Summary

Where terminally-ill patients undergo constant, unbearable pain and suffering without hope of any improvement in their condition and in response to their persistent, voluntary and well-considered request, some doctors and other medical staff are willing to terminate the life of the patient (“voluntary active euthanasia”) or to help him or her take his or her own life (“physician-assisted suicide”). Doctors may also be called upon to decide to withdraw life-sustaining treatment in the knowledge that they are bringing about death (“passive euthanasia”). These widely known facts of medical practice are usually confined to the shadows of discretion or secrecy and, though illegal in most Council of Europe member states, are rarely punished. The Rapporteur believes that it is this reality that carries the greatest risk of abuse and that the divergence between the law and practice must be reconciled if respect for the rule of law is to be maintained.

As far as alleged incompatibility of euthanasia with Article 2 (“right to life”) of the European Convention on Human Rights is concerned, the Rapporteur points out that this proposition has never been submitted to the judgment of the European Court of Human Rights. However, the Belgian and Netherlands bills enacted in 2002 (allowing doctors who accede to a patient’s request for voluntary active euthanasia or physician-assisted suicide to escape prosecution under rigorously regulated and controlled conditions) were submitted for verification to the Belgian and Netherlands Councils of State and found to be compatible with the Convention.

The Governments of the member states of the Council of Europe are asked to collect and analyse empirical evidence about end-of-life decisions, to promote public discussion of such evidence, to promote comparative analysis of such evidence in the framework of the Council of Europe, and, in the light of such evidence and public discussion, to consider whether enabling legislation should be envisaged.

I.       Draft resolution

1.       Where terminally-ill patients undergo constant, unbearable pain and suffering without hope of any improvement in their condition, some doctors and other medical staff are willing to conduct “voluntary active euthanasia”, that is to terminate the life of the patient at his or her persistent, voluntary and well-considered request. Or, under the same conditions, they may agree to help a patient to take his or her own life (“physician-assisted suicide”).

2.       These widely known facts of medical practice are usually confined to the shadows of discretion or secrecy. Decisions may be taken in an individual and arbitrary manner or in collusion with the patient’s family. They often depend on the “luck of the draw”, that is, the presence of a sympathetic doctor or nurse. The pressures that can influence end-of-life decisions, which may be exercised by the family for a wide variety of reasons, will be the more pernicious if exercised in the dark and beyond any procedures or control. It is this reality that carries the greatest risk of abuse.

3.       Until very recently these practices have been illegal in most Council of Europe member states, although penal and professional sanctions are extremely rare by comparison with the number of cases of euthanasia actually carried out. There is thus a striking divergence between the law and what happens in practice. This gap must be reconciled if respect for the rule of law is to be maintained.

4.       This was one reason why the Netherlands and Belgium introduced laws in 2002 allowing doctors who accede to a patient’s request for voluntary active euthanasia or physician-assisted suicide to escape prosecution under rigorously regulated and controlled conditions. Specific legislation is designed to bring such practices out of the grey area of uncertainty and potential abuse by establishing strict and transparent procedures, mechanisms and criteria which doctors and nursing staff have to observe in their decision-making.

5.       Doctors may also be called upon to decide to withhold or withdraw life-sustaining treatment, again in the knowledge that they are bringing about death (“passive euthanasia”), in particular where the alternative is to attempt to keep the patient alive through stubborn, aggressive treatment without hope of recovery or even an improvement in the patient’s condition, a practice moreover condemned in medical ethics, not least when the patient has refused such treatment. Again, member states’ legislation and practice in this matter differ, some allowing the practice under specified conditions, others making it illegal. However, it is hard to make an ethical distinction between this practice and those referred to in paragraph 1.

9.       In view of the above considerations, the Parliamentary Assembly calls on the governments of the member states of the Council of Europe:

i.       to collect and analyse empirical evidence about end-of-life decisions involving voluntary active euthanasia, physician-assisted suicide, passive euthanasia and related practices, including public attitudes, the experience of medical practitioners and the jurisprudence of the courts;

ii.       to promote public discussion of such evidence, so as to create the greatest possible transparency in an area too often subject to decisions taken by the medical profession without any form of control;

iii.       to promote comparative analysis and discussion of such evidence in the framework of the Council of Europe, taking into account in particular the results of the Belgian and Netherlands legislation, notably their effects on practice in the matter of euthanasia;

iv.       in the light of such evidence and public discussion, to consider whether legislation should be envisaged, where it has not already been introduced, to exempt from prosecution doctors who agree to help terminally-ill patients undergoing constant, unbearable pain and suffering without hope of any improvement in their condition, to end their lives at their persistent, voluntary and well-considered request, subject to prescribed rigorous and transparent conditions and procedures.

24.       The continuing debate about whether and when physician-assisted dying is acceptable seems to be resulting in a gradual stabilisation of end-of-life practices. The 1990 and 1995 interview and death-certificate studies have been reconducted more recently, showing that no further increase in the rate of euthanasia was found in 20016.

37.       Doctors who practise euthanasia commit no offence if they respect the prescribed conditions and procedures, and have verified that:

- the patient is a person of full age or an emancipated minor, possessing legal capacity and aware of what he/she is doing when he/she formulates the request (which must be made in writing);

- the request is made voluntarily, carefully and repeatedly, and is not the result of outside pressure;

- the patient’s medical state is hopeless, and he/she is experiencing constant, unbearable physical or mental suffering, which cannot be relieved and is caused by a serious and incurable injury or pathological condition.

38.       Beforehand, doctors must always:

1o inform patients of their state of health and life expectancy, discuss their request for euthanasia with them, and also review with them forms of treatment which are still possible, as well as palliative care and its consequences. They must decide, with patients, that their state admits of no other reasonable solution, and that their request is wholly voluntary;

2o satisfy themselves that patients’ physical or mental suffering is permanent, and that their wishes are unchanging. For this purpose, they should talk to patients several times, at intervals which are reasonable in terms of their evolving condition;

3o consult another doctor on the serious and incurable nature of the condition, indicating their reason for doing so. The doctor consulted must inspect the medical file, examine the patient and satisfy himself/herself that the latter’s physical or mental suffering is constant and unbearable, and cannot be relieved, and must prepare a report on his/her findings. The doctor consulted must have no connection with the patient or the patient’s doctor, and must have a specialised knowledge of the pathology in question. The patient’s doctor must inform the patient of the results of this consultation;

4o if a medical team is providing regular treatment for the patient, his/her request should be discussed with all or some of its members;

5o if the patient so desires, his/her request should be discussed with relatives whom he/she designates;

6o care must be taken to ensure that the patient has been able to discuss his/her request with persons whom he/she wished to talk to.

48.       Swiss law is a special case in Europe. There are no specific laws about euthanasia, but the Criminal Code contains measures which may be applied to it. Article 114 lays down that a person who kills another on compassionate grounds may go unpunished. Article 115 specifies that what makes the act punishable is the existence of a selfish motive.

49.       Article 114 has been applied only once since 1942. Article 115 is not motivated by medical considerations: originally, in the 19th century, it aimed to exonerate from punishment someone who lent a weapon to a friend wishing to commit suicide, because of an unhappy love affair, for example. Now Article 115 is used for end-of-life issues, which was not at all the legislator’s intention. Thus, assistance to suicide goes unpunished, whilst doctors are not allowed to carry out euthanasia and may be sanctioned by their colleagues. According to the Academy which serves as a tribunal for the Swiss medical profession “assistance to suicide does not form part of medical activity”. The Academy intends to revise this rule, which is somewhat hypocritical. However, some recent political discussions have shown the difficulty of reaching a consensus on this matter. A Socialist MP from the Vaud canton tabled a motion on the subject in 1984 but the Minister of Justice considered it was too early to legislate. As a result of growing political pressure, the Government set up a group of experts which proposed a series of measures. The Federal Government only agreed to develop palliative care, however. Parliament reacted with various bills which have not been passed. Today the situation is in deadlock, but things may change. A new motion has been accepted asking the Government to encourage palliative medicine and to reopen the euthanasia issue. The Government has no wish to do so, but will be called upon to respond.

Reference to committee: Doc. 9170, Reference No. 2648 of 25 September 2001

Draft resolution adopted by 15 votes against 12 on 5 September 2003

Members of the committee: Mrs Belohorská (Chair), MM Christodoulides (1st Vice-Chairman), Surján (2nd Vice-Chairman), Mrs McCafferty (3rd Vice-Chair), Mrs Ahlqvist, MM. Alís Font, Arnau, Mrs Bargholtz, Mr Berzinš, Mrs Biga-Friganović, Mrs Bolognesi (alternate: M. Piscitello), MM. Brînzan, Brunhart, Buzatu (alternate: Ionescu), Çavuşoğlu, Colombier, Cox, Dees, Donabauer, Drljević, Evin, Flynn, Ms Gamzatova, MM. Geveaux, Giertych, Glesener, Gonzi, Gregory, Gülçiçek, Gündüz, Gusenbauer, Hegyi, Herrera (alternate: Mrs Fernández-Capel), Hladiy (alternate: Borzykh), Høie, Ms Hurskainen, MM. Jacquat, Kastanidis, Klympush, Baroness Knight, MM. Lomakin-Rumiantsev, Ms Lotz (alternate: Mrs Rupprecht), Ms Lučić, MM. Makhachev, Małachowski, Manukyan, Markowski, Marty, Maštálka, Mrs Milićević, Mrs Milotinova, MM. Mladenov, Monfils, Ouzkı, Padilla, Pavlidis, Mrs Pétursdóttir, MM. Podobnik, Popa, Poty (alternate: Timmermans), Poulsen, Provera (alternate: Tirelli), Pysarenko, Rauber, Riester, Rigoni, Rizzi (alternate: Mrs Paoletti Tangheroni), Mrs Roseira, Ms Saks, MM. Santos, Seyidov, Mrs Shakhtakhtinskaya, MM. Slutsky, Sysas, Ms Tevdoradze, Ms Topalli, Mrs Vermot-Mangold, Mr Volpinari, Mrs Wegener (alternate: Mr Haack), MM. Van Winsen (alternate: Mrs Zwerver), Zernovski, ZZ…

NB: The names of those members present at the meeting are printed in italics.

Secretariat of the Committee: Mr Mezei, Ms Meunier, Ms Karanjac, Mr Chahbazian


1 François de Closets, La dernière liberté, Paris, Fayard, 2000.

2 The recent survey on euthanasia conducted by Dr Michael Abrams for the Council of Europe’s Steering Committee on Bioethics (CDBI) provides interesting information on, among other things, definitions used in the member states, including legal definitions (see http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Bioethics/Activities/Euthanasia/).

3 Doc. 9404

4 Pretty v. the United Kingdom, 29 April 2002, §§ 39-40.

5 Paul J. van der Maas, M.D., Ph.D., Gerrit van der Wal, M.D., Ph.D., Ilinka Haverkate, M.Sc., Carmen L.M. de Graaff, M.A., John G.C. Kester, M.A., Bregje D. Onwuteaka-Philipsen, M.Sc., Agnes van der Heide, M.D., Ph.D., Jacqueline M. Bosma, M.D., LL.M., and Dick L. Willems, M.D., Ph.D., “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990–1995”, The New England Journal of Medicine, 335:1699-1705 (November 28), 1996.

6 “Euthanasia and other end-of-life decisions in the Netherlands in 1990, 1995 and 2001”, the Lancet, 17 June 2003

7 Luc Deliens, Freddy Mortier, Johan Bilsen, Marc Cosyns, Robert Vander Stichele, Johan Vanoverloop, Koen Ingels, “End-of-life decisions in medical practice in Flanders, Belgium: a nationwide survey”, The Lancet, 356: 1806-11 (November 25), 2000.

8 Ward, B.J. Tate, P.A. “Attitudes among NHS doctors to requests for euthanasia” British Medical Journal, 308: 1332-1334 (1994)

9 The regional review committees, already established in the Netherlands before the new legislation, are composed of at least three (or if more always an uneven number of) members: a legal expert as chairman, a doctor, and an expert in the field of ethics or philosophy. For each of the members, one or more substitutes are appointed. To monitor the uniformity of the assessments of the different review committees, the chairs of the committees consult regularly in a meeting attended by representatives of the Council of Procurators-General and the Health Care Inspectorate of the State Supervisory Agency for Public Health.

10 In this connection, account must be taken of the strength of the will of the person concerned. For example, when an individual is incapable of deciding for himself or herself, the obligation of the authorities is greater than when he or she is capable of making decisions about his or her own life.

11 European Commission of Human Rights, Decision of 19 May 1992, H.v./Norway, 17.004/90, D.R. vol. 73, (155), p. 168, §1.

12 Ibid.