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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Germany: Court Clarifies Requirements for Living Wills and Durable Healthcare Powers of Attorney

(Sept. 30, 2016) On July 6, 2016, the German Federal Court of Justice (Bundesgerichtshof, BGH) held that a statement in a patient’s living will that “I do not wish to receive life-prolonging treatments” was not sufficient to legally bind a patient’s representative to authorize removal of an artificial feeding tube. The Court also separately found that an authorized representative of a patient can only consent to or prohibit medical interventions in life-threatening situations if the written power of attorney sufficiently describes the measures and states whether the representative is empowered to consent to them or not.  (BGH, docket no. XII ZB 61/16, July 6, 2016,¶¶ 17, 47, BGH website (in German).)

Background

German law defines a living will as a written statement by a person of age, who is able to consent, concerning specific medical tests, treatments, or medical interventions in case he or she becomes incapacitated. When the person becomes incapacitated, the custodian who has a durable power of attorney to make health care decisions must examine whether the determinations in the living will correspond to the current living and treatment situation.  If this is the case, the custodian must ensure that the living will is implemented.  (German Civil Code, Jan. 2, 2002, as amended, § 1901a, ¶ 1, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 42, 2909; corrected at 2003 BGBl. I at 738, GERMAN LAWS ONLINE.)

If a custodian or an authorized representative consents to, does not consent to, or revokes the consent to a medical test, treatment, or medical intervention that is medically indicated and there is justified reason to fear that the person under custodianship will die or suffer serious, long-term detriment to their health if the measure is not carried out or is discontinued, approval of the custodianship court is required. (Id. § 1904, ¶¶ 1, 2, & 5.)  An authorized representative may only consent to, not consent to, or revoke consent to a test, treatment, or intervention if the power of attorney is in writing and expressly includes and describes these measures.  (Id. § 1904, ¶ 5, sentence 2.)

Facts of the Case 

The case involved a female patient, a mother of three daughters, who was born in 1941. She suffered a stroke in November 2011 and since that time had been artificially fed through an endoscopic tube.  In 2013, she lost the ability to verbally communicate after suffering a series of epileptic seizures.  Ten years before, she had drawn up a living will that stipulated, inter alia, that:

I do not wish to receive life-prolonging treatments, if it is medically and unequivocally determined that

  • I am in an unpreventable and immediate process of dying in which every life-sustaining measure would prolong that process and suffering, without any prospect of improvement;
  • there is no prospect of regaining consciousness;
  • there will be permanent and severe brain damage due to a disease or accident; or
  • an incurable and permanent failure of vital functions is inevitable.  (BGH, supra, at ¶¶ 1 & 2.)

The patient had also given a durable healthcare power of attorney to one of her daughters (the authorized representative) in the event of incapacitation.  The power of attorney included the power to “terminate life-prolonging measures.”  The authorized representative, with the consent of the attending physician, refused to terminate the artificial feeding, arguing that the termination would not be in accordance with the living will of her mother.  (Id.at 3-5.)  The other two daughters of the patient disagreed and initiated legal proceedings to remove their sister from her position as an authorized representative.  (Id. at 6.)

Decision

The Court stated that the text of a power of attorney must describe in a sufficiently clear manner the treatment measures listed in section 1904, paragraphs 1 and 2, of the Civil Code and state whether the authorized representative has the power to consent to or prohibit them.  (Id. at 17.)  A general reference to the provision in the Civil Code is insufficient.  These heightened requirements are only necessary for a situation in which there is a reasonable fear of death or long-lasting and severe damage to the health of the patient.  (Id. at 18.)  The Court held that the authorized representative in the case at hand would have been empowered to terminate the artificial feeding of her mother, because the power of attorney fulfilled the necessary requirements.  (Id. at 16.)

The Court decided, however, that by refusing to terminate the artificial feeding the daughter did not violate her duties as a representative, because the living will was not legally binding.  (Id. at 44.)  In the opinion of the Court, the wording of the living will was not sufficiently specific to establish the clear will of the mother to have the treatment terminated in the current living and treatment situation.   (Id. at 45.)  The wording “I do not wish to receive life-prolonging measures” did not address the specific question of whether to terminate or to continue artificial feeding.  The Court noted that the necessary clarification of the term “life-prolonging measures” could be achieved by naming specific medical treatments or referencing specific diseases or medical conditions.  (Id. at 47.)  In addition, the four different situations listed by the patient in the living will were too vague in the opinion of the Court.  In particular, the broad description of “permanent and severe brain damage” was not specific enough to conclude whether the patient wished to receive an artificial feeding tube in the current situation.  (Id. at 48.)

Reactions

Attorney Wolfgang Putz, who represented the two daughters not appointed as authorized representatives in the case, criticized the Court for “construing doubt for no reason.” He pointed out that the use of narrow and specific terms is regarded as risky in living wills.  (Constantin Baron van Lijnden, “Der BGH hat hunderttausende Patientenverfügungen zunichte gemacht” [“The BGH Has Invalidated Hundreds of Thousands of Living Wills”] (Aug. 12, 2016), LEGAL TRIBUNE ONLINE.)

The Foundation for Patient Protection, on the other hand, welcomed the decision of the Federal Court of Justice for bringing clarity to the legal requirements of living wills. It called on all Germans to review their living wills to see if they are valid.  (Press Release, Foundation for Patient Protection, Patientenverfügung: BGH sorgt für Klarheit [Living Will: BGH Brings Clarity] (Aug. 9, 2016).)

Prepared by Felix Beulke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

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Malaysia: Steps Taken Towards Ratification of Trans-Pacific Partnership

(Sept. 29, 2016) On September 24, 2016, it was reported that the Malaysian Secretary-General for International Trade and Industry, Datuk J. Jayasuri, had stated that the country is on track to ratify the Trans-Pacific Partnership (TPP) by early 2018.  (Amir Hisyam Rasid, (Update) Malaysia Amending 18 Laws in Preparation for TPP Ratification, NEW STRAITS TIMES (Sept. 24, 2016); TPP Full Text, Office of the United States Trade Representative (USTR) website (last visited Sept. 29, 2016).)  He said that 18 laws had been identified as needing amendment in order to comply with the TPP provisions, and that work had started on developing the necessary legislation.  Once these amendments are passed by the Parliament, a decision will be made on ratification.  (Rasid, supra.)

In addition, on September 25, 2016, it was reported that an intellectual property (IP) lawyer in Malaysia had said that the country’s IP laws are nearly fully compliant with the TPP, with few legislative changes needed.  (Eva Yeong, Malaysia Near Full Compliance with TPPA Requirements on IP Laws, SUN DAILY (Sept. 25, 2016).)  One such change is the extension of copyright protection to 70 years plus the life of the author, which would have retrospective effect.  The current duration of copyright protection in Malaysia is 50 years plus the life of the author.  (Copyrights Act 1987 (Act 332) (as amended to July 1, 2012), s 17(1), Intellectual Property Corporation of Malaysia website.)

The TPP was signed by 12 countries on February 4, 2016: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam.  (Press Release, USTR, Trans-Pacific Partnership Ministers’ Statement (Feb. 4, 2016).)  The agreement will enter into force “60 days after the date on which all original signatories have notified the Depositary in writing of the completion of their applicable legal procedures.”  If not all of the signatories ratify the agreement, however, it will still enter into force if, after two years from the date of signature, “at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories,” have ratified the agreement.  (TPP Chapter 30, art. 30.5, USTR website (last visited Sept. 29, 2016).)

Jayasuri said that, should the TPP not enter into force, Malaysia would seek to engage in talks with the four countries with which Malaysia does not have an existing free trade agreement.  (Tho Xin Yi, Malaysia on Track to Ratifying TPPA Before 2018 Deadline, THE STAR (Sept. 24, 2016).)

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France: Seized Cell Phone Data Can Be Used

(Sept. 29, 2016) On August 12, 2016, a judge of the Conseil d’État (the highest administrative jurisdiction in France) authorized the use of the data stored in a cell phone that had been seized during a search ordered on the basis of the Law on the State of Emergency.  (CE, ordonnance du 12 août 2016, Ministère de l’intérieur c/ M. B, N° 402348 [State Council, Order of August 12, 2016, Ministry of the Interior v. Mr. B… No. 402348], Conseil dÉtat website; Loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence [Law No. 55-385 of April 3, 1955, on the State of Emergency], LEGIFRANCE.)

Background

Law enforcement authorities seized a cell phone during the search of a home on August 4, 2016, and captured and copied the data on the cell phone. The local prefect then asked an administrative court to authorize use of the data, but his request was denied on August 8.  On August 10, the Minister of the Interior appealed to the Conseil d’État, which set aside the decision of the administrative court and authorized use of the data.  (Saisies réalisées dans le cadre de l’état d’urgence et exploitation des données [Seizures Made Under the Framework of a State of Emergency and the Use of Data], Conseil d’État website (Aug. 12, 2016).)

The authorization given by the Conseil d’État judge to law enforcement to use the cell phone data was principally based on three findings: the data capture was done in compliance with the rules defined by the relevant legislation; a report issued after the search mentioned that the owner of the cell phone had told investigators he was using the phone and its wireless connection to share videos and images related to the Syrian conflict and the Islamic State of Iraq and Syria (ISIS); and, during the hearing, the applicant had admitted to using his cell phone to post, share, and comment on pictures and videos on current events in Syria.  The Conseil d’État judge held that the cell phone was likely to contain data about a potential threat to security and public order. Moreover, the owner of the cell phone had not opposed the use of the data by the authorities.  (Id.)   

Basis for the Authorization

The main legal basis for the decision is the 1955 Law on the State of Emergency. (Loi n° 55-385 du 3 avril 1955, supra.)  This Law, which has been amended several times, permits the government to declare a State of Emergency and defines what that entails.  The most recent amendment to the Law occurred in July 2016, with the adoption of a law extending the application of a State of Emergency.  (Loi n° 2016-987 du 21 juillet 2016 prorogeant l’application de la loi n° 55-385 du 3 avril 1955 relative à l’état d’urgence et portant mesures de renforcement de la lutte antiterroriste [Law No. 2016-987 of July 21, 2016 Extending the Application of Law No. 55-385 of April 3, 1955, on the State of Emergency and Establishing Measures Strengthening Counter-Terrorism], LEGIFRANCE.)  Under the legislation as it currently stands, the government is allowed to conduct searches in any place (with certain exceptions, such as places assigned to the exercise of a parliamentary mandate or places for the conducting of the professional activities of lawyers, magistrates or journalists) “when there are serious reasons for considering that this place […] is frequented by a person whose behavior is a threat to security and public order.”  (Loi n° 55-385 du 3 avril 1955, art. 11.)

Data found during such a search may be seized on site, but the law enforcement authorities must then ask the administrative tribunal judge for permission to use it. (Id.)  The administrative judge must decide within 48 hours whether to grant or deny that authorization.  (Id.)  The administrative judge’s decision can be appealed directly to a judge of the Conseil d’État, who then also has only 48 hours to decide.  (Id.)  To grant the authorization, the judge of the Conseil d’État must verify whether the seizure was done according to proper procedure and confirm that the evidence in question is indeed related to a threat to security and public order on the part of the suspect.  (Saisies réalisées dans le cadre de l’état d’urgence, supra.)

Prepared by Ricardo Wicker, Law Library Intern, under the supervision of Nicolas Boring, Foreign Law Specialist.

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Spain: National Police Chief Addresses Anti-Terrorism Policies

(Sept. 29, 2016) The head of Spain’s National Police gave an address describing how Spain’s efforts to improve anti-terrorist cooperation among European Union Member States, and arguing against national border patrols within the European Union.  (Hugo Gutiérrez, El Director de la Policia Nacional Pide mas Cooperación Europea contra el Terrorismo, EL PAIS (Aug.1, 2016).) He argued that because access to real time information on terrorists’ activities is essential in the fight against international terrorism, in order to improve early detection efforts, databases from different countries, currently not shared, need to be accessed by all allied countries in order to succeed in fighting new forms of terrorism, and intelligence must be improved. (Id.)

The chief also observed that Spain’s geography creates immigration challenges, and therefore the government has signed a number of cooperation agreements with immigrants’ countries of origin of immigrants in an effort to stem human trafficking at the source. (Id.)  Spain’s cooperation with Morocco, Mauritania, Senegal, and Niger has been critical, he stated, in reducing immigration waves from those countries and serves as an example of the importance of sharing intelligence.  (Id.)  According to the chief, the successful border management system and coordination among intelligence services have ensured that there is less Islamic radicalization in the border area with Africa in Southern Spain.  (Id.)

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Romania: Same-Sex Marriage Decision Postponed

(Sept. 27, 2016) On September 20, 2016, the High Court of Cassation and Justice of Romania, for the second time, postponed making a decision on recognizing a same-sex marriage concluded between a Romanian citizen and a non-Romanian outside the country. The decision was previously postponed in July, with the Court saying it needed more time to consider the matter, and now a ruling is expected on October 27. Romania does not have legal same-sex marriage domestically. (Romanian Court Again Postpones Ruling on Same-Sex Marriage, ABC NEWS (Sept. 20, 2016).)

The High Court of Cassation and Justice (HCCJ) was established as the supreme court of Romania under a 2004 law. It has nine members and decides cases based on majority opinion. (Id.; High Court of Cassation and Justice of Romania, HCCJ website (last visited Sept. 26, 2016); Law No. 304 on Judicial Organization (June 28, 2004), HCCJ website (in Romanian).)

Background

A U.S. citizen, Claibourn Robert Hamilton, and a Romanian, Adrian Coman, who were married six years ago in Belgium, sued to have their marriage recognized in Romania; they are represented by an attorney, Iustina Ionescu, who is a board-member of ACCEPT, a Romanian civil rights organization that also employs Coman. In 2012 the couple began attempting to have their marriage sanctioned, because they hoped to move to Romania for work and, later in life, retire there.   Romanian immigration officials did not recognize their marriage. (Romanian Court Again Postpones Ruling on Same-Sex Marriage, supra; Gwenyth Gamble, Romania Court to Rule on Same-Sex Marriage Recognition, PAPER CHASE (Sept. 19, 2016).) Unless formal recognition is given to the relationship, Coman’s American spouse will not be permitted to reside in Romania. At present he can only stay in the country for three months at a time. (The Coman-Hamilton Case, ACCEPT website (last visited Sept. 26, 2016).)

Views on the Case

Coman expressed his frustration with the delay in the decision, although he did approve of the judges giving the issue careful consideration. He advocated the passage of a law on civil partnerships, which would allow Hamilton to live in Romania. Coman said, “Nobody else’s rights are infringed upon if Clai gets residence in Romania, or if he can talk to a doctor as my spouse if I am in the emergency room in Bucharest.” (Romanian Court Again Postpones Ruling on Same-Sex Marriage, supra.) His attorney argued that the Court should recognize that the right to privacy and family is guaranteed by the Constitution for all and that the Court should not be “influenced by social or political groups that are pleading against equal rights for LGBT persons.” (Id.)

The Alliance of Romanian Families has a different view, arguing that recognizing Coman and Hamilton’s marriage would be traumatic for Romania. David Tut, a spokesperson for the group, said, “[w]e are a Christian country … and we accept traditional families as they are defined in the Bible.” (Id.)

 

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