I. Problem
The fact that there are more and more modern ways of treating illness, saving lives and prolonging life means that the dying process today can be influenced and prolonged by medical means – death or the point of death then becomes a medical decision. This gives rise to the fear of many people that, under certain circumstances, a prolongation of life can mean a prolongation of suffering. This is in contrast to the fear that one day not everything medically possible will be done to preserve one's own life.
Section 1901 a BGB defines the concept of the living will as follows: "
"If a legally competent adult has determined in writing, in the event of his or her incapacity to consent, whether he or she consents to or prohibits certain examinations of his or her state of health, treatments or medical interventions that are not yet imminent at the time of the determination (patient decree), the guardian shall examine whether these determinations apply to the current living and treatment situation.
In the living will, individuals set out what should happen to them if they are no longer able to make their own decisions and determine their own course of action. It is intended to give the individual citizen the opportunity to determine in advance which medical measures should and should not be taken if one day they are no longer able to communicate this themselves.
From the patient's point of view, this often involves measures such as artificial nutrition, resuscitation, artificial respiration, pain relief, the administration of antibiotics, blood transfusions, organ transplants, etc.
II. Legal and substantive principles
1. The living will is an expression of the constitutionally protected right of self-determination of every individual citizen.
2. To understand this legal construct, it is essential to realize that, from a legal point of view, every medical treatment measure constitutes bodily harm to the patient. Only the patient's effective consent to the respective treatment justifies this bodily harm. If a patient is no longer able to give this consent explicitly, the treating physician can only initiate medically indicated treatment on the basis of a presumed consent.
If an advance directive is available, a tense situation can arise – if the doctor deems certain measures to be medically indicated that the patient has excluded in their directive. This can lead to a conflict between the attending physician and the patient's representatives or caregivers.
3. The fact that an advance directive is binding in principle was established by the Federal Court of Justice as early as 2003. This means that if an advance directive has been effectively drawn up and describes the specific treatment case that has arisen, the doctor may not ignore it.
The binding nature of a living will is now also regulated by law. Section 1901 a of the German Civil Code (BGB) makes it clear that the type or stage of an illness is not relevant to the consideration of the patient's will. It is legally clarified that the living will is intended to guarantee self-determination in all phases of life.
4. However, an advance directive is only binding on the treating physician if it has been validly executed.
It must meet various formal requirements:
- The author must be of legal age at the time of preparation.
- be legally competent at the time of its creation. In this context, legal competence requires that the person concerned was able to understand the nature, scope and significance of their decision.
- the creation must be in writing
5. In addition to the formal requirements for drawing up a living will, the question of content is of course of the utmost importance.
The law stipulates that the patient's custodian or authorized representative must first check whether the provisions apply to the specific life or treatment situation. If they do, the information contained in the living will for this situation must be followed.
If the specific treatment situation is not explicitly covered by the patient decree,not expressly included in the living will, then the carer or authorized representative must, in a possible second step, check whether an alleged will of the patient can be determined and, taking this will into account, decide in place of the patient whether to consent to the treatment.
In many cases, the problem is that the living will is not formulated in a sufficiently specific manner, so that it is difficult to determine from it what the patient would and would not have wanted in the event of illness or accident.
In such cases, it is necessary to examine whether the living will contains sufficient interpretive aids to determine the patient's presumed will and to enforce it in case of doubt.
According to § 1901 a BGB, the guardian or authorized representative therefore checks whether the provisions set out in the living will apply to the current life and treatment situation.
This is ultimately the key point and the greatest difficulty in drawing up and following a living will. The question of whether the living will can actually be enforced one day depends crucially on how specifically it is adapted to the individual needs and situation.
a) Section 1901 a of the German Civil Code (BGB) also ultimately makes a direct binding dependent on the stipulation of very specific medical measures and a concrete description of the application situation.
b) However, if a treatment situation arises that is not explicitly regulated, then it is necessary to determine what the patient would have wanted in this situation. Ideally, the living will contains contextual aids to interpretation.
The following points, for example, should then be considered:
- the motivation for drawing it up,
- attitude towards past and future life and dying,
- attitude to disability
- religious views
6. The living will must be up to date at the time in question. It should not contain any indications that could lead to the conclusion that the author has since changed his or her mind.
This can be particularly problematic if there has been a recognizable change in the person's circumstances or state of health since the statement was written.
Section 1901 a, paragraph 1, sentence 2 of the German Civil Code (BGB) states:
"A living will can be revoked informally at any time."
Contrary to popular belief, a living will can be revoked at any time, even orally or even non-verbally, by conclusive behavior.
7. Of course, no forbidden actions can be demanded of the doctor in the living will.
So-called active euthanasia, that is, active killing on request in the sense of § 216 of the German Penal Code, is prohibited in Germany and therefore cannot be bindingly regulated.
Permissible and subject to binding regulation is the renunciation of life-prolonging measures. This includes cases in which the disease has taken an irreversible fatal course, even if the immediate dying process has not yet begun but the termination corresponds to the actual or presumed will of the patient.
Indirect euthanasia is also not punishable, i.e. targeted pain relief that may have unwanted but unavoidable life-shortening side effects.
8. Proper consent to a medical treatment requires that the patient has been sufficiently informed about the nature and scope of the treatment. If the living will contains specifications that explicitly order the performance of certain treatment measures, it must also include information that the author was informed about these measures or that information was waived.
By contrast, information on the explanation is not required if a treatment is refused, i.e. is not to be carried out.
III. What happens if there is disagreement in the interpretation of the order?
1. The law stipulates that the provisions of the living will that apply to the treatment situation are to be given effect by the custodian or authorized representative.
In concrete terms, this means that if the patient has not appointed an authorized representative, i.e. a person to represent them in health matters, a guardian will be appointed by the court to take on this role. It is therefore possible to appoint an authorized representative or to make a proposal to the court as to who should be appointed as a guardian. As a result, the patient will be advised to do both, i.e. to create a power of attorney and a care order in addition to the living will.
Power of attorney
In the power of attorney, a person is explicitly authorized to enforce the wishes contained in the living will. The power of attorney requires that the creator is legally competent, that is, the ability to form a free will.
Guardianship order
The so-called care order must be distinguished from the power of attorney. In this, the creator makes a proposal to the court as to who should be appointed as a supervisor if a care procedure is initiated.
The care order therefore only comes into effect when the court deems it necessary for the authorizer's power to act to be transferred to the proposed person, which means that the care court then monitors compliance with the order. Unlike a power of attorney, the creator must also be legally competent when drafting the will.
2. If there is no agreement between the carer and the attending physician regarding the granting or non-granting of consent to a treatment measure, Section 1904 BGB stipulates that the guardianship court will exercise control. This applies to consent to a measure if there is a justified risk that the person receiving care may die or suffer serious and prolonged damage to their health as a result of the measure being taken. The same applies to non-consent if the measure that is to be omitted is medically indicated and there is a justified risk that the person being cared for will die or suffer serious and prolonged damage to their health as a result of the omission or discontinuation of the measure.
If this is the case, § 1904 BGB stipulates that the respective decision of the carer or authorized representative must be approved by the guardianship court.
Section 1904 (1) sentence 2 stipulates that such a measure can only be carried out if there is a risk associated with delaying it – in this case, the doctor does not need to wait for approval and may carry out the necessary treatment that cannot be postponed.
3. However, if the doctor determines that a patient is unable to provide effective consent after having been informed, and neither a representative nor a guardian of the patient is apparent, the doctor or hospital should suggest the appointment of a guardian at the guardianship court.
This can be done, for example, by means of a form for suggesting the appointment of a guardian. The suggestion must be made in writing and signed by the doctor. It should justify the appointment by providing a brief medical report.
In urgent cases, the guardianship court will then appoint an interim guardian by means of a provisional order. This can usually be done within a few hours. The guardianship court then faxes the relevant decision back to the hospital concerned immediately.
As long as no guardian has been appointed or it is unclear whether a guardian or representative has been appointed, the doctor may carry out a medically indicated treatment that is in the presumed interest of the patient. However, if there is no urgent indication, the appointment of a guardian and their decision must be awaited.
Ultimately, the principle always applies that as long as the question of consent is unresolved, a danger to the patient must be avoided by refraining from taking indicated measures, but only those measures that do not allow a delay are to be applied.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.