Decisions of the BGH on assisted suicide

The Bundesgerichtshof has hitherto reached six verdicts on assisted suicide.

For more detailed information on the first four verdicts see Grimm, Carlo/ Hillebrand, Ingo (2009): Sterbehilfe. Rechtliche und ethische Aspekte. Band 8 der Reihe Ethik in den Biowissenschaften - Sachstandsberichte des DRZE. Alber: Freiburg im Breisgau. Online Version (German)

The first tried case concerned the so-called "Kemptener Judgment". The supervisor and the physician in charge of a coma patient were tried in the Landgericht Kempten for instructing the staff of the care home to substitute the patient's artificial nutrition with tea aiming at a quick and painless death without the permission of the Vormundschaftsgericht (nowadays: Betreuungsgericht, "supervision court"). The caretaking staff, nevertheless, decided not to act on this command and instead contacted the Vormundschaftsgericht, the court that had prohibited the substitution, on the matter.

Given the patient's death's lack of imminence, the judges of Kempten saw no attempt of allowed passive assisted suicide. They found the defendants guilty of attempted murder.

The revision of the verdict conducted by the Federal Constitutional Court (Bundesgerichtshof, BGH) on 13 September, 1994, however, found both supervisor and physician free of charge: In case of an incurable patient who is incapable of deciding, it should be allowed to terminate artificial feeding if there is no imminent death and this procedure matches the suspected will of the patient. In the case tried it could be determined by witness declarations that the patient would have presumably agreed on the planned ending of the artificial feeding, thus justifying the procedure of the defendants.

Case description and verdict justification of the BGH. Online Version (German)

The second case was tried at the Landgericht Kiel in April 1995 and subsequently revised by the BGH: Two married doctors supervised a pensioner friend who was dying. After consultation with another doctor they decided to remove her from the hospital and keep medicating her at home. Shortly after, the pensioner died.

The judges in Kiel came to the conclusion that the woman had died from an overdose of administered Dolatin which the couple had injected with the intention of killing her. The motives of the doctors for this course of action, so the judges, were varied: The husband had allegedly wanted to inherit as soon as possible from the pensioner by use of a fake testament. His motive was thus greed, for which he was found guilty of murder. His wife had allegedly wanted to save the pensioner from a painful death. Having acted with the intention of causing death, however, she was also sentenced to time in prison.

In the revision of the verdict at the BGH, the wife was found free of charge on 15 November, 1996. According to the judges at the panel in Karlsruhe there was a lack of proof of intent and of the Dolatin administration being the cause of death: It cannot be rightfully excluded that the intent of the doctor had been to accompany the dying woman through therapeutically imperative, pain-relieving medications, thus accelerating her death process.

This way, indirect assisted suicide was allowed for the first time: "A medically necessary pain-relieving medication according to the declared or suspected will of the patient shall not be illegal by being able to accelerate death as an unintentional but foreseeable inevitable side effect."

Detailed description of the case and verdict justification of the BGH. Online Version (German)

The third case dealt with the question, in which cases the Vormundschaftsgericht (nowadays: Betreuungsgericht, "supervision court") should approve the instruction of the supervisor. The concrete facts of the case were as follows:

The supervisor of a patient in a persistent vegetative state had applied for a termination of the patient's artificial feeding given the expectation of no improvement in the health of the patient and that this procedure had been intended by the patient. As proof for the latter the supervisor had refered to a written expression of the will of the supervisee in which he asked for the disconnection of the feeding in case of irreversible loss of consciousness.

The Higher Regional Courts (Oberlandesgerichte) of Frankfurt and Karlsruhe decided that an approval from the Vormundschaftsgericht was needed. The Oberlandesgericht of Schleswig-Holstein denied this, sending the case to be decided upon by the Federal Supreme Court (Bundesgerichtshof).

The judges in Karlsruhe reached a verdict on 17 March, 2003. According to the court, an approval of the Vormundschaftsgericht was necessary. While the doctor has to ensure that the patient's will is enforced, the denial of life-conserving and life-prolonging measures (here: artificial feeding) has to undergo judicial scrutiny. This procedure shall ensure that the factual situation corresponds with the one described in the patient's will.

The status of patient wills, however, was fundamentally strengthened by the verdict: If "a patient is incapable of deciding and his underlying disease has taken an irreversible path, life-conserving or life-prolonging measures must cease if that corresponds to his earlier expressed will - for example in form of an advanced care directive".

Verdict justification of the BGH and detailed description of the case.Online Version (German)

A critical opinion of the BGH's verdict was published by the Bundeszentralstelle Patientenverfügung. Online Version (German)

The fourth case was decided upon in July 2005. Before this decision, the case was tried in the Higher Regional Court (Oberlandesgericht, OLG) in Munich and the District Court (Landesgericht, LG) in Traunstein. The court assessed the validity of a supervisor's legal action to terminate the artificial feeding of one of his permanent vegetative supervisees against the will of the home management. The caretakers had refused to follow orders despite the recommendation to deactivate the feeding of the doctor in charge. They had referred to the contract between the home and the patient stating the duration of the treatment, on the one hand, and the right to refuse orders in favor of a clear conscience, on the other hand. 

The OLG and the LG rejected the supervisor's lawsuit. During the revision procedure the patient died, leaving the BGH only to decide who should cover the costs of the trial. The judges of the BGH in Karlsruhe found that both parties should pay for the cost of the trial, for the criminal limits of assisted suicide had hitherto not been cleared sufficiently. 

The BGH decided against the opinion of the OLG on 8 June, 2005 that firstly, the contractual agreement on a possible future treatment duration was not valid and secondly, that the caretakers did not enjoy the right to refuse orders. In their justification the judges of the BGH added: "In case the supervisor, in agreement with the doctor in charge, decides to terminate the artificial feeding of the supervised patient incapable of decision, this decision shall overrule the nursing home contract. Neither shall the freedom of conscience of the caretaking staff solely justify the prolongation of the artificial feeding of said patient."

This BGH strengthens with this verdict the patient autonomy and the validity of the current patient will. Artificial feeding through a feeding tube is "an intrusion of the physical identity" and shall need the supervisor's or supervisee's consent. A prolongation of the feeding against the patient's will would thus mean an illegal action. The BGH stated its strong opinion against "forced treatments", even if they are life-prolonging. The patient's wish must be heeded as well, even if the willed action (here: the termination of feeding) does not agree with a personal conscience. The "right to self-determination of the caretaking staff has its limits in the contrary will of the patient or the supervisor in charge - i.e. in the rights of others."

The nursing home would have had the possibility to ask for a judicial assessment of the supervisor's actions, however, the approval of the Betreuungsgericht would not have been necessary. The participation of a court would only be compulsory, if there is discord between doctor and supervisor, for example if the latter refuses to apply medically necessary life-conserving measures.

Verdict justification and case description. Online Version (German)

The background of the fifth verdict was the decision made on 30 April, 2009 in the District Court (Landgericht) in Fulda that found P., a lawyer, guilty of accessory to manslaughter. The daughter and son of a patient who had been in a permanent vegetative state for five years tried to fulfil their mother's orally expressed original will to terminate treatment in case of such an irreversible situation and moved to remove the PEG tube and thus to stop the artificial feeding.

After reaching compromise with the management of the nursing home the patient was stationed in and shortly stopping the feeding, the tube was reinserted against the will of the relatives by will of the management of the entire company. In response to this, the lawyer recommended an unauthorized removal of the feeding tube. The siblings followed this council.

In response to this, the nursing home management moved the patient to a hospital where the feeding was continued. The woman died a natural death a few days later.

The opinion of the Landgericht that found the lawyer's council reason to consider him guilty of accessory to manslaughter was not backed by the verdict the Second Criminal Division of the Federal Supreme Court (Zweiter Strafsenat des Bundesgerichtshofs) reached on 25 June, 2010. On the basis of the 2009 "Patientenverfügungsgesetz" (Advance Healthcare Directive Law) the judges decided that the patient's will to terminate the treatment should be followed regardless of the type and status of the illness. They judged the continuation of the artificial feeding against the patient's original will to be an intrusion in the patient's right to self-determination by the home management. An "active doing" such as the separation of the feeding tube was allowed in the given situation.

This verdict is considered a breakthrough in the strengthening of the advance healthcare directives and has brought clarity to the jurisdiction.

Press office of the Bundesgerichtshof (2010): Abbruch lebenserhaltender Behandlung auf der Grundlage des Patientenwillens ist nicht strafbar. Online Version (German)

Verdict justification of the BGH Online Version (German)

The last und thus most current verdict reached on 17 September, 2014 decided upon the case of a woman that suffered brain hemorrhage in 2009 and had been in a permanent vegetative state since. Her husband and daughter, summoned to meet her supervisors, asked the Betreuungsgericht to terminate the artificial feeding and to remove the feeding tube, since the patient had voiced her disapproval of life-conserving measures in case of a severe condition to her relatives and friends before the illness. The Local Court (Amtsgericht) in Stollberg and the District Court (Landgericht) Chemnitz had refused the supervisor's request given the lack of a written advance healthcare directive by the patient. The court argued that the patient's earlier statements which her relatives referred to did not have the quality and depth of explanation that are dealt with in advance healthcare directive form.

The Bundesgerichtshof revoked the previous decisions arguing that the Landgericht had falsely assumed that, given the lack of imminence of the patient's death, the ascertainment of the patient's presumed will should have especially strict requirements. The judges in Chemnitz should thus newly assess any treatment wishes previously uttered by the woman.

Verdict justification of the BGH Online Version (German)

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