No permission for the purchase of the narcotic sodium pentobarbital for the purpose of suicide

08.11.2023 11:38

The denial of a permit for the purchase of sodium pentobarbital for suicide as provided for in the Narcotics Act (BtMG) is compatible with the right to self-determined death protected by the Basic Law, given the possibilities of ending one's own life with medical support using other means. The Federal Administrative Court in Leipzig decided this on November 7th, 2023.

The plaintiffs suffer from serious illnesses. The Federal Institute for Drugs and Medical Devices rejected their applications for permission to purchase sodium pentobarbital for the purpose of suicide. The lawsuits against this were unsuccessful in the lower courts.

The Federal Administrative Court rejected the plaintiffs' appeals. The appeal court decided in accordance with federal law that the requested permission should be refused in accordance with Section 5 Paragraph 1 No. 6 BtMG. The purchase of sodium pentobarbital for suicide is fundamentally incompatible with the purpose of the law, which is to ensure the necessary medical care for the population. Medical care within the meaning of the regulation means the use of an anesthetic to cure or alleviate illnesses or pathological complaints. In principle, ending one's own life does not have such a therapeutic goal.

The refusal of permission does not violate the plaintiffs' fundamental rights. The reservation of permission for the acquisition of narcotics (Section 3 Paragraph 1 No. 1 BtMG) in conjunction with the mandatory refusal of such a license for the acquisition for the purpose of suicide (Section 5 Paragraph 1 No. 6 BtMG) does apply Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG guaranteed the right of the individual to make the self-determined decision to consciously and intentionally end his or her own life. As the Federal Constitutional Court decided in its judgment of February 26, 2020 (2 BvR 2347/15 et al.), this right is not limited to serious or incurable illnesses or certain phases of life and illness and does not require any justification or justification. The starting point is not only protecting the freedom of the individual to decide for themselves whether they want to end their life, but also when and how this should happen. § 3 Paragraph 1 No. 1 i. V. m. § 5 Para. 1 No. 6 BtMG restricts this freedom. People who have freely decided to kill themselves using sodium pentobarbital cannot carry out their decision in the desired manner without access to this anesthetic.

However, the encroachment on fundamental rights is justified. With the general ban on purchasing narcotics for the purpose of suicide, the Narcotics Act pursues, among other things, the legitimate aim of preventing misuse and misuse of lethal narcotics. The prohibition regulation is suitable and necessary to achieve this goal. It is also appropriate because the purpose it pursues and the expected achievement of the purpose are not disproportionate to the seriousness of the encroachment on fundamental rights; For people who have made a self-determined decision to end their life, there are other reasonable options for realizing their wish to die.

According to the findings of the Higher Administrative Court, which are binding for the appeal proceedings, there is a realistic possibility for those wishing to die to obtain access to (prescription) medication through a doctor with which suicide can be carried out. These alternatives are associated with burdens for those wishing to die. You must find a medical person willing to provide the necessary pharmacological and medical support. However, you can get help with your search. After the Federal Constitutional Court, in its ruling of February 26, 2020, declared the ban on the commercial promotion of suicide as set out in Section 217 of the Criminal Code to be null and void, - as the Higher Administrative Court found - several organizations have resumed the placement of doctors willing to assist suicide. There are also difficulties for those wishing to die when using the medication orally because a larger amount has to be taken than when ending life with sodium pentobarbital. This can be difficult for those wishing to die who have difficulty swallowing and increases the risk of complications. It is also possible to use a drug intravenously that does not have any significant differences to sodium pentobarbital in terms of its mode of action and risks. However, this requires expert medical support and thus places a burden on those wishing to die who, like the plaintiffs, do not want such support. These burdens on those wishing to die are offset by important public welfare concerns, which are protected by not opening up access to sodium pentobarbital. The dangers to the life and health of the population resulting from misuse or misuse of the drug are particularly great and serious given its lethal effect and the ease of use. These special dangers are the downside of the stated advantages of the drug for those wishing to die.

When weighed up, the burdens associated with the lack of access to sodium pentobarbital for those wishing to die who have made a self-determined decision to end their life are not disproportionate to the legal protection of interests that can be achieved as a result. The legislature has leeway when it comes to weighting the dangers of drug trafficking and designing the protection concept to prevent misuse and misuse. The ban on purchasing sodium pentobarbital for suicide does not exceed its limits. The restriction of self-determination when choosing the means has weight; it's about shaping your own end of life. However, the dangers that can arise from the purchase of sodium pentobarbital and the storage of the drug by those wishing to die are great. In view of these dangers and the existing alternatives to using the desired means, there is no objection to the fact that the law does not allow its acquisition for the purpose of suicide.

Finally, a claim to the work permit applied for does not arise exceptionally from the perspective of an extreme emergency within the meaning of the judgment of the Federal Administrative Court of March 2, 2017 (BVerwG 3 C 19.15). The plaintiffs do not meet the prerequisites for such an emergency because, according to the binding findings of the Higher Administrative Court, there is also a reasonable alternative to suicide with sodium pentobarbital. If one of the plaintiffs is only eligible for an intravenous drug due to his illness-related swallowing difficulties, nothing different arises. The Higher Administrative Court explained that this plaintiff, who was paralyzed from the shoulder girdle down, could use the drug using an infusion machine that he controls himself.