Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm explain which consulting obligations the private health insurance and, if applicable, also brokers have with regard to euthanasia.
There is a chance for contribution reductions in private health insurance through euthanasia: If the UN does not waste its assets on pointless treatments, even in the hope that it can be helped, the heirs can claim compensation from the broker or the board of directors if the UN would have used legal medical euthanasia if it had given proper advice. If sufficiently clear clarification was provided, the UN would also have made an appropriate decision.
Objectively, many policyholders who today demand high benefits from their private health insurance will then choose a safer, more comfortable and cheaper alternative. The private health insurance should also contribute to an appropriate decision by pointing out the lack of a reimbursement obligation for measures without a medically indicated therapeutic goal. In addition, especially in the low-interest phase, this would have the advantage of saving benefits for those insured with private health insurance and thus mitigating premium increases.
Duty to advise on the risk of necessary euthanasia
Brokers should ensure that VR provides appropriate services for legal euthanasia. The highest benefits in private health insurance are accrued shortly before death. Many PKV-VRs also offer the service of providing proof of suitable doctors and arranging appointments – this should then also be possible in the case of medical legal euthanasia, if necessary abroad.
Aiding and abetting suicide with impunity?
The mediation of euthanasia, which is legal abroad but illegal in Germany, may be punishable by law. But: If the private health insurance is obligated to provide services for treatment that is only legal abroad, the question arises whether it then still has an obligation to advise on the scope of services, as does the broker, and to what extent this then applies. The legislator regulates in § 217 StGB since 10.12.2015:
“Anyone who, with the intention of encouraging the suicide of another person, gives, procures or arranges for the suicide of another person, with the intention of promoting the suicide of another person, shall be punished by imprisonment for up to three years or by a fine”.
It remains to be seen whether this regulation is unconstitutional.
Punishable businesslike promotion of suicide?
The German Medical Association explains in an information sheet dated 20.01.2017:
“Promotion of suicide is present if the act enables or substantially facilitates the suicide of another. The only thing that matters here is the act of encouragement. Whether the suicide is actually carried out or attempted by the person concerned is irrelevant here. Examples are the provision of a suitable room for the suicide (Granting), the prescription of a fatal medication (Procuring) or the establishment of a concrete contact, e.g. with a suicide helper in Switzerland (Providing an opportunity for suicide).
Cross-border suicide promotion by a foreign private health insurer would also be punishable if the consultant abroad is or becomes German, § 7 II StGB.
Impunity talks about suicide and treatment restrictions
This is different from discontinuing treatment and restricting treatment “by dispensing with or reducing life-prolonging measures”, palliative care and terminal care. Such legal intentions must be documented by medical and private health insurance consultants. Communication about suicide is also unpunished if it is not aimed at “promoting suicide” – but at best promotes the development of a treatment concept.
Accordingly, private health insurance in Germany could develop the concept of sedation (artificial coma) to prevent pain when artificial nutrition is prohibited (permitted treatment limitation) and promise benefits in return, also with the indication that treatment with artificial nutrition that only prolongs life and possibly also prolongs suffering would no longer be paid for. If necessary, it could also compare this with active euthanasia, which is only legal abroad, for information purposes, if necessary with brochures (including contacts) of corresponding foreign organisations, with the aim that the patient may prefer to choose the legal variant in Germany on the basis of this information.
This would be a win-win situation for everyone involved: for all those who leave painlessly in time, those who stay, the heirs, the other insured persons who inherit the ageing reserves and the private health insurance.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published on 13.09.2017)
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About the author
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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