Dignity and the individual in end-of-life decisions: A comparative analysis of the role of dignity in centring decisions upon the individual in English and German law

Abstract

In the wake of the Aintree judgment in 2013, which attributed greater weight to the individual’s wishes and feelings in best interests assessments, the English courts have attempted to interpret the individual-centric aims of the test under an ageing Mental Capacity Act 2005. In the jurisprudence of the Court of Protection, spearheaded by Hayden J, human dignity has emerged as the principle to which the judiciary has turned to explain and guide their implementation of individual-centric decision-making processes, but its effective use requires a more profound understanding of its meaning.

Germany, on the other hand, has extensive jurisprudence on dignity, which acts as the foundational, organising concept of the Grundgesetz. It also steers the presumed will substituted judgement decision-making framework which accords significant weight to the individuals’ wishes and feelings. It provides for fruitful comparative analysis to demonstrate how human dignity can inform the individual-centric approach under the MCA and the reforms necessary to achieve this.