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
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.