Self-determined dying in Germany and what the German Constitutional Court has taught us about assisted suicide with mental disorders

Abstract

In 2020, the German Constitutional Court (Bundesverfassungsgericht) issued one of the most autonomy-centred rulings on end-of-life law worldwide, establishing a broad ‘right to a self-determined death’ while declaring the former regulation of suicide assistance unconstitutional. This article provides an update on the current situation in German end-of-life law and explains why the right to a self-determined death developed by the Bundesverfassungsgericht serves as a core principle for western constitutional systems. The article pays particular attention to an issue that is highly topical in the current end-of-life debate in and outside Germany – assisted suicide and mental disorders – and outlines what can be learned from the Constitutional Court’s ruling about this particular issue.

Introduction

In 2020, for the first time in German constitutional history, the German Federal Constitutional Court (Bundesverfassungsgericht, from here: Constitutional Court) ruled on a right to a self-determined death. ¹ The court responded to six constitutional complaints against sec. 217 of the German Criminal Code (Strafgesetzbuch, StGB). Until then, sec. 217 StGB had criminalized the provision of ‘suicide assistance services as a recurring pursuit’. ² When the Constitutional Court declared sec. 217 StGB unconstitutional in February 2020, German law was left without any explicit regulation. This has led to the current situation in which politicians struggle to find a compromise that satisfies those who opt for a more restrictive regulation and those who want to regulate less, ³ while some still refuse any legislation, arguing that by legislating, the state would approve and legitimize assisted suicide. ⁴ This has left medical professionals and lawyers in legal limbo.

Nevertheless, or precisely for this reason, in February ⁵ and April ⁶ of 2024, two German physicians were convicted of manslaughter for assisting their patients in their suicides because the courts found that both patients were incompetent to make this decision freely at the time of their death. This may seem bizarre to those who know (of) the Constitutional Court’s decision because they may wonder how someone can be punished for assisting in a suicide in a system that has no specific regulation of suicide-assistance services. This calls for a brief summary of the history of German end-of-life law including a look at the current situation in medical practice (II) followed by an analysis of recent developments regarding mental health including two criminal legal cases against two German physicians (III).

The two cases against the German physicians will demonstrate not only the criminal legal difficulties that German courts face at the moment. Together with the Constitutional Court’s decision, it will be drawn that the right to a self-determined death is a non-discriminatory fundamental right, and thus also a right of those who suffer from mental disorders (IV.). However, the two criminal cases will demonstrate the need for legal safeguards for the practice of physician-assisted dying in every legal system that allows suicide assistance (V.).

The history of end-of-life law in Germany

German end-of-life law until 2015

The German Criminal Code does not and has never prohibited suicide. Due to the principle of accessoriness in German law, aiding another (sec. 27 StGB) can only be punished if the aide aids ‘in the intentional commission of an unlawful act’. Since suicide is not an unlawful act, neither is assisting in a suicide. ⁷ In order to criminalize specific acts of suicide assistance, the legislator would have to enact a specific law (see IV.C.).

For many decades, the Federal Republic of Germany refrained from specific legislation prohibiting suicide-assistance services. ⁸ The only specific regulation could be found in codes of professional conduct for physicians. ⁹ Apart from that, the StGB at that time only contained and now still contains the prohibition of killing upon request (sec. 216 StGB), which prohibits killing another person on his or her ‘express and earnest request’ – commonly known as euthanasia. ¹⁰

Sec. 217 StGB

In 2015, the German parliament passed a law on assisted suicide services. Sec. 217 StGB prohibited facilitating suicide as ‘a recurring pursuit’. Between 2006 and 2015, the German parliament had dealt with several initiatives to criminalize activities of organizations offering suicide-assistance services. The enactment of sec. 217 StGB in 2015 was a reaction to the development of such organizations. ¹¹ It was the explicit aim of sec. 217 StGB ‘to prevent suicide assistance from turning into a regular service of the German healthcare system’. ¹² The initiators feared ‘social normalization’ of assisted suicides that ‘might entice or even pressure individuals, especially the elderly and the sick’, ¹³ into seeking assisted suicide. They argued from a clearly paternalistic stance that without such an offer, these individuals would not even consider assisted suicide. ¹⁴ After lengthy debates in parliament, the initiative proposing a ban on suicide assistance ‘as a recurring pursuit’ won out over three other parliamentary proposals. ¹⁵

Hence, the decisive criterion for punishment in sec. 217 StGB was not the profit motive – as others had proposed – ¹⁶ but the mere possible recurrence of assistance. However, sec. 217 StGB was interpreted to cover any organization or individual that offered such services with the intention of (possible) recurrence. ¹⁷ Accordingly, the prohibition of suicide assistance was broad ¹⁸ and lacked legal precision. ¹⁹

The Constitutional Court’s landmark decision

This ambiguity was the main reason why many advocates of self-determined dying objected to this legislation and why six of them – individuals seeking assistance, physicians and organizations – successfully brought it to the attention of the Constitutional Court. ²⁰

In its extensive reasoning, the Constitutional Court established that the German Constitution (Grundgesetz, GG) contains an unwritten right to a self-determined death, which is rooted in the general right of personality (art. 2(1) in conjunction with art. 1(1) GG). ²¹ According to the Constitutional Court, this right to a self-determined death includes the freedom to take one’s own life and ‘to seek and, if offered, make use of assistance provided by third parties for this purpose’. However, ‘[n]o one can ever be obliged to assist in another person’s suicide’ (headnotes).

What stands out the most is the ambit of this constitutional right: The judges wrote that ‘[t]he right to determine one’s own life [. . .] is in particular not limited to serious or incurable illness, nor does it apply only in certain stages of life or illness’ (p. 210). Hence, the right to assistance is neither limited to a specific age nor only to (somatic) illnesses. ²² This distinguishes the German system fundamentally from the other systems that allow suicide assistance, which limit access to, for example, terminally ill adults as required in Oregon ²³ or explicitly exclude psychological illnesses and depression, as the Spanish Constitutional Court interpreted the Spanish Ley Orgánica 3/2021 (LORE 3/2021). ²⁴ The German Constitutional Court was the first constitutional court to declare a constitutional right to a self-determined death that is not based on (physical) suffering but solely on autonomy. ²⁵ In Germany, a law excluding individuals suffering from mental disorder(s) from access to suicide assistance or in general one that requires a specific medical condition would be unconstitutional (see IV.B.).

The Constitutional Court does, however, provide a list of conditions under which a suicide is to be classified as ‘based on an autonomous and free will’. ²⁶ Its brief definition is that ‘this decision [has to be made] on the basis of a realistic weighing of the pros and cons that is determined by their idea of self’. The court elaborates further that this requires:

1. ‘the ability to freely form one’s will, without being influenced by an acute psychological disorder, and to act accordingly’,

2. the ‘person [to] be aware of all aspects that are relevant for the decision’, applying the standards for consent to curative medical treatment (§ 630d German Civil Code) accordingly,

3. freedom from ‘undue influence or pressure’ and

4. the decision to be ‘“lasting” to some degree and based on “a certain internal stability”’. ²⁷

The Constitutional Court then decided that sec. 217 StGB violated this constitutional right because it made it ‘de facto impossible’ (p. 216) to find someone to assist in a suicide. Consequently, it declared sec. 217 void (p. 337). Nevertheless, it highlighted that the legislator has ‘a wide array of options’, including criminal law measures (p. 339), to regulate suicide assistance, as long as it remains de facto possible to pursue an assisted suicide.

The court left it up to the legislature to decide whether to agree on a new regulation on assisted suicide or to continue with the current situation. It explicitly did not rule out a new regulation based upon criminal law. ²⁸

Since the Constitutional Court’s decision

In 2020, 5 years after the enactment of sec. 217 StGB, the repeal of this very section left the German parliament, again, to the question of whether and how assisted suicide should be regulated. It took another 2 years until new proposals on the regulation of suicide assistance were introduced and until parliament voted July 2023. However, nothing changed as parliament was split down the middle, with 303 members voting for one proposal, 286 for the other and several abstentions. ²⁹ The debate prior to the vote had demonstrated the fundamental division between the more liberal and the more restrictive camp and how they continue(d) to fight over the same issues. ³⁰

After this failed attempt, ‘Sommerpause’, the long parliamentary break in summer, silenced the debate. Yet, legal issues concerning suicide assistance have not left the German courts in peace.

The current situation of assisted suicide in Germany – facts and numbers

Data on suicide assistance in Germany are scarce, even more so when looking at suicide assistances with underlying mental disorders. This is due to the lack of a mandatory reporting system. ³¹ DESTATIS, the German Federal Statistical Office, publishes statistics on causes of death including the number of deaths by (known) suicides. They differentiate according to age, month, location and method of suicide, ³² but not between assisted and unassisted suicides.

Organizations that provide suicide assistance are not legally obliged to report their numbers of assisted suicides. Nevertheless, the Deutsche Gesellschaft für Humanes Sterben (DGHS) and Verein Sterbehilfe released information on their practices: In the first 6 months of 2024, DGHS assisted in 290 cases compared to 419 in total in 2023 and 229 in 2022. ³³ Verein Sterbehilfe reported 171 suicide assistances in 2024 and 196 in 2023 with members between the ages of 25 and 99 years. ³⁴ Dignitas Deutschland did not publish any figures but – upon request – disclosed the following numbers: 16 cases in 2020, 98 in 2021, 199 in 2022, 257 in 2023.

These statistics do not include assistance provided outside of such organizational structures, including the two cases that will be discussed below, leaving a potentially large number of unreported cases. Dr. S, the physician on trial in one of the cases to be discussed, published a ‘pilot study’ of his own 688 examinations/assessments of patients with a wish to die that he has conducted between 2002 and 8 June 2023). ³⁵

A study conducted by Gleich, Peschel, Graw and Schäffer, published in December 2023, ³⁶ is the first and, so far, only scientific study that gathers figures from German suicide-assistance practice since the Constitutional Court’s decision. The authors analysed death certificates of all persons who died in Munich, Germany, between 1 January 2020 and 31 December 2022, as well as public prosecutor’s files, autopsy reports and toxicology reports of those cases labelled as assisted suicide. Thus, the study is not representative of Germany as a whole and does not include rejected assistance requests. Nevertheless, it gives an insight into 2 years of practice in a German metropolis. Of all recorded deaths, 1.3% were suicides, of which 6.5% (37 cases) were counted as assisted suicide (p. 24). For 24 of these assisted suicides, diseases of the nervous system were documented of which eight cases were depressions. ‘Half of the suicides with previous suicide attempts were not evaluated by psychiatric specialists’ (p. 30). ³⁷ In all six cases with documented psychiatric diagnoses, all relevant steps (evaluation, assistance, post-mortem examination) were performed by a single physician who, meanwhile, was not specialized in psychiatry (p. 32). Two individuals had court-appointed guardians, but in only one of these cases was a psychiatric evaluation obtained (p. 33). These figures show major deficits in the ex-ante review of suicide-assistance cases, particularly in such concerning mental disorders.

Suicide assistance for individuals suffering from mental disorder(s) – current criminal cases

Since 2020, several German courts had to deal with questions surrounding end-of-life law. On 28 June 2022, the German Supreme Court (Bundesgerichtshof, following: Supreme Court) was again confronted with the question of how to distinguish between criminally irrelevant suicide assistance and punishable manslaughter. ³⁸ On 7 November 2023, the German Federal Administrative Court (Bundesverwaltungsgericht) had to deal with narcotics law in end-of-life cases. ³⁹

Recently, however, two regional criminal courts (LG Essen and LG Berlin I) released important decisions. On trial were two physicians: The defendant in Essen was Dr. S, neurologist and psychiatrist, and the one in Berlin Dr. T, internist and general practitioner. Both physicians are known as leading figures of the right-to-die movement in Germany. In 2019, both physicians already had been acquitted of manslaughter charges in distinct cases of suicide assistance. ⁴⁰

After the Constitutional Court’s decision in 2020, both physicians resumed their work as suicide-assistance providers. Dr. S also wrote many psychiatric reports for cases in which colleagues conducted the assistance. Two of these cases, however, brought them to criminal court. Both involved patients with mental disorders. Dr. S’s patient suffered from paranoid schizophrenia and depression; Dr. T’s patient suffered from depression. Both, Dr. S and Dr. T, use(d) to collaborate with the organization DGHS, but in these two cases, they decisively assisted outside the DGHS framework. The courts accused the physicians of assisting patients to commit suicide who were incompetent to make this decision freely.

The case against Dr. S ⁴¹

O.H., the person whose assisted suicide was the subject of the first criminal procedure, was 42 years old at the time of his suicide. ⁴² He had been diagnosed with paranoid schizophrenia in 2007 and since had been treated with different approaches in outpatient and inpatient care. He was also diagnosed with post-schizophrenic depression, mental and behavioural disorders due to the use of other stimulants, dependence syndrome and moderate depressive episode (ref. 48–59). In 2019, following a self-administered high-dose cortisone treatment to treat his psychiatric symptoms, he suffered from severe vision loss, which led to massive self-reproaches and a deterioration in his mental state, followed by three failed suicide attempts (ref. 35–38). After rejoining an organization offering suicide assistance, ⁴³ he approached Dr. S in early 2020 ⁴⁴ and asked for a psychiatric evaluation of his free will. He based his wish to end his life on his schizophrenia, the pain and depression it had caused him and, additionally, on his loss of vision, although – according to his eye specialist – his vision had improved significantly. He disclosed only parts of his medical reports to Dr. S. ⁴⁵

Based on the information the patient had provided and several personal conversations, ⁴⁶ Dr. S came to the opinion that at that time, the patient was suffering from ‘residual symptoms after multiple paranoid-schizophrenic disorders’, ‘adequate reactive depressive disorder’ and ‘vision reduction’ but made a free decision to commit suicide. ⁴⁷ For this reason, he decided to grant him assistance. They proceeded on 31 August 2020 ⁴⁸ in the patient’s apartment. The patient died from self-administered intoxication after opening the IV that Dr. S. had placed. ⁴⁹

The case against Dr. T ⁵⁰

The patient in the second case, I.R., was 37 years old at the time of her suicide. Sixteen years earlier, she had been diagnosed with her first depressive episode and had been treated as an inpatient. Her mental state improved between 2013 and 2020, but then deteriorated again in 2020 (juris ref. 34–41). At the latest in June 2021, I.R. suffered from a moderate depressive episode and began to have concrete suicidal thoughts. Both her psychiatrist and her psychologist highly recommended inpatient treatment (juris ref. 43).

She first contacted Dr. T on 12 June 2021, which led to their first meeting 3 days later. They had a 90-minute face-to-face interview in which they discussed her medical and social history and her wish to commit suicide. She did not disclose any medical documents regarding her psychological and psychiatric treatments to him, claiming that they were unavailable to her. She did not want any friends, family or anyone from her current medical team involved for fear of involuntary hospitalization. Nevertheless, Dr. T concluded that I.R.’s wish to commit suicide was based on a free will because she expressed her will firmly, with a well-organized manner and without any signs of delusion (juris ref. 45–47). They set 22 June 2021 as the date for her (first) assisted suicide, but I.R. survived.

She was then hospitalized against her will and spent approximately 2 weeks in a psychiatric ward. While in the hospital, she fluctuated between the belief that the failed attempt was a sign that she should keep on living and the wish to try again. She shared her ambivalent feelings with Dr. T in many text messages (juris ref. 73–86.). ⁵¹ Because her doubts about another suicide attempt had a lot to do with her fear of failing again, Dr. T promised her upon her request that he would ‘help out’ if a second attempt should go wrong, although he knew that this would be a punishable offence (sec. 216 StGB) he never intended to pursue (juris ref. 91 f.). After being released against medical advice, I.R. drove to a hotel where she had booked a room prior to her release. With the assistance of Dr. T, she committed suicide and died of intoxication on the same day (juris ref. 87–98).

The courts’ decisions

Even though there is no specific law prohibiting suicide assistance, the physicians were still prosecuted for their acts of (proclaimed) assistance. However, murder (sec. 211) and manslaughter (sec. 212 f.), meaning killing another individual, have always been punishable offences. Offenders can commit these offences ‘themselves’ (sec. 25(1.1)) but also ‘through another’ (sec. 25(1.2)) (also known as ‘principal by proxy’ ⁵² ) or as joint offenders (sec. 25(2)).

This explains how the physicians could be penalized for ‘assisting in a suicide’ when sec. 217 StGB was void: They were convicted of committing manslaughter in a less serious case through another person (sec. 212, 213, 25 (1.1) StGB) by using their patients as ‘instruments against themselves’. ⁵³ This figure of committing a crime ‘through another’ is assumed in cases where the agent, that is, the ‘instrument’, lacks information or capacity. A classic case would be if the principal were to induce another person (the agent) to administer a lethal poison to a third person (the victim) without the second person being aware of the lethal effect of the drug. However, the instrument can also be used against the agent himself/herself, ⁵⁴ that is, the agent and the victim are the same person. ⁵⁵ This would be the case if the agent were to be induced to take the lethal poison herself but did not know of its lethal effect. Thus, assisting in a suicide in which the person who commits ‘suicide’ lacks a free will to do so is counted as manslaughter through another person. ⁵⁶ Due to the principle in dubio pro reo, the lack of information or capacity on the part of the possible ‘instrument’ (agent/victim) must be proven by the court. In the underlying cases, this means that the court must find proof that the person committing ‘suicide’ was actually not free in his or her decision. ⁵⁷

It is still controversial, however, how this free will should be judged. ⁵⁸ The debate in criminal law revolves around the theory of exculpation, which draws a parallel to criteria for exculpation when committing a crime against another person, ⁵⁹ and the theory of consent, applying by analogy the criteria of consent to medical treatment. ⁶⁰ The Supreme Court, in prior judgements from 2019 against Dr. S and Dr. T, laid down rules as to when the free will of an individual committing suicide is to be ruled out – if the person is a minor or has deficits due to illness or intoxication as well as coercion, threat or deception by the ‘assisting’ person. Furthermore, according to the Supreme Court, the will is deficient if it arises from a mere depressive mood in that very moment, that is, not supported by inner firmness and determination. ⁶¹ In 2020, the Constitutional Court added to this decades-long criminal law debate by following and expanding the consent-based line of argument. In the recent cases against Drs. T and S, the courts picked up the criminal jurisdiction and literature but also the findings of the Constitutional Court from 2020. ⁶²

In case (1) (Dr. S), the judges decided that the patient was unfit to build a free will because his mental disorder prevented him from being able to evaluate his own medical situation – both with regard to his eyesight and his mental disorder – and his chances of recovery from both conditions. ⁶³ In contrast to the diagnosis of Dr. S, they followed the expert opinion requested by the court that diagnosed acute paranoid schizophrenia and a moderate depressive episode at the time of his suicide, which ‘ruled out his free will’. ⁶⁴ In January 2025, the Supreme Court rejected Dr. S’s appeal against his conviction by the regional court. ⁶⁵

In case (2) (Dr. T), neither the court nor the psychiatric expert who advised the court could without any doubt attest to a complete suspension of her free will. Nevertheless, the court decided that the patient’s will to suicide herself lacked the necessary permanency, a factor the psychiatric expert did not advise on. ⁶⁶ The court saw the many text messages that I.R. sent to Dr. T about her fluctuating wishes to die and live up to the day of her suicide as evidence that her wish to end her life was not permanent. Furthermore, the court based its reasoning on the fact that Dr. T had promised I.R. to ‘help her out’, meaning to pursue with killing on request, if her suicide should fail again. The court interpreted that with this promise, Dr. T had deceived her into the decision to commit suicide, which without this assurance she would not have pursued. ⁶⁷

What can be learned from these cases

It stood out that in the oral pronouncement of the judgement in Berlin, the presiding judge explicitly welcomed an appeal in order to obtain clarification on this issue by the Supreme Court, Germany’s highest criminal court. ⁶⁸ This is far from common.

Legal comments

Legal reactions to these decisions were critical of the reasoning of the regional courts. ⁶⁹ It was criticized that the court in Essen set requirements for the proof of a ‘free will’ that even a healthy individual usually could not meet. ⁷⁰ Furthermore, they criticized how the court in Berlin employed the psychiatric expert opinion that had been ordered by the court because the expert had expressed that he could not rule out with certainty that the patient was free in her will at the time of her suicide. ⁷¹ Nevertheless, the court expressly placed its own legal assessment above this medical-psychiatric evaluation. ⁷² The court responded to this foreseeable critique in advance by substantiating that the psychiatric expert did not examine all the criteria of the ‘legal test’ developed by the Constitutional Court, including the criterion ‘lastingness’ the court based its conviction on. ⁷³

Analysis

Since 2 months passed between the first and the second ruling, the succeeding court in Berlin was already pressured by the ruling of the court in Essen and the many reactions to it. LG Berlin seemed to be torn between the psychiatric and the legal evaluation of a ‘free will’ and to struggle with the mass of criteria derived from the long history of criminal and constitutional jurisprudence upon which it could base its opinion. Both courts were confronted with physicians who – without any doubt – acted questionably, if not negligent, with regards to the procedures they chose to follow. To mention only the most remarkable issues, both physicians did not have all the relevant information about the underlying illnesses because the patients withheld medical records; Drs. T and S proceeded anyway. ⁷⁴ In both cases, there was no second physician consulted, although at least Dr. T felt the urge to seek reassurance due to the difficult legal situation. ⁷⁵ In the end, he gave in to the pressure he felt from his patient. Dr. T – an internist and general practitioner – did not seek the expertise of a psychiatric or psychological expert despite the depression I.R. suffered from. Furthermore, in this case, there was very little time (7 days) between the consultation and the (first) assisted suicide (attempt). It stood out that both physicians – despite wanting to and usually doing so – refrained from the much stricter DGHS procedure. ⁷⁶

These are all testaments to the irresponsible behaviour of the two physicians. However, these procedural facts do not suffice for a criminal conviction. The only decisive question is whether the patients at hand decided freely to end their lives. In the case against Dr. T, due to I.R.’s communication with Dr. T in which she questioned her plan to end her life even on the day of her suicide, the reader has strong reason to believe that her wish to end her life was indeed not permanent and thus did not fulfil both the criteria of the Constitutional Court and the Supreme Court. On the other hand, her will in her (failed) suicide attempt prior to her hospitalization was, in dubio pro reo, presumed to be free. Furthermore, she had been dealing with her mental condition for many years. The fact that the presiding judge in the case urged Dr. T to appeal shows how even the judges in this case struggled with the criteria handed to them by jurisdiction. In the case against Dr. S, the documentation showed strong indicators that O.H.’s schizophrenia limited or maybe even abolished his capacity to assess his own medical situation and his chances of improvement. However, I believe that in this case, in dubio pro reo, the judges did not reason strongly enough to satisfy the high burdens of criminal conviction, which demand proof that the person did not decide freely to end his or her life.

These cases show how the German way of ‘judging through the complexities of end-of-life law’ reaches its limit time and time again. The established criteria seem difficult to grasp, especially for medical professionals. How a ‘lasting’ will to end one’s own life is to be judged (Constitutional Court, see II.C.) or when a will ‘arises from a mere depressive mood in that very moment, that is, is not supported by inner firmness and determination’ (Supreme Court, see above) has not yet been further elaborated by the Supreme Court or the Constitutional Court. These uncertainties become even more troubling when the case is further complicated by mental disorder(s). Other problematic cases might not even be ‘discovered’ or, due to the very high burden of proof, do not end with a conviction, leaving vulnerable individuals to high-handed ‘suppliers’ of suicide assistance and their questionable procedures. ⁷⁷ This presumption is backed by the findings of Gleich et al.

Access to suicide assistance with mental disorders

Other legal systems’ approaches towards suicide assistance and mental disorders

Mental disorders in suicide-assistance cases have recently been a cause for debate in many other jurisdictions, for example, Spain and Canada. ⁷⁸ This is not surprising, as it is well known that a mental disorder can impair a person’s capacity to form a free will, making such specific cases even more morally and legally challenging for all parties involved. However, none of these jurisdictions have formed a right to assisted dying which is entirely neutral to the underlying motive for the wish to die, that is, that does not require a specific suffering or illness, as the German Constitutional Court decided in 2020. Despite the known discriminatory effect of excluding individuals from the realm of this right merely on the basis of their mental disorder, ⁷⁹ several jurisdictions opt for this approach.

In Spain with its LORE 3/2021 and regional regulations (see II.C.), the Spanish Constitutional Court had to decide on the federal law’s constitutionality in March and September of 2023 upon constitutional complaints by members of Vox and the Partido Popular. In the first decision, the court interpreted ‘grave, chronic and disabling suffering’ in art. 3b LORE 3/2021 as a condition that in its origin must be somatic, excluding psychological illnesses and depression as primary reasons for euthanasia. ⁸⁰ Previously, in December 2022, a regional court, however, interpreted the LORE to include mental disorders as primary reasons. ⁸¹ Even after the decisions of the Spanish Constitutional Court, it is still debated whether this was the correct interpretation of the legal text and how do deal with such cases. ⁸² This issue is all the more urgent given that the Spanish law provides for an enforceable right to access to euthanasia. ⁸³

In Canada, 1 year after the well-known decision Carter v. Canada, ⁸⁴ parliament passed federal legislations that allows eligible adults to request assistance in dying by a medical professional in 2016. However, a temporary exclusion of eligibility for MAID ⁸⁵ for persons ‘suffering solely from a mental illness’ has been prolonged several times, now until March 2027. ⁸⁶ This is now being challenged as discriminatory in front of Ontario Superior Court. ⁸⁷

In the Netherlands, physician-assisted death due to psychiatric suffering has been possible since the 1990s. ⁸⁸ Of those who died a physician-assisted death in the Netherlands in 2020, 1.3% suffered from a psychiatric disorder. However, ‘the number of requests based on psychiatric suffering is much higher’. ⁸⁹ In 2023, 138 out of 9,068 notifications to the Regional Euthanasia Review Committees ‘concerned patients whose suffering was (largely) caused by one or more psychiatric disorders’. ⁹⁰

A right to a self-determined death – a non-discriminatory right

Several experts and the judges of LG Essen themselves emphasize that – on the one hand – a mental disorder does not preclude the ability to make a permanent and firm decision per se and that – on the other hand – freedom from such an illness does not constitute a permanent and firm decision. ⁹¹ The German Constitutional Court was clear on the aspect that the right to a self-determined death ‘is (. . .) not limited to serious or incurable illness, nor does it apply only in certain stages of life or illness’. ⁹² However, it did not elaborate further on the issue of underlying mental disorders. It merely stated that the person committing suicide must not be ‘influenced by an acute psychological disorder’. ⁹³ Nevertheless, the Constitutional Court’s statement that the right to a self-determined death is not limited to certain (stages of) illnesses must be understood in a way that every legislation prohibiting suicide-assistance services on the grounds of an underlying mental disorder would be unconstitutional, as well as any legislation that makes suicide assistance with an underlying mental disorder ‘de facto impossible’. The Constitutional Court bases the right to a self-determined death on the general right to personality. To decide individually about the reason why one is willing to die prematurely is an expression of this personality right. ⁹⁴ To dismiss mental disorders as a valid reason would violate this very right. Instead of judging upon the underlying motive, the focus of safeguards needs to be on the determination of the free will itself. In order to remain within the boundaries of constitutional law, a restricting policy must satisfy the constitutional protection of the right to a self-determined death and the equality clause (art. 3 GG), ⁹⁵ above all, be proportionate.

Not only in Germany, but in every country that takes respect for autonomy and non-discrimination seriously as fundamental rights, categorically excluding suicide assistance in cases involving mental disorders is not a legitimate option. ⁹⁶ Suicide assistance may and must be prevented whenever the individual lacks a free will to commit suicide; this might be due to a mental disorder. However, then it is not the mental disorder that rules out suicide assistance, it is the unfree will. It follows that it is not the mental disorder that must be targeted in a legitimate process to prevent unfree suicides but the unfree will itself. With its autonomy-focused and non-discriminatory right to a self-determined death, the Constitutional Court has laid down a core concept for western constitutional systems.

Suicide assistance in Germany – a state of lawlessness?

Should the described German criminal law approach be seen as a problem? Is it – in cases involving mental disorders and in general – an appropriate way to regulate suicide assistance through the prohibition of manslaughter? Is it a safe practice to review individual cases only ex-post, both to protect incompetent individuals from unlawful ‘suicide assistance’ and to ensure the right to self-determination at the end of life for competent persons?

The two cases discussed earlier are only symptoms of a system that did not regulate suicide assistance. Apart from the specific issue that the evaluation of a free will can be particularly challenging in cases involving mental disorders, the free will presents as the neuralgic point in every individual suicide-assistance case. The two cases show how difficult it is to evaluate suicide assistance from an ex-post perspective – especially such with underlying mental disorder(s) mainly because the person who committed suicide cannot be questioned anymore. ⁹⁷

The situation in Switzerland is in many respects comparable to that in Germany. Swiss criminal law only prohibits inciting and assisting suicide when it is done for ‘selfish motives’ (art. 115 Swiss Criminal Code), ⁹⁸ but decisional capacity is required for suicide assistance to be legal. ⁹⁹ In contrast to Germany, however, the Swiss Academy of Medical Sciences has guidelines, ¹⁰⁰ and the Swiss society and Swiss state agencies can look back to decades of experience with suicide assistance. Nevertheless, also in Switzerland, the question whether to regulate through a legal framework remains an issue of discussion. That is with good reason, as the lack of legal guidelines, same as in Germany, not only causes ‘a chilling effect’ on physicians but also poses a danger to people who seek assisted suicide and might not be self-determined in their decision (see below). ¹⁰¹ Quite a similar legal approach is practised in Montana, USA, where after Baxter v. Montana, ¹⁰² the state was left with no legal requirements concerning eligibility criteria or request and prescription procedures.

As early as 1996, Price argued in favour of regulating ‘certain forms of assistance in suicide’ through legislation, criticizing the retrospectivity and lack of precision of ex-post approaches, for example, ‘legalizing’ suicide assistance ‘through the back door’ via necessity. ¹⁰³ The Spanish legislator of LORE 3/2021 explicitly wrote in the preamble that the mere act of decriminalizing acts of euthanasia would not be sufficient to balance between the underlying constitutional principles and requirements, namely the right to life and physical and moral integrity on the one hand and human dignity, the right to freedom and autonomy of choice on the other. From the side of psychiatric experts, the call for legislation seems to be (almost) unanimous. ¹⁰⁴ The presiding judge in the Berlin case lamented the reluctance of the German parliament to develop legal guidelines, claiming that those developed through case law were (too) sparse. ¹⁰⁵

In its ruling from 2020, the Constitutional Court laid down boundaries for future regulations ¹⁰⁶ : ‘The legislature may not exceed[] the limits of what constitutes a legitimate means for protecting personal autonomy in the decision on ending one’s life’, meaning that ‘the state’s duty to protect self-determination and life can only take precedence over the individual’s freedom where the individual is exposed to influences that endanger their self-determination over their own life’. This may be encountered ‘through preventive measures and safeguards’, ‘[r]ecognising [that] the right to a self-determined death does not bar the legislator from taking general measures to prevent suicide’. This understanding is consistent with the amicus curiae brief submitted to the U.S. Supreme Court in 1997 by Rawls, Dworkin, Thomson, Nozick, Scanlon and Nagel, which stated that

[s]tates have a constitutionally legitimate interest in protecting individuals from irrational, ill-informed, pressured, or unstable decisions to hasten their own death [and to that end] may regulate and limit the assistance that doctors may give individuals who express a wish to die. But states may not deny [these individuals] the opportunity to demonstrate, through whatever reasonable procedures the state might institute – even procedures that err on the side of caution – that their decision to die is indeed informed, stable, and fully free, ¹⁰⁷

because, in the words of the Constitutional Court: ‘Where the protection of life undermines the protection of autonomy, it contradicts the central understanding of a community which places human dignity at the core of its order of values’. ¹⁰⁸ This must also apply to individuals suffering from mental disorder(s).

However, the Constitutional Court is mistaken in its opinion that the German parliament is free to decide whether to regulate this issue at all. In art. 2(2.1), the GG poses an extensive duty to protect the life and physical integrity of the individual onto the state. ¹⁰⁹ The few statistics at hand and cases like the ones against Drs. T and S demonstrate that without specific legislation on and observation of suicide assistance, there are insufficient safeguards to protect vulnerable individuals from suicides committed without a free will to do so. The duty to protect arising from the GG is further enhanced by the one arising from the European Convention on Human Rights (ECHR). Despite leaving a large margin of appreciation to the member states, ‘the [ECtHR] comprises general rules for both restrictive and permissive national regulatory frameworks’. ¹¹⁰ In its ruling Haas v. Switzerland, the ECtHR decided that ‘[w]here a country adopts a liberal approach (. . .), appropriate implementing measures (. . .) and preventive measures are necessary’. ¹¹¹ In its second to last decision on suicide assistance, Mortier v. Belgium, the ECtHR reiterated the importance of an adequate protection under art. 2 ECHR, particularly in cases with ‘mental distress and in which death would not occur in the short term’. ¹¹² The ECtHR did not address Germany, but it might as well could have.

The current ex-post approach to dissolve the conflict between freely committed suicides with assistance and those that were not based on a free will and being counted as manslaughter through another person is insufficient with regards to the protection of self-determination and from malpractice. ¹¹³ An approach with approval of the suicide assistance prior to its implementation is necessary. With a mandatory examination by at least two medical professionals – as required, for example, in the Netherlands, ¹¹⁴ in Spain ¹¹⁵ and proposed in a draft bill that was rejected in the German parliament – and specific safeguards for cases involving mental disorders, as required in the Dutch system, ¹¹⁶ disagreements as presented in the legal cases against Drs. T and S could be settled beforehand, lowering the risk of ex-post doubts about the assistance procedure. ¹¹⁷ This might lead to more refusals of requests with underlying mental disorder(s) because of discrepancies that cannot be settled and will increase the burdens for such individuals seeking assistance. Yet, to ‘err on the side of caution’ ¹¹⁸ seems to be a proportionate measure to prevent suicides that are not committed freely rather than examining the conduct when the person has passed already. This would do more justice to the state’s duty to protect human life and physical integrity, derived from art. 2(2.1) GG.

Conclusion

Three lessons can be learned from the German experience:

1. The cases against Drs. T and S show that not regulating suicide assistance can work out in easy cases, but not in complicated ones. Governing suicide assistance through jurisprudence without any regulatory framework that lays down procedural ground rules poses a threat to individuals who must be protected from unfree suicide decisions under art. 2(2.1) GG. The given numbers, and especially the fact that many cases of assisted suicide in Germany seem to lack an ex-ante review by a third party, indicate that the current legal system is not suitable to fulfil this difficult task. This thesis holds up, even though Drs. T and S were convicted, because first, it is still uncertain, whether Dr. T’s conviction will withstand before the Supreme Court, and second, it can be assumed that, due to the lack of structured oversight, a number of other cases similar to those against Drs. T and S will not be tried in court. Due to the high burden of proof and the scarcity of information on the patients after their deaths, ‘regulating’ suicide assistance solely ex-post through the prohibition of manslaughter poses an insufficient safeguard to the protection of the life of the individual.

2. In any system that respects the idea of its individuals governing their lives by their own rules and ideas, the right to a self-determined death and the right to suicide assistance are not a question of physical pain, but of the free will of the individual. Consequently, the free will has to be the neuralgic point of a regulation on suicide assistance, not an underlying disease.

3. Individuals suffering from mental disorders have as much a right to self-determination as individuals without such disorders. Whether they fulfil the criteria to exercise this right is another question. Individuals suffering from mental disorders cannot be plainly excluded from a regulation on suicide assistance without disrespecting anti-discrimination and self-determination. However, a regulation has to supply sufficient safeguards, particularly secure psychological or psychiatric expertise in order to meet the complexity of such cases. Yet, it must still be de facto possible for these individuals to demonstrate their capacity. Legal clarification of the criteria that were developed by the jurisdiction in the last decades is essential to assure that suicide assistance is de facto accessible to individuals suffering from mental disorders because after the rulings against Drs. S and T and with the remaining uncertainty about cases involving mental disorders, it will be even more difficult for such individuals to find someone who is willing to assist them.

‘To be sure, no scheme of regulation, no matter how rigorous, can altogether guarantee that medical mistakes will not be made’. ¹¹⁹ This also accounts for German end-of-life law. Nevertheless, parliamentarians who argue that any legislation regulating suicide assistance would endorse suicide assistance ¹²⁰ miss the fact that no state of law is less restrictive than the current. Finding a compromise in a (never perfect) regulatory system would not make the state an abettor of suicides – as they claim – but rather would account for the state’s duty to protect those who might be unfree in their suicide decision. The constitutional balance between those who need protection because of their vulnerability and those who need to be left free to decide in the realm of their self-determination is not easy to find. But instead of surrendering to this task, the German legislature must fulfil its constitutional duty to protect life and autonomy. In a state that proclaims a right to a self-determined death for everyone, however, this must not lead to the exclusion of those suffering from mental disorder(s).