The German Medical Association has presented new guidelines for physician-assisted suicide, allowing greater leeway for doctors to rely on their own conscience when deciding whether to help ill patients die. The new text, presented this week, reads: “The doctor’s assistance with suicide is not a medical duty.” Previous guidelines have said that assisted suicide was in strict violation of medical ethics.
Rather than justifying or endorsing assisted suicide, the association now says it is allowing doctors to decide for themselves whether helping a patient die is justifiable. “When doctors themselves have a clear conscience, we will not condemn them,” said Dr. Jörg-Dietrich Hoppe, the association’s president.
German law on assisted suicide is less than clear. “Killing at the request of the victim/mercy killing,” is illegal under the German criminal code s. 216: “If a person is induced to kill by the express and earnest request of the victim the penalty shall be imprisonment from six months to five years.” The attempt is also punishable.
Since suicide itself is legal, assistance or encouragement is not punishable by the usual legal mechanisms dealing with complicity and incitement. Nor is assisting with suicide explicitly outlawed by the criminal code. But many legal repercussions under certain conditions are both possible and likely. The trade and handling of controlled substances (such as in acquiring lethal medicine for the suicidal person), has a number of pitfalls. If it can be shown the suicidal person is not acting out of their own free will, then assistance is punishable (s. 25 par. 1 of the German criminal code).
Free will cannot be assumed, however, if someone is manipulated or deceived. Suicide occurs only if the person who wishes to die freely decides on his or her own fate up to the end, acts of his or her own free will, and is in control of the situation. While no longer illegal, it cannot involve a doctor because that would violate the code of professional medical conduct and might contravene a doctor’s legal duty to save life.
German criminal law obligates everybody to come to the rescue of others in an emergency, within certain limits. This is also known as a duty to rescue. Under this rule, the party assisting in the suicide can be convicted if, in finding the suicidal person in a state of unconsciousness, they do not do everything in their power to revive them. This reasoning is disputed by legal scholars, citing that a life-threatening condition that is part, so to speak, of a suicide underway, is not an emergency. Unfortunately (for those who would rely on that defence), the Federal Court of Justice has considered it an emergency in the past.
German law puts certain people in the position of a warrantor for the well-being of another, e.g. parents, spouses, doctors,and police officers. Such people might find themselves legally bound to do what they can to prevent a suicide; if they do not, they are guilty of homicide by omission.
The change just announced by the Medical Association is a reflection of the growing acceptance among German doctors of assisted suicide in certain situations. A survey published last summer found that one in three doctors supported rules allowing doctors to support the suicide of patients with terminal illnesses.
The medical community last made a significant change to its position on assisted suicide in 1998, when it revised its stated concept of how to handle life and death. It then said that a doctor’s mission was not just to heal and alleviate pain, but that allowing patients to die could in some cases take precedence over the obligation to sustain life.
German Criminal Code (in English)
Wikipedia page on German law on assisted suicide
News story (in English)
German widower goes to court over assisted suicide (23 Nov 2010)
Withdrawal of feeding case (25 June 2010)