[Wife against advance directive: a case-inspired legal and ethical clarification]. / Ehefrau contra Patientenverfügung: eine kasuistisch inspirierte rechtliche und ethische Klärung.

ABSTRACT

Advance directives and durable powers of attorney are two increasingly used tools for patients' precedent autonomy; however, their combined use, as recommended by major institutions in Germany, might in reality result in various discrepancies between the wording and interpretation of the directive and the surrogate's understanding of the patient's relevant will. In one of the possible conflict constellations, the surrogate wants to overrule a relevant and unambiguous advance directive by reference to a privileged access to the patient's "real" treatment preferences or the presumed will of the patient. Such cases, which must be strictly distinguished from cases with real or alleged leeway for interpretation in the advance directive, can lead to normative uncertainty as well as to substantial psychological distress for all persons involved. Based on an exemplary real clinical case from 2015 (which did not go to court) legal, ethical and pragmatic aspects of the described constellation are discussed. Ethically, caution should be exercised against a relapse into a masked treatment paternalism, which currently seems to be partly caused by judicial exegesis.