Euthanasia and Physician-Assisted Suicide: End-of-life practices overview and their implementation rationality

Bachelor Thesis

Euthanasia and Physician-Assisted Suicide: End-of-life practices overview and their implementation rationality

submitted on 2 June 2006 by Ervins Strauhmanis

Supervisor Prof. Evhen Tsybulenko, Ph.D International University Concordia Audentes Law School

Declaration

I hereby solemnly declare that I have written this thesis by myself and without support from any other person or source, that I have used only the materials and sources indicated in the footnotes and in the bibliography, that I have actually used all materials listed therein, that I have cited all sources from which I have drawn intellectual input in any form whatsoever, and placed in “quotation marks” all words, phrases or passages taken from such sources verbatim which are not in common use and that neither I myself nor any other person has submitted this paper in the present or a similar version to any other institution for a degree or for publication.

Tallinn, 2 June 2006 (Ervins Strauhmanis)

2

Table of Contents List of Abbreviations………………………………………………………………..…………4 Introduction…………………………………………………………………………………….5

Part I. The Debate around Euthanasia and Physician-Assisted Suicide 1.1. Physician-assisted suicide…………………………………………………...…….8 1.2. Non-voluntary active euthanasia………………………………………………....16 1.3. Involuntary euthanasia………………………………………………………...…18 1.4. Voluntary active euthanasia………………………………………………..…….20 1.5. Voluntary passive euthanasia…………………………………………………….25 1.6. Non-voluntary passive euthanasia………………………………………………..28 1.7. Indirect euthanasia / Double effect doctrine……………………………….…….35

Part II. Analysis and Proposals for Implementations of End-of-Life Solutions 2.1. Essential principles - refusal of unwanted treatment and double effect………….38 2.2. Non-voluntary end-of-life decisions……………………………………………..43 2.3. Should we have a conscious right to die?..............................................................50

Conclusion……………………………………………………………………………...…….57 Annex 1………….……………………………………………………………………...…….59 Bibliography…………………………………………………………………………………..60

3

List of Abbreviations (in alphabetical order) ANH - Artificial Nutrition and Hydration DNR - Do Not Resuscitate ECHR - European Court of Human Rights GMC - General Medical Council (in United Kingdom) IVE - Involuntary Euthanasia NVAE - Non-Voluntary Active Euthanasia NVPE – Non-Voluntary Passive Euthanasia PAS - Physician-Assisted Suicide PVS - Persistent Vegetative State VAE - Voluntary Active Euthanasia VPE - Voluntary Passive Euthanasia

4

Introduction Nowadays, one can frequently hear debates around the topic of euthanasia and PhysicianAssisted Suicide (hereinafter PAS) in mass media. Some may frown at this idea, by considering just the outcome - death, which lies in a dimension of unknown and is therefore frightening, some welcome it, even without knowing much about the whole complex issue. In my opinion there is no easy answer to this debate, and it may be, that ultimately, one can only perceive the grandness of the issue, when it hits home, as the discussions on questions on life and death, the ideas and reasoning, may fade away when it will come to the actual experience, and you may not always foresee how will you act, in my view. Still however, let us try to proceed forward, and see where it will take us. Euthanasia, translating from the Greek as a “good death,” 1 in its broadest concept, is the practice of ending patient's life, in view that it is for the higher good of that person to die. “How and why would it be better for a patient to die?” - can be asked, “does it not defeat the purpose of medical institution in the first place?” A quick answer that can be given, is that the responsibility of a physician is surely to protect patient's health and life, as well as possible, and not vice versa, however, not all conditions can be cured. In some cases a terminally ill patient may decide to die, as he knows that soon a horrible death will be upon him, in sense that there will be a certain period of great physical and psychological suffering for him, and thus he reasons, that it is better to die sooner, but peacefully. In other cases a person may be left in a Persistent Vegetative State (hereinafter PVS), without any prospect for recovery, but as the medical techniques and equipment become increasingly more advanced, it is possible to keep such patient's vital bodily functions operational, for an extremely longer period of time than he would have otherwise lived without the cutting edge medical interference, and thus may come a time for the question, if it is really in the best interest of a patient to keep him on life support machine any longer.

Originally, the Hippocratic Oath declared, that no one can be given deadly medicine or advice that may cause death. 2 That has been reasoned upon many centuries ago however, when

1 Mavroforou, A., Michalodimitrakis, E. “Euthanasia in Greece, Hippocrates' birthplace.” European Journal of Health Law (vol.8, no.2, 2001): 157. 2 “Hippocratic Oath.” Wikipedia, The Free Encyclopedia. Updated - 3 Apr. 2006. Retrieved - 4 Apr. 2006 .

5

medical care has been quite primitive, in comparison with the present day level of sophistication, and it was probably impossible to sustain a patient in a PVS state for a long time, if at all, or to provide a palliative care of much significance, if any, to a critically ill person. Therefore one should not have waited too long for his death to come, at that time, but as human civilization progresses and gains higher grounds in the medical area, it is reasonable for the physician's pledge to receive an update as well, and thus the modern version of Hippocratic Oath announces now, that “[i]f it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.” 3

Though there exists a strong opposition to the pro-right-to-die movement, and rightfully so, which campaigns for the practices of PAS and/or Voluntary Active Euthanasia (hereinafter VAE) to be given legal status in states where they are prohibited, there is no doubt that the debates on the issue become more active, and they must not be silenced, so as to for an assisted death to remain to be practiced without reporting that to a public. The argument on which to contemplate about, is that the polemic should be on “how best to regulate what doctors have always done, and what they will probably always do. The choice is not between having euthanasia, and not having it, but letting it stay underground, and trying to make it visible.” 4 The study shows, 5 that in the United Kingdom (hereinafter UK) in year 2005, physicians in secret have assisted the deaths of about 3,000 people, where in about 1/3 of cases it is believed that a patient has himself asked for the death, - which has resulted in the voluntary euthanasia or assisted suicide, and in remaining 2/3 of cases, patients did not explicitly request for the death to take place, - non-voluntary euthanasia. Though deaths by the illegal practices in this report constitute only about 0.5% of all the cases of mortality in the country, it clearly shows, that though these practices may get doctors into big trouble, they nevertheless hold it at their disposal. And as these deaths were not reviewed by the public officials and could not be regulated, it is really impossible to tell, if all of these people's deaths were really for their highest good, and if all other options were undoubtedly exhausted, in order for the ultimate one to be resorted to. 3 Lasagna, L. “Hippocratic Oath -- Modern Version.” Public Broadcasting Service (PBS). Updated Mar. 2001. Retrieved - 4 Apr. 2006 . 4 Magnusson, R. S. “Euthanasia: above ground, below ground.” Journal of Medical Ethics. Updated 11 Aug. 2003. Retrieved - 10 Apr. 2006 . 5 Boseley, S. “Euthanasia: doctors aid 3,000 deaths.” Guardian Newspapers Limited. Updated - 18 Jan. 2006. Retrieved - 25 May 2006 .

6

The reason I have chosen to write thesis on this highly debatable and controversial subject, is because I myself had an experience of separation with my family member, who became terminally ill, and shortly before dying, attempted to commit a suicide, not an assisted one, but a self-suicide. Even though the suicide attempt has failed, it most definetely hastened the death. That was done because of an unbearable suffering, pain and knowing that the illness cannot be cured, and it is only a matter of time before you will die.

With the presentation of current thesis, I would like to make a subtle matter on life and death in medical situations, a little bit more clear to a reader, by means of displaying important decisions that have been made in relation to the assisted death practices, along with my own reasoning. And perhaps the information found here, might be of assistance to someone at some point of life, if that would happen to be so. Here I am not going to postulate that this research is to answer the ultimate question on “how it must be done” or “what is right,” as the considerations in favor, or against, the assisted suicide and euthanasia are closely intertwined with each one's own ethical, medical and religious perspectives, and it well may be that my perspectives are that of a minority. Honestly, I cannot tell how I would act myself, or feel like acting, so that my conscience would be clear in different given situations, if I were a real-life medical practitioner, or what would be my outlook if I were to happen to find myself in a difficult medical condition, because what is presented in this work does not come from me as being someone who has been closely dealing with such issues for many years, and being present at the deaths or nearing death situations on a regular basis. What is being presented in the current paper, can be constituted as the “legal common sense reasoning,” which I hope is reasonable.

The current paper is divided into two parts: the first part will discuss the various types of endof-life practices, demonstrate relevant cases and present arguments for supporting and opposing sides of the issue. The second part will analyze and consider if these practices of putting patients to death might be reasonable for implementation in a country having no accordant legislation, on example of Latvia, or if existing PAS/euthanasia legislation, where these practices are allowed, should be amended.

7

I. The Debate around Euthanasia and Physician-Assisted Suicide 1.1. Physician-assisted suicide Physician-Assisted Suicide (hereinafter PAS), which currently is legal in the state of Oregon in the United States (hereinafter US), the Netherlands, Belgium and Switzerland, 6 is a practice of voluntary ending one's own life, with a help of a willing to participate in this process physician, who prescribes/furnishes patient a lethal agent, a deadly drug cocktail for example, which patient administers/takes himself, or where a doctor aids his patient by providing him with a death-dealing device, such as Jack's Kevorkian needle inserting machine “Thanatron” and the gas mask “Mercitron.” 7

Jack Kevorkian Jack Kevorkian, through his controversial and bold work became the most well-known promoter of PAS in the US, where he practiced assisted suicide in the state of Michigan, and helped around 130 people to die that way, before being convicted for substantial prison term in 1999, for the 2nd degree murder and the use of federally controlled substance, 8 after performing voluntary active euthanasia on the 52-year-old Thomas Youk on 17th September 1998, who has been suffering from the Lou Gehrig's Disease, which “gradually weakens nerves to muscles, causing difficulty in breathing, paralysis, and finally death,” 9 whose death Mr. Kevorkian has videotaped, and allowed it to be aired on the CBS's “60 Minutes” television show. Prior to this case of euthanasia, Mr. Kevorkian was tried numerous times for assisting in suicides, but was always set free. On 1st September 1998, however, Michigan's second law, first one was enacted in 1993 but expired a year later, 10 banning assisted suicide went into effect, and probably that is why Jack Kevorkian decided to perform euthanasia - a spectacular end of his practice. 11

6 Humphry, D. “Assisted Suicide Laws Around the World.” Euthanasia Research & Guidance Organization. Updated - 1 Mar. 2005. Retrieved - 3 May 2006 . 7 “Jack Kevorkian.” Wikipedia, The Free Encyclopedia. Updated - 14 Apr. 2006. Retrieved - 17 Apr. 2006 . 8 Humphry, D. “Dr. Jack Kevorkian.” Euthanasia Research & Guidance Organization. Updated - 8 Apr. 2006. Retrieved - 20 Apr. 2006 . 9 “Thomas Youk.” Focus on ALS. Updated - 6 Apr. 2006. Retrieved - 20 Apr. 2006 . 10 “Assisted Suicide and Euthanasia in Michigan.” The New England Journal of Medicine. Updated 22 Sep. 1994. Retrieved - 24 Apr. 2006 . 11 “Chronology of Dr. Jack Kevorkian's Life and Assisted Suicide Campaign.” Public Broadcasting

8

While no doubt, that Mr. Kevorkian's cause has been a noble one, with no selfish motives, and he surely must have helped certain critically ill people to die in peace, what has been disturbing in Mr. Kevorkian's assisted suicides, in my opinion, is that around 60% of the people he helped to die, were not terminally ill, and eleven people had backgrounds of depression, alcohol/drug use, and in some instances his patients had no identifiable medical issues. 12 This fact, clearly puts Jack Kevorkian in line of fire of the arguments against PAS/euthanasia, permitting which, is argued: −

would open door for non-critically ill people to die, and expose vulnerable citizens to possible abuse, - the “slippery slope” argument. As Dr. K. F. Gunning have put it, “[o]nce you accept killing as a solution for a single problem, you will find tomorrow hundreds of problems for which killing can be seen as a solution[;]” 13

−

consequently the value of human life will “cheapen,” and with passage of time even the Involuntary Euthanasia (hereinafter IVE) may be performed on patients against their will or without giving a chance to express their view on the matter;

−

practice of putting patients to death will hinder medical research and advancement, as it would be easier and more cost effective, to just let the patients pass away, and the incentive to develop new and better cures for critical situations, will wither away;

−

practice will discredit the medical profession and the trust of patients in it, will be broken, as the medical practice will be perceived not as relieving one from his problem, but eliminating a patient altogether, thus there will be an impression for one who seeks medical treatment, that his condition would not be considered with full and outmost concern.

The case of Jack Kevorkian is not the only one in regards to suicide assistance offerings made to a non-terminally ill people. The most unique example would be the case with Switzerland, where even the non-physician’s can assist people in a suicide, decided to be carried out for whatever reason, and be free from the prosecution, as long as there were no selfish motives in Service (PBS). Updated - not known. Retrieved - 24 Apr. 2006 . 12 Taylor, S. J. “"Death with dignity" for people who are not dying?” Syracuse University: Center on Human Policy. Updated - Apr. 2000. Retrieved - 3 May 2006 . 13 “Arguments against Euthanasia.” BBC (British Broadcasting Corporation). Updated -10 Mar. 2004. Retrieved - 5 Apr. 2006 .

9

assistance of a suicide. 14 However, for a physician to prescribe a lethal medicament, patient must have a medical indication. 15 Another distinctive case with Switzerland is, that unlike anywhere else, foreigners are allowed to be assisted in their suicide in the country, which has resulted in “death tourism,” with the help to outlanders being offered by one of the several Swiss right-to-die groups, “Dignitas,” 16 which helps non-terminally people to die as well, and aspires to be able to assist deaths of mentally ill patients also, but not however depressed people, like happened in two cases of Chabot and Brongersma in the Netherlands, which will be discussed further. Ludwig Minelli, 17 the founder of Dignitas, believes that each individual must be able to control his own life, and if it would be one's wish, at some point of life to choose death, one must be able to exercise that choice and be offered sincere help. Because otherwise, if a person is really determined to carry out a suicide and cannot be legally assisted in that, he will do it anyway by himself, and as Mr. Minelli have put it, such a person might be left in a PVS state due to a badly performed suicide, or might need several attempts before finally achieving his goal, which has been the case with Mr. Minelli's school friend, who was diagnosed as being a schizophrenic, and who during her lucid moments of existence tried to kill herself, first - by cutting throat, then stabbing herself in the stomach, and after that has failed, the last and successful attempt, has been effected by drowning. That, in addition to making a person suffer physically, surely puts the one who is trying to kill himself and people close to him on a psychological anvil as well, but if it were possible to advise such a person on a methods how he can die, and add a pinch of personal human warmth and compassion to it, it may well be, that after all one will choose life to death, like did one Mr. Minelli's 21-year-old client, who needed only Minelli's offering to look into his telescope, to aspire to live. 18

As has been reported by the US Public Health Service, “[i]njurious suicide attempts by

14 Schwarzenegger, C., Summers, S. J. “Criminal Law and Assisted Suicide in Switzerland.” Rechtswissenschaftliches Institut der Uni Zürich. Updated - 3 Feb. 2005. Retrieved - 29 Mar. 2006 . 15 “A date with death.” Times Online. Updated - 16 Apr. 2006. Retrieved - 4 May 2006 . 16 Spooner, M. H. “Swiss irked by arrival of "death tourists".” Canadian Medical Association Journal. Updated - 4 Mar. 2003. Retrieved - 11 Apr. 2006 . 17 “A date with death.” Times Online. Updated - 16 Apr. 2006. Retrieved - 4 May 2006 . 18 Ibid.

10

adolescents are over 100 times more frequent than completed suicides.” 19 While I have not come across such statistics for adult people, and though I presume that being a mature person gives one much more reasoning faculty on how better to carry out a suicide, if that is the main reason why do suicide attempts fail, I still imagine, looking at numbers for adolescents, that numbers of injurious failed suicides would still prevail over successful ones, for adults as well. It is also interesting to look at the analysis, showing, that out of the all non-fatal injuries treated in the emergency departments of the US hospitals, 60% were considered to be probably caused by suicide attempts, 10% of injuries were attributed to possible suicide attempts and in 30% of cases the reason was not clear or not recorded. 20 Looking at these statistics, the misfortune of Mr. Minelli's school friend, and the prospect of desire to live again, thanks to a helping hand that is being given by the suicide assistants themselves, all that certainly makes a point in favor of legalizing PAS, in my view.

Wertheim In the Netherlands, the country which is most liberal on the matter of the right-to-die issues, the legal guidelines for assisted suicide and euthanasia were set by the case that took place in 1981. The case involved Ms. Wertheim, a 76-year-old euthanasia activist, who assisted death of the ill 67-year-old woman. Court, which found Ms. Wertheim guilty, and gave her sentence of two weeks house arrest, along with conditional six months sentence, subject to a year of probation, 21 has set the following requirements, which if followed, would free one from prosecution on charges of wrongdoing: −

patient must be in an enduring and unbearable suffering, either physical or mental;

−

patient has continuously expressed his wish to die, and it is his voluntary decision;

−

patient is fully informed about his condition, has weighted everything, and there exists no alternatives to alleviate his condition;

−

patient's death would not inflict any unnecessary suffering on others.

In regards to a physician, who is participating in this process, the following conditions must

19 Borowsky, I. W., Ireland, M., Resnick, M. D. “Adolescent Suicide Attempts: Risks and Protectors.” Pediatrics: Official Journal of the American Academy of Pediatrics. Updated - Mar. 2001. Retrieved - 7 May 2006 . 20 Brickman, A. L., Mintz, D. C. “Datapoints: U.S. Rates of Self-Inflicted Injuries and Suicide, 19921999.” Psychiatric Services. Updated - Feb. 2003. Retrieved - 9 May 2006 . 21 Smies, J. T. “The legalization of euthanasia in the Netherlands.” Gonzaga Journal of International Law. Updated - 14 Jun. 2005. Retrieved - 18 Apr. 2006 . p. 10

11

be met: −

doctor's decision on an assistance, may not be made by him alone;

−

decision to assist, and the assistance itself, must be carefully thought through, and discussed with colleagues and experts.

It also has been decided that a special committee, based on the above mentioned guidelines, is to decide whether cases are to be eligible for prosecution or not, and also, if a case falls out of the frames of the guideline, the committee is to decide whether physician's actions were acceptable or not. 22 Therefore, the case of Wertheim is a very important one, as it laid out a foundation for the rules which made it into the Dutch law on euthanasia and assisted suicide of the year 2002, where the law requires almost the same conditions to be fulfilled, that were considered here (they will be presented in section 1.4 of the present paper).

Chabot and Brongersma In the case of Chabot, 23 a 50-year-old Hilly Bosscher decided to die, due to that after the death of her two children, her life has lost its meaning. Following unsuccessful suicide attempt in 1991, and after Dutch Voluntary Euthanasia Society as well as people she knew, refused to help her in that endeavor, Mrs. Bosscher turned to the psychiatrist Dr. Chabot, who at first has tried to help her by conducting therapies over a two-month period. His patient, however, made it clear that she would make no undertaking to change her outlook on life, and was determined to die. As much as Dr. Chabot was willing to help Mrs. Bosscher, he accepted that no other option would cure her psychological suffering, except death, which she would seek to come even without his assistance, and therefore he finally decided to take part in her assisted suicide. Two lower courts have acquitted Chabot's action “after becoming convinced that Mrs. Bosscher was experiencing long-term psychic suffering that for her was unbearable and unremitting.” 24 The Dutch Supreme Court in 1994, however, found Dr. Chabot guilty, as there has been no personal examination of his patient by other physicians, and thus the death of Mrs. Bosscher may not have been necessary. No punishment was imposed on Chabot, though, except a reprimand from the Amsterdam Medical Disciplinary Court.

22 Downie, J. “The Contested Lessons of Euthanasia in the Netherlands.” Health Law Institute: Health Law Journal. Updated - 13 Nov. 2003. Retrieved - 18 Apr. 2006 . p. 122 23 Cohen-Almagor, R. “Euthanasia in the Netherlands: The Policy and Practice of Mercy Killing”, 2005, p. 45 24 Ibid. p. 48

12

The second case involved the 86-year-old Edward Brongersma, who experienced an aimless life, as all people that were close to him have died, with that depression being complicated by his past history of being a pedophile and an animosity that people express towards him because of that. Thus he saw no point in being alive and repeatedly expressed his wish to die. Dr. Philip Sutorius, backed up by the second medical opinion, assisted his patient's death in 1998, and at first was acquitted. Appeal's Court has reversed that decision, however, and the Supreme Court upheld that reversal in 2002, reasoning, that being tired of life does not constitute the valid reason for assisted suicide, and that the interpretation of unendurable suffering has been stretched too far in current situation. Like in the previous case, no sentence was given to Dr. Sutorius, as he acted out of compassion, and the case itself was viewed as a test one. 25

The court rulings in these two cases are quite peculiar, in my opinion. Not because physicians were given no sentences to serve, which is understandable, taking in mind that such has been the trait in the Netherlands not to give a serious punishment for helping one to die a good death since 1950s, but because the rulings are seemingly inconsistent. That is, following the Chabot case, we arrive at the conclusion, that described psychological suffering constitutes sufficient grounds for assisted suicide, but in the case of Brongersma, a comparable psychological torment, does not. “Termination of Life on Request and Assisted Suicide (Review Procedures) Act,” 26 a document that must be followed when performing euthanasia and PAS, and which legalized these acts as of 1st April 2002, is silent on the matter whether suffering must be physical or psychological, in order to fall within the law, and only “A guide to the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act” published by the Netherlands Ministry of Foreign Affairs, points out that such matter must be carefully examined and should be consulted with at least two independent practitioners, providing the link to Chabot judgment. 27 Thus, it can be concluded, that non-somatic suffering can be a valid ground for assisted suicide and euthanasia in the Netherlands.

In contrast, Oregon's law on PAS is the most strict one, and the state's “Death With Dignity 25 Ibid. p. 164 26 “Termination of Life on Request and Assisted Suicide (Review Procedures) Act.” Right to Die-NL. Updated - 1 Apr. 2002. Retrieved - 4 May 2006 . 27 “A guide to the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act.” The Netherlands Ministry of Foreign Affairs. Updated - 24 Jul. 2001. Retrieved - 4 May 2006 .

13

Act,” which has been voted on by Oregonian's first in 1994, passing with 51% votes, and in 1997, passing with 60% of votes and finally coming into effect that year, due to an injunction delaying its implementation earlier, 28 provides, that only a competent adult, who is a resident of Oregon and suffers from “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months,” 29 may make the request to be assisted in suicide by a physician.

Oregon is not the only state in the US which has sought to pass legislation in favor of assisted suicide, states of Washington, Michigan, Maine, Hawaii, Connecticut, engaged in similar initiatives, which did not succeed though, but perhaps they will be revived again in future, while other states are working on their own projects. 30 It is also notable to mention Gonzales, Attorney General v. Oregon case, 31 previously known as Ashcroft v. Oregon, but renamed as Ashcroft has been succeeded by the Gonzales. In this case, Attorney General John Ashcroft, in the year 2001, has challenged Oregon's “Death With Dignity Act” by stating, that it is in violation of the Controlled Substances Act, as prescription of controlled substances for the assisted suicide does not constitute a “legitimate medical purpose,” 32 and thus he issued the Interpretive Rule which has threatened to prosecute any Oregon's doctor practicing PAS. Opposition to this development has challenged Attorney General, and the District Court including the Ninth Circuit Court of Appeals, both have invalidated Ashcroft's Interpretive Rule, as he was found to be in no position to make medical policies. Attorney General has appealed, but on 17th January 2006, the US Supreme Court affirmed decision of the lower court.

Washington v. Glucksberg and Vacco v. Quill In 1997, the US Supreme Court has decided two cases that challenged ban of individual states on the practice of the assisted suicide. The first case was brought by Harold Glucksberg along with three more fellow physicians, three gravely ill patients and the organization 28 “FAQs about Physician-Assisted Suicide.” Official Web Site for the State of Oregon. Updated - not known. Retrieved - 4 May 2006 . 29 “Legislative Statute - Death w/ Dignity.” Official Web page for the State of Oregon. Updated 1994. Retrieved - 4 May 2006 . 30 “Status of assisted-suicide initiatives.” USA Today. Updated - 17 Jan. 2006. Retrieved - 9 May 2006 . 31 “Gonzales, Attorney General, Et al. v. Oregon Et al.” Supreme Court of the United States. Updated - 17 Jan. 2006. Retrieved - 9 May 2006 . 32 Ibid. p. 35

14

“Compassion in Dying”, challenging prohibition on thr assisted suicide of the state of Washington, on grounds that the ban violated Due Process and Equal Protection clauses of the Fourteenth Amendment, and arguing that there is “liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference,” 33 and that the right to choose to hasten one's death by taking a lethal agent, is as strong as the right to refuse unwanted medical treatment. The US Supreme Court first went on to say, that in a long legal history, traditionally such right was almost always opposed to, and thus it cannot be considered as a fundamental one, protected by the US Constitution. The court continued, and finally decided the case in favor of the state of Washington by ruling, that the state has an “unqualified interest” 34 in protecting human life, and by forbidding an assisted suicide it protects vulnerable groups of citizens from possible abuse and preserves integrity of medical profession. Thus the state is acting legitimately.

The second case was brought by Timothy Quill in company with two more medical practitioners and three severely ill patients, claiming that by banning assisted suicide, the state of New York violated Equal Protection clause of the Fourteenth Amendment to the US Constitution, as although “it would be consistent with the standards of their medical practices to prescribe lethal medication for mentally competent, terminally ill patients who are suffering great pain and desire a doctor's help in taking their own lives, they are deterred from doing so.” 35 Prior to the case going before the US Supreme Court, Second Circuit Court held, that due to the fact of differential treatment, which is “not rationally related to any legitimate state interests,” 36 being given to patients wishing to be removed from life support systems, and terminally ill patients wishing to self-administer lethal agent, the sate of New York does violate Equal Protection clause. The US Supreme Court disagreed, by referring to the case of Washington v. Glucksberg, that there is no fundamental right to thr assisted suicide, and that there is an important and objective distinction between letting and making a patient die. As in one instance patient dies from a natural causes, but in the second, he is killed by a lethal drug. Though the line may not always be clear in discernment of the two acts, as intent to discontinue life support treatment might or might not be death, it is not required to be clear-

33 “Washington v. Glucksberg, 521 U.S. 702 (1997).” Medical and Public Health Law Site. Updated 16 Oct. 2004. Retrieved - 24 Apr. 2006 . 34 Ibid. 35 “Vacco v. Quill, 117 S. Ct. 2293 (U.S. 1997).” Medical and Public Health Law Site. Updated - 16 Oct. 2004. Retrieved - 24 Apr. 2006 . 36 Ibid.

15

cut, the court held. The reasons for the state to distinguish between the cause and effect are legitimate here, and lie in the area of state's public policy, as it wishes to preserve healer's role of physicians, protect vulnerable members of society from insensitivity, prejudgment or other pressures for their lives to be ended prematurely, and from possible drift towards euthanasia.

1.2. Non-voluntary active euthanasia Non-Voluntary Active Euthanasia (hereinafter NVAE) is the practice of putting to death a patient who has no capability to express himself. These could be critically ill/disabled infants/babies or gravely ill incompetent adults, for example, with condition of advanced dementia, and such a patient is being put to death in a belief, that it is in his best interests, for the death to take place instead of being subjected to a living hell. The decision to end life is made either solely by a physician and/or by patient's guardian.

In the Netherlands, where euthanasia is legal but the request for it must come from the patient, the law does not address NVAE as of now, with a guidelines for such cases being only in consideration, 37,38 two court cases (which are laid out below), however, have already established certain rules when NVAE may be performed, which also resulted in development of the “Groningen Protocol” 39 in 2002, that has been put together by doctors and district attorney, and which basically repeats court decided conditions which are to be met when performing NVAE.

Kadijk and Prins In 1995, two cases were decided on the matter of putting to death severely impaired newborns. Kadijk case involved a 25-day-old baby suffering from the Pateau Syndrome, which results in a severe bodily defects/disorders and mental deficiency. Such condition can be summarized as a hopeless one, and as there was evidence that 90% of such babies die within their first year, it has been decided by the physician to give the baby a lethal injection,

37 “Dutch ponder 'mercy killing' rules.” CNN News. Updated - 2 Dec. 2004. Retrieved - 11 May 2006 . 38 Smith, W. J. “Killing Babies, Compassionately.” Weekly Standard. Updated - 27 Mar. 2006. Retrieved - 5 Apr. 2006 . 39 Verhagen, E., Sauer, P. J. J. “The Groningen Protocol - Euthanasia in Severely Ill Newborns.” The New England Journal of Medicine. Updated - 10 Mar. 2005. Retrieved - 11 May 2006 .

16

considering the “explicit and earnest desire of the parents” 40 to go for that. Prins case concerned a 3-day-old infant impaired by the Spina Bifeda and Hydrocephalus conditions, with a life expectancy of no more than six months. The newborn was also administered a lethal injection, on request of the parents. In both cases court upheld a defense of necessity, 41 and though request for euthanasia needs to be made by a patient, as has been laid out by the Wertheim case, doctors were decided to be acquitted as their actions were based on the following conditions: −

it was determined beyond doubt, that the conditions of newborns were hopeless, and there could have been no other way to alleviate their suffering, except putting them to death;

−

requests to terminate babies lives, came from their parents, in an explicit form and were well considered;

−

doctors have acted according to scientifically responsible medical judgment, within the norms of medical ethics, and babies were put to death in a careful manner. 42

In other parts of the world, where active euthanasia is illegal, NVAE undoubtedly constitutes a serious offence, depicted by the following case.

Robert and Tracy Latimer The case took place in Canada, where in 1993, Robert Latimer has put to death his daughter, Tracy Latimer. 43 Tracy was a 12-year-old paralytic, who could not talk, feed herself or walk, living at level of a 3-month-old baby. Occasionally suffering from great pains, she however responded to her surrounding environment, sometimes smiled, and was fond of certain things. Robert has decided to put an end to the miserable condition of his daughter, and performed an act of “compassionate homicide,” 44 by extending exhaust hose into interior of his car, where he placed Tracy. Mr. Latimer went through two trials and was given life sentence, for seconddegree murder, with parole possible after 10 years. 40 “Report - Inquiry into Euthanasia Laws Bill 1996.” The Parliament of the Commonwealth of Australia: Senate Legal and Constitutional Legislation Committee. Updated -19 Nov. 2003. Retrieved - 06 Apr. 2006 . p. 99. 41 Ibid. 42 Downie, J. “The Contested Lessons of Euthanasia in the Netherlands.” Health Law Institute: Health Law Journal. Updated - 13 Nov. 2003. Retrieved - 18 Apr. 2006 . p. 126-127 43 O'Malley, M., Wood, O. “Indepth: Robert Latimer.” CBC News. Updated - 17 Dec. 2003. Retrieved - 18 Apr. 2006 . 44 Ibid.

17

1.3. Involuntary euthanasia Involuntary euthanasia happens when it is performed against will of a competent patient, or when such a patient is put to death without ever being consulted on that matter, and thus it may be even inappropriate for such an act to be called euthanasia at all, and it can be constituted as a murder, instead.

During my research, I have not come across any known modern cases that would involve this type of euthanasia, and therefore I will outline the practice of putting patients to death during the Nazi rule, where among other types of euthanasia, IVE took place as well.

Nazi euthanasia program, aimed at building the perfect Aryan race, and believed to have caused deaths of more than 100,000 people during period of 1939-1945, 45 can be traced back to the year 1895 when the physician Alfred Plötz first used concept of “racial hygiene,” 46 and Alfred Jost has pondered on a right to die and a concept of merciful death, who both were influenced by the Charles Darwin's natural selection theory. Then in 1920 came the influential publication by Alfred Hoche and Karl Binding. Hoche, most importantly, argued that there are no explicitly defined ethical standards in the medicine and that these standards depend on peer opinion, which is relative and can be altered as conditions change. He also presented concept of “mental death,” 47 and argued that killing a mentally dead people cannot be wrong, especially so, when society is under severe economic burden. Karl Binding, notably, presented three categories of people whose life is not worth living, neither on legal, social, ethical or religious grounds: −

those who cannot be cured, because of an illness or injury, and in understanding of their condition have express wish to die;

−

“incurable idiots,” 48 who are indifferent to life and death, and can be asked to be put to death by their guardians;

45 Wright, W. “Peter Singer and the Lessons of the German Euthanasia Program.” Issues in Integrative Studies (no. 18). Updated - 2000. Retrieved - 7 Apr. 2006 . p. 1 46 Biesold, H. “From Social Darwinism to National Socialism.” Gallaudet University Press. Updated 11 Jun. 2004. Retrieved - 11 May 2006 . 47 Wright, W. “Peter Singer and the Lessons of the German Euthanasia Program.” Issues in Integrative Studies (no. 18). Updated - 2000. Retrieved - 7 Apr. 2006 . p. 32 48 Ibid. p.30

18

−

comatose ill patients, who cannot be helped and have or would have had requested to be put to death if were conscious.

In 1934, “A Law for the Prevention of Hereditarily Diseased Progency” 49 has been passed, which required compulsory sterilization of patients with such hereditary diseases as epilepsy and schizophrenia.

The euthanasia program, which began in 1939 was not based on a law, idea of which Hitler has rejected probably to keep it low-profile, but on his personal authorization given to Karl Brandt and Philipp Bouhler, permitting them to perform euthanasia on patients, who have been carefully diagnosed and believed to be suffering from an irreversible illness. 50 Children's euthanasia program which started about half a year earlier before the authorization document was signed, and commencing with Knauers 51,52 family requesting for their baby, born blind with one leg missing and a part of his arm too, to be euthanized, was performed in special children's wards on a basis of assessing recorded form information, provided on a newborns and children under 3-years-old, by midwives and physicians, who were looking for physical and mental deformities/abnormalities in children. Euthanasia has been performed through the administration of widely used medications in high dosages.

After Hitler has authorized euthanasia, adults were added to the program as well, and it received a codename “Aktion T-4,” 53 name given after its administrative location at Tiergartenstrasse 4, Charlottenberg. Like it has been done previously, euthanasia victims were also chosen on the basis of form information being analyzed by experts. Word “analysis” however, would be quite an overstatement here, as it amounted to no more then ticking checkboxes beside an overview of patient's condition.

In one of the locations where euthanasia program has been executed, the psychiatric

49 Ost, S. “Doctors and Nurses of Death: A Case Study of Eugenically Motivated Killing under the Nazi ‘Euthanasia’ Programme.” Liverpool Law Review (vol.27, no.1, 2006): 10. 50 Ibid. p.13 51 Ibid. p.11 52 Smith, W. J. “Killing Babies, Compassionately.” Weekly Standard. Updated - 27 Mar. 2006. Retrieved - 5 Apr. 2006 . 53 Ost, S. “Doctors and Nurses of Death: A Case Study of Eugenically Motivated Killing under the Nazi ‘Euthanasia’ Programme.” Liverpool Law Review (vol.27, no.1, 2006): 13.

19

institution in Kaufbeuren, Bavaria, it has been found that both adults and children were kept in horrible unsanitary conditions, and have been killed either by being given lethal injections, poisoned food, which killed a person in period of 2-5 days, or through a starvation, either slow or rapid, which could take up to more then 3 months, and which was considered to be the most economical approach, as a weakened by malnutrition person needs only a fraction of lethal medication to be put to death.

It is interesting to note, that Catholic nuns, have too participated in the killings, some because of perhaps genuine conviction of accomplishing the right cause, while others doing that because they had to obey the orders, which they were trained to follow without questioning, but it were due to the protests of a high-ranked Church members, the euthanasia program has ended, but still however, remained to be practiced in secret till the takeover of Germany. 54

Such is the grave overview of the massive injustice inflicted upon a vulnerable members of German society under the Nazi rule, which was done out of consideration to preserve the purity of the race and not to spend resources on worthless freeloaders, with compassion being intended only at the back of a mind, if at all.

1.4. Voluntary active euthanasia This type of euthanasia comes about with the request by a rationally reasoning patient, whose life is made unbearable due to some incurable condition, such as terminal illness, and thus the patient wishes to die in dignity, and asks to be administered a lethal agent, as for patient to do that himself is impossible or is very hard, due to the deterioration of motor functions. Currently, this type of euthanasia is legal only in two countries, the Netherlands, as of 1st April 2002 and in Belgium, as of 28th May 2002.

Unlike the Belgium, which had no significant history on the practice of euthanasia prior to its almost simultaneous legalization with its neighbor, in the Netherlands the practice has been de facto legal since the mid-twentieth century, where the first case of euthanasia took place in 1952, when a doctor have put to death his brother, who suffered from an advanced tuberculosis and wished to die. The doctor was tried and found to be guilty, but however, was

54 Ibid. p.14-20

20

given only one year probation sentence. 55 Another case in 1969, involved a 21-year-old comatose woman, Mia Versluis, whose doctor wanted to get her off life support system, her father objected however, and though artificial life support has not been removed, court imposed a 450 US dollar equivalent fine on the doctor, saying that before the withdrawal of life support equipment, other doctors and patient's family, are to be consulted with. 56 Next important case took place in 1973, when doctor Ms. Postma have on request ended life of her 78-year-old ill mother. At the court hearing it was agreed, that a common medical practice in the country had an outlook, that a patient's life should not be stretched to its end, and therefore patient can be given life-shortening medication for alleviation of his suffering, if the following conditions are met: −

patient is cureless, and suffers either physically or mentally;

−

patient has expressed his wish to die;

−

action of putting patient to death is performed by a physician.

Dr. Postma was given one week of conditional jail sentence and one year probation, as she has administered an instantaneously lethal agent to her mother. 57

Schoonheim and Pols The first case, reaching the Dutch Supreme Court, took place in 1983. The case involved doctor Schoonheim, who has performed euthanasia on the 95-year-old patient, who repeatedly asked for his death. On case reaching to the Supreme Court, it has been found that no illegal actions were performed by the doctor, as he followed the guidelines set in the Wertheim case, but the court however remanded case to the lower instance, to determine if doctor's actions were justified under the defense of necessity, which Schoonheim argued to be the case, meaning, that he found himself in a conflict of duties, - preservation of life and alleviation of patient's suffering. Court examined that issue and found, that doctor successfully resolved his conflict of obligations, by following responsible medical opinion. Therefore it follows from the decision, that physicians gained another backing when performing euthanasia - defense of necessity. However, as has been determined in Pols case, the second one to reach the Dutch Supreme Court, euthanasia cannot be interpreted as a commonplace medical practice, and in failing to follow guidelines set in the Wertheim case, - by not consulting with colleagues, 55 Smies, J. T. “The legalization of euthanasia in the Netherlands.” Gonzaga Journal of International Law. Updated - 14 Jun. 2005. Retrieved - 18 Apr. 2006 . p. 7 56 Ibid. p. 8 57 Ibid. p. 9

21

there can be no defense of necessity. 58

Three years later after the Wertheim case, which set guidelines for assisted suicide and euthanasia, in 1984, the Executive Board of the Royal Dutch Medical Society published a report, featuring five requirements, following which would make euthanasia acceptable. These conditions are basically the same as set in the Wertheim, except missing the clause requiring, that no alleviation of suffering can be achieved, in order for death to be admissible. 59 That, has once again reaffirmed acceptability of euthanasia, and made the practice a bit more relaxed, by allowing more patients to be eligible for it. These five conditions, and a sort of compromise solution between having the “unalleviatable suffering” clause from the Wertheim guidelines, and having no clause at all, have made it into the euthanasia and PAS law of 2002, setting the following requirements for a physician: “a. holds the conviction that the request by the patient was voluntary and wellconsidered, b. holds the conviction that the patient's suffering was lasting and unbearable, c. has informed the patient about the situation he was in and about his prospects, d. and the patient hold the conviction that there was no other reasonable solution for the situation he was in, e. e. has consulted at least one other, independent physician who has seen the patient and has given his written opinion on the requirements of due care, referred to in parts a - d, and f. has terminated a life or assisted in a suicide with due care.” 60

While the Wertheim guidelines, though not being explicit about it, placed a decision if suffering can be relieved by a means other then death, on a physician, this presumption I draw by reasoning that a medical expert should be more competent on such matter, the present law, in my view, effectively eliminates a need to go through a possibly existing alternative way to alleviate misery, altogether. As this matter is left to be determined by a patient himself, by exercising his own “conviction.” 58 Ibid. p. 15-18 59 Ibid. p. 18 60 “Termination of Life on Request and Assisted Suicide (Review Procedures) Act.” Right to Die-NL. Updated - 1 Apr. 2002. Retrieved - 4 May 2006 . p. 2

22

Diane Pretty The following is an important case that took place in the UK, where both VAE and PAS are currently illegal, that involved Diane Pretty. In 1999, 41-year-old Diane Pretty was diagnosed with a degenerative illness condition, which soon has physically incapacitated her and confined to a wheelchair, her intellectual capacity remained unaffected however. As this incurable motor neuron disease progresses, death usually takes place due to a severe weakness of throat muscles and muscles associated with breathing, which leads to a respiratory dysfunction and pneumonia. Due to such a miserable condition, which Diane Pretty found herself in, she wanted her husband to be able assist here in suicide, perform VAE - to be correct, when the time was right, as she were not in a state do it by herself. It is illegal to assist suicide in the UK, by Suicide Act of 1961 section 2(1) providing, that “[a] person who aids, abets counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years,” 61 and VAE would be regarded as a murder. Therefore the Director of Public Prosecutions was asked for the undertaking not to prosecute Mr. Pretty if he will help her wife to die. Such undertaking was refused to be given, and turning to the Divisional Court and appealing to the House of Lords, gave no satisfaction to the right Pretty couple was seeking for, either. Brian and Diane Pretty then went to the European Court of Human Rights (hereinafter ECHR) in hope of winning their legal battle there, by arguing that the UK has violated the European Convention on Human Rights, and specifically the articles discussed below. 62,63

It has been disputed, that the Article 2 (Right to life), provided that it is for a person himself to decide as whether to live or not, and that the right to death, then, is equally protected as is the right to life. To which the court answered, that the Article cannot be interpreted as to safeguard anything that is opposite to life, and especially if death comes as a result of another's action, so therefore it even places an obligation on a state to protect human life from 61 English V., Romano-Critchley G., Sheather J., Somerville A. “Human rights and assisted suicide.” Journal of Medical Ethics. Updated - 2002. Retrieved - 10 Apr. 2006 . 62 “Pretty v. The United Kingdom - 2346/02 [2002] ECHR 427 (29 April 2002).” WorldLII. Updated - Mar. 2006. Retrieved - 11 Apr. 2006 . 63 “Case of Pretty v. The United Kingdom [European Court of Human Rights], Application no. 2346/02, Strasbourg, April 29, 2002: Case Summary.” Nightingale Alliance. Updated Sep. 2004. Retrieved - 11 Apr. 2006 .

23

acts that are contrary to one's well-being.

The Article 3 (Prohibition of torture), was brought, as it has been claimed, that the only way for Diane Pretty not to suffer, because of her degrading condition, is for the state to not charge with a criminal offence Mr. Pretty, if he will help his wife to pass away. And that the state, has an obligation not to subject Mrs. Pretty to an inhuman treatment. This interpretation of the Article was refuted by the court, stating, that the UK surely did not ill-treat, and never intended to, Mrs. Diane Pretty, and that the Article 3 had to be viewed in light of the Article 2, which protects human life, and does not permit conduct that would be contrary to the assertion of life. Therefore a state is under no obligation to facilitate death.

The Article 8 (Right to respect for private and family life), was argued to provide an individual with the right to self-determination, which includes the choice to be made whether to end one's own life or not to, but the UK law prevented Mrs. Pretty from exercising this right. The court found, that the state had a reason to interfere in questions of life and death, in order to protect society, and especially its vulnerable members from possible abuses, and thus the UK government has a reasonable justification for such interference.

The Article 9 (Freedom of thought, conscience and religion), it was presented, gave Diane Pretty the right to exercise her belief, that it was in her highest good to be assisted with her death, and that it was unlawful for the state to not let that belief to be acted upon. The court has ruled, that here, applicant basically repeated the argument, which allegedly infringed Mrs. Pretty rights under the Article 8, and that the claim made here, is not of the form, which is protected under the Article 9.

The Article 14 (Prohibition of discrimination), was violated by the UK, applicant declared, because it was not a criminal offence for a person to commit suicide himself, however for the one who is of sound mind, but who is physically incapacitated to be able to commit a suicide without an external help, it is impossible to do. Here the court decided, that the state had a reasonable motive and aim in discriminating between the one's who are physically fit to commit suicide, and the one's who are not, so as to protect the later from a possible exploitation of their helpless condition. Therefore the court found no violations on the side of the United Kingdom. On 3rd May 2002, 24

Diane Pretty was admitted to a hospice. Her condition turned to worse as she developed chest infection, her breathing became difficult, and on 11th May 2002, Mrs. Pretty died. 64

1.5. Voluntary passive euthanasia Voluntary Passive Euthanasia (hereinafter VPE) is the least controversial form of euthanasia, and actually can be considered not to be euthanasia at all, because there is no intention to hasten a patient's death, as it is simply a refusal of a medical treatment by a competent person, which is universally considered to be each individual's right, and under common law, “to provide treatment for a competent adult without his or her consent, or in the face of a valid refusal, would constitute battery or assault and could result in legal action being taken against the doctor,” 65 and therefore a patient's death comes as a result of natural causes and not any kind of interference.

In this thesis, I have decided to make a distinction between the VPE and Non-Voluntary Passive Euthanasia (hereinafter NVPE), though it is possible to merge these two forms together. In my view it is important to discern one's own competent and explicit decision to refuse a medical treatment, either being made while in a difficult medical situation or in a form of prior written will, from that of a substitute decision of a proxy, when no such written will was made ahead of a patient's incapacitation, however well it might be argued by a guardian, that a person expressed his wish not to be kept on a life support apparatus, if impaired.

Written will, constructed for such emergency situations, is generally referred to as an “advance directive” or a “living will,” and is made by a competent person, expressing that person's wish how he is to be treated in a particular medical circumstances, when unable to communicate his preferences verbally. Advance directive, made “on the basis of adequate information about the implications of his/her choice, is legally binding and must be respected where it is clearly applicable to the patient’s present circumstances and where there is no reason to believe that the patient had changed his/her mind.” 66 It must be noted, that not

64 “Diane Pretty: Timeline.” BBC (British Broadcasting Corporation). Updated - not known. Retrieved - 11 Apr. 2006 . 65 British Medical Association, “Withholding and Withdrawing Life-prolonging Medical Treatment: Guidance for decision making”, 2nd Ed., 2001, p. 17 66 “Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making.” General Medical Council. Updated - Aug. 2002. Retrieved 10 April 2006