The Swiss Federal Court acknowledges the right to an accompanied suicide as a human right. Also mentally ill are entitled, if they have capacity of discernment. Decision creates legal security.
Uster/Wetzikon, February 1st (.-) The Swiss Federal Court has acknowledged the right of a person to determine the way and the point in time of his/hers end of life as a guaranteed European human right and at the same time basically granted mentally ill this right just like everyone else, if they have capacity of discernment.
At the same time it dismissed a request for the removal of the obligation to present a prescription for the lethal drug necessary for an accompanied suicide. The decision has been announced by the lawyers of the appellant in Uster and Wetzikon ZH.
The decision by the Federal Court has been procured through the complaint of a mentally ill man, a member of Dignitas, for whom – due to legal insecurity – no physician would have written the prescription for the drug Sodium Pentobarbital necessary for a risk-free suicide. The reason for this refusal was the always somehow vague threat by the Zurich Cantonal Physician to withdraw the permission to work of those physicians who would write such a prescription.
For this reason, the appellant addressed himself to the Federal Council, the Director of the Federal Department of Health, the Zurich Cantonal Physician and the Zurich Cantonal Pharmacist, claiming the right to have direct access to the necessary drug. To justify his claim, he referred to the European Convention of Human Rights, which in article 8 secures that all contracting states shall respect the private life of everyone within their jurisdiction. Private life would also include the decision on one’s own end of life.
All of the contacted authorities either explained to be incompetent or dismissed the request. With one complaint against the federal and another one against the cantonal authorities – which had both dismissed his request in the appeal process – he appealed to the Federal Court…
The Federal Court stated as follows:
· «The right of self-determination in the sense of article 8 § 1 ECHR includes the right to decide on the way and the point in time of ending ones own life; providing the affected person is able to form his/her will freely and act thereafter.»
· «It cannot be denied that an incurable, long-lasting, severe mental impairment similar to a somatic one can create a suffering out of which a patient would find his/her life in the long run not worth living anymore.
Based on more recent ethical, juridical and medical statements, a possible prescription of Sodium-Pentobarbital is not necessarily contra-indicated and thus no longer generally a violation of medical duty of care… However, utmost restraint needs to be exercised: It has to be distinguished between the wish to die that is expression of a curable psychic distortion and which calls for treatment, and the wish to die that bases on a self-determined, carefully considered and lasting decision of a lucid person (“balance suicide”) which possibly needs to be respected.
If the wish to die bases on an autonomous, the general situation comprising decision, under certain circumstances even mentally ill may be prescribed Sodium Pentobarbital and thus be granted help to commit suicide.»
· «Whether the prerequisites for this are given, cannot be judged on separated from medical – especially psychiatric – special knowledge and proves to be difficult in practice; therefore, the appropriate assessment requires the presentation of a special in-depth psychiatric opinion…»
On Thursday, the General Secretary of DIGNITAS, Ludwig A. Minelli, explained that with the acknowledgement of the right to an accompanied suicide as an ECHR-right all intentions to prevent with special “rules” people from other countries to come to Switzerland for an accompanied suicide to have no more grounds. Article 14 of the Convention on Human Rights does not allow for discrimination.
Furthermore, the legal security gained out this decision offers the basis that in the future physicians may help mentally ill who have capacity of judgment without the risk of a prohibition to practise their profession, because upon presentation of a psychiatric expertise they may prescribe Sodium-Pentobarbital.
Minelli is convinced that after some time, in other European countries, especially Germany, Great Britain and France, this decision will lead to a reconsideration of the dried up political position and enable a more liberal regime. This would reduce the demand for this service in Switzerland significantly which certainly would be desirable.
A communiqué of DIGNITAS – to live with dignity – to die with dignityP.O. Box 9, 8127 Forch-Zurich, Phone +41 44 980 4472