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Sunday 21 December 2014

#Euthanasia The case for it and Proposed Legal framework

+Assisted Suicide / Euthanasia / Right to Die +Assisted Suicide +Death with Dignity 

#Euthanasia. The case for it & Proposed Legal

Framework by Siegfried Walther

In this article:
I first quote an entire internet article which sets out some definitions and which mentions the countries where Euthanasia is legal.
 Second, I make the case for Euthanasia
 
Thirdly, I propose the legal procedure and framework which ought to apply
1 The article
"Euthanasia is defined as the act of intentionally ending a person’s life so as to help relieve suffering or pain.
  If for example a doctor was to give a patient suffering from a terminal condition such as cancer an overdose of drugs that would end the patient’s life, this would be considered as euthanasia.
 Deliberately aiding, or encouraging a person to commit suicide would also be considered as assisted suicide.
A good example would be obtaining powerful sedatives for a terminally ill person with full awareness that the medication would be used for suicide. In which countries is euthanasia legal? What about euthanasia legality in the US?
In Which Countries Is Euthanasia Legal?
In some countries, euthanasia is legal and there have been various government policies that have implemented in support of the practice that is also referred to as mercy killing.
1. Belgium
Belgium is one of the countries that have legalized euthanasia and this law has been in place since September 2002. The law states that two doctors need to be involved in the process and a psychologist as well if the competency of the patient is in doubt. Both the patient and doctor decide on the best course of action to take in ending the patient’s life and this could be through a prescribed overdose or lethal injection.
2. Colombia
On May 20th 2010, the Colombian Constitutional Court ruled that no one would be held criminally accountable for terminating the life of a patient who is terminally ill and had authorized euthanasia. The court went to further define the term terminally ill as a person with condition such as AIDS, kidney failure, liver failure, cancer and other terminal conditions that come with extreme suffering. That said; euthanasia laws in Columbia do not authorize intentionally ending the lives of patient suffering from degenerative diseases such as Lou Gehrig’s disease, Alzheimer’s and Parkinson’s disease.
3. India
India is yet another country where euthanasia is legal. However, the law only recognizes passive euthanasia as legal. This law was passed by the Supreme Court of India in 2011 as a means to legally withdraw life support in patients who are in a permanent vegetative state. Active euthanasia is however still illegal and this includes using lethal compounds to end a person’s life.
4. Ireland
In Ireland, active euthanasia is illegal. However, it is not illegal to withdraw life support or other treatments if the patient or a next of kin requests for it. According to a poll published on the Irish Times, 57 per cent of adults love to see doctor assisted suicide legalized if the patient requests it.
5. Luxembourg
Luxembourg was the third country in the EU to legalize euthanasia. The law was passed in a parliamentary bill that allowed doctors to end the lives of a terminally ill patient. This law requires that such a decision be reached with the approval of a panel of experts and two doctors.
6. Mexico
Although active euthanasia is illegal in Mexico, the law allows for passive euthanasia to take place. Close relatives of a terminally ill unconscious patient or the patient could refuse further treatment. This law has been applicable since 2008 and a similar law which sought to have some extended provisions that decriminalize active euthanasia is pending approval.
7. Netherlands
In Netherlands, euthanasia and doctor assisted suicide are both legal. Although the law was passed in 2002, the courts have permitted the practice since the 1980s and doctors are generally not obligated to keep patients alive contrary to their wishes. For over 20 years, the Netherlands courts have not been prosecuting physicians who facilitate euthanasia.
Where in America Is Euthanasia Legal?
Euthanasia is also legal in some states in the U.S and these include Oregon, Washington, Montana and Vermont.
In Oregon, euthanasia was legalized under the Death With Dignity (DWD) Act which was implemented in 1997. The law allows patients with terminally ill or hopelessly ill conditions to request for lethal medication. The requirements are that the patient must have made two verbal requests and another in writing with a witness for the doctors to end his or her life. Two doctors also need to agree on the diagnosis, the prognosis of the disease and the capability of the patient. The patient will have to personally administer the medication.
Washington became the second state to legalize euthanasia after Oregon in 2008 and this was done via the Washington Death with Dignity Act. The Washington law is pretty similar to the Oregon law as it also requires that the patient makes two oral requests and a written one as well. The requests need to be 15 days apart and the patient must be suffering from a terminally ill condition with a life expectancy of six months or less.
In December 2009, in Montana, the euthanasia law was passed in the Montana First Judicial District Court in a case dubbed Baxter v. Montana. The ruling stated that a competent patient had the right to die with dignity. The law allows the physician to assist the patient by providing prescription lethal medication which the patient will take on their own.
Most recently in May 20th 2013, Vermont also joined the list of states that have legalized euthanasia. The law was introduced through act 39 of the End of Life Choices. The law also requires that the patient provide two oral and one written request. It’s important to note that the patient needs to be a resident in all of the above states to participate in euthanasia." END OF ARTICLE
 
Part 2 - The case for legalised Euthanasia
 
Almost every pet owner would agree, that if your pet has some incurable disease or condition which is causing it significant pain or suffering, there will come a point where the pet requires to be relived of such pain and suffering by having it euthanized by a Veterinarian.
 
Euthanizing of pets to prevent pain or suffering is not only considered the norm amongst most civilised societies, but I would go even further to say that most people would condemn any pet owner who failed to euthanize a pet which is evidently in suffering significantly or is in significant pain.
 
In some countries, one might even be able to call upon the SPCA (Society for the Prevention of Cruelty to Animals) to investigate and intervene. In certain cases, one could even envisage criminal charges under animal cruelty prevention laws against such a pet owner, where the failure to euthanize can be shown to be an act of cruelty.  
 
The logic underpinning this "norm" for pets, is that we consider it cruel to have an animal with an incurable condition which causes it significant pain or suffering to have to suffer unnecessarily.
 
As pet owners, we hate to be confronted with the scenario where we have to make a choice about whether to end our pet’s persistent pain or suffering.
 
When our pet’s condition is incurable, the choice is seldom about whether to put the animal down, the question is usually about when.
Sometimes, the trauma of the decision is too much and we delay the inevitable by delaying to do the right thing. It is often a friend, family member or relative who is less directly connected with the animal who will, point out that if we really love our pet, we must accept that it’s time to act in our pet's bests interests instead of prolonging the suffering for our own selfish interests.  
Why should animals experiencing untreatable and significant pain or suffering be entitled to die with dignity whilst we, or our loved ones, are denied that right?
What is good for our pets should be good for human beings. I can't imagine anyone disagreeing with this, except on religious grounds. (I will deal with religious grounds shortly)  There should be a Society for the Prevention of Cruelty to Human Beings.
 Apart from the argument raised above, there are various constitutional or legal rights which citizens of most democratic countries enjoy. In South Africa, these rights are guaranteed in our Bill of Rights which forms part of the constitution. Many other counties have similar constitutional or common law rights.
 The SA constitutional rights which are applicable are set out below:
 The Right to dignity (Section 10):
The right not to be treated in a cruel inhuman or degrading manner (Section 12 1 e) and
the right to control over their own body. (Section 12 2 b)
 These three legal rights, taken together, give human beings the right to be treated in the same way we humans treat our animals who are experiencing untreatable and significant pain or suffering.
 
10 Human dignity
Everyone has inherent dignity and the right to have their dignity respected and protected.
12. Freedom and security of the person
Everyone has the right to freedom and security of the person, which includes the right ­
not to be deprived of freedom arbitrarily or without just cause;
not to be detained without trial;
to be free from all forms of violence from either public or private sources;
not to be tortured in any way; and
not to be treated or punished in a cruel, inhuman or degrading way.
Everyone has the right to bodily and psychological integrity, which includes the right ­
to make decisions concerning reproduction;
to security in and control over their body; and
not to be subjected to medical or scientific experiments without their informed consent.
Returning to one of the main arguments against Euthanasia, I suppose I should add a further constitutional right we all enjoy. I have included it below:
The right to freedom of religion belief and opinion.

Section 15 Freedom of Religion, Belief and opinion.
Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
 This last mentioned right is crucial, in that it protects the rights of those who don't agree with Euthanasia on religious grounds, but critically, it also prevents  anyone from denying the right to Euthanasia to others on religious grounds.  
Doctors and medical staff who choose not to perform any procedure or to be involved in any way with legalised Euthanasia on religious grounds must, of course, have the legal right to refuse to be involved.
There can be no legal impediment in a constitutional or common law democracy to the legalisation of the rights of choice in regard to euthanasia on religious grounds.
The problem I find is that many arguments against legalising euthanasia are not honestly held ones. They are arguments made by people who in fact object to Euthanasia on religious grounds, but don't wish to admit it.
Religious objectors resort to the use of other arguments because they evidently realise that preventing those who are not religious from having the right to euthanasia on religious grounds is completely indefensible.
It would be like imposing a ban on alcohol in Western democracies because alcohol is forbidden by most believers of Islam.  Christians, Jews, and the non-religious wouldn't stand for it!
If a religious person chooses to believe that pain, suffering and the indignity of having to wear nappies etc. due to the loss of bodily control is a burden which Christians and others must bear until God decides otherwise, he or she should have such a right. 
But those who subscribe to such views cannot expect someone who does not, to be compelled to bear pain, suffering and indignity which their belief apparently requires of them. 
Religious people often believe that all people including non-believers are bound by their God's laws and by their beliefs. And it's always their God's laws, mind you, not the Gods or the laws related to other religions religions, which are deemed, of course, to be false.
Christians burned non-believers in fires (not something remotely Christ like) in the middle ages, and today some people who call themselves Muslims chop the heads off those who refuse to follow Islam. 
It is time for all intolerant religious persons to recognise that their arrogance in believing that their religion is correct, and that everyone else is wrong, has been one of the lasting causes of murder, cruelty, barbarism, hatred, torture, intolerance and genocide. One can often judge the truth about a religion by the true behaviour of its followers, and not by the texts they claim to be bound by. If we did that, many religious persons would have little to be proud of.
People who believe that they have the right to impose their religious beliefs on non-believers are misguided and often also a danger to democratic society.  We don't wish to have any more 9/11's; no more Nazi holocausts, no more Isis beheadings, no more religious crusades, no more Inquisitions, no more burning of witches, no more religious wars...
That ought to end the debate about fascists, dictatorships, barbarians and anyone else who wishes to force their views, religious or otherwise, down the throats of others and it should bring us back to how we treat our dying, suffering pets and to the question of why humans are not entitled to the same kindness!
But there are other concerns which opponents of euthanasia often raise. Certain of these concerns are often raised as alternative arguments by those with a religious agenda, or they are raised as principal arguments by other religious people who do not wish to openly disclose their actual agenda. Some of these concerns are legitimate and they are shared by other organisations, rights groups and individuals who aren’t necessarily motivated by any religious agenda at all.
“In Countries where euthanasia is legal, there are instances where doctors have either ignored the legal procedures to assist patients to die, and worse, other cases where doctors have euthanized patients without their consent. “
One argument I heard in a South African television programme, Judge for Yourself, was that in countries where Euthanasia is lawful, there have apparently been many documented cases where doctors have been found to have taken matters into their own hands. That is, in some cases, doctors have apparently been reported to have assisted patients to die without following the requirements or procedures dictated by applicable laws and in other cases, doctors have apparently taken the decision upon themselves to euthanize patients without their consent in cases where the patient was not in a position to consent.
This argument against legalising Euthanasia is without any merit whatsoever. I suspected that the woman advancing this argument was relying upon it to advance a religious agenda. I was convinced that she was a Christian who was mainly motivated by her belief that euthanasia should be not be permitted TO ANYONE on religious grounds. The moderator appeared to be of a similar view. He tried to explain the weaknesses of the woman’s argument to her and he then asked her whether she in truth mainly objected to euthanasia on religious grounds. The lady ducked and dived without answering the question.
The problem with the lady’s argument is simply this. Doctors who actively cause the premature deaths of persons without their consent or without a court order or without following applicable legal procedures are acting illegally and their conduct is a crime punishable by law. They in fact risk murder convictions. This position is true irrespective of whether the country where doctors behave in this unlawful manner permit legal Euthanasia or not.
Where there are laws permitting Euthanasia, the laws must be complied with by doctors to avoid criminal prosecution. And the other point is this. These cases are not limited only to countries with law permitting euthanasia. There certainly are many cases in other countries where doctors or nurses have committed similar crimes as described above. This disposes of her argument.
 
Distinguishing the above cases from other instances where doctors make judgment calls about the management of severe pain of terminally ill patients who are close to dying
The above cases which clearly involve illegal conduct by doctors needs to be distinguished from the following more common scenario: In many instances where the patients are terminally ill, in severe pain, and are close to dying, doctors have to make difficult decisions about how much morphine to administer. Too little leaves the patient in pain. Too much morphine can cause the patient’s premature death. There are instances where the doctors feel ethically bound to, how shall I put it, ...err on the side of excess in order to relieve their patients of their suffering for once and for all.
Such judgment calls are apparently routinely made by doctors caring for terminally ill patients. The line between a doctor euthanizing a patient and one who is simply providing justifiable and appropriate pain management for a terminally ill patient is evidently not one which can be easily drawn.
I imagine that most doctors who do cross that line in order to assist a patient, with or without consent, to die earlier than he or she would otherwise have done, are careful to ensure that the extent to which they do cross the line is modest enough to ensure adequate room for doubt in case their actions are subjected to investigation or inquiry by other medical practitioners.
Where the departure from what most doctors would regard as proper care is relatively minor, most other medical experts will be unwilling or unable to provide an opinion condemning their colleague. In the absence of an opinion condemning the doctor’s conduct as being negligent or unlawful, a disciplinary hearing or criminal case will be impossible.
If, however, an investigation were to show that the doctor’s actions sufficiently departed from standard medical care so as to be manifestly unlawful or clearly negligent, such a doctor risks both criminal prosecution and a disciplinary enquiry in terms of which he or she could be suspended or struck of the roll of medical practitioners.
Cases where a doctor crosses the line and actively uses pain management medicine to reduce the suffering of a terminally ill patient who is in severe pain and who can no longer make their wishes known, by shortening that patient’s life by a few days, are neither here nor there in my view.
And where such a terminally ill patient who is on his last legs, is able to speak and who is in severe pain and discomfort, begs the doctor to bring a premature end to his misery by upping his medication to just above the norm for his condition, and the patient dies a few days earlier than expected, this also presents no problem in my view. However, to avoid abuse and to prevent doctors from thinking they can do as they please and get away with it, I believe that a system of proper oversight of the treatment of all terminally ill patients by a person qualified to do so should be in place.  
IF EUTHANASIA IS LEGALISED IT MIGHT FORCE SOME PEOPLE TO OPT FOR IT TO AVOID BEING A BURDEN TO RELATIVES OR TO OTHERS.
There is a view that legalised Euthanasia might cause some people to feel compelled to seek that option, even if they don't want to, simply to spare their relatives the burden of caring for them.
UNSCRUPULOUS POTENTIAL OR HOPEFUL HEIRS MIGHT UBUSE THE SYSTEM OF LEGALISED EUTHANASIA IN ORDER TO BENEFIT THEMSELVES
Worse still, a vulnerable elderly person who may be ill but may still wish to live, may be pressurised into agreeing to a premature exit by unscrupulous relatives whose sole purpose is to facilitate an earlier date of inheritance rather than to bring an end to their relative's pain or suffering. 
Both the above concerns regarding legalised euthanasia are legitimate and reasonable.
 DEPRESSION
Many terminally ill patients suffer from depression at some point or another. Such depression is often temporary or where it isn’t, it could be treatable.
Anti-euthanasia advocates point out that there are documented cases where terminally ill patients suffering from depression have indicated that their wish to die or to be assisted to die only to find that, once their depression passes, their wish to die passes with it.
I accept that anyone who is terminally ill and who chooses to die must make that choice freely and voluntarily, and in a sound state of mind.
LEGAL FRAMWORK TO ADDRESS SUCH CONCERNS
In my view, however, the above concerns can be addressed without denying those who wish to have the right to die, the choice to die. The legal framework I propose will have several measures in place which ought to protect vulnerable people.
I now turn to deal with the proposed recommended procedure.
 Part 3 Recommended Procedure
 Firstly, the Euthanasia procedure will require a two-stage Court application. I.e. 
First Hearing - for the appointment of an Independent Curator.
When the Application is first heard, it will be for the appointment of an independent Curator, an independent legal practitioner who will be mandated to meet with the patient, the relatives, the medical experts, and the patient’s legal representatives etc. and to report to the Court at the Second hearing, the Return Day.
The curator's job is to protect the interests of the applicant Patient:
 The curator must ensure that the applicant is indeed of sound mind. This he will do by having regard to the medical reports filed, by consulting with the patient, the patient’s closest relatives or friends, and by consulting with the patient’s doctor and psychiatrist.
He must ensure that the patient is not suffering from depression. If the patient is suffering from depression, the curator must inquire as to the treatment. The idea is that the patient, will, shortly before the return day file a supplementary affidavit re-confirming his willingness to die and this must include a supplementary report by a psychiatrist advising that the Patient's depression has improved or been managed to a point where the psychiatrist is satisfied that the condition has not materially affected the Patient’s decision.
Where depression exists, the Curator must conduct follow up interviews shortly prior to the Return day to satisfy himself that the Patient's depression has indeed been managed and has indeed so improved. If necessary, the Curator should require a further independent psychiatric report in time for the Return Day.
The Curator must ensure that the Patient's decision to die is genuine and not motivated by a wish to avoid being a burden to the family. If it appears that the Patient feels he is a burden, the Curator could explore alternatives like hospice care, other medical facilities or moving to the homes of other friends or relatives where appropriate.
The Curator's most important function will be to protect the patient, especially vulnerable one's from being manipulated into electing to die for ulterior motives such as inheritances etc. To do so, the Curator must be certain that none of the people assisting the patient, such as the Patient’s lawyers, the medical experts etc. are in any way beholden to the family or relatives instead of the patient.
The Curator will be required to consult with any family members or friends or relatives who can shed light on the real circumstances the patient faces at home. If necessary, the Curator should discuss re-location to another family member or even a care facility with the Patient to remove him from any undue influence or pressure, if any. 

The content of the Application.
 The Application must be brought by "the Patient" / Applicant him or herself and he/she must be of sound mind. The patient must depose to a founding affidavit in which he alleges that:
 1. The patient is of sound mind and capable of representing him or herself in this application.
This averment must be supported by a confirmatory affidavit by the Patient’s attorney if legally represented and confirmatory affidavits by a medical practitioner by a psychiatrist. Additional affidavits by close family members are preferable but not essential to making out a proper case.
1.1 The Patient must set out the condition he suffers from, that it is untreatable, his life expectancy, that he is experiencing or expects to shortly experience untreatable and significant pain or suffering.
1.2 The Patient must confirm that he does not wish to endure the said pain or suffering and that he has of his own volition chosen to terminate his own life.
 1.3 The Patient must set out his living arrangements, financial means, next of kin, etc.
 1.4 The Patient must aver that he has not chosen this course of action to avoid being a burden to the people that he is living with and that he understands that alternative care facilities (hospice or otherwise) are available to him if those be his concerns.
1.5 The patient must confirm that no family member, friend, business partner, legal or medical practitioner or anyone else who stands to benefit in any manner from his earlier demise has influenced his decision.
 
1.6 The Patient must confirm that his attorneys in this application do not act nor have they ever acted for any relative or person who is or might be a beneficiary of his estate in terms of will or intestate succession and the similarly in regard to anyone who might benefit from any policies on his death. Similarly, the independence of the psychiatrist and medical practitioners relied upon in the application by those "interested parties" should also be canvassed. 
2. The confirmatory affidavit by the psychiatrist should ideally also confirm that the patient is not suffering from depression and that his application is thus not induced by or caused by his depression.
In the case where depression is found to be a factor, this should be disclosed and the proposed treatment and a time-scale should be set out with a view to filing of updated affidavits (as canvassed above in the section dealing with the Curator) by the Return Day.
3. An affidavit from one or more medical practitioners confirming  that the Patient is of sound mind, his present condition, the prognoses, and all of the factors canvassed in 1.1 above should be confirmed in an affidavit or attached report. Any other facts or circumstances relating to the Applicant's condition which are relevant to the application...
 4. The attorney's confirmatory affidavit should recommend two or three independent practitioners from list/ panel approved by the law society to serve as the Curator. Failing an attorney, the applicant could recommend a curator. Faxed or Emailed Consent forms confirming availability and willingness to act from each curator should be attached.
 5 The application should contain details of the medical practitioner or medical facility which has consented to carry out the euthanisation of the Patient, in the event of the Court granting such an order, and appropriate affidavits proving such consent should be attached.
Return Day
 The return day should ideally be no more than four weeks after the initial hearing. If the patient has already started to suffer, that suffering must not be unduly lengthened by legal delays. Two days or so prior to the return date, the Curator's report and any further affidavits (especially those updating the progress if any in regard to the patient's depression etc. should be filed. If the patient is deemed to have recovered or responded sufficiently to treatment to make an informed choice, his affidavit re-confirming his decision to die must accompany updated medical reports.
If the Patient is able to attend at Court in person on the return day he must do so. The Judge can then explain the nature of the relief sought to the Patient and he must follow this up with a few questions to the Patient to ensure that the Patient understands what order is being sought, that he wishes to have such an order made, and that he is in a proper mental state to agree to such an order.
If the Patient’s condition no longer permits him to attend at Court, the Judge, must, prior to making a ruling, visit the patient in person at home or in the medical facility where he is, and he should be accompanied by the curator and the patient's legal representatives, if any.
If the curator, or the Judge is not convinced that the patient's decision was not caused by depression, the matter can be postponed for a further fortnight to allow for additional treatment and, for the filing of further reports/affidavits indicating the results of that treatment.
******
The above procedure ought to take care of all of the legitimate concerns people raise about legalised euthanasia.  

PATIENTS WHO ARE NO LONGER OF SOUND MIND
What about where the patient is unable to make a decision for himself, i.e. is no longer of sound mind?
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Where a patient is no longer of sound mind, I propose that a similar procedure as provided for above will apply. Any interested party can be the applicant, but the independent curator appointed by the Court will be a curator ad litem. i.e. He stands in for and represents the patient.


Where there is a registered living will by the Patient, which specifies the circumstances under which the Patient wishes to undergo euthanasia, the applicant must Prove that the will was registered by the Patient and that such will represents the patient's instructions.


The curator ad litem and the Court must be satisfied that the will is that of the patient and not a forgery, particularly if relatives or some other party would benefit from the patient's earlier demise.


Secondly, the applicant must show, with medical evidence to back it up, that the patient's condition has reached that contained in the will and that it is irreversible. In addition, the medical evidence must show that the patient is experiencing pain or suffering or that the patient no longer has the ability to live in a dignified fashion without constant medical support and attention.


A Court will then, on the return day, take these reports into account, consider the living will's provisions, and take the views of anyone other than the applicant into consideration in order to make a decision.


Where no living will has been filed, an applicant can still approach the Court, but the case for euthanasia must be compelling. Also, where there is no living will, and where is evidence that the patient's religion is against euthanasia, then that would preclude the Court from making any order.


Of course, a publicity campaign requiring anyone who wishes to be euthanized under certain conditions when they are no longer able to decide from themselves, to approach an independent attorney or advice centre where they can complete and register a living will which would govern their care when they are no longer able to decide on such matters for themselves.

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I believe the above framework ought to be sufficient to address all legitimate concerns. Also, under the above framework, assisted suicide, without the requisite court order, will revert to being murder and will carry the full penalty of law.


SG WALTHER 2014

See link below: my article on Sidney Siege, school shootings. Causes & simple solution. AND my TOP 125 songs....
 
 
 
 
 



 
 
 

 



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