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

Far not all courts (as, for instance, the judgment of the Siegen court in 2007) found that a living will (though encompassed in an ordinary power of attorney to empower an another person to represent the beneficiary's personal and property matters) is unconditionally valid AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 20-23.. Indeed, at least one recent Italian judgment tends to show that the validity of the said living will (or a document which replaces it) is conditional Trib. de Cagliari, decreto del 16 luglio 2016, p. 7-8. and has to correspond some criteria which we're going to discuss in the undergoing chapters. Since living wills are not always (if not seldom) available as evidence of the incapacitated patient's wishes for treatment See e.g. the statement in LG Duisburg, 09.06.1999 - 22 T 22/29, para. 11., both Italian p, Trib. Reggio Emilia, Decreto 24 Luglio 2012, p. 3-5. and German ag Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 29-37; 56-58.

****** Cruzan v. Harmon, 760 S.W.2d 408, 415 (Mo. 1988).

******* p, Trib. Reggio Emilia, Decreto 24 Luglio 2012, p. 3.

******** CasoEnglaro, Corte di Cassazione, Sezione I Civ., Sentenza n. 21748, del. 16 ottobre 2007, p. 15 / para. 7.5.

******** ag _Si_eg_en, Urt. v. 28.09.2007 - 33 XVII B710, para. 59.

******** olg Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 30. courts recognize that presumed wills are difficult to be reconstructed and henceforth require extensive witness testimony. What are presumed wills? If we reckon up Cruzan v. Harmon (1988), we may receive a precise response: «A second test, designated the limited objective test, is applied in the absence of clear and convincing evidence of the patient's wishes, but where there is a measure of trustworthy evidence that the patient would have refused the treatment'******. If we take the case of Englaro, where the Italian Cassational Court considered the views of the courts in other jurisdictions (e.g. Germany, England), we may conceive that the «presumed will» is a hypothetic desire of the patient which is to be deduced upon his life, habits, and his own values and beliefs; a very similar approach was adopted by the Court of Reggio-Emilia in a 2012 trial, where the it expressed a similar view, adding religious and philosophical views*******. In Englaro (2007), the Cassational Court emphasized on the necessity of utmost precision ofsuch witness testimony********. The Court ofSigen, speaking on presumed wills, denoted that the findings of both direct (documented) wills, or «presumed wills» may never be ultimately accurate********. The presumed will, as the Higher Regional Court of Karlsruhe said in its 2001 judgment, is established upon the following: a) testimony of the family and of the physicians; b) direct living will or a power of attorney (as it was mentioned above, in Germany it is called a «preventive» power of attorney - a «Vorsorgevollmacht»), if such exists, c) the judge's impression of the patient********.

Germany Earlier judgments (1998-2000)

In a decision by the Higher Regional Court of Frankfurt am Main, the patient's right to withdrawal of treatment was recognized for the first time in Germany. The facts of this trial proceed as follows. In 1997, a woman aged 84 was hospitalized to a Frankfurt hospital with an extensive cerebral infarction rendering her unconscious with no ability to move or communicate, being PEG-fed and uncapable of any self-determination. In 1998 her daughter was appointed as her guardian, who applied to the court in order to request the suspension of PEG-feeding, stating her mother would not wish to decease slowly, being recommended by the doctor. A May 1998 report stated that the state of the patient is irreversible. The Court intimates, that the process of dying must be several weeks as after the artificial nutrition without plugging of liquid nutrition, but it is unknown, is it supposed to be painless. The Court says, that in case the liquid nutrition is administered, and the presumed will is considered, the measures are justified OLG Frankfurt am Mein, 15.07.1998 - 20 W 224/98, para. 3. The court approved the thigh amputation owing to tissue necrosis, but disapproved the termination of treatment. The Court said that «assisted suicide» is not «passive euthanasia» (withdrawal of treatment), and the increased demands of «right to self-determination» to end the life must be accepted by a «declared or presumed will» of the patient, and it must be considered that doctors or relatives may be eager to end the life of the patient by their own considerations Ibid, para. 6-7.. Therefore, the Court held that there is a necessity to put an equipoise between the: a) preservation of life and b) right to self-determination. In para. 8, the Court held, that the application of Art. 1904 CC for both consent to interventions and consent to termination of treatment, is analogous. The Court also said that the decision on withdrawal of treament has nothing to do with national-socialist atrocities of the 1930s, as it is based on the presumed will of the patient, but not to «annihilate liveable life» Ibid, para. 10.. The Court said, that the living wills are to be considered in similar cases and apparently will increase their importance in the future Ibid, para. 11.. The Court stressed, that in absense of stringent evidence for terminating the treatment, the presumption of preservation of life prevails over considerations to terminate it. The Court authorized to terminate the treatment Ibid, para. 11-12.. However, not all courts accepted this position - there were judgments strongly condemning this decision. For instance, in a trial in Munich a man suffered from a cerebral infarction rendering him unresponsive and incapacitated, suffering from psychoorganic brain syndrom ever since, fed through a PEG-tube and urinating via a special transurethral catheter. In 1998, his was appointed by a district court of Ingolstadt to take care of him. But in December 1998 he decided to terminate the treatment of his father. The Court, however, finds that the application should not be approved regardless of the state of health of the patient, or his presumed will LG Munchen I, 18.02.1999, 13 T 478/99, para. 6; or II (2)(a). (para. 6; or II (2) (a)). The court says that the «goal» of the guardian may not be «death», and has «nothing to do with healthcare». The court, however, did not object that the patient's wish to die in a handicapped state may be true, but this decision may not be given to the guardian upon the view of the Munich court (same). The Court also finds, that the decision of death does not equate with something like sterilization, owing to the fact they are not comparable. The Court rejected any analogy with the «healthcare provisions» of Art. 1904 CC Ibid, para. 7; or II (2) (b)., augmenting that the life-terminating measures are 1) not to be delegated to a guardian, so it doesn't need a court authorization Ibid, para. 11; or II (2) (b) (bb).. The court also interpreted the provisions of Art. 1904 CC as: «Medical treatment with the risk of death, as regulated by Art. 1904 CC, is something other than a medical intervention with a goal of death, as it does not serve for the health of the person concerned» Ibid, para. 12.. Thus, the claim was rejected.

In a one more 1999, the Regional Court of Augsburg also rejected the claim to withdraw treatment in a similar style. The patient suffered a basal stroke in 1995, which later resulted in a development of hematocele (testicle blood stroke), right-stressed tetraspastics as well as severe and permanent brain damage remaining him in vegetative state being totally unable to communicate. He was receiving artificial nutrition by means of a PEG-tube. The guardian, the daughter of the patient, was appointed by a court in 1996. In June 1998, the plaintff contacted the guardianship court to consent for withdrawal of treatment, and the court expert approved the improvement of patient's condition is in vain to expect, as well as the fact he was absolutely incapable in decisionmaking and suffering pain from ongoing infections. The court expert admitted that in case of withdrawal of nutrition, it would obviously result in death, but in painless death. The court also appointed two mediators - the husband of the patient and the son. The nurse objected their wish to stop treatment finding this procedure «not approvable» LG Augsburg, 04.08.1999 - 5 T 2780/99, para. 2.

****** Ibid, para. 5.. Plaintiff appealed on grounds that the treatment would only delay the future apparent death and the mother used to refuse medical help to lead a normal life, telling it is not «acute euthanasia». The court expressed doubt whether a court is allowed to approve a consent to withdraw treatment. The Court of Augsburg found that prolonging treatment, or not doing it - is a highly personal matter; the doctors and the relatives, upon the court's view, could decide it on their own responsibility, and the caregiver may not be delegated to do it******. The task of «health care» is not about euthanasia; and the construction of Art. 1904 is about consent to invasional treatment. Despite a Frankfurt court gave a decision on non-prolongation of treatment, the Augsburg court held that it wouldn't follow it, holding the guardian does not necessitate a court approval for his actions LG Augsburg, 04.08.1999 - 5 T 2780/99, para. 6-7.. The court emphasized that Art. 1904 CC only deals with consent with the intervention with risk of death, but not an intervention with a goal of death and so termination of nutrition is not a preservation of life, but a termination of life. The Court concludes that if it would authorize withdrawal of treatment upon the given provision, it would be responsible for patient's death. Thus the Court rejected the appeal Ibid, para. 8-10..

The Regional Court of Duisburg, however, ruled on withdrawal of treatment in a 1999 trial, giving the second case of approving «passive euthanasia». The patient, a 67-year-old woman, had been suffering from epilepsy since 1973 and had suffered a brain tumor with a multitude of operations. In the early 1990s, she had been completely paralyzed and fed with a PEG-tube. For years, she had also been unable to communicate and unable to react on speech. Her daughter is the legal guardian of the woman, appointed in 1993. In 1998 she applied to the court to stop artificial nutrition. The district court representatives visited the patient and affirmed she was unable for contact. In early 1999 the court gave the order. In the daughter's plea, it was stated that her mother repeatedly said she wouldn't like to live in such condition and this was her presumed will. The procedural lawyer filed an appeal. The Court found that the plaintiff may apply to the court to authorize him to stop the treatment, that is «authorize the guardian's consent» to stop treatment LG Duisburg, 09.06.1999 - 22 T 22/29, para. 1-9.. The court holds that intensive care measures, irrespective of their application, require consent, and if the patient is incapable to decide, it falls within the competence of the supervisor Ibid, para. 11.. The court admits, that people who are seriously ill often do not write any actual «living wills» upon which it may be clear what the guardian should do, which would lead to the situation that the patients will suffer from senseless treatment and doctors/relatives won't have a right to stop treatment - otherwise they may be prosecuted for homicide. The Court, however says, that the provisions of art. 1904 CC are covering banal issues of medical caregiving, but not withdrawal of treatment. Therefore, it is up to the courts to determine the criteria upon which the guardian may be authorized to withdraw treatment. The are basically two of them: 1) an «infamous prognosis» with an inability of the patient to express his will, as well as, 2) the proven presumed will of the patient not to be treated Ibid, para. 15.

****** Ibid, para. 17. The Duisburg court also denotes that neither full unconsciousness is not decisive, nor a comatose state is required for the guardian to give consent to stop treatment, as the main criterion is illness-inability to decide******. Reverse, abortion of treatment is illegal without the expressed or presumed will of the patient (same). The court says, that the prognosis for incurability has to be accurate and precise (criterion 1), upon which «the patient can never again lead a conscious or self-determined right LG Duisburg, 09.06.1999 - 22 T 22/29, para. 17.. The court expert affirmed the said, describing it as a massive disturbance of intelligence functions in the sense of «severe dementia» with additional severe motor deficits, caused probably with encephalopathy. Therefore, after determining that the state is irreversible and death the court said that death is only a matter of time as it will happen as a matter of future complexifi cations. The first criterion was acheived. The second is the presumed will of the patient Ibid, para. 17.. It has to be built upon the statements that the patient desired before. Moreover, the Supreme Federal Court in the 1994 decision BGH, Urt. v. 13.09.1994 - 1 StR 357/94. found that statements done ten years before losing capacity - seemingly, he has to know that he is already impaired or predicts he may, or will relatively soon become handicapped with an inability to communicate so his statements should be recognized as sufficient. The given case displayed there was such evidence, as the mother being already ill in 1989 before an another operation which deteriorated her condition LG Duisburg, 09.06.1999 - 22 T 22/29, para. 18-20.. The witness approved it mentioning the husband of the patient died in a similar way and she was reluctant to repeat the same end of life; another witness approved it stating she repeatedly had suicidal thoughts owing to her weakening health. Thus the court upholds that the evidence is sufficient Ibid, para. 26.

****** Ibid, para. 27.

******* OLG Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 1-2.. Finally, the Court wanted to emphasize that the plug-off has to be as painless as possible, saying that painkillers and neuroleptic drugs or sedatives will be suitable. This, however, was a pure recommendation and is not binding for intensive care physicians******. Judgment affirmed.

Judgment of the Higher Regional Court of Karlsruhe, 2001

Plaintiffs husband, a 65-year old man, suffered a pulmonary embolysm with a cardiovascular arrest. His life was saved, but he was rendered comatose and his condition was stable since then for five years. Being able to hear and breathe, he is unable to communicate or feed himself, nutrition was delivered via a stomach tube. Plaintiff was appointed as official legal guardian in 1996, and in four years, she applied for a court order to withdraw her husband's treatment*******. The judge himself checked the husband's condition and affirmed that he was unable to communicate. Both the sister and the children of plaintiff suggested he would decide to die rather than continue living on an artificial diet as a vegetable. The court dismissed their petition, as it found that withdrawing his artificial diet with the aim of causing him die is not covered by a guardian and cannot be tranfered, as a task OLG Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 1-4.. The appeal stated a claim that their intentions are not against his presumed will, but the appeal was dismissed as the appellate court also found that withdrawal of treatment which causes death is not covered by Art. 1904 CC Ibid., para. 6..

The Court said, speaking on the right to withdraw treatment, that the «wish to die» is a very personal matter, and the guardian simply enforces his direct or presumed will Ibid, para. 15-16. The Court reminded, that right to self-determination of the patient invokes refusal of treatment (not taking into account intensive care, but e.g. an operation withdrawal of which may lead to death) - and an unconsented surgery, in fact, is a battery; the court added that the autonomy does not end if the patient falls into coma ibid, para. 17.. Therefore, the guardian does not enforce any other's will to terminate treatment, except from the patient's one ibid, para. 18.

****** Ibid, para. 20.

******* Ibid, para. 25-26.

******** Ibid, para. 26.

******** ibid, para. 30.

******** ibid, para. 30.. The court held, that organ donation - is something different, as it is in the benefit of a third party and not of the person receiving care, and it is not admissible to consent on such things on behalf of the incapacitated person******. The Court agreed that consent to treatment discontinuation still falls in the sphere of health-care*******. The Court says that the plaintiff would not violate the provisions of legal guardianship appointment (Art. 1896-1 of the Civil Code) as he is carrying out the will of the patient********. The Court also commented on if an actual court approval is necessary for it, and whether the judge who decides to grant an order to withdraw treatment, as he «alone becomes the master of life and death». The court stated that there are objections as «the legal system is unfamiliar with deciding in advance whether it is permissible to let a person die». The court concluded as of the following: this decision (of life and death) is made neither by the court, nor by the guardian. It is simply made by the patient himself. And the only thing they do is perform his plea, despite it would result in apparent death. The Court came to the question, what is it supposed to do with the «presumed will» and how it has to be determined by the judge?******** The Court said that investigations ex officio may be made to determine what is the «presumed will»: 1) testimony of the family and doctors; 2) living will / preventive power of attorney; 3) the judge's personal impression of the patient concerned********. The Court adds, that the court order is precisely necessary to avoid any suspicion of manslaughter from the side of the prosecution OLG Karlsruhe, Urt. v. 29.10.2001 - Az.: 19Wx 21/01, para. 31-32.. The Court said, that the «Eutanasiaverbrechen» reference to the 1930s did not have anything similar with patient's right to self-determination Ibid, para. 33.. The Court paid attention on «loopholes» in legislation and said that there is no actual loophole, as literature and case law could rule it out perfectly without any legislation to be enacted Ibid, para. 35-36.. The court reversed and remanded the judgment, stating that there needs to be much more proof of the irreversibility of patient's condition which needs to be confirmed by present-day medical reports. Further medical reports disclosed that the patient did not improve in the last several years and there were permanent signs of brain damage Ibid, para. 51-56..

Judgment of the Federal Supreme Court, 2003

A man suffers from a heart stroke in 2001 and receives irreparable hypoxia brain damage, remaining in an active coma (apallic syndrome), being unable to feed himself (tube-fed by a PEG-tube), and being completely unable to communicate. The son of the man is appointed as a legal guardian of the man BGH, Urt. v. 17.03.2003 - XII ZB 2/03, para. 1-2.

****** Ibid, para. 3.

******* Ibid, para. 6-7; 7-10.

******** Ibid, para. 10-11.

******** Ibid, para. 15.

******** Ibid, para. 18.. In early 2002 he applied for a county court to obtain an order to stop the PEG-nutrition, but the court rejected his application. The plaintiff, the man's son, considered that his father's condition is not likely to improve******, and moreover the man filed a «living will******** wherein he stated, than in case he doesn't have ability to make decisions on his treatment, he would withstand most of treatment, including no intensive care. The son, the wife of the man and the plaintiffs sister were listed as confidants of the will. The lower court rejected the plea for order for lack of legal basis********. The Court examines the case law on whether the appointment of legal guardian and his firm consent is necessary for achieving an order to stop treeatment********. The court assessed the derivation of termination of treatment as a «dark side» of guardian's consent to treatment - if it is vigorous to do it, as the consent would help restore the patient's health, it's the «darker side» of the former, as the termination of treatment will definitely lead to death and thus a «termination of life» needs a different legal consideration******** thus the court finds that it's not a consent to an actual medical procedure, as termination of treatment is not a medical procedure in the strict sense of the word (practically meaning para. 1 Art. 1904 of the Civil Code doesn't cover the issue of consent to medical treatment withdrawal. The court noted BGH, Urt. v. 17.03.2003 - XII ZB 2/03, para. 19. that there must be some criteria for which the decision may be issued, which is hard to define, as they must meet «general values», and various factors (e.g. ethical or religious) may be assessed.

The court found that the plaintiffs appeal is well-founded. The nutrition via a naso-gastric tube is an actual intervention into a body, and so, is a manipulation which requires consent. The court said that if the patient is not able to consent to this type of treatment at the time it is applied than the hospital personnel have to consider his «living will» Ibid, para. 24. where the patient has to declare to which operations or interventions he would consent and to which he would not. In case there is a manipulation which is not prescribed by the «living will», than the personnel has to act upon the presumed will of the patient, before the guardian is appointed by a guardianship court. When the guardian is appointed, the alleged will is void and may not justify any further interventions. When the guardian is appointed, he acts for the incapacitated person and bears all the responsibility on his own; thus the hospital personnel should consider what the guardian says as he is the person who is a legal representative and has a right to express any of his wishes. Now it is clear that the son, being his legal representative, doesn't consent to such intervention, he basically refuses it Ibid, para. 25-26..

The Court admitted that some courts have stated that a guardian has no right to terminate the life-sustaining treatment; but this doesn't make contradiction with the «living will» of the patient; and moreover, it will be a correct implementation of the will. The court also added that the decision must be based at least on some facts; for instance, if we say «against», than there has to be some argument for continuing the life-prolonging treatment, or otherwise this must be a conclusion of a learned physician and the patient's relatives, at best, upon a determination of an actual and presumed will of the patient. The Court also interrogates whether appointment of one who is «caring for the health of the person concerned» does coincide with the actual aims of the guardian [to terminate treatment], finding that generally, yes, as the sense of the words may be understood not only in a restricted way but a literal one Ibid, para. 30-32.. One of the Appellate's Court's arguments were that there were that no criteria so as to determine where «passive euthanasia» is permissible. In fact, although the appellate court said so, this was not actually true. For instance, in a criminal action (1994) Herein, the court referred to the decision of the Supreme Federal Court in 1994 (BGH, Urt. v. 13.09.1994 - 1 StR 357/94)., the Court noted that one of those is in case the death is irreversible and very close in time, it may justify the physician to turn off the life supporting systems. But this is not the same in case there is no death process though the disease is irreversible and there is no actual prognosis of death though it may be presupposed BGH, Urt. v. 17.03.2003 - XII ZB 2/03, para. 33-34.. That is, the civil law «will not allow what criminal law (as an assisted suicide) forbids» - that means there may be no order to termintse the treatment in case there is not «fatal» condition. At the same time, the physician is to respect the self-determination of the patient and may not induce him to any operation or treatment against his will - even if it is vital for life support; and so, it may override his obligation to preserve his life Ibid, para. 35.. The court supposes that if it has to examine the issue of granting an «euthanasia» order, then the thanatoid condition is the decisive factor, and the presumption to give the order to withdraw treatment will be negative Ibid, para. 36.. The court adresses the issue of «living will» Ibid, para. 37., stating that the «will» has to be respected as the criterion, and his «choice» has to be respected even if he lost capacity to act; the legal representative cannot change the «living will» if he wants, unless the patient himself changed his mind or the situation considerably changed Ibid, para. 37.

****** Ibid, para. 40.

******* Ibid, para. 42.

******** Ibid, para. 53.. The Court denotes that there is no basis for withdrawal of treatment upon Art. 1904 CC****** upon which only the issue of consent to treatment is covered. The Court, however, finds that the absense of exact legal provision does not mean that plaintiff has no right to apply to the court for treatment refusal*******. The Court also states that guardianship courts in fact could decide on this case but rejected to perform a judicial examination of facts********.

Judgment of the Regional Court of Essen, 2007

After the judgment of the Supreme Court, an interesting suit occurred before the Regional Court of Essen in 2007, where the content of the living will (referred to in the trial report as («Patientenverfugung.») became a firm foundation of the order on the withdrawal of treatment, irrespective of the fact the patient had not been comatose or in a vegetative state. In this case a woman later incapacitated, wrote a «living will» in early 2004, being in full mental health stating she would not tolerate life-sustaining treatment in case no prospects of recovery are expected. Concerning the procedures, she hallmarked the following specifications: resuscitation, artificial ventilation, dialysis, artificial nutrition. Eventually she had a stroke, rendering her halfside paralyzed. After being treated in late 2005 in two hospitals, her condition improved and she managed to start breathing independently and maintained eye contact, though she was still fed with a PEG-tube. However, later, the woman, her treating physician and her children, agreed to «start implementing her living will» (despite she was definitely not comatose though her condition was quite bad), so they applied to the court LG Essen, 29.11.2007 - 7 T 385/07, para. 1-6 (trial facts).. The Court asked a municipal health authority to assess whether the person went into the stage of dying, and a medical expert stated to the court in a phonecall, that it had not. However, a late 2006 medical opinion by another doctor stated that no improvement was expected, as an irreversible loss of brain damage had started which is a sign of the start of dying process. An updated version of the report (February 2007) found the judge to be confused, as one one hand, the cardio-vascular system was stable, but on the other hand, brain damage was supposed to hallmark the starting the process of demise. The court asked for clarification and interrogated at what period of time death under present condition is expected. The medical expert said, that patient, suffering from a diabetic coma, would rather die suddenly from complexifications than survive for a long time fragmenton in such condition under various life-supporting machinery. And for such reasons, it's complicated to say concerning death proximity Ibid, para. 7-8.. The lower court rejected plaintiff's claim to discontinue life supporting treatment, arguing that the «civil law cannot grant what criminal law prohibits», and stating that the patient's condition was, in fact, stable Ibid, para. 9.. They filed an appeal. The attending physician stated that no signs of improvement existed or any prospects of improvement occurred. Another medical expert concluded that the stroke brought to substantial brain damage which affected the woman's swallowing and speaking function as well as fatally damaged the motor functions of her right side but at the same time, some functions still remained preserved. She was unable to formulate words, or sounds, but she was able to interact, make some gestures - she smiled to the court expert brought to the trial. The medical expert concluded she was not in a permanent vegetative state Ibid, para. 11.. In his appeal, the guardian desired to receive a court order to terminate artificial nutrition which obviously would lead to death Ibid, para. 14.

****** Ibid, para. 18-19..

The court denoted that irrespective of the vagueness of determination of «the dying process», it would be correct to approve withdrawal of treatment even if the process has not yet started as such, as it basically corresponds the living will of the person. Upon the construction of her living will, the court says, that she expressed a wish to withdraw further treatment in case the doctors would conclude that no signs of improvement will ever appear. The court confirms, that the state in which she is now is the state she depicted in her living will******. The court goes on to assess the condition of the patient, and holds, that despite the stroke consequences, the patient is 1) stable; 2) relatively responsive to physical attention; 3) does not find herself feeling unbearable pain and does not literally suffer. However, the court said it is not conclusive as the living will condition corresponded to her actual condition at the time of the trial LG Essen, 29.11.2007 - 7 T 385/07, para. 20.. The Court outlined that the withdrawal of treatment has got nothing criminal in itself and the criminal law permitted such type of «euthanasia», if it corresponds to the person's will, and the medical treatment may not be once more commenced or carried out further against the will of the patient concerned. The last observation showed, that the person was already unable to make a will and the last report said that the person's condition did not alter within the last years Ibid, para. 21-24.. The court gave the order.

Judgment of the Regional Court of Siegen, 2007

An outstanding trial occurred before the Regional Court of Siegen in 2007, where the issue of the living will validity and conditionality was challenged. There, plaintiff, the legal guardian of an incapacitated person, intended to terminate the intake of food and fluids (conducted via a PEG-tube) from a handicapped person under his care. The woman, who was not comatose, was suffering from dementia. Upon a doctor, a witness, the woman would not desire to receive life-prolonging treatment in case of being seriously ill. In 2000, the woman filed a power of attorney empowering her daughter to represent her personal and property matters, involving a passage stating she would not desire to receive any life-sustaining treatment if no adequate survival is expected. The advisory report stated that the woman was ill with an Alzheimer dementia in a moderate-to-severe form. She was kept at home. Another report in 2006 indicated that her mental abilities were gradually reducing. Despite she was still able to speak or walk, the report indicated that this moderate-to-severe dementia is incurable AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 1-8 (trial facts).. In late 2006 - early 2007 her condition became even worse, as she was already unable to eat and drink herself. The doctor insisted for her to install a PEG-tube, but the guardian refused. However, the woman was definitely not comatose. She expressed her wish to die. The doctor tried to contact her guardian, but he failed. His representative went to the court holding letters from the guardian which stated they would reject the installation of a PEG-tube. As it was unable to contact the guardian, the court decided to give an order to install the tube ibid, para. 11.. Then, the guardian asked to dismiss the order; after being hospitalized, the woman felt better and was able to feed herself independently. However, the Court ruled to submit to the installation of the PEG-tube as long as it is necessary. Within a few days, on May 30, 2007, the woman was hospitalized again where the tube was installed Ibid, para. 12-13. On June 30, 2007, the woman herself attended the court sitting where she herself said she wanted to die and the guardian said, that tube-feeding is not the thing she would want AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 14.. Then, the court heard several different witnesses.

The Court held that the guardian is obliged to perform his care as long as the medical indication requires him to do so, and should not abstain from it Ibid, para. 17. this, upon the Court, should be analogous to all the actions concerning the discontinuation of treatment as well Ibid, para. 18.. However, the court denoted, that the well-being is not only objective, but subjective, meaning is an opportunity to shape his life according to his ideas and desires (referring to the Federal Supreme Court's 2003judgment - BGH, 17.03.2003 - XIIZB 2/03). The court, however, found that the statements of the person concerned in her current condition, can not be conceived with enough certainity. And this intention (to die and henceforth refusing to consumpt food and drink) is not legally binding by the fact the elderly woman told this to the guardian, to the doctor, or to the court in 2007 Ibid, para. 20-21.. To do so, said the court, the person has to, at least, be mentally able to assess such prognosis and behold the alternatives, if any exist Ibid, para. 22.

****** Ibid, para. 23.

******* Ibid, para. 24.

******** Ibid, para. 25.

******** Ibid, para. 26.

******** Ibid, para. 27.. The fresh report (2007) stated, that the person was in severe dementia, and thus, as the medical expert concluded, the «wish to die» is not a rationally justified intention. The Court consents with this fact******. The Court also acknowledges that the person may have a right to withdraw her or his treatment even in case the medical treatment is still indicated, as well as approves the fact that the person's right to self-determination does not vanish with the fact of capacity loss*******. The Court, upon the judgment of the Federal Supreme Court says: the legal system of Germany, upon this judgment, lets a court to give an order to discontinue life-prolonging treatment where the patient is comatose, this condition is irreversible and is proved to be fatal. The court would also recognize a «wish to die» even in case the death process has not yet started******** - but still this applies, seemingly only in cases when the person is completely unable to consent or make adequate decisions. The court says, that the «patient decrees», or «living wills», have to leave no room for doubts or for other persons' wishes********. The living will, which was inserted into the power of attorney, was vague in its sense. That meant, that «life-sustaining measures» or «dignified survival» have to be clearly specified - as nobody would for sure answer what did the elderly woman mean by this********. The Court says, that it is actually, from one hand, a PEG-tube falls under life-sustaining treatment, but on the other hand, there is nothing dignified in dying in starvation and thirst, which is considerably painful; and moreover, there was no evidence of what were these terms meant to be AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 28-29.. The court considered, that there were no actual statements of the woman's «wish to die» in the past. Only the doctor, as one of the witnesses, said, that the woman confirmed her rejection of life-support, but she had never discussed it's modalities in detail Ibid, para. 36.. A «decent survival», says the court, may be interpreted in a multitude of different ways, but there needs to be far more evidence to determine it - there were no clear statements of what did she mean by these terms Ibid, para. 37-43.. The presumed will (as opposed to a healthcare directive) based on the 2000 power of attorney was considered vague - the presumed will should be cleansed from all the third parties' observations or thoughts, it should directly express entirely the patient's will Ibid, para. 46.. The Court denoted, that the testimony of the relatives does not indicate verifiable signs of attitude to dying Ibid, para. 48-52.

****** Ibid, para. 53-56.

******* Ibid, para. 57-58.

******** g_ee thejudgment ofthe FederalSupreme Court of2003, BGH, Urt. v. 17.03.2003- XII ZB 2/03, para. 38.. Later, the Court denoted it is generally not impossible that the person concerned had never expressed any statement concerning dying******. What is more, the living will, does not directly mention the end of life of the patient. The Court said that the living will itself does not indicate in which way the person expresses the idea of ending its life. The Court hinted that there may be situations where neither a living will, nor a presumed will is available. Then, in such case, the Court supposes that the guardian should act on his behalf for the well-being of the beneficiary. However, in short, he surely has to be cautious. The Court thought, that the admissibility of treatment termination depends on the medical indication of its necessity (same)*******. The Court said that the right to self-determination of the patient involves the right to wish termination of life-supporting treatment, and treatment against his will, regardless of 1) state of health; 2) actual reasonableness of his will. At the same time, the German courts********, and so the Siegen court applied the rule that there is a positive presumption of continuing life support - that means the patient presumably would wish to continue his life, unless there is evidence he does not. The Court held that unless this presumption is invoked, than, the constitutional guarantee of the state to protect life is apparently senseless - that would otherwise mean that only the one's life who once clearly expressed their wish for further treatment, would be definitely preserved. Therefore, a presumption of a court order for withdrawal of treatment is negative unless firm evidence justifies it AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 58.. Henceforth, the Court concluded that all the factual findings must indicate that the condition in which the affected person is, is really unworthy of life - as in fact, the findings of both direct or presumed will may never one may be ultimately precise Ibid, para. 59.. The legal guardians are also expected to be guided by medical expert judgments and trust the doctors - if the physician already does not find that the life-supporting treatment is appropriate anymore, the guardian's duty fades. The Court did not give an order to withdraw treatment Ibid, para. 60..

Italy Trial of Welby, Rome, 2006

The trial of Welby was one of the most resonant cases that Italian courts have faced to day. Plaintiff, Piergiorgio Welby (1945-2006), a painter, photographer and an activist, was diagnosed with fasciocapulohumeral muscular dystrophy when he was 18 years old (in 1963) Nei confronti diRiccio Mario, Tribunale di Roma, Sentenza 23 luglio 2007, No. G.I.P. 2049/07, p. 3. and over the next two decades, it gradually progressed, despite in the 1970s and 80s he was still capable of painting, photographing and speaking to people and being able to walk, though not much Ibid, p. 6-7.

****** Ibid, p. 6.. He collapsed in May 1997, having a severe respiratory failure, indicating that his disease came to the last stage. Since then, plaintiff was tube-fed and was capable of breathing by means of an automatic respirator. Welby was in totally clear mind and his intelligence was not anyhow damaged. Welby was able to communicate by a computer and repeatedly stated (including in his book) that he would definitely not wish to live anymore like that******. In 2006, P. Welby asked the treating physician to dislodge his pulmonary ventilator under sedation (upon the court's findings, he was in conscious and clear mind and he was fully conceiving his decision to refuse treatment). He expressed his will on November 24, 2006, but his doctor made an official written refusal. Plaintiff lodged a lawsuit to the Court of Rome and stated, that the refusal is unjustifed as: 1) any treatment has to be conducted under informed consent; 2) it dervies from his constitutional rights, inter alia, to refuse medical treatment; 3) the reconsideration of therapeutic treatment and preservation of life against natural events of «qualified demise» - meaning that death will nevertheless occur in such situation earlier or later; 4) the right to refuse treatment deriving from the right to self-determination of the patient upon which he is the arbiter of the scope and limits of treatment he would undergo, which is completely conscious, when he does not desire to undergo intolerable 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. 3.. Defendants claimed that there was no legislation to allow his wish to die. The Court, speaking on informed consent, said that it is true that informed consent, deriving from the constitutional guarantees, is a thing prohibiting any invasive act of therapeutic or non-therapeutic nature without consent of the patient Ibid, p. 5.. The Court said, that upon the Code of Medical Ethics, upon which, the doctor should desist if the patient refuses, and his right to autonomy does not parish with the fact he cannot consent; and the rules of deontology require supporting treatment as long the physician indicates is reasonably necessary. At the same time, the Court admitted, however, that the principles of informed consent in Italy are not very concrete concerning the refusal to life-supporting treatment which apparently leads to death Ibid, p. 7.. The Court acknowledged that in case of irreversible brain loss the treatment may truly be stopped in accordance with the said code. The Court says, that in case of withdrawal of treatment, a lot of things have to be considered, such as respect of human dignity, quality of such life and the futility of such treatment Ibid, p. 7.. Finally, the Court said, that the doctor's duty to continue life-prolonging treatment stops in front of the apparent incurability, futility of the treatment, transforms the patient from the subject of the treatment to the object, violates his dignity, which can therefore be interrupted being incompatible with constitutional, ethical and moral principles of respect, the dignity of the human person and of his solidarity Ibid, p. 8.

****** ibid. p. 9.

******* ibid, p. 9.

******** ibid. p. 9.10.. The Court, though acknowledging there may be some situation where withdrawal of treatment should be approved, said that there was no precise legal definition of what is «futile treatment», when life support looks «disproportionate», what are «qualities of life», and when «the person turns from a subject - to an object of treatment» - the Court admitted, that there were yet no actual guidelines of the doctors behaviors in such situations******. The Court also said, that right to withdraw treatment is not concretely protected by Italian law, and reckoed up the fact that defendant Giuseppe Casale found that his respirator was definitely not «futile»*******. The court also outlined, that there was no regulatory provision to determine what is «therapeutic obstinacy» and abstained from granting the order********. In a couple of days, Riccio Mario, the anaesthesiologist of the hospital where P. Welby stayed in, dislodged the automatic respirator from Welby under sedation upon his wish, which caused him die on December 20, 2006 at 11:40 PM Nei confronti di Riccio Mario, Tribunale di Roma, Sentenza 23 luglio 2007, No. G.I.P. 2049/07, p. 15-20.. The official cause of death was a cardiac arrest owing to heavy respiratory failure. In March 2007 the doctor was prosecuted for assisting in Welby' suicide Ibid, p. 22, 24-26.. Mario defended himself as having acted in compliance with the wish of P. Welby Ibid, p. 22-23.. The Court of Rome found that he truly acted within the wishes of the deceased plaintiff in and acquitted the doctor Ibid, p. 58-60.. The Court classified the case as «assisted suicide» Ibid. p. 59.

****** Trib. di Lecco, decreto del 19.01.1999, p. 1-2.

******* Corte di Appello de Milano, Camera di Consiglio, decr. del. 26/11/1999, p. 4-9. ******** CasoEnglaro, Corte di Cassazione, Sezione I Civ., Sentenza n.21748, del. 16 ottobre 2007, para. 3.2 (p. 2)..

Trial of Englaro, Court of Cassation, 2007

The trial of Englaro is the first case of the Italy's highest judiciary instance that recognized the patient's right to withdrawal of treatment (not in the particular case) and which has one of the largest trial histories in similar trials which lasted a decade. Shortly, a father of one Eluana Englaro, being in a permanent vegetative state since 1992 owing to a traffic accident, was appointed as a her guardian, and applied to the Court of Lecco in early 1999 to receive an order to stop compulsive feeding. The coma was found to be irreversible and permanent since 1992. A court curator joined him. Their application was rejected, as the Lecco court said it was unfounded as it contradicted the fundamental principles of the law of Italy, in particular, Article 2 of the Italian Constitution******. The appellate court did not consider the woman legally dead (as her brain was not obviously dead, as the vegetative state is not death of brain). The Court of Appeal of Milan abstained from granting the order and added that the legal and ethical debate on withdrawal of treatment was still ongoing in many countries of the world*******. In 2002-2006, plaintiff repeatedly lodged the same lawsuits (all rejected), until finally, by 2007, it was not brought before the Court of Cassation. The court found that since 1992, she had been in permanent vegetative state for 14 (then) years and the plug-off of forced nutrition would toll in death in a couple of days********. Being young, the patient seemingly never gave any suggestions on «life and death» (or if she gave - these were not mature or conscious), and never remained a power of attorney named «living will». The appellate court found that no actual indignity to the patient was imposed and - 1) technically she was alive as not being brain-dead; 2) withdrawal of treatment would lead to imminent death; the court also held that there is no worthy and worthless lives so as to subjectively assess is it good to remain her leaving, or, roughly speaking, let her die. Moreover, this is not contradict the right to self-determination meaning if an able person could determine what he should or should not undergo even under the risk of death, but I guess one could not call a comatose person «able», and that's the problem. The appellate court also cited Pretty v. United Kingdom Pretty v. United Kindgom, [2002] ECHR 427, (2002) 66 BMLR 147. in the context of balancing of right to die and live, and seemingly totally drove off any cases for granting a passive euthanasia order.

Though the Cassational court also did not grant this order, it was not because withdrawal of treatment causing imminent death is illegal, as it is not actually so (in fact, the court found there evidence of an existing living will or other facts the daughter would tolerate passive euthanasia). This treatment, as the court said is an intervention into a human body to prolong her life and one may consent to it's continuation or ask to terminate it Caso Englaro, Corte di Cassazione, Sezione I Civ., Sentenza n.21748, del. 16 ottobre 2007, at page 4.. The Court touched the issues of informed consent, referring to sentence of the Constitutional Court no. 471/1990. Several emergency cases Ibid, at page 8., were seemingly not in the point either; and the court affirmed that informed consent in fact, definitely dealt with withdrawal of treatment even on terminal stages Ibid, at page 8 (para. 6).. The Italian Cassational Court said, that in case a person does not wish to be kept permanently (and obviously - artificially) alive, in a permanent vegetative state, and expressed it either on a legal document, or just by any other unwritten implications, may have a right to have «its voice heard» to deactivate the prolonging treatment. The Court of Cassation also said, that legal guardians were initially appointed by courts to protect the person's health, but not, generally speaking, to make him «die in peace». But there may be exceptions. Therefore, the interruption of care which is herein portrayed in the shape of withdrawal of life-supporting treatment is permitted only in several occasions: 1) the vegetative state is irreversible, approved by a physicians' concillium as well as a thorough medical examination, and when it shows that there's no medical basis for even the slightest recovery; 2) and in case the will of the person before falling into unconscious and unresponsive state does not contradict the intention of the guardian to withdraw treatment by a court order Ibid, p. 15, para. 7.5, 8.. The Court said it's much harder to find the «alleged will» if there is no documentary evidence to confirm it, and thought it would be suitable to seek the response in the past habits and lifestyle of the patient which are familiar to his family and closest friends. Therefore, upon a compound of family-like assessments, the guardian has to think out his presumed decision, but it has to be as genuine and authentic as possible. So, the court concluded that in case there are no signs of regress of the pathology, the clinical picture is irreversible - than, upon the representative's application the court's order to terminate the treatment should be announced Ibid, p. 15, para 7.5.. In the same fashion, as the Federal Supreme Court of Germany in its 2003 jugdment, the Italian court finds that life-support is invasive treatment, and so, even if performed by non-medical staff nevertheless necessitates consent Ibid, p. 15, para. 7.6.. The Italian court, however, finds that the legal construction is not to actually ask the judge to let to e.g. take out a nasogastric tube, but to affirm the legitimacy to stop treatment Ibid, p. 15-16, para. 8.. Therefore, the Court may authorize «passive euthanasia», keeping in mind that «life is supreme good. If one of the two constituents lacks, the Court will reject the application. The Court found that point «2» lacks as the plaintiffs didn't reconstruct the alleged will (or had her «living will» commenced). The court found that albeit the young woman who once said she would rather die than to live in a vegetative state, she said the abovegiven statement being in full health. As the two conditions are not met, the Court did not give the order to withdraw treatment Ibid, p. 16-17, para. 10.. The trial history did not end by the judgment of the Cassational Court: the father managed to obtain a court order to withdraw treatment by the Court of Appeal of Milan on the following year Englaro, La Corte d'Appello di Milano, I Sez. Civ. Decr. del. 25 jiugno - 9 luglio 2008.