The Semantics of Autonomy, the Pathos of Decision, and Dispositifs of Representation at the End of Life

Abstract

This article examines the slightly changing legal and ethical situation in Germany around so called end-of-life-decisions. Representation plays the complex role here of a ‘dispositif’ in the Foucauldian sense. Living wills first came into use 40 years ago: a very personal choice (how do I want to die?) could now be transferred to a proxy decision-maker. Some years later, various forms of presumed agreement gained acceptance, and today even merely hypothetical consent has become conceivable. Representation increasingly ceases to be representational at all. At the same time, concepts from Civil Law (Autonomy, Decision) have finally absorbed an older way of thinking that was based in Criminal Law. Beyond a biopolitical shift, according to the author’s thesis, these changes also correspond to a juridical shift.

Keywords:

• autonomy
• assisted suicide
• bioethics
• biopolitics
• critical legal studies
• end of life decision(s)
• euthanasia
• informed consent
• living will
• patient autonomy

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).

Notes

1 It is clear that the topic (and thus also the legal concept) became popular in the United States about one decade earlier. This fits well with development of biomedical ethics (and its corresponding legal concepts) in the US and Great Britain in the 1970s, and with its adoption in the German-speaking world starting in the mid 1980s.

2 Cf. BGHZ (Entscheidungen des Bundesgerichtshofes in Zivilsachen [Decisions of the German Federal Court of Justice in Civil Matters]), reference XII, ZB 2/03.

3 BGB (Bürgerliches Gesetzbuch [German Civil Code]), §1901a.

4 The legal requirements disregard the guardian’s potential self-interest, for example when the guardian is also the patient’s heir, which is not a rare case. I find this remarkable.

5 Cf. “Grundsätze der Bundesärztekammer zur ärztlichen Sterbebegleitung” (Basic principles of the German Medical Association for terminal medical care), Deutsches Ärzteblatt 108 (2011): A 346-A 348, A 347.

6 Cf. BGHSt (Entscheidungen des Bundesgerichtshofes in Strafsachen [Decisions of the German Federal Court of Justice in Criminal Matters]), 35, 246ff., 249.

7 I can only refer to anecdotal knowledge (personal information provided to me by the people concerned). In the state of North-Rhine-Westphalia, I have been informed of numbers in the three-digit range.

8 BGHSt (decisions of the German Federal Court of Justice in Criminal Matters), September 13, 1994, 40, 257 ff.

9 OLG (Oberlandesgericht [Regional Superior Court]) Frankfurt am Main, JuS (Juristische Schulung), 1998, 1062 f.

10 Cf. Johannes Wessels, Werner Beulke, and Helmut Satzger, Strafrecht Allgemeiner Teil. Die Straftat und ihr Aufbau [Criminal Law, General Part. The Criminal Act and its Structure], 47^th ed. (Munich: Beck, 2017), §9, marginal number 384a and §11, marginal number 580ff.

11 Rather, hypothetical consent was introduced to mitigate errors in the information that is supposed to be provided to patients; claims for damages were only supposed to be possible if it could be proven that the patient “would not have consented if he or she had been properly informed”; cf. Scarlett Jansen, “Die hypothetische Einwilligung im Strafrecht. Notwendiges Korrektiv oder systemwidriges Institut?“[Hypothetical Consent in Criminal Law. A Necessary Corrective or an Institution Incompatible with the System?], Zeitschrift für das Juristische Studium 6 (2006): 482–95. For further references see p. 483.

12 Cf. Jansen, “Die hypothetische Einwilligung,” 483: “In criminal law, the refutation of hypothetical consent is more difficult than in civil law. This makes the transfer of the legal concept dubious”; if hypothetical consent is deemed a justification, “there would be a danger that presumed consent” (for which there are more stringent legal requirements) would be “supplanted” – and moreover: “There is no retroactive allowance for hypotheses in criminal law, it is completely incompatible with criminal law” (492).

13 Jansen explicitly warns against this “danger” (cf. Jansen, “Die hypothetische Einwilligung,” 492).

14 To protect the people concerned I restrict myself to the information that it happened around 2010 in the state of Hessen. It can be assumed that in Germany there are a considerable number of such unreported stories.

15 Cf. Petra Gehring, “Tod durch Entscheiden” [Death by Decision], in Welchen Tod stirbt der Mensch? Philosophische Kontroversen zur Definition und Bedeutung des Todes [What Death Do Humans Die? Philosophical Controversies Surrounding the Definition and Meaning of Death], ed. Andrea M. Esser, Daniel Kersting, and Christoph G. W. Schäfer (Frankfurt am Main: Campus, 2012), 181–98.

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Petra Gehring

Prof. Dr. Petra Gehring, *1961, holds the Chair for Theoretical Philosophy at Technische Universität Darmstadt, Germany.