The court recognised a right to self-determination for incurably ill, mentally competent adults under German constitutional law. However, it remains unclear whether or how this decision will be implemented in practice, as several other elements of the law in Germany make the it illegal to provide assistance to an individual to end their life.
Whilst this court decision is not conclusive, it is part of a growing international recognition of the importance of patient choice. We hope that terminally ill, mentally competent adults here in the UK, in Germany and elsewhere will soon have the choice enjoyed by 58 million US citizens who live in states that allow the choice of a safe, legal assisted death.
History of the case
In 2002, Mrs. Koch had an accident that left her almost completely paralysed, needing ventilation. In 2004 she applied to the German Federal Institute for Drugs and Medical Devices for permission to acquire a lethal dose of medication that would enable her to end her life at home, rather than make the difficult journey to Dignitas to end her life. The Federal Institute rejected her request, and so her husband accompanied her to Dignitas for an assisted suicide in 2005.
After his wife’s death Mr Koch took a legal case in Germany, aiming to obtain a declaration that the Federal Institute’s decision in relation to his wife had been unlawful. His case went through several stages in Germany but the courts there rejected his arguments and stated that his case shouldn’t be considered at all, because the decision of the Federal Institute related to his wife, not to him.
As a result, Mr Koch appealed to the European Court of Human Rights (ECHR), and in July 2014 it ruled in his favour. The ECHR concluded that given the exceptionally close relationship between Mr and Mrs Koch and his immediate involvement in her fulfilment of her wish to end her life, Mr Koch was directly affected by the refusal to grant her permission to acquire a medication to end her life at home. It held that the German courts’ refusal to consider Mr Koch’s case, violated his procedural rights under Article 8 (right to respect for private and family life). The ECHR ruled it was up to the German courts to decide the core issue of Mr Koch’s case – which was whether the Federal Institute’s decision in relation to his wife was lawful or not. This effectively meant the case went back to the start, but with the courts in Germany now obliged to consider the case.
What the court decided and what it means
On Thursday 2 March 2017, the Federal Administrative Court in Leipzig (which is the highest court in Germany for disputes between citizens and the state) issued a landmark decision in the Koch case. It ruled that in extreme situations the state cannot deny an individual access to medication that would allow a painless suicide.
The reasoning for this is that that under German Basic Law (the constitution) there is a right for a person who is seriously and incurably ill to decide how and at what point their life should end – the person can decide and act accordingly. However, according to the provisions of the Act on Narcotic Drugs, it is not possible in principle to allow the someone to acquire a drug for the purpose of ending their own life. Therefore the court ruled that in the light of the Basic Law right of self-determination, in extreme cases an exception to the Act on Narcotic Drugs should be made for patients who are seriously and incurably ill if they have decided freely and seriously to end their lives because of their unbearable situation. They must not be denied prescription of medication, which would allow them to control the timing and manner of their death. For this reason the Federal Institute should have considered whether Mrs Koch was such an exceptional case.
The ruling is significant, but it does not mean that assisted suicide is now legal in Germany. Even though it seems exceptional cases requesting access to drugs to allow them an assisted suicide will have to be considered by the German Federal Institute for Drugs and Medical Devices, other parts of German law forbid “promotion of suicide”.
DGHS, an organisation campaigning for end-of-life choice in Germany, welcomed the decision but commented that it is very unclear how it could be implemented as some of the relevant laws in Germany are in conflict with each other. They also emphasised that people need assistance from doctors in order to be safe i.e. they need to be prescribed the right medicine and be given guidance on how to safely self-administer. They also pointed out that the Federal Constitutional Court is due to decide on 13 cases related to assistance to die this year.