The following article was written by Ed Madden and published in the Irish Medical Times on July 18, 2013.
Ed Madden, BL, looks at a recent European Court of Human Rights case in which an 82-year-old woman sought the right to be allowed to obtain a lethal dose of sodium pentobarbital to end her own life.
Ms Alda Gross is 82 years old and lives in Switzerland. For many years, she had expressed a wish to end her own life. She was becoming more and more frail as time went by and was unwilling to continue suffering the decline of her physical and mental faculties.
In 2005, following a failed suicide attempt, she received inpatient treatment for six months in a psychiatric hospital. This treatment did not, however, alter her wish to die. As she was afraid of the possible consequences of another failed suicide attempt, she wished to end her life by taking a lethal dose of sodium pentobarbital.
She contacted the assisted-death association, EXIT, for support. They informed her that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug. This was despite the fact that under the terms of Article 115 of the Swiss Penal Code, assisting another person to commit suicide is not a punishable offence unless it is done for “selfish motives”.
In October 2008 a psychiatrist gave an expert opinion that “there was no doubt” that Ms Gross was capable of forming her own judgment. He noted that her wish to die was reasoned and well-considered, had persisted for several years and was not based on any psychiatric illness. From a psychiatric/medical point of view, he did not have any objection to her being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the necessary prescription on the grounds that he did not want to confuse the roles of medical expert and treating physician.
Ms Gross subsequently made a request for a prescription to three other medical practitioners, all of whom declined to provide her with the means of ending her own life. When the Health Board of the Canton of Zurich declined a similar request, Ms Gross took her case to the Swiss courts.
She argued that her right to respect for her private life under Article 8 of the European Convention on Human Rights had been breached by the refusal of the medical authorities to provide her with the means of ending her own life. She claimed that her right under the Convention to decide by which means and at what point her life would end was “illusory”. The state was under an obligation to provide her with the necessary means to exercise her right to die in a concrete and effective way. Both the Administrative Court and the Federal Supreme Court rejected her case. Ms Gross appealed to the European Court of Human Rights.
In May 2013, the European Court issued its judgment in the case. The Court said that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept, which encompasses, inter alia, the right to personal autonomy and personal development.
Without in any way negating the principle of the sanctity of life protected under the Convention, many people are concerned that in an era of growing medical sophistication combined with longer life expectancy, they should not be forced to ‘linger on’ in old age or ‘in states of advanced physical or mental decrepitude’, which conflicted with strongly-held ideas of self and personal identity. Ms Gross’s wish to be provided with a dose of sodium pentobarbital allowing her to end her life fell within the scope of her right to respect for her private life under Article 8 of the Convention.
Under the case law of the Swiss Federal Supreme Court, a doctor was entitled to prescribe sodium pentobarbital in order to allow his patient to commit suicide, provided that specific conditions were fulfilled. In this regard, The Swiss courts had referred to the medical ethics guidelines on the care of patients at end-of-life issued by the Swiss Academy of Medical Sciences (SAMS). These guidelines did not have the formal quality of law. In any event, as Ms Gross was not suffering from a terminal illness, her case did not fall within the scope of those guidelines.
A chilling effect
The Court observed that there was no other material containing principles or standards which could serve as guidelines as to whether and in what circumstances a doctor was entitled to issue a prescription for sodium pentobarbital to a patient who, like Ms Gross, was not suffering from a terminal illness. The lack of clear legal guidelines was likely to have “a chilling effect” on doctors who would otherwise be inclined to provide someone such as Ms Gross with the requested medical prescription.
The Court said that Ms Gross “must have found herself in a state of anguish and uncertainty” regarding the extent of her right to end her life. This would not have occurred had there been clear, state-approved guidelines. The Court acknowledged that there might be difficulties in finding the necessary political consensus on a controversial question such as this with a profound ethical and moral impact. However, those difficulties were inherent in any democratic process and could not absolve the government from fulfilling its obligations.
The Court concluded that Swiss law, while providing the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, did not provide sufficient guidelines ensuring clarity as to the extent of that right. There had accordingly been a violation of Article 8 of the Convention in that respect. The Court did not, however, adopt a stance on what should be contained in such guidelines. That was a matter for the Swiss authorities.
Three of the seven judges issued a joint dissenting judgment.
References:  ECHR 429;  ECHR 580