Kill mercy right or wrong

Killing out of mercy?

Transcript

1 killing out of mercy? Legal and ethical aspects of the current discussion about active euthanasia Documentation Edited by Mechthild Herberhold

2 Falkenweg 6 D Mülheim / Ruhr Telephone 0208 / Fax 0208 / Internet

3 Contents Foreword ... 5 Hans-Joseph Scholten The right to a dignified death Introduction The legal development in the Netherlands The actual legal findings in Germany The legal starting position The practice of euthanasia in Germany Scope for a new regulation Democracy, separation of powers and the limits of jurisdiction The obligation of the state to protect the basic right to life Reasons for rejecting the Dutch model The possibilities of palliative medicine range from euthanasia in the 3rd Reich The dam-break argument Outlook Michael Rosenberger Killing and letting die (not) a difference? The relevance of the distinction between active and passive euthanasia Introduction to the proper definition of euthanasia Classical distinctions within the framework of the theory of action Euthanasia: The classical distinctions Conceptual clarification: Passive euthanasia as letting death happen The broad rejection of the distinction between active and passive (or its moral significance) Sharing utilitarianism To deal with utilitarian criticism First of all: A few remarks on the principle of autonomy Damage rupture effects to be feared: Immediate effect to be feared Result of theological deepening: Dying meaningfully, or: What do the dying really want? Summary literature authors and editor ... 43

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5 Foreword In April 2001, the Netherlands became the first country in the world to legalize active euthanasia. In Germany, too, this has reignited the discussion about the regulation and possible practice of active euthanasia. In Germany, active euthanasia is a homicide offense and is therefore a criminal offense. The German Medical Association also spoke out against active euthanasia in its principles of medical care for the dying (1998). Despite these clear priorities, active euthanasia is controversial in Germany, both in terms of its legal regulation and its implementation. According to a survey by the Allensbach Institute for Demoscopy, 70% of Germans are in favor of active euthanasia for seriously ill people in order to save them from suffering. In view of this discrepancy between the legal regulation and the attitude of a large part of the population, many questions arise: To what extent is a legal regulation similar to that in the Netherlands conceivable for Germany? What do the values ​​of life, human dignity and free development of personality, which are also anchored in the Basic Law, mean for the decision to kill someone out of mercy? Who should make such an irrevocable decision, and what criteria should be used to do so? Is the killing of a person even ethically permissible, and if so, under what conditions? And to what extent can the decision for one's own death be made self-determined at all? The following documents the contributions of an academy conference that took place on December 5, 2001 in the Catholic Academy of the Diocese of Essen Die Wolfsburg in Mülheim an der Ruhr and dealt with the legal and ethical aspects of active euthanasia. We would like to thank the speakers at the conference who made their presentations available for this publication, as well as the participants in the event for the interesting and stimulating discussion. Mülheim / Ruhr, in March 2002 Mechthild Herberhold lecturer at the Catholic Academy in Wolfsburg

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7 Hans-Joseph Scholten The right to a dignified death 1. Introduction The right to a dignified death, like the right to a dignified life, is an elusive concept. Does that even exist: the right to a dignified life or the right to a dignified death? Who could give man such a right? From whom would it be claimed? And what content should such a right have? As simple and self-evident as the title sounds, its subject matter is in fact so multi-layered and complex. We Christians still seem to have it relatively easy: We believe that God has given us dignity and that it resides in us as an inalienable right, prescribed in every constitution and every legislation as a standard. For us, Article 1, Paragraph 1, Clause 1 of the Basic Law does not create a human right, but declares a truth given in the constitution: Human dignity is inviolable. This applies to life as well as to death. But what does human dignity require in a changing world? What does she command in the face of suffering and death? Anyone who has ever followed a dying process up close, who has perhaps lived through the months of desperate struggle for death and in some cases also suffered, may have asked himself whether the conscious farewell is the more dignified end to life and whether the person who lacks the knowledge and the means to do so does not have to be put in a position to also seek the help of the doctor. So does respect for human dignity also require respect for the wish to die? And can it possibly even be used to derive the right against the state, that it creates the possibilities for the dying person to be given help in the implementation of his wish? In the Netherlands, a democratically elected majority made this decision. The development is unique in Europe. Still! In view of the corresponding initiatives in Belgium and Australia, the question is whether this will stay that way. There are also voices in the Federal Republic of Germany who consider the Dutch model to be a step forward. So can we too soon come to the conclusion that there is a right to a dignified death and that this includes the right to the provision of appropriate help? This question will be investigated in the following. In a first step, the development in the Netherlands should be traced. It will become clear that the change in the law is not the result of a favorable political constellation, which the proponents of an approval of active and direct euthanasia in this legislature

8 8 Hans-Joseph Scholten had secured the parliamentary majority for their reform ideas for the first time. Rather, the new regulation is the (provisional) final piece of a decade-long development, in the course of which first the Dutch case law, then the local public prosecutor's offices and health authorities and finally the Dutch legislature itself have steadily increased the freedom of the doctor in favor of greater consideration of the patient's wishes. 1 The new law largely only follows what is already established practice. It was adopted by a clear majority in both chambers of the States General, 2 and incidentally, across denominational boundaries, it is approved by the overwhelming majority of the population. Against this background, it is not to be expected that it could be revised in the short term. In a second step, the current legal situation in Germany can then be outlined. Legally, it is quite simple, but its practical application raises not inconsiderable problems and leaves some things in the dark. Taking into account the development of public opinion, but also the long-range effects that the Dutch model could have on the discussion in Germany, the most exciting question is what reasons actually stand in the way of allowing direct killings by doctors in Germany. From a legal point of view, and only for that reason, it is primarily important to refer to three aspects, namely on the one hand the limits that constitutional law sets on such legal training, and on the other hand on the special legal-historical experience that Germans are particularly reluctant to experience on this topic and finally on a more legal political argument, namely the fear of an erosion of values. 2. Legal developments in the Netherlands Anyone who takes a look at the Dutch penal code today will not find anything about euthanasia or the approval of direct killing. The penal code dates from 1881 and the relevant provisions have not changed. In principle, any killing is punishable. There is no medical privilege. And that's not all: not only killing, but also assisting suicide are prohibited and punishable. The law still breathes the spirit of the century before last, when in the Netherlands the consortium 1 2 For the development see also Jansen, A., The regulation of active euthanasia in the Netherlands A novelty, ZRP 2001,; Sagel-Grande, Legal Regulation of Euthanasia in the Netherlands, ZStW 111 (1999); Tak, P. J. P., Euthanasia in the Netherlands, Leipziger Legal Lectures, Book 29, In ​​parliament (Tweede Kamer) it was adopted with a majority of 104 to 40 votes, in the representation of the provinces (Eerste Kamer) with 46 to 28 votes.

9 The right to a dignified death 9 fessions determined the political disputes and a parliament dominated by Protestants and Catholics never got the idea that the plight of people in dying could give the doctor a justified cause for killing. The rigid legal situation determined the public and the class consciousness of doctors until the 1960s. But then the social awakening, the emancipation from ties to the state and churches, understood as the outcome of self-inflicted immaturity, promoted the development of an understanding of law that made the individual and his rights and freedoms the standard of things. In the Netherlands, the discussion about people's right to self-determination very quickly took hold of the conflict situations at the beginning of life and, after a brief transition phase, at the end of the 1960s led to a decision to permit abortion, which, as you all know, is not without its consequences for the German legal system Follow remained. The discussion about the importance of the right to self-determination at the end of life got off to a slower pace. Their beginning is usually associated with the trial of the Frisian doctor Postma, who had to answer before the Leeuwarden District Court in 1973 for the killing of her 80-year-old mother. 3 Ms. Postma had injected her mother, who was paralyzed, increasingly decaying and suffering from pain, an overdose of morphine at her repeated request and, out of conviction of the appropriateness of her act, had given herself to the authorities. The process attracted a lot of attention and led to the founding of the Vereniging voor vrijwillige euthanasie in the Netherlands, which, like the Society for Humane Dying later here, wanted to provide practical help with the self-determined end to one's own life and for a legalization of assisted suicide and the killing occurred on demand. At the end of the trial, in which a number of medical experts had been heard, the district court could not bring itself to justify the act, but only sentenced Ms. Postma to a week's imprisonment, which she suspended. In terms of legal policy, the judgment also gained great importance because it was the first time that a court established the admissibility of discontinuing treatment and defined the conditions under which a doctor was also allowed to administer lethal doses of painkillers. Afterwards, there were no more doubts in the Netherlands about the permissibility of so-called passive or so-called indirect euthanasia. 3 District Court Leeuwarden, judgment of, NJ 1973, 183.

10 10 Hans-Joseph Scholten Ten years later, Ms. Postma would probably have been acquitted. In any case, on May 10, 1983, the District Court of Alkmaar 4 ruled that the act of a doctor who, at her request, had injected stesolid, pethidine and curarin one after the other into his 95-year-old, seriously ill patient, whereupon she died, was not punishable. As a justification, the court stated that the right to self-determination about ending one's life is recognized in ever broader sections of the population, and that it is common knowledge that in order to end one's life in a humane, non-violent way, help is often required A third party is necessary, the assistance to a voluntary termination of life, although this represents a formal violation of Article 293 or 294 nl.stgb, is not materially unlawful, if and to the extent that this act cannot be considered legally undesirable. The latter, however, is the case, according to the reasons for the judgment, if the wish to kill is well considered and is based on permanent suffering and the doctor has taken the greatest possible care both in assessing the situation and in providing assistance. The justification still seems risky today in view of the clear legal situation. It was also on shaky feet because the doctrine of material illegality in the Netherlands had not had any followers for decades and, above all, had never been undoubtedly honored by the High Council, the Dutch Court of Cassation. This time the public prosecutor's office appealed and in fact the court in Amsterdam 5 overturned the Alkmar judgment in November 1983 with dry words: In view of the fact that the government had just set up a state commission to investigate the problem, there could be no question of the fact that the government had set up a state commission to investigate the problem The Netherlands have already crystallized a general view of the content, according to which euthanasia can be considered generally socially acceptable. At least this court was lenient, found the doctor guilty of homicide on demand, but refrained from imposing a sanction. The proceedings did not end there. The doctor was not satisfied with the verdict of the Amsterdam judges and called the high council. The highest Dutch court now 4 5 Alkmaar District Court, judgment of, NJ 1983, 407th Amsterdam Court, judgment of, NJ 1984, 43.

11 The right to a dignified death 11 was canceled by the judgment of the Court of Justice in November 1984, to everyone's surprise, stating that direct killing by a doctor could also be justified if, according to objective medical knowledge, an emergency existed. 6 Later he specified the case law: The emergency situation could arise from the fact that the doctor was faced with two conflicting duties: the duty to support life on the one hand and the duty to alleviate suffering on the other. If the doctor decides, at the patient's request, to end the suffering of an unbearable and unalterable suffering, his action is justified. With this decision the dam was broken. Despite the apparently so clear legal situation, killing on demand could be justified and it seemed only a question of medical insight as to whether or not there was a justifying emergency. What happened now is not atypical for the legal culture in the neighboring country, even if it may seem strange to us: The medical profession saw itself particularly challenged due to the dictum of the supreme court. In the Royal Dutch Medical Association there had been heated discussions about the admissibility of direct euthanasia, which ultimately split the association. The much larger part remained loyal to the organization and joined the prevailing opinion that direct killing at the request of the patient is justifiable according to the rules of medical ethics and that the doctor only has certain procedural due diligence requirements in his decision to comply with the request to kill (in particular the consultation of another independent colleague). The prosecutors were in some ways paralyzed. If the direct killing by a doctor could now be allowed after all and everything depended only on medically justified insight, which doctor should still be charged and which should remain unmolested? The attorneys-general at the five courts of law, which are of considerable importance for the practice of criminal prosecution in the Netherlands, because it is not the principle of legality but the general principle of opportunity that applies here, and the attorneys-general thus decides which offenses are to be prosecuted and which not as early as 1982 the momentous decision that cases of medical euthanasia should only be brought to justice after prior consultation in this body. As a result, although more and more new cases of active and direct euthanasia became known, the percentage of indictments fell just as drastically from 19 cases only 3 further 6 Hoge Raad, judgment of, NJ 1985, 105. The Hague Court to whom the matter

12 12 Hans-Joseph Scholten 7 8 prosecuted 2 of 184, 1995 only 1 7 of 1,466, in 2000 none of 2,123 cases. In fact, only cases came before the barriers of the courts in which doctors had not adhered to the due care criteria developed by the case law or which were suitable for the further development of case law (e.g. did the patient have to be in the dying phase? Could a purely mental illness cause an unbearable suffering?) Of course, politics was involved in these decisions.However, the government could not bring itself to a quick legal solution, but saw a considerable need for clarification. A draft introduced in 1984 by the liberal MP Wessel-Tuinstra (D 66), which boiled down to the legalization of direct euthanasia, 8 failed after years of deliberation in parliament. While there was one debate after the other, the medical practice continued to establish itself. The doctors actually had little to fear now. If they could document that their patient was seriously ill and suffered unbearably from his situation, if they saw no alternative to improve their patient's condition, and if an independent colleague after examination came to the conclusion that this was medical no longer to help and the desire for death was serious and permanent, they could now put an end to the suffering by a lethal injection or infusion at the patient's request. In fact, the arsenal of medical options for caring for the dying was expanded to include lethal injection as early as 1984. And the results of the intensive empirical research that was now beginning made it clear that this option was being used to an increasing extent. However, the more direct active euthanasia became the norm in everyday medical practice, the more restrictive the doctors found their criminal law context. Killing on demand puts an unnatural end to life. However, if the doctor ticked this on the death certificate, this inevitably led to the initiation of investigative proceedings. Even if the doctor could count on an attitude, this procedure was fraught with uncertainties (was the patient really unbearable? Was his wish to die seriously?) And risks (search?). As the first empirical surveys showed, this led to the fact that only a relatively small number of doctors were referred back to direct euthanasia, and actually released the doctor, judgment of, NJ 1987, 609. JM Cuperus-Bosma / G. van der Wal / PJ van der Maas, Euthanasia en other medische beslissingen ron het levenseinde Het Openbaar Ministerie en de meldingsprocedure, The Hague 1996, 49 (Tab. 4.2). Kamerstukken (parliamentary printed matter)

13 The right to a dignified death 13 deten (only 18% in 1990) 9. Most of them stated a natural cause of death on the death certificate. Regardless of the question of whether the legislature should legalize direct euthanasia, considerations soon began as to how doctors, who adhered to the criteria developed by case law, could be protected from the burdens of criminal proceedings and prompted to truthfully report the cause of death could. In 1990, the result of these considerations was initially the issue of guidelines that were agreed between the attorneys general, the health inspectorate and the medical society, and which precisely stipulated the conditions under which the doctor could expect the proceedings to be discontinued; the legislature largely adopted the so-called notification procedure and enshrined it in the inquest law. After that, the doctor, who gave in to a patient's wish to die, had to hand over a detailed report to the public coroner in addition to the death declaration, from which it emerged that the conditions for a permitted killing were met. 10 The coroner passed the documents on to the responsible public prosecutor's office, which was still responsible for deciding whether further investigations were necessary and whether the proceedings could be closed (which in most cases). The law was a political compromise. When an unreported investigation in 1996 revealed that around 60% of doctors still did not report active euthanasia cases, the legislature saw itself prompted to make a further change. 5 regional examination commissions were set up to assess from a medical-professional point of view whether the Euthanasia performed and reported to a doctor met the due care criteria. The commissions are made up of a lawyer, a doctor and an ethicist. You can have additional documents presented to you and hold hearings. If, after examining the individual case, the commission comes to the conclusion that the doctor acted carefully, the matter still has to be submitted to the public prosecutor's office. Their hiring decision is then only a matter of form. According to the most recent report, a total of cases of active and direct euthanasia or medical assisted suicide were reported to the commissions in 2000. That is less than in the year (at that time it was 2,216) 11. However, it is unclear how high the dark field is and whether the use of the examination committees actually caused the registration of JM Cuperus-Bosma / G. van der Wal / PJ van der Maas, euthanasia Other medische beslissingen ron het levenseinde Het Openbaar Ministerie en de meldingsprocedure, The Hague 1996, 48 (Tab. 4.1). The report template includes 22 questions related to medical history, death desire, consultation and execution of the act; cf. Royal Decree of, Stb cf. Regionale toetsingscommissies euthanasie, Jaarverslag 1998/1999, Den Haag mei 2000, 8.

14 14 Hans-Joseph Scholten has increased the willingness of doctors. A new study, which should shed light on the current dark field, is only in progress. The new law on the control of on-demand and assisted suicide 12, which will come into force on January 1, 2001, brings nothing new to the matter. After all, it draws the long-overdue conclusion from the jurisprudence of the High Council and the lower courts and supplements the Criminal Code with a provision according to which killing on request and assisted suicide are no longer punishable if they are committed by a doctor who is present meets the due diligence requirements set out in Article 2 of the new law and has notified the communal coroner of the act of killing. The care requirements to be observed by the doctor are now defined in Article 2 of the new law as follows: 1. The doctor must have come to the conviction that the patient voluntarily and deliberately asks for death. 2. He must have come to believe that his suffering is hopeless and unbearable. 3. He must have informed the patient about his or her health situation and its further development. 4. Together with the patient, he must have come to the conclusion that there is no other reasonable alternative in the situation in which he finds himself. 5. He must have consulted at least one other independent doctor, who in turn must have seen the patient and made a written statement on the aforementioned requirements. 6. Finally, the doctor must have carried out the act of killing himself lege artis. 12 Wet toetsing levensbeendiging op verzoek en hulp bij zelfdoding, Law of, Staatsblad 2001, 194.

15 The right to a dignified death The factual legal findings in Germany 3.1. The legal starting position How is the legal situation in Germany? Direct euthanasia is punishable unlike in the Netherlands, direct active euthanasia is strictly prohibited here. The doctor, who gives in to his patient's request and administers a fast-acting lethal drug, fulfills the offense of killing on demand (216 StGB) and has to face a criminal conviction. After h. M. a justification according to the rules of justifying emergency (34 StGB) is out of the question. Even if the prognosis is hopeless, the Federal Court of Justice has stated that euthanasia may not be performed through targeted killing. 13 To justify this dictum, some references in the literature are made to the unavailability of the protected legal interest. This rules out a substantial preponderance of any other interest. 14 Others deny the necessity of the act of killing, since palliative medicine provides sufficient means to alleviate the suffering so that the ultimate thing does not have to come about. Finally, it is pointed out that direct killing is not a suitable means of eliminating the state of emergency. Because suitability is also to be determined normatively. However, the means of direct killing is not available to the doctor. In this respect, 216 StGB also sets an insurmountable limit to the interpretation of the justifying state of emergency. In the literature there is talk of the blocking effect of the 216 StGB. Impunity of indirect euthanasia is permissible under German criminal law, as in the Netherlands, on indirect euthanasia. In Germany, as in the Netherlands 16, this refers to the medically prescribed administration of strong pain relieving medication to a dying person if their use unintentionally but inevitably leads to a shortening of life. 17 In the literature it is partly disputed that a BGHSt 37, 376, 379. Rilinger, GA 1997, 417 ff .; Lackner / Kühl, StGB, 23rd edition Munich 1999, before 211 marginal 7 with further references; critically Herzberg, NJW 1996, Eser in: Schönke-Schröder, StGB, 26th edition. Munich 2001, preliminary. 211 marginal note 25 (block of consent). See Wöretshofer, Volgens de rules of art, Arnhem 1992, 153 with further details. Deputy Tröndle / Fischer, StGB, 50th edition, Munich 2001, before 211 para. 17.

16 16 Hans-Joseph Scholten, such medication actually fulfills the offense of homicide (Paragraphs 212 ff. StGB). Because the protective purpose of these norms does not cover the doctor's actions, which, according to its social meaning and significance, are not aimed at killing, but at alleviating the suffering. 18 According to traditional considerations, however, such a medical measure also represents homicide within the meaning of Paragraphs 212 et seq. StGB, but which is justified according to the rules of 34 StGB. 19 The Federal Court of Justice initially left open which reasoning should be followed. 20 According to his case law, however, there is no doubt about the admissibility of indirect euthanasia. According to a decision from 1996, a possibly life-shortening pain-relieving medication for a dying patient is justified according to the emergency regulation of 34 StGB. Because the possibility of death in dignity and freedom from pain in accordance with the patient's declared or presumed will is a more valuable legal asset than the prospect of having to live a short time longer under the most severe pain, especially pain of destruction. 21 The reasoning shows that the Federal Court of Justice also recognizes in principle a person's right to death with dignity. Moreover, like the High Council 22, he also considers it possible that the interest that exists in maintaining the prohibition of killing is subordinate to the interest that exists in individual cases in ending the suffering, impunity of assisting suicide is impunity finally also assisted suicide under German law. This was already so under the validity of the Reich Criminal Code and corresponds to German legal tradition. The Dutch sometimes speculate that this could mean that German doctors would increasingly resort to assisting suicide, which is in principle unpunished, so that in fact the real difference in dealing with hopeless sufferers between the two countries is not so significant be. However, there are several arguments against this assumption. On the one hand, there is the demarcation between assisted suicide and killing by omission in the German cf. Herzberg, NJW 1996, 3043, 348 f .; Tröndle / Fischer, StGB, 50th edition, Munich 2001, before 211 marginal note 20 with further references. See Kutzer, NStZ 1994, 115; Schreiber, NStZ 1986, 340; Eser in: Schönke-Schröder, StGB, 26th edition. Munich 2001, preliminary reference. on 211 ff. marginal note 26 with further details After a decision by the 5th Criminal Senate in February of this year, he seems to want to commit to the so-called emergency solution. BGHSt 42, 301, 305. According to the case law of the High Council, the doctor's plight is triggered by the unbearable and hopeless suffering of his patient. The doctor can find himself in the predicament of having to choose between the duty to support life and the duty to reduce suffering, see HR judgment of, NJ 1984, no. 106 (regular case). RGSt 70, 313, 315 with further details

17 The right to a dignified death 17 Case law has by no means been clarified to such an extent that a preliminary investigation would not in principle be initiated against the doctor who decides to take such a step. Since the Federal Court of Justice in the so-called Wittig judgment 24 saw the clearly expressed will to commit suicide of a severely heart disease patient as irrelevant and the doctor was obliged to take rescue measures again after unconsciousness due to his position as guarantor, the discussion about the limits of the medical obligation to provide assistance has not yet come to an end got. On the other hand, assisting suicide in Germany is still frowned upon under professional law. 26 Even if the criminal investigation leads to a suspension, the doctor who participates in a suicide must therefore face consequences under professional law. In this respect, there can be no question of widespread acceptance. Ultimately, this way out is also out of the question where the person concerned is no longer physically able to lay hands on himself. Summary The result are the legal limits that German criminal law imposes on doctors who deal with a patient's request to kill sees confronted, drawn much closer than is the case in the neighboring country. The doctor is not allowed to actively and directly end life even in the dying phase. In terms of professional conduct, at least in principle, he is not allowed to reach out his hand to commit suicide. Only indirect euthanasia, i.e. consistent pain relief while accepting a possible shortening of life, has been granted to him de lege lata in the case of a fatally ill or dying person Opinion that has long been in favor of the approval of active direct euthanasia. As early as 1973, 53% of West Germans agreed in a representative survey that a BGHSt 32, 369 ff. Deputy Lackner / Kühl, StGB, 23rd edition Munich 1999, before 211 para. 12; Tröndle / Fischer, StGB, 49th edition Munich 1999, before 211 marginal note 6, each with numer. w.n. As early as 1993, in the guidelines of the German Medical Association for medical terminal care, participation in a suicide was branded as non-medical; see Deutsches Ärzteblatt 1993, C-1629 (Section II.2 at the end). Even according to the new principles of the German Medical Association on medical care for the dying (Deutsches Ärzteblatt 1998, C-1690 f.), The participation of the doctor in suicide contradicts the medical ethos; See also Vollmann J., Ärztliche Lebensverendigung and patient self-determination, a medical opinion, DMW 1998, 93, 94. also H.-G. Koch, to what extent is active euthanasia punishable? in: Illhardt / Heiss / Dornberg (ed.), Euthanasia, Acting or Failing ?, Stuttgart; New-York 1998, 137, 149.

18 18 Hans-Joseph Scholten seriously ill patient should be able to demand that the doctor give him a lethal injection. 28 The proportion now seems to have increased significantly. According to a survey by the Allensbach Institute at the beginning of this year, 64% of West Germans and 80% of East Germans, that is over 70% of the total population, made the following statement: A seriously ill patient should have the right to choose death, and demand that the doctor give him a lethal injection. The denomination played hardly a role in answering this question. 60% of Protestants and 68% of Catholics surveyed also agreed with this statement. Only 11% of respondents (18% of Catholics) rejected it. Responsible exercise of the already limited room for maneuver is made more difficult for doctors in Germany because the line between indirect and direct euthanasia is very thin in individual cases 29 and in some cases difficult to prove. 30 This harbors a risk of criminal liability for doctors and, in practice, is likely to be partly responsible for the rather cautious use of high doses of lethal painkillers. On the other hand, there are indications that doctors do not take care of the sometimes difficult demarcation of boundaries, but also in Germany give in to the desire to kill an incurably ill person in a more direct way than is permitted. 31 However, these are still likely to be exceptions. A closer comparison with the Dutch practice must fail because in Germany there is no empirical material comparable to the Dutch studies on the medical practice of euthanasia. Quoted from H.-G. Koch, State Report Federal Republic of Germany, in Eser / Koch, materials on assisted dying, Freiburg 1991, 71 f.So already Hanack in: Hiersche (ed.), Euthanasia, problems of assisted dying. An interdisciplinary statement, 1975, 146 f. Cf. also H.-G. Koch in: Illhardt / Heiss / Dornberg (Ed.), Euthanasia, Acting or Failing, Stuttgart; New-York 1998, 137, 148: The line between indirect and active euthanasia is fluid. According to a representative survey carried out by STERN in 1996, around 30% of general practitioners could imagine doing active euthanasia for humanitarian reasons. Almost 50% had already been asked to do so by their patients.10.5% admitted that they had already experienced active euthanasia by a doctor in their area. A good 40% could also approve of this; cf. STERN, No. 49 of Even with regard to these survey results, a certain number of unreported cases of active euthanasia must be expected; as a result, the assessment by H.-G. Koch, in: Illhardt / Heiss / Dornberg (eds.), Euthanasia, acting or omitting, Stuttgart; New-York 1998, 137, 146.

19 The right to a dignified death Scope for new regulations But could the German legal system even follow the Dutch example? What leeway do the German courts and the German legislature have in this regard? The question leads the lawyer right into constitutional law Democracy, the separation of powers and the limits of jurisdiction.If you reflect on the application of the emergency rules, as they have obviously been understood by the High Council and criminal law practice in the Netherlands, from a constitutional point of view, you come across on the one hand the question of how such an interpretation of the law is compatible with the principles of separation of powers and democracy that are valid in both countries. To put it simply: if the democratically legitimized legislature is to determine the rules of coexistence and the courts are constitutionally only mandated to ensure compliance: how far are the courts then actually allowed to deviate from the will of the legislature within the framework of legal interpretation? Certainly, it must be admitted that the principle of separation of powers has also been breached in many cases in German constitutional law and does not impose any strict and irrefutable limits on the domestic distribution of tasks. And yet, according to the case law of the Federal Constitutional Court, the judge is not allowed to assume the role of a norm-setting authority and, even in the context of legal training, must not evade the meaning and purpose of the law as defined by the legislature. 32 The criminal courts apparently also see limits to the application of the justifying state of emergency based on this consideration. In fact, the argument of the blocking effect of 216 StGB is ultimately nothing other than the recognition of legislative competence understood in this way. Because what is inadmissible by law according to case law can only be changed by the legislature in a constitutional state. However, according to the German constitutional understanding, this could be added, is perhaps also responsible for such a decision because it is of fundamental importance for the citizen. The Federal Constitutional Court at least developed the so-called materiality theory with regard to the rule of law on the one hand and fundamental rights on the other. According to this, decisions that are fundamental to the citizen should be reserved for the legislative power. 33 At least in the area of ​​the exercise of fundamental rights, the legislature should be obliged to comply with all essential BVerfGE 96, 375, 394. BVerfGE 40, 237, 249: The decision on all fundamental questions that directly affect the citizen must be made by law.

20 20 Hans-Joseph Scholten having to make decisions yourself. 34 If this idea were to be applied, constitutional concerns would arise against the approval of active direct euthanasia in Germany, at least if the application of the justifying state of emergency is not limited to extreme exceptional cases, but should, as in the Netherlands, give rise to a practically significant change in euthanasia practice Obligation of the state to protect the fundamental right to life From the point of view of German constitutional law, the questions that arise with regard to the protection of fundamental rights are even more virulent. Because in this respect it is not only about the limits of the legal interpretation, but also about those that are set for the legislature. It is true that there should be no constitutional insurmountable limits to the permissibility of killing on request. 35 Because Article 2, Paragraph 2, Sentence 1, 1st alternative of the Basic Law guarantees a right to life, but not an obligation to live. And the requirement laid down in Article 1, Paragraph 1 of the Basic Law, to respect human dignity, is now h. M. does not oppose the killing of a sick person if it only serves to shorten the suffering, the imminent death of the patient seems inevitable and if the killing corresponds to the recognizable or presumed will of the patient. 36 On the other hand, since the decisions of the Federal Constitutional Court on the termination of pregnancy (218 StGB) 37 it has been clear that the state must, if necessary, guarantee the protection of life by means of criminal law. He can only lift or restrict a ban on killing if this is justified. And in principle he has to take all precautions so that the exceptions remain limited to these justified cases. With regard to the criminal liability of active direct euthanasia, this means: Even the German legislature could hardly limit itself to a change in the law that generally declares the end of life to be permissible at the request of a sufferer. Rather, in order to protect the sick and dying, he would have to examine what precautions should be taken so that active and direct euthanasia is actually limited to those cases in which one can speak of a free decision by an intolerably suffering person. This obligation applies to the state in particular because a sick person and sufferer BVerfGE 61, 260, 275; 77, 170, 230 f .; 98, 218, 251; Jarass / Pieroth, GG, 5th edition Munich 2000, Art. 20 marginal note 46 with further details. See Jarass / Pieroth, GG, 5th edition, Munich 2000, Art. 2 marginal note 71: no fundamental right to legally prohibit active euthanasia; a. A. noch Otto, Expert Opinion on the 56th DJT, Munich 1986, Vol. 1, D 13 ff., 90. Cf. Zippelius in: Bonn Commentary on the Basic Law, Heidelberg Loseblattsammlung, Art. 1 marginal note 96; Schulze-Fielitz in: Dreier (Ed.), Basic Law Vol. I, Tübingen 1996, Art. 2 Para. 2 marginal note 43 with further references; a. A. v. Mangoldt / Klein / Starck, GG, 4th edition 1999, Art. 2 Para. 2 marginal number BVerfGE 39, 1 ff, 36 .; 88, 203 ff., 251 ff.

21 The right to a dignified death 21 is helpless and can easily be influenced in his will-making. It must therefore be prevented that in this emergency situation secondary interests, such as that of the heir in having quick access to the patient's property, that of the nurse in being free from an almost unbearable burden, or that of the doctor on an undisturbed weekend, determine the time of death Little control Measured against this understanding of fundamental rights, Dutch practice raises questions. There are only a few precautions to control the doctor's decision. The most important is the need to call in another colleague to examine the patient and also to form an opinion about the patient's state of health and the seriousness of his death wish. In addition, it is the obligation to document and disclose the decision-making process that is intended to prevent abuses. After all, it is the high medical ethos and a health system that promotes stable and lasting doctor / patient relationships through the so-called family doctor principle, which should offer the individual sufficient protection even in the dying phase the Netherlands is based on a different understanding of the role of the relationship between the legislature and the judiciary in a democratic constitutional state. It is hardly conceivable that the German courts, when interpreting the applicable law, could decide to take the patient's wishes into account as far as the High Council has outlined, despite the comparable range of criminal law instruments. But not only for the courts, but also for the legislature, the scope for action prescribed by the constitution should be more narrowly defined in Germany than in the Netherlands. The German legislature could give greater weight to the right to self-determination and grant the request to kill justifiable power, but would then have to take precautions to make such a killing practice controllable and to ensure that it remains limited to these cases. It seems doubtful to me whether he would be able to give doctors as much leeway as the Netherlands does. However, it must be admitted that the attempt made here to positively influence the quality of medical action through public discussion, training and the provision of advice and help could prove to be a more effective means of protecting life than deterrence.

22 22 Hans-Joseph Scholten 5. Reasons for rejecting the Dutch model If the German constitution does not exclude the admission of active direct euthanasia de lege ferenda per se, what are the reasons that keep the German legislature from giving doctors the scope for action by a statutory To enlarge the new regulation and to meet the wish of the German population for greater autonomy in the dying phase 38? Finally, some of the main arguments that speak against adopting the Dutch model from a German point of view will be critically reviewed. The possibilities of palliative medicine are sufficient. The first argument is factual in nature. It consists in the assertion that direct killing is not necessary because the means of palliative medicine were sufficient to make the suffering of the dying man bearable to the end. The lawyer is completely unable to assess the validity of this argument. At least he finds indications in the literature that there could be cases in which medicine too has come to an end and nothing remains but pity and the wait for an early end. 39 It should be decisive how the unbearable suffering is to be determined. If one understands the ailment as a purely subjective category, it is easy to imagine that patients will still see their condition as unbearable, even if, according to medical insight, at least the physical pain should be overcome. The limited scope of this argument becomes even clearer when one considers the cases in which the patient is using certain pain relievers, e.g. expressly rejects it because of the associated clouding of consciousness. In fact, Dutch doctors also cite the loss of independence, the impairment of consciousness and the desire for a humane ending as elements that (co-) determine the unbearability of suffering. Euthanasia in the 3rd Reich The second argument is of a legal historical nature. There is a reference to the fact that under the term euthanasia, a killing practice has already been established in Germany that had little in common with respect for the right to self-determination and the guarantee of dignified dying. The National Socialist euthanasia program On the results of opinion polls in Germany see H.-G. Koch, State Report of the Federal Republic of Germany, in Eser / Koch, materials on assisted dying, Freiburg 1991, 71 f .; also in: Illhardt / Heiss / Dornberg (eds.), Euthanasia, acting or omitting, Stuttgart; New-York 1998, 137, 138 with further details See, for example, Otto, Expert Opinion, Negotiations 56. DJT, Vol. I, Munich 1986, D 58 ff.

23 The right to a dignified death 23 lists had its roots in social Darwinian and utilitarian ideas that were widespread not only in Germany but also in other countries at the beginning of the last century. 41 The destruction of life unworthy of life could only flourish in an intellectual climate in which the norms and values ​​of Christian ethics and the equality theories of the Enlightenment were denied and the individual ranked behind the species in terms of value. It is precisely this otherness of the object and its framework conditions that does not allow a comparison with euthanasia in the Netherlands. And yet it is the shuddering of one's own past that must impose particular restraint on not only lawyers but also the medical profession in Germany with regard to relaxing the ban on killing The dam breach argument The third argument is that of the so-called dam breach effect or, as it is also called, the argument of the inclined plane. 42 Tröndle has asserted that no objection is more important. 43 Indeed, the dam breach argument expresses the fear that a further restriction of the ban on killing could permanently damage the protection of life. The approval of active and direct euthanasia would only be the first step on the way to the willful killing of additional groups of people. In case of doubt, this time it would not be social Darwinist but economic considerations that decided the time of death. The lethal injection is cheaper than palliative medicine that combats the symptoms without being able to master the cause. After all, the patient's desire to die does not offer a safe limit either, because it is easy to manipulate and, at its core, is just a cry for help. Even with many non-lawyers in Germany, the fears are the main reason for rejecting a border shift. Alone; First of all, they only describe development opportunities, but not the requirements and conditions for their occurrence. 44 In fact, the dam-break argument can only gain weight from a scientific point of view if evidence can be named which, against the background of a sociologically plausible theory, prove that the perceived dangers occurred.Cf.Regional toetsingscommissies euthanasie, Jaarsverslag 1998/1999, Den Haag 2000 , 11. Cf. B. Gordijn, The Debate on Euthanasia in the Netherlands and Germany A Comparison from a Historical Perspective, in: Bert Gordijn / Henk ten Have (Ed.) Medical Ethics and Culture, Stuttgart-Bad Canstatt 2000, 303, 319 ff B. Guckes, The argument of the inclined plane, Stuttgart H. Tröndle, Why is euthanasia a legal problem ?, ZStW 99 (1987) 25 ff .; Reprinted in Odersky (ed.), Herbert Tröndle Answers to Basic Questions, Munich 1999, 205, 219. Add. Herzberg, NJW 1996, 3043, 3045, with reference to Hegselmann, Moralical Enlightenment, moral integrity and the crooked path, in: Hegselmann / Merkel, On the Debate on Euthanasia, 1991, 208.