Critics of Labour’s Assisted Dying bill fear that its vagueness means we are heading for trouble. Germany, where assisted suicide is legal, shows what happens when the law fails to spell out exactly what is allowed.
In 2020, Germany’s federal constitutional court decriminalised assisted suicide, deciding that a patient’s autonomy must be the overriding concern when granting them permission to go through with it. The ruling stated that every person should be allowed to decide for themselves whether they take their own life or not and that getting help from third parties would be legalised.
The German government hasn’t fully made up its mind on what it thinks of the morality of assisted dying
A person in Germany helping an individual who has chosen to end their life will not be penalised for doing so. The person who ends their life, however, must make that decision freely and takes on full responsibility, signing a lot of forms to show they understand this.
But while assisted suicide is legal in Germany, euthanasia (‘Aktive Sterbehilfe’), where one individual administers a lethal drug to another – for instance via an injection – is still a crime. This is unlike the Netherlands, Belgium, Luxembourg, Canada, parts of Australia and Spain where euthanasia is legal.
As a result, troubling assisted dying stories have been cropping up as disputed cases make their way through Germany’s legal system. In two separate cases earlier this year, physicians were sentenced to three years in prison for assisting the suicides of patients deemed not mentally competent with regard to the desire to take their own lives. Both patients had histories of significant psychiatric illnesses. In both cases, the assisted dying organisations the patients had approached their physicians through rejected their requests for assisted suicide. The physicians decided to branch out on their own and assist anyway as ‘private individuals’ not representing their organisation.
A further case from 2022 involved a man who asked his wife to assist him in ending his life after swallowing every medication he could find (including benzodiazepines). He asked her to inject him with all the insulin he had in order to ensure that he actually died – and she complied. In the past, this would have been considered killing on demand, but the court argued that this injection completed the husband’s already self-initiated suicide, and merely constituted a final ‘safety-netting’ process. It ruled the case to be an assisted dying event, and the wife was merely sentenced to one year on probation. This sort of ruling is unlikely to have happened in Germany before 2020.
These cases show just how difficult it is to define the ‘free will’ element – ‘Freiverantwortlichkeit‘ – in assisted suicide. This was the key concept in the ruling of the constitutional court in 2020. It seems easy for an experienced judge to describe, but very difficult in real life. Grey areas abound on a subject where the law is technically black or white: after all, a country either allows assisted dying in law or it does not.
There are other issues with Germany’s approach to assisted dying. For a long time there have been a number of assisted suicide charities who charge fees for assisting suicides, providing services ranging from counselling and legal advice to euthanasia drugs and a buddy to accompany the patient on their day of death. One such organisation, for example, charges €4,000 (£3,300) all inclusive for an individual wishing to undergo an assisted death, with couples’ packages offered at €6,000 (£5,000).
The law as it stood before 2020 was intended to prevent these associations from running rampant and commercialising the process – with assisted dying actually criminalised in 2015. Lawmakers had, in part, sought to prevent assisted dying becoming too socially acceptable.
But since the 2020 judgement (which revered this 2015 legislation), such organisations have again been operating with impunity, offering step-by-step guidance for those wishing to undergo an assisted suicide. They now provide patients deemed eligible with a ‘package’ of consultations and information, advice on how best to succeed in their application for suicide assistance, a lawyer and a doctor who prescribes the medications. The German society for dying with dignity (DGHS), for example, conducted 229 such suicides in 2022. The vast majority, but not all, were people with severe physical illnesses.
Currently, the German government does not have to provide an assisted dying service; instead this falls to private associations. In February 2022, the higher administrative court of North Rhine-Westphalia dismissed the lawsuits of three people who wanted to force the state, rather than a particular individual clinician, to provide them with the lethal drugs necessary for taking their own lives. The court pointed out, however, that with no state regulation the legal framework would have to be redrawn because it could leave individuals at risk of receiving wildly different suicide regimens, drawn up by different doctors. Until then though, seriously ill people could see doctors to help them commit suicide.
Does it suffice when a person, as the court puts it, has ‘had enough of life’?
In November last year, the issue of state-administered assisted suicide made its way through to the German high court. The federal administrative court rejected a petition for the state to be obliged to hand out the euthanasia drug sodium pentobarbital on first request. The individuals who made the request were not terminally ill, but wanted to store it at home in case their health worsened at a later stage. The court considered the risk of the drug falling into unauthorised hands to be too great.
In 2022, the German Bundestag, Germany’s federal parliament launched a fresh attempt to regulate on assisted dying, mainly because the current law has been causing so much confusion. Two draft laws were put forward in 2022 for parliamentary debate and voting.
One of the draft laws proposed that assisting suicides should be fundamentally criminalised by law as a default, but could allow for exceptions. These included the person seeking to die being an adult, that they had been examined at least twice by a specialist in psychiatry and completed a counselling interview several weeks before making the decision.
The other draft proposed to enshrine and formalise the right to self-determined death in law. Under this plan, there would be no criminal regulation for assisted suicides. People wanting to die would receive access to lethal drugs simply if they had previously sought some form of counselling. In extreme cases, when there was demonstrable existential suffering with persistent symptoms, a doctor should be allowed to prescribe the medication even without prior counselling.
The draft bills were both rejected, as neither could gather support from backers of the other bill. But since then, calls to make suffering one of the main criteria (even in the absence of any terminal illness) to grant assisted suicides have been growing louder.
Clearly though, the German government hasn’t fully made up its mind on what it thinks of the morality of assisted dying – despite an ambition to make its laws much clearer. Parliament passed a bill in 2023 requesting the government produce a suicide prevention law, which as it stands is still being tweaked by the German ministry of health. This would aim to ensure that suicides in general would still be seen as something society wishes to prevent and provide mental health support for. There are mutterings that a group of parliamentarians are working on a new an assisted suicide regulatory bill, but nothing has been published yet.
In the meantime, confusion reigns. The 2020 ruling of the federal constitutional court does not specify any criteria for the wish to die. Theoretically, physically healthy people can undergo assisted suicide; age is no barrier. Does it suffice when a person, as the court puts it, has ‘had enough of life’? In fact, the German association for assisted dying states that in 2022, three completely physically healthy people underwent assisted suicides. In a society that aims to discourage suicide and help people who are considering it, does providing the means to do so blur the lines? This is a question many people in Germany are asking themselves now, and lawmakers don’t seem to know what to do next.
When the time comes to debate the Terminally Ill Adults (End of Life) bill in parliament, Germany provides a foreshadowing of what can happen when assisted dying legislation is too vague. It opens the door to the promotion, normalisation and commercialisation of suicide. Inevitably, some clinicians will push the boundaries of the law. Can all these loopholes be sewn up in the limited scope and time afforded to a private members bill? It is highly unlikely.
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