ECHR calls for clear regulations on assisted suicide but leaves content to the States

Summary The European Court of Human Rights has held that Switzerland’s failure to provide clear guidelines as to when assisted suicide is permitted breached the right to respect for private life under article 8 of the European Convention on Human Rights. The Court declined to comment as to whether Switzerland breached article 8 by failing to assist a person, who wished to die but was not suffering from a terminal illness, to end her life.

Facts

The applicant, Ms Gross, is 82 years old and has for a number of years expressed a wish to die. She is not suffering from a terminal illness, however, she had noticed a continual decline in her health and for the last five years has consistently expressed a wish to end her life. A psychiatrist confirmed that Ms Gross was able to form her own judgment, her wish to die was reasoned and well-considered, had persisted for several years and was not based on any psychiatric illness. However, although Ms Gross approached a number of physicians for a prescription for a lethal dose of sodium pentobarbital, she was unable to obtain one. It appeared that the physicians were reluctant to provide a prescription to a person who did not appear to be in intense pain or in the final weeks of a terminal illness as it may breach the code of medical conduct. Ms Gross also requested a prescription from the Health Board, again this was declined.

Ms Gross alleged that her right to respect for privacy, under article 8 of the Convention, includes the right to decide how and when to end her life. She argued this right had been breached and requested authorisation to acquire a lethal dose of sodium pentobarbital.

Applicable Law

Domestic

In Switzerland, while it is not a criminal offence to assist a person to commit suicide so long as the assistance is altruistic, there are no binding regulations or guidelines on assisted suicide. As such, it is not clear when a doctor may prescribe a lethal dose of sodium pentobarbital.

European Convention on Human Rights

Article 8 of the European Convention on Human Rights states that:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The European Court of Human Rights has previously acknowledged that an individual’s right to decide the way in which and at which point his or her life should end, provided that he or she was in a position to freely form his or her own judgment and to act accordingly, “was one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention” (Haas v Switzerland, no.31322/07 §51 ECHR 2011). The court has previously held that a State may decide that, under article 8(2), it would be against the public interest to legalise assisted suicide, or provide facilities or infrastructure to facilitate suicide, assisted or otherwise (Haas).  However, in States where assisted suicide is legal, article 8 imposes obligations as to how such a legislative regime operates.

Decision

The court considered that the lack of clear guidelines is likely to have a chilling effect on doctors who would be otherwise likely to provide a prescription. The resulting uncertainty for Ms Gross as to the outcome of her request in a situation concerning a particularly important aspect of her life must have caused the applicant a considerable degree of anguish. This would not have occurred if there had been clear, State-approved guidelines defining when a prescription may be provided where death is not imminent as a result of a specific medical condition. The failure to provide such guidelines ensuring clarity as to the extent of the right to a lethal dose of sodium pentobarbital was therefore a violation of article 8 of the Convention.

The court declined to order Switzerland to grant authorisation to acquire a lethal dose of sodium pentobarbital. The court limited its decision to the lack of clear guidelines and refused to adopt a stance on the substantive content of such guidelines. The contents of any future guidelines, it appears, would possibly be within the margin of appreciation afforded States to balance the right to privacy against the public interest issues outlined in article 8(2).

Commentary

The Court has been called upon to decide assisted suicide cases a number of times before, however this is the first time the Court has been asked to decide on a case where the individual was not suffering from a terminal illness. The Court has continued to hold that the right to respect for private life is an incredibly broad right, and includes the right to personal autonomy and self determination. The expansion of the jurisprudence here to require clear binding guidelines so people are able to make appropriate decisions about their life is a useful development for all end of life care, not just assisted suicide.

Australia does not currently allow assisted suicide, although it has decriminalised non-assisted suicide. When it comes to end of life care, the withdrawal or refusal of treatment, or the provision of a lethal dose of medication is covered by common law and in some limited situations, such as advanced care directives, legislation. There are no regulations or binding guidelines and the common law is by no means clear. As such, there is a constant threat of criminal prosecution even when doctors are acting in good faith and in the patient’s best interests. The chilling effects described by the Court and the uncertainty felt by Ms Gross would be similar to those faced by doctors and patients in Australia.

However, the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic), similar to the Convention, does recognise a person’s right not to have her or his privacy arbitrarily interfered with under section 13. Should similar views regarding the right to privacy find there way into Victorian jurisprudence, this may have implications for Victorian health law where the current common law and limited legislation do not provide sufficient clear guidance for doctors and patients when it comes to end of life care.

This decision is available online at: http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-119703

Emily Christie is a Secondee Lawyer at the Human Rights Law Centre.