Write-off of a complaint of undue delay as moot following the cantonal decision; duration of proceedings of six and a half months in connection with physician-assisted suicide considered reasonable

Facts

The complainant 1, Prof. Dr. med. [A.] , a physician, contacted the Cantonal Physician of the Canton of Zurich on 26 July 2019. He wished to know whether, from a medical-law perspective, he could prescribe to a patient with mobility impairment but otherwise reasonably good health, complainant 2 ([B.] , born 1932), a prescription for the lethal dose of sodium pentobarbital.

The Medicine Division of the Health Directorate of the Canton of Zurich replied on 12 August 2019 that the physician had already been repeatedly reminded of the limits on medical participation in suicide assistance. The letter raised the question of whether he was willing or able to comply with the physician's duties of care. He was invited to a meeting.

On 26 August 2019 the physician specified his request: it concerned the medical permissibility of supplying sodium pentobarbital to a person wishing to die who intended to undergo suicide assistance through the association Dignitas. Alternatively, the request was to be treated as an application for a declaratory ruling.

By letter of 19 September 2019 the Medicine Division maintained its position. Prescribing sodium pentobarbital for the suicide of a healthy person who was weary of life would breach the physician's duties of care under the medicinal and narcotics legislation and would entail supervisory consequences. It rejected an authorisation or a declaration of lawfulness, as it lacked the power to grant authorisations and a declaration would amount to an authorisation.

The physician's complaint of 27 September 2019 was not entered into by the Health Directorate by decision of 4 May 2020. The physician and the patient lodged complaints against this with the Administrative Court of the Canton of Zurich on 30 May 2020. The court dismissed the physician's complaint insofar as it was admissible and did not enter into that of the patient (judgment of 17 December 2020, dispatched on 30 December 2020).

On 9 December 2020 the physician and the patient lodged a complaint with the Federal Supreme Court for undue delay. They requested that the Administrative Court be ordered to issue an appealable decision within 14 days. Alternatively, they requested a finding that the duration of the proceedings violated Art. 29 para. 1 Cst. and Art. 6 para. 1 ECHR. The Administrative Court requested dismissal insofar as the complaint was not moot. The Health Directorate and the Federal Office of Public Health waived a response.

The complaint to the Administrative Court of 30 May 2020 was thus handled for six and a half months until the judgment of 17 December 2020. The exchange of written submissions ended with the Health Directorate's submission of 7 July 2020. On 22 October 2020 the Administrative Court responded to an inquiry by the complainants about the status of the case, but gave no information on the expected time of decision.

Considerations

The complaint of undue delay is in principle admissible under Art. 94 in conjunction with Art. 100 para. 7 FSCA. It is directed against a final decision of a last cantonal instance which, under Art. 86 para. 1 let. d and Art. 90 FSCA, is directly appealable to the Federal Supreme Court and does not fall under any exception under Art. 83 FSCA. The complainants have standing (Art. 89 para. 1 FSCA).

With the notification of the Administrative Court's judgment of 17 December 2020, the complaint of undue delay has become moot. The investigating judge must therefore order the write-off (Art. 32 para. 2 FSCA). The alternative request for a finding of undue delay need not be addressed. Following the decision on the merits, there is no longer a current legal interest in protection. The duration of proceedings is moreover highly dependent on the individual case, so the question is hardly likely to arise again under the same circumstances. There is therefore no reason to make an exception to the requirement of a current and practical legal interest (reference to BGE 141 II 91 consid. 1.3).

The single judge decides on costs summarily, based on the presumed outcome of the proceedings before the event causing the termination occurred (Art. 71 FSCA in conjunction with Art. 72 FCPA; BGE 125 V 373 consid. 2a).

Under Art. 29 para. 1 Cst., there is a right to a decision within a reasonable time. A violation exists where the matter is unduly delayed. Reasonableness must be assessed on the facts of each case, in particular by reference to the type of proceedings and the concrete circumstances, especially the complexity of the factual and legal questions, the significance for the person concerned, and the conduct of the parties and authorities (BGE 135 I 265 consid. 4.4; 130 I 312 consid. 5.2).

A duration of proceedings of six and a half…