(Model) Professional Code for Physicians in Germany

The (Model) Professional Code ("(Muster-)Berufsordnung für die in Deutschland tätigen Ärztinnen und Ärzte“) was resolved in 1997 at the 100th German Medical Assembly and has ever since been amended several times in the light of ethical and legal shifts. The most recent version that became effective is the resolution of the 124th German Medical Assembly of May 5, 2021. The (Model) Professional Code maps the legal and ethical fundaments of the medical profession and serves as a model for the respective medical associations’ professional codes. These contain regulations regarding, among others, obligations within the professional practice as well as regarding education and the safeguarding of medical independence. The (Model) Professional Code thus contributes to a nationwide as consistent as possible development of the professional law that, whereby the professional code is being dealt with as ordinance law, that is being enacted on the base of the Medical Professions Chamber Act ("Heilberufe-Kammergesetz”) of the respective federal state by the state chamber of physicians.

The (Model) Professional Code „presents the beliefs of the medical profession regarding the conduct of physicians towards patients, colleagues, other partners of the healthcare sector as well as regarding the conduct in public.” In Act 1, concerning the tasks of physicians, it reads under (2) „The task of physicians is to preserve life, protect and restore health, alleviate suffering, support the dying and participate in the preservation of the natural foundations of life with regard for their importance for human health.” Further on, in Act 7, concerning the treatment principles and rules of conduct, it reads „Any and all medical treatment must be provided in such a way that human dignity is preserved and the patient's personality, will and rights are respected, particularly the right for self-determination. The patient’s right to refuse recommended examination and treatment measures is to be respected.” Hence, the right for self-determination is here interpreted in relation to refusal of certain measures, but not in relation to demand of certain measures.

Act 16 focusses on "Support for the Dying” and was given a more tightened formulation in 2011. Where it previously read „Doctors must not actively shorten the life of the dying person”, the version from 2011 then reads „Physicians must support the dying while preserving their dignity and respecting their wishes. They are forbidden to kill patients upon their request. They are not allowed to provide assisted suicide.” In reaction to the decision of the Federal Constitutional Court of February 2020, following the 124th German Medical Assembly, Act 16 was altered again and sentence three, „They are not allowed to provide assisted suicide.”, got repealed. Thus, Act 16 currently reads: „Physicians must support the dying while preserving their dignity and respecting their wishes. They are forbidden to kill patients upon their request.”

The wording of sentence three became subject of dispute for legal and medical professionals and was declared unconstitutional in April 2012 by Berlin’s administrative court, as it would fail to give physicians enough of the necessary scope for discretion. „It reflects the prevailing opinion that Act 16 sentence 3 of the (model) professional code in its previous version cannot be maintained for constitutional reasons”, so the medical parliament justified their decision. It is however on the chambers of physicians of the federal states to take up the wording in their statutes and thus make it legally effective.

Deviations of Act 16 in the Professional Codes of the State Chambers of Physicians

The majority of the 17 State Chambers of Physicians adopted Act 16 in their respective professional codes as formulated in the revised version of 2021. Five of the State Chambers of Physicians, however, did not take over sentence 2, „They are forbidden to kill patients upon their request”, and included only sentence 1, „Physicians must support the dying while preserving their dignity and respecting their wishes.” Solely, Saarland’s State Chamber of Physicians extended sentence 2, with the following amendment: „They are forbidden to kill patients upon their request. Act 1 Subsection 2 remains unaffected.”

Statement by the German Association for Palliative Medicine concerning the draft laws on the complex of issues of assisted suicide and suicide prevention in relation to humans in palliative illness situations

In November 2022, the board of the German Association for Palliative Medicine (DGP) published a statement that took a critical look at the draft laws presented and rejected them in its conclusion, primarily due to the under-complex understanding of individual treatment processes. Generally, it is being questioned whether a legal regulation of assisted suicide could be expedient at all or whether there are alternative accompanying measurements that could more appropriately reflect the fundamental right to seek assistance with suicide, which was confirmed by the Federal Constitutional Court’s decision of February 2, 2020. These questions emerged also because the current legal situation allows the practice of this fundamental right.

The DGP criticises the presented drafts on the one hand for the inadequate representation of the relationship level between the person providing assistance and the person willing to commit suicide as a prerequisite for assisted suicide. The legal argumentation used in the drafts does not reflect the reality of the medical perspective, in particular of palliative care: „By reducing the end of life to a "legalisation" (analogous to the term "medicalisation"), the risk arises that assisted suicide is degraded to a formal administrative act of a service to be initiated and the special circumstances of the situation of a seriously ill person who is willing to die become insufficiently considered." The normalisation and standardisation of assisted suicide would stand in contrast to the complexity and individuality of the relationship level and the dialogue-based struggle for the "best option“ and would run the risk of simplifying and shortening them.

On the other hand, the Federal Constitutional Court's requirement of an "autonomously formed free will", an "inner stability" and a "certain permanence" is criticised for being vague legal terms that are subject to a high degree of subjective consideration and assessment.

The statement of the DGP concludes, that the current legal situation signifies a maximum of freedom and self-determination for those concerned as well as for professionals, which entails a great level of responsibility and role conflicts for physicians. This could however present an acceptable or even necessary imposition since the assistance with suicide involves also a personal commitment. According to the DGP, „the impulse, to end one’s own life can solely originate from the person concerned, but not from the physician, as there exists no medical indication to bring about death.” Therefore, assistance with suicide could not be a medical task with a defined procedure catalogue, as it lacks the objectifiable definition of treatment goal as well as of the indication.