Examination of Witnesses (Questions 2140
WEDNESDAY 2 FEBRUARY 2005
and MRS CHANTAL
Q2140 Chairman: It would be a cantonal
matter. We are hoping to see the gentleman in Zurich who would
have had responsibility for these investigations there. So far
as the general law is concerned, I understood you to say (but
I may have misunderstood), it would be necessary for the person
who did participate in a suicide to know that the person committing
the suicide, the patient, was of a mental capacity to understand
what he or she was doing. Am I right in that?
Mr Frank: Yes,
you are right. If the person even knew that this person was incapacitated,
it is a crime, because then he commits an intentional killing.
He is using the person who commits the suicide as a means to his
own ends, so this is one of the most important aspects to establish
capacity. This will be duly examined by the prosecution.
Q2141 Baroness Finlay of Llandaff:
I apologise; I may have missed the beginning if you said when
historically these articles were written. I wondered what the
date of them was?
This is a very interesting question. This article was introduced
with the creation of the Swiss Penal Code in 1942. It was written
in 1937 and introduced in 1942. It was not created as a euthanasia
law in Switzerland. It was just introduced in the context of killing
within the law. It simply confirmed a legal situation that existed
before in the cantons but in 1937 there was a codification, a
unification, of canton laws.
Q2142 Chairman: For the Federation?
For the whole Federation. The criminal law was unified, but the
prosecution law was left to the cantons and at this moment in
1937 they took over already known dispositions, the provisions
from cantonal law, and integrated them in a new federal law. It
was not something revolutionary or new and it was not intended
to facilitate the killing of hopelessly sick individuals. It did
not have anything to do with euthanasia and with right-to-die
organisations. This phenomenon has been developing since the eighties.
Q2143 Baroness Finlay of Llandaff:
The history then is that it was pre-the antibiotic era, pre-the
modern technology era when this law was written and so, as medical
technology has evolved, perhaps I am wrong but it seems that you
have had to define and interpret this law much more precisely
because of things like antibiotics, surgery, resuscitation techniques
and so on, and I wonder whether you have in law a duty to try
to prevent suicide. Here you are talking about assisting but is
there a duty whereby somebody should try to stop a suicide and
do you have any national policy to try to decrease the number
of suicides within the country?
Ms Favre: Suicide
is allowed for everybody, as we know. We do not try to be restrictive.
We know there are some projects for helping some organisations,
who care about suicide, and we try to make now a unified regulation
about this subject, but it is still in the beginning stages. They
are mostly private organisations who try to do something to decrease
it. I think the number of suicides, for people who are very ill,
mostly in the terminal phase of life, is a small number. The suicides
of young people are increasing much more. This fact gives more
importance to suicides generally.
Q2144 Chairman: For the young people
there is no question of assistance? The young people are able
to commit suicide without help?
Ms Favre: Yes.
Q2145 Chairman: So that assisting
suicide does not come into that?
Ms Favre: Young
people do it very violently. Other people could do that also but
they do not like to do that. They like to do that in a slow form.
Q2146 Baroness Finlay of Llandaff:
The proposals that you have very helpfully described to us sound
very similar to our attempts to codify end-of-life decisions,
particularly advance refusal of treatment with advance decisions
and possibly statements of what people would want beforehand,
but it also sounds as if you are drawing a distinction between
rational suicide and depression related suicide. I return to the
question as to how you make that distinction when the evidence
from the clinical field is that there is a very high incidence
of clinical depression in people who have physical illness.
Ms Favre: I think
that is a point. If the person is fully conscious of his will,
"I will die now and I am very conscious; I am not sick by
thinking about that", this is the point.
Q2147 Baroness Finlay of Llandaff:
But there are people who are profoundly depressed and will repeatedly
attempt suicide and they seem to be absolutely determined to kill
themselves by whatever means.
Ms Favre: This
is also a question you could discuss with EXIT, because they have
some of their own rules. They do not practise assisted suicide
with depressive people. They had some cases which caused a lot
of troubleit is ten years agoand then they had a
moratorium. They did not accept assisting depressive people.
Q2148 Baroness Finlay of Llandaff:
So they are assessing for psychiatric disease?
Ms Favre: Yes,
and now they make a study about these cases because they have
got more demand for such cases. They are providing an opinion
about that and will, but with very strict conditions, be open
again to such cases.
Q2149 Baroness Finlay of Llandaff:
Could I ask you about the role of the physicians in relation to
your Penal Code and whether physicians are completely outside:
they are practising medicine and then you have a separate acceptance
of suicide within your legal framework, or whether you have a
perception that you have doctors ending patients' lives illegally
but that never comes to light?
The Penal Code and all these dispositions apply to everyone, also
to doctors. If there are criminal activities that never come to
light, it is a problem of criminal prosecution. You have to know
the cases and you have to examine them and establish the evidence,
but the criminal code applies to everybody, including doctors.
The problem, which you pointed out before regarding psychiatric
diseases, was a central point of this Article when we were talking
about soundness of judgement, because the person who is not capable
will not be recognised as committing suicide. You will perhaps
have to conclude that there has been the intervention of a third
person, and see if this third person has acted himself or has
had a major influence on this death. You have the same problem
again of the boundaries between Articles 114, 111 and 115. The
point is that for our legal terms it is the same problem. If you
look at the suicide rates in Switzerland you will see that they
are quite high in the European tables. There are some federal
authorities looking for the causes of this and we have some figures
which could be of interest to you. The research about this evolution
is beginning and there are not yet definitive conclusions that
have been taken in this matter. One difficulty is that the health
system is again a cantonal system and a cantonal responsibility.
Each canton should do research and look at the causes of suicide
in their territory. At the federal level we can assemble this
information, and the measures we can take at the federal level
are only incentivising measures, programmes for incentivising
organisations or for working with private associations that are
caring for this problem of suicide. One of the conclusions of
the suicide researchand you may be able to talk about that
also with the physicians you are going to meetis that suicide
is in most cases, almost without any exception, caused by psychological
disease, by a depressive situation. For the legal situation we
are again confronted with this problem of soundness of judgement.
Physicians are examining suicide and they say in most cases it
is very closely related with diminished mental capacity or limits
of your will, so a legal problem exists in almost each case. I
have just one bit of information about the guidelines of the Swiss
Academy of Medical Sciences. They say, for instance, that they
work very much with the respect of patients' wishes but they say
that respect for patients' wishes reaches its limit if the patient
asks for measures to be taken that are ineffective or to no purpose
or that are not compatible with the personal moral conscience
of the doctor, the rules of medical practice or applicable laws.
One limit is the Penal Code, for instance.
Q2150 Baroness Finlay of Llandaff:
And that is guidance which provides a conscience clause to doctors?
These are the guidelines of an association. It is not the law.
You were also talking about the obligation to protect people,
the duty of care. This duty of care exists. It is the first duty
of a physician who is in front of such a person, especially when
you consider that the cause of the wish for suicide is conditioned
by a depressive situation.
Q2151 Earl of Arran: This is perhaps
a slightly unfair question because you deal primarily in facts
but you also have views. Is it your view that DIGNITAS is here
to stay and will continue in Switzerland but with ever-increasing
regulations and restrictions, or can you not give a view on that?
I agree with you, and I think that criminal prosecution will develop
and will establish some new limits and precise jurisprudence in
this sense and maybe also with increased work because one of the
problems of the prosecution authorities is that this death tourism
will occasion for them greater work and expense. This is the price
but I think if the authorities do this work and give the possibility
of jurisdiction to establish more precise limits to the interpretation
of this Article it should automatically reduce the activity of
an organisation like DIGNITAS because in DIGNITAS we have certainly
the problem of the difficulty of establishing criminal evidence.
One of the problems, as I told you at the beginning, is that we
are also dealing with the possibility of making a new administrative
law to regulate the activities of these organisations. The action
of criminal prosecutors can only come afterwards, as my Lady said.
It comes after the death has occurred. If you can regulate these
organisations you have maybe one disadvantage, for you will legalise
an organisation which has not been legalised yet in Switzerland.
You give them a legal framework, but at the same time you can
have a preventive effect by establishing those limits, so we have
both possibilities: either the criminal authorities establish
these limits with their jurisprudence or the legislator does it
at an administrative level with a new law that gives guidelines
for the activity: the registration duty, the control of the activities
of those organisations. Then you could, have with such a law established,
some minimal deadlines for establishing the will of the person
who has a persisting wish to die.
Q2152 Baroness Hayman: You have inspection.
You have inspections, so you can act to prevent misuse.
Q2153 Baroness Jay of Paddington:
When you spoke in your introduction about the possibility of some
different approach being taken up by the Federal Council this
was what you envisaged, was it? This is what you think the Federal
Council may be moving towards?
It might be, yes. It is one of the possibilities we are dealing
with now, because we have been charged to examine the whole problem
and we have to report to Parliament within the next two years
with an analysis of the problem and the possibility of intervention
at a federal legislative level.
Q2154 Lord Joffe: I might have misunderstood
what you said but in answer to Baroness Finlay's question about
many people who commit suicide suffering from depression I thought
you said that most people suffer from depression and I wondered
whether you were referring to the younger people who commit suicide
or the people who were being assisted to die.
I was just referring to the first researches that have been done
in Switzerland about the causes of suicide. One of the conclusions
is that the most expressed wish to suicide is in connection with
a kind of psychological psychiatric prognosis. It is not necessarily
depression but psychosis. It is quite an exception to find a fully
healthy person that looks at his life and says, "Okay; now
I will commit suicide because I have reached the aims I have fixed
for my life". These are the results of research about suicide
and suicide causes in Switzerland.
Q2155 Chairman: Suicide generally?
Yes, generally, young and old.
Q2156 Baroness Jay of Paddington:
So that I can be clear about this, you are talking about healthy
physically as well as mentally?
Q2157 Baroness Jay of Paddington:
Because otherwise that evidence would be counter to some we have
heard, for example, in Oregon where there is assisted suicide
in very particular circumstances where people are terminally ill
with a physical illness. The evidence seems to be from there that
this is not people who are mentally ill as well, whereas I hope
I understand you to say that if someone is perfectly healthy physically
and has a long expectation of physical life there has to be something
out of kilter mentally for them to decide to commit suicide.
It seems to be so. If you look at article 115, it does not define
suicide in relation to a disease. Article 115 is about the suicide
of every patient from every age, every personal situation and
every health situation. We do not have any difference in Article
115. That is why this Article is so wide. It gives so many possibilities
to act. All these other reflections, all these other works that
are being done now, are dealing with restrictions at the administrative
level, at the medical level, the guidelines of the Academy itself.
It reduces this large possibility to some cases in which they
could agree a situation that could justify the action of the doctor.
All these other attempts to establish guidelines are in effect
limiting the meaning of the scope of 115.
Q2158 Chairman: Can you help me on
a more general level? The Swiss Penal Code that was initiated
in 1937 and then came into force in 1942 I think was a codification
of the criminal law of the whole of Switzerland. Previously there
had been some differences between the cantons on criminal law
but has that now all disappeared in favour of a common Penal Code
that operates in the whole of Switzerland, as far as the law is
concerned the responsibility for prosecution under that code being
left with the cantons. Is that correct?
Q2159 Chairman: And so nowadays a
canton would not be ableor would it be able?to introduce
a new criminal provision of its own. It would be a matter solely
for the federal authorities to change the criminal law in the
country. Is that right?
That is right.