In Switzerland, assisted suicide is criminalised only where the assister’s motive was selfish rather than compassionate. (Penal Code, Art. 115). When it was originally drafted, medically-assisted suicide for the terminally ill was not envisaged as a possible use of the relevant article of the Penal Code: “the whole discussion did not envisage assisted suicide from a medical perspective. Instead, it was 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.” (Olivier Guillod & Aline Schmidt, ‘Assisted suicide under Swiss law’ (2005) 12 Eur. J. Health L. 25, 29 (Shibboleth login required)). However, the current use of the Penal Code provision is well-known, and for some time the Swiss Government has been troubled over the increase in suicide tourism. The Swiss Minister of Justice has now announced plans to send two different draft bills to Parliament for debate. The option favoured by the Government would regulate the practice of organised assisted suicide (currently by Exit Deutsche Schweiz, Exit ADMD (Association pour le droit de mourir dans la dignité), Dignitas and Exit International). The regulation proposed focuses on ensuring an informed, voluntary and well-considered request for assistance in suicide including a mandatory discussion of alternatives; independent medical certification of capacity; independent medical certification of a terminal illness; medical involvement in the prescription of the drug used; and provisions to ensure that assisted suicide is non-commercial and that only costs and expenses can be recovered. The explicit aim of the proposals is to prevent “the negative aspects and abuse of organised assisted suicide . . . and [to reduce] ‘suicide tourism’ . . .” The terminal illness requirement would be a new one for the Swiss, although it finds a precedent in the Oregon legislation (and the UK Assisted Dying for the Terminally Ill Bill). The press release observes that:
“This would rule out organised assisted suicide for those with chronic illnesses that are not in themselves terminal, and for those suffering mental illness. Comprehensive treatment, care and support, in the sense of palliative medicine, should allow these people to continue to live in dignity.”
Certainly such a requirement would have prevented some of the British persons who have recently obtained assisted suicide in Switzerland from doing so, including Daniel James and Sir Edward Thomas Downes. The requirement of medical involvement in the prescription of the drug used appears to be aimed at Dignitas, which, according to media reports, has recently been using helium (which does not require medical involvement) to assist in suicide, in order to avoid local regulation in the canton of Zürich requiring that non-residents seeking assistance in suicide have at least two interviews with the doctor who prescribes the lethal medication. Apparently because of a split in the Government, a second and much more radical option has also been tabled: a complete ban on organised assisted suicide. According to the press release:
“This option rests on the belief that individuals working in assisted suicide organisations are never actually motivated by purely altruistic reasons, and may develop a close relationship with the suicidal person.”
The May 2009 Federal Department of Justice and Police Report on Organised assistance with suicide, which led to the current proposals, is available in French, German and Italian. The Times believes that the move will “set off a rush of patients from Britain and elsewhere in Europe since Switzerland has become the main destination for those seeking assisted suicide.” As approximately 75% of all assisted suicides in Switzerland are cases of terminal illness, this may be an over-statement. Terminally ill patients will not be hugely affected by the proposed regulatory changes of the preferred option. However, this proportion does seem to be falling, and this is clearly of concern to the Swiss Government who view the liberalisation of the criteria used by Dignitas and Exit Deutsche Schweiz as a worrying development (Report, §2.1). The data here is from Fischer et al., ‘Suicide assisted by two Swiss right-to-die organisations’ (2008) 34 J Med Ethics 810-14, Tables 1 & 4 (Shibboleth login required), which is cited in the Report, §2.1, n. 17.