Euthanasia judgment Medicines for suicide in extreme exceptional cases

Federal Administrative Court grants right to passive euthanasia
The access to medicine for a painless suicide must not be denied "in extreme exceptional cases" severely ill. This was decided by the Federal Administrative Court in Leipzig on Thursday, 2 March 2017 (Ref .: 3 C 19.15). The general personality right requires appropriate exceptions.

Thus, the Federal Administrative Court gave a man from Brunswick right. His wife fell heavily in his own home in 2002. Since then she was paralyzed and reliant on artificial respiration and constant care. Again and again she had expressed the desire to be able to end her suffering as perceived life. In 2004, she and her husband applied to the Federal Institute for Medicines for permission to purchase a lethal dose of the hypnotic agent sodium pentobarbital. The remedy is also used by euthanasia organizations, but no longer as a sleep aid.

Federal Administrative Court grants right to passive euthanasia. (Image: Robert Kneschke / fotolia.com)

The Federal Institute rejected the application: The law only allows a supply of narcotics for medical reasons. The intended suicide does not belong to it.

On February 12, 2005, the woman took the life with the help of the association Dignitas in Switzerland. Subsequently, her husband filed a lawsuit against the decision of the Federal Institute.

Up to the Federal Constitutional Court this remains without success. The courts said the man was not affected himself and could not complain for his wife.

The now over 70-year-old husband then called the European Court of Human Rights (ECtHR) in Strasbourg. Although he confirmed that the man can not sue the rights of his wife. However, he had credibly demonstrated that he was himself strongly affected by the decision of the Federal Institute because of his close ties to her in 25-year marriage. Therefore, the courts should have accepted his claim and examined the content. Refusing to do so violates his procedural rights and his right to respect for private and family life (judgment and JurAgentur Report of 19 July 2012, Ref .: 497/09).

However, the ECtHR did not comment on the right to passive euthanasia. In the retrial, the German courts of appeal rejected this again.

However, the Federal Administrative Court now overturned these rulings and ruled that in individual cases a claim could be made for lethal drugs. Although this is not actually provided for by law, it is contrary to general personality rights.

This "also includes the right of a seriously ill and terminally ill patient to decide how and at what time his life should be ended," emphasized the Leipzig judges. The prerequisite is that the patient "can form his will freely and act accordingly".

According to the Leipzig judgment, the BfArM must in the future examine whether such an exceptional case applies to applications for access to lethal medicines. The application is to be granted if patients have "freely and seriously decided to end their lives because of their unbearable living situation" and if palliative care has no perspective to end the perceived suffering. In such cases, "access to a (...) narcotic that allows dignified and painless suicide should not be denied".

In this specific case, the BfArM did not examine this. His decision was therefore unlawful, the Federal Administrative Court ruled. Whether the woman would ultimately have been entitled to lethal medication, however, can not be checked later. mwo