GERMANY 
Two court judgments cause insecurity among medical professionals regarding assisted suicide

Guest article by Sandra Martino*

In February and April of this year, two physicians were sentenced to three years' imprisonment for manslaughter as indirect perpetrators in two separate criminal cases[1]. The proceedings were not about assisted suicide as such, but in both cases, the court concluded that the deceased’s decision to end their own life, contrary to the assessment of the convicted doctors, had not been a firm and well weighed choice.

Both proceedings were about cases of assisted suicide that took place outside the structures of established assisted suicide organisations. Nevertheless, many doctors in Germany who are in principle willing to provide assisted suicide in individual cases now feel insecure. In fact, one cannot completely dismiss the idea that these court judgments were politically motivated to set an example in order to achieve precisely that, and thus make access to professional assisted suicide more difficult.

In its judgment of 26 February 2020, the German Federal Constitutional Court stated the following about firm and well weighed choice:

“A decision to commit suicide is based on an autonomous and free will if the individual has made this decision on the basis of a realistic weighing of the pros and cons that is determined by their idea of self.

Thus, a free decision to commit suicide requires the ability to freely form one’s will, without being influenced by an acute psychological disorder, and to act accordingly. […] Moreover, the affected person must be aware of all aspects that are relevant for the decision. They must have all available information and thus be able to realistically weigh the pros and cons on the basis of sufficient knowledge. In particular, the formation of one’s free will requires that the decision-maker is aware of alternatives to suicide, assesses their respective consequences and makes their decision knowing all the relevant circumstances and options. In this respect, the standards for consenting to curative medical treatment apply accordingly. […] It is also required that affected persons not be subject to undue influence or pressure. Finally, it can only be assumed that a person made the decision to end their life of their own free will if the decision is ‘lasting’ to some degree and based on ‘a certain internal stability’ .”[2]

Whilst being fully informed about the current health situation, remaining treatment options and alternatives to suicide is relatively easy to examine, the somewhat vaguely defined criteria of “lasting to some degree” and “a certain internal stability” are more difficult to assess. If a mental illness in accordance with ICD 10 Chapter V[3] has been diagnosed, things become even more complex .

In principle, a distinction must be made as to whether the diagnosed mental illness is the direct cause of the person's wish to die or a secondary diagnosis in connection with the person’s overall condition. Whilst in the former case, a psychiatric assessment is necessary to confirm that the person’s decision to end their own life is a free decision, this does not necessarily apply in the latter case.

Based on the documentation submitted with the request for an assisted suicide (reasons for the wish to die, life report, medical reports), the doctor gains an overall impression of the personality, health and life situation of the individual who wishes to die in a self-determined manner. If there are indications of a possible restriction of free decision-making, this must be carefully examined. The measures suitable to rule out doubts about the person's free decision-making vary depending on the situation. It is important for the doctor to document clearly which considerations and information led to the conclusion that the criteria for a free decision as described above are met. These findings are summarised in a conclusive report for the attention of the investigating authorities who examine the legality of each assisted suicide. The clearer the doctor describes the derivation of the person’s free decision-making, the easier it is for the police and public prosecutor's office to fully comprehend it.

There is no absolute certainty however, even if there is a psychiatric report confirming that the wish to die was a free decision. The competent public prosecutor must be willing to follow the line of arguments of the doctor providing assisted suicide.

Many people – public prosecutors and psychiatrists among them – are still of the opinion that anyone who wants to die due to their suffering must be “somewhat out of their mind”, and therefore depressed, and that depression rules out any possibility of a free decision. If that really were the case, a large proportion of patients with various diagnoses would have to be considered incapable of giving consent, given the inflationary way in which depression is listed as a secondary diagnosis in hospital reports. Theoretically, this would result in numerous cases of potentially unlawful coercive treatments. A shift of perspective is urgently needed here.

The legality of assisted suicide must not depend on a public prosecutor’s personal values!

The two judgments are not yet legally binding, and an appeal has been announced in both cases.

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* Sandra Martino is 1st chairperson of the association DIGNITAS-Deutschland e.V.

[1] see press release of the District Court Essen of 2 February 2024 (in German) and press release of the District Court Berlin of 8 April 2024 (in German)

[2] BVerfG, Judgment of the Second Senate of 26 Februar 2020, paras. 240 ff

[3] ICD 10 is the International Statistical Classification of Diseases and Related Health Problems; Chapter V deals with mental and behavioural disorders.

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