The right to withdraw life supporting treatment as a constituent of the patient’s right to self-determination: a comparative analysis of respective German and Italian case law

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Robert Gordon university of Aberdeen

The right to withdraw life supporting treatment as a constituent of the patient's right to self-determination: a comparative analysis of respective German and Italian case law

Lytvynenko Anatoliy Anatoliyovych,

PhD student in Law

Abstract

advance directive proof judge

The progress of advanced medical care technologies allowing to sustain and prolong the life of severely morbid, or terminally ill people arose a legal dispute that formed a rather delicate issue: has a patient a right to refute treatment even in spite of an apparent death as a consequence of it? With nearly no legislative or case-law background, a number of American courts came to different conclusions concerning prohibition of blood transfusion on basis of religious beliefs in a series of trials in the 1960s, though the issue of death was not stringently involved in them. As the life-sustaining machinery progressed, the courts faced more difficult lawsuits involving the withdrawal of treatment for terminally ill people being in permanent vegetative state, which featured the trials of Quinlan (1976), Saikewicz (1976) Eichner (1980), Leach (1980) and several subsequent trials, where American courts were the first to sanction an order to withdraw life-supporting treatment mostly upon medical report evidence suggesting no patient's recovery is expected. The fragility of such trials was apparently distinguished from trials where the courts dealt with withdrawal of life-support appliances for brain-dead people which was clearly determined even by the 1970s medical machinery. In a few decades, the given issue came into the view of German, Italian and English courts. The first two states, belonging to the continental system of law, apparently lacked any legislation on withdrawal of life-supporting treament, which resulted in a number of contraversial judgments by German land courts in the 1990s and 200s, as well as a decade-long trial of Englaro in Italy, and a resonant judgment of Welby, which arose the issue of assisted suicide as well. As the legislatures were seemingly reluctant to elaborate passive euthanasia laws, all the burden of solving the issue was laid on the courts which managed to develop a body of case law on withdrawal of treatment enacting a number of principles so as to determine whether such a order to withdraw treatment is admissible, or it is not, and whether the court posseses subject matter to rule on similar issues. Herein, the advance healthcare directives (or living wills) designating the range of tolerable and intolerable invasive medical procedures and the powers of attorneys, predominantly known in English-speaking counties as «healthcare proxies», play a substantial role as evidence, albeit their validity in fact may be challenged at trial. The given paper discusses the jurisprudence of German and Italian courts as well as the key principles which they have elaborated by adjudicating trials on withdrawal of treatment with an apparent subsequent death of the patient involved.

Key words: withdrawal of treatment, informed consent, passive euthanasia, living will, healthcare proxy, patientenverfugung, il testamento biologico, treatment termination.

Анотація

Литвиненко А.А.

Право пацієнта на припинення життєзабезпечувального лікування як складова права пацієнта на самовизначення: компаративний аналіз практики судів Німеччини та Італії

З розвитком передових технологій життєзабезпечення, що дає змогу значно подовжити життя невиліковно хворих пацієнтів, постало складне юридичне запитання: чи має пацієнт право відмовлятися від життєзабезпечувального лікування за умови, що смерть буде очевидним наслідком відмови від нього. Майже не маючи правових підстав у законодавстві та практиці судів, американські суди в 60-х роках ХХ ст. доходили різних висновків у справах, де позивачі відмовлялися від переливання крові на підставі релігійних переконань, хоча аспект скорої смерті не завжди супроводжував процес. Життєзабезпечувальча апаратура з роками сягнула нового рівня, і в 70-х роках судам довелося вирішувати більш складні справи стосовно припинення життєзабезпечувального лікування невиліковно хворих пацієнтів, які перебували у перманентному вегетативному стані, а саме справи Quinlan (1976); Saikewicz (1977); Eichner (1980); Leach (1980), і ще низку подібних справ. Американські суди вперше в історії санкціонували у цих справах припинення лікування пацієнтів переважно на підставі доказів, узятих з медичної документації, висновки з якої не залишали шансів на одужання. Очевидно, що такі справи суттєво відрізняються від справ, у яких суди ухвалювали рішення про вимкнення апаратів життєзабезпечення пацієнтів на підставі смерті мозку, визначити яку могла й апаратура 70-х років виробництва. Через два десятиліття подібні справи з'явилися у практиці італійських і німецьких судів. Правові системи Італії та Німеччини як країн, що належать до континентальної сім'ї, на той час не мали відповідного законодавства для вирішення подібних проблем, що призвело до низки суперечливих рішень судів нижчих інстанцій Німеччини у 90-х і на початку ХХІ ст. Прикладами можуть слугувати процес у справі Енгларо в Італії, що тривав майже десятиліття, а також справа Уелбі (2006), яка, водночас, порушила питання «активної» евтаназії. Оскільки законодавчі органи цих країн украй неохоче бралися за розробку законів щодо «пасивної» евтаназії, тягар вирішення проблеми ліг на суди, яким довелося у своїй практиці вирішувати питання про допустимість надання рішення стосовно припинення життєзабезпечувального лікування та існування у суду предметної юрисдикції ухвалювати таке рішення. На допомогу судам прийшли так звані «адванс-директиви», або «заповіти за життя», які визначали обсяги тих процедур, які пацієнт вважає допустимими для збереження власного життя, а також так звані «healthcare proxies» (більше знані у Великій Британії), які є довіреностями для опікунів недієздатних або частково дієздатних пацієнтів (перший тип документів призначений для працівників лікарні, але так чи інакше, опікун для такого пацієнта призначається за рішенням суду, і він є учасником процесу в цих країнах, незалежно від того, який з двох документів підписав пацієнт). Перелічені документи відіграють важливу роль доказів у процесі, хоча їх дійсність суди можуть піддати сумніву. Описані практика судів Німеччини та Італії та вироблені нею основні принципи вирішення подібних справ.

Ключові слова: Відмова від лікування; інформована згода; пасивна евтаназія; прижиттєве волевиявлення; представник у сфері охорони здоров'я; (наступні два словосполучення - це те саме, що прижиттєве волевиявлення, але німецькою та італійською); припинення лікування.

Main part

Introduction. The term «euthanasia» has been primarily conceived as an assist of someone's suicide or a «merciful» murder in the mid-20^th century comments H. Sylving, Euthanasia: A Study in Comparative Criminal Law, 103 U. Pa. L. Rev. 350, 364-368 (1954)., so it was viewed only in the embrace of criminal law, irrespective of being voluntary or involuntary E. J. Gurney, Is There A Right to Die - A study of Law of Euthanasia, 3 Cumb- Sandf. L. Rev. 235, 238-242 (1972).. The «humanitarian» motive to do so was (and mostly, still is) not a firm defence for a defendant who had committed a homicide of somebody terminally ill, expressing, so to say, mercy T. Sachs, Criminal Law - Humanitarian Motive As a Defense to Homicide - State v. Sander (N.H. 1950), 48 Mich. L. Rev. 1199, 1200-1201 (1950).. Generally speaking, this motive had been quite firmly rejected over a hundred years ago by the American jurisprudence See, e.g. Turner v. State [of Tennessee], 119 Tenn. 663, 670-672 (1907).. The 20^th century case-law of United States had a number of criminal trials, where defendants were prosecuted for assisting in suicide of their terminally ill relatives, though there were relatively few of them. In a 1920 case of Roberts, the Michigan Supreme Court faced a trial, where the victim's husband was sentenced to prison for first-degree murder for poisoning his wife: she suffered from multiple sclerosis and herself requested to poison her by means of taking an ounce of Paris green: the court found that it was not a suicide, but a murder, and condemned him to imprisonment People v. Roberts, 211 Mich. 187, 190-192; 195-199 (1920).

****** People v. Kevorkian, 447 Mich. 436, 527 N.W. 2d. 714 (1994).. To wit, the said judgment was overturned seven decades later where the same Court found that assisting in suicide was not a murder under the common law******. At least one American 19^th century trial considered the issue of assisting in committing suicide of a woman by her husband: as in the abovementioned trial, she was terminally ill and was also administered paris green - the Court said that suicide is not a crime in the state of Ohio, but instead, defendant was indicted on foundation of administering poison Blackburn v. State of Ohio, 23 Ohio St. Rep. 146, 163-165 (1872).. These old trials, are, however quite far from the issue of withdrawing treatment on basis of a voluntary will of the patient, approved by a court order, though, in fact they may be accounted as a sort of their prototypes. However, the case law had not determined any time or circumstantial measures of the physician's duty of care after a terminally ill patient - as Kutner (1969) denotes, that literally meant the physicians and other hospital staff had to provide it before the natural death could occur, but the 20^th century legislation and case law before the 1960s did not give any hints so as to how far should this treatment go L. Kutner, Due Process of Euthanasia: The Living Will: A Proposal, 44 Ind. L. J. 538, 547-548 (1969).. However, at a partial solution was found by several United States courts in a number of 1960s trials where patients refused to undergo blood transfusion - in many instances, this type of invasive treatment may be considered as life-supporting. A US 1960s federal trial, encompassing a suit of Jehovah's Witnesses of Washington, D.C. against all state hospitals as well as the representatives of doctors and judges who gave orders for blood transfusion to the children of people associated with the abovesaid religious group, to preclude the abovementioned people and public bodies from ordering, or performing the same in compliance with the Washington, D.C. law as to the subject, claiming that the said statutes were unconstitutional; they lost the suit Jehovah's Witnesses of the State of Washington D. C. v. King County Hospital et. al., 278 F. Supp. 488, 495-496; 499-504; 505-508 (1967).. Several American courts came to a conclusion that upon the First Amendment plaintiff has a right to refuse medical treatment unless the state may justify the body interference in some way See. In Re Boyd, 403 A (2d) 744, 748-750 (1979) and cases cited therein.; and in fact, a cascade of cases unveiled the fact that in each trial the right of the plaintiff not to be administered blood should be balanced against state interests, adopted by American courts as follows: 1) preservation of life; 2) protection of innocent third parties; 3) suicide prevention; 4) ethics preservation and maintenance See, for instance, Public Health Trust of Dade County v. Wons, 541 So. (2d) 96, 97; 100-101 (1989). Seemingly, the primary construction of the said state interests was at best expounded in Satz v. Perlmuller, 362 So. (2d) 160, 162 (1978).

****** See., for instance, John F. Kennedy Memorial Hospital v. Heston etc., 58 N. J. 576, 279 A. (2d) 670, 672-673 (1971) [this case was repeatedly criticized thereafter in similar trials].. Some US decisions, mainly the earlier ones seemed to display a substantial prevailing of state interests against patient's religious beliefs in order to save life******. In fact, such cases on blood transfusion could be complexified by the circumstance the patient is a minor and the parents wouldn't let transfusion on basis of their religious beliefs Jehovah's Witnesses of the State of Washington D.C. v. King County Hospital et. al., 278 F. Supp. 488, 491-492; 499-504 (1967); Crouse Irving Memorial Hospital, Inc., 127 Misc. 2d 101, 103-104 (1985) and see authorities cited at p. 103.. In the trial of Holmes (1972), the US Federal District Court for the Northern District of Illinois acknowledged a right to refuse blood transfusion on basis or religious beliefs, had the plaintiff survived Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F. Supp. 125, 129-130; 132-136 (1972).. In some states, the hospitals applied for a court order to appoint a legal guardian who would allow administering blood to a person with its religious beliefs inhibiting the said Application of President and Directors of Georgetown College, Inc., 331 F.2d 1000, 1006-1010 (1964); Public Health Trust of Dade County v. Wons, 541 So. (2d) 96, 99 (1989).; or applied to the court to receive an order (an «emergency writ») to conduct it See. Application of President and Directors of Georgetown College, Inc., 331 F.2d 1000, 1006-1010 (1964); Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d 215, 267 N.Y.S.2d 450, 452 (1965); see also dictum in Jehovah's Witnesses of the State of Washington D.C. v. King County Hospital et. al., 278 F. Supp. 488, 495-496; 499-502 (1967).; in some specimen, the relatives applied to the court to receive authorization for blood transfusion Hamilton v. McAuliffe, 277 Md. 336, 337-339, 341; 353 A.2d 634, 635-636, 638 (1976).

****** Jehovah's Witnesses of the State of Washington D.C. v. King County Hospital et. al., 278 F. Supp. 488, 499-504; 505-508 (1967).

******* See. Application of President andDirectors of Georgetown College, Inc., 331 F. 2d 1000, 1008 (1964); In Re Osborne, 294 A 2d. 372, 374-376 (1972); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F. Supp. 125, 129-130 (1972); Mercy Hospital Inc. v. Jackson, 306 Md. 556, 564 (1986).

******** St Mary's Hospital v. Ramsey, 465 So. 2d 666, 668-669 (1985).

******** InRe Welfare ofBowman, 94 Wash. 2d. 407; Wash., 617 P. 2d731, 734-737 (1980).. In fact, the jurisdiction of the Courts to give such orders was attacked in the trial of Washington D.C. Jehovah's Witnesses against state hospitals and failed******. Some courts agreed that there may be a multitude of circumstances that a court may consider when deciding whether to grant an order for blood transfusion, or not, such as existence of dependents*******; or plaintiffs fear of adverse reaction, or the calculation of future costs of treatment********. However, the issue of subsequent and immediate death was not at the point of these trials, as well as the apparent futility of the treatment - which, in fact, became the key point in trials involving comatose, or brain-dead******** people in the 1970s case-law of the United States. A similar turn was taken by the English courts in a number of late 1980s and mid-1990s trials: in 1993, a pregnant woman was severely injured in a car crash, belonging to the religious group named «Jehovah's Witnesses»; she was also subjected to blood transfusion (though it was not emergent) and the Court recognized her right to withstand from such treatment on basis of religious beliefs In Re T (Adult: Refusal of Treatment), [1993] Fam. 95, 102-103; 112-116; the full facts, per Donaldson, L., at p. 103-106.. From the 1980s and 90s decisions of the British Court of Appeal it may seem that the English courts truly approve maximal patient's right to autonomy, if not to say independence to patient's decision-making even in case he or a child in his custody would apparently die unless treatment is administered See. In Re T (A Minor), [1997] 1 W.L.R. 242 (herein, the parent appealing to withdraw medical treatment by liver transplantation); see other English cases on related subjects at p. 248-251.; however, the British courts ruled that it is correct to preserve child's life unless the child's condition is evaluated to be condemned to death, and so, his further life would literally become intolerable and any amount of treatment would only postpone, but not avert death In Re J. (A Minor) [1991] Fam. 33, 40-42.. But at the same time, if the law calls a brain-dead person to be legally dead Lovato v. District Court, etc., No. 79SA407; 198 Colo. 419; 601 Pac. 2d 1072, 1079-1080 (1978)., one would be wrong to call a comatose person to be legally dead - in fact, in Continental Europe, both Italian and German courts wisely denote in a number of respective trials, that the autonomy of the patient does not conclude with the fact of him being unable to express his wish The main criterion for e.g. German courts to reschedule the expression of patient's will is his inability to express it: LG Duisburg, 09.06.1999 - 22 T 22/29, para. 15. And it's not necessary for the patient to be comatose for this, but e.g. have health problems affecting intelligence for such a degree, the person could not fully conceive the consequences of withdrawal of treatment: AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 22-23.

****** See: Germany: OLG Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 17; Italy: Piergiorgio Welby c. Associazione Onlus ed il. Dott. Giuseppe Casale, Trib. Ordinario di Roma, Sezione I Civile, Ordinanza 16 dicembre 2006 No. N.R.G. 78506/2006, p. 5-7.

******* See., C. E. Wasmuth, The Concept of Death, 30 Ohio St. L. J. 32, 37-38 (1969).

******** The term “therapeutic obstinacy”, or “ostinazione terapeutica” (in original) is a term which is frequently used by Italian courts to designate a condition of a person being irreversibly ill, wherein all the medical treatment which is administered is aimed only at prolonging the patient's life who is otherwise facing a swift demise, see. Piergiorgio Welby c. Associazione Onlus ed il. Dott. Giuseppe Casale, Trib. di Roma, Sezione I Civile, Ordinanza 16 dicembre 2006 No. N.R.G. 78506/2006, p. 9-10; P, Trib. Reggio Emilia, Decreto 24 Luglio 2012, p. 5-6. for further treatment or stop it effectively******. The advancement of medical technologies in the mid-20^th century allowed to achieve considerable results to prolong the life of terminally ill people, occasionally aiding them to recover, or to at least lightening their death by diminishing their pain and suffering******* - this, in fact, became one of the key legal points of palliative care when the therapeutic obstinacy is proved********.

Legal basis for the jurisprudence

Therefore, we come to a concept which is called «withdrawal of treatment» which embraces a right of the patient to refute medical treatment regardless of his health condition and the consequences of the refusal, which, often opposed to trials on blood tranfusion, lead to death, as the people demanding it at trial themselves, or via their guardians, are terminally ill, and at the point of trial, are unable to give their own directives for treatment. Campbell (1979), calls withdrawal of treatment as an «alternative to euthanasia» alongside with palliative care T. Campbell, Euthanasia and the Law, 17 Alta L. Rev. 188, 193 (1979). - as it should be conceived from the generalized sense of this paper, the withdrawal of treament has nothing to do with assisted suicides, and that's why some courts in Italy stringently deny the relation between termination of life-supporting treatment and euthanasia at trial P, Trib. Reggio Emilia, Decreto 24 Luglio 2012, p. 3.. Much has been said about US and British case law on the subject, but little was said about continental law jurisdictions as Germany, or Italy, to which I dedicate this paper. Apparently, there has to be a legal basis for granting a court order to withdraw treatment - both in legislation and case law. In United States, in the trial of Eichner v. Dillon (1980), the basis of right to withdraw life-supporting treatment of an elderly priest being in a permanent vegetative state was laid down upon the constitutional right to privacy Eichner v. Dillon, 426 N.Y.S. 2d 517; 73 A. 2d 431, 457-462 (1980).. So held the Supreme Court of Massachussetts three years before in the trial of Saikewicz (1977) Superintendant of Belchertown v. Saikewicz, 333 Mass. 728, 370 N.E. 2d 417, 424-426 (1977)., and so held the Supreme Court of New Jersey in the leading «withdrawal of treatment» trial of Quinlan (1976) In re Quinlan, 355 A. 2d 647; 70 N.J. 10, 39-42 (1976).

****** LGMunchenI, Urt. v. 18.02.1999, 13 T 478/99, para 13 (or II (2) (b) (cc)).

******* LG Augsburg, Urt. v. 04.08.1999 - 5 T 2780/99, para. 9.

******** OLG Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 35-36.

******** BGH, Urt. v. 17.03.2003 - XII ZB 2/03, para. 40-42.. The law of Germany and Italy does not have direct legislation on the subject, and that's why the courts were very reluctant to give orders granting a withdrawal of life-supporting treatment: some courts said that there was a loophole in the provisions of Art. 1901 and 1904 of the German Civil Code, and termination of treatment is not embraced by the said provisions******; some others held that Art. 1904 of the Civil Code deals with the giving the consent of the risk of death, but not some intervention with the goal of death*******, while the others held there is no loophole, as literature and the existing case law may perfectly rule out the issue of withdrawal of treatment without any precise legislation to be enacted********. The 2003 judgment of the Federal Supreme Court held that the withdrawal of treatment was a case law-bred right********, and Art. 1904 was unfit to be a legal basis for it, as termination of treatment is not a «medical procedure», and Art. 1904 of the Civil Code dealt with delivering consent of the legal guardian on some life-threatening procedures BGH, Urt. v. 17.03.2003 - XII ZB 2/03, para. 15-18.. And the Regional Court of Duisburg in a 1999 judgment granting the order to withdraw treatment assessed the provisions of Art. 1904 of the Civil Code and found that they are covering far more banal issues than withdrawal of treatment LG Duisburg, 09.06.1999 - 22 T 22/29, para. 11-15.. The Higher Regional Court of Schleswig in its 2002 judgment also considered the said provisions to be unsuitable, abstaining from giving an order to withdraw artificial nutrition holding there is no legislation for such procedure and that in terms of a withdrawal of treatment, it would be better to leave this matter to guardians and physicians themselves to decide OLG Schleswig, Urt. v. 12.12.2002, Az.: 2W 168/02, para. 11-12; 16-17.. However, such a position was not approved by other German courts OLG Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 31-32.. At the same time, the provisions of Art. 1901 (extent of care, obligations of the supervisor) as well as Art. 1896 (legal guardianship appointment) are fit - as, the Siegen court emphasized that the «…well-being may undestood not only objectively, but subjectively» (implying that in some way to withdraw treatment may also be «well-being», and it doesn't actually contradict Article 1896 of the Civil Code, as the legal guardian is simply executing the presumed will of the patient OLG Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 19-20; 26.

****** Piergiorgio Welby c. Associazione Onlus ed il. Dott. Giuseppe Casale, Trib. Ordinario di Roma, Sezione I Civile, Ordinanza 16 dicembre 2006 No. N.R.G. 78506/2006, p. 9-10.

******* BGH, Urt. v. 08.06.2006 - XII ZR 177/03, para. 9.

******** Ibid, para. 14.

******** Art. 1901a (1); (2) of the Civil Code.. Two years before the Federal Supreme Court's 2003 judgment, the Higher Regional Court of Karlsruhe emphasized that the authorization of the supervisor's consent to terminate treatment has an analogous application to Art. 1904******. In its 2005 judgment, the Supreme Federal Court held that artificial nutrition, being an invasive procedure, if conducted against the will of the patient, gives rise for a civil action for damages analogously on basis of Art. 1004 of the Civil Code in conjunction with Art. 823*******. Besides, the Court held that is the artifical nutrition was not included in the contract between plaintiff (patient) and the hospital, and than it does not entitle them to perform it********. In 2009, the civil code was amended by Art. 1901a of the Civil Code which introduced a provision named «Patientenverfugung». It legitimized «living wills», the content of which is expected to be performed by a legal guardian of the beneficiary********: in fact, it was already done earlier by the courts with no actual statutory authority, which may be illustrated by the judgment of the Regional Court of Essen in 2007, where the court gave an order to withdraw the life-supporting treatment taking into account the living will of the beneficiary LG Essen, Urt. v. 29.11.2007 - Az.: 7T 385/07, para. 19-20 and further..

The Italian courts were initially very reluctant to give orders to terminate the treatment arguing that there is no regulatory framework to do so, and moreover, were occasionally unwilling to appoint legal guardians for the people who desired to empower a relative to continue, or reversely, withdraw treatment in case they are incapable to give instructions themselves referring to the fact that the beneficiary was not yet incapacitated or was not even ill X, Trib. Trieste, decreto del 3 luglio 2009 (no. 4202/2008), p. 3-4.. As of the judgment of the Italian Cassational Court of 2007, the principle of informed consent, elaborated way before the start of the 21^st century The leading case on the subject is the the judgment of the Cassational Court, Cass. 22 dicembre 1925, G.I. 1926 1, I 537. Several later decisions of the 20th century firmly approved it: Stile c. Ospedale civile de Udine e Cecotto, sent. 16 giugno 1975, n. 2439, Corte de Cassazione, 1976 Il Foro 746; Negrini c. Migliavacca, sent. 2 maggio 1995, Corte di Appello de Milano, 1996 Il. Foro 1418., embraces withdrawal of treatment by terminally ill people Caso Englaro, Corte di Cassazione, Sezione I Civ., Sentenza n.21748, del. 16 ottobre 2007, p. 8 (para. 6).. However, the Court of Rome found in the case of Welby, that the rules of informed consent are too vague to determine whether its involves the withdrawal of treatment Piergiorgio Welby c. Associazione Onlus ed il. Dott. Giuseppe Casale, Trib. Ordinario di Roma, Sezione I Civile, Ordinanza 16 dicembre 2006 No. N.R.G. 78506/2006, p. 5-7.

****** Trib. de. Firenze, decreto 22 Dicembre 2010, p. 2-3: P, Trib. Reggio Emilia, decreto 24 Luglio 2012, p. 2.

******* Corte di Constituzione, Sentenza n. 471/1990, Il. Foro Italiano 1991 I 14. ******** Trib. de. Firenze, decreto del 22 Dicembre 2010, p. 2.

******** Legge 23 dicembre 1978, n. 833, «Istituzione del servizio sanitario nazionale». ******** Trib. di Cagliari, decreto del 16 luglio 2016, p. 2-3; 7-8.. Italian courts cited various sources of the said right, primarily, Art. 404, 405 and 408 of the Civil Code (assistence of a guardian owing to disability; an appointment of the legal guardian by a tutelary judge to express the wishes of the beneficiary, that is, the patient; designation of the guardian)******. The Court of Florence in its 2010 judgment, refers to the Italian Constitutional Court's 1990 judgment******* as a confirmation of the principle of patient's right to self-determination approved by a court of the highest instance, as well as Art. 13 and 32 of the Italian Constitution********; the Court of Cagliari in its 2016 decision names Art. 3, 13, 32 of the Constitution, the 1978 law********, previously citing several internationallegal instruments on the patient's right to autonomy********. In late 2017, the Italian Parliament enacted a law (Legge 22 dicembre, n. 219) on informed consent and advanced treatment provisions which summarized the key points on informed consent to invasive treatment and provided a framework for the healthcare directives See descriptions by the following authors: F. Giardini, Living Will and Provisions Concerning the End of Life: the Role of the Family Members in the Matter of Advance Provisions of Treatment (DAT) in the Italian legal system, XXII (22) Interdisciplinary Journal of Family Studies [2/2017] 1, 3-8 (2017); G. R. Gristina, L. Busatta, M. Piccinni, The Italian law on informed consent and advance directives: its impact on intensive care units and the European legal framework, 85.4 Minerva Anestesiologica 401, 403-406 (2018); M. Di Paolo, F. Gori, L. Papi, E. Turilazzi, A review and analysis of new Italian law 219/2017: 'provisions for informed consent and advance directives treatment', BMC Medical Ethics 20:17 (2019), p. 5-7..

Despite both Italian and German courts already recognize right to withdrawal of treatment, they may use different terms to designate the said right. For instance, Italian courts do not account this right as an «euthanasia»: in the case of Englaro, the Cassational Court of Italy denoted: «The rejection of medical-surgial therapies, even when it leads to death, cannot be mistaken for a hypothesis of euthanasia, that is, for a behavior that intends to shorten life, positively causing death, expressing rather this refusal as an attitude of choice from the part of the patient - that the disease follows it natural course' Caso Englaro, Corte di Cassazione, Sezione I Civ., Sentenza n.21748, del. 16 ottobre 2007, p. 10 (para. 6.1).. Several years later, the court of Reggio Emilia in its 2012 judgment emphasized, that withdrawal of treatment is not euthanasia and cannot be accounted as such P, Trib. Reggio Emilia, Decreto 24 Luglio 2012, p. 3.. The Court of Cagliari in its 2016 judgment simply calls it «right to withdrawal of sanitary treatment» (It. «il diritto del refiuto del trattamento sanitaria') Trib. de Cagliari, decreto del 16 luglio 2016, p. 3, 8.. In fact, German courts also did not designate this right with a uniform name, though sometimes, the name «passive euthanasia» was occasionally used in the court reports - it was called as such in the judgment of the Higher Regional Court of Frankfurt am Main in 1997 OLG Frankfurt am Mein, 15.07.1998 - 20 W 224/98, para. 8.

****** LG Essen, Urt. v. 29.11.2007 - Az.: 7T 385/07, para. 1-6 (facts).

******* BGH, Urt. v. 08.06.2005 - XII ZR 177/03, para. 16.. Mostly, the German courts use the expression «Einstellung der…» e.g. «Ernahrung» (meaning, «feeding» in German), or any other procedure which is actually life-supporting******. In a 2005 judgment on withdrawal of treatment, the Supreme Court said that «…The criminal limits of euthanasia in the broader sense […] to which the plaintiff's desire aims, seemingly have not yet been sufficiently clarified by the Senate»*******.

Necessity of a court order

Courts also came to a following issue: is it necessary to issue an order so as to withdraw the further treatment, or it is a personal matter? If we look into a number of earlier trials on «passive euthanasia», than the American courts held that it surely is: in the Matter of Spring (1980), the Supreme Court of Massaschussetts, deciding on an application to terminate a hemodyalisis lifeprolonging treatment See facts of the case in In The Matter of Earle N. Spring, 8 Mass. App. Ct. 831, 832-833 (1979). held, that there may be a multitude of circumstances regarding the treatment of an incompetent patient that may be subject to a court approval In The Matter of Spring, 380 Mass. 629, 637-638 (1980), citing the court decision, aligned customly: “...Among them are at least the following:

1) the extent of impairment of the patient's mental faculties;

2) whether the patient is in the custody of a State institution

3) the prognosis without the proposed treatment, the prognosis with the proposed treatment;

4) the complexity, risk and novelty of the proposed treatment, its possible side effects;

5) the patient's level of understanding and probable reaction;

6) the urgency of decision;

7) the consent of the patient, spouse, or guardian;

8) the good faith of those who participate in the decision;

9) the clarity of professional opinion as to what is good medical practice;

10) the interests of third persons;

11) ...and the administrative requirements of any institution involved...”; the Court also said that actions that were done without judicial authority may be a subject of civil and criminal liability though the Court confessed of very little amount of precedents in similar cases. It held that «…When a court is properly presented with the legal question, whether treatment may be withheld, it must decide that question and not delegate it to some private person or group…», approving the necessity of a court order Ibid, p. 637; 639.. In Leach, a 1980 trial decided by the Ohio Court of Common Pleas (Probate Division) upheld a motion of the husband of a woman in a permanent vegetative state finding it was decently proved by the facts and witness testimony being well-founded, granting the order; besides, in this trial, the court used a fourfould test See. Satz v. Perlmuller, 362 So. (2d) 160, 162 (1978). holding that there is no actual state interest in artificially prolonging the life, the interests of the third parties is not affected, does not contradict the modern (70s) medical ethics concerns and found that a dislodgement of the respirator, upon the facts of the case, are not considered by the court as a prosecutable case for suicide, issuing the order to withdraw further treatment Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 10-13 (1980) (No. C80-10-20).. In the same fashion, in 1985, the Supreme Court of Florida, following the judgments of Leach (1980) and Spring (1980) held that withdrawal of treatment of a comatose and permanently ill patient necessitates a court approval before the procedures are terminated: the court applied a judicial analogy of a requirement for commencement of judicial proceedings before a person's property may be in some way disposed by his guardian or other people, sanctioned by the law of Florida. So, the Court held as underwritten: «Since life itself is of infinitely greater value to an individual than his property, it seems only reasonable that at least equal safeguards be employed before life and death decisions are placed in the hands of others» John F. Kennedy Memorial Hosp. v. Bludworth, 432 So. 2d 611, 615-617; 619 (Fla. Dist. Ct. App. 1983).. In the late 90s, the jurisprudence of Germany faced some positions of the courts that the withdrawal of treatment does not need a judicial approval by a court LG Munchen I, 18.02.1999, 13 T 478/99, para. 12. (though, in the historically first civil suit in Germany on withdrawal of treatment, decided by the Higher Regional Court of Frankfurt am Mein in 1998, the Court held it does OLG Frankfurt am Mein, 15.07.1998 - 20 W 224/98, para. 9-10; 12-13.). The later court decisions from Germany clearly indicate it does. The Regional Court of Essen in its 2007 judgment, deciding upon a claim to terminate the treatment of a half-paralyzed and severely ill woman after a stroke expressed a view, that at least under circumstances of the given trial, the court order is mandatory (however, the court intimated there may be some instances when it won't be, but didn't name them LG Essen, 29.11.2007 - 7 T 385/07, para. 16.). Italian courts did not resolve the issue of necessity of a court order and this issue was not directly mentioned in the existing jurisprudence; however, there were trials concerning a «preventive» appointment of a legal guardian for the people, who were objectively concerned about themselves once becoming incapacitated owing to their past ailments. Art. 404 of the Italian Civil Code, upon which the guardian is appointed by a tutelary judge, presupposes the beneficiary must be incapacitated, at least partially. However, in recent case law Italian courts, held that in order to appoint a legal guardian upon Art. 404 of the Civil Code, it is not obligatory for the beneficiary to be partially or fully incapacitated, but he (the beneficiary) must bring in evidence (e.g. medical reports of past illnesses) which, if occurring again, may impair him much enough to render him incapable of deciding on his own concerning his further treatment or its withdrawal, and henceforward, they concluded that the appointment of the guardian is necessary to express his wills on his behalf in the future See. X, Trib. Trieste, decreto del 3 luglio 2008 (no. 4202/2008), p. 4-5. ****** Ibid, p. 3-6.. Basically, it was the point of a judgment by the Court of Trieste in 2009: there, a 66-year-old man, being in a relatively decent health desired to appoint his wife as a legal guardian so as she could refuse to prolong artificial life-prolonging treatment once he falls so ill as to become unable to express his consent in a legally valid form. Plaintiff introduced various medical records confirming he had had been suffering from various heart problems over the last years. The Court found that the request to appoint the guardian should be accepted, as irrespective of the fact the elderly man was not incapacitated, he had a foundation he might become terminally ill one day in the future, and so the appointment would be necessary to express his wills******.

Evidence. Living wills, presumed wills and preventive powers of attorney as evidence

As the District Court of Siegen (Germany) held in its 2007 judgment - an order to withdraw treatment is irreversible (herein, the court obviously meant, that the consequences of it are irreversible, as you cannot reverse the person's death, had the court erred in its findings) AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 58., so the trial on withdrawal of treatment is a very delicate thing and that's why judges need to deal with various evidence to prove the patient's irreversible state of health as well as the accuracy of his wish and the living will, if such had ever been commenced by him LG Duisburg, 09.06.1999 - 22 T 22/29, para. 11-15..

In terms of evidence, specific legal documents were introduced to illustrate the wishes of patient if being unable to express his consent or make any decisions on further treatment. A legal document, designated as «living will» by a US lawyer, Louis Kutner (1969), was initially compared to a revocable trust L. Kutner, Due Process of Euthanasia: The Living Will: A Proposal, 44 Ind. L. J. 538, 550-551 (1969).. At such point, as Strand (1976) denoted that this type of document might be, a reflection of informed (and weighted) consent or refusal of further treatment which would toll in doctor's civil liability for battery J. H. Strand, The Living Will: The Right to Death with Dignity?, 26 Case W. L. Rev. 485, 488-489; 493-494 (1976).. Quite much has been said about the informed consent in the United States, but so little was said about Germany. If we reckon up some older German case law, in a 1908 judgment, where a physician unconsentedly operated a 6-year-old boy suffering from a congenital elevation of the right shoulder as well as a spine curvature (the operation failed and damaged his health), the German Empire Court (the Reichsgericht) held that a physician causing a body harm by performing an operation without a right to do so lodged from a contract or implication, is liable for damages, which the Court considered as «a deliberate assault» RG, Beschluss von 27.05.1908 - Rep. VI 484/07, para. 3; 10-14.

****** BGH, 16.01.1959, VI ZR 179/57, para. 14-16.

******* See. e.g., BGH, Urt. v. 10.07.1954 - VI ZR 45/54, para. 19-22; 25.

******** OLG Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 17.. In the mid-20^th century, German courts qualified the doctor's failure to «educate» the patient on the risks and hazards of treatment upon the breach of duty******, or negligence*******. Besides, if we turn to contemporary German case law, the Higher Regional Court of Karlsruhe in its 2001 judgment (which we're going to discuss below) held that if the patient refuses to undergo a surgery, without which he will decease, and the procedure is performed without consent, this will accounted as a bodily injury (assault/battery)********. As Strand (1976) proceeds, «living wills», which were mainly elaborated in United States in the 1970s were not authorized by the US states statutory provisions Strand, supra at p. 509-512.. In 1976, California was the first state to recognize the validity of living wills: the toll of states recognizing it increased to around thirty in the next decade by 1985, rising to 48 by 1991 S. J. Steinle, Living Wills in the United States and Canada: A Comparative Analysis, 24 Case W. Res. J. Int'l L. 435, 438-441 (1992).. In the mid-to-late 1980s, over 20 US states adopted code provisions on durable powers of attorney empowering an appointed person to act on his behalf G. J. Alexander, Death by Directive, 28 Santa Clara L. Rev. 67, 92-93 (1988)., which is an alternative to a «living will». If talking about Germany or Italy, living wills and preventive powers of attorneys have been known there presumably for around three decades. In Italy, the concept of living will and term «testamento biologico» was introduced in March 1990 by an Italian lawyer named Guido Alpa (born 1947) on a conference on bioethics G. Ferrando, Guido Alpa e il testamento biologico, Dialoghi con Guido Alpa. Un volume offerto in occasione del suo LXXI compleanno (Uni. Roma), 179, p. 179-183 (2018).. The conditions of finding this legal document valid were decently laid down in a judgment by the Court of Cagliari in 2016, which we're going to discuss below Trib de Cagliari, decreto del 16 luglio 2016, p. 4-5; 7-8.

****** Trib. de Modena, decreto 14 Maggio 2009, p. 1-2, 4-6, 7.. The «testamento biologico» in Italy has not received a big coverage in Italian case law, though Italian courts started considering living wills as evidence to appoint a legal guardian who might implement the patient's living will by applying for a court order to terminate medical treatment. For instance, it a trial before the Court of Modena, a 53-year-old man suffering from ALS, immobilized and unable to communicate «dictated» his will in a using a Low-Tech E-TRAN table indicating the letters by eyelids: he «stated» in his living will he would not desire further treatment in case of full incapacity. The tutelary judge wrote the will for him, which was approved by the disabled man. The Court, finding that there is no legislation on living wills, considered this document as an important instrument representing the patient's right to self-determination and acknowledged that it would be legitimate for the guardian to ask for withdrawal of treatment, and confirmed that patient's cognitive abilities exercised by him are full and adequate; so, the legal guardian, asking to withdraw treatment, performs the wish of the poor man, but not his own one. Thus, the Court appointed the guardian and gave him the proper instructions to act in case of the patient's incapacity - like withdrawing treatment in case of lull incapacity******. That is, the Italian courts apply an «advanced» court order to appoint a guardian who will be authorized to terminate life-supporing treatment. A similar judgment appeared before the Court of Cagliari in 2012, which also considered the conditional validity of the living will of a dying patient. There, the patient (plaintiff) also suffered from ALS incapacitated in a similar way as in the abovementioned trial. He was also in full mental capacity, and in 2012 he «wrote» a living will wishing not to prolong treatment in case he is «done». He updated the will several times hallmarking the decay of his health and in 2014 he asked to appoint a guardian so as he could ask to terminate his treatment. In 2016 patient was nearly unable to communicate, and within a visit of the tutelary judge (he stayed at home), he asked to terminate his treatment without hesitation Trib. de Cagliari, decreto del 16 luglio 2016, p. 3-6.. The Court said that upon the view of Cagliari Prosecutor's Office, there are several guiiding principles in the attitude to the patient's choice to withdraw treatment that will result in predictable death:

Informed consent is a basis of any therapeutic treatment;

The Constitution of Italy protects not only the person's health, but his right to self-determination as well;

The physician cannot treat the dying patient in case of a documented refusal if the patient is fully understanding and willing it;

The refusal of treatment shall be a result of a free and effective choice of the patient, which embrace: a) this choice must be personal (if the beneficiary is incapacitated, than this consent is given by a legal guardian); b) it should be free; c) it should be current and corresponding the present day; d) concrete: it should touch exact types of treatment, but not like e.g. it was illustrated in the judgment of the Regional Court of Siegen in 2007 AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 28-43; 46.; e) informed - that is, the patient has to be acknowledged in the consequences of the termination of the treatment, and the physicians have to prepare medical records which are to display his actual clinical condition; f) revocable - the patient may be permitted to alter his decisions - generally, the court said, that the demands to the principles of withdrawal of treatment should be generally the same as to consent to invasive treatment Ibid, p. 7-8..

The Cagliari court ruled to appoint the guardian Ibid, p. 8-9; 10..

The German equivalents of «living wills» and the «durable power of attorney» are «Patientenverfugung» and «Vorsorgevollmacht». They were initially introduced around 1987 Concerning this, see. M. Eidenschink, Die Patientenverfьgung in der цffentlichen Debatte: Die Akzente der neuen Discussion in Deutschland, ausgehend von dem Fall Theresa Schiavo, Lit Verlag Dr. Kopf Berlin 2009, p. 15-17.

****** AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 1-8., though not widely known before early 2000s. The latter one, as it was clearly depicted in the trial from Siegen, wherein the beneficiary filed a power of attorney which contained, apart from representing her personal and property matters, a passage on a wish not to receive life-supporting treatment if no adequate survival was expected******. The content of the living will is more strict and represents only the directives on healthcare - its contents were unveiled in the 2003 judgment of the

Supreme Court BGH, Urt. v. 17.03.2003 - XII ZB 2/03, para. 3-6. as well as the judgment of the Regional Court of Essen LG Essen, 29.11.2007 - 7 T 385/07, para. 1., as well as several newer judgments (which are too volumetric to be discussed in the given paper). However, regardless of the type of documents, living will is performed by the guardians, as they are appointed upon the Civil Code provisions Ibid, para. 14-17..

Overally, the courts accept various documentary evidence (primarily medical reports - occasionally, from independent medical centers), as well as testimony of physicians, psychiatricians, lawyers, court experts, the relatives and people who may be acquainted to the person concerned. In Italy, the tutelary judges also may visit the patients Trib. de Cagliari, decreto del 16 luglio 2016, p. 5-6.. Living wills and durable powers of attorney which have been already mentioned above, are frequently used as evidence at trial, and are already a firm foundation for the courts to grant an order to withdraw further treatment if the presupposed condition of the patient which has been anticipated in the «living will», corresponds to his actual condition at the time of the trial LG Essen, 29.11.2007 - 7 T 385/07, para. 16-20.

****** OLG Munchen, Urt v. 25.01.2007 - 33 Wx 6/07, para. 34.

******* AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 18.

******** AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 57.

******** Leach v. Akron Medical Center, 68 Ohio Misc. 1, 4-5 (1980) (No. C80-10-20).

******** Eichner v. Dillon, 73 A.D.2d 431, 436-444; 426 N.Y.S.2d 517, 524-529 (1980).

******** Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127, 129-132 (Conn. Sup. Ct. 1984).. The German courts also tried to answer the question: what if neither an actual, nor a presumed will are possible to be found? The Higher Regional Court of Munich said, that in such case, it is quite arguable to what extent the protection of patient's life will be balanced against the personal ideas of the physician, the relatives, or others - it has to be determined by the «general values»******. Seemingly, it is even more arguable what are those values and how should the court conceive them (e.g. the person's «well-being» - the Regional Court of Siegen said, it could be conceived both objectively and subjectively*******). The same court of Siegen thought, that in case the guardian has some discretion, but the termination of treatment has to be based on the factual findings of doctors who would believe there is no indication for further treatment********. The testimony of physicians concerning the state of patient's health which has to be proved to be irreversible, is used in the United States since the late 1970s - the courts consider the prognosis testified by physicians, especially neurologists and neurosurgeons, as, e.g. it was inLeach (1980)******** or Eichner v. Dillon (1980)********. Courts also give significant respect on testimony concerning the lifestyle and quality of life of the patient before he was incapacitated********.