Withdrawal of Life-Sustaining Treatment and Life Protection

• Applicant: Dr. Grischa Merkel
• Subject Area: Criminal Law
• Term: Funded in 2020
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 446840645

The manuscript covers criminal as well as ethical legal aspects of the withdrawal of life-sustaining treatment. The withdrawal of treatment is not, as usually, assigned to a single crim-inal doctrine. Rather, it is divided into different cases considering the stage of the disease in which treatment is withdrawn as well as the constitution of the patient, and his ability to judge and feel. Therefore, in the case of a mentally incapable patient who is still able to experience bodily harm, a withdrawal of life-sustaining treatment might under specific conditions be jus-tified by an emergency reason. Whilst in the case of a mentally capable patient as well as in the case of a former mentally capable patient, who is in possession of a patient decree, the withdrawal of life-sustaining treatment can be regarded as an act of suicide with the support of a doctor, serving only as a medium. In the process, the active causation of the patient’s death on the one hand, as well as the new law forcing the doctor not only to respect the actual patient’s will, but also to apply the patient decree, on the other hand, are emphasized. The particularity of this model is, that not only the idea to implement the legal construction of in-direct participation is addressed. To make sure, the patient’s will is sufficiently intense, also the requirements of the illegal but mitigating killing on demand (euthanasia) are integrated in the concept, delegating an obviously unreasonable decision of the patient back to himself or at least preventing the immediate realization of this decision. Regarding patients in a vegetative state with probably permanent loss of consciousness, another entirely new approach is pre-sented: By saying that the right not to be bodily harmed is more important for these patients than the right to live, the patient’s will must still be respected. However, in this “postsensual” condition the patient’s will can be construed by related persons without harming the patient.

• DFG Programme: Publication Grants