Decision-making at the end-of-life and the incompetent patient: a comparative approach.

In contrast to the situation in the Netherlands and Belgium, the legislatures in both England & Wales and Germany have not recognised that active euthanasia may be lawful in any circumstance. Nevertheless, the courts in both jurisdictions have held that passive euthanasia, that is the withdrawal or withholding of life-prolonging treatment, is perfectly lawful; indeed it will often constitute good medical practice. This article adopts a comparative approach to assessing the manner in which decisions to withdraw or withhold life-prolonging treatment are made in relation to previously competent patients without a legally effective advance directive or a proxy decision-maker, considering the approaches adopted by the courts in England & Wales and Germany: the best interests and 'presumed will' approaches respectively. Due to the inherent drawbacks associated with each approach it is concluded that the best way forward would be for both jurisdictions to adopt a mixed approach, allowing the autonomy model to temper the best interests approach, recognising that the patient is an individual rather than simply an object of concern.