Uster/Wetzikon, February 1st (2007) The Swiss Federal Court has acknowledged the right of a person to determine the way and the point in time of his/hers end of life as a guaranteed European human right and at the same time basically granted mentally ill this right just like everyone else, if they have capacity of discernment.
The Federal Court stated as follows:
· «The right of self-determination in the sense of article 8 § 1 ECHR includes the right to decide on the way and the point in time of ending ones own life; providing the affected person is able to form his/her will freely and act thereafter.»
· «It cannot be denied that an incurable, long-lasting, severe mental impairment similar to a somatic one can create a suffering out of which a patient would find his/her life in the long run not worth living anymore.
Based on more recent ethical, juridical and medical statements, a possible prescription of Sodium-Pentobarbital is not necessarily contra-indicated and thus no longer generally a violation of medical duty of care...
However, utmost restraint needs to be exercised: It has to be distinguished between the wish to die that is expression of a curable psychic distortion and which calls for treatment, and the wish to die that bases on a self-determined, carefully considered and lasting decision of a lucid person ("balance suicide") which possibly needs to be respected. If the wish to die bases on an autonomous, the general situation comprising decision, under certain circumstances even mentally ill may be prescribed Sodium Pentobarbital and thus be granted help to commit suicide.»
· «Whether the prerequisites for this are given, cannot be judged on separated from medical - especially psychiatric - special knowledge and proves to be difficult in practice; therefore, the appropriate assessment requires the presentation of a special in-depth psychiatric opinion...»
The decision by the Federal Court has been procured through the complaint of a mentally ill man, a member of Dignitas, for whom - due to legal insecurity - no physician would have written the prescription for the drug Sodium Pentobarbital necessary for a risk-free suicide. The reason for this refusal was the always somehow vague threat by the Zurich Cantonal Physician group to withdraw the permission to work of those physicians who would write such a prescription.
For this reason, the appellant addressed himself to the Federal Council, the Director of the Federal Department of Health, the Zurich Cantonal Physician and the Zurich Cantonal Pharmacist, claiming the right to have direct access to the necessary drug.
To justify his claim, he referred to the European Convention of Human Rights, which in article 8 secures that all contracting states shall respect the private life of everyone within their jurisdiction. Private life would also include the decision on one's own end of life.
All of the contacted authorities either explained to be incompetent or dismissed the request.
He was eventually successful in the Federal Court. It should be noted that his success is largely theoretical as the medical establishment has traditionally only allowed poison to be consumed by the elderly. However better a theoretical victory than none!