Examination of Witnesses (Questions 2126
WEDNESDAY 2 FEBRUARY 2005
and MRS CHANTAL
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
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 lifethe
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.
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 mentionedactive 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?
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?
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
Ms Favre: Yes.
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,
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
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?
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?
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 thatif 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.
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?
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?
It would be very difficult to establish.
Q2139 Chairman: That kind of investigation
would not be undertaken by this department.