Autonomy – A leading principle in the end-of-life decision making?

Abstract

Objective: The objective of this paper is to introduce some of the most specific legal regulations on informed consent and patient’s will and to show the limits of the recognition of patient’s autonomy, especially as the end-of-life issues are regarded. Autonomy of a competent patient is often presented as an overwhelming argument in the end-of-life debate, regardless whether in the context of life termination on request or in the decision making about withdrawal or withholding of the treatment.

Despite of the general opinion, that decriminalization of life termination on request is legitimately based on the respect for the patient’s wishes to die, even in the world most liberal end-of-life law of Benelux countries the legal concept seems to be built in a considerably different and more sophisticated way, as it does not solely rely on the request of the patient to be administered the lethal dose.

Basically, the will of a competent patient to be let die is to be understood as a reason for the doctors to omit the further medical treatment, even if this omission leads to death of the patient. To the contrary, no actively caused death, as well as actively caused grievous injuries which are not a result of an acknowledged proper treatment, can be pleaded lawful with the reference to the consent of the patient.

With this paper, the extent of exercising patient’s autonomy concerning the specific law on euthanasia in some European countries was examined to show on these examples the perhaps too overestimated factual impact of the autonomy principle in the medical law.

Methods: Whilst comparing the most liberal legal systems in the world (among others the Swiss and Dutch ones) in which either life termination on request and/or assisted suicide was conditionally decriminalised, a critical analysis was performed to show to what extent and under which circumstances represents the will of a competent patient a defence to a doctor who provided the patient with life termination on request or assisted suicide or let the patient die.

Results: According to the analysis, in no legal jurisdiction in the world the will (incl. consent and request) of the patient as such can serve as a full defence; for decriminalisation of the life termination on request or assisted suicide the fulfilment of other criteria must be reached.

Conclusions: Although the will of the patient can with no doubt be understood as a conditio sine qua non for decriminalisation of life termination on request and/or assisted suicide, without being accomplished with other legal requirements it cannot be pleaded as full defence. Therefore, as the area of end-of-life decision making is concerned, the primacy of principle of autonomy should not be automatically taken for granted.