25 Jun, 10 | by Iain Brassington
German courts have today ruled that it is legal to withdraw lifesaving treatment with consent. According to Deutsche Welle,
Germany’s highest criminal court has ruled that passive assisted suicide is legal if the patient has explicitly decreed his or her wish that treatment used to keep the patient alive should be terminated.
“Turning off a ventilator or cutting a feeding tube fall under the category of permissable forms of terminating treatment,” judge Ruth Rissing van Saan said.
The DW headline refers to this as confirming the legality of passive assisted suicide; the BBC, in its coverage, refers to it as having legalised euthanasia with consent. As far as I can tell, both organisations are wrong. This, from the reports available at the moment, is not clearly euthanasia. At most, it’s about resolving a question concerning whether an advance directive refusing treatment should stand. Unless you think that withdrawing treatment at the request of the patient is de facto euthanasia – and it isn’t - then this is not euthanasia.
Now, it is, of course, possible that the patient refuses a treatment so that he or she can die. But for an action to be euthanasia, the intention of the person bringing about the end of life has to be to kill. An HCP who accedes to a refusal of treatment – either contemporaneously or by AD – does not thereby necessarily intend to kill. It could be a matter of regret for the HCP in question that death will result; the HCP could coherently withdraw the treatment and hope for the patient’s miraculous survival - and this would be enough to demonstrate that we aren’t dealing with euthanasia, since you can’t set out to kill someone and hope that they don’t die. The primary intention would be to accede to the refusal.
(I’m not sure what the position is in German law, but it’d be untenable under English law to suppose that anyone who withdraws competently-refused life-preserving treatment is thereby committing euthanasia. Somewhat unfashionably, I’d even deny that they were killing – but I know I’m a rarity in thinking that there’s moral mileage in the killing/ letting die distinction.)
Pretty much the same seems to apply in respect of the “assisted suicide” interpretation: for sure, a patient may sometimes refuse treatment primarily as a means to die; but an HCP who accedes to the refusal has assisted a suicide in only the most etiolated sense – not in any morally meaningful way.
Once again, there seems to be scope for all kinds of controversy to be generated thanks to infelicity, or carelessness, in the use of language.
UPDATE: Udo Schucklenk comments here.
UPDATE 2: The more I think about it, the more puzzled I am about what passive assisted suicide might be. Not intervening to prevent a suicide seems about the strongest I can come up with. But it doesn’t seem like much…