Gross v. Switzerland

In the case of Gross v. Switzerland (Application no. 67810/10) the Court found violation of Article 8 of the Convention in relation with absence of "clear and comprihensive" legal guidelines concerning the extent of the right to assisted suicide in Switzerland.

The applicant of the case was a Swiss woman who, for many years, had expressed her wish to end her life since she feared of becoming more and more frail and of suffering the decline of her physical and mental faculties. She even attempted suicide after which she was treated in a hospital. In 2008 she was examined by a psychiatrist who found that the applicant's quality of life had been constantly decreasing, and she had also suffered from the fact that she could not talk openly about her wish to die with her friends.On this basis the  psychiatrist observed that "there was no doubt that the applicant was able to form her own judgment" and that "her wish to die was reasoned and well-considered, had persisted for several years and was not based on any psychiatric illness". The psychiatrist therefore - from a psychiatric/medical point of view - did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. The applicant however could not find a medical prectitioner willing to prescribe her the lethal dose - as it was required by the Swiss practice - since all doctors, from whom Gross subsequently requested a prescription, declined. The reason was that they "felt prevented by the code of professional medical conduct" or "did not wish to be drawn into lengthy judicial proceedings".The applicant subsequent requests for the authorization of access to the lethal dose of the medical substance were rejected by to the Health Board and the Administrative Court of the Canton of Zurich. Finally, the Federal Supreme Court rejected the applicant's appeal and found 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. [...] 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.

In her application submitted to the ECtHR, the applicant complained that the Swiss authorities, by depriving her of the possibility of obtaining a lethal dose of sodium pentobarbital, had violated her right to decide by what means and at what point her life would end. She relied on Articles 2, 3, 6 § 1, 8 and 13.

Violation of Article 8

The Court reiterated, at the outset, that the notion of “private life” is a broad concept, which encompasses, inter alia, the right to personal autonomy and personal development. In its earlier judgment in the case of Pretty v. the United Kingdom, the ECtHR noted that it could not yet exclude that preventing a person by law from "exercising his or her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for her private life as guaranteed under Article 8 § 1 of the Convention". The Court further acknowledged in the case of Haas v. Switzerland by 

that an individual’s right to decide the way in which and at which point his or her life should end, provided that he or she was in a position to freely form his or her own judgment and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.

Therefore the Court examined the circumstances of the applicant’s case from the perspective of the right to respect for her private life under Article 8. In this regard, the Court considered that the case primarily raised the question whether "the State had failed to provide sufficient guidelines defining if and, in the case of the affirmative, under which circumstances medical practitioners were authorised to issue a medical prescription to a person in the applicant’s condition".

The Court observed that, in its case-law on the subject, the Swiss Federal Supreme Court had referred to the medical ethics guidelines on the care of patients at the end of their life, which were issued by a non-governmental organisation and do not have the formal quality of law. These guidelines only apply to cases where doctors has arrived at the conclusion that - within a matter of days or a few weeks - their patients will die. The applican, however, does not fall within the scope of application of these guidelines, as she did not suffer from a terminal illness. Furthermore, in the case of the applicant, this lack of clear legal guidelines had a negative effect considering the attitude of the doctors, as they declined to prescribe the medication requested by the applicant due to fear of professional or legal consequences. The Court therefore concluded that

the applicant must have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life which would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition.

As a result, the Court found - with a very narrow majority (4 votes against 3) - that Swiss law does not provide sufficient guidelines ensuring clarity as to the extent of this right, which violated Article 8 of the Convention.

Regarding the substantive matter the applicant’s request, the Court, however, refrained from finding a violation of the right to respect of private life and limited itself to the above conclusion without in any way taking up a stance on the substantive content of such guidelines. Relying on the principle of subsidiarity, the ECtHR considered that it is the primary role of the Swiss authorities "to issue comprehensive and clear guidelines on whether and under which circumstances an individual in the applicant’s situation – that is, someone not suffering from a terminal illness – should be granted the ability to acquire a lethal dose of medication allowing them to end their life".

The ECtHR declared tha remainder of the application manifestly ill-founded and dismissed those claims.

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The Court - after its judgment in the Pretty- and the Haas-cases and lately in the case of Koch v. Germany - took the opportunity to further develop it case-law considering assisted suicide, as it ruled that the norm clarity, an essential element of the principle of rule of law, obligates the states to issue measures, namely a comprihensive and clear legal framework, that define the limits and extent of the right to access to lethal drugs in order to allow the individual to end his or her life. The ECtHR, on the other hand, rendered this task solely to the state as it refrained from defining - at least some - guidelines regarding the future law. This, however, does not mean that the Court, when the adequacy of this law is questionned, would refrain from examining the compliance of the measure issued by the state with Articel 8 of the Convention.

See the short report about the judgment on Jurist here.

Read the first comment on the judgment on UK Human Rights Blog here.

See comment on the case on Strasbourg Observers here.

See also updated factsheets on the Right to Life and Health.

Leaflet on Genetic Tests for Health Purposes translated into 17 languages

Source: cosozo.com

The Council has published its leaflet on Genetic Tests for Health Purposes (see more) translated into 17 languages: Albanian; Armenian; Croatian; Czech; Dutch; Estonian; Finnish; German; Greek; Hungarian; Icelandic; Polish; Portuguese; Romanian; Slovak; Slovanian; Spanish.

You can find the translated leaflets here.

Mehmet Şentürk and Bekir Şentürk v. Turkey

In the case of Mehmet Şentürk and Bekir Şentürk v. Turkey (Application no. 13423/09) the Court found the violation of Article 2 of the ECHR in realtaion with the death of the first applicant's wife, the second applicant's mother, following a series of misjudgments by medical staff at different hospitals and the subsequent failure to provide her with emergency medical treatment when her condition was known to be critical. (Note: the language of the judgment is French, therefore I used the press release for the following summary)

On  11  March  2000  the  first  applicant’s  wife,  who  was  in the 34th week of her pregnancy, experienced pain. She then went to several hospitals where sha was not properly examined. As her pain did not lessen they went to Ege University  Hospital where the doctors found that her foetus was dead. Then Mrs Şentürk was told that she would have to be operated on to remove the child and, according to the applicants, was then asked to pay a deposit to cover the costs of her hospital admission and the surgery. As they did not have the sum required, the couple were sent to another hospital. Mrs Şentürk died without receiving any medical assistance while being transferred in the ambulance.

After the tragic event the Ministry of Health carried out an investigation that found several members of the hopsitals concerned liabile for the death of the woman. Furthermore, in 2001, several criminal proceeding were initiated against the medical personnel. The criminal court reached a conviction on 18 March 2008, but the applicants were dissatisfied with the judgment and appealed. In 2010 the Court of Cassation terminated the proceedings by virtue of the statute of limitations.

The applicants alleged that the right to life of the mother and the foetus had been infringed as a result of the negligence of the medical staff involved. They further complained about the length of the subsequent criminal proceedings.

Violation of Article 2

The Court set examined first whether the national authorities had done all that could reasonably have been expected of them to protect the patient’s physical well-being, in particular by providing her with appropriate medical care. It noted that some of the medical staff concerned had been found criminally liable by the first-instance court. It accepted the findings of the investigation carried out by the Turkish authorities, which had highlighted several errors of judgment by the doctors and serious deficiencies in relation to the patient’s transfer.

The ECtHR considered that the mother had not reached an informed decision to refuse treatment and that the national  authorities  had  therefore  been  under  an  obligation  to  treat  her,  not  least because the seriousness of her condition had not been in doubt. Accordingly, the Court held that the deceased had been denied access to appropriate emergency treatment, which in itself amounted to a violation of the substantive aspect of Article 2.

The Court then examined whether the investigations by the Turkish authorities had been able to shed light on the events. In the medical sphere, a prompt response by the authorities was vital in maintaining public confidence and support for the rule of law. In this case, however, the proceedings had lasted more than nine years in total, of which some three years had been taken up simply by the administrative procedure of leave to bring a prosecution; this did not satisfy the requirement of a prompt examination.

As regards the criminal procedure, the Court noted that it was possible in Turkey to institute both civil and criminal proceedings in the event of a death in hospital. However, where persons responsible for endangering life were not charged with a criminal offence or prosecuted, this could amount to a violation of Article 2. The Court noted that the same applied in  the case of a hospital’s failure to provide a patient with medical assistance. In the present case, Turkish criminal procedure had not afforded the opportunity to establish the full responsibility of the medical staff concerned, and this amounted to a second violation of Article 2.

In relation with the right to life http://www.blogger.com/blogger.g?blogID=4524223062577257773#editor/target=post;postID=3662789365374205306;onPublishedMenu=overviewstats;onClosedMenu=overviewstats;postNum=3;src=postnameof the foetus, the ECtHR considered  that  it  was  not  necessary  to  examine  whether  the applicants’ complaint concerning the unborn child fell within the scope of Article 2 of the Convention. In the absence of a European consensus on the scientific and legal definition of the beginning of life, States enjoyed a wide margin of appreciation in this sphere, as the Court had held in a previous case. The life of the foetus was intimately connected with that of the mother and was dependent on the treatment she received. Accordingly, the Court considered that the applicants’ complaint in relation to this issue did not require a separate examination.

Remainder of the Application

With regard to its previous findings, the Court considered that there was no need for a separate examination of the remainder of the application.

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See a comment on the case by Saïla Ouald Chaib on Strasbourg Observers.

See also updated the factsheet on the Right to Life here.

Report on Donor Conception

source: http://www.nuffieldbioethics.org

A special Working Party of the Nuffield Councilk on Bioethics has published its report "Donor conception: ethical aspects of information sharing" which considers the interests of people affected by donor conception and makes recommendations about what can be done to support, encourage and empower those making decisions about the sharing of information.

Here is an extract from the introduction:

The task for this Working Party has been to consider questions of information sharing in practices of donor conception in the UK. Its primary focus has thus been on issues of privacy, openness, and access to information, and the implications of each of these for the individuals, families and groups affected by donor conception. While its remit was not to investigate the ethics of donor conception  per se, the Working Party nevertheless received evidence of a wide range of views and attitudes towards the use of donated gametes as a means of creating families. At one end of the spectrum, some people, including some donor-conceived adults, believe that donor conception should not be allowed at all. Both this view, and the opposing one that donor conception is a legitimate means of creating a family and of having children of  'one's own', hinge on the relative significance placed on biological or 'blood' connection between parents and  their children. This issue of the significance of biological connection in family relationships, and in the identity of the individual, has also proved to be central to questions about whether donor-conceived people should always be informed about the means of their conception, how much information about their donor they should be able to obtain, and whether they should be able to find out the identity of their donors, with the possibility of such identifying information leading to contact.

References to 'disclosure' in the context of donor conception tend to conflate two separate issues: 'openness' by parents about the use of donor gametes in conception (donor-conceived people knowing about the circumstances in which they were conceived), and access to information (identifying or non-identifying) about the particular donor. It is, however, very important that these two issues should be distinguished. It is possible for a parent to be open with their child in the context of anonymous donation. It is not, however, possible for a donor-conceived person to exercise any entitlement to information about their donor in the  absence of information about the circumstances of their conception. It should also be noted that, in contemporary social life in the UK,  'openness' has acquired positive connotations and is axiomatically thought to be desirable. The Working Party has been compelled to think carefully about the language it uses in order to convey not only the complexity of the issues raised in sharing information in the context of donor conception, but also the diversity of views and opinions on its implications.

These issues have been contentious for many years, as the Working Party's factfinding meetings and responses to its call for evidence have illustrated. The Working Party is acutely aware of how many, potentially competing, interests are at stake ± and of how much these issues matter to those whose lives are affected by donor conception. Because of the variety and complexity of these views, the Council, in establishing this enquiry, sought to provide a forum where  all voices could be heard; and it was felt that this would best be enabled through consultation rather than seeking to represent this vast spectrum of opinion on the Working Party itself.  Input from as wide a range of interested and concerned individuals and organisations as possible was thus sought through an open call for evidence, an online survey, a series of face-to-face meetings, and external review of the draft report by diverse stakeholders. [...]

As noted above, the Working Party has been primarily concerned with the UK. It should be noted however that there are other, and different, regulatory and ethical regimes across the world which inevitably impact upon the UK. Not only might ethnic ally diverse populations within the UK be informed by cultural and ethical imperatives in their countries of origin, but people regularly opt to travel overseas for fertility treatment, and it is also possible to import gametes to treatment in a UK clinic. In addition, UK regulatory frameworks do not cover the  'informal' arrangements people make outside the clinic to donate and acquire sperm both in the UK and abroad. The Working Party is aware that there are distinctive national IVF and donor conception cultures that are emerging and changing, [reference ommitted]  and that this needs to be kept in mind in any discussion of donor conception and information sharing whose primary focus is the present situation in the UK.

 Additionally, you can find the quick guide to the report here.

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See a blog entry by Dr Rhona Knight on Nuff' said who, via an extract from the foreword of the report, reflects on the creation of the report and outlines some of its main findings.

Ethics of Vaccination in Humanitarian Crisis

In the April issue of the Bulletin of the World Health Organisation (Vol. 91 No. 4) Keymanthri Moodley et al. published the article "Ethical considerations for vaccination programmes in acute humanitarian emergencies". The analysis deals with ethical questions of vaccination raised by humanitarian crisis through considering a couple of key issues: beneficience and human rights, non-maleficence, distributive and procedural justice, informed consent and, finally, research.

Here is the abstract:

Humanitarian emergencies result in a breakdown of critical health-care services and often make vulnerable communities dependent on external agencies for care. In resource-constrained settings, this may occur against a backdrop of extreme poverty, malnutrition, insecurity, low literacy and poor infrastructure. Under these circumstances, providing food, water and shelter and limiting communicable disease outbreaks become primary concerns. Where effective and safe vaccines are available to mitigate the risk of disease outbreaks, their potential deployment is a key consideration in meeting emergency health needs. Ethical considerations are crucial when deciding on vaccine deployment. Allocation of vaccines in short supply, target groups, delivery strategies, surveillance and research during acute humanitarian emergencies all involve ethical considerations that often arise from the tension between individual and common good. The authors lay out the ethical issues that policy-makers need to bear in mind when considering the deployment of mass vaccination during humanitarian emergencies, including beneficence (duty of care and the rule of rescue), non-maleficence, autonomy and consent, and distributive and procedural justice.

Emerging Debate on Abortion: Reply to G. Puppinck on EJIL: Talk!

Hopefully we can see an emerging debate on matters in relation with abortion on the blog of the European Journal of International Law (EJIL: Talk!).

As I earlier mentioned in this blog Gregor Puppinck, director of European Center for Law and Justice wrote a comment on abortion on demand and the case-law of the ECtHR. Mr. Puppinck expressed his opinion on matters related to abortion in a conservative "pro life" fashion which entails the disregard towards women's right to rospect of private life, the superseding interests of the embryo or the foetus and - what I called a terrifying solution - the consideration of the interest of the prospective father or grandfather. The author justified his reasoning by some kind of grateful tolerance on behalf of the Court towards abortion.

The response to the above mentioned opinion was published on EJIL: Talk!last week by three PhD Candidates from the Durham University Law School. Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala call for a more sophisticated and nuanced approach to abortion in their post.

The authorsadmit that - even though there cannot be found a right to abortion within its case-law - the ECtHR "has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances". They call for a holistic approach taking into accont not only the decisions of the Court but the ruling of the domestic courts as well. Relying on both domestic and ECtHR case-law they conclude that the Court does not impose "new or expanded obligations" upon Member-Statea, but rather re-affirms "obligations and rights protections which already form part of domestic legislation".

The authors also address the issue of the rights and interests of the father. They recall the decision of the European commission of Human Righta in H. v. Norway (Applicantion no. 17004/90) in which the Commission declared that the rights of the prospective mother shall be taken into account in the first place - as she is "the person primarily concerned by the pregnancy and its continuation or termination" - when assessing the rights of the potential father. A fact that was not mentioned in Mr. Puppuinck's post.

The overall conclusion of the post is as follows:

In the context of the abortion debate, it is crucial to appreciate the nuanced and comprehensive jurisprudence of the European Court taken as a whole and note the Court’s consistent efforts – if not quite yet successes – in taking into account domestically sensitive issues while balancing the rights afforded to all under the ECHR. While the Court has refrained from recognising a right to abortion under the ECtHR [...], it has at least sought to provide guidance on this issue and reaffirm rights currently existent in domestic legislation where these rights have not received effective implementation. (emphasis added)

ECtHR published updated factsheets

The Court has published updated factsheets on its website. Some of its latest judgments, such as Csoma v. Romania, P. and S. v. Poland, N.B. v. Slovakia and I.G. and Others v. Slovakia were included into the dokcuments.

For more information see:

- Reproductive rights

- Health

- Right to life