Self-determination at the end of life in the Swiss legal framework: a critical analysis of the legal duty of having to decide for oneself.

This research project deals with the issue of the limits of the right of consent of parents with legal custody, and the state’s obligation to provide welfare services in relation to health matters for minors who are unable to give consent.

For many medical treatment options one can no longer refer to the universal and objective "best interests" of the child that the parents of a minor who is unable to give consent must accept, with the intervention of authorities if required. The objective "best interests" of the child are by and large a fiction that no longer tallies with the complex medical reality. Should health impairment necessarily be an accepted part of a child’s life? Do preventive vaccinations unnaturally hinder the development of the body’s defences? Should aesthetic limitations be labelled as natural beauty? Or is the opposite true: should "good parents" use all available time and financial resources to exhaust the medical possibilities? These are difficult questions, with only some peripheral clarity, such as in the presence of life-threatening diseases, and when straightforward medical treatment options are available. There remain substantial grey areas in which it is unclear how much leeway the government should grant parents, and in which official intervention is necessary, irrespective of the ideological or social basis.

Depending on the initial situation, it can be problematic when authorities make decisions about carrying out medical treatment. This also applies to general state health care measures for children that may conflict with their parents’ legal custody (e.g. forced vaccinations, school health and dental examinations, and regulations etc.). There are also many issues that previous legal research has barely touched on, such as questions related to the admissibility of state intervention for specific individuals in the form of child protection measures. Another unanswered question relates to the extent to which parents, in view of their maintenance obligations, can be expected to finance treatment and care if appropriate medical treatment that is objectively considered to be beneficial is not covered by health insurance or government care provision (e.g. invalidity insurance). In such cases do parents have free rein to make a decision, or can authorities make a decision on treatment by imposing child protection measures, with financial consequences for the parents?

The research project does not adopt a purely substantive viewpoint in its examination of the boundary between state and parental co-determination rights, but also explains specific processes and procedures. One key objective of this research project is to provide the relevant authorities with reliable guidelines for action, to stimulate new de lege ferenda legislative instruments where required and, conversely, to grant parents the freedom of action defined by their civil legal custody on the one hand, and by fundamental legal stipulations on the other. 

Dr. iur. Barbara Pfister Piller

This site is under construction. At the moment only available in German.