Select Committee on Assisted Dying for the Terminally Ill Bill Minutes of Evidence

Examination of Witnesses (Questions 2126 - 2139)



  Q2126  Chairman: Thank you very much indeed for agreeing to see us. We take a note of the proceedings and you will get a chance to see the transcript of what we think you said. You will be able to correct it if any corrections are needed and in due course it will be appended to our report. At that stage it will become public as part of our report. It would be helpful if you could give us to start with a rundown of your situation in relation to the matters that we are concerned with. As you know, our task is to examine the factual background to Lord Joffe's Bill which is proposing a certain change in the law of England and Wales relating to assisted dying. The situation in Switzerland is relevant to that and we would be glad to have your perspective on it. When you have given us a short account of the situation as you see it my colleagues would like to ask you some questions on matters of particular concern to them in this inquiry.

Mr Stadelmann: Honourable Lord Mackay of Clashfern, my Lords, my Ladies, ladies and gentlemen, I am very honoured to welcome you in the name of the Federal Office of Justice. The British Embassy has forwarded us your wish to be briefed about the legal situation in our country in matters of euthanasia and assisted suicide. We have also taken note of the basis on which you would like to conduct this meeting and we agree to have a record of our conversation by your shorthand writer. We appreciate being given the opportunity to review the transcript of our conversation before the publication of the record. [I will also be able to give you the notes of my short introduction.] The Federal Office of Justice is an agency of the Federal Department of Justice and Police; it is the Justice Ministry of Switzerland. It is responsible for key legislative matters pertaining to the constitutional and administrative law, private law as well as criminal law. It functions as an adviser to the rest of the Swiss Government in all legislative matters and drafts advisory opinions. Mrs Chantal Favre on my left and Mr Daniel Frank on my right are two of my collaborators in charge of the preparation of penal legislation. We work in the Penal Division of the Federal Office of Justice. The subject of today's conversation has often been discussed in the past in Switzerland and it is at present occupying our Criminal Law Division, but in terms of legislative drafts it does not represent one of the Federal Council of Government's priorities during the current legislation. The legal situation in Switzerland is that euthanasia has a bearing on life—the greatest legal interest of all. That is why it is not the medical sciences but the democratically authorised legislator who determines the boundaries between permissible and impermissible killing. Indirect active euthanasia, which is defined as the use of means the secondary effects of which may shorten life, and passive euthanasia, that is, a renunciation or discontinuation of life-prolonging measures, are permissible. It has still not yet been decided whether both forms of euthanasia should explicitly be regulated by law. However, it is clear that direct active euthanasia, that is, a deliberate killing in order to shorten the suffering of another person, will remain a punishable offence. Finally, the possibilities offered by palliative medicine and care must be fully exhausted in order to ease the suffering of terminally ill patients in the last stages of life. The Federal Council of Government will have to debate in the next two years a motion on "Euthanasia and Palliative Medicine", which has been forwarded by Parliament, and examine the extent to which legislation on passive and indirect active euthanasia is necessary. It will also discuss promoting palliative medicine and the problem of so-called death tourism. First of all I would like to outline some definitions of the various forms of euthanasia and their position in Swiss law. I was talking about direct active euthanasia. It is the deliberate killing of a person in order to shorten the suffering of this person. The doctor or a third party deliberately administers an injection to the patient which results directly in their death. At present this form of euthanasia is punishable under Article 111 of the Swiss Penal Code, that is, intentional killing. I can give you a sheet showing the most important legal provisions.

  Q2127  Chairman: Thank you very much.

Mr Stadelmann: This form of euthanasia is punishable under Article 111 (intentional killing), Article 114 (mercy killing on request), or Article 113 (manslaughter), of the Swiss Penal Code. Indirect active euthanasia is defined as the use of means to relieve suffering, for instance, morphine, which may have the secondary effect of shortening life. The possibility that death might occur earlier than it would otherwise have done is taken into account. While not covered explicitly by the Penal Code this type of euthanasia is generally regarded as permissible. This perspective is also reflected in the guidelines of the Swiss Academy of Medical Sciences about Care of patients at the end of life (the SAMS guidelines). I think you are going to meet somebody from the Swiss Academy of Medical Sciences. What about passive euthanasia? This is simply the renunciation or discontinuation of life-prolonging measures, for example when a life support machine is switched off. There are no specific provisions governing this form of euthanasia either, although it is regarded as permitted. The guidelines of the Swiss Academy of Medical Sciences also define passive euthanasia in the same terms. In respect of assisted suicide, according to Article 115 of the Swiss Penal Code, only a person motivated by self-serving ends who helps another to commit suicide, for instance, by obtaining a lethal substance, can be punished by a strict regime of imprisonment for up to five years or by ordinary imprisonment. Assisted suicide involves enabling the patient to obtain the lethal substance which the persons wishing to commit suicide then takes themselves without any external assistance. Organisations such as EXIT offer assisted suicide within the framework of the law. Provided they cannot be accused of having any self-serving motive they are not punishable. According to the guidelines of the Swiss Academy of Medical Sciences assisted suicide is not considered part of the physician's activity. Palliative medical treatment and care describe not only medical treatment and physical care, but also psychological, social and pastoral support to the patient and his family. It can significantly increase the quality of life of the seriously and terminally ill and thus also avoid a situation in which they express a wish to die. I would like to brief you now about the political discussion in Switzerland surrounding the problem of euthanasia. In the wider sense this discussion touches upon various aspects of the end of life, as we have already seen. It includes all the different forms of euthanasia which I have just mentioned—active direct euthanasia, active indirect euthanasia, and what is known as passive euthanasia, as well as palliative medicine and assisted suicide with its attendant phenomenon of death tourism. Patient rights must also be included in this discussion. In the context of active direct euthanasia both the Federal Council, our Government, in its July 2000 report on the Ruffy postulate (that is, the parliamentary postulate), and the Parliament have rejected the possibility of easing the legislation that makes killing another person a criminal offence (most recently in December 2001 when considering the parliamentary initiative put forward by Cavalli, a Member of Parliament). This means that direct active euthanasia remains a criminal offence in Switzerland. There is a motion of the Legal Committee of the Council of States entitled Euthanasia and Palliative Medicine that calls for indirect active euthanasia, passive euthanasia and measures to promote palliative medicine to be regulated. This motion was referred to the Federal Council in March 2004. Our intention is to examine whether and how possibly revised regulations could be implemented; that is our task. Today it has not been decided how these new regulations would be enacted. It could either be done in a specific bill or in a revision of our Penal Code. The result of our work is still open. We are examining different possibilities to give an answer to the problems that are signalled by our parliamentarians. It should also be noted that in the specific area of assisted suicide three other parliamentary proposals dating from 2001 and 2002 (a parliamentary initiative by Vallender, another motion by Vallender and a motion by Baumann) have called for Article 115 of the Penal Code, incitement to and assistance in committing suicide, to be revised in order to combat the so-called death tourism, which allegedly is developing in Switzerland because of the country's liberal approach to assisted suicide. These three initiatives have been rejected or abandoned. They are no longer being considered by Parliament. The Members of Parliament who proposed these initiatives and proposals have either left Parliament or abandoned their proposals. After two years, these proposals can no longer be considered by Parliament. However, it is interesting to note which kinds of negative situations they were highlighting. In particular attention was drawn to the fact that mentally ill people are assisted in committing suicide without their situation having been examined thoroughly beforehand, that there is no clear delineation between Articles 115, that is, inducement to commit and assistance in committing suicide, and Article 114, killing on request, of the Penal Code, and that an increasing number of people from other countries in which right-to-die organisations and assisted suicide are illegal want to come to Switzerland to commit suicide. In this connection the papers published by the Swiss Academy of Medical Sciences as well as by the National Ethics Commission should be noted. These are papers were published last year and they deal in detail with the problem of assisted suicide and to some extent also with the phenomenon of death tourism. I think you are going to meet representatives of both organisations. In addition, a currnet and complete revision of the guardianship legislation in Switzerland will provide an opportunity to the legislator to put forward a proposal for the federal regulation of the patient's living will. That is a new possibility and in this way, by revision of the guardianship legislation, there will be a way of dealing with this problem of the patient's living will. With regard to information about the current practice in Switzerland I think you will have the possibility to meet the Attorney General of Zurich, Dr Andreas Brunner. He is First Public Prosecutor and he will talk to you in detail about the problems he is confronted with. We can come back to this point later. The Swiss authorities are aware of the problems that exist today relating to this increasing practice of assisted suicide and also increasing death tourism, that is, people from other countries coming to Switzerland just to die. The aim is now for the Swiss Government to ascertain whether there is a danger of the situation in Switzerland being exploited and, if so, to take appropriate steps to remedy the problem. As you can see, we have in Switzerland a clear legal framework which sets a limit to misusing practices and violations of legal provisions. These questions lie primarily in the specific purview of the competent judicial bodies in those cantons which encounter suicides, especially involving people from other countries. It is primarily not a problem of legislation, but of application of existing legislation and the existing legal framework. It may be interesting for you to know in this connection that in the past 40 years only nine people have been convicted in Switzerland of inciting to suicide and assisted suicide. However, this should not prevent the federal authorities from examining the possibility of creating a legal basis for regulating the activities of right-to-die organisations. This is the point we are now discussing with the involved organisations, the prosecutors and the medical organisations. This is my introduction to this matter and now I think you would like to formulate your questions.

  Q2128  Chairman: Thank you very much indeed. That is extremely helpful. Are you able to give us figures here for the number of people who have come to Switzerland, non-residents that is, who have been assisted to die in the last two or three years? Do you have such figures?

Mr Stadelmann: We have some information. It is not very easy to get this information because organisations involved in assisted suicide and especially with respect to people from other countries do not have an obligation to give official information. EXIT does publish these figures and we know that EXIT has a very limited practice with regard to people from other countries. I will give you the figures for EXIT. These are mostly Swiss citizens or people residing in Switzerland. Until 1993 there were about 30 cases a year. We have no information for 1994/1995 and since 1996 we know there have been about 100 cases per year. In 2003/2004 there was an increase to between130 and 150 cases for EXIT. DIGNITAS is another organisation. We know they deal mostly with people coming from foreign countries. They declared three cases in 2000, 37 cases in 2001, about 55 cases in 2002( and eventually some more cases in other cantons but they were operating mainly in Zurich) and 91 cases in 2003 there is an increasing tendency.

  Q2129  Baroness Hayman: As I understand it every death from suicide has to be reported, so there would be a responsibility on EXIT and DIGNITAS fully to report every case with which they were involved. Would there be penalties if they did not report cases? Do you have any feeling that there is under-reporting going on?

Mr Stadelmann: Every single case of a non-natural death has to be reported to the criminal investigation authorities. We make a difference between administrative authorities, health authorities and criminal authorities. We do not have an administrative regulation for this kind of activity, for right-to-die organisations, so they do not have to report, and there is no control over their activity, but they have to report every case of unnatural death. You should know that in Switzerland criminal investigation is cantonal. It is not regulated on a federal basis. Each canton is responsible for the procedures and for the prosecution, but every single case has to be reported.

  Q2130  Chairman: To the cantonal criminal authorities?

Ms Favre: Yes.

Mr Stadelmann: The authority concerned will open a criminal investigation in every case, the initial purpose of which is to determine whether the death is the result of suicide or criminal action by a third party. They have to establish if there was really suicide, if the person acted herself, or if the action of a third person assisted who must be qualified as a perpetrator. This is the problem of establishing the boundary between Article 115 and Article 114. In this sense Article 115 of our Penal Code is fundamental in making this distinction between the legal assisted suicide and the illegal killing. In the case of assisted suicide the authority will have to determine whether the person who has killed himself committed the act under his own control and on his own responsibility. That means it must be ensured that he was under no pressure to act and that he acted independently in the knowledge of the meaning and full significance of his behaviour. This is the current practice and the practice of our tribunals to establish those criteria for establishing the boundaries. The person has himself to carry out the action that finally resulted in death. It may be the last action. It may be taking the lethal substance herself or activating the pump for receiving the lethal substance in the body. If there is coercion or threat or if there is no sound judgement of the person concerned, then death cannot be considered as suicide by our tribunals and it has to be judged under one of the other Articles, 111-114.

  Q2131  Baroness Hayman: Is there not a big problem of evidential issues if you can only examine those questions for a potential prosecution after the event? How do you establish the mental state of the person, the issues of coercion and so on, when it is ex post facto and your witness is not there?

Mr Stadelmann: This is a problem of judicial prosecution. It is one of the great problems the Zurich authorities are encountering. The problems are known. They have some problems in establishing conviction and obtaining information from the foreign country of which the person comes from in the case of death tourism. In the Swiss cases they do not have the same problem, because the physicians are known, the clinical history of the person is well known and the prosecutor can obtain the information about the case.

  Q2132  Baroness Hayman: So the clinic would know? EXIT would have developed an evidentiary base that was then available for the criminal authorities to look at and that would be in a standard form? They would have ways of showing that mental health had been assessed or lack of pressure from other people? Would there be some sort of code of practice developed?

Mr Frank: Please correct me, but I think you have to enter into a contract with EXIT in the days when you are still healthy, when you have no lethal illness and on the day before you die you still have to be in a position to fully understand what you do so that EXIT in the process of assisted suicide can present to the prosecution the consent of the victim as established in the documents.

  Q2133  Baroness Hayman: It is always the independent assessment that is difficult. A signed piece of paper is one thing when you are talking about an individual's state of mind. You tend to need some external validation of that.

Mr Frank: In general with many criminal cases it often happens that there is a big mystery surrounding a criminal act, and with regard to assisted suicide it cannot be excluded that maybe there were other reasons also present with the doctor helping the person or within the organisation. You can never exclude it, but as a general rule it is in the interests of all these organisations to have all these documents at hand to show to the prosecution that it was a legal activity that occurred. I think this might be one of the problems the cantons are encountering when they deal with these questions and maybe it is also that families ask the same question: was it really the free will of the person who died? It is in the interests of EXIT to provide the prosecution with as much evidence as possible that it was a legal activity.

  Q2134  Chairman: Can you help us a little bit further on the mental aspect of the matter? Is it normal in your understanding for some kind of certificate to be available either from the ordinary practitioner or from some specialist on the mental capacity of the person who has died around about the time at which the assisted suicide took place?

Mr Stadelmann: It is quite difficult for us to comment on single cases. If you take Article 115, it is quite short. It is "Whoever, motivated by self-serving ends, incites another person to commit suicide or assists him in it, shall be liable to confinement" etc. It means that the person who commits suicide cannot be punished and the person who makes an attempt to commit suicide cannot be punished. A person who incites another person to commit or attempt suicide can be punished if there are selfish motives as well as a person who helps or assists somebody else to commit suicide. It is all we know from the legislation. If the single elements are given and you have to establish evidence in these cases, you have to know whether the person committing suicide could have acted in his full responsibility, in full knowledge of the circumstances and of the meaning of the act he is going to accomplish. If this is not given the judge will have to establish if the action of the third person must be qualified as having a preponderant importance for the death of this person. If you cannot establish that the person acted herself there might be an important action for a third person and this person could be pursued for his participation, for his intervention. The aspect of mental capacity and sound mind is important for the criminal prosecutor to establish. How can he acquire this evidence? Dr Brunner will explain his difficulties to you. There are great difficulties. If this person comes from another country and stays one or two days in Switzerland, he will have great difficulty establishing the elements that should permit him to judge the case. As he said, there are some organisations who are aware of this problem and they have begun to collaborate with the criminal prosecution so that when they report the case they can also establish the important elements of it because they want to prove that their activity does not cause major problems to the prosecution authorities or to the political authorities of a given place.

  Q2135  Baroness Jay of Paddington: On Article 115, obviously this is translated but you have spoken about the self-serving ends of people involved in assisting people. We find it is a very different system in terms of private medical insurance, etc, that you have here from the system in the UK. Do people pay the organisations for this service directly or are they just members of EXIT, for example? How do you establish the understanding legally that they are not self-serving in terms of their own business activity? I know it is using "self-serving" in a slightly tendentious way, but if they are making a business out of running this organisation that in itself is self-serving, is it not?

Mr Stadelmann: I agree with you that this aspect of selfish or self-serving ends is an important element of this Article. The prosecutor will have to ascertain whether the person who assisted the suicide had any personal interest. Our tribunals have established some criteria for that—if the person who has acted can be considered to have acted out of such selfish motives, if his intention was primarily to satisfy his own material or emotional needs, maybe he is very close to the person or there may be the possibility of eliminating some major problem for the family, or other motives such as gaining an inheritance, relieving himself of the burden of supporting the individual if there is an obligation to do so, or eliminating a person he hated, for instance, but also fulfilling a need for emotional attention. This has been developing in recent times because of the publicity about such cases you could also have such kinds of motives which are selfish motives. With regard to your question, we do not know more about these organisations than what is published or what these organisations declare themselves. You will have the opportunity to talk with them. You will see what they declare. We do not know everything. It would be interesting also to know from the public prosecutor if he has other information. We are not aware of this kind of practice. We know that people pay an annual fee.

  Q2136  Baroness Jay of Paddington: They have a membership.

Mr Stadelmann: Yes. They pay first a membership fee and then an annual fee,. which is not very important, I think. It would be difficult for the criminal prosecutor to establish based on this annual fee that there is any selfish or commercial interest but we do not know if there is something else.

  Q2137  Baroness Jay of Paddington: You do not know whether they charge something beyond that?

Mr Stadelmann: We do not know if the people coming here pass on other payments to these organisations.

  Q2138  Baroness Jay of Paddington: You do not know that? Nobody has ever asked formally?

Mr Stadelmann: It would be very difficult to establish.

  Q2139  Chairman: That kind of investigation would not be undertaken by this department.

Mr Stadelmann: No.

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