Wednesday, May 15, 2013

Clear regulation of requirements for assisted suicide under article 8 ECHR - Gross v Switzerland

In Gross v Switzerland, the European Court of Human Rights has once again dealt with an application alleging that article 8 ECHR implied a right to an assisted suicide. 

The question, whether the right to private life also embraces the right of an individual to end one’s own life has already been brought before the Court before. In Pretty v UK, the applicant was a woman suffering from a terminal disease. At the final stage, this disease was to paralyze muscles of her breathing system, causing her to die of asphyxiation. Since she considered this a painful and undignified death, she sought to put an end to her life. Being physically unable to do so, she had requested an undertaking from the prosecution service that her husband was not going to be criminally prosecuted for assisting her to commit suicide. The prosecution service refused to give the desired undertaking. 

The applicant claimed that the right to private life under article 8 ECHR encompassed a right to end one’s life and that the refusal of the British authorities to give the requested undertaking violated amounted to a violation of this right. The Court pointed out that autonomy is an underlying concept of article 8. It was not prepared to rule out that the fact, that the British legal framework made it impossible for the applicant to end her life constituted an interference with the right to private life. Yet it held that the interference was justified pursuant to article 8 paragraph 2. The legal provisions prohibiting assisted suicide sought to protect the interests of weak or vulnerable persons, which was necessary to safeguard the supremely important right to life. Therefore the Court did not find a violation of article 8 ECHR.

In Haas v Switzerland, the ECtHR did not find a violation of article 8 ECHR either. The applicant had been suffering from a psychiatric disease for more than 20 years.  He wished to end his life. To this end, he requested to be provided with a lethal dose of sodium pentobarbital, which would ensure a death without suffering. In Switzerland, this substance is (in accordance with international agreements Switzerland is party to) available only upon prescription. The applicant had been unable to obtain a prescription and complained that the regulation preventing him from procuring sodium pentobarbital infringed on his right to private life under article 8 ECHR.

The European Court of Human Rights distinguished the case from Pretty v UK. It stated that, other than the applicant in Pretty v UK, the applicant did not suffer from a terminal disease. Also, he did not ask for an assisted suicide without criminal prosecution of the assisting persons. Rather, he alleged that Switzerland was under an obligation to provide him with a lethal dose of the requested substance.  The Court rejected this argument. It referred to Switzerland’s obligation to make sodium pentobarbital available only upon prescription. Also, it pointed out that there was no consensus among Council of Europe member states to the effect that states were to facilitate suicides. Considering the margin of appreciation which contracting states of the ECHR enjoyed, the Court did not find Switzerland in violation of article 8 ECHR.

The case of Gross v Switzerland concerned a similar request. The applicant was born in 1931; while she did not suffer from any terminal disease, her state of health had deteriorated over the years and she had become increasingly frail. She was unable to take long walks and every change of environment frightened her. Since she felt that her life had become more and more monotonous and distressful over the years, she had developed a strong wish to die. Following a suicide attempt she had undergone psychiatric treatment, which had not changed her wish to put an end to her life, though. She was in possession of an expert statement by a psychiatrist confirming that she was fully able to form her own judgment.

She requested from several medical practitioners to be provided with a lethal dose of sodium pentobarbital, which would enable her to commit suicide in a painless fashion. The medical doctors she approached declined her request for ethical reasons or for fear of criminal prosecution.  

Having been turned down by private practitioners, the applicant applied to the health board, a Swiss public entity concerned with health issues, and asked to be provided with sodium pentobarbital.  Her request was rejected. She challenged this decision before Swiss courts. 

The Federal Supreme Court of Switzerland held in last instance that the refusal to make sodium pentobarbital  available to the applicant was lawful. It referred to the judgment the European Court of Human Rights had rendered in Pretty v UK and pointed out that article 8 ECHR did not entail a positive obligation for states to enable citizens to commit suicide.  The Swiss Federal Supreme Court underlined that the requirement of a prescription to obtain sodium pentobarbital  was necessary, because it  prevented individuals from hasty and not well thought-through decisions.

The applicant contended that denying her sodium pentobarbital, which prevented her from committing suicide and a painless and reliable manner, infringed upon her right to private life under article 8 ECHR.
Under Swiss law, assisting in a suicide or inciting to suicide is a criminal offence only if it performed for selfish reasons. According to the case law of the Swiss  Federal Supreme Court,  medical doctors are not prosecuted or held criminally responsible for procuring sodium pentobarbital if they observe certain conditions. The Federal Supreme Court infers these conditions from guidelines issued by an NGO. These guidelines state that doctors may issue a prescription for sodium pentobarbital for patients suffering from a disease which will, according to experience, lead to death

The European Court of Human Rights scrutinized her request from the perspective of positive obligations arising from article 8.  It underlined that the right to autonomy and self-determination was an underlying principle of the right to private life under article 8 ECHR.

It pointed out that the Swiss Federal Supreme Court referred in its jurisdictions to guidelines which had been produce by non-state actors and did not have the quality of a law. It also stated, that these guidelines established a requirement for the prescription of sodium pentobarbital which was not reflected in Swiss law, namely the requirement that patients have a terminal disease. The Court concluded that this was an element of uncertainty, which might well deter medical doctors from issuing prescriptions for sodium pentobarbital;  two doctors had refused to issue the prescription.   

The uncertain situation as to the conditions subject to which medical doctors could issue prescriptions was, according to the Court, likely to cause anguish and insecurity for citizens considering to  put an end to her life. Therefore, the Court found that Switzerland had violated its positive obligation to provide clear guidelines for issuing prescriptions for sodium pentobarbital; it found a violation of article 8.
Anyway, the Court did not rule that the right to private life entails a right to an assisted suicide.

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