroborated, was binding both under the law at the time of the events and
under the new federal law on living wills. The district court erred by holding
that the Defendant had committed attempted manslaughter by actively preventing
the continued artificial nutrition of the Patient. The Patient’s consent
justifies not only the termination of life‑supporting measures, but also
affirmative acts that terminate unwanted medical treatments.
Citation: [German] Bundesgerichtshof (BGH), Urteil
vom 25. Juni 2010 ‑ 2 StR 454/09. The decision is available through the Court’s
website http://www.bundesgerichtshof.de.
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
