(June 28, 2010) The Second Criminal Division of the Federal Court of Justice (FCJ), Germany's highest civil court, ruled on June 25, 2010, that in certain cases it is not a criminal offense to terminate the life support system of a consenting, terminally ill patient. The Court acquitted a lawyer who had been convicted in 2009 of attempted manslaughter by a lower court in Fulda for having advised a woman to cut off the feeding tube of her comatose mother. (German Court Legalises Euthanasia with Patient Consent, BBC NEWS (June 25, 2010), http://news.bbc.co.uk/2/hi/world/europe/10414647.stm.) The ruling applies only to passively assisted suicide; actively assisted suicide remains illegal in Germany, punishable by up to five years' imprisonment. (Id.)
The patient, Erika Kuellmer, born in 1931, had fallen into a vegetative state after suffering a cerebral haemorrhage in October 2002. Although she had expressed the wish to her daughter not to be kept alive artificially, there was no written record to that effect, and the management of the nursing home where she was confined kept her alive through the use of a feeding tube. She had been in that state for five years when her children, after having had clashes with the nursing home director on the matter, reached a compromise in 2007 whereby the staff were only to provide care in the strict sense, the necessary palliative care, so that she could die. When, on December 21, 2007, the staff resumed the use of the artificial feeding supply that had run out in the daughter's presence the day before, the daughter, on counsel's advice, cut the tube, in the presence of her brother.
Nursing home staff alerted management, the police were called, and a prosecutor ordered the patient to be taken to a hospital. Although the tube was reinserted by hospital staff, Kuellmer died two weeks later, of “natural causes.” The daughter and the lawyer, Wolfgang Putz, a medical law expert and patients' rights advocate, were subsequently charged with attempted manslaughter. The daughter was acquitted on grounds of having “mistakenly” followed her lawyer's advice and therefore having acted without fault, but the lawyer was given a nine-month suspended sentence, which he appealed. (Id; German Court Approves Euthanasia with Patient Consent, YAHOO (June 25, 2010), http://health.yahoo.net/news/s/afp/germanyhealtheuthanasiacourt/; Highest Civil Court Delivers Landmark Euthanasia Ruling, REUTERS (June 25, 2010), http://www.france24.com/en/20100625-germany-euthanasia-not-crime-federal
-court-justice; Press Release, No. 129/2010, Bundesgerichtshof, Abbruch lebenserhaltender Behandlung auf der Grundlage des Patientenwillens ist nicht strafbar (June 25, 2010), http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Ger
In overturning the district court verdict, the FCJ found that Putz “had acted legally and in the patient's interest,” because, the Court stated, “[t]he expressed wishes of the patient… justified not only the end of treatment via the withholding of further nourishment but also the active step of ending or preventing the treatment she no longer wanted.” (YAHOO, supra.)
In agreeing to hear the case, Chief Justice Ruth Rissing-van Saan had stated that “the court aimed to define the line between 'killing' and 'natural death.'” (Id.) In the past, that line had been difficult to interpret. The FCJ ruled in 1994 that treatment can be terminated if the patient has given prior consent. This formed the legal basis for Putz's defense, but the new ruling clarifies when termination of treatment might be considered a criminal offense. Passive assisted suicide is also considered legal if the dying process has become irreversible; in 2005, the FCJ held that no nursing home or similar institution “has the right to force a patient to be fed through a tube against their will.” (Nicole Goebel, German Court Rules in Favor of Passive Assisted Suicide,DEUTSCHE WELLE (June 25, 2010), http://www.dw-world.de/dw/article/0,,5730366,00.html.) In addition, in September 2009, a law on living wills entered into force in Germany that mandates consideration of the patient's wishes at all times, until death occurs. (Id.; Living Will Law Passed by German Bundestag, DEUTSCHE WELLE (June 18, 2009), http://www.dw-world.de/dw/article/0,,4406162,00.html.)