Author: Lawyer Enrico Germano.
The legal framework in Switzerland on the subject of assisting suicide is a very topical ethical and social issue, as in many western countries, and in this respect Switzerland has Article 115 of the Criminal Code entitled ‘Incitement and assisting suicide’, which states: « Any person who for selfish motives incites or assists another to commit or attempt to commit suicide is, if that other person thereafter commits or attempts to commit suicide, liable to a custodial sentence not exceeding five years or to a monetary penalty». In essence, assisting suicide is permitted in Switzerland but under certain conditions and continues to raise legitimate questions and heated reflections, both on the right to self-determination and on the indispensable principle of the right to life.
Indeed, the doctrine on art. 115 of the Criminal Code says nothing about the involvement of health professionals in instigating suicide, even though the reality of assisting suicide in Switzerland almost always involves a prescription signed by a doctor, even if it is then a volunteer from an association who brings the potion to the suicide candidate, witnesses the death and alerts the judicial authority .
A few cantons in French-speaking Switzerland, including Vaud and Neuchâtel, have adopted specific legislation to organize the proper conduct of the assisting suicide process that then leads to death, obliging hospitals and nursing homes to accept assisted suicides on their premises.
In this regard, Art. 27d of the Canton Vaud Public Health Act specifies that the request for assisting suicide must be the subject of specific checks, i.e. the doctor in charge must verify that the patient is capable of judgement with regard to his or her decision to commit suicide, persists in his or her desire to commit suicide, and suffers from a serious and incurable illness or sequelae of injury. If mental disorders or external pressures are suspected, the law of the canton of Vaud mentions that the opinion of an expert psychiatrist must be sought.
In this context, the decision of the Criminal Appeals and Review Chamber of the canton of Geneva of 6 February 2023, which has been taken up by the media since 20 February 2023, will undoubtedly allow the open and heated debate on assisting suicide legislation to be relaunched.
It should be noted that a doctor was convicted of helping an 86-year-old lady, in this case in good health, to die after having prescribed a lethal substance, the pentobarbital. This lady wanted to die at the same time as her seriously ill husband and ended her life at the same time as her husband in April 2017. The doctor in question had first been found guilty of violating the Medicines Act at the end of 2018 by the Public Prosecutor’s office of the canton of Geneva and sentenced to 120 suspended daily allowances. This decision was later confirmed by the Police Court and the Geneva Criminal Appeals and Review Chamber. In 2020, the doctor appealed to the Federal Supreme Court, Switzerland’s highest judicial authority, which upheld his appeal before holding that the delivery of pentobarbital to a person with a view to suicide was not covered by the Drugs Act. The Federal Supreme Court overturned the conviction and sent the doctor’s case back to the courts in Geneva, which had to re-examine the case but from a new point of view, that of the Narcotics Act, whose rules are stricter than the Medicines Act, which is reserved for medical acts.
On 6 February 2023, the Geneva Criminal Appeals and Review Chamber definitively acquitted the doctor, arguing that the Narcotics Act is not intended to regulate the conditions under which a doctor can prescribe pentobarbital, as there is no medical indication for this substance. The High Court of the canton of Geneva specifies that the mere fact that a doctor prescribes pentobarbital to a person who is healthy, capable of discernment and has a death wish does not constitute punishable conduct under the Narcotics Act.
However, the High Court of the Canton of Geneva makes it clear that this does not mean that a doctor should be free to do so without incurring civil or administrative liability.
It now remains to be seen what the Geneva Public Prosecutor’s Office will do, which has 30 days to either appeal and take the case back to the Federal Supreme Court or to accept that the doctor’s acquittal decision will become final.
1 Assisting suicide in Switzerland, its ethical and historical particularities, Alex Mauron, 2018, figure 11
2 Assisting suicide, Olivier Ferraz, 2020
3 Law on public health of the canton of Vaud
4 Tribune de Genève online of 20 February 2023 and Swiss French news of 20 February 2023
5 Tribune de Genève online of 20 February 2023 and Swiss French news of 20 February 2023
6 Tribune de Genève online of 20 February 2023 and Swiss French news of 20 February 2023
7 Tribune de Genève online of 20 February 2023 and Swiss French news of 20 February 2023