Message from the Chair

2019; Volume 20, No 5, May

Message from the Chair

The Human Rights Approach

Dear Readers:

I would like to embark on a very personal story about human rights.

As a palliative care expert, I have been fighting for access to palliative care as a human right for a long time. Years ago we drafted the Prague Charter, which states exactly that. Later on I was told by an experienced advocacy person, ‘It only becomes a human right when human rights organizations ask for it.’ In consequence, I was thrilled when Human Rights Watch did a series on access to pain relief and palliative care as a human right in a number of countries, from Ukraine to Guatemala.

More recently, one of our advocacy victories has been the addition of palliative care as part of the continuum of health care in the Astana Declaration on primary health care (an important document for universal health care) which states that, “Promotive, preventive, curative, rehabilitative services and palliative care must be accessible to all.”

However, this is a long and winding road.

Last week, I experienced a totally different aspect of the human rights issue here in Germany. The Federal Constitutional Court (Bundesverfassungsgericht, sort of a supreme court) held a hearing on several complaints challenging the German legislation on assisted suicide passed in 2015 — a law that made it illegal for businesses to facilitate or enact assisted suicide.

What led to the 2015 law

Suicide is not a criminal offense in Germany, and assistance for suicide wasn’t either before 2015 (although physicians were liable under the civil code for violation of their code of professional conduct). Some organizations in Germany had started to offer assisted dying services. These included a German branch of Swiss-based Dignitas, as well as a new German organization called Sterbehilfe Deutschland (Assisted Death Germany), which registered as a non-profit group. The membership fee was 200 Euros per year, but new members had to wait at least for three years before they could request assisted dying. However, new members could also pay 2,000 Euros to wait only one year, or 7,000 Euros to request assisted dying right away.

These societal developments led Germany’s parliament to pass legislation in December 2015. The law, written by a nonpartisan group, stated that offering opportunity, assisting with, or providing the means for suicide — if done in a businesslike manner (i.e., with the intent to repeat the offence, or do so regularly) — would be an offence punishable by up to three years in prison. However, it would not be an offence if done by a relative or a significant other, and not as a business transaction. In addition, the day before the law was passed, major legislation for more hospice and palliative care was accepted by parliament, to clearly signal a better alternative to assisted suicide.

A ‘human right to death’
was not challenged

At the recent hearing on complaints about the law, I was astonished to learn that judges of the federal constitutional court unanimously agreed that there is a human right for a self-determined death.

The hearing showed the usual divide: ethical and judicial experts maintain that competent persons who decide that they do not want to continue living should have that right. The judges explained that people wanting to end their lives had no right to government support for their action, but socially developed support options (such as organizations for assisted dying), should not be outlawed.

The issue is far from clear

In contrast, most health care professionals who work with severely ill people know that things are not black and white. How competent does a patient have to be? And what if the competent person wants to end their life because they feel that they are a burden to others? I had a patient requesting assisted dying because he worked hard to pay off his house and wanted it to be a legacy for his children, not spent on his nursing care. I can understand his desire, but I really do not want to live in a society that would accept this as a reason for assisted suicide.

At the federal hearing, we were able to give testimony from several hospice and palliative care experts. It probably will take a few months until the court decides, and I do hope that the judges will decide wisely.

In Germany, we have to work more on public awareness around severe illness and death in order to influence society in general. For IAHPC, this seems to be an issue predominantly in developed countries, as for most parts of the world access to opioid medicines and palliative care is the real issue.

Professor Lukas Radbruch is the Chair of the IAHPC Board of Directors. To read his bio click here.

Until next month,

Lukas Radbruch, MD
Chair, Board of Directors

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