who can and can’t take a life-ending drug is insufficiently clear.
The original ruling held that, although there was no “right” to assisted suicide under the European Court of Human Rights, Switerland’s law permitting assisted suicide did not provide sufficient clarity as to who can and can’t be prescribed sodium pentobarbital for the purposes of suicide.
The ruling, however, was only by a very narrow majority, four to three, and the Swiss Department of Justice has said it is to appeal the ruling to the Grand Chamber of the ECHR.
In a letter to the Alliance Defending Freedom (ADF), an NGO which defends the right to life and religious freedom, the Swiss Federal Department of Justice and Police said that the ruling “raises serious questions affecting the interpretation and the application of the European Convention on Human Rights and said it intended to request the referral to the Grand Chamber of the Court.”
In a brief urging Switzerland to appeal the ruling, the ADF pointed out that the Council of Europe had shown “consistent opposition to the legalisation of assisted suicide and euthanasia”.
It said: “While the Court had explained that there is no “right” to assisted suicide under the Convention, the Parliamentary Assembly has recommended that States prohibit the intentional taking of life.”
The case involved a Swiss woman, Alda Gross, who took a complaint to the ECHR against the Swiss government after Swiss authorities refused to provide her with drugs to commit suicide.
While Switzerland is one of only four European countries to allow doctor-prescribed death in certain circumstances, individuals can obtain sodium pentobarbital, a drug that can be used to commit suicide, only after a medical examination and prescription by a doctor.
Ms Gross was not suffering from a fatal illness, and failed to find a doctor prepared to prescribe the lethal substance to her.
She appealed to the national courts in 2009. The Swiss courts held that the conditions placed on the drug were justified to prevent abuse.
The national courts also noted that Gross does not suffer from a fatal disease, but has simply expressed her wish to die because of her advanced age and her growing fragility.
Despite the fact that ECHR had previously ruled that there is no right to assisted suicide under the Convention, in a previous case, Haas v Switzerland, it ruled in this case that Ms Gross’ desire to commit suicide fell “within the scope of her right to respect for her private life under Article 8 of the Convention”.
It went on to hold that the Swiss guidelines regulating the prescription of sodium pentobarbital were insufficiently clear by a margin of four to three.
The three dissenting three judges stated that the Swiss guidelines, “sufficiently and clearly defines the circumstances under which a medical practitioner is allowed to issue a prescription for sodium pentobarbital.”
They added: “The applicant was not able to obtain such a prescription at domestic level as she had not been suffering from a terminal illness, which is a clearly defined precondition for obtaining the lethal substance.
“She had just expressed her wish to die because of her advanced age and increasing frailty. Therefore, in our opinion, the applicant in the instant case did not fulfil the conditions laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences.”
Commenting on the case, counsel for ADF, Paul Coleman, said: “Claims to personal autonomy must not override national laws which are designed to protect the weak and vulnerable. Prior to the case of Gross v Switzerland, this position had been supported by the European Court’s case law and is enshrined in the European Convention on Human Rights.
“It is already disturbing that individuals in Switzerland can gain access to lethal substances through medical doctors who are supposed to help preserve life. If drugs designed to end life become available without a prescription, as Ms. Gross has argued for in this case, it will put the lives of thousands of people at extraordinary risk.”