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Year: 2013

Nonphysician-assisted in

Andorno, Roberto

DOI: https://doi.org/10.1017/S0963180113000054

Posted at the Zurich Open Repository and Archive, University of Zurich ZORA URL: https://doi.org/10.5167/uzh-92579 Journal Article

Originally published at: Andorno, Roberto (2013). Nonphysician- in Switzerland. Cambridge Quarterly of Health- care Ethics, 22(3):246-253. DOI: https://doi.org/10.1017/S0963180113000054

Cambridge Quarterly of Healthcare Ethics, 2013, vol. 22, n° 3, p. 246-253

Nonphysician-Assisted Suicide in Sw itzerland

ROBERTO ANDORNO

1) Nonphysician assisted suicide is An Unintended Permissive Policy permitted. Whereas in the on Assisted Suicide and Belgium only physicians are allowed to assist in In general, legal responses to end-of-life a suicide, in Switzerland this issues are not very different in assistance is provided by (non- Switzerland than in most European physicians) volunteers working countries. For instance, active for nonprofit organizations. The (i.e. killing on request) is role of doctors is limited to illegal, although it is treated as a lesser prescribing the lethal drug and offense than murder or manslaughter. assessing the patient’s decisional Article 114 of the Swiss Penal Code reads, capacity; they do not perform the “Every person who, for honorable reasons, assistance in the suicide especially mercy, kills another person on themselves.2 In this regard, the his or her serious and pressing request practice of assisted suicide in shall be punished by imprisonment for a Switzerland is similar to the one maximal term of three years or with a in the US state Oregon.3 fine.” Also, like in most European 2) One need not have a particular countries, the administration of medical condition (such as a medication (for instance, morphine) to or an unbearable relieve serious pain of a terminal patient, suffering) to request assistance even though it may lead to the with suicide. The only unintended consequence of hastening requirement is that the individual his or her death, is accepted, in both must have decisional capacity, moral and legal terms. Similarly, like in because in the absence of it his or many other countries, the withdrawal or her act cannot be considered a withholding of life-sustaining “suicide” in legal terms. In fact, at treatments, even if not covered by any present, according to a recent specific legal provision, is not treated as study, around 25% of people who a criminal offense provided that certain die by assisted suicide in conditions are fulfilled.1 Switzerland do not have any The peculiarity of Switzerland serious or terminal illness, but regarding end-of-life issues only relates are just old, or are simply “tired to assisted suicide. This practice, which of life”.4 is permitted, has two significant differences if compared to the situation The peculiarity of the Swiss situation is in the other (few) European countries due to the circumstance that, unlike that allow it: other countries allowing assisted suicide, Switzerland does not have any specific legal norms regulating this practice. This assisted suicide explains the two current situation has developed, not as aforementioned gaps in the Penal Code the result of an explicit liberal policy, but when compared with the provisions of rather at the initiative of non- other countries allowing this practice. governmental right-to-die organizations, First, it does not make any mention of which took advantage of a gap in the physicians in the practice of assisted legal system. The draft Penal Code, suicide. Second, no particular medical which was submitted to the Parliament condition is required to request in 1918 and approved in 1937, already assistance with suicide. included the current Article 115, entitled Therefore, in Switzerland, anyone “inducement and assistance to commit can in principle assist an individual to suicide”, which reads: “Every person who, commit suicide, and any competent for selfish reasons, incites or assists person can request such assistance. someone to commit suicide, shall be However, as mentioned previously, sentenced to imprisonment of up to five assisted suicide is in fact performed by years or a fine.” volunteers working for nongovernmental This article is interpreted a contrario organizations, and not by physicians. as meaning that assistance with suicide Interestingly, according to a study is not a criminal offense when it is conducted in 2009, 80.4 % of Swiss practiced without any self-interested doctors are reluctant to be directly motivation. There would be a selfish involved in this practice, which they motivation if, for instance, the assisting consider to be a “nonmedical person would inherit the one who is intervention” (although the majority of seeking to die, or would benefit in some them do not regard the practice itself as other way from the death of the latter. morally reprehensible).6 But because nonprofit organizations do In addition, the Swiss Academy of not have, in principle, any selfish Medical Sciences issued in 2004 motivations for helping someone to guidelines on this matter expressing commit suicide, their activities are not serious reservations about the illegal. involvement of physicians in assisted Certainly, Article 115 of the Penal suicide. Paragraph 4.1 of the guidelines Code was not originally conceived with specifies that “the proper task of doctors the purpose of “legalizing” assisted is to relieve patients’ suffering, not to suicide, let alone facilitating the offer them assistance to commit activities of nongovernmental suicide.”7 The rationale of this statement organizations involved in this practice. is that doctors’ involvement in their Rather, the authors of the draft Penal patients’ suicide risks creating confusion Code had in mind the situation of about the proper aim of the medical somebody who assists a desperate profession, on the side not only of the individual wanting to end his or her life patients, but also of doctors themselves. for some personal reasons; the It should be noted that these guidelines lawmakers decided to exclude have been incorporated into the imprisonment when the assisting Professional Code of the Swiss Medical individual acted without any personal Association (Federatio Medicorum interest. The whole parliamentary Helveticorum, FMH) and, in this way, discussion in the 1930s did not envisage they are binding for all practitioners. at all suicide assistance from a medical However, the Academy itself nuanced perspective. It was, rather, inspired by the statement made in Paragraph 4.1. “romantic stories about people while acknowledging, in the same committing suicide in defence of their paragraph, that if a doctor, in accordance own, or their family’s honour, and about with his conscience, decides to assist in a committed by rejected lovers”.5 suicide, his decision has to be respected: The unintentional character of the current permissive regime regarding “On the one hand assisted suicide is not be disabled in a serious manner.” Exit part of a doctor’s task, because this workers follow a protocol and use a contradicts the aims of medicine. On the checklist to document what was other hand, consideration of the patient’s wishes is fundamental for the doctor- discussed at the initial visit and all patient relationship. This dilemma subsequent contacts. Most members who requires a personal decision of conscience are considered eligible for assistance are on the part of the doctor. The decision to close to death, and Exit routinely provide assistance in suicide must be recommends both hospice care and respected as such. notification to the family. The In any case, the doctor has the right to association has two branches: Exit refuse help in committing suicide. If he decides to assist a person to commit Deutsche Schweiz, which operates in the suicide, it is his responsibility to check the German-speaking part of Switzerland, following preconditions: the patient’s with headquarters in Zurich, and Exit disease justifies the assumption that he is ADMD (Association pour le Droit de approaching the end of life; alternative Mourir dans la Dignité) for the French- possibilities for providing assistance have speaking part of the country, with been discussed and, if desired, have been headquarters in Geneva. They have implemented; the patient is capable of making the decision, his wish has been well 55,000 and 10,000 members thought out, without external pressure, respectively.8 and he persists in this wish. This has been Dignitas was created in 1998 by the checked by a third person, who is not lawyer Ludwig Minelli and offers necessarily a doctor. The final action in the assisted suicide to nonresidents in process leading to death must always be Switzerland. It has at present 5.500 taken by the patient himself.” members.9 People seeking to end their

lives have to register with the society, The Role of Nongovernmental pay a registration fee (200 Swiss Francs: Organizations in Assisted Suicide around 160 Euros), and an annual fee of

80 Swiss Francs, and when (and if) they The debate on assisted suicide in decide to kill themselves, they have to Switzerland has essentially to do with pay a total amount of 6,000 Francs the role of nonprofit organizations (around 5,000 Euros), which includes offering that assistance, and not with the the administrative and burial costs. involvement of physicians or with Members also have to give a power of particular medical conditions for such a attorney to the society for all the request. There are two main non- administrative procedures. Most people governmental organizations involved in seeking assistance to suicide come from this practice: Exit and Dignitas. They , the UK, and . More usually perform the suicides in their own than 100 Britons have been assisted to accommodations. Sometimes they rent die by this organization. This apartments for this purpose. Suicides do particularity has generated a heated not take place in public hospitals, except debate in Switzerland about the so-called in Geneva and Lausanne, which have death tourism. authorized them. However, even in these Media scandals occur regularly about cases, assistance to suicide is not the that results from the performed by the physicians themselves, activities of Dignitas, and about the but by the volunteers working for the contentious ways in which assisted organizations. suicide has been practiced in some cases Exit, which was created in 1982, (in a car at a parking lot and using a offers its services only to residents in plastic bag, or by breathing helium gas, Switzerland. According to the internal etc.).10 Former volunteers of the regulations of the association, people organization have in the past claimed seeking help to commit suicide must be that it is doing business with death, and legally competent, exhibit a constant and that it does not give people enough time consistent desire to die, and be to reconsider their wish to die.11 There experiencing “unbearable suffering, or have been reports indicating that people a condemnation would be possible if the have received the lethal drug the same assisting person has not examined with day on which they arrived to sufficient care if the individual seeking Switzerland, and after only a short suicide was mentally competent. On this interview. Dignitas is also regularly ground, in 2009, the court convicted a accused of not being transparent enough psychiatrist for homicide by recklessness regarding its financial practice. It is also for having assisted the suicide of two suspected of receiving legacies from the persons suffering from mental illness.13 people seeking to commit suicide. This Three years before that judgment, on practice, if confirmed, would put into November 3, 2006, the Federal Court doubts the altruistic nature of the had admitted that an incurable and assistance and its conformity with serious mental disorder may also justify Article 115 of the Penal Code. the recourse to assisted suicide, but in Although physicians are not directly this case a report by a psychiatrist should involved in suicide assistance, this does provide evidence that the patient’s wish not mean that they do not play any role to die is not the expression of the in this practice: everyone seeking to psychiatric disorder itself. This decision commit suicide must be examined by a was severely criticized by the Swiss doctor, who, according to the Swiss Law Federation of Medical Doctors on the on Pharmaceutical Products (2000), is grounds that it is dangerous to allow the only who can prescribe the lethal assisted suicide for psychiatric patients, drug used for that purpose (sodium because it is extremely difficult, if not pentobarbital). This drug is a narcotic, impossible, to determine whether or not but when it is administered at a high the wish to die is the result of the dose (15 grams), it has a lethal effect. If a psychiatric disorder.14 doctor refuses to prescribe the drug to Another conflicting issue is whether the patient, the organization can refer healthy individuals can also be assisted the individual to a collaborating to commit suicide. As aforementioned, physician who will consider assessing the the Penal Code does not explicitly patient’s capacity and eventually exclude this possibility. This debate was prescribe the drug. In practice, usually reignited in July 2009, as the former the doctors who prescribe the lethal drug conductor of the BBC Philharmonic are working closely to the organization. Orchestra, Sir Edward Downes chose to The Law on Pharmaceutical die alongside his wife at the Dignitas Products provides that “the prescribing clinic in Zurich. His wife had been and dispensing of pharmaceutical suffering from terminal cancer, but he products must be carried out in was not terminally ill. He was 85 year accordance with the recognized rules of old, and almost blind, but not terminally medical and pharmaceutical practice” ill.15 This was not the first time Dignitas (Article 26.1). This raises a matter of has assisted with double suicides in interpretation as to whether prescribing which one person was not terminally ill. a lethal drug to a person seeking to The Federal Court has also had the commit suicide is in conformity with opportunity to clarify issues relating to medical practice. The courts have held the prescription and storage of the lethal that, in principle, this legal provision is drug used to commit suicide, and to the not in conflict with assisted suicide, but withdrawal of the permission to practice that the doctor must examine the medicine. In 2010 the court concluded patients’ wishes to die, and assess their that the requirement that one must have competence to make such a decision.12 a medical prescription to obtain sodium So far none of the assisted suicide pentobarbital is not contrary to the right organizations or one of their directors to privacy.16 The European Court of have been convicted under Article 115 of Human Rights confirmed this judgment, the Penal Code. However, the Federal rejecting the allegations of the applicant Court has had occasion to point out that according to which the State would have a positive obligation to facilitate suicide. for each person they assist. The required According to the Court, the state must medical condition was very broad ensure the protection of life, in conceived: it was defined as a “serious conformity with Article 2 of the suffering due to a disease”, but not Convention (right to life). Even when necessarily a terminal disease. assisted suicide is allowed, as it is the Pro-life societies brought the case case in Switzerland, the state must before the Federal Court, arguing that prevent abuse in the use of this faculty the agreement was contrary to the because of its obligation to protect life.17 Constitution. The agreement was In 2008, the Federal Court invalidated on 16 June 2010 by the confirmed the decision of the Federal Court, which came to the Department of Health of the Canton of conclusion that such an agreement Zurich, which refused to grant a renewal between individuals and public of the license to practice medicine to a authorities is illegal, as it entails an 70-year old doctor who had prescribed undue extension of Article 115 of the sodium pentobarbital to elderly patients Penal Code relating to assistance with after just a single interview.18 suicide. In addition, the right to life, One year later, the Federal Court which is at the center of the agreement, determined that, according to Article 14a is of such great importance that only the of the Law on Drugs and Psychotropic federal legislature is competent to Substances, Dignitas was not authorized regulate such issues. to store sodium pentobarbital in its Simultaneously, the Federal Council accommodations or to provide it directly (the executive body) presented in to the individuals seeking to commit October 2009 two different draft bills for suicide.19 consultation to the Swiss parliament. Basically, the government did not wish A Failed Attempt to Regulate to take anything away from the current, Assisted Suicide liberal legal situation. However, because assisted suicide organizations are Throughout the last decade the Swiss increasingly testing the boundaries of authorities have tried to establish some the law, and in some cases evading state minimal rules relating to assisted and professional monitoring suicide, but without success.20 In 2009, mechanisms, the Federal Council an agreement signed between the Canton considered an urgent need to lay down of Zurich and Exit in order to regulate minimal rules, which should ensure that this practice within the canton raised a assisted suicide is only available to serious controversy and was one year terminally ill patients, and not to those later invalidated by the Federal Court. with a chronic or a mental disease. These The debate was about the proper role of rules should also prevent organized the state in this matter. Some argued assisted suicide becoming a profit-driven that public authorities have nothing to business. The government also expressed negotiate with nongovernmental its willingness to promote palliative care organizations regarding the way in which and to offer suicidal assisted suicide is practiced because this individuals alternatives to taking their is an issue of public interest that only the own life. As a result of this initiative, two state (preferably the Federal State, not options were elaborated: each canton) can regulate. The agreement included very detailed Option 1: Regulation of the Practice of rules and, in general, endorsed the Organized Assisted Suicide current practice. It provided, for instance, that the only method allowed is According to one of the bills, which was sodium pentobarbital; that the preferred by the majority of the volunteers cannot receive more than 500 members of the Federal Council, Article Swiss francs (approximately 420 euros) 115 should be amended to include a number of duties of care. The following that those assisting in a suicide elements are significant in this regard: are not driven by personal gain, and that their prime motivation is 1) Free will and time of reflection: to help the person who wishes to the person seeking to commit die. Finally, the assisted suicide suicide must freely declare their organization and those who wish to die, and must have given actually assist with the suicide long and proper consideration to must document each case their decision. This provision was comprehensively in order to help intended to prevent impetuous any enquiries on the part of the decisions that have not been criminal prosecution authorities. thought through; 2) Two doctor's certificates required: Option 2: Total ban on organized the person who wishes to die assisted suicide must present two certificates from two different doctors who The second option, proposed by Pascal are independent of the assisted Couchepin (member of the Federal suicide organization. One of the Council at that time), consisted in a certificates must attest that the complete ban on organized assisted suicidal person has the legal suicide. This option rested on the capacity to decide for him- or conviction that suicide should remain an herself; the second must state individual issue, and should not in any that the suicidal person suffers way be supported by the state. According from a physical illness that is to its author, it is contradictory for the incurable and will result in death state, on the one hand, to promote within a short period. This would respect for life as well as to prevent rule out organized assisted suicides, and, on the other hand, to suicide for those with chronic regulate how the practice of suicide illnesses that are not in should be organized. In addition, it is themselves terminal, and for dubious that people working for assisted those suffering mental illness. suicide organizations are motivated by Comprehensive treatment, care purely altruistic reasons, because they and support -in the sense of are paid for that assistance. palliative medicine- should allow Both options generated considerable these people to continue to live in controversy within the consultation dignity. procedure. If the majority of participants 3) Non-commercial purpose: those agreed that it was necessary to legislate assisting in a suicide must discuss at the federal level, no clear consensus and examine alternatives to on the solution to this sensitive issue was suicide with the person reached. Many participants in the concerned. The drug that is used consultation procedure seized the must have been prescribed by a opportunity to demand the doctor. This demands that a implementation of measures to prevent diagnosis and the corresponding suicide and promote palliative care. indications be established in In September 2010, the government accordance with the physician's instructed the Department of Justice to professional obligations and prepare a draft amendment of Article 115 duties of care. Those assisting in a of the Penal Code along the lines of suicide may not be pursuing option 1, and to take into account the commercial ends. They may not criticisms addressed to it during the accept any payment for their consultation procedure. Meanwhile, the services that would exceed the Council instructed the Department of costs and expenses of the assisted Home Affairs to propose measures to suicide. This provision ensures strengthen palliative care and suicide that specific legal regulation on assisted prevention. suicide would not improve the current In June 2011, both departments situation and would carry many arrived to the conclusion that an disadvantages. On these grounds, the amendment to Article 115 of the Penal government decided to focus on the Code would not improve the current adoption of measures to strengthen situation, and would carry many palliative care and suicide prevention. disadvantages, such as the legitimization of assisted suicide organizations, the relativization of the value of human life, Notes and the likely resistance of the medical 1 Guillod O. and Schmidt, A. Assisted suicide under community to the implementation of the Swiss law. European Journal of Health Law 2005, 12(1): 25-38, at 26. new rules. They concluded that the 2 abuses taking place in the practice of Bosshard G. Switzerland. In: J. Griffiths and H. Weyers (eds.). Euthanasia and Law in Europe, assisted suicide (for instance, suicide for Oxford: Hart Publishing, 2008, 463-481 incompetent persons and for persons in 3 Ziegler S and Bossard, G. Role of non- good health, provision of the lethal drug governmental organizations in physician assisted without prescription, unlawful storage of suicide. British Medical Journal 2007; 334:295- the drug, etc.) can be fought using the 298. 4 legal tools that are currently available. In Fischer S. Huber C.A. Imhof, L. Mahrer Imhof R. July 2011, the government, following the Furter M. Ziegler S.J., and Bosshard G. Suicide assisted by two Swiss right-to-die organisations. recommendation made by both Journal of Medical Ethics 2008;34(11):810-814. departments, decided not to propose any 5 See note 1, Guillod and Schmidt 2005:29; Hurst S. specific legal norm relating to assisted and Mauron A. Assisted suicide and euthanasia in suicide and to adopt measures to prevent Switzerland: allowing a role for non-physicians. suicides and to promote palliative care in British Medical Journal 2003;326:271-273. 6 order to reduce the number of suicides. Pfister, E. and Biller-Andorno N. The reception and implementation of ethical guidelines of the Conclusion Swiss Academy of Medical Sciences in medical and nursing practice. Swiss Medical Weekly 2010;140: 160-167. Available at: Switzerland is the only country in http://www.smw.ch/docs/PdfContent/smw- Europe that allows nonphysician 12647.pdf assisted suicide, and that does not 7 Swiss Academy of Medical Sciences, Guidelines. require any particular medical condition Care of patients in the end of life. 2004. At: for receiving such assistance. Nonprofit http://www.samw.ch/en/Ethics/Guidelines/Currentl organizations play a central role in this y-valid-guidelines.html 8 See Exit website: http://www.exit.ch practice as their volunteers are those 9 See Dignitas website: http://www.dignitas.ch who directly assist people seeking to 10 Ledig M, Samuel H. Swiss suicide groups commit suicide, whereas doctors operates in car parks. The Telegraph, 9 November prescribe the lethal and assess the 2007; Konnolly K. Dignitas attacked for new patient’s decisional capacity, but do not assisted-suicide method, The Guardian, 21 March assist directly patients in the suicide. 2008; Euthanasia group Dignitas films gas and The current situation is not the plastic bag deaths, Daily Mail, 19 March 2008. 11 Hall A. Cashing in on despair ? Suicide clinic outcome of a deliberate liberal policy, Dignitas is a profit obsessed killing machine, claims but is the unintended result of a gap in ex-worker. The Mail, 25 January 2009. the Swiss Penal Code, which does not 12 Zurich Administrative Court, 3rd Chamber, 15 punish assisted suicide when the July 1999. assisting person is without selfish 13 Federal Court, 11 June 2009, Decision 6B_48/2009. motivations. In 2009, the government 14 tried to fill this gap by examining the Ragenbass R. and Kuhn H. L’aide au suicide opportunity of introducing specific n’est pas un droit humain. Bulletin des médecins suisses 2007;88(11):455-456. legislation to regulate this matter. 15 British conductor dies with wife at assisted However, in June 2011, after careful suicide clinic. The Guardian, 14 July 2009. consideration, it came to the conclusion Available at: http://www.guardian.co.uk/society/2009/jul/14/assi sted-suicide-conductor-edward-downes 16 Federal Court, 12 April 2010. Decision 2C_9/2010. 17 European Court of Human Rights, Haas v. Switzerland, 20 January 2011. Application N° 31322/07. 18 Federal Court, 24 June 2008. Decision 2C_191/2008. 19 Federal Court, 1 April 2009. Decision 2C_839/2008. 20 Dryer C. Swiss parliament may try to ban ´suicide tourism´. British Medical Journal 2003; 326:242.