Assisted suicide: Models of legal regulation in selected European countries and the case law of the European Court of Human Rights

The Termination of Life on Request and Assisted Suicide (Review Procedure) Act 2002

In the Netherlands, euthanasia and PAS are punishable offences (Articles 293 and 294 of the Criminal Code), except when performed by a physician who fulfils the due care requirements laid out in the Termination of Life on Request and Assisted Suicide (Review Procedure) Act 2002 and provides notification of the procedure. ³ The Termination of Life on Request and Assisted Suicide (Review Procedure) Act was adopted by the Dutch parliament in 2001 and came into force on 1 April 2002. ⁴ The Act explicitly amended the Dutch Criminal Code to exempt doctors from criminal liability if they evidence that they have satisfied the statutory due care criteria set out in Section 2 para. 1 of the Termination of Life on Request and Assisted Suicide (Review Procedure) Act and have notified the municipal pathologist in accordance with the Dutch Burial and Cremation Act. Another important prerequisite established in Dutch case law is a longstanding close doctor–patient relationship to enable the doctor to assess whether the patient fulfils the first three, patient-related criteria of due care for euthanasia. The requirements of due care set out in Section 2 para. 1 of the Termination of Life on Request and Assisted Suicide (Review Procedure) Act are listed in Table 1. The requirement of prior consultation with an independent physician and the review procedures constitute important safeguards for patients who voluntarily request euthanasia or assisted suicide in circumstances where they face unbearable suffering with no prospect of improvement. According to the statutory guidelines of the Dutch Euthanasia Act, physicians who perform euthanasia or PAS are required to notify the death to the municipal pathologist and to submit a detailed report with respect to the due observance of the requirements of due care laid out in Section 2 para. 1 of the Act. The pathologist sends his report to the Public Prosecutor, who must give consent for burial, and notifies the regional euthanasia review committee, submitting the two reports plus a statement by the independent physician consulted by the doctor and any written directive by the deceased along with any other relevant documents provided by the physician such as the patient's medical file and letters from specialists. ³ The committee decides whether, in the light of the prevailing medical opinion and the standards of medical ethics, the physician has acted in accordance with the statutory due care criteria. If the review committee finds that the physician has fulfilled the due care criteria, the Public Prosecution Service will not be informed, and no further action will be taken. If the committee concludes that the doctor has failed to satisfy the statutory due care criteria, it reports its findings to the Public Prosecution Service and the regional health inspector, and these two agencies will then consider what action, if any, should be taken against the doctor. ³ The five regional review committees, established in November 1998, each comprise an odd number of members, including in any event one legal expert (who is also chairman of the committee), one physician and one expert on ethical issues. The committees reach their decisions by majority vote, and the chairman and the ordinary members are all appointed by the Minister of Justice and the Minister of Health, Welfare and Sport for a period of six years. Under the Euthanasia Act, the review committees are no longer obliged to report cases to the Public Prosecutor if they conclude that the statutory due care criteria have been met. They need to forward to the Public Prosecutor only those cases in which the criteria for due care are not fulfilled. ⁵ The review committees have the discretion to decide whether or not a doctor has satisfied the due care criteria, but the Public Prosecution Service is still free to institute an investigation in any case where there is reason to suspect that a crime has been committed. ³ In 2010, the Dutch review committees reached conclusions on 2667 of 3136 notifications overall (including 2910 cases of euthanasia, 182 cases of assisted suicide and 44 cases of a combination of both), and gave the verdict of non-compliance in nine cases. ⁶ In 2011, the review committees received 3695 notifications of euthanasia or assisted suicide. In four cases, the committees found that the physician had not acted in accordance with the Termination of Life on Request and Assisted Suicide (Review Procedure) Act. ⁶ In one of these cases, the committee concluded that the patient's suffering at the time of euthanasia was not (yet) without prospect of improvement. In three cases, the committee found that the attending physician had not complied with the due medical care criterion described under Section 2 para. 1 f of the Act. ^b

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Table 1.

Requirements of due care set out in Section 2 para. 1 of the Termination of Life on Request and Assisted Suicide (Review Procedure) Act.

The requirements stipulate that the physician:

a. holds the conviction that the patient's request is voluntary and well considered k ;

b. holds the conviction that the patient's suffering is lasting and unbearable, with no prospect of improvement;

c. has informed the patient about the situation he/she is in and about his/her prospects;

d. has come together with the patient to the joint conclusion that there is no other reasonable solution for the situation he/she is in;

e. has consulted at least one other, independent physician, who has seen the patient and has given his written opinion on the requirements of due care, referred to in parts (a)–(d); and

f. has exercised due medical care in terminating the patient's life or assisting in his/her suicide.

Empirical data

Systematic empirical research was a unique feature of the process of legalising euthanasia in the Netherlands. Since the first nationwide study in 1990, ⁷ similar research has been conducted every five years through death certificates studies in 1995, ⁸ 2001, ⁹ 2005 ¹⁰ and 2010 ¹¹ on the frequency and characteristics of end-of-life decisions, including the proportion of reported cases of euthanasia and PAS. In 2010, 2.8% (475 of 6861) of all studied deaths in the Netherlands were the result of euthanasia. ¹¹ This rate is higher than the 1.7% (294 of 9965) in 2005 and the 1.7% (141 of 5197) in 1990, but comparable with those in 2001 (2.6%, 310 of 5617) and 1995 (2.4%, 257 of 5147). ¹¹ Distribution of sex, age and diagnosis was stable between 1990 and 2010. Euthanasia is still mostly undertaken in younger people, cancer patients and in general practice rather than in hospitals or nursing homes. ^c

The studies further show that the frequency of ending of life without explicit patient request decreased from 0.8% of all deaths in 1990 to 0.2% in 2010. ¹¹ The decrease might be related to increased attention for palliative care over the last decade and to the regulation of euthanasia and PAS, through enabling patients and physicians to discuss end-of-life preferences openly. In all studied years, intensified alleviation of symptoms and forgoing of life-prolonging treatment (either withholding or withdrawing) occurred much more often than active ending of life. ⁵ While the frequency of forgoing of life-prolonging treatments remained rather stable over the years, between 16% and 20% of all deaths, the percentage of the use of intensified alleviation of symptoms increased from 19% of all deaths in 1990 to 36% in 2010. ¹¹ Since the first study in 1990, the reporting rates of cases of euthanasia and PAS have increased from 18% (486 of 2700) of all estimated euthanasia and PAS cases in 1990 (reported at that time to the Public Prosecutor) to 41% (1466 of 3600) in 1995 (Public Prosecutor), 54% (2054 of 3800) in 2001 (review committees), 80% (1933 of 2425) in 2005, after the introduction of the Act (review committees), and 77% (3136 of 4050) in 2010 (review committees).^5,11 The number of notifications received by the committees in 2010 (3136) showed an increase of 19% compared to 2009 (2636), ⁶ and the 2011 report of the Dutch Regional Euthanasia Review Committees noted an increase of 18% in the number of notifications in 2011 (3695) compared to 2010 (3136). ¹⁴ Although the increase may be partly due to overall improved physician reporting, according to the 2010 and 2011 Review Committees reports, the cause of the continuing increase is not known. ⁶

‘Finished with life’–‘suffering from life’

Current public debate in the Netherlands about the termination of life centres on patients in different stages of dementia, those with psychiatric conditions and seniors who feel they have ‘completed life’.^14,15 In accordance with the Supreme Court's ruling (Brongersma case 2002) ^d

Comparison of the legal regimes in the Netherlands, Belgium and Luxembourg: Differences and similarities

The Netherlands, Belgium and Luxembourg laws (respectively in force in 2002, ⁴ 2002 ¹⁷ and 2009 ¹⁸ ) – the ‘Benelux laws’ – all permit PAS and/or euthanasia for somatic (physical) and non-somatic (i.e. mental, psychiatric) suffering that is unbearable, lasting and with no other reasonable solution. Suffering must be rooted in a medically classifiable condition. The requirement of unbearable suffering without prospect of improvement is subject to fairly broad interpretation and has to be interpreted considering the specific circumstances of each case. Suffering is without prospect of improvement if, according to the prevailing medical opinion, the disease or condition that is causing the suffering is incurable and there is no realistic prospect of alleviating the symptoms.^3,14 Realistic prospect means that the improvement that can be achieved by palliative care or other treatment must be in reasonable proportion to the burden such treatment places on the patient. As long as, in the light of the diagnosis and prognosis, any realistic curative or palliative treatment options are available that may – from the patient's point of view – be considered reasonable, there is, in a medical sense, a prospect of improvement. ¹⁴ The question of whether other ‘reasonable’ solutions are available is therefore to be determined from the patient's perspective.^4,19,20 While diagnosis, prognosis and possible alternative treatment options can be assessed objectively, the determination of unbearable suffering is a highly subjective matter depending on the patient's personality, physical and mental perseverance, history and perceptions of the future.^3,5 ‘Unbearable’ suffering is therefore to be assessed from the patient's perspective,^16,19,20 though Dutch review committees argue that suffering should be at least partly open to objectification. ²¹

Under the Benelux laws, doctors are legally allowed to provide euthanasia or PAS to individuals who at the time of the acts are unconscious (Netherlands, Belgium and Luxembourg) or incompetent (Netherlands only), but who have made their wishes known in a written advance directive while still conscious and competent. For conscious patients, the treating physician must, under the Netherlands law, consult at least one other, independent physician who has seen the patient and in a written report has given his opinion on the voluntariness of the request, the patient's suffering and their conviction that there is no other reasonable solution. In those cases in which euthanasia or assisted suicide is provided to patients suffering from psychiatric conditions or dementia, the review committees recommend physicians to treat requests for termination of life with great caution and to consult more than one independent physician, including a psychiatrist, who must examine the patient to ascertain the voluntariness and the existence of persistent unbearable suffering.^14,16 Under the Belgian and Luxembourg laws, consultation with another physician, for conscious patients, is also required, and this second physician must expressly be independent of both the treating physician and the patient and be competent to give an opinion about the disorder in question. The Belgian law further requires a third consultation for conscious patients who are ‘not expected to die in the near future’ (i.e. patients with neurological, psychiatric, mental, or other conditions that include fear of future suffering) (Table 2(f)). In those situations, a second consulting physician, who must be a psychiatrist or a specialist in the disorder in question (in addition to the treating physician and the first consulting physician), must examine the patient to confirm the voluntariness and the existence of unbearable persistent suffering. For irreversibly unconscious patients who have requested euthanasia pursuant to an advance directive, the Belgian and Luxembourg laws require prior consultation with another independent physician who is to confirm the irreversibility of the patient's medical condition.

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Table 2.

Preconditions for the decriminalisation of euthanasia laid down by the Belgian Euthanasia Act 2002, amended by the Law of 13 February 2014.

The physician who performs euthanasia commits no criminal offence when he/she ensures that

a. the patient is a legally competent adult, a legally competent emancipated minor or a minor with the capacity of discernment, and is conscious at the moment of making the request;

b. the request is voluntary, well-considered and repeated;

c. the patient's request and, if the patient is a minor, also the agreement of the legal representatives are in writing; and

d. the adult or emancipated minor patient is in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, and that results from a serious and incurable disorder; the minor with the capacity of discernment is in a medically futile condition of constant and unbearable physical suffering that cannot be alleviated and that will result in death in short time, and that results from a serious and incurable disorder.

e. the doctor must have informed the patient of any potential therapeutic means and of the possibility of starting palliative care and, together with the patient, must have come to the conclusion that there is no reasonable alternative.

f. the doctor must have consulted another independent physician, who must have examined the patient to ascertain the existence of constant and unbearable physical or mental suffering with no prospect of alleviation. For patients ‘not expected to die in the near future’, a second physician (in addition to the first consulting physician), who is a psychiatrist or a specialist in the disorder in question, must be consulted to confirm the voluntariness of the request and the existence of persistent unbearable suffering. In case of non-terminally ill patients, also an interval of one month is required between the patient's written request and the act of euthanasia. When the patient is an unemancipated minor, the doctor must have consulted, in addition to another independent physician, a child psychiatrist or psychologist who examines the patient, verifies the capacity of discernment of the minor and certifies this in writing.

Under the Netherlands law, physicians are legally allowed to provide euthanasia/PAS to minors between 16 and 18 years of age as long as the parents or guardians have been involved in the physician process. To minors between 12 and 16 years of age, euthanasia/PAS can legally be provided if the parents or guardians agree with the decision for assisted death. The Belgian Euthanasia Act 2002, which legalised euthanasia for adults and emancipated minors, has been amended by the Law of 13 February 2014 that extends the right to euthanasia to children under the age of 18 under certain strict conditions. ^e

Of the Benelux countries, the Netherlands was not only the first jurisdiction to pass assisted-death legislation, but also a jurisdiction with a lengthy history in practice before it adopted express legislation. The legal assisted-death regime in the Netherlands is based upon the concept of conflicting medical duties: the physician's duty to protect life versus the duty to relieve suffering. ¹⁵ In certain circumstances, a physician may be in a position of ‘overmacht’ and, out of necessity (force majeure), may be forced to choose a course of action. In those situations, euthanasia and PAS may be legally justified. ¹⁶ In the Netherlands, the medical community, the KNMG, participated in the process of legalisation of euthanasia and PAS. The KNMG, in the 1980s, took an official affirmative position with regard to the legalisation of euthanasia, emphasised that only physicians should be allowed to perform euthanasia and tried to improve formal societal control by encouraging physicians to report their cases. The Belgian and Luxembourg laws, on the other hand, largely evolved from a rights-based platform and were variously contested by the respective medical bodies in those countries.^22,23 The Belgian Deontological Code was later changed to incorporate the legalisation of euthanasia after the enactment of the Belgian law in 2002, but the Code of Medical Ethics of Luxembourg's Collège Médical has not yet been amended and continues to prohibit the practices of euthanasia and PAS. ²⁴

Article 115 of the Swiss Penal Code

In Switzerland, (active) euthanasia is punishable by law (Article 114 of the Swiss Penal Code, ‘killing by request’), although it is treated as a lesser offence than murder or manslaughter. Pursuant to Article 115 of the Swiss Penal Code, inciting and assisting suicide are punishable if the perpetrator of such acts is driven to commit them by ‘selfish motives’. ²⁵ Prerequisites for the applicability of Article 115 of the Penal Code are: (a) the assisting person must have selfish motives, and (b) the person seeking to die must at least have attempted to commit suicide and (c) be decisionally competent, which means that the person concerned must be capable of appreciating the meaning of his/her actions and of acting in accordance with any such appreciation because only then can his/her actions be regarded as ‘suicide’ within the meaning of Article 115 of the Penal Code. ²⁶ Article 115 of the Penal Code is interpreted e contrario as meaning that assistance with suicide is not a criminal offence when it is practiced without any self-interested motivation. ²⁷ Article 115 of the Penal Code does not technically restrict the practice of assisted suicide to physicians and does not impose any requirement that a particular illness or medical condition be present in the requesting individual. Therefore, Switzerland is the only country in Europe that allows non-PAS and that does not require any particular medical condition for receiving such assistance. The two significant differences of the assisted-suicide practice in Switzerland compared with the corresponding practices under the Benelux laws are:

(1) Non-PAS is legally allowed because the Penal Code does not make any mention of physicians in the practice of assisted suicide. While under the Benelux laws assisted suicide can legally be provided only by physicians, in Switzerland this assistance is provided by (non-physician) volunteers working for non-profit organisations. Although physicians are not directly involved in suicide assistance, a person seeking to die must be examined by a physician in order to assess the patient's decisional capacity, and, according to the Swiss Federal Law on Medicinal Products and Medical Devices (‘the Therapeutic Products Act’) of 15 December 2000, ²⁸ only a doctor is allowed to prescribe the lethal drug used for the purpose of suicide assistance (sodium pentobarbital).

The current permissive legal regime is not the result of a deliberate policy but rather the unintended consequence of a gap in the Swiss Penal Code. Article 115 of the Penal Code, which was already included in the draft Penal Code submitted to the Parliament in 1918 and approved in 1937, was not originally perceived with the purpose of legalising assisted suicide in a medical context, but rather referred to assisted suicide in the context of an unhappy love affair or of defending one's own or the family's honor.^30,31 Because of the absence of any specific legal norms regulating assisted suicide, the practice of assisted suicide in Switzerland is largely constrained and governed, among others, by internal guidelines of right-to-die organisations, formal agreements between organisations and local governments, ³² the standardised use of lethal barbiturates, which, pursuant to Swiss narcotics laws,^28,33 requires a medical prescription, and by the medico-ethical guidelines regarding medical assistance for dying patients issued by the Swiss Academy of Medical Sciences (SAMS) in 2004. ³⁴ In those guidelines, the SAMS expressed serious reservations about the involvement of physicians in assisted suicide, noting that ‘the task of the doctor is to alleviate symptoms and to support the patient. It is not his task to directly offer assistance in suicide, he rather is obliged to alleviate any suffering underlying the patient's wish to commit suicide’. ³⁴ According to the guidelines, assisted suicide cannot be considered as part of a doctor's activities because such an action evidently goes against the aim of the medical profession. The academy, however, acknowledged that respect for the patient's wishes is also fundamental to the doctor–patient relationship, and, therefore, if the doctor, in accordance with his conscience, decides to assist in a suicide, his decision has to be respected. ³⁴ If the doctor opts for assisted suicide, he must ensure that the following preconditions are met: ³⁴ (1) the patient's illness makes it likely that death is close; (2) other options for support have been discussed and, where appropriate, implemented; and (3) the patient is capable of discernment, his request is well-considered, is not the result of external pressure and is regarded as final, which must be confirmed by an independent third party, who need not necessarily be a doctor. The final act which leads to death must always be carried out by the patient himself. A doctor is entitled, in the context of the recognised professional rules, to prescribe sodium pentobarbital for the purpose of suicide, provided that the conditions for doing so are fulfilled.

According to the case law of the Swiss Federal Supreme Court, ³⁵ the guidelines issued by SAMS do not have the formal quality of law. However, they have been incorporated into the Professional Code of the Swiss Medical Association (Federatio Medicorum Helveticorum [FMH]) and can be classified as a code of conduct, the value of which is generally accepted by the practitioners bound by it. ²⁷

Article 115 of the Penal Code has enabled the creation of two main non-governmental assisted-suicide associations: Exit and Dignitas.

Exit, which was founded in 1982, only assists residents of Switzerland. According to the internal regulations of the association, the individual seeking to die by assisted suicide must be legally competent, must have a constant and consistent desire to die, and must suffer from an incurable illness with intolerable physical and/or psychological suffering, a fatal prognosis or severe disability. The association has two branches: Exit Deutsche Schweiz for the German-speaking part of Switzerland with headquarters in Zurich, and Exit ADMD (Association pour le Droit de Mourir dans la Dignité), which operates in the French-speaking part of Switzerland with headquarters in Geneva. After significant increases in the number of new members in 2012, the total membership of the organisation across the country is reportedly above 80,000 (∼65,000 members of Exit Deutsche Schweiz, ∼18,000 members of Exit ADMD).^36,37 According to the organisation's annual report, Exit Deutsche Schweiz assisted 356 deaths in 2012 (2011: 305; 2010: 257), including six cases with psychiatric disorders (2011: 3; 2010: 7). ³⁶ Exit ADMD assisted 111 deaths in 2011 and 91 in 2010. ³⁷

Dignitas, which was founded by the lawyer Ludwig Minelli in 1998, offers assisted suicide to non-residents of Switzerland. ^f

Assisted suicide is usually performed in the association's own accommodation or sometimes in apartments rented for this purpose. ²⁷ Suicides are not performed in public hospitals, except in Geneva and Lausanne where, since 2006, assisted suicide is allowed under very strict conditions. ³⁹ Return home must be impossible, otherwise the act ought to take place preferably outside the hospital establishment, and assisted suicide is not performed by the physicians working in the hospital but by the association's support assistants or an outside physician chosen by the patient.

Political debate – failure to regulate assisted suicide

Participation by non-residents of Switzerland (so-called suicide tourism), particularly by those without terminal illness, has brought much international criticism of the Swiss scheme, encouraging consideration by the Swiss state either to ban organised assisted suicide or to regulate these practices better. In 2009, an agreement signed between the Canton of Zurich and Exit Deutsche Schweiz to regulate this practice within the canton was invalidated on 16 June 2010 by the Federal Court, which came to the conclusion that such an agreement between individuals and public authorities lacked a legal basis and was not in accordance with the domestic law. ^g

In October 2009, the Swiss Federal Council presented two alternative draft bills, aimed at either regulating or banning organised assisted-suicide practices, for a consultation process to the Swiss parliament.^27,39 According to one of the bills, preferred by the majority of the members of the Federal Council, the practice of assisted suicide should be subject to strict conditions laid down in a draft amendment to Article 115 of the Penal Code (Table 3). The second option aimed at a complete ban on organised assisted-suicide practices. Arguments of the supporters of this option included that a state should not in any way interfere with such a highly individual subject as suicide, and a state's duty to protect life and prevent suicides was incompatible with any attempts undertaken by the state to regulate the practices of organised suicide. Besides, the purely altruistic motivation of people working for assisted-suicide organisations was to be doubted, since they were paid for that assistance.

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Table 3.

The most significant elements of the proposed amendment to Article 115 of the Swiss Penal Code.

(1) Time for consideration and free will. In order to protect individuals from hasty and unconsidered decisions, the person seeking to commit suicide must be given enough time to reconsider properly his/her wish to die. In addition, the request must be based on free will.

(2) Requirement of two doctor's certificates. The person seeking to die must present two certificates from two different doctors who are independent of the assisted-suicide organisation. One of the certificates must confirm that the person is legally competent; the other must attest that the person suffers from a physical, incurable illness that will eventually lead to death in a short time period. People with chronic non-fatal illnesses or mental disorders, thus excluded from organised assisted suicide, should preferably receive comprehensive treatment and palliative care medicine.

(3) Medical prescription, non-commercial interests, documentation. Alternative treatment options must have been discussed with the person seeking to die. The lethal drug must have been prescribed by a doctor. A medical prescription presupposes a diagnosis drawn up on the basis of a doctor's professional obligations and code of ethics, a medical indication and an information-seeking interview. Support assistants may not accept any payment that would exceed the costs and expenses of assisted suicide. Each case of assisted suicide must be comprehensively documented.

In September 2010, the government instructed the Department of Justice to propose a draft amendment of Article 115 of the Penal Code, taking into consideration the criticisms put forward during the consultation process. The Department of Home Affairs was instructed to suggest measures to promote palliative care and suicide prevention. However, in June 2011, both departments came to the conclusion that the current legislation sufficiently addressed any possible abuses related to assisted-suicide practices (i.e. suicide for incompetent persons or persons in good heath, provision of the lethal drug without prescription, unlawful storage of the drug, etc.), and that an amendment to Article 115 of the Penal Code would carry many disadvantages such as legitimisation of assisted-suicide organisations, the relativisation of the value of human life, and the likely resistance of the medical community to the implementation of the new rules. ²⁷ On 29 June 2011, the government, following the recommendation made by both departments, decided not to introduce specific regulations on organised assisted suicide, but to extend measures to promote suicide prevention and palliative care in order to reduce the number of suicides. ⁴⁰

Case law related to assisted suicide

In its judgment of 3 November 2006, the Swiss Federal Supreme Court ruled that the prescription of sodium pentobarbital may also be justified in the case of an incurable and serious mental disorder. However, in such cases, a report by a psychiatrist based on a thorough psychiatric examination should confirm that the patient's wish to die is not the expression of the psychiatric disorder itself. ⁴¹ The Swiss Federation of Medical Doctors severely criticised this decision on the grounds that it was extremely difficult, if not impossible, to assess whether or not the desire to die was the result of the psychiatric disorder. ⁴² While, so far, none of the assisted-suicide organisations or their directors have been convicted under Article 115 of the Penal Code, the Federal Supreme Court confirmed the conviction of a psychiatrist in 2009 who had assisted in the suicide of a psychiatrically ill person. ⁴³ The court held that a condemnation was possible because the psychiatrist had not examined with sufficient care whether the person seeking suicide was mentally competent.

In its judgment of 3 November 2006, the Federal Supreme Court concluded that the obligation to submit a medical prescription in order to obtain sodium pentobarbital was not contrary to the right to privacy guaranteed in Article 10 para. 2 of the Swiss Federal Constitution and Article 8 para. 1 of the European Convention on Human Rights. ⁴⁴ The Federal Supreme Court considered that the requirement under Swiss law for a medical prescription in order to obtain sodium pentobarbital (a) had a clear, accessible and foreseeable legal basis, with regard to domestic law (Sections 24 and 26 of the Therapeutic Products Act and Sections 9 and 10 para. 1 of the Federal Drugs Act) and international law (Section 9 para. 1 and Schedule III of the International Convention on Psychotropic Substances 1971); (b) had a legitimate aim, namely to protect public health and safety, in the context of assisted suicide, to protect people from impetuous decisions and to prevent abuse, and to maintain order in the public interest; and (c) was also a proportionate and necessary measure in a democratic society and therefore, justified according to Article 8 para. 2 of the European Convention on Human Rights. The court also concluded that the right to choose to die, which was included in the right to self-determination within the meaning of Article 8 para. 1 of the European Convention on Human Rights, but which was not an issue in that case, had to be distinguished from the right to assistance in suicide from the State or a third party, which could not be inferred either from Article 10 para. 2 of the Federal Constitution or from Article 8 para. 1 of the Convention. The ECHR confirmed this judgment, rejecting the allegations of the applicant, according to which the State would have a positive obligation under Article 8 para. 1 of the Convention to facilitate suicide. ¹ The ECHR specified that even assuming that states had a positive obligation to take measures to facilitate suicide, the Swiss authorities had not violated that obligation in the applicant's case because the requirement for a medical prescription, issued on the basis of a thorough psychiatric assessment, was compatible with Article 8 para. 2 of the Convention. ¹ In a previous case nine years before that judgment, the ECHR had considered that it ‘[was] not prepared to exclude’ that the fact that the applicant was precluded by law from suicide assistance by her husband constituted an interference with her right to respect for private life within the meaning of Article 8 para. 1 of the Convention. ⁴⁵ However, the court had concluded that a potential interference with the applicant's right to respect for private life was justified according to Article 8 para. 2 of the Convention as a necessary measure in a democratic society for the protection of the rights of others, ^h

On 12 April 2010, the Swiss Federal Court rejected an applicant's request to be provided with a lethal dose of sodium pentobarbital without a medical prescription, otherwise her right to self-determination guaranteed by Article 8 para. 1 of the Convention would not be respected. ⁴⁶ The applicant, a 79-year-old woman with no serious physical or mental illness, had argued that the prerequisite of a medical prescription for obtaining sodium pentobarbital, combined with the fact that medical practitioners refused to issue such a prescription to a person, who, like herself, was not suffering from any terminal illness and was, therefore, not in a position to fulfil the requirements of the SAMS medical ethics guidelines on the care of patients at the end of life, had rendered her right to decide how and when to end her life illusory. The Swiss Federal Court found that the prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention and with the Swiss Constitution, and that the applicant did not fulfil the prerequisites laid down in the SAMS medical guidelines, as she was not suffering from any illness. The ECHR confirmed the Federal Court's conclusion that the applicant did not fall within the scope of application of the SAMS guidelines, as these guidelines only applied to terminally ill patients. ⁴⁷ However, the ECHR ruled that the applicant had been in a state of anguish because of her uncertain legal situation regarding the extent of her right to end her life and that the absence of clear and comprehensive legal guidelines had accordingly violated the applicant's right to respect for her private life guaranteed by Article 8 of the Convention. According to the ECHR, Swiss law did not provide sufficient guidelines ensuring clarity on the conditions and circumstances under which a lethal dose of sodium pentobarbital may be obtained on medical prescription. Three judges, who voted against finding a violation of Article 8 of the Convention, found that the Federal Supreme Court's case law, which referred to the SAMS guidelines, in conjunction with the Therapeutic Products Act and the Drugs Act sufficiently and clearly defined the circumstances under which a medical practitioner was allowed to issue a prescription for sodium pentobarbital.

The Swiss Federal Supreme Court has also had the occasion to decide on issues relating to the prescription and storage of the lethal drug used to commit suicide, and to the withdrawal of the permission to practice medicine. In 2008, the Swiss Federal Supreme Court confirmed the decision of the Department of Health of the Canton of Zurich, which refused to grant a renewal of the license to practice medicine of a 70-year-old doctor who had prescribed sodium pentobarbital to elderly patients after just one interview. ⁴⁸ In 2009, the Federal Supreme Court ruled that, according to Section 14a of the Drugs Act, Dignitas was not authorised to store sodium pentobarbital in its accommodations or to provide it directly to the individuals seeking to commit suicide. ⁴⁹