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Assisted suicide: Models of legal regulation in selected European countries and the case law of the European Court of Human Rights Claudia Grosse and Alexandra Grosse Med Sci Law published online 19 August 2014 DOI: 10.1177/0025802414540636 The online version of this article can be found at: http://msl.sagepub.com/content/early/2014/08/19/0025802414540636

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British Academy of Forensic Sciences

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Med Sci Law OnlineFirst, published on August 19, 2014 as doi:10.1177/0025802414540636

Original article

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

Medicine, Science and the Law 0(0) 1–13 ! The Author(s) 2014 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0025802414540636 msl.sagepub.com

Claudia Grosse1 and Alexandra Grosse2

Abstract This paper presents three different models of the legal regulation of assisted suicide in European countries. First, the current legal regime governing assisted suicide in the Netherlands is described where both euthanasia and assisted suicide have been legalised. This section also includes some empirical data on euthanasia and assisted-suicide practices in the Netherlands, as well as a comparison with the current legal legislation in Belgium and Luxembourg. Next, Switzerland is presented as a country where euthanasia is punishable by law but assisted suicide is legally allowed, provided it is not carried out with selfish motives. This section also focuses on the assisted-suicide–related case law of the Swiss Federal Supreme Court and the European Court of Human Rights. Last, the current legal situation regarding assisted suicide in Austria and Germany is described. While the Austrian Penal Code explicitly prohibits assisted suicide, assistance with suicide is not specifically regulated by the German Penal Code. However, medical doctors are not allowed to assist suicides according to the professional codes of conduct drawn up by the German medical associations under the supervision of the health authorities. Keywords Human rights, law, legal system, medical law

Introduction Euthanasia and assisted suicide are highly controversial subjects in many countries. While the law is very liberal in some countries such as the Benelux states, these practices remain legally prohibited in others. Currently, both euthanasia and physician-assisted suicide (PAS) are legally allowed in the Netherlands, Belgium and Luxembourg. Assisted suicide is legally allowed in Switzerland and in the US states of Oregon, Washington and Montana. Comparative research in respect of 42 Council of Europe Member States, conducted by the European Court of Human Rights (ECHR), shows that in the vast majority (36)a of Member States, any form of assistance to a

Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia, Lithuania, Malta, Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia, Slovakia, Slovenia, Spain, the Former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom. In Sweden and Estonia assistance to suicide is not a criminal offence; however Estonian medical practitioners are not entitled to prescribe a drug in order to facilitate suicide. In Germany, while assisted suicide is not specifically regulated by the German Penal Code, medical doctors are not allowed to assist suicides according to the

suicide is strictly prohibited and criminalised by law. Conversely, only four Member States (the Netherlands, Belgium, Luxembourg and Switzerland) allow medical practitioners to prescribe lethal drugs, subject to specific safeguards. The ECHR concluded that the majority of Council of Europe Member States appears to attach more weight to the protection of an individual’s life than to his/her right to terminate it. Because of the lack of a consensus among the Council of Europe Member 1

University of Berne, Switzerland University of Vienna, Austria

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Corresponding author: Claudia Grosse, University of Berne, Schanzeneckstraße 1, Berne, 3001, Switzerland. Email: [email protected] ( fnote continued) professional codes of conduct drawn up by the medical associations under the supervision of the health authorities. See European Court of Human Rights, Koch v. Germany, 19 July 2012, application no. 497/09, pp. 7,8, § 26. Of the five remaining Council of Europe Member States that were not included in the comparative research, assisted suicide is also punishable by criminal law in Armenia, Iceland, Italy and Liechtenstein. Finland has no specific legislation governing assisted suicide. http://legislationline.org/documents/section/criminal-codes (accessed 3 February 2014).

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States as regards the right of an individual to decide how and when to end his/her life, the ECHR considered that ‘the States enjoy a considerable margin of appreciation in this area’.1 In the past, the ECHR has had the opportunity to decide on a number of assisted-suicide–related cases.2 This paper presents the different legal regimes governing assisted suicide by detailing the current legal status, with reference to available empirical data and the relevant ECHR case law, in the following European countries: (i) The Netherlands as an example of a country where both euthanasia and PAS are legally allowed; (ii) Switzerland, where euthanasia (killing on request) is prohibited, but non-PAS is allowed due to an unintended gap in the Swiss Penal Code; (iii) Germany and Austria where both euthanasia and PAS are punishable by law.

The Netherlands 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

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 consideredk; 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. Downloaded from msl.sagepub.com at Library - Periodicals Dept on November 15, 2014

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Grosse and Grosse 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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Royal Dutch Medical Association (KNMG) that PAS should be preferred over euthanasia, PAS had a much lower frequency than euthanasia in each study.5 In 2010, PAS occurred in 0.1% (21 of 6861) of all studied deaths (2005: 0.1%, 17 of 9965; 2001: 0.2%, 25 of 5617).11 Possible explanations for the frequent preference of euthanasia over PAS are that physicians want to control the act of ending of life and to have medical assistance available in case of unforeseen difficulties, which are more likely to occur when patients take the drugs themselves.12 When patients are physically too weak to take the drugs themselves, euthanasia is also often preferred. The increase in the frequency of euthanasia between 2005 and 2010 is related to both an increase in the number of explicit requests for euthanasia (from 4.8%, 503 of 9965, of all deaths surveyed in 2005 to 6.7%, 766 of 6861, in 2010) and the proportion of requests that were granted (from 37%, 252 of 503, to 45%, 496 of 766, of requests).11 A possible explanation for the decline in the frequency of euthanasia and PAS between the period from 2000 to 2005 may be an increased use of other options to relieve the patient’s suffering, such as continuous deep sedation, which was for the first time included in the 2001 study Empirical data and has increased from 5.6% of all deaths (that occurred in conjunction with end-of-life decisions) in Systematic empirical research was a unique feature of 2001 to 8.2% (521 of 9965) of all studied deaths in the process of legalising euthanasia in the 2005 and 12.3% (789 of 6861) in 2010.13 Also, as the Netherlands. Since the first nationwide study in 7 1990, similar research has been conducted every rate of euthanasia and PAS in 2010 was comparable with the rate before the enactment of the Euthanasia five years through death certificates studies in 1995,8 Law in 2001, some physicians, in 2005, might have 2001,9 200510 and 201011 on the frequency and charbeen unsure about how the law would work in pracacteristics of end-of-life decisions, including the protice, making them reluctant to perform euthanasia.11 portion of reported cases of euthanasia and PAS. In 2010, 2.8% (475 of 6861) of all studied deaths in the The studies further show that the frequency of Netherlands were the result of euthanasia.11 This rate ending of life without explicit patient request decreased from 0.8% of all deaths in 1990 to 0.2% is higher than the 1.7% (294 of 9965) in 2005 and the in 2010.11 The decrease might be related to increased 1.7% (141 of 5197) in 1990, but comparable with those in 2001 (2.6%, 310 of 5617) and 1995 (2.4%, attention for palliative care over the last decade and 257 of 5147).11 Distribution of sex, age and diagnosis to the regulation of euthanasia and PAS, through enabling patients and physicians to discuss end-ofwas stable between 1990 and 2010. Euthanasia is still life preferences openly. In all studied years, intensified mostly undertaken in younger people, cancer patients alleviation of symptoms and forgoing of life-prolongand in general practice rather than in hospitals or ing treatment (either withholding or withdrawing) nursing homes.c Despite recommendations from the occurred much more often than active ending of b life.5 While the frequency of forgoing of life-prolongIn two of the three cases, the dosage of coma-inducing drug ing treatments remained rather stable over the years, administered to the patient was only half that recommended in Standaard Euthanatica 2007. In all three cases, the attending physbetween 16% and 20% of all deaths, the percentage of icians subsequently failed to check whether the patient was in a the use of intensified alleviation of symptoms sufficiently deep coma before administering the muscle relaxant. increased from 19% of all deaths in 1990 to 36% in In assessing compliance with the due medical care criterion, the committees take the Standaard Euthanatica, toepassing en bereiding 2010.11 Since the first study in 1990, the reporting 2007 (‘Standaard Euthanatuca 2007’) of the Pharmacy Research rates of cases of euthanasia and PAS have increased Institute (WINAP) of the Royal Dutch Association for the from 18% (486 of 2700) of all estimated euthanasia Advancement of Pharmacy (KNMP) as their guide. Standaard Euthanatica 2007 states which method, substances and dosages and PAS cases in 1990 (reported at that time to the the KNMP does or does not recommend for use in cases of terminPublic Prosecutor) to 41% (1466 of 3600) in 1995 ation of life on request or assisted suicide. c (Public Prosecutor), 54% (2054 of 3800) in 2001 The majority (80–90%) of notified euthanasia cases involve malignancies. In 2011, 13 cases of euthanasia or assisted suicide involving (review committees), 80% (1933 of 2425) in 2005, patients with psychiatric problems and 49 cases concerning patients after the introduction of the Act (review committees), with demential syndrome were notified (overall number of notifiand 77% (3136 of 4050) in 2010 (review cations of euthanasia or assisted suicide in 2011: 3695). Downloaded from msl.sagepub.com at Library - Periodicals Dept on November 15, 2014

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4 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

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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 rea‘Finished with life’–‘suffering from life’ sonable, there is, in a medical sense, a prospect of improvement.14 The question of whether other ‘reaCurrent public debate in the Netherlands about the termination of life centres on patients in different sonable’ solutions are available is therefore to be stages of dementia, those with psychiatric conditions determined from the patient’s perspective.4,19,20 14,15 and seniors who feel they have ‘completed life’. In While diagnosis, prognosis and possible alternative accordance with the Supreme Court’s ruling treatment options can be assessed objectively, the (Brongersma case 2002)d the KNMG, in its position determination of unbearable suffering is a highly subjective matter depending on the patient’s personality, paper on the role of physicians in termination of life physical and mental perseverance, history and percepat the patient’s request, notes that the patient’s suffertions of the future.3,5 ‘Unbearable’ suffering is thereing must always be rooted in ‘medically classifiable somatic or psychological illnesses or conditions’ and fore to be assessed from the patient’s that providing euthanasia or PAS when there is no perspective,16,19,20 though Dutch review committees unbearable and lasting suffering with a medical basis argue that suffering should be at least partly open to falls outside the scope of current Dutch legislation on objectification.21 16 euthanasia and is always a criminal offence. The Under the Benelux laws, doctors are legally KNMG, however, indicates that physicians are allowed to provide euthanasia or PAS to individuals increasingly confronted with vulnerable people of who at the time of the acts are unconscious advanced age and multi-morbidity (which signifi(Netherlands, Belgium and Luxembourg) or incompecantly increases the likelihood of depression), and tent (Netherlands only), but who have made their that an accumulation of non-life-threatening geriatric wishes known in a written advance directive while afflictions, including loss of physical function and still conscious and competent. For conscious patients, mental vitality, loneliness and loss of autonomy, the treating physician must, under the Netherlands may also qualify as unbearable and lasting suffering law, consult at least one other, independent physician within the meaning of the Termination of Life on who has seen the patient and in a written report has Request and Assisted Suicide Act, thereby allowing given his opinion on the voluntariness of the request, a physician to act within the current law.16 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 Comparison of the legal regimes in the patients suffering from psychiatric conditions or Netherlands, Belgium and Luxembourg: dementia, the review committees recommend physDifferences and similarities icians to treat requests for termination of life with great caution and to consult more than one independThe Netherlands, Belgium and Luxembourg laws ent physician, including a psychiatrist, who must (respectively in force in 2002,4 200217 and 200918) – examine the patient to ascertain the voluntariness the ‘Benelux laws’ – all permit PAS and/or euthanasia and the existence of persistent unbearable sufferfor somatic (physical) and non-somatic (i.e. mental, ing.14,16 Under the Belgian and Luxembourg laws, psychiatric) suffering that is unbearable, lasting and with no other reasonable solution. Suffering must be consultation with another physician, for conscious rooted in a medically classifiable condition. The patients, is also required, and this second physician requirement of unbearable suffering without prospect must expressly be independent of both the treating of improvement is subject to fairly broad interpretphysician and the patient and be competent to give ation and has to be interpreted considering the specific an opinion about the disorder in question. The Belgian law further requires a third consultation for d The Brongersma case. Brongersma v. Sutorius. Nederlands conscious patients who are ‘not expected to die in the Jurisprudentie 2003, 167. In this case, the Supreme Court rejected near future’ (i.e. patients with neurological, psychia general practitioner’s appeal, concurring that the general practitioner could not claim necessity (force majeure). The Court held atric, mental, or other conditions that include fear that the patient’s suffering should have its principal basis in one of future suffering) (Table 2(f)). In those situations, or more medically classifiable somatic or psychiatric illness or a second consulting physician, who must be a conditions. Downloaded from msl.sagepub.com at Library - Periodicals Dept on November 15, 2014

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Grosse and Grosse 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. 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 The legislation makes Belgium the first country in the world to remove any age limit on the practice. Of the Benelux laws, only the Luxembourg law currently mandates that a patient be an adult. 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

5 Code of Medical Ethics of Luxembourg’s Colle`ge Me´dical has not yet been amended and continues to prohibit the practices of euthanasia and PAS.24

Switzerland 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’) e The child must be judged able to understand what euthanasia of 15 December 2000,28 only a doctor is allowed to means. The child must be in unbearable pain due to a terminal prescribe the lethal drug used for the purpose of and incurable illness, with death expected to occur within a short suicide assistance (sodium pentobarbital). period of time. In addition, the child must be examined by two doctors and interviewed by a child psychiatrist or psychologist. (2) No particular medical condition (such as a terThe legal representatives of the minor must also consent. http:// minal illness or an unbearable suffering) is philosophicalcomment.blogspot.co.at/2014/02/legalised-euthanasia required by law to request assistance with -for-children.html (accessed 24 May 2014). Downloaded from msl.sagepub.com at Library - Periodicals Dept on November 15, 2014

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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.

suicide.27 A recent study indicates that approximately 25% of people who die by assisted suicide in Switzerland do not have any serious or terminal illness but are just old or ‘tired of life’.29 The only prerequisite for access to assisted suicide is that the requesting person must be decisionally competent because, in the absence of decisional capacity, his/ her suicide cannot be considered a ‘suicide’ in legal terms.27

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 The current permissive legal regime is not the result of a deliberate policy but rather the unintended conpatient’s illness makes it likely that death is close; sequence of a gap in the Swiss Penal Code. Article 115 (2) other options for support have been discussed of the Penal Code, which was already included in the and, where appropriate, implemented; and (3) the draft Penal Code submitted to the Parliament in 1918 patient is capable of discernment, his request is welland approved in 1937, was not originally perceived considered, is not the result of external pressure and is with the purpose of legalising assisted suicide in a regarded as final, which must be confirmed by an medical context, but rather referred to assisted suicide independent third party, who need not necessarily in the context of an unhappy love affair or of defendbe a doctor. The final act which leads to death must ing one’s own or the family’s honor.30,31 Because of always be carried out by the patient himself. A doctor is entitled, in the context of the recognised profesthe absence of any specific legal norms regulating sional rules, to prescribe sodium pentobarbital for assisted suicide, the practice of assisted suicide in the purpose of suicide, provided that the conditions Switzerland is largely constrained and governed, for doing so are fulfilled. among others, by internal guidelines of right-to-die According to the case law of the Swiss Federal organisations, formal agreements between organisaSupreme Court,35 the guidelines issued by SAMS do tions and local governments,32 the standardised use of lethal barbiturates, which, pursuant to Swiss narnot have the formal quality of law. However, they cotics laws,28,33 requires a medical prescription, and have been incorporated into the Professional Code of the Swiss Medical Association (Federatio by the medico-ethical guidelines regarding medical Medicorum Helveticorum [FMH]) and can be classiassistance for dying patients issued by the Swiss fied as a code of conduct, the value of which is genAcademy of Medical Sciences (SAMS) in 2004.34 In erally accepted by the practitioners bound by it.27 those guidelines, the SAMS expressed serious reservations about the involvement of physicians in assisted Article 115 of the Penal Code has enabled the cresuicide, noting that ‘the task of the doctor is to alleation of two main non-governmental assisted-suicide viate symptoms and to support the patient. It is not associations: Exit and Dignitas. his task to directly offer assistance in suicide, he rather Exit, which was founded in 1982, only assists resiis obliged to alleviate any suffering underlying the dents of Switzerland. According to the internal Downloaded from msl.sagepub.com at Library - Periodicals Dept on November 15, 2014

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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.

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 Germanspeaking part of Switzerland with headquarters in Zurich, and Exit ADMD (Association pour le Droit de Mourir dans la Dignite´), 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 The association (currently 5500 members)38 declares that it does not pursue any commercial interests. Persons seeking to die have to pay a registration fee and an annual fee, and the actual suicide assistance involves additional expenses (for administrative and burial costs, medical examination, defraying the expenses of support assistants, etc.).39 The support assistants, however, do not receive any f The majority of non-residents seeking suicide assistance come from Germany, the United Kingdom and France. The 2011 figure for non-resident deaths reported by Dignitas was 149; the corresponding figure for resident deaths was reportedly 11. In 2011, Dignitas helped, among others, 72 residents from Germany (total 1998– 2011: 664, 51.16%), 22 residents from the United Kingdom (total 1998–2011: 182, 14.02%), 15 residents from France (total 1998– 2011: 117, 9.01%), two residents from Austria (total 1998–2011: 25, 1.93%), and 14 residents from Italy (total 1998–2011: 33, 2.54%) to end their lives. See Forch, Switzerland: Dignitas. 2011. Dignitas: To live with dignity, to die with dignity. Accompanied suicides of members of Dignitas, by year and country of residency [Swiss German]. http://www.dignitas.ch/images/stories/pdf/statistik -ftb-jahr-wohnsitz-1998-2011.pdf (accessed 3 February 2014).

payment for their (voluntary) work, and despite some controversies, the association has never been convicted under Article 115 of the Penal Code. 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 (socalled 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 g The agreement included: assessment of a person’s capacity for discernment through several interviews, provision that the only allowed suicide method is sodium pentobarbital, limitation on the number of suicides per organisation, ceiling on expenses of 500 francs (420 euros) per case, improvement in the selection and training of support assistants, submission of all cases of suicide to the scrutiny of the criminal justice authorities; Federal Court, 16 Jun 2010, ATF 136 II 415.

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8 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. 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

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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 Case law related to assisted suicide suicide.1 The ECHR specified that even assuming that states had a positive obligation to take measures to In its judgment of 3 November 2006, the Swiss facilitate suicide, the Swiss authorities had not vioFederal Supreme Court ruled that the prescription lated that obligation in the applicant’s case because of sodium pentobarbital may also be justified in the the requirement for a medical prescription, issued on case of an incurable and serious mental disorder. the basis of a thorough psychiatric assessment, was However, in such cases, a report by a psychiatrist compatible with Article 8 para. 2 of the based on a thorough psychiatric examination should Convention.1 In a previous case nine years before confirm that the patient’s wish to die is not the expres41 sion of the psychiatric disorder itself. The Swiss that judgment, the ECHR had considered that it ‘[was] not prepared to exclude’ that the fact that the Federation of Medical Doctors severely criticised applicant was precluded by law from suicide assistthis decision on the grounds that it was extremely ance by her husband constituted an interference difficult, if not impossible, to assess whether or not with her right to respect for private life within the the desire to die was the result of the psychiatric dismeaning of Article 8 para. 1 of the Convention.45 order.42 While, so far, none of the assisted-suicide organisations or their directors have been convicted However, the court had concluded that a potential under Article 115 of the Penal Code, the Federal interference with the applicant’s right to respect for Supreme Court confirmed the conviction of a psychprivate life was justified according to Article 8 para. 2 iatrist in 2009 who had assisted in the suicide of a of the Convention as a necessary measure in a demopsychiatrically ill person.43 The court cratic society for the protection of the rights of held that a Downloaded from msl.sagepub.com at Library - Periodicals Dept on November 15, 2014

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Grosse and Grosse others,h rejecting the applicant’s allegation, according to which the legal provision prohibiting assisted suicide violated her right to self-determination within the meaning of Article 8 para. 1 of the Convention. The court had also rejected an alleged violation of Article 2 para. 1 of the Convention on the grounds that the right to life guaranteed in Article 2 para. 1 ‘[could not] . . . be interpreted as conferring the diametrically opposite right, namely a right to die’ and thus had no corresponding negative freedom. 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-yearold 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

9 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

Austria

In Austria, suicide as well as attempted suicide are no longer punishable since 1850 when the provisions of the Criminal Code 1803 regulating suicide (section II, §§ 90–92) were invalidated by Article XVI of the decree of 17 January 1850 (RGBl Nr. 24). Between 1850 and 1934, assisted suicide was treated, in practice, as a punishable crime (the act was subsumed under Section 335 of the Penal Code, ‘endangering the life of another person’) because, while the decriminalisation of suicide could be explained by the lack of guilt of the offender due to mental incapacity or necessity of excuse, the person assisting in suicide could not be excused.50 Specific legislation prohibiting assisted suicide was introduced in 1934 as delictum sui generis through Section 139b of the Penal Code, which was later adopted into the Austrian Penal Code in 1974. Since 1 January 1975, assisted suicide is punishable by up to five years in prison pursuant to Section 78 of the Austrian Penal Code, and (direct active) euthanasia is prohibited by Section 77 of the Austrian Penal Code (‘killing by request’). According to the prevailing opinion in the Austrian literature, suicide is considered a wrongful yet not punishable act with a certain degree of unlawfulness; although it is not a criminal offence under Austrian law, suicide is viewed as legally not neutral, and the criminal responsibility for suicide assistance, according to the prevailing opinion, is explained by the unlawfulness of suicide itself.50 The unlawfulness of suicide is either derived directly from Section 78 of the Austrian Penal Code51 or explained by an obligation to live on, which exists towards the community and is deduced from h Section 78 of the Penal Code.50 The law in issue, section 2 § 1 of the British Suicide Act 1961, According to the minority opinion, the person killaccording to which assisted suicide is punishable by up to 14 years in prison, was ‘designed to safeguard life by protecting the ing himself/herself does not commit an unlawful act, weak and vulnerable and especially those who were not in a conbecause there is no legal norm in the Austrian legal dition to take informed decisions against acts intended to end life or system prohibiting suicide, nor can the unlawfulness to assist in ending life’. Downloaded from msl.sagepub.com at Library - Periodicals Dept on November 15, 2014

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10 of suicide be derived from Section 78 of the Penal Code, which does not say anything about the unlawfulness of suicide itself, but only sanctions the incitement and assistance in a suicide by a third person. However, criminal liability for suicide assistance may be derived from Article 8 of the European Convention on Human Rights, which confirms and restricts the freedom guaranteed by Article 2 of the Convention. The protection of morals and social ethics fall within the ambit of the applicability of Article 8 of the Convention, and according to social ethics, assistance in another person’s suicide appears morally and socio-ethically reprehensible.50 Arguments against this view include that Article 2 of the Convention is not intended to protect an individual against acts carried out by himself/herself, but rather, in connection with Article 8 of the Convention, offers protection of the right to private life, which includes the right to self-determination and, thus, the right of an individual to decide on one’s own death.50,52,53 Besides, the Austrian legal system does not enjoin an obligation on the individual to continue life against his/her will,54 nor does such an obligation exist towards the community.50 According to Moos50 and Schmoller,52 although suicide is socioethically reprehensible, it is legally neutral and cannot be regarded as a criminal wrongful act. However, the socio-ethical rejection of suicide has an impact on the participation of a third person so that the unlawfulness of a third-person’s assistance in a suicide can be explained by the socio-ethical damnability of suicide. Because of the criminalisation of suicide assistance, the Austrian Criminal Law appears to attach more weight to the protection of an individual’s life (including the protection of morals) than to his/her right to self-determination,50 although the effectiveness of a specific legislation prohibiting suicide assistance with regard to the scope of reducing the number of suicides has been debated. In Austria, euthanasia/ killing by request and assisted suicide remain taboo subjects. In the only known assisted-suicide–related case that came to court, the defendant – who had been accused of assisting the suicide of his terminally ill wife by accompanying her to Switzerland to receive suicide assistance from Dignitas – was finally acquitted because of necessity of excuse.55 The Austrian Supreme Court has, so far, not had the opportunity to decide on any assisted-suicide–related issues.

Germany

Medicine, Science and the Law 0(0) German Penal Code),i it follows that the act of intentionally assisting an autonomous suicide is also exempt from punishment due to the lack of an unlawful intentional principal act,56,57 irrespective of whether suicide is rejected for ethical or religious reasons.56 Although assisted suicide is not a criminal offence under German criminal law due to the lack of a specific legal provisionj any form of suicide assistance is prohibited according to the professional codes of conduct drawn up by the medical associations under the supervision of the health authorities. Contraventions against the Professional Code of Conduct are sanctioned by disciplinary measures culminating in a withdrawal of the licence to practice medicine. In June 2011, the 114th German Medical Assembly adopted an amendment to the Model Professional Code for Physicians in Germany. i

German criminal law distinguishes between principals and participants. There are two forms of participation: abetting (Section 26 dStGB) and aiding (Section 27 dStGB). A person who intentionally induces another person to commit an unlawful act intentionally is to be punished as if he were a principal (Section 26 dStGB). However, a person who assists another in the intentional commission of an unlawful act is to be sentenced as an aider (Section 26 para. 1 dStGB), and the penalty is to be mitigated pursuant to Section 49 para. 1 dStGB (Section 26 para. 2 dStGB). Abetting and aiding are punishable pursuant to Sections 26, 27 dStGB only, if there is an intentional unlawful principal act (principle of accessoriness of participation). Guilt on the side of the principle is not a prerequisite for criminal liability pursuant to Sections 26, 27 dStGB. Instead, each accomplice is liable according to the measure of his own guilt and irrespective of the guilt of the others (Section 29 dStGB, so-called limited accessoriness). Under Austrian criminal law, all participants are treated and liable as principles (Section 12 o¨StGB) (so-called Einheitsta¨terschaft) because incitement as well as aiding are considered to reflect separate unlawful acts irrespective of the unlawfulness of the principal act. j A person assisting a suicide by providing a lethal drug to the individual seeking to die, however, can be held criminally responsible for violation of the German Narcotics Act. See H. Schliemann, ‘Strafbarkeit der Fo¨rderung der Selbstto¨tung’, [German] Zeitschrift fu¨r Rechtspolitik 2013, pp. 51–54. According to Section 4 (1) no. 3 (a) of the German Narcotics Act, it is permissible to obtain the substances listed in Annex III (such as sodium pentobarbital) if they are prescribed by a medical practitioner. In all other cases, the cultivation, manufacture, import, export, acquisition, trade and sale of drugs are subject to authorisation from the Federal Institute for Drugs and Medical Devices (Section 3 (1)(1) of the Act). According to Section 5 (1)(6) of the Act, no such authorisation can be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of the Narcotics Act, namely to secure the necessary medical care of the population, to eliminate drug abuse and to prevent drug addiction. Doctors may only prescribe sodium pentobarbital if the use thereof on or in the human body is justified (Section 13 (1)(1) of the Narcotics Act). k Four elements are crucial: (1) The request for termination of life or assisted suicide must be made by the patient himself. (2) The patient must be decisionally competent at the time of the request, that is, he must have a clear understanding of relevant information about his situation and prognosis, be able to consider any possible alternatives and understand the consequences of his decision. (3) The decision must be voluntary. The request must be internally voluntary (i.e. the patient must have the mental capacity to determine his own wishes freely) and externally voluntary (i.e. the patient must have made his request free from pressure or unacceptable influence from those around him). (4) The request must be well considered. This requires that the patient must be fully informed and have a clear understanding of his disease. According to the Termination of Life on Request and Assisted Suicide (Review Procedure) Act 2002, written directives as well as oral requests are legitimate forms of request for euthanasia.

In Germany, (direct active) euthanasia is punishable by up to five years in prison (Section 216 of the German Criminal Code, ‘killing by request’). Committing suicide and attempted suicide are autonomously exempt from punishment under German criminal law. According to the principle of accessoriness of participation (Sections 26, 27 of the Downloaded from msl.sagepub.com at Library - Periodicals Dept on November 15, 2014

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Grosse and Grosse Section 16 of the amended Model Professional Code 2011 contains a clear prohibition of assisted suicide, stating that doctors ‘[may] support the dying while preserving their dignity and respecting their wishes. . . . They may not perform assisted suicide’.58 The German Medical Assembly is the annual meeting of the German Medical Association (Bundesa¨rztekammer) and has the duty to adopt cross-state professional regulations on, for example, the model professional code.59 They also formulate the standpoints on the medical profession on current health-related and sociopolitical debates. The German Medical Association is the central organisation in the system of self-administration in Germany and the joint association of the 17 State Chambers of Physicians (Landesa¨rztekammern). The German Medical Association is not competent to adopt binding professional regulations; the regulations rather serve as recommendations for the State Chambers of Physicians, which are competent according to States’ health laws to adopt binding professional norms.60 The Model Professional Code 2011 has been adopted (and thus become legally effective) by statutory amendment by the General Assemblies of the chambers of some but not all states (e.g. Bayern has not yet adopted the Professional Code 2011). It has been argued that these regulations in the statutes of the State Chambers are invalid due to a lack of a legal basis because the Federal State Law does not permit the State Chambers to adopt special professional regulations related to assisted suicide.60 As the regulation of assisted suicide, to a large extent, concerns questions of human rights, the competence of the State Chambers in the States’ health laws to adopt binding professional rules is not sufficient; only the federal legislature would be competent to regulate such issues.60 While the German government has proposed a draft amendment to the German Criminal Code aimed at penalising assisted suicide when the act is carried out with profit interests, so far no consensus on any reform options has been reached. The German Medical Association takes an overall negative attitude to organised assisted suicide. Yet, the emphasis has shifted in that the German Medical Association changed its formulation on assisted suicide in its guidelines for terminal care published in February 2011.61 The guidelines for terminal care 2004 had specified that the involvement of a doctor in suicide contravened medical ethics.62 This original formulation was abandoned (with view of the different moral and ethical opinions of doctors in a pluralistic society) and substituted by the phrase that assisted suicide is not part of a doctor’s medical tasks.61

Conclusion

11 Switzerland, where euthanasia (killing on request) is prohibited but non-PAS is allowed in the absence of self-interested motivation, is the unintended result of a gap in the Swiss Penal Code. Proposed reform options for specific regulation on assisted suicide in Switzerland were finally rejected by the Swiss government on the grounds that this would not improve the current situation and carry many disadvantages. The government, instead, decided to focus on the adoption of measures to strengthen palliative care and suicide prevention. In contrast to Germany, where public debate on legalising PAS is ongoing, this matter is not the subject of public discussion in Austria, where assisted suicide is legally prohibited. Funding This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.

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9. Onwuteaka-Philipsen BD, van der Heide A, Koper D, et al. Euthanasia and other end-of-life decisions in the Netherlands in 1990, 1995, and 2001. Lancet 2003; 362: 395–399. 10. van der Heide A, Onwuteaka-Philipsen BD, Rurup ML, et al. End-of-life practices in the Netherlands under the Euthanasia Act. N Engl J Med 2007; 356: 1957–1965. 11. Onwuteaka-Philipsen BD, Brinkman-Stoppelenburg A, Penning C, et al. Trends in end-of-life practices before and after the enactment of the euthanasia law in the Netherlands from 1990 to 2010: a repeated crosssectional survey. Lancet 2012; 380: 908–915. 12. Groenewoud JH, van der Heide A, OnwuteakaPhilipsen BD, et al. Clinical problems with the performance of euthanasia and physician-assisted suicide in The Netherlands. N Engl J Med 2000; 342: 551–556. 13. Rietjens J, van Delden J, Onwuteaka-Philipsen BD, et al. Continuous deep sedation for patients nearing death in the Netherlands: descriptive study. BMJ 2008; 336: 810–813. 14. The Hague, Netherlands: The Regional Euthanasia Review Committees. Regional Euthanasia Review Committees: Annual Report 2011. http://www. Euthanasiecommissie.nl/Images/RTE.JV2011.ENGELS. DEF_tcm52-33587.pdf (2012, accessed 3 February 2014). 15. Shariff MJ. Assisted death and the slippery slope – finding clarity amid advocacy, convergence, and complexity. Curr Oncol 2012; 19: 143–154. 16. Utrecht, Netherlands: Dutch Medical Association (KNMG). Dutch Medical Association (KNMG). Position Paper: The Role of the Physician in the Voluntary Termination of Life [Dutch]. http:// www.knmg.nl/voluntary-termination-of-life (2011, accessed 3 February 2014). 17. The Belgian Act on Euthanasia of May 28 2002 [English translation]. Ethical Perspectives 2002; 9: 182–188. http://www.kuleuven.be/cbmer/ viewpicphp?LAN¼E& TABLE¼DOCS&ID¼23 (accessed 3 February 2014). 18. Grand Duchy of Luxembourg. Law of March 16, 2009, on euthanasia and assisted suicide [French]. In: Memorial: Journal Officiel du Grand-Duche´de Luxembourg. Recueil de legislation. Luxembourg: Association momentane´e Imprimerie Centrale/Victor Buck 2009; 46: 615–619. http://www.legilux.public.lu/ leg/a/archives/2009/0046/a046.pdf#page¼7 (accessed 3 February 2014). 19. Brussels, Belgium: The Commission. Commission fe´de´rale de controˆle et d’e´valuation de l’application de la loi du 28 mai 2002 relative a` l’euthanasie. Federal Commission on the Control and Evaluation of Euthanasia. Fourth Report to the Legislature (2008 and 2009) [French]. http://www.ieb-eib.org/nl/pdf/ rapport-euthanasie.pdf (2010, accessed 3 February 2014). 20. Ministry of Health and Ministry of Social Services, Luxembourg. Euthanasia and Assisted Suicide: Law of 16 March 2009. 25 Questions, 25 Answers. http:// www.sante.public.lu/publications/sante-fil-vie/fin-vie/ euthanasie-assistance-suicide-25-questions-responses/ euthanasie-assistance-suicide-25-questions-responsesen.pdf (2010, accessed 4 February 2014). 21. The Hague, Netherlands: The Regional Euthanasia Review Committees. Regional Euthanasia Review

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

This paper presents three different models of the legal regulation of assisted suicide in European countries. First, the current legal regime governin...
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