Gross v Switzerland
| Judge | JUDGES RAIMONDI (PRESIDENT),JOCIENE,LORENZEN,SAJO,KARAKAS,VUCINIC,KELLER |
| Judgment Date | 14 May 2013 |
Privacy – Private life – Suicide – Applicant wishing to end her life by ingesting sodium pentobarbital due to advanced age and increasing frailty – Required dose only available on medical prescription – Applicant not suffering from terminal illness and therefore unable to obtain medical prescription for drug – Whether respondent state failing to provide sufficient guidelines defining under which circumstances medical practitioners authorised to issue prescription to person not suffering from terminal illness – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant was born in 1931. She had never been seriously ill but it had been her strong desire for several years to be allowed to end her life because of her advanced age and increasing frailty. Following a failed suicide attempt, she decided that ingesting sodium pentobarbital was the only dignified, certain and pain-free method to end her life. The required dose was only available on medical prescription. She contacted an assisted-death association for support, which replied that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug since the applicant was not suffering from a terminal illness. A psychiatrist, T, examined the applicant and observed that there was no doubt that the applicant was able to form her own judgment. He further noted that her wish to die was reasoned and well-considered, had persisted for several years and was not based on any psychiatric illness. From a psychiatric/medical point of view, T did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the necessary prescription himself on the grounds that he did not want to confuse the roles of medical expert and treating physician. The applicant sought a prescription for sodium pentobarbital from three further medical practitioners. All three declined to issue the requested prescription, two on the grounds that they felt prevented by the medical practitioners’ code of conduct or feared lengthy judicial proceedings and, possibly, negative professional consequences. The applicant then submitted a request to the Health Board to be provided with a dose of sodium pentobarbital in order for her to commit suicide. She submitted that she could not reasonably be expected to continue her search for a physician who was ready to issue the required medical prescription. The Health Board rejected the applicant’s request on the grounds that neither art 8 (set out at para 38, below) of the European Convention for the
Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) nor the constitution obliged the state to provide a person who wished to end his or her life with the means of suicide of their choice. The Administrative Court rejected her subsequent appeal. The court noted that assisting someone to commit suicide was only subject to criminal liability under the Criminal Code if it was carried out for selfish motives. Accordingly, a physician who provided a patient suffering from a terminal illness with the means to commit suicide was not subject to criminal liability. The prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned. The court observed that T had not considered whether the applicant was suffering from any illness which could justify the assumption that the end of her life was near; nor had he examined whether the applicant’s wish to die might be the manifestation of a disease which could be medically treated. The wish to die taken on its own, even if it was well-considered, was not sufficient to justify the issuing of a medical prescription. Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination. Under those circumstances, the court ruled that there was no sufficient reason to dispense with the necessity of a thorough medical examination and of a medical prescription. The applicant appealed further to the Federal Supreme Court, which rejected her appeal. The court considered, in particular, that there was no (positive) obligation enjoining the state to guarantee an individual’s access to a particularly dangerous substance in order to allow him or her to die in a painless way and without the risk of failure. The court also held that the requirement of a medical prescription pursued the legitimate aims of protecting the individual concerned from making a hasty decision and of preventing abuse. The restriction on access to sodium pentobarbital served the protection of public health and safety. The court further observed that the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Academy of Medical Sciences, as she was not suffering from a terminal illness, but had expressed her wish to die because of her advanced age and increasing frailty. The court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was ready to issue the necessary prescription. That requirement could not be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription. The applicant complained to the European Court of Human Rights that the domestic authorities, by
depriving her of the possibility of obtaining a lethal dose of sodium pentobarbital, had violated her right to decide by what means and at what point her life would end. She relied on art 8 of the Convention.
Held – (By a majority) In an era of growing medical sophistication combined with longer life expectancies, many people were concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflicted with strongly held ideas of self and personal identity. Thus, in the instant case, the applicant’s wish to be provided with a dose of sodium pentobarbital allowing her to end her life fell within the scope of her right to respect for her private life under art 8 of the Convention. The essential object of art 8 was to protect the individual against arbitrary interference by public authorities. Any interference had to be in accordance with the law and necessary in a democratic society. The notion of necessity implied that the interference corresponded to a pressing social need and in particular that it was proportionate to one of the legitimate aims pursued by the authorities. In addition, there could also be positive obligations inherent in an effective respect for private life. Those obligations could even involve the adoption of measures designed to secure respect for private life in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific measures. The instant case primarily raised the question whether the state had failed to provide sufficient guidelines defining if and, in the case of the affirmative, under which circumstances medical practitioners were authorised to issue a medical prescription to a person in the applicant’s condition. In the respondent state, pursuant to the Criminal Code, inciting and assisting suicide were punishable only where the perpetrator of such acts was driven to commit them by selfish motives. Under the case law of the Federal Supreme Court, a doctor was entitled to prescribe sodium pentobarbital in order to allow his patient to commit suicide, provided that specific conditions laid down in the Federal Supreme Court’s case law were fulfilled. That case law referred to the medical ethics guidelines on the care of patients at the end of their life, which were issued by a non-governmental organisation and did not have the formal quality of law. Furthermore, those guidelines only applied to patients whose doctor had arrived at the conclusion that a process had started which, as experience had indicated, would lead to death within a matter of days or a few weeks. As the applicant was not suffering from a terminal illness, her case clearly did not fall within the scope of application of those guidelines. No other material containing principles or standards served as guidelines as to whether, and under which circumstances, a doctor was entitled to issue a prescription for sodium pentobarbital to a patient who, like the applicant, was not suffering from a terminal illness. That lack of clear legal guidelines was likely to have a chilling effect on doctors who would otherwise be inclined to provide
someone such as the applicant with the requested medical prescription. That was confirmed in the instant case by the two doctors who declined the applicant’s request on the grounds that they felt prevented by the medical practitioners’ code of conduct or feared lengthy judicial proceedings and negative professional consequences. The uncertainty as to the outcome of her request in a situation concerning a particularly important aspect of her life had to have caused the applicant a considerable degree of anguish. The applicant had to have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life which would not have occurred if there had been clear, state-approved guidelines defining the circumstances...
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