CASE OF GROSS v. SWITZERLAND
Preliminary objection allowed (Article 35-3 - Abuse of the right of petition)
Alvina Gyulumyan;András Sajó;Ann Power-Forde;Dean Spielmann;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Johannes Silvis;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Nona Tsotsoria;Peer Lorenzen;Vincent A. De Gaetano
9. The applicant was born in 1931 and died on 10 November 2011. 10. For many years the applicant had expressed the wish to end her life. She explained that she was becoming increasingly frail as time passed and was unwilling to continue suffering the decline of her physical and mental faculties. She decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. She contacted an assisted-suicide association – EXIT – for support, which replied that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug. 11. On 20 October 2008 a psychiatrist, Dr T., submitted an expert opinion in which he observed that there was no doubt that the applicant was able to form her own judgment. From a psychiatric medical point of view, Dr T. did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the prescription himself on the grounds that he did not want to confuse the roles of medical expert and treating physician. 12. By letters of 5 November 2008, 1 December 2008 and 4 May 2009 the applicant’s representative submitted on her behalf a request to be given a prescription for sodium pentobarbital to three further medical practitioners, who all declined to issue the requested prescription. 13. On 16 December 2008 the applicant submitted a request to the Health Board of the Canton of Zurich to be provided with 15 grams of sodium pentobarbital in order for her to commit suicide. On 29 April 2009 the Health Board rejected the applicant’s request. 14. On 29 May 2009 the applicant lodged an appeal with the Administrative Court of the Canton of Zurich. On 22 October 2009 the Administrative Court dismissed the appeal. The Administrative Court considered, in particular, that the prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention. The requirement to obtain a medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned. The Administrative Court observed that Dr T., in his expert opinion, had not considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near. The wish to die taken on its own, even if it was well considered, was not sufficient to justify the issuing of a medical prescription. Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination. Under these circumstances, the Administrative Court considered that there was no sufficient reason to dispense the applicant from the necessity of a thorough medical examination and of a medical prescription. 15. On 12 April 2010 the Federal Supreme Court dismissed an appeal lodged by the applicant. It observed, inter alia, that the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences, as she was not suffering from a terminal illness, but had expressed her wish to die because of her advanced age and increasing frailty. Even though the Federal Supreme Court had previously considered that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable, persistent and serious psychological illness did not necessarily amount to a violation of a doctor’s professional duties, this exception had to be handled with “utmost restraint” and did not enjoin the medical profession or the State to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life. The Federal Supreme Court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was ready to issue the necessary prescription. This requirement could not be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription. 16. On 10 November 2010 counsel for the applicant lodged an application with the Court. 17. On 24 October 2011 the applicant obtained a medical prescription for 15 grams of sodium pentobarbital signed by a medical practitioner, Dr U. On 10 November 2011 she ended her life by imbibing the prescribed substance. According to a police report dated 14 November 2011, no relatives of the deceased could be identified. The report concluded that the applicant had committed suicide with the assistance of EXIT and that no third person was found to be criminally liable in this context. 18. The Court was not made aware of the applicant’s death until 7 January 2014 (see paragraph 19 below).