Assisted dying in Switzerland: Unclear lethal drug prescribing guidelines breached human rights

15 May 2013 by Isabel McArdle

GROSS v. SWITZERLAND – 67810/10 – Chamber Judgment [2013] ECHR 429 – Read judgment / press summary

The European Court of Human Rights has ruled that Swiss guidelines for doctors prescribing lethal drugs were too unclear and therefore breached article 8 ECHR, the right to private and family life. Ms Gross sought a prescription for a lethal drug to end her own life. She has no critical illness, but is elderly and feels that her quality of life is so low that she would like to commit suicide. The Swiss medical authorities refused to provide her with the prescription.

Assisted dying and the right to die have been firmly back in the spotlight this week, with the cases of Lamb and “Martin” going to the English and Wales Court of Appeal. Mr Lamb is taking up the point made by Tony Nicklinson in the High Court, before his death, that doctors should have a defence of necessity to murder charges in cases of assisted suicide. Mr Nicklinson’s widow, Jane, is continuing his fight too. The cases also challenge the current guidelines on when prosecution should be brought for assisting suicide. You can read more about the background to the right to die caselaw here.

Under Swiss law, a person can be subject to criminal punishment for inciting or assisting suicide only when motivated by “selfish motives”. In considering doctors’ actions, the Swiss courts had referred to the Swiss Academy of Medical Sciences’ guidelines.

The Swiss court rejected her challenge to the medical authorities’ refusal, on the grounds that there was no obligation on a state to supply a person with a lethal drug for the purpose of committing suicide and the guidelines laid down by the Swiss Academy of Medical Sciences for supplying drugs for this purpose were not fulfilled by Ms Gross, as she had no terminal illness.

The European Challenge

She challenged the position by arguing that her Article 8 rights (right to respect for family and private life) were violated, in that she was denied the opportunity to choose by what means and when her life should end.

The Decision

Unsurprisingly, given previous caselaw on assisted dying, the ECtHR considered that Ms Gross’ Article 8 rights were engaged by these facts.

The ECtHR discussed the guidelines which doctors followed when assessing whether to prescribe lethal doses of drugs for the purpose of suicide. However, they did not have the formal quality of law (they were made by a non-legislative body) and Ms Gross fell outside them, as she was not suffering an illness which would lead to death in a matter of days or weeks.

There were no other guidelines assisting doctors in making decisions in cases where patients asked to be prescribed such drugs, but where they fell outside of the scope of the current guidelines.

This lack of guidelines in circumstances such as Ms Gross’ was likely to deter doctors from prescribing drugs, where the doctors would otherwise have been likely to prescribe them. The uncertainty of this situation, bearing in mind how important the request for assistance was to Ms Gross, was likely to have caused her considerable anguish.

Article 8 was violated by the lack of guidelines covering cases such as Ms Gross’ situation, where the person requesting the drugs was not suffering a terminal illness of the type which satisfied the criteria for the existing guidelines. This was the case, even though Swiss law created the possibility for doctors to prescribe lethal doses of drugs.

At paragraph 66 the ECtHR noted:

The Court concludes that the applicant must 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 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, but where death is not imminent as a result of a specific medical condition. The Court acknowledges that there may be difficulties in finding the necessary political consensus on such controversial questions with a profound ethical and moral impact. However, these difficulties are inherent in any democratic process and cannot absolve the authorities from fulfilling their task therein.

Comment

The ECtHR did not take a view on whether the prescription should actually be given to Ms Gross, as this would infringe upon the Swiss state’s rights to define the circumstances when it allowed or did not allow assistance of this type in suicide. This is not surprising: in areas where there is particular cultural and ethical sensitivity, the ECtHR leaves a wide margin of appreciation to the state to consider how to define its position on the issue at heart.

However, this is another decision where it can be seen that the ECtHR has helped those wishing to end their own lives to know their rights. Perhaps more importantly, by requiring clarification of the guidelines which doctors wishing to assist people like Ms Gross are to follow, the deterrent effect hanging over those doctors (of the possibility of their decisions being challenged in court and the subject of criminal proceedings) is lifted, provided they comply with the guidelines applying to the situation. In practice, this is likely to mean more doctors are willing to help, and consequently, more people wishing to end their own lives are able to do so.

What impact does this have on the ongoing UK cases? Clearly, the legislative background is very different: Swiss law is much more liberal in relation to assisted dying and assisted suicide. However, the cases in the Court of Appeal this week do involve issues surrounding guidelines (in this case guidelines on whether the Crown Prosecution Service should prosecute those suspected of assisting others to commit suicide) and the question of whether such guidance is clear enough in certain circumstances.

Although the guidelines in Gross v Switzerland are of a different nature and set against a different legislative backdrop, the case at least goes to show the importance the ECtHR places on allowing those contemplating suicide with assistance, or contemplating assisting suicide, to predict the likely legal consequences of their actions.

Read more:

• “No precedent? Then set one”” Nicklinson right to die case
• BC Supreme Court grasps the nettle in right to die case
• No right to die without a “Living Will”

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