BGH living will rejection of life-prolonging measures is not enough

Federal Supreme Court: rejection of "life-prolonging measures" is not enough

A living will is for all parties involved (for example, carers, agents, doctors, nurses,
Courts), as far as it clearly expresses your wishes for a specific treatment situation. In cases of doubt, a court decides as a neutral instance. But the rejection of "life-prolonging measures" is not enough to end an artificial diet. Instead, a living will has to refer to concrete measures or specific illnesses, as the Federal Supreme Court (BGH) in Karlsruhe ruled in a resolution published on Tuesday, August 9, 2016 (Ref .: XII ZB 61/16). From a precautionary power must then clearly show whether it also refers to measures such as artificial nutrition or ventilation.

This leaves for the time being, whether a today 75 years old woman from Baden-Württemberg to be fed artificially. As a 70-year-old she had suffered a stroke. Since then she is fed via a feeding tube. Later, she suffered severe epileptic seizures, so she can no longer express herself.

Previously, in two living wills, the woman had spoken out against "life-prolonging measures" if severe permanent brain damage remained. In addition, she had given one of her three daughters a notary "general power of attorney", which also includes health matters. Thereafter, the daughter may decide on the termination of life-prolonging measures.

So far the daughter did not dispose of an artificial diet break. She and the family doctor of the 75-year-olds are of the opinion that this would not correspond to their will. This is exactly what the other two daughters mean.

This was followed by the district court Mosbach. One of them employed as a "health care supervisor". If this becomes final, this could order the end of the artificial diet.

However, with its decision of 6 July 2016, which was now published in writing, the Federal Supreme Court annulled the decision of the district court and dismissed the dispute there for re-examination. The living will was not clear enough, and the will of the 75-year-olds was not determined, the Karlsruhe judges explained as justification.

In a living will, general phrases such as the desire for "dignified dying" or the rejection of "life-prolonging measures" are not concrete enough. Because it is unclear whether this should relate exclusively to medical treatment, or to measures such as artificial nutrition or artificial respiration. The living will therefore have to respond to certain measures or specific clinical pictures. Otherwise, it could not develop a binding effect.

Similarly, in a precautionary power must be clear whether the authorized person may only decide on the immediate medical treatment or on life supportive measures such as artificial nutrition or artificial respiration and whether this should be binding for the doctors.

Here this is fulfilled. Therefore, the power of attorney for one of the three daughters is valid. It can only be limited if this daughter demonstrably overrides the will of the mother. The district court of Mosbach has so far not sufficiently stated that this is the case here, because a break in the artificial diet would correspond to the will of the 75-year-olds. The district court is therefore now to examine whether the woman has previously made oral statements that suggest their will. mwo / fle