Discussion with lawyer Dr. Johannes Fiala
There is a peculiar dilemma in Western countries at the moment: On the one hand, we do not let people die by taking life-prolonging measures through machines or feeding tubes. This prevents the soul from leaving the body. In doing so, we are not prolonging life, we are prolonging death. On the other hand, essentially positive media coverage of active euthanasia (the killing of the seriously ill), as practiced in Holland or Switzerland, suggests a dam breaking.
The spread of the Swiss euthanasia society Dignitas in major German cities, which enables numerous German patients to receive euthanasia via the detour of Switzerland, is to be seen as an indirect introduction of euthanasia in Germany. Due to the ageing of our society and the nursing emergency with the increasing need for care, our entire health and care system will be faced with enormous cost avalanches, which will inevitably lead to a collapse.
The high costs at the end of life will then no longer be affordable. Already thousands and thousands of people are vegetating in institutions because we won’t let them die. The way society deals with this sensitive issue will determine in the future whether it will still be possible to die with dignity. Only a sensible legal regulation of living wills can solve this dilemma. Unfortunately, politicians have ignored this problem for too long.
Dying has to do with personal responsibility, as we have to deal with ourselves at the end of life. That is why it is extremely important to deal with dying at an early stage in order to form a point of view. This affects each and every one of us, and that is why we can no longer look the other way in the upcoming discussions about living wills. It can only be a question of a patient’s individual will deciding how he or she wants to die.
It was found that handwritten dispositions were the most likely to be recognised. All of this requires a comprehensive examination of what happens in the dying process. Living wills should be legally protected. Uniform forms and content need to be established, and a register of individual patient wills needs to be created. Only then is it guaranteed that in the event of a serious illness, where the individual can no longer make decisions, the previously established individual will will come into effect. Because of the current difficult legal position of the living will, I had a conversation about it with the Munich lawyer and precautionary specialist Dr. Johannes Fiala (www.fiala.de).
Jakoby:
How can it be explained that hospitals time and again go against the will of the relatives and do not let a person die?
Fiala:
A doctor lectured on the subject at a church last year. There he said that the legally insured patient does not need an advance directive, because only the privately insured earn so much money that there is an interest in prolonging life as much as possible. Obviously, this is about economic aspects, less about human dignity.
Jakoby:
Not taking in food and liquids is a quite normal side effect from the beginning of the dying process. How can I prevent the dying process from being artificially delayed, for example by a tube?
Fiala:
Effective protection can only be achieved through a bundle of measures, on the one hand through legal arrangements (patient’s will, health care proxy, mandate for end-of-life care) and on the other hand through financing of enforcement. So as a sufferer I need other people to help me, a social network – especially for one-person households it is important to have people you trust. If the trusted person has the necessary powers of attorney, he or she can also instruct a lawyer to enforce the wishes of the person concerned. If necessary, an outsider must seek judicial assistance, but if the good friend has no powers of attorney and no war chest, enforcement will be very difficult.
Jakoby:
Is there a reason for doctors to oppose dying or living wills, that is, to prolong life?
Fiala:
Yes, because the boundary between prohibited active euthanasia, permitted passive euthanasia, prohibited omitted assistance, are not always clearly separable in practice. In this respect, the doctor is always exposed to a particular risk under criminal law. The legislature has not yet solved these problems for the medical profession. A look abroad, e.g. to Switzerland, Holland or England, shows that there are completely different possibilities. More freedom in dealing with life, however, also means more responsibility on the part of all involved.
Jakoby:
The conversation in the hospice and hospital shows again and again that hardly anyone knows about the possibility of a deposit at a register – and thus no one comes to the idea to ask for there deposited orders.
Fiala:
There are various options for depositing the different dispositions (patient’s will, caregiver’s disposition, health care proxy, etc.). An investigation is a hassle and, in case of doubt, creates problems for the institution to have to deal with: Thus, the interest in investigation goes towards zero. Here, too, the personal “social network” is therefore urgently required, and, if necessary, a lawyer is also shortlisted for appropriate tasks. In addition, doctors like to ignore living wills, for example, because they become worthless with increasing age: The patient had not been able to foresee the course of the disease, he had not been able to have a legal or medical overview of his decision. Without the signature of the professional lawyer and specialist, such doubts may be justified. The use of forms can also be a disadvantage, so that an individual design of the content has much more weight.
Jakoby:
A normal stay in hospital can lead to the soon to die patient first being transferred to a closed mental hospital to be “adjusted” with psychotropic drugs. This then practically blocks the way out of the hospital into a hospice. Instead of human attention, the focus is then probably more on saving time or making it easier to care for patients. Can such an “automatism without human dignity” be prevented?
Fiala:
For the judge who approves a closed placement, a doctor’s opinion is sufficient. The “non-medicated patient” costs more time for care and therefore more money. On the other hand, even before and during the dying process, the shaping of the future can be strongly influenced in conversation by persons close to the deceased. In practice, therefore, a legal dispute is often not necessary if the provision has been arranged in a sufficiently intensive economic and human manner. Of course, it may also be the case that an admission to a closed psychiatric ward must be immediately fought as unlawful, so that the path to hospice is once again available.
Jakoby:
How can the patient’s personal responsibility be strengthened?
Fiala:
Only through provision can this be personalised. The persons of trust must have the necessary resources for shaping and influencing. The citizen can also create the economic conditions, for example by setting up his own trust foundation, a provident fund or a solidarity fund. In good times, people can part with financial resources that can benefit them again later. If the case of nursing care has occurred and the income from pension with nursing care insurance is not sufficient, no support for a particularly dignified dying process may be expected from health insurance and social welfare office.
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About the author
Dr. Johannes FialaPhD, MBA, MM
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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