Thursday, 12 September – 2:00 pm Room V 005, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich
Several legal systems grant individuals the possibility to voluntarily end their life when clinical or psychological conditions do not allow to live a “tolerable” life.
This applies, inter alia, to Belgium and the Netherlands (since 2002), Luxembourg (since 2009), Switzerland (formally since 1918, but practiced by special organisations since 1980s), Canada (since 2015, though special legislation is still to be implemented), Colombia (allowed since 1997 and regulated since 2015), and some U.S. States, such as Oregon and California.
Rules and procedures vary considerably from one jurisdiction to another. Most, however, entrust such activity to licensed facilities which enter into contact with the interested person through right-to-die organisations. The process generally presupposes: (1) a preliminary evaluation of the will of the patient; (2) a clinical/psychological assessment, including an interview with caregivers; (3) an explanation of the process and the acquisition of the patient’s informed consent.
Leaving aside any ethical dilemmas, it is worth attempting to arrange orderly some of the conflict-of-laws aspects of the matter when action is brought (e.g. by the relatives of the patient) against the above facilities or their staff, seeking compensation for harmful consequences hailing from the death of the loved one.
Our analysis will focus exclusively on the aspects related to the identification of the law applicable, though several other issues arise when identifying the competent jurisdiction.
The alleged tort will mostly be governed, as such, by the lex loci commissi delicti in many jurisdictions: however, some issues may still be governed by a different law.
Indeed while the tort itself would be governed by a law which allows assisted-suicide, that is the law of the place where the event occurred, that very law would not necessarily govern also preliminary questions.
Among the preliminary questions, the issue of the validity of the consent given to the treatment stands out. After all, this question is not necessarily intrinsic to the tort claim: it is rather a mere premise whose absence affects the soundness of the claim itself.
With this in mind, the seised court may regard preliminary questions as autonomous issues, to be dealt with according to the relevant conflict-of-laws rules which would govern the issue if taken in isolation. Therefore, the validity and effects of the consent could be assessed according to a law other than the one governing the alleged tort (e.g., the law of the patient’s nationality or domicile).
The proposed presentation purports to discuss the articulation of the principal issue on tort and the incidental issue of consent in this field, and to determine whether, and in which terms, the rules that govern voluntary end-of-life procedures can be characterized as overriding mandatory provisions.