Current BGH decision on living wills

The Federal Supreme Court (BGH) decided that a woman in a coma without any hope for improvement must still be artificially fed, although she had stated in a living will that she does not wish any life-sustaining measures in such a situation. This has caused a considerable stir. Hundreds of thousands of wills are no ineffective, states the press. This does not apply to most living wills. However, a short review is advised.

“All sorted – now let’s forget about it” seems to be the predominant thought of persons who signed their living will. The statutory definition (Section 1901 a) BGB) has an affirming effect. “If a person of full age who is able to consent has determined in writing, for the event of his becoming unable to consent, whether he consents to or prohibits specific tests of his state of health, treatment or medical interventions not yet directly immanent at the time of determination (living will), the custodian must examine whether these determinations correspond to the current living and treatment situation. If this is the case, the custodian must see to it that the will of the person under custodianship is done.”

Therefore, the law stipulates that the will previously set out in writing by the patient himself for the “final straight” of his life must be taken into account. In principle, the topic should therefore be “ticked off” with the written declaration of such will.

However, the BGH has now caused a stir with its decision dated 6 July 2016 and raised doubts about the sufficiency of the formulations used in a living will. It is already not that easy to just think about under what circumstances one’s own life should rather be ended that would otherwise continue while suffering a serious illness, let alone to find the right words for this. The thought what medical measures could still be taken in such situations and whether one would rather refrain from such measures is even more distant. Furthermore, the layman does not know very much about these things anyway.

This is the point where the BGH comes in. The written statement to “not wish any life-sustaining measures” per se does not include the “specific treatment decision of the affected person that is required for a binding living will”.

The case at issue was about the continuation of artificial feeding with a tube of a 75-year old patient who was no longer capable of acting due to stroke and lost the ability to verbally communicate. It was disputed in the proceedings whether the patient still responded after being addressed; however, she was not able to comprehensibly declare her own intent to be artificially fed or not. The doctors had no hope for improvement.

The BGH confirmed that this was one of the situations for which the woman made the living will. However, it was not clear whether the desire not to take any life-sustaining measures also included artificial feeding. Moreover, one of the patient’s daughters had a health care proxy. She had been authorised by the mother to decide on the discontinuation of life-sustaining measures on her behalf. This daughter wanted to continue the artificial feeding. The two other daughters did not want this and thus started the proceedings that were decided by the BGH in the final instance.

In principle, the opinion of the BGH about the relation between health care proxy and living will is clear: “If an effective living will valid for the current situation is available, the affected party made the decision himself. The authorised person is then only obliged according to Section 1901 a (1) clause 2, (5) BGB to comply with the will of the affected person.” This means that the living will prevails. Nonetheless, the decision also seems to be characterised by the fact that the person of trust who was appointed by the mother as health care proxy holder apparently made a difference between life-sustaining measures and artificial feeding. Finally, the judgement may also be affected by the fact that the decision in favour of the two complaining sisters would soon have prompted the mother’s death – a consequence that is certainly at least uncomfortable for some judges.

The decision thus affects – as usual – a specific individual case. The fact that the BGH considers the will of the patient “not to carry out any life-sustaining measures” insufficient to refrain from artificial feeding is now certain as an (abstract) result of the decision. After all, the court based its decision on the justification for the law.

It must be expected and it should also be advised that doctors initiate and continue artificial feeding in such situations; and probably nothing can be done if doctors take other life-sustaining measures such as artificial respiration, resuscitation, etc., although it is stated in the living will that “no life-sustaining measures” should be taken in one of those (obviously applicable) situations.

Whoever finds this isolated formulation for the treatment measures in their living will should indeed add some clarifying explanations. In doing so, it is not unproblematic to prepare a “catalogue” of measures that should not be taken, as this could allow the conclusion that other life-sustaining measures not specifically excluded by the affected person should be taken (although the patient possibly did not know about this option or did not think about it at the time of preparing the will).

Therefore, the decision of the BGH will also be criticised in legal literature. However, it seems questionable that “hundreds of thousands of living wills are therefore nullified”. The BGH case was about a formulation from a template of the Protestant church. The declarations regularly used by our company determine more specific treatment requests for expressly stated and specific treatment situations. This corresponds to the recommendations of the Federal Ministry of Justice.

Anyone who has set out their living will in this manner can therefore be relieved and indeed quickly forget about it.