The background to the verdict was the decision of the Regional Court (Landgericht) in Fulda on 30th April 2009 to find the lawyer P. guilty of aiding and abetting manslaughter. Daughter and son of a patient who has been in a persistent vegetative state for five years tried to comply with the original will that had been verbally expressed by their mother to stop treatment in case of such an irreversible health condition and urged to stop artificial feeding via a PEG probe. After an initial compromise with the care facility management to discontinue the patient’s nutrition, nutrition was again resumed against the will of the relatives at request of the care facility management. In consequence, the relatives’ lawyer advised his clients to cut the feeding tube without authorization. The siblings followed this advice. The care facility’s management then arranged for the patient to be transferred to a hospital, where the nutrition was resumed. However, the woman died a few days later of natural causes.

In its ruling of 25th June 2010, the 2nd Criminal Senate of the Federal Court of Justice (Bundesgerichtshof, BGH) did not agree with the opinion of the Regional Court that the lawyer’s advisory conduct was equivalent to aiding and abetting manslaughter. On the basis of the “Patient Decree Act” passed in 2009, the judges ruled that the cessation of treatment order by the patient had to take place regardless of the type and stage of the illness. They considered the resumption of artificial feeding against the woman’s original will as an attack by the care facility’s management on the patient’s right of self-determination. They also said that “active action”, such as cutting the feeding tube, was allowed in the given situation.

The judgment is regarded as a breakthrough in strengthening the patient’s will and provides clarity in case law.