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

****** CasoEnglaro, Corte di Cassazione, Sezione I Civ., Sentenza n. 27145 del 11 novembre 2008.

******* Ada Rossi et al. c. Italie, App. No. 55185/08.

******** p, Trib. Reggio Emilia, Decreto 24 Luglio 2012, p. 3-4., being reversed by the Cassational Court******. Finally, the European Court of Human Rights found the Englaro's appeal inadmissible*******. The woman died in early 2009, after her fatherbrought her to a private nursing home, where the treatment was discontinued and she died at age 39.

Decision of the Court of Reggio-Emilia, 2012

Another notable withdrawal of treatment trial occurred before the court of Reggio Emilia in 2012, designated as «P». There, the patient, a woman, was suffering from diabetes and progressive multiple sclerosis with (at the time of trial) minimal contact or movement, and PEG-fed since 2008. She also suffered from progressive respiratory problems. The legal guardian submitted to the court that the patient was already unable to express his wish for further treatment, which was confirmed by the patient's medical records. The patient was kept at home, and when the tutelary judge visited her, he found out that the incapacitated person was indeed hardly able to mark her name and the year ofbirth, showing very little communication********. The patient did not express any wish to prolong, or not to prolong the treatment. So, to resolve the issue, the court called a number of relatives to give testimony. The court found that the woman used to be quite active in her younger years being fond of singing, occasionally visited a church though not being stringently a religious person, fought her disease as much she could manage to, and believed she would recover once again; she tried extracorporal impregnation to have a child and never directly claimed any exact attitude of dying (but perhaps only in emotions) Ibid, p. 5.. The Court also found from the testimony that once she discussed therapeutic obstinacy concerning her father, stating she would be against such treatment (in the view of his suffering from hepatocellular carcinoma), where she agreed it would be «…better letting him go». The Court found this to be enough persuasive to believe she would not tolerate further treatment, which was approved by the statements of two of her friends. Therefore, the Court says that it authorizes the legal guardian to withdraw further medical treatment, and continue to perform palliative care therapies (practically, it is only a supporting therapy which would let the woman die not with much pain and suffering) Ibid, p. 6..

Conclusions. The paper dealt with the legal aspects of a right to terminate life-supporting treatment with a particular view on its application by tribunals in various cities of Italy and Germany, including the higher judiciary instances. Around two dozens of trials were analyzed with the most outstanding ones being written out in details in the second part of the paper. The author chose two countries representing the continental law family - Germany and Italy: these jurisdictions do possess a substantial body of jurisprudence on the subject which may be compared with some common-law jurisdictions like England or United States. As to the aspects that have been covered, the author deliberately omitted deontological ones, focusing rather on the principles of adjudicating trials on withdrawal of treatment by the courts. So, as the jurisprudence shows, both German and Italian courts recognize the patient's right to witdraw treatment and apply similar principles of determining the condition of the patient, his wishes apply a wide variety of evidence, including the living wills, which are also challenged on their validity. Before any legislation on withdrawal of treatment was adopted by German and Italian legislature, the tribunals in both of the countries elaborated a robust body of case law upon which court orders on the termination of life-supporting procedures were announced upon the application of the legal guardians. Moreover, Italian courts also elaborated «advanced» orders for withdrawal of treatment, by appointing guardians who would be authorized to act respectively upon this order; as well as letting the patients to appoint guardians to care about them who are anticipating future incapacity. Italian and German courts have elaborated the patient's right to withdrawal of treatment on basis of various civil code provisions on guardianship, provisions of the constitution and case-law on informed consent. The judgments clearly display that the tribunals have elaborated it as a case-law-originating right and did not abstain to recognize their jurisdiction over such contraversive subject, as a passive euthanasia. Being concerned about the constitutional guardantees of right to life and its parity with the right to autonomy, which, as both German and Italian courts held, the right to withdrawal of treatment, both courts of Germany BGH, Urt. v. 17.03.2003 - XII ZB 2/03, para. 36; AG Siegen, Urt. v. 28.09.2007 - 33 XVII B710, para. 57-58. and Italy See. Caso Englaro, Corte di Cassazione, Sezione I Civ., Sentenza n.21748, del. 16 ottobre 2007, p. 15-17. recognize a «negative presumption» in a trial for a termination of life-supporting procedures, which literally means that the tribunal will not issue the order unless there is evidence of the patient's irreversible condition or it is stably morbid without prospects of improvement, and the patient's documented or presumed wish not to prolong it. The given paper also discusses a variety of other aspects of the issue, such as a necessity of a court approval in order to terminate treatment, and the use of living wills as evidence at trial in Germany and Italy.

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