#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.
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.
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.
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)
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.
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:
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.
1.5 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...
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
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?
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.
**********
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....
Top 125 Chart list 26 August 2015 Cape Town
http://siegfriedwalther.blogspot.co.za/2015/08/dj-sgwalther-top125-chart-cape-town-26.html
http://siegfriedwalther.blogspot.co.za/2015/08/dj-sgwalther-top125-chart-cape-town-26.html
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