The Italian Constitutional Court and the constitutionality of the criminalisation of assisted suicide of patients suffering from serious and incurable diseases

Introduction

On 16 November 2018, the Italian Constitutional Court delivered its first decision on the controversial issue of the constitutionality of the criminalisation of assisted suicide of patients suffering from incurable diseases. ¹ The legal problems posed by the ordinance 207/2018 are unquestionably of great interest, both from a national and a comparative perspective.

The constitutional question was raised by the Milan Court in the context of criminal prosecution for the offence of assisted suicide. The defendant, having been previously requested to do so by the patient suffering from a serious and incurable disease, took him to a Swiss medical centre where the patient underwent a medically assisted suicide procedure.

In its decision, the Italian Constitutional Court ruled that the legislature is sovereign to establish an offence of assisted suicide, its criminalisation not being contrary to the Constitution. Nevertheless, the Court held that there are exceptional situations in which an absolute prohibition on assisted suicide could be considered contrary to the Constitution. The Court referred specifically to those cases in which patients suffer a serious and incurable disease but retain their full mental capacity.

The decision of the Italian Constitutional Court represents a new chapter in the comparative scenario of judicial decisions on end-of-life issues. ² In this context, the decisions of the Colombian Constitutional Court, the Canadian Supreme Court and the United Kingdom Supreme Court are pertinent, and will be reviewed throughout this note. The first part of this article describes the facts of the case and the questions raised before the Constitutional Court. The second part examines the reasoning of the Italian Constitutional Court. Finally, the third part addresses four legal issues arising from the ordinance that, in my opinion, stand out after a first reading.

The case

Following a car accident in 2014, Fabiano Antonioni remained tetraplegic and irreversibly blind due to cortical damage. He was artificially fed and his breathing was partially supported by means of a ventilator. He was suffering from frequent muscular spasms, causing him considerable pain and suffering, which could not be eliminated through palliative treatments. Yet, he had retained a full mental capacity, being able to communicate with the world through the help of a voice synthesiser.

Two years after the accident, and due to his condition, Fabiano decided to put an end to his life, sharing his wish with his family. His fiancée and his mother attempted to dissuade him, but he maintained his resolution.

In May 2016, Fabiano contacted the Swiss association Dignitas, whose core mission is to help people exercise their ‘right to die with dignity’. ³ In the same period, he got to know Marco Cappato, who declared himself available to accompany Fabiano to a Dignitas facility, in Switzerland. Fabiano then made an application to the association, which allowed his request. In the following months, Fabiano confirmed his decision, communicating it publicly.

In February 2017, Marco drove Fabiano to the Swiss facility. Fabiano’s mother and fiancée also accompanied him. Once in Switzerland, he was examined by doctors, who authorised the procedure, which took place on 27 February. Through a device operated by the patient’s tongue, he was able to inject a lethal substance into his veins, which caused him a quick and painless death.

Back in Italy, Marco reported himself to the police. A criminal proceeding was initiated against Marco for the offence of assisted suicide, provided by Article 580 of the Italian criminal code (ICC). ⁴ In February 2018, the criminal court in charge of the case decided to halt the proceeding and refer two preliminary questions to the Constitutional Court:

The reasoning of the Italian Constitutional Court

Neither can the right to personal autonomy be invoked as a ground upon which to consider Article 580 ICC unconstitutional. The Court underlined that the aim of the criminal provision is to protect life, especially of weak and vulnerable persons. The law wants to protect them from the irreversible consequences of suicide decisions, as well as against external undue interference. ¹⁰ According to the Court, the prohibition on assisted suicide is then important with respect to persons suffering from a physical or psychological medical condition, or simply loneliness, who could be induced to end their lives prematurely if the legal system allowed assisted suicide. ¹¹

Article 580 ICC is not incompatible either with the right to private life of the suicidal person, recognised by Article 8 ECHR. Citing the European Court of Human Rights case law (Haas v. Switzerland, ¹² Koch v. Germany ¹³ and Gross v. Switzerland ¹⁴ ), the Italian Constitutional Court points out that the State has a wide margin of appreciation in balancing the necessity to protect human life and the right to a private life, being entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals. ¹⁵ In this case, the State decided to limit the right to a private life of the suicidal person, with the aim of protecting his or her life, by preventing third parties from assisting his or her suicide.

In Italy, according to law 219/2017, which recognises the patient’s fundamental right to refuse any medical treatment, patients are already allowed to put an end to their life by refusing life-support treatments. ¹⁷ At the same time, law 38/2010 authorises them to request the application of therapies to alleviate pain, which includes the possibility of continuous deep palliative sedation. ¹⁸ However, current Italian legislation does not allow patients to receive a treatment aiming at directly causing their death. As a result, the patient who wishes to put an end to his life is obliged to undergo a slower and more extensive process, due to the withdrawal of life-support mechanisms. ¹⁹

These cases also call into question the reasons that justify the criminalisation of assisted suicide. ‘If, in fact, the cardinal value of life does not exclude the obligation to respect the patient’s decision to end his life, through the interruption of life-support treatments (…), there is no reason why the same value should be translated into an absolute obstacle’ ²⁰ to accept the request for help from the patient who wishes to avoid a slower and wider process of death. If the persons who depend on this type of treatment can decide to end their life by interrupting such mechanisms, there is no reason why these same persons would need unbreakable protection against their own will to die in a manner that they consider more dignified.

The Court concludes, consequently, that the absolute prohibition on assisted suicide, in this specific context, restricts the freedom of self-determination of patients, imposing on them a single way to end their life, contravening the principles of human dignity and equality. ²¹

Such a declaration would produce a legal vacuum, allowing anyone to offer assistance in the suicide of others, without prior control of their effective capacity for self-determination or understanding of the consequences of their choice. ²² Therefore, a legal framework that establishes the conditions and procedures through which a person can be legally assisted to end his or her life, which also provides the safeguards to prevent the risk of premature refusal by the patient of palliative care that could allow him or her to live a dignified life even with an incurable illness is necessary. On these issues, there are multiple options, and Parliament is the appropriate institution to adopt the appropriate decisions and the legal framework.

Therefore, the Court decided, using its ‘powers of management of the constitutional procedure’, to schedule a new hearing on 24 September 2019, in order to grant Parliament the opportunity to adopt a comprehensive legislation on the subject. ²³

The Court highlighted that the solution adopted addressed analogous concerns of those that inspired the Canadian Supreme Court judgment in Carter v. Canada, which declared void the offence of assisted suicide, insofar as it absolutely prohibited physician-assisted death for a competent adult person who clearly consents to the termination of life, and has a serious and incurable disease that causes him intolerable enduring suffering. The Canadian Court suspended the effects of the decision for 12 months, in order to give Parliament ‘the opportunity to craft an appropriate remedy’, since ‘complex regulatory regimes are better created by Parliament than by the courts’. ²⁴

The Italian Constitutional Court also recognised that it had drawn inspiration from the judgment of the United Kingdom Supreme Court in Nicklinson, ²⁵ where the majority of the justices decided not to issue a declaration of incompatibility of the offence of assisted suicide precisely in order to give Parliament the opportunity to legislate on the matter. ²⁶

Comment

Undoubtedly, ordinance 207/2018 poses legal questions of great interest, both from a national and a comparative perspective. The Italian Constitutional Court addresses highly complex issues, such as assisted suicide; the content and limits of the rights to life, to private life and the right to self-determination; the rationale of the offence of assisted suicide; as well as the role of the Constitutional Court in assessing the legitimacy of Parliament’s criminalisation decisions.

Since it is not possible to analyse all the standpoints of the Court, nor its implications, in the following paragraphs I will comment on four matters that, in my opinion, stand out after a first reading.

In order to determine the scope of the reasoning of the Constitutional Court, and avoid conceptual overlap, it is essential to clarify the object of ordinance 207/2018. In this regard, it is important to highlight that both the constitutional question and the Court’s ordinance refer to assisted suicide at all times.

Although the Court does not define ‘assisted suicide’, it is possible to affirm, in simple terms, that it includes cases in which a third party supplies the suicidal person with the elements necessary to end his life. ²⁷ In contrast, active euthanasia is different because the third party causes the death of the suicidal person, at the request of the latter. ²⁸ The distinction, despite being rejected by some scholars, ²⁹ has been expressly recognised by a multiplicity of legal systems, which have established different regulations for cases of suicide aid and active euthanasia. For example, in Switzerland, Washington and Oregon, ³⁰ assisted suicide is allowed under certain circumstances but not euthanasia. ³¹

On this point, ordinance 207/2018 differs from the Colombian and Canadian experiences. In relation to the first, the Colombian Constitutional Court, in its ruling C-239-97, explicitly addressed active euthanasia, exempting doctors who practice it on a person suffering from a terminal illness that causes him or her intense suffering or pain, as long as he or she has requested the practice of euthanasia freely and in full use of his or her mental faculties, from criminal liability. ³²

Carter v. Canada, instead, is a case of conceptual unification. Indeed, despite the fact that, as in the Italian case, the trial was about the constitutionality of the criminal prohibition of assisted suicide, ³³ the Canadian Supreme Court created the concept of ‘physician-assisted death’, which includes assisted suicide and active euthanasia. ³⁴ For this reason, the Medical Assistance in Dying Act 2016, enacted as a response to Carter v. Canada, regulated both medical options for the patient.

It is positive that the Italian Constitutional Court has not confused both types of conduct in its ordinance. The Court only referred to assisted suicide and not to euthanasia, ruling only regarding the first. ³⁵ This has special relevance if it is considered that there are opinions in doctrine that advocate the adoption of a system, such as the one in Oregon, which exclusively regulates assisted suicide, noting that such a model, in addition to safeguarding the patient’s freely given consent more vigorously, decreases the possible risks of slippery slope. ³⁶

Regarding the methodological structure of the ordinance, it should be noted that the Constitutional Court rejects, from its first considerations, the existence of a ‘right to die’. As has been stated, the Court holds that the right to life comprises an obligation to protect life, and not a right for individuals to obtain assistance to commit suicide. This circumstance constitutes a second contrast with the Colombian Constitutional Court case law, which has ruled that the right to life with dignity includes the right to die with dignity. ³⁷

However, the rejection of the right to die does not resolve the discussion. Although the State is obliged to protect life, this function must be compatible with respect for other constitutional values. ³⁸ Under this perspective, the problem is presented as one of balancing the different rights involved.

In my opinion, this is the second positive aspect of the ordinance: the Italian Constitutional Court avoided entering into the swampy discussion about the existence or not of a ‘right to die’. Instead, the core of the legal issue was defined as an analysis of the reasonableness of a legal limitation (the offence of assisted suicide) to a fundamental right, closer to the daily work of the Constitutional Court.

This analytical model was the same as that used in Carter v. Canada. On that occasion, the Canadian Supreme Court held that the question under consideration was whether the absolute prohibition on physician-assisted dying, with its heavy impact on the rights to life, liberty and security of the person, was the least drastic means of achieving the legislative objective. The task of the Court was to determine whether a regime less restrictive of life, liberty and security of the person could address the risks associated with physician-assisted dying. ³⁹

It is now necessary to analyse the arguments in relation to the constitutionality of the offence of assisted suicide.

The Constitutional Court held that, in compliance with its duty to protect life, the State can legitimately establish a criminal offence of assisted suicide. It must be clarified, however, that this was never in dispute. The Criminal Court of Milan did not question the constitutionality of the offence of assisted suicide in its entirety, but only its application to cases in which the assistance had not determined or reinforced the suicidal purpose of the patient. Therefore, the questioning was not restricted to cases of patients with serious and irreversible diseases.

Notwithstanding the constitutionality of the offence of assisted suicide, the Constitutional Court recognised that there are exceptional situations in which an absolute prohibition on assisted suicide could be considered contrary to the Constitution. The Court referred to those cases in which patients suffer from a serious and incurable disease and depend on life-support treatments but retain their full mental capacity.

In this specific context, the absolute criminal prohibition of assisted suicide configures an unjustified limitation on the right to self-determination of the patient, imposing a single way to end his or her life on him or her, contravening the principles of human dignity and equality.

This argument is similar to the one developed in Carter v. Canada. The Canadian Supreme Court held that the criminal prohibition on assisted suicide infringed the fundamental right to life, ⁴⁰ liberty and security of the persons, ⁴¹ insofar as it prohibited the:

physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual. ⁴²

In general terms, in my opinion, the reasoning of the Italian Constitutional Court seems reasonable. As indicated, in these cases, the patients are already authorised to reject life-support treatment, causing their death. However, it is absolutely forbidden for a doctor to make available to patients treatments that are intended to cause their death. Thus, if the patients wish to end their lives, their only available option is to endure a process of death which can be slow and painful.

If in these situations the legal order already authorises the patients to ‘let themselves die’, why is it prohibited, in absolute terms, for a doctor, previously requested to do so by the patient, to help them to end their lives, preventing them from suffering a death process that they consider incompatible with their own concept of dignity? This is the question that the Italian Constitutional Court poses and answers: if the cardinal value of life does not exclude the obligation to respect the patient’s decision to end their own existence, through the interruption of life-support treatment, there is no reason why the same value should be an absolute obstacle to accepting the request for help from the patient, who wishes to avoid a slow process of death.

Despite agreeing with the Court’s conclusions, I see two problematic issues in the ruling.

First, the Constitutional Court does not clearly define the circle of persons who exceptionally could assist a suicide. Even though the Court on several occasions refers to or uses the word ‘medic’, ⁴³ it did not establish as a requirement that a health professional be the person that helps the patient to end his or her life, unlike the Colombian Constitutional Court ⁴⁴ and the Canadian Supreme Court, ⁴⁵ which did establish that the active subject should be a physician.

Second, the Court did not resolve the main constitutionality question raised by the Milan Court. ⁴⁶ In effect, the preliminary question challenged the application of the offence of assisted suicide to cases in which the assistance had not determined or reinforced the suicidal purpose of the patient, who was a person fully responsible and aware of his or her decisions.

If, as the Court affirms, the intervention of the criminal legislature must aim at the protection of a constitutional interest, and be proportional to the achievement of that end, ⁴⁷ how could the absolute prohibition on assisted suicide be justified with regard to an adult who, in spite of not suffering a serious and incurable illness, has decided in an absolutely autonomous way to commit suicide? ⁴⁸ In my opinion, it seems difficult to justify an absolute criminalisation of these cases. It must be considered that in these situations, the suicidal person retains his or her full mental capacity and is not a vulnerable individual. If the rationale to criminalise assisted suicide, as the Constitutional Court stated, is to protect the suicidal person, creating a kind of protective belt around him or her, does a totally free willed person need this kind of safeguard? This issue should be explicitly addressed by the Constitutional Court.

As the Italian doctrine has pointed out, one of the most novel aspects of ordinance 207/2018 is the ‘decision technique’ adopted, ⁴⁹ called by some ‘deferred unconstitutionality’. ⁵⁰

Notwithstanding that the Constitutional Court affirmed that the current Italian regulation of the offence of assisted suicide may contravene the Constitution, this situation was not resolved by a simple declaration of unconstitutionality. In the opinion of the Court, such a declaration would create a legal vacuum, allowing any person to offer assistance in committing suicide to others, creating a risk of abuse. In order to avoid this, the adoption of a legal framework that regulates the matter is required; Parliament is the ideal institution to do so.

Therefore, the Court decided, using its ‘powers of management of the constitutional procedure’, to schedule a new hearing on September 2019, in order to grant Parliament the opportunity to legislate on the matter.

Having regard to the foregoing, in my opinion the use of the term ‘deferred unconstitutionality’ is an error, since the Court, in fact, has not formally declared Article 580 ICC unconstitutional, nor is it legally obliged to do so. ⁵¹

The Italian Constitutional Court recognises that it drew inspiration from the judgment in Carter v. Canada, in which the Canadian Supreme Court, after declaring void the offence of assisted suicide, decided to suspend the effects of the decision for 12 months, in order to give the Parliament ‘the opportunity to craft an appropriate remedy’, since ‘complex regulatory regimes are better created by Parliament than by the courts’. ⁵²

The solution adopted by the Italian Constitutional Court raises a series of questions, requiring further analysis.

First, it is relevant to address briefly the Canadian case law on suspended declarations of invalidity. The Canadian Supreme Court used this authority for the first time in re Manitoba Language Rights. ⁵³ In this case, Manitoba had breached its constitutional obligation to enact legislation in both French and English, meaning that almost all of the province’s laws were invalid. ⁵⁴ The Canadian Supreme Court, despite finding the constitutional violation, stated that if the declaration of invalidity causes immediate effects:

The Province of Manitoba would be faced with chaos and anarchy if the legal rights, obligations and other effects which have been relied upon by the people of Manitoba since 1890 were suddenly open to challenge. The constitutional guarantee of rule of law will not tolerate such chaos and anarchy.

Nor will the constitutional guarantee of rule of law tolerate the Province of Manitoba being without a valid and effectual legal system for the present and future. Thus, it will be necessary to deem temporarily valid and effective the unilingual Acts of the Legislature of Manitoba which would be currently in force, were it not for their constitutional defect, for the period of time during which it would be impossible for the Manitoba Legislature to fulfil its constitutional duty. ⁵⁵

Subsequently, in Schachter v. Canada, the Canadian Supreme Court intended to articulate a framework for granting suspensions, holding that a suspended declaration of invalidity is ‘clearly appropriate’ if an immediate declaration of invalidity (1) ‘poses a potential danger to the public’; (2) ‘threatens the rule of law’; or (3) ‘in cases of underinclusiveness as opposed to overbreadth. For example, in this case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged the legislation in question is not usually problematic in and of itself. It is its underinclusiveness that is problematic so striking down the law immediately would I deprive deserving persons of benefits without providing them to the applicant. At the same time, if there is no obligation on the government to provide the benefits in the first place, it may be inappropriate to go ahead and extend them’. ⁵⁸ This legal framework reaffirmed the exceptionality of suspended declarations. ⁵⁹

Unfortunately, since 1985, suspensions have been granted with increasing frequency and flexibility, ⁶⁰ Carter v. Canada being a good example. ⁶¹ Periods of delay have also increased, even reaching 18 months in some cases. ⁶²

The problem with the ‘decision technique’ adopted by the Italian Constitutional Court is, in my opinion, precisely its justification. Indeed, the Court based its decision on hypothetical practical risks: it stated that a declaration of unconstitutionality would create a legal vacuum, which would allow any person to offer assistance to a person to commit suicide.

First of all, it should be noted that these concerns are hypothetical, as they were not part of the debate. In effect, there is no information available on the universe of patients with serious and incurable diseases to be found in the conditions indicated in the ordinance.

Second, it is strange that the Italian Constitutional Court does not take into consideration the Colombian experience, which shows that a declaration of unconstitutionality in this matter does not have the chaotic consequences described. ⁶³ In 1997, the Colombian Constitutional Court established the conditions under which active euthanasia would be allowed and urged Congress to establish, in the shortest possible time, a legal framework for this matter. However, it was not until 2015 that, due to a second judgment of the Constitutional Court, ⁶⁴ the Ministry of Health and Social Protection of Colombia issued the required regulations. ⁶⁵ What happened between 1997 and 2015? During this period, active euthanasia was simply practised only by those doctors and institutions that agreed to it, always under the circumstances established by the Constitutional Court. ⁶⁶

Notwithstanding the foregoing, even if the concerns of the Italian Constitutional Court could be true, it would still be necessary to examine whether the decision of the Court was found to be justified or not. In my opinion, the only possible grounds for suspending the effects of a declaration of unconstitutionality, or for deferring its pronouncement, as occurred in this case, is the one that motivated the first judgments of the Canadian Supreme Court: that the declaration of invalidity is necessary to avoid a greater unconstitutional effect.

Indeed, as the law at issue is contrary to the Constitution, any kind of suspension granted has the consequence of maintaining this situation of unconstitutionality. The criminal procedure against Marco remains suspended, and patients who are in the same situation as Fabiano will have to continue to endure their slow and tortuous death process, suffering incurable diseases that cause them intolerable pain.

Possible practical difficulties should not be enough to maintain a state of affairs contrary to the Constitution.

What effects does this ordinance generate in other criminal proceedings for the offence of assisted suicide? On this, the Court declares that ‘courts should evaluate whether, in the light of what has been indicated, similar questions of constitutionality may be raised in order to avoid the application of the provision at issue’. ⁶⁷ Having not formally declared the invalidity of Article 580 ICC, ordinary courts should carefully analyse the circumstances of each case and decide to raise a preliminary question or not.

In conclusion, the Italian Constitutional Court has created a problematic ‘decision technique’ insofar as it is not binding on ordinary courts, not in relation to Parliament nor of itself, ⁶⁸ and neither was it fully justified.