The medical-ethical guidelines of the SAMS are ethical standards. Many of the SAMS guidelines concern topics that affect fundamental rights. The provision of these standards by a foundation under private law raises questions about the legal framework and the legitimacy of the guidelines. A legal opinion published in 2024 on behalf of the SAMS describes the role of the SAMS and the legal classification and significance of the guidelines.
In the context of socially controversial topics such as assisted suicide, coercive measures in medicine and triage decisions under exceptional resource scarcity, the question of the legal status and legitimacy of the SAMS guidelines is central. It is clear that the SAMS guidelines are not legally binding, but they are of great practical and conceptual importance. Once adopted into the Swiss Medical Association's (FMH) Code of Conduct, a guideline is binding for FMH members.
Legal status of the SAMS
The SAMS is a private foundation subsidised by the Swiss Confederation. It is one of the institutions listed in Art. 4 of the Federal Act on the Promotion of Research and Innovation (RIPA). A service agreement has been signed between the Confederation and the Swiss Academies of Arts and Sciences, which includes the development of medical-ethical guidelines as one of its objectives. However, this is not a task that the Confederation delegates to the SAMS, but one that the SAMS assigns to itself. In legal and organizational terms, the SAMS is external to the federal administration and determines its tasks in scientific self-administration. As a foundation under private law, it decides itself on the subjects it deals with, its structure, the composition of its bodies and its procedures, in accordance with the foundation’s purpose.
Legal validity and significance of the guidelines
The SAMS has no legal mandate to draw up guidelines. The guidelines it publishes correspond to the regulations of a private organisation and propose professional and ethical recommendations for practice. The guidelines do not have direct binding legal effect. Nevertheless, as widely accepted and proven professional recommendations, they influence public law in a number of ways. Authorities and courts use them to concretise undefined legal concepts and to derive rules for medical practice (lex artis). They shape the legal understanding of medical and ethical concepts through their incorporation into legislation and administrative practice, and through their consideration in case law.
The high recognition of the SAMS guidelines is based on their professional nature. Their legitimacy derives from the expertise of the professionals and professional groups involved in their development, as well as their independence. Both are core values of the SAMS, which are anchored in its mission statement (available in French or German).
The complex process of developing and ensuring the quality of the guidelines includes many elements of a state legislative process, such as the three-month public consultation. However, they do not remedy the lack of democratic legitimacy of those involved in developing the guidelines. It is and remains the task of the democratically legitimised state legislature to regulate central issues of life and death. Nevertheless, this does not preclude the SAMS from developing practice-oriented medical-ethical guidelines.
Legal opinion
Notes on the preparation of the legal opinion
The legal opinion was written by Professor Franziska Sprecher, Bern, at the request of the Central Ethics Committee (CEC) and on behalf of the SAMS Executive Board. Professor Sprecher was familiar with the topic as co-head of the interdisciplinary research project «Governing by Values? On the history of medical and bioethics in Switzerland», which is supported by the Swiss National Science Foundation and also highlights the role of the SAMS and its guidelines. During the preparation of this legal opinion, an exchange took place with an advisory group set up by the SAMS.
Members of the advisory group
Prof. Paul Hoff, Zollikon, President the CEC, Chair
Sibylle Ackermann, Bern, SAMS, ex officio
Susanne Brauer, PhD, Zürich, Member of the CEC, Ethics
Prof. Mio Filipovic, St. Gallen, Member of the SAMS Board, Medicine
Prof. Thomas Gächter, Zürich, Law
Dr Damian König, Sion, Member of the CEC, Law
Public prosecutor's office of the Canton of Bern refers to legal opinion
The chapter on assisted suicide in the medical-ethical guidelines «Management of dying and death» continues to trigger controversial discussions, including the latest version from 2021. On 23 November 2023, a criminal complaint was brought against the SAMS and the FMH, claiming that this section of the guidelines placed doctors in a dilemma: either they were obliged to act against their conscience in certain cases and not provide assisted suicide, or they risked being expelled from the FMH.
In its ruling of 19 August 2024, the public prosecutor's office of the Canton of Bern clearly rejected these accusations. Pages 1 to 10 of the ruling describe the contents of the complaint and on pages 10 to 19 the public prosecutor's office explains why the guidelines are lawful. It refers several times to the legal opinion drawn up by Prof. Sprecher from July 2024. Finally, the public prosecutor's office points out that affected FMH members could take civil action against FMH if they are in fact sanctioned for providing assisted suicide.