Articoli, saggi, Fine vita -  Redazione P&D - 2014-07-09

NONPHYSICIAN-ASSISTED SUICIDE IN SWITZERLAND – Roberto ADORNO

In general, legal responses to endoflife issues are not very different in Switzerland than in most European countries. For instance, active euthanasia (i.e., killing on request) is illegal, although it is treated as a lesser offense than murder or manslaughter. Article 114 of the Swiss Penal Code reads, ""Every person who, for honourable reasons, especially mercy, kills another person on his or her serious and pressing request shall be punished by imprisonment for a maximal term of three years or with a fine."" Also, like in most European countries, the administration of medication (for instance, morphine) to relieve serious pain of a terminal patient, even though it may lead to the unintended consequence of hastening his or her death, is accepted, in both moral and legal terms. Similarly, like in many other countries, the withdrawal or withholding of life-sustaining treatments,

even if they are not covered by any specific legal provision, is not treated as a criminal offense provided that certain conditions are fulfilled.

The peculiarity of Switzerland regarding end-of-life issues only relates to assisted suicide. This practice, which is permitted, has two significant differences when compared to the situation in the other (few) European countries that allow it:

1) Nonphysician-assisted suicide is permitted. Whereas in the Netherlands and Belgium only physicians are allowed to assist in a suicide, in Switzerland this assistance is provided by (nonphysician) volunteers working for nonprofit organizations.

The role of doctors is limited to prescribing the lethal drug and assessing the patient"s decisional capacity; they do not perform the assistance in the suicide themselves.

In this regard, the practice of assisted suicide in Switzerland is similar to the one in the U.S. state Oregon.

2) Oneneednothaveaparticularmedical condition (such as a terminal illness or an unbearable suffering) to request assistance with suicide.

The only requirement is that the individual must have decisional capacity, because in the absence of it his or her act cannot be considered a ""suicide"" in legal terms.

In fact, at present, according to a recent study, around 25% percent of people who die by assisted suicide in Switzerland do not have any serious or terminal illness but are just old, or are simply ""tired of life.""

The peculiarity of the Swiss situation is due to the circumstance that, unlike other countries that allowassisted suicide, Switzerland does not have any specific legal norms regulating this practice.

This current situation has developed not as the result of an explicit liberal policy but rather at the initiative of nongovernmental right-to-die organizations, which took advantage of a gap in the legal system. The draft Penal Code, which was submitted to the Parliament in 1918 and approved in 1937, already included the current Article 115, entitled ""inducement and assistance to commit suicide,"" which reads: ""Every person who, for selfish reasons, incites or assists someone to commit suicide, shall be sentenced to imprisonment of up to five years or a fine.""

This article is interpreted a contrario as meaning that assistance with suicide is not a criminal offense when it is practiced without any self-interested motivation. There would be a selfish motivation if, for instance, the assisting person would inherit the one who is seeking to die or would benefit in some other way from the death of the latter.

But because nonprofit organizations do not have, in principle, any selfish motivations for helping someone to commit suicide, their activities are not illegal.

Certainly, Article 115 of the Penal Code wasnot originally conceivedwith the purpose of ""legalizing"" assisted suicide, let alone facilitating the activities of nongovernmental organizations involved in this practice. Rather, the authors of the draft Penal Code had in mind the situation of somebody who assists a desperate individual wanting to end his or her life for some personal reasons; the lawmakers decided to exclude imprisonment when the assisting individual acted without any personal interest. The whole parliamentary discussion in the 1930s did not envisage at all suicide assistance fromamedical perspective. It was, rather, inspired by ""romantic stories about people committing suicide in defence of their own, or their family"s honour, and about suicides committed by rejected lovers.""

The unintentional character of the current permissive regimeregarding assisted suicide explains the two aforementioned gaps in the Penal Code when compared with the provisions of other countries allowing this practice. First, it does not make any mention of physicians in the practice of assisted suicide. Second, no particular medical condition is required to request assistance with suicide.

Therefore, in Switzerland, anyone can in principle assist an individual to commit suicide, and any competent person can request such assistance.

However, as mentioned previously, assisted suicide is in fact performed by volunteers working for nongovernmental organizations, and not by physicians.

Interestingly, according to a study conducted in 2009, 80.4 percent of Swiss doctors are reluctant to be directly involved in this practice, which they consider to be a ""nonmedical intervention"" (although the majority of them do not regard the practice itself as morally reprehensible).

In addition, the Swiss Academy of Medical Sciences issued in 2004 guidelines on this matter expressing serious reservations about the involvement of physicians in assisted suicide. Paragraph 4.1 of the guidelines specifies that ""the proper task of doctors is to relieve patients" suffering, not to offer them assistance to commit suicide.""

The rationale of this statement is that doctors" involvement in their patients" suicide risks creatingconfusion about the proper aim of the medical profession, on the side not only of patients but also of doctors themselves. It should be noted that these guidelines have been incorporated into the Professional Code of theSwissMedicalAssociation (Federatio Medicorum Helveticorum [FMH]), and, in this way, they are binding for all practitioners.

However, the academy itself nuanced the statement made in Paragraph 4.1 while acknowledging, in the same paragraph, that if a doctor, in accordance with his conscience, decides to assist in a suicide, his decision has to be respected: On the one hand assisted suicide is not part of a doctor"s task, because this contradicts the aims of medicine. On the other hand, consideration of the patient"s wishes is fundamental for the doctor-patient relationship. This dilemma requires a personal decision

of conscience on the part of the doctor.

The decision to provide assistance in suicide must be respected as such.

In any case, the doctor has the right to refuse help in committing suicide.

If he decides to assist a person to commit suicide, it is his responsibility to check the following preconditions: the patient"s disease justifies the assumption that he is approaching the end of life; alternative possibilities for providing assistance have been discussed and, if desired, have been implemented; the patient is capable of making the decision, his wish has been well thought out, without external pressure, and he persists in this wish.

This has been checked by a third person, who is not necessarily a doctor.

The final action in the process leading to death must always be taken by the patient himself.

(…)

Roberto Adorno

Nonphysician-Assisted Suicide in Switzerland

Cambridge Quarterly of Healthcare Ethics (2013), 22, 1–8.



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