Should the State assist someone willing to commit suicide because he is getting older? Does such a wish to commit suicide generate a positive obligation for the State to facilitate it or to provide the means of suicide of one’s choice?
However odd that it may sound, these were the questions underlying a recent case at the European Court of Human Rights (ECHR), which monitors respect for
human rights in the 47 Council of Europe member States – including all members of the European Union – that have ratified the European Convention on Human Rights
A life that has just become “monotonous” and a too dangerous jurisprudence
In Gross v. Switzerland, an elderly woman, uncomfortable with her diminishing physical and mental faculties owing to her ageing, wanted to put an end to her life by means of taking a lethal dose of sodium pentobarbital; the only way, in her opinion, to attain a dignified suicide, reaching effectively and painlessly the desired death. However, four medical doctors one after another had refused to issue the necessary prescription for such a drug; the alleged reasons for that refusal included the fact that the Code of Conduct of the Swiss Academy of Medical Sciences – despite the fact of considering that “the task of the doctor is to alleviate symptoms and to support the patient” and that “assisted suicide is not part of a doctor’s task, because this contradicts the aims of medicine” – recognizes a dilemma for the doctor, requiring a personal decision of conscience which may be to assist the suicide, provided, among other conditions, that the patient is terminally ill.
It is not the first time the ECHR has tackled such end-of-life issues: in previous judgments – Pretty v. United Kingdom (29th April 2002), Haas v. Switzerland (20th January 2011) and Koch v. Germany (19th July 2012) – the Court has gradually built up, from the right to privacy enshrined in Article 8 of the Convention, an individual’s “right to decide by what means and at what point his or her life should end” and “a positive obligation on the State to take the necessary measures to permit a dignified suicide”. A key condition of the aforementioned right is the capacity “of freely reaching a decision on this question and acting in consequence”.
This time, however, there is a key distinction: Ms. Gross was not even ill, let alone seriously or terminally ill.
Legal uncertainty or a Court simply too sympathetic to the wish to commit suicide?
The Swiss law lays down that doctors can prescribe drugs “within the limits justified by their practice”, “in conformity with the requirements of their profession” and while respecting “the recognized rules of (…) medical sciences” The requirement of medical prescription in the case under consideration served interests such as the prevention of crime and the risk of abuse, ensuring that one “lacking discernment does not obtain a lethal dose of sodium pentobarbital”, discernment which is indispensible for the fulfillment of the condition which the ECHR itself attaches to the right it derives from Article 8.
Notwithstanding, the Court considered the Swiss law insufficient, and required the Swiss authorities to “issue comprehensive and clear guidelines on whether and under which circumstances an individual in the applicant’s situation – that is, someone not suffering from a terminal illness – should be granted the ability to acquire a lethal dose of medication allowing them to end their life”. Such guidelines, according to the Court, should not be issued by a non-governmental organization; instead, they should have the formal quality of law, as the Court departed from its previous understanding that the wish to die or to an assisted suicide falls within the scope of Article 8 and, therefore, the regime applicable to any interference to a fundamental right must prevail.
The Court even pointed out the way ahead referring to the need for “State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life”.
Therefore, the ECHR is clearly paving the way to a right to assisted suicide for all which will impact on the legislation of all member States of the Council of Europe. If the case is referred to the Grand Chamber, however, there is still a hope that this path might still be halted, as the present decision was taken by a minimum margin (4 votes for, 3 against) and as only four members States of the Council of Europe allow medical doctors to prescribe drugs which enable their patients to end their own lives.
So, coming back to the question at the outset, the answer is no, not entirely. For now, Gross v. Switzerland has ruled that the State is bound at least by the obligation to provide a clear, legal framework. However, a right to assisted suicide for all, regardless of their health situation, may well be on its way to becoming a new standard in European human rights law a little sooner than you might have foreseen.