European Court of Human Rights

Information Note on the Court’s case-law No. 163

May 2013

Gross v. Switzerland - 67810/10

Judgment 14.5.2013 See: [2013] ECHR 429 [Section II]

Article 8

Positive obligations

Article 8-1

Respect for private life

Lack of clear legal guidelines regulating the prescription of a drug to enable individual not suffering from a terminal illness to commit suicide: violation

 

Facts - For many years, the applicant had expressed the wish to end her life as she was becoming increasingly frail with the passage of time and was unwilling to continue suffering the decline of her physical and mental faculties. She was found to be able to form her own judgement. Following a failed suicide attempt, she decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. However, four medical practitioners declined to issue the requested prescription. At least two of them declined her request on the grounds that they considered they were prevented from doing so by the medical practitioners’ code of conduct or feared lengthy judicial proceedings and, possibly, negative professional consequences. The administrative courts rejected the applicant’s appeal.

Law - Article 8: The applicant’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. The case primarily raised the question whether the State had failed to provide sufficient guidelines defining whether medical practitioners were authorised to issue a medical prescription to a person in the applicant’s condition and, if so, under what circumstances.

In Switzerland inciting and assisting suicide were punishable only where the perpetrator of such acts was driven to commit them by “selfish motives”. 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 laid down in the Federal Supreme Court’s case-law were fulfilled. The Federal Supreme Court, in its case-law on the subject, had referred to the medical ethics guidelines on the care of patients at the end of their life, which had been issued by a non-governmental organisation and did not have the formal quality of law. Furthermore, the guidelines only applied to patients whose doctor had arrived at the conclusion that a process had started which, as experience had indicated, would lead to death within a matter of days or a few weeks. As the applicant was not suffering from a terminal illness, her case clearly did not fall within the scope of application of those guidelines. The Government had not submitted any other material containing principles or standards which could serve as guidelines. This lack of clear legal guidelines was likely to have a chilling effect on doctors who would otherwise have been inclined to provide someone such as the applicant with the requested medical prescription. The uncertainty 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 state of anguish and uncertainty would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners were authorised to issue the requested prescription in cases where an individual had come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death was not imminent as a result of a specific medical condition. The Court acknowledged that there may be difficulties in finding the necessary political consensus on such controversial questions with a profound ethical and moral impact. However, these difficulties were inherent in any democratic process and could not absolve the authorities from fulfilling their task therein. The foregoing considerations were sufficient to conclude 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 this right.

As regards the substance of the applicant’s request to be granted authorisation to acquire a lethal dose of sodium pentobarbital, it was primarily up to the domestic authorities to issue comprehensive and clear guidelines. Accordingly, the Court confined itself to the conclusion that the absence of clear and comprehensive legal guidelines had violated the applicant’s right to respect for her private life under Article 8 of the Convention, without in any way taking up a stance on the substantive content of such guidelines.

Conclusion: violation (four votes to three).

Article 41: no claim made in respect of damage.

 

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