The right to a self-determined death requires “autonomously formed free will.” However, the details remain controversial.

Infusion tubes with liquid.

In Karlsruhe, the judges did not conclude that mental illness generally prevents free decision-making. Photo: Nicholas Orchard/imago

KARLSRUHE taz | When can a doctor help a mentally ill person commit suicide? This is not yet regulated by law in Germany. For the moment, this will have to be clarified by jurisprudence. Of central importance is the “right to self-determined death”, which the Federal Constitutional Court derived in February 2020 from human dignity and general personal rights. The decision to die is an “act of autonomous self-determination” that must be respected by the State and society. This right is not only available to those suffering from serious or terminal illnesses, but applies to all phases of life.

However, the right to a self-determined death requires “autonomously formed free will,” according to the Karlsruhe court. A mental illness can pose “a significant risk to a free decision to commit suicide.” The judges cited experts who said that about 90 percent of successful suicides were related to a mental disorder.

However, the judges do not conclude that mental illness generally prevents a free decision. They find that although 40 to 60 percent of successful suicides are due to depression, depression only led to a limited ability to consent in 20 to 25 percent of those who committed suicide.

In another point of the ruling, the court emphasizes that free will must be formed “without the influence of an acute mental disorder.” This also shows that, from a constitutional point of view, not all mental illnesses eliminate freedom of choice, but only “acute” disorders. Karlsruhe emphasizes above all that the decision to commit suicide must be based on a certain “permanence” and “inner stability.” This demand for perseverance affects not only the mentally ill, but also the mentally ill.

The legislator can intervene at any time.

This makes it clear: courts generally cannot deny mentally ill people the right to a self-determined death (and to appropriate medical care). However, case law has not yet developed the exact standard for determining when the will of a person with mental illness is significant and when it is not.

The decision by the Berlin Regional Court on Monday and a similar ruling by the Essen Regional Court in February are probably the first such attempts. The written reasons for the sentence, which are not yet available, will be discussed in detail. However, in both procedures the appeal is filed before the Federal Court of Justice (BGH). The BGH will then be able to develop a national standard.

If the BGH upholds the doctors' criminal conviction, they can still appeal to the Federal Constitutional Court, which could change the BGH rule if it is too strict. However, if the BGH reaches an acquittal, the path to the Federal Constitutional Court is closed.

The legislator can also intervene at any time and establish binding rules. The Federal Constitutional Court has expressly left to the Bundestag the possibility of “developing a concept of procedural certainty”, that is, above all, regulating the procedure. Two bills attempted to do so, but in July 2023 they failed to achieve a majority in the Bundestag. Both bills unanimously stipulated that a psychiatric specialist should examine whether there is a “mental illness that impairs autonomous decision-making.” Only after this examination (and consultation) should doctors be legally allowed to assist in suicide.

Do you have suicidal thoughts or have you noticed them in a family member/acquaintance? Telephone advice offers help: you can receive anonymous advice 24 hours a day by calling the toll-free numbers 0800 / 111 0 111 and 0800 / 111 0 222. It is also possible to get advice via the Internet at http://www.telefonseelsorge. of

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