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LYTVYNENKO ANATOLIY ANATOLIYOVYCH

DOI: https://doi.org/10.25040/medicallaw2020.01.057

Med. pravo., 2020; 1(25): 57-92

UDС:

LYTVYNENKO ANATOLIY ANATOLIYOVYCH

PhD student in Law at Robert Gordon University of Aberdeen

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 concern-
ing prohibition of blood transfusion on basis of religious beliefs in a
series of trials in the 1960s, though the issue of death was not strin-
gently 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 sug-
gesting 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.


Key words: withdrawal of treatment, informed consent, passive
euthanasia, living will, healthcare proxy, patientenverfügung, il
testamento biologico, treatment termination.

07.08.2020.

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