Facts
The case concerns the question of whether the requests of the appellant Dr. Seidenberg for the granting of an exceptional permit for the use of heroin pursuant to Art. 8 para. 5 of the Narcotics Act were rightly rejected.
Dr. Seidenberg submitted requests to the Federal Office of Public Health (FOPH) for exceptional permits for "diversified opioid-assisted treatment" of two patients, including the use of heroin. The FOPH rejected the requests, as the research data had been collected exclusively in outpatient clinics and therefore no reliable statement could be made as to whether heroin could be used just as safely and successfully in a general practitioner's practice.
Against the decision of the Federal Department of Home Affairs (FDHA), which also dismissed Dr. Seidenberg's appeal, he filed an administrative court appeal.
Considerations
The Federal Supreme Court upholds the appeal. It states that the FDHA has misinterpreted Art. 8 para. 5 (last half-sentence) of the Narcotics Act.
The legislative history shows that the historical legislator intended to exceptionally allow the use of heroin as a palliative for selected and hopeless patients with limited life expectancy. The ratio legis of the exceptional regulation is to achieve, through the dispensing of heroin, that the last months or weeks of terminally ill people can be "designed in a more humane way".
The Federal Supreme…