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


Examination of Witnesses (Questions 2140 - 2159)

WEDNESDAY 2 FEBRUARY 2005

MR BERNARDO STADELMANN, MR DANIEL FRANK and MRS CHANTAL FAVRE

  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?

Mr Stadelmann: 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?

Mr Stadelmann: 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 trouble—it is ten years ago—and 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?

Mr Stadelmann: 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 research—and you may be able to talk about that also with the physicians you are going to meet—is 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?

Mr Stadelmann: 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?

Mr Stadelmann: 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.

Mr Stadelmann: 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?

Mr Stadelmann: 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.

Mr Stadelmann: 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?

Mr Stadelmann: 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?

Mr Stadelmann: Yes.

  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.

Mr Stadelmann: 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?

Mr Stadelmann: Yes.

  Q2159  Chairman: And so nowadays a canton would not be able—or 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?

Mr Stadelmann: That is right.


 
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