August 1, 2021
New Report by German National Academy of Sciences
In a New Report by German National Academy of Sciences, the authors have dealt with the issues of end of life and assisted suicide from different disciplinary perspectives.
The participants also represent different positions, but in the following explanations they jointly work out central aspects which, from their point of view, should be considered when regulating assisted suicide.
The following statements are based on scientific knowledge, but at the same time express normative convictions based on legal and ethical principles.
*Note – Exit comments are identifiable in the text by the sections framed by [ …] Exit’s full analysis can be found after the list of authors.
Background
In recent years, various European countries have enacted regulations that allow assisted suicide.
In February of last year, the Federal Constitutional Court ruled that the general right of personality (Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law), as an expression of personal autonomy, includes a right to self-determined death.
The associated freedom to take one’s own life in a self-determined way also includes the freedom to seek help from third parties (BVerfGE 153, pp. 182-310). [So the court ruling is not only about suicide but it is about assisted suicide – 2 phenomenon not one]
Even if the constitutional framework of the topic has been clarified in principle, the theological, philosophical, ethical and, last but not least, medical and political debates will continue – as an expression of the pluralism of our society and against the background of the upcoming legal design of assisted suicide.
The judgment of the BVerfG expresses the respect for a freedom of the individual, which ultimately also includes the right to end one’s own life.
Nevertheless, a pending new regulation of assisted suicide must also take into account the complex realities of life and empirical findings in the area of wishes to die. [this is the start of the problematisation via medicalisation of suicide]
The social relationships of those affected and the conditions of their individual life are of great importance here.
In principle, the state and society have the task to create framework conditions that can enable the individual to have a good life – especially in old age, in regard to illness and suffering. [no quibbles here, but there must also be respect that there is no cure for old age in itself]
Not leaving people alone at the end of their lives is a central task of a caring community.
In addition, it must be taken into account that a suicide wish is often unstable and it can fluctuate, especially with terminally ill people. [this statement is confusing and perhaps lost in translation. A terminal diagnosis is the most sure social situation where a suicide wish can be understood? One is either terminal or not. There is no non-terminal, terminal diagnosis]
In addition, reliable data show that many people who express a suicide wish do so when their mental capacity is impaired: for example, due to mental illness, or when they are an acute crisis or under the influence of drugs / psychogenic substances. Later on, their desire to commit suicide may have changed. [of course, makes sense]
Against this background, it becomes clear that when regulating assisted suicide, suicide prevention must always be taken into account.
Of course, suicide support should only be considered for those whose suicide wish is serious, stable, informed and freely-made. [an important recognition of the fundamental human right of self-determination as ruled by the court]
With a view to the upcoming regulation of assisted suicide, central questions arise:
· When is a suicide wish serious, stable, informed and freely-made?
· How can this be determined with sufficient certainty?
· How can it be ensured that alternative options and treatment options are conveyed to those affected in the best possible way?
Against the background of the considerations outlined above, the authors consider the following theses and recommendations, arguing that they be central to further discussions on the regulation of assisted suicide
Theses
1) The constitutionally-recognised ‘autonomy of the individual’ includes the right to end one’s own life. It is not necessary to discuss whether, but how, this right can be exercised in the future.
2) Nobody – not even a member of the medical profession – can be obliged to support a suicide.
Conversely, it seems appropriate not to prohibit participation in a suicide, provided that it is done freely and responsibly and in an ethical manner. [indeed!]
The inclusion of medical expertise can be helpful in various ways [but there is also a role for medical expertise to butt out – suicide is by no means a medical problem in need of a medical solution]:
– in order to exclude the existence of restrictions on freedom of choice as well as possible
– in order to take into account existing medical options in the individual case
– to help ensure that the process of dying is possible without additional suffering.
3) Although the desire to commit suicide can be inconsistent in many cases and even abandonned if the living conditions of the person concerned change, there are people whose desire for suicide is stable and is sustained in the long term: even in the face of appropriate medical and psychosocial offers. [sensible statement – you get the feeling that with so many authors this report is an exercise of compromise]
4) In principle, however, there remains a tense relationship that cannot be completely resolved: on the one hand, respect for the autonomy of the individual and, on the other hand, the knowledge that the decision to suicide is dependent on a multitude of different, perhaps still changeable factors and can be a perception that is impaired by suffering and illness. [suicide becomes linked to mental illness, rational suicide begins to be written out of the debate]
5) In order to deal with this tension appropriately, it is important to develop a balanced approach that excludes, as far as possible, the presence of mental illnesses or other reasons that make self-determined decision-making legitimate. It is important, therefore, to clarify whether the expressed suicide wish:
a. is serious, stable, informed and freely-made as individual cases can be difficult and error-prone, even for experts. [assumption is that mental capacity is missing – aka medical model]
b. includes competent and empathic advice and support in the context of providing the person with assistance. [rational suicide does not always need assistance]
c. is by a person with decision-making capacity and that the actions of the person are not based on any ‘incomprehensible motivation’ and that the person is fully aware of the irreversibility of this decision.[medicalisation of suicide]
6) The framework must also consider factors that will make it easier for those affected to turn away from death and towards to life [suicide as a medical problem in need of cure]. These factors relate to very fundamental socio-political aspects, but at least mean:
a. the actual availability of help for people in mental crises and with mental illnesses. Existing suicide prevention services must be appropriately expanded.
b. the provision of high-quality palliative medical and hospice care, also in old age and nursing homes. In addition, the population must be better informed about the possibilities of help and support and this nature.
c. the establishment of an information, advice and support network for people who want to commit suicide based on interdisciplinary expertise. [does this mean referral to Die Friedliche Pille and similar books?]
This task should not be left solely to privately-organized associations, or to the people concerned themselves [is this to prevent serial killers or groups such as Dignitas from operating within Germany]. What is needed is a medical and psychosocial assessment that is accessible to all.
7) A broad social discourse on assisted suicide and suicide prevention is also important. [what about rational suicide which requires no assistance and which rejects the requirement of medical sanction?]
Recommendations
Against this background, and in addition to the aspects already mentioned, some concrete starting points for the possible, new legal regulation on assisted suicide can be formulated:
1. Basically, only the decision of adults should be recognized as an expression of an autonomously-formed will to commit suicide. The decision of younger people is only to be recognized in special, medical exceptional cases of severe psychological distress, and only if the person is deemed to have the requisite mental capacity. Psychosocial crisis intervention must be ensured. [this is interesting, as it recognises that young people may have non-treatable, severe mental illness and that this is grounds for assistance]
2. A comprehensive, barrier-free and accessible information on treatment, support and psychosocial crisis intervention options in the event of illness and suffering must be ensured, geared to the needs of different target groups. [this is a let’s do what we can to stop suicide approach]
3. It must also be ensured that there are no psychological or other, in particular medical, reasons that impact upon the person’s decision-making ability. This assessment absolutely requires medical expertise, which should also involve different disciplines if possible. The results will be documented accordingly. [Here come the doctors to the rescue … again]
4. High-quality counseling must be guaranteed: open-ended and with respect for the autonomy of those wishing to commit suicide. Particular attention is to be paid to possible perceived or real external pressure on the suicide-willing. [since when does one’s end of life decision-making require pre-emptive counselling?]
5. Between counseling or assessment of personal responsibility and assistance with suicide, a sufficient reflection period must be provided, which can be shortened in exceptional cases. [the mandated, reflective time period as a much-used tool in the suicide prevention toolkit]
6. Assessment of personal responsibility and implementation of suicide assistance are to be separated in terms of personnel and organization. In addition, separate advice must be offered.A total of at least two doctors must be involved (four-eyes principle). All steps are to be documented. [doctors, doctors and more doctors]
7. Commercial offers of suicide assistance and advertising for suicide assistance are to be prohibited. [is this about Dignitas, Pegasos and the like? All those Swiss groups who charge €10,000 for a death from a drug that retails at 65 CHF?]
8. In the interests of equal treatment and legal certainty, coherent rules should be laid down at the federal level. These must include changes to the Narcotics Act, among other things. [the Narcotics Act is a reference to allow Nembutal to be used]
9. The medical professional law should be adapted accordingly.
10. All assisted suicides carried out must be recorded in a register. [so the rational suicides go untallied? It seems suicide & assisted suicide have been conflated into one concept]
11. An independent commission should evaluate the documented practice of assisted suicide annually and publish a report.
12. Interdisciplinary and transdisciplinary research on suicide prevention and suicide assistance should be promoted in order to systematically record the practical implementation and to be able to make possible readjustments on this empirical basis. [rational suicide that does not require assistance but which has been recognised as a constitutionally enshrined right is overlooked – Leopoldina must continue their work if it is to be seriously useful in 21st Century Germany]
Authors
Prof. Dr. Dr. Katharina Domschke ML University Hospital Freiburg, Clinic for Psychiatry and Psychotherapy
Prof. Dr. Horst Dreier MLUniversity of Würzburg, former professor for legal philosophy, constitutional and administrative law
Prof. Dr. Michael Hallek MLUniversitätsklinikum Köln, Clinic I for Internal Medicine, Director of the Center for Integrated Oncology (CIO) Aachen Bonn Cologne Düsseldorf
Prof. Dr. Thomas Krieg MLUniversitätsklinikum Köln, Vice President of the Leopoldina
Prof. Dr. Reinhard Merkel MLUniversity Hamburg, Faculty of Law, Dept. of Criminal Law
Prof. Dr. Lukas Radbruch MLUniversitätsklinikum Bonn, Clinic and Polyclinic for Palliative Medicine
Prof. Dr. Bettina Schöne-Seifert MLUniversity Münster, Institute for Ethics, History and Theory of Medicine
Prof. Dr. Dr. Michael Stolberg ML University of Würzburg, Institute for the History of Medicine
Prof. Dr. Brigitte Tag MLUniversität Zürich, Competence Center Medicine – Ethics – Law Helvetiae, Faculty of Law
Prof. Dr. Jochen Taupitz ML University of Mannheim, Senior Professorship for Civil Law, Civil Procedure Law, International Private Law and Comparative Law
Prof. Dr. Andreas Voßkuhle MLUniversität Freiburg, Institute for Political Science and Legal Philosophy, former President of the BVerfG
Prof. Dr. Dr. Urban Wiesing MLUniversität Tübingen, Institute for Ethics and History of Medicine
Exit’s Analysis
Let us be clear: this new report by German National Academy of Sciences – Leopoldina – will carry great weight in the debate about how German institutions and regulators will implement the ruling from February 2020 of the Federal Constitutional Court on the general right of personality, as an expression of personal autonomy, includes a right to self-determined death.
What is noticeable from theses and recommendations outlined above in this report is that the imprimateur of the medical profession – and psychiatry in particular – are all over this report and the outlined way forward for Germany.
The majority of discussion is given to suicide prevention and ways that those with thoughts of ending their life can be turned away from any such course of action.
Indeed with the exception of one sole sentence is there any real attempt to respect and take account of the Constitutional Court ruling.
Instead these authors are doing all that they can to medicalise, regulate and restrict the personal autonomy ruled by the Court.
By doing this, Germany is at risk of making the same, tired mistakes of other countries in failing to recognise suicide as an informed, considered decision and in linking (more than not) suicide to mental illness in need of address.
This report is another instance where the treatment of suicide by the law is, seemingly, on another plant when compared to its treatment by the medical profession.
While the law assumes mental capacity, medicine approaches medical capacity as a state of being that must be proven; in that it cannot be assumed.
Of course there should be safeguards against young, depressed people making rash decisions to kill themselves.
But, if the highest court in Germany is to rule that the constitutinally-enshrined ‘general right of personality’, includes a right to self-determined death, then a report detailing how this could work in practice must be more balanced, more open-minded and more nuanced.
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