title: [Physician assistance in dying or help to die--a line of legal demarcation (from the lawyer's perspective)].
abstract: The definition of the legal prerequisites for the permissible withholding/withdrawal of medical treatment, the limits to a physician's obligation to provide medical care as well as the differentiation between the aiding with suicide, which is exempt from punishment, and the punishable termination of life upon request or failure to render assistance is actually one of the most difficult medico-legal, professional-ethical, human, ideological and moral problems. The numerous views and opinions expressed are varying accordingly so that the call for legislative action comes as no surprise. Nonetheless, legal practice has provided clarity for a large number of aspects. The life of a human being scores the highest on the value scale of the Basic Law (GG) of the Federal Republic of Germany; the right to self-determination is of particular significance. It does not imply the "right to suicide", though, but suicide--and the participation in it--is not subject to punishment. But if the physician exercises control over the act ("Tatherrschaft") he is required to provide all necessary and reasonable life-saving assistance. There is general consent that assistance with dying by way of intentional killing (active direct euthanasia) is a crime whereas palliative treatment of the terminally ill while accepting the unintentional and inevitable side effect of hastening the patient's death is justified (so-called indirect euthanasia). The so-called passive euthanasia which is characterised by withholding/withdrawing treatment measures is associated with the most difficult problems. In this context the permissible ,,assistance in dying", i.e., the actual euthanasia, has to be distinguished from ,,help to die", that is, euthanasia in a broader sense, as the Federal Supreme Court (BGH) correctly pointed out in its leading decision (BGHSt 40, 257 et sqq.). Within this differentiation the advance directive is of particular importance since only subsidiary reference may be made to the ,,presumed will or consent" of the patient and, if this cannot be identified, to "general values" for the physician's decision-making. If the patient's will or the general values cannot be identified unambiguously, the protection of life must take priority with the patient's physician, his relatives or his guardian, unless there is no medical indication for the respective treatment procedure.
authors.affiliation: Ulsenheimer@uls-frie.de
authors.forename: Klaus
authors.initials: K
authors.lastname: Ulsenheimer
mesh_terms: D004992:Ethics, Medical; D005858:Germany; D006801:Humans; D007258:Informed Consent / Q000331:legislation & jurisprudence; D010817:Physician-Patient Relations; D011678:Punishment; D013405:Suicide / Q000331:legislation & jurisprudence; D017236:Suicide, Assisted / Q000331:legislation & jurisprudence*