Examination of Witnesses (Questions 2240
WEDNESDAY 2 FEBRUARY 2005
and DR MARGRIT
Q2240 Chairman: We do not know. It
is one thing to say there have been no prosecutions and therefore
the law must be liberally interpreted if you know in fact that
there have been infringements of the law, but if you do not know
whether there have been infringements or not you cannot make that
deduction. Are you able to help us on that point?
I remember one case at least where it was not an issue of selfish
interest but of lack of competence. It was a case in Basle when
EXIT tried to help a depressive patient to die and the official-
Q2241 Baroness Finlay of Llandaff:
Chief Medical Officer of the canton?
That must be it. He intervened and prevented this assistance from
being provided by reference to this law. Otherwise it would have
been broken in some interpretation because the law does not say
explicitly whether in any cases of depression it means directly
that there is lack of competence.
Q2242 Chairman: So he intervened
to suggest that the interpretation should cover that particular
Yes. There is now a big discussion within EXIT, and I am sure
you have heard about that, about finding special cases of depressive
patients or patients with other kinds of psychiatric diseases
in a state of clarity where they cannot be excluded formally from
the position of being competent. What we have said in our recommendation
is very general. The law should follow the rule that whenever
the desire to die is a symptom of the disease then the person
needs care and treatment and not assistance for suicide, but in
practice, of course, the question is how to decide in a particular
case at a particular time whether this is a symptom of the disease.
Q2243 Chairman: There might be situations
in which there was some mental condition affecting the patient
but which did not in fact result in the patient not being competent
to take a decision that they wanted to have suicide; is that right?
This is the case under discussion. In the discussions in the Commission
we think that these cases can happen, that the fact of the presence
of a psychiatric disease, depression for example, is not in each
case an exclusive condition for enough competence. This term "competence"
needs interpretation relative to what people in psychiatric conditions
can experience. That was also an important point for us. It needs
a long term caring relationship between the one who assesses the
capacity and the patient himself. Merely a formal encounter resulting
in expertise will probably not be enough evidence for that.
Q2244 Chairman: Can you tell us a
little bit more about the Commission that you head up and which
you have been speaking for this afternoon? When was it first set
In 2001, so it is very young.
Q2245 Chairman: Vigorous therefore;
it has the vigour of youth. It was set up by the Federal Parliament?
Indirectly, yes. The Parliament made a law which asked the government
to install such a committee.
Q2246 Chairman: And then the ministers
appointed the members of the Commission?
Q2247 Chairman: What period of office
do you hold?
It has an upper limit of 12 years.
Dr Leuthold: With
re-election after three years.
There is a maximum of three re-elections and we are about one
third medical professions, one third ethical professions, theologians
and philosophersI myself am a philosopherand one
third additional experts who are needed, for example, in law,
biology, psychology, etc.
Q2248 Chairman: The function is to
advise on biomedical ethics but does that relate solely to the
ethics of the medical and associated professions or does it include
ethical issues that might be of a biomedical character but related,
for example, to participation by non-medics in assisted suicide?
I would say the latter, the more general.
Baroness Jay of Paddington:
I am sorry to return to this question about ALS and assisted suicide
but Lord Joffe has shown me, and I have read it before and I had
forgotten, a reference to a case which must have been quite familiar
to you about a woman in this country who was almost completely
paralysed after a severe brain haemorrhage and she was in care
for four years and then signed up with EXIT, but obviously was
in a situation where it would have been very difficult for her
to administer a lethal dose. Her husband createdand there
is a drawing of ita rather extraordinary contraption by
which she was enabled through a kind of catheter arrangementand
I knew I had seen something like this, which is what reminded
me, and Lord Joffe with his brilliant filing system had itwhich
enabled her with this process technically to administer the dose.
This case was reported in the normal way through the official
EXIT procedures because it was EXIT she was involved with, was
considered and was agreed to be the kind of assisted suicide which
was, I suppose one should say, technically at least within the
law as described, but frankly, to the common-sense person looking
from the outside does seem to have been verging on active support
and active euthanasia but was regarded as being within the guidelines.
There must presumably be quite a lot of cases of this kind, and
this is where perhaps I am not parting company with you, Chairman,
but am concerned about whether, if they have not been prosecuted,
this means that they are or are not happening.
Chairman: The truth about
that case is that it was held to be within the strict letter of
the law because they constructed this apparatus and he would not
have found it necessary to do that if they were going to interpret
the law more generously.
Baroness Jay of Paddington:
Quite, but what we are discussing is the grey area which you referred
to much earlier in our discussion. I think the grey area must
have become quite extensive.
Chairman: My point is
the simple one, that unless we know that the law has been broken
we cannot make any deduction from the fact that there have not
been prosecutions. That is the only point I was trying to make,
although I was perhaps making it rather at length. I understand
that it is possible to have a borderline, which is quite difficult,
and ingenuity was apparently required to get over the borderline
into the lawful area in that particular case.
Lord Joffe: I spoke to
Dr Bosshard who gave evidence to us and who wrote this article,
and he said that there was really no need for the husband of the
patient who took it, who was a technician and liked constructing
ingenious devices, but that there are other medically approved
devices which would have served the purpose just as well.
Baroness Jay of Paddington:
This does look quite bizarre.
Q2249 Chairman: He wanted to demonstrate
his ingenuity. Who knows, he may patent his device. Thank you
very much indeed for your help in an area of very considerable
interest and difficulty. You have given us a very clear picture
of the situation as it exists here, although of course, obviously
there are areas of great difficulty in applying a law of this
kind in the many varied circumstances which the law may have to
address. Thank you both very much and, as I say, when you read
the transcript of the evidence I hope it will be clear and you
will realise how wonderful the account was that you gave to us
Dr Leuthold: Thank
Thank you. It has been a privilege to have these discussions.