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

2

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)

3

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

4

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

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Introduction Nowadays, one can frequently hear debates around the topic of euthanasia and Physician-

Assisted 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 <http://en.wikipedia.org/w/index.php?title=Hippocratic_Oath&oldid=46725085>.

6

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 <http://www.pbs.org/wgbh/nova/doctors/oath_modern.html>. 4 Magnusson, R. S. “Euthanasia: above ground, below ground.” Journal of Medical Ethics. Updated -

11 Aug. 2003. Retrieved - 10 Apr. 2006 <http://jme.bmjjournals.com/cgi/content/full/30/5/441>. 5 Boseley, S. “Euthanasia: doctors aid 3,000 deaths.” Guardian Newspapers Limited. Updated - 18

Jan. 2006. Retrieved - 25 May 2006 <http://society.guardian.co.uk/health/story/0,7890,1688609,00.html>.

7

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 end-

of-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.

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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 <http://www.assistedsuicide.org/suicide_laws.html>.

7 “Jack Kevorkian.” Wikipedia, The Free Encyclopedia. Updated - 14 Apr. 2006. Retrieved - 17 Apr. 2006 <http://en.wikipedia.org/w/index.php?title=Jack_Kevorkian&oldid=48433130>.

8 Humphry, D. “Dr. Jack Kevorkian.” Euthanasia Research & Guidance Organization. Updated - 8 Apr. 2006. Retrieved - 20 Apr. 2006 <http://www.finalexit.org/drkframe.html>.

9 “Thomas Youk.” Focus on ALS. Updated - 6 Apr. 2006. Retrieved - 20 Apr. 2006 <http://www.focusonals.com/thomas_youk.htm>.

10 “Assisted Suicide and Euthanasia in Michigan.” The New England Journal of Medicine. Updated - 22 Sep. 1994. Retrieved - 24 Apr. 2006 <http://content.nejm.org/cgi/content/full/331/12/812>.

11 “Chronology of Dr. Jack Kevorkian's Life and Assisted Suicide Campaign.” Public Broadcasting

9

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 <http://www.pbs.org/wgbh/pages/frontline/kevorkian/chronology.html>.

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 <http://thechp.syr.edu/death_with_dignity.htm>.

13 “Arguments against Euthanasia.” BBC (British Broadcasting Corporation). Updated -10 Mar. 2004. Retrieved - 5 Apr. 2006 <http://www.bbc.co.uk/religion/ethics/euthanasia/euth_slipslope.shtml>.

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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 <http://www.rwi.unizh.ch/schwarzenegger/unterlagen/unterlagen/assisted-suicide-Switzerland.pdf>.

15 “A date with death.” Times Online. Updated - 16 Apr. 2006. Retrieved - 4 May 2006 <http://www.timesonline.co.uk/printFriendly/0,,1-531-2121731-531,00.html>.

16 Spooner, M. H. “Swiss irked by arrival of "death tourists".” Canadian Medical Association Journal. Updated - 4 Mar. 2003. Retrieved - 11 Apr. 2006 <http://www.cmaj.ca/cgi/content/full/168/5/600>.

17 “A date with death.” Times Online. Updated - 16 Apr. 2006. Retrieved - 4 May 2006 <http://www.timesonline.co.uk/printFriendly/0,,1-531-2121731-531,00.html>.

18 Ibid.

11

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 <http://pediatrics.aappublications.org/cgi/content/full/107/3/485>.

20 Brickman, A. L., Mintz, D. C. “Datapoints: U.S. Rates of Self-Inflicted Injuries and Suicide, 1992-1999.” Psychiatric Services. Updated - Feb. 2003. Retrieved - 9 May 2006 <http://ps.psychiatryonline.org/cgi/content/full/54/2/168>.

21 Smies, J. T. “The legalization of euthanasia in the Netherlands.” Gonzaga Journal of International Law. Updated - 14 Jun. 2005. Retrieved - 18 Apr. 2006 <http://www.across-borders.com/Articles/Smies/Smies.pdf>. p. 10

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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 <http://www.law.ualberta.ca/centres/hli/pdfs/hlj/v8/euthanasiafrm.pdf>. p. 122

23 Cohen-Almagor, R. “Euthanasia in the Netherlands: The Policy and Practice of Mercy Killing”, 2005, p. 45

24 Ibid. p. 48

13

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 <http://www.nvve.nl/assets/nvve/english/euthlawenglish.pdf>.

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 <http://www.minbuza.nl/default.asp?CMS_ITEM=MBZ418607>.

14

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 <http://egov.oregon.gov/DHS/ph/pas/faqs.shtml>. 29 “Legislative Statute - Death w/ Dignity.” Official Web page for the State of Oregon. Updated -

1994. Retrieved - 4 May 2006 <http://egov.oregon.gov/DHS/ph/pas/ors.shtml>. 30 “Status of assisted-suicide initiatives.” USA Today. Updated - 17 Jan. 2006. Retrieved - 9 May

2006 <http://www.usatoday.com/news/washington/judicial/2006-01-17-states-status_x.htm>. 31 “Gonzales, Attorney General, Et al. v. Oregon Et al.” Supreme Court of the United States. Updated

- 17 Jan. 2006. Retrieved - 9 May 2006 <http://www.supremecourtus.gov/opinions/05pdf/04-623.pdf>.

32 Ibid. p. 35

15

“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 <http://biotech.law.lsu.edu/cases/pro_lic/glucksberg.htm>. 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 <http://biotech.law.lsu.edu/cases/pro_lic/Vacco_v_Quill.htm>. 36 Ibid.

16

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

<http://www.cnn.com/2004/HEALTH/12/01/netherlands.mercykill/>. 38 Smith, W. J. “Killing Babies, Compassionately.” Weekly Standard. Updated - 27 Mar. 2006.

Retrieved - 5 Apr. 2006 <http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=12003>.

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 <http://content.nejm.org/cgi/content/full/352/10/959>.

17

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 second-

degree 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 <http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/1996-99/euthanasia/report/report.pdf>. 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 <http://www.law.ualberta.ca/centres/hli/pdfs/hlj/v8/euthanasiafrm.pdf>. p. 126-127

43 O'Malley, M., Wood, O. “Indepth: Robert Latimer.” CBC News. Updated - 17 Dec. 2003. Retrieved - 18 Apr. 2006 <http://www.cbc.ca/news/background/latimer/>.

44 Ibid.

18

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 <http://www.units.muohio.edu/aisorg/pubs/issues1/restricted/032/paper.pdf>. p. 1

46 Biesold, H. “From Social Darwinism to National Socialism.” Gallaudet University Press. Updated - 11 Jun. 2004. Retrieved - 11 May 2006 <http://gupress.gallaudet.edu/Chexcerpt.html>.

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 <http://www.units.muohio.edu/aisorg/pubs/issues1/restricted/032/paper.pdf>. p. 32

48 Ibid. p.30

19

− 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 Knauers51,52 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 <http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=12003>.

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.

20

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

21

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 <http://www.across-borders.com/Articles/Smies/Smies.pdf>. p. 7

56 Ibid. p. 8 57 Ibid. p. 9

22

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 <http://www.nvve.nl/assets/nvve/english/euthlawenglish.pdf>. p. 2

23

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 <http://jme.bmjjournals.com/cgi/content/full/28/1/53>.

62 “Pretty v. The United Kingdom - 2346/02 [2002] ECHR 427 (29 April 2002).” WorldLII. Updated - Mar. 2006. Retrieved - 11 Apr. 2006 <http://www.worldlii.org/eu/cases/ECHR/2002/427.html>.

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 <http://www.nightingalealliance.org/pdf/pretty_v_uk.pdf>.

24

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,

25

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 <http://news.bbc.co.uk/1/hi/health/1983562.stm>. 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 <http://www.gmc-

26

everything can be covered by an advance directive, and namely one generally cannot:

− disallow basic nursing care, such as personal hygiene, and basic comforting drugs, such as

pain killers;

− refuse to be orally given food and drink;

− ask for unlawful acts to be performed, such as active euthanasia or PAS, where illegal;

− demand medical care, that health professionals would consider inappropriate.67

In addition to being a written document, an advance directive can also be a verbal one, and it

also possible to assign a person to make all medical decisions instead of you, if you were to

become incompetent, and this is called as the “durable power of attorney.”68 Word “durable”

means, that the power given to the guardian will not be invalidated with principal's

incapacitation, which can be the case with other types of “power of attorney.”69

As the matter of requesting euthanasia in an advance directive has been touched here, I would

like to point out that under the Dutch “Termination of Life on Request and Assisted Suicide

(Review Procedures) Act” Article 2.2,70 a physician may honor such a request for euthanasia,

provided that all the usual guidelines for the practice are met. However, the following

questions arise in regards to this matter, as presented by the example of a demented patient,

who requested euthanasia in his living will:

− physician must believe that the request for euthanasia has been voluntary and well

considered, however, while presumably the request was well thought through at the time

when the advanced directive was drawn, physician cannot reasonably be sure that his

patient is still true to his previously expressed consideration, as the “if I become

demented, I want you to kill me”71 request, is not quite the same as “I want you to kill me

uk.org/guidance/library/W_&_W.pdf>. p. 47

67 “Future medical treatment: advance statements and advance directives or living wills.” Alzheimer’s Society. Updated - not known. Retrieved - 2 May 2006 <http://www.alzheimers.org.uk/After_diagnosis/Planning_for_the_future/info_livingwills.htm>.

68 Crane, M. K., Wittink, M., Doukas, D. J. “Respecting End-of-Life Treatment Preferences.” American Academy of Family Physicians. Updated - 1 Oct. 2005. Retrieved - 10 Apr. 2006 <http://www.aafp.org/afp/20051001/1263.html>.

69 “What's a Power of Attorney?” Office of New York State Attorney General Eliot Spitzer. Updated - not known. 2003. Retrieved - 29 May 2006 <http://www.oag.state.ny.us/seniors/pwrat.html>.

70 “Termination of Life on Request and Assisted Suicide (Review Procedures) Act.” Right to Die-NL. Updated - 1 Apr. 2002. Retrieved - 4 May 2006 <http://www.nvve.nl/assets/nvve/english/euthlawenglish.pdf>. p. 2

71 Delden van, J. J. M. “The unfeasibility of requests for euthanasia in advance directives.” Journal of Medical Ethics (vol.30 no.5, 2004). Updated - 11 Mar. 2003. Retrieved - 9 Apr. 2006

27

now, because I have become demented”72;

− it is required that patient's suffering must be continuous and unbearable in order for

euthanasia to performed, but how does one asses a psychological suffering of a demented

patient, who cannot logically and coherently argue for his case, can this question be left

for a physician to decide alone?;

− it is necessary that the patient must be informed of his condition and believe that no

treatment can alleviate it, - this surely cannot be communicated with an incompetent

patient as well;

− another physician must assess the case of the patient, but arguably, he can do no more

then the first physician did.73

Thus it is clear, that in an absence of an effective verbal communication with the patient,

which is a key issue here, in certain situations a physician can be presented with quite an

ambiguous case to resolve.

While an advance directive is generally considered to be publicly safe, and indeed is a valid

exercise of one's own free will, making it a valuable tool for asserting one's own interests and

avoiding lengthy court proceedings, it is still possible to arrive at a couple of issues74 which

are challenging in an ethical and moral manner, and relate to the above mentioned situation in

the Netherlands. The first issue can be described as “an advance directive v. present state,” -

let us suppose that an elderly person has made an advance directive stating, that he would not

want to be given life sustaining treatment if he were mentally impaired. Years later, that

person is in a nursing home with condition “categorized as severely but "pleasantly"

demented,”75 (it is assumed that the state's law allows activation of an advance directive in

such a case) meaning, that though he is mentally impaired, there appears to be no suffering

and he is seen to enjoy the life, however senseless such life may seem to be in view of a

“normal” person. Now, the person contracts pneumonia, and unless given the treatment to

which he has objected, he will die.

How should this case be resolved? In my view, such a situation can be resolved the way it has

<http://jme.bmjjournals.com/cgi/content/full/30/5/447>. 72 Ibid. 73 Ibid. 74 Mappes, T. A. “Some Reflections on Advance Directives.” APA Newsletters. Updated - 1998.

Retrieved - 2 May 2006 <http://www.apa.udel.edu/apa/archive/newsletters/v98n1/medicine/mappes.asp>.

75 Ibid.

28

been in the case of “HE v Hospital NHS Trust,” in 2003 in the UK, where a Muslim born

woman, who converted to Jehovah’s Witnesses, whose faith does not allow blood transfusion,

urgently needed a medical interference to stay alive. Her father stepped in into the situation

and presented the evidence, that his daughter's signed blood refusal card is not valid, as she

was engaged now with a Muslim man, and did not attend Jehovah’s Witnesses meetings for

several months. Court has ruled, that an advance directive is revocable, and that the burden of

proof for claiming its invalidity, lies on those who seek to challenge it, and if presented with a

dilemma, a case is to be decided in the favor of life.76

Another issue, that can be thought of, might be described as disregarding present wishes

based on an advance directive. That is, when in an advance directive one requests not to be

given treatment when incompetent, even if he will ask for it, in a delirious condition perhaps.

This certainly presents a moral and ethical controversy, in my opinion, but some have found a

way out of it. Advance directives being a very important tool nowadays, are being constantly

reviewed and updated by state's laws, and I am aware, that at least one state in the US, state of

Vermont, has adopted the so called “Ulysses Clause,”77 deriving from the Greek mythology,

where Ulysses asked his crew to tie him up to the ship's mast and not to listen to anything he

says, while sailing near Sirens. Thus the law has cleared a physician's way and enabled him to

act in such situation. But did that solve the ethical and moral dilemma? In my impression, not.

1.6. Non-voluntary passive euthanasia Non-voluntary passive euthanasia is almost the same as VPE, - when the death comes as a

result of patient's withdrawal from an artificial life support machine treatment, that has helped

to sustain patient's life, but with an exception, that a person is incapacitated, and in the

absence of an advanced directive cannot himself make any immediate requests in concern to

his treatment.

Karen Quinlan

Karen Quinlan's case is one of the important one's, that contributed to the right-to-die issue,

and took place in the state of New Jersey, US, where on 15th April 1975, 21-year-old Karen 76 Woolley, S. “Jehovah’s Witnesses in the emergency department: what are their rights?” Emergency

Medicine Journal. Updated - 21 Feb. 2005. Retrieved - 2 May 2006 <http://emj.bmjjournals.com/cgi/content/full/22/12/869>.

77 “VEN Newsletter March 05.” Vermont Ethics Network. Updated - 2 Feb. 2006. Retrieved - 3 May 2006 <http://www.vtethicsnetwork.org/NewsLetFeb06.htm>.

29

Ann Quinlan has collapsed at a friend's party, because of the combination of lack of a

nutrition due to a self-imposed diet, taking alcohol and the Valium tranquilizer, which all

resulted in a respiratory failure for a considerable amount of time, and thus the unalterable

brain damage happened to Karen and left her in a PVS state.78 Her parents wanted their

daughter to be taken off the respirator, but as the hospital refused to do that, the case was

taken first to the Superior Court, where the parents have lost, and then to the New Jersey’s

Supreme Court, which has decided the case in their favor, giving permission for all life

support to be withdrawn. After separating Karen from the respirator however, she continued

to breathe on her own, and probably because of that her father wanted artificial nutrition and

hydration (hereinafter ANH) support to continue to be administered,79 and thus Karen

remained in a PVS state until her death in 1985 from pneumonia.

It has been decided by the Supreme Court of New Jersey that, even though Karen was

incompetent to make any decisions herself, the Karen's father could assert her constitutional

right to privacy, and to refuse an unwanted medical treatment on her behalf, because he has

presented the evidence, that it is what his daughter would have wanted - not to prolong her

life if found in a hopeless condition. The medical treatment, as has been found, served only a

“maintenance function,”80 and could not alleviate or improve Karen's condition, “but at best

can only prolong her inevitable slow deterioration and death.”81 The court said, “that the

State's interest [in preserving life] weakens and the individual's right to privacy grows as the

degree of bodily invasion increases and the prognosis dims,”82 and that the justice and the law

must not unquestionably give in to the possibilities of modern medical technology, but instead

to critically asses the issues these advancements present. It was concluded that no homicide

would occur in the circumstances of this case, as Karen's life would end because of natural

causes, and even if it can be interpreted as a homicide, constitutional right to privacy, in the

case presented, would make it lawful, as there is a clear distinction between an unlawful

killing and withdrawing life support as an act of one's own freedom of self-determination. The

78 “Karen Ann Quinlan.” Answers Corporation. Updated - not known. Retrieved - 26 Apr. 2006

<http://www.answers.com/topic/karen-ann-quinlan>. 79 “Quinlan, Karen Ann.” Ascension Health. Updated - not known. Retrieved - 26 Apr. 2006

<http://www.ascensionhealth.org/ethics/public/cases/case21.asp>. 80 Supreme Court of New Jersey. “In the matter of Karen Quinlan, an alleged incompetent.”

University of Wisconsin: Department of Philosophy. Updated - 16 Dec. 1999. Retrieved - 26 Apr. 2006 <http://philosophy.wisc.edu/streiffer/BioandLawF99Folder/Readings/In_re_Quinlan.pdf>. p. 24

81 Ibid. 82 Ibid.

30

court held, that “[i]f a putative decision by Karen to permit this non-cognitive, vegetative

existence to terminate by natural forces is regarded as a valuable incident of her right of

privacy, as we believe it to be, then it should not be discarded solely on the basis that her

condition prevents her conscious exercise of the choice. The only practical way to prevent

destruction of the right is to permit the guardian and family of Karen to render their best

judgment.”83

Thus, the following legal precedents were set by the decision of this case:

− the right to privacy allows a patient to refuse medical treatment, even though the decision

may result, or will hasten his death;

− if patient is incompetent, such decision is allowed to be taken by his guardian in a

dialogue with medical professionals, and court interference is not needed;

− the patient's right to privacy grows in a proportion to the degree of an external invasion

needed to sustain patient's life, as his prospects of recovery become more bleak.

Nancy Cruzan

Like in the previous case of Karen Quinlan, the 25-year-old Nancy Cruzan, due to the car

accident in 1983, was left in a PVS state, after waking up from the 9-month coma period. Her

parents and husband hoped for Nancy's recovery, but as the four years have passed, they have

accepted that there is no hope for her condition to improve, and asked the hospital to take off

Nancy's ANH support, hospital however requested a court's order to do that. The trial court

has ruled, basing its decision on the testimony of Cruzan's housemate, claiming that Nancy

would not have wanted to live that way, that the artificial life support can be removed. The

decision was afterwards reversed by the Missouri State Supreme Court, and later upheld by

the US Supreme Court, by holding, that no clear and credible evidence was presented, as to be

sure that Nancy would really have wanted to be removed from a life support, if found to be in

a deplorable state. The case was then brought once again to a lower court, where the new

evidence was presented, and where it was finally decided, that ANH support can be removed,

thus allowing Nancy to die in 1990.84

This case differs from that one of the Karen Quinlan in a way, that the US Supreme Court

83 Ibid. 84 “Nancy Cruzan.” Wikipedia, The Free Encyclopedia. Updated - 18 Apr. 2006. Retrieved - 26 Apr.

2006 <http://en.wikipedia.org/w/index.php?title=Nancy_Cruzan&oldid=49068807>.

31

established, that an incompetent person should not necessarily posses the same right to refuse

ANH support, that a competent one has, and “[w]hile Missouri has in effect recognized that,

under certain circumstances, a surrogate may act for the patient in electing to withdraw

hydration and nutrition and thus cause death, it has established a procedural safeguard to

assure that the surrogate's action conforms as best it may to the wishes expressed by the

patient while competent.”85 Therefore it is up to each individual state to decide what kind of

reasonable requirements aimed to protect a vulnerable person, should be met, in order to

establish beyond a doubt, that an action on the behalf of an incompetent person would reflect

his wish, and the demand for such requirements to be met is not forbidden by the US

Constitution.

Terri Schiavo

Probably the most famous case up to date, that has been debated on the issue surrounding

end-of-life decisions, is that of the Terri Schiavo. While the case itself did not present any

significant medical or legal challenges, and in fact was quite simple, it has been blown out of

proportions and spilled well over to nation-wide arena, reaching even the US president

George W. Bush.

After collapsing on 25th February 1990, for reasons not clearly identified, 27-year-old Terri

was resuscitated, and after being in a comatose condition for more than a two-month period,

emerged from it to be diagnosed as living in a PVS state. Terri has been through many

therapies, but all in vain, and when in 1994 she contracted urinary tract infection, most of her

therapies were suspended with “Do Not Resuscitate” (hereinafter DNR) order, in the decision

made jointly by her physician and husband, however Terri's parents did not agree to that, and

the order was reversed. In 1998 her husband Michael, filed petition for the ANH support to be

removed. The case was heard in 2000, and Judge Greer concluded it by granting the order to

stop artificial life support. This decision was upheld by Florida's Second District Court of

Appeal. The case was decided that way, as the clear evidence has been presented, that Terri

would not have wanted to remain in a PVS state, and that there is no prospect for her recovery

whatsoever.

85 “U.S. Supreme Court: Cruzan v. Director, MDH, 497 U.S. 261 (1990)”. FindLaw. Updated - not

known. Retrieved - 27 Apr. 2006 <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=497&invol=261>.

32

What has happened after that decision, can be summarized as a theater drama, consisting of

attempts, made out of despair, denial and/or religious convictions of Terri's parents to

invalidate the court's order that has granted removal of their daughter from the ANH support,

on every occasion and by any possible and impossible means, also involving a mad-man

putting the cash bounty on heads of Terri's husband (250,000 US dollars) and Judge Greer

(50,000 US dollars),86 and joined by high-ranking government officials, who had their own

political agenda in regards to this case, such as Florida's Governor Jeb Bush, who in 2003

signed “Terri's Law,” enabling him to intervene into the case, but which was found to be

unconstitutional, and by the US president George W. Bush including certain members of the

US Congress, when in year 2005 they have pushed the bill to transfer the case to federal

jurisdiction. The US Supreme Court and federal courts, however, denied an appeal. After that,

when finally all the feasible and unfeasible moves to prevent Terri's removal from the ANH

support were exhausted by “pro-life” supporters, Terri has passed away on 31st March 2005.87

Anthony Bland

Important case that was ruled out by the UK's House of Lords in 1993 is “Airedale NHS Trust

v. Bland.”88 In this case, Anthony Bland, who became a victim of the Hillsborough disaster

on 15th April 1989, where he has been crushed by a stadium crowd during the football cup,

suffered the incurable brain damages, and as a consequence was left in a PVS state without

prospect for recovery. Anthony Bland spent more than three years in such a state, by means of

artificial feeding and hydration, and died on 3rd March 1993, after his artificial life support

was switched off on 22nd February 1993.89 Anthony's life support was made possible to be

removed, as both medical personnel and his parents sought no sense to support condition of

Anthony, who could have remained in a PVS state for many years to come, before the

“natural death” could have claimed his life, and therefore, they asked court's permission to

legally withdraw the treatment from him.

86 “Man arrested in alleged Schiavo case murder plot.” CNN News. Updated - 25 Mar. 2005.

Retrieved - 17 May 2006 <http://www.cnn.com/2005/US/03/25/arrest.schiavo/>. 87 “Terri Schiavo.” Wikipedia, The Free Encyclopedia. Updated - 24 Apr. 2006. Retrieved - 27 Apr.

2006 <http://en.wikipedia.org/w/index.php?title=Terri_Schiavo&oldid=49862911>. 88 “Airedale N.H.S. Trust -v- Bland.” lawindexpro - Case Law. Updated - 18 Aug. 2002. Retrieved -

10 Apr. 2006 <http://www.swarb.co.uk/c/hl/1993airedale_bland.html>. 89 “1992: Hillsborough victim allowed to die.” BBC (British Broadcasting Corporation). Updated -

not known. Retrieved - 10 Apr. 2006 <http://news.bbc.co.uk/onthisday/hi/dates/stories/november/19/newsid_2520000/2520581.stm>.

33

The two main arguments of the solicitor against withdrawing artificial treatment were, that

withdrawal of the treatment is intended to cause death of the patient, which is murder, and

also that this will constitute breach of medical duty to care about the patient, as it is a basic

responsibility to feed and care for a helpless person. The reasoning refuting these arguments

was presented as follows, - withdrawing the artificial life support would satisfy guidelines laid

out in the “Discussion Paper on Treatment of Patients in Persistent Vegetative State” issued

by the Medical Ethics Committee of the British Medical Association, and would meet

Bolam90 requirement, under which, if a responsible medical practitioner arrives at a

reasonable conclusion, which is of an accord of a responsible medical body, then the actions

of that doctor are lawful. The medical practitioners found that prolonging the current given

medical treatment to Anthony would be not in his best interests, as it is futile and will not

improve his condition, it will bring him no benefit; and Anthony is not aware whether the

treatment is being supplied to him and he will not be aware if it would stop. Medical

treatment, under category of which falls an artificial feeding, as is regarded by medical

circles, is appropriate only when it would be of a benefit to a patient, and doctors are not

required to supply treatment, if nothing will be achieved by doing so. Thus the House of

Lords decided, that it would be lawful, to withdraw medical treatment from Anthony Bland.

Leslie Burke

While it has been taken for granted, for myself, that legal battles of critically ill conscious

patients are fought for the right to be able to choose their own timing of death, it was a very

interesting discovery for me, that there are people fighting for the opposite right, - to be able

to stay on a life support treatment, and such is the case of Oliver Leslie Burke, that took place

in the UK. Mr. Burke is a 46-years-old man who suffers from the spino-cerebellar ataxia

condition, a degenerative illness which currently confines him to a wheelchair, and in time

Mr. Burke will require a life support machine treatment to be able to stay alive, his cognitive

functions though, it is believed, will remain almost until the very death, but the

communication would be possible only through a computer device, however.

Leslie Burke decided to go to the court, to secure his right for an ANH support until his death

of natural causes, as he feared, that when his ability to speak and move will be gone, he can

90 “Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582.” Oxford Centre for

Higher Education Policy Studies. Updated - 14 Oct. 2002. Retrieved - 11 Apr. 2006 <http://oxcheps.new.ox.ac.uk/casebook/Resources/BOLAMV_1%20DOC.pdf>.

34

be prematurely put to death against his consent, and thus argued that the guidance provided by

the General Medical Council (hereinafter GMC) on “Withholding and Withdrawing Life-

prolonging Treatments,”91 is in the breach of the Articles 2, 3, 6, 8 and 14 of the European

Convention on Human Rights. Mr. Burke's fear was founded on the fact, that ultimately it is

up to the doctor to decide, which treatment patient must or must not receive, as patient's

wishes do not equate to his best interests, where it would be “clinically inappropriate.”92

Though Mr. Burke has won his case in the High Court, the Court of Appeals ruled that the

GMC's guidance was perfectly within the law, albeit it should be taught and explained more

actively on all levels of medical system, and that this case should not have been brought

before the court in the first place, however “[i]f the extensive interest generated in this case

helps achieve that objective[, gaining confidence in receiving a proper treatment], the

proceedings will have served a useful purpose.”93 The Court of Appeals has reassured Mr.

Burke, that he will receive all the treatment he would need, and he is not going to be denied

an ANH support, of which withdrawal he would be conscious and aware, and that nothing in

the guidance prevented him to be treated in the best possible way. There may come a time

however, when an ANH treatment would be of no benefit to a patient, or even would harm

him, and interfere with natural dying process. In such case it is impossible to demand for an

artificial life support, as it would not be in the patient's best interests to receive it, but that

kind of situation is “extremely unlikely to arise in practice.”94

Haleigh Poutre

Another important case that took place in the US, state of Massachusetts, is the case of

Haleigh Poutre. Haleigh is 11-year-old girl, who has been allegedly beaten into the coma by

her adoptive parents. The girl has been diagnosed to be in a PVS state on 11th September

2005, and just in nine days time after being beaten, the Department of Social Services, which

has been given temporary custody of Haleigh, stated, that the life support and feeding should

be removed from Haleigh. The matter was submitted to the trial court, where it was decided,

within 24 days since the girl was abused, that her life should indeed end, as Haleigh's “dignity

91 “Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making.”

General Medical Council. Updated - Aug. 2002. Retrieved 10 April 2006 <http://www.gmc-uk.org/guidance/library/W_&_W.pdf>.

92 Ibid. p. 21 93 “Oliver Leslie Burke vs General Medical Council. Case No: C1/2004/2086.” Matrix Chambers.

Updated - 28 Jul. 2004. Retrieved - 16 Apr. 2006 <http://www.matrixlaw.co.uk/showDocument.aspx?documentId=1555>.

94 Ibid. p. 19

35

and quality of life would be most respected by withdrawing both the ventilator and the

feeding tube along with the issuance of a [DNR] order[.]”95 The case was then appealed to the

Supreme Judicial Court by the girl's adoptive father, where the ruling of the lower court was

upheld. However, while the matter was still being reviewed by the Supreme Judicial Court,

Haleigh's condition began to improve, as she began to breathe without the need for life

support equipment, and started to respond to simple commands. In such an extraordinary

turning of the events, a special panel for the review of Haleigh's Poutre case has been

established, which found, “that this case represents a systemic failure in the child welfare,

health care and mental health systems to provide the safety net that children deserve - not just

at the Department of Social Services (DSS), but at all levels, public and private.”96 The report

of the panel has presented, that people from many disciplines, who were involved in this case,

have made errors in their judgments, and concluded, “that what happened to Haleigh should

not have happened, and did not have to happen.”97

1.7. Indirect euthanasia / Double effect doctrine Indirect euthanasia, which is even more known as the “double effect,”98 takes place when a

patient is given certain drugs to control/detach his pain, but it is admitted, that these drugs

may hasten patient's death, especially with the increase of their dosage, which can be needed

as body adapts to the medicaments, and thus will require higher quantities of it to bring the

intended soothing effect. Causing death is not an intention in this case however, instead, here

it is an awareness that the death may happen because of the medication, but it is justified, that

by administering the drugs, only bringing of the good effect of alleviating pain is meant,

which outweighs even the prospect of non-reversible side effect of death. In summary, four

points must be met, for the double effect to be justified:

− the intended final aim must be positive;

95 Barnett, D. “Haleigh Poutre.” Weekly Standard. Updated - 27 Jan. 2006. Retrieved - 19 Apr. 2006

<http://www.weeklystandard.com/Content/Public/Articles/000/000/006/635seuoj.asp?pg=1>. 96 “Poutre panel recommends reforms in child welfare system.” The Commonwealth of

Massachusetts: Executive Department. Updated - 21 Mar. 2006. Retrieved - 19 Apr. 2006 <http://www.mass.gov/?pageID=pressreleases&agId=Agov2&prModName=gov2pressrelease&prFile=gov_pr_060321_halieh_poutre.xml>.

97 Ibid. 98 “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 <http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/1996-99/euthanasia/report/report.pdf>. p. xii.

36

− the intended method to reach the aim must be morally acceptable;

− the foreseen negative consequences must not be intentional;

− the positive aim must be substantial enough, for negative effects to be justified.99

While the doctrine of double effect is believed to be established by the Roman Catholic

theologians in the Middle Ages, who oppose both euthanasia and PAS,100 and is specifically

attributed to Thomas Aquinas,101 studies conducted before the recent modern developments at

the end of 1990s took place, have shown that the vast majority of physicians were reluctant to

administer high or even sufficient doses of medicaments to their patients, because of legal and

ethical concerns, and it would be probably safe to say, that many doctors are still hesitant of

this practice, as arguably, it is a thin line between intending death of a patient and foreseeing

it.102,103

The legality of the doctrine has been affirmed by the US Supreme Court in the case of Vacco

v. Quill in 1997, where the court has stated, that “[j]ust as a State may prohibit assisting

suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit

palliative care related to that refusal, which may have the foreseen but unintended "double

effect" of hastening the patient's death,”104 making reference to the New York State Task

Force on Life and the Law, recognizing that the practice is broadly acknowledged and “is

ethically and professionally acceptable.”105 The practice is also affirmed by the American

99 “COBRA Issue Guide: The Doctrine of Double Effect.” National University of Ireland

(Department of Philosophy). Updated - not known. Retrieved - 19 Apr. 2006 <http://www.nuigalway.ie/philosophy/cobra/double-effect.html>.

100 “Declaration on Euthanasia.” Official site of Vatican: Sacred Congregation for the Doctrine of the Faith. Updated - 5 May 1980. Retrieved - 8 May 2006 <http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19800505_euthanasia_en.html>.

101 “Doctrine of Double Effect.” Stanford Encyclopedia of Philosophy. Updated - 28 Jul. 2004. Retrieved - 15 May 2006 <http://plato.stanford.edu/entries/double-effect/>.

102 Quill, T. E., Dresser, R., Brock, D. W. “The Rule of Double Effect - A Critique of Its Role in End-of-Life Decision Making.” The New England Journal of Medicine (vol.337, no.24). Updated - 11 Dec. 1997. Retrieved - 25 Apr. 2006 <http://content.nejm.org/cgi/content/full/337/24/1768>.

103 Fohr, A. S. “The Double Effect of Pain Medication: Separating Myth from Reality.” International Association for Hospice and Palliative Care. Updated - 1998. Retrieved - 25 Apr. 2006 <http://www.hospicecare.com/Ethics/fohrdoc.htm>.

104 “Vacco v. Quill, 117 S. Ct. 2293 (U.S. 1997).” Medical and Public Health Law Site. Updated - 16 Oct. 2004. Retrieved - 24 Apr. 2006 <http://biotech.law.lsu.edu/cases/pro_lic/Vacco_v_Quill.htm>.

105 “When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context.” The New York State Task Force on Life and the Law. Updated - May 1994. Retrieved - 8 May 2006 <http://www.health.state.ny.us/nysdoh/consumer/patient/chap8.htm>.

37

Medical Association, which distinguishes between the euthanasia and “administering a

medically sound pain relief treatment which will likely shorten the patient's life,”106

difference, although being subtle, is significant nevertheless.

United Kingdom

In the UK, it is possible to trace the double effect principle being affirmed by the court as

early as 1957, when Dr. John Bodkin Adams has been acquitted of administering pain-

relieving medicine that caused death of an elderly patient on principle, that “a doctor is

entitled to do all that is proper and necessary to relieve pain even if the measure he took might

incidentally shorten life.”107 Another case involved Dr. Nigel Leigh Cox, who in 1991 was

charged with an attempted murder of his patient, as it has been perceived that the quantity of

the drug he administered to Mrs. Boyes, who evidently was at best hours away from her

death, has been too high to be of a therapeutic intention. Court held, that even though a

physician can legally administer potentially life shortening medication, “no doctor can

lawfully take any steps deliberately to hasten that death by however short a period of time,”108

but as the evidence presented, was not clear if Mrs. Boyes died either of natural causes, as she

has been literally within minutes to her death, or because of the deadly injection, Dr. Cox's

sentence was suspended.

Even though the rule of double effect is widely recognized as a valid and important one, it

certainly is not without its own criticism, and as it has been hinted earlier, it stems from the

fact, that there is a very thin line here, between deliberating death and envisaging it. Though it

is ruled out from the doctrine, that one can bring about harm, being death, as an end, some

actually may and do, according to the British practitioner Dr. Michael Irwin, give life-

shortening medicaments with an intention to bring about death, but “will never admit that

they have given it to honor a patient's request to die.”109 This statement is seen to be affirmed

106 “Decisions Near the End of Life.” American Medical Association. Updated - 15 Jan. 2004.

Retrieved - 8 May 2006 <http://www.ama-assn.org/ama1/pub/upload/mm/369/ceja_rep_33_0104.pdf>. p. 6

107 Howard, P., Bogle, J. “Lecture Notes: Medical Law and Ethics.” Blackwell Publishing. Updated - 2004. Retrieved - 8 May 2006 <http://www.blackwellpublishing.com/content/BPL_Images/Content_store/Sample_chapter/1405118687/howardchap11.pdf>. p. 123

108 Tur, R. H. S. “The Doctor’s Defense.” The Mount Sinai Journal of Medicine. Updated - 1 Nov. 2002. Retrieved - 8 May 2006 <http://www.mssm.edu/msjournal/69/v69_5_page317_328.pdf>. p. 322-324

109 Thompson, B. A. “Final exit: should the double effect rule regarding the legality of euthanasia

38

in the case of Dr. David Moor, who has expressed his support of Dr. Irwin's views in media,

admitting that he too has helped patients to die, but when prosecution, on the basis of that

admission tried to convict him, Dr. Moor stated in the court, that he has been faithful to the

double effect doctrine in his actions and operated within the law, therefore due to the lack of

evidence, confirming that he had acted illegally, he was not sentenced.110 Thus it is clear, that

when it comes to a real-life situations, the practice of the doctrine presents itself to be quite

ambiguous, and that the intentions of physicians are not painted in black or white colors, but

are multi-layered, and it well may be, that doctor wants to treat his patient's pain as much as

he wishes to help that person to pass away peacefully.111

Part II. Analysis and Proposals for Implementations of End-of-Life

Solutions

2.1. Essential principles - refusal of unwanted treatment and double effect Voluntary Passive Euthanasia

There is no controversy when a patient communicates directly to his physician that he does

not want to be attached to, or asks to be withdrawn from the artificial life support machine, as

it is the universal precept that no one's privacy should be invaded against his free will, and no

one should be imposed unwanted intrusive medical assistance. However, that is not so simple

if there is no direct and immediate contact between a patient and his doctor. And while a

living will and/or durable power of attorney, whom you appoint to be your decision-maker in

case of incapacitation, were invented to facilitate communication between the physician and

his disabled patient, in some cases a medical practitioner can still face difficult ethical and

moral decisions.

As has been mentioned earlier (p. 27 of the present paper), let us suppose that there is a

“pleasantly demented” senior patient, quietly enjoying his unsophisticated life, who has

contracted pneumonia and unless his advance directive is disregarded, he will die. Now, you

can ask, - “what is the problem, that is what the old man wanted, not to be given treatment in

in the United Kingdom be laid to rest?” Vanderbilt Journal of Transnational Law. Updated - 1 Oct. 2000. Retrieved - 8 May 2006 <http://www.highbeam.com/library/doc3.asp?docid=1G1:67532881>.

110 Ibid. 111 Quill, T. E. “The Ambiguity of Clinical Intentions.” The New England Journal of Medicine.

Updated - 30 Sep. 1993. Retrieved - 9 May 2006 <http://content.nejm.org/cgi/content/full/329/14/1039>.

39

such a situation, did not he?” Yes, that is correct, that was his wish, and he has made it

because he has foreseen, that from the perspective of a “normal” human being, such

backwards life has no meaning, and more than that, - it is suffering. I would disagree with that

however, and argue that a non-terminally ill person with degraded mental capacity, is to be

presumed willing to live, as does any nature's creation, and must be protected by the law. In

my view, you cannot draw a parallel between, for example, an adult and a baby, - can one

claim that the infant's life has no meaning as its mental abilities basically amount to nothing?

Baby grows, develops and exercises cognitive faculties, ages and dies, - you surely cannot

view someone's life as good-for-nothing only because its middle part is “defective,” cannot

you?

To decide cases like this one, when there is a doubt about the validity of one's living will, and

if even a patient has appointed an attorney to speak for himself, who might or might not be

too busy with his life to be able or willing to consider the issue in all its wholeness, the same

can be true about patient's physician, law must require that a commission of an independent

experts is to be notified of such a case and after the close observation to give their verdict

whether a non-terminally ill patient must be provided with treatment or not, and if necessary,

by overriding surrogate's position on the treatment issue, as in cases like these it is always

safe to err on the side of life. The same procedure must also be required for the decision of

cases that feature the “Ulysses Clause,” as in my opinion it is wrong to provide in law, like

the US state of Vermont did, that this clause is to be followed unquestionably, by reasoning

that “[i]t's for people who realize they might get scared (when facing death) and change their

mind, but don't want to be able to[.]”112 Even demented people during their “lucid

moments”113 can change their views, and therefore, a patient, by saying that he does want a

treatment to be administered, may really mean it, and thus he must not be denied the choice to

change his mind, even if he has previously objected to be able to do precisely that, and agreed

to the implications of his decision in presence of both his lawyer and medical advisor. The

legal reasoning for not providing such a clause in law is, that the state is obliged to protect life

and in cases of doubt, side of life must be taken, and I am certain that in such situations doubt

112 Zicconi, J. “New law gives Vermonters more power to plan end-of-life care.” Times Argus.

Updated - 1 Sep. 2005. Retrieved - 24 May 2006 <http://www.timesargus.com/apps/pbcs.dll/article?AID=/20050901/NEWS/509010334/1003/NEWS02>.

113 Morris, C. “Communication Problems in Dementia.” Picks Disease Support Group. Updated - not known. Retrieved - 14 May 2006 <http://www.pdsg.org.uk/Factsheets/communication.htm>.

40

surely must be present there, - when a person is lying on a bed and begs for his life to be

saved.

In regards to the durable power of attorney concept, and verbal instructions concerning one's

medical care, I am strongly against that this type of the advance directive is to posses the

same strength that the written living will has, as there always can be a room for skepticism if

patient's attorney really communicates wishes of the one who gave that power of the

guardianship to him, and especially on such question as the refusal of treatment. Therefore

only the written living will must be followed unquestionably, exception being ambiguous

circumstances as presented above, and in other cases, doctors must critically asses guardian's

statements and if deemed defective, - refuse to follow them. And in fact, such are the rules of

the several states in the US, where a clear and credible evidence of patient's preferences is

required in addition to the attorney's verbal claims.114

In Latvia, according to the Article 23 of the “Medical Treatment Law,”115 it is being provided,

that a patient has the right, in full or partly, to refuse medical treatment, attesting that decision

with his signature. Therefore the law provides an effective living will legislation, which is in

accord with the Article 9 of the “European Convention on Human Rights and Biomedicine,”

Latvia has signed, which provides that “[t]he previously expressed wishes relating to a

medical intervention by a patient who is not, at the time of the intervention, in a state to

express his or her wishes shall be taken into account.”116 There is no concept of the “durable

power of attorney” in Latvian law, instead, the patient's family members and/or his guardian

can make decisions in case a person is incapacitated (that will be discussed in chapter 2.2 of

present paper).

Another issue with the living wills, is that for them to be really effective, a physician must

know that such a document exists, and the document must be easily available to him, and that

114 Crane, M. K., Wittink, M., Doukas, D. J. “Respecting End-of-Life Treatment Preferences.”

American Academy of Family Physicians. Updated - 1 Oct. 2005. Retrieved - 10 Apr. 2006 <http://www.aafp.org/afp/20051001/1263.html>.

115 “Ārstniecības likums.” Latvijas Likumi. Updated - 1 Jul. 1997. Retrieved - 17 May 2006 <http://www.likumi.lv/doc.php?id=44108>.

116 “Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine.” Council of Europe - Treaty Office. Updated - 4 Apr. 1997. Retrieved - 17 May 2006 <http://conventions.coe.int/Treaty/EN/Treaties/Html/164.htm>.

41

can be of a challenge, as if you are a single or if your family cannot be readily available to be

inquired whether you have a living will or not, how can a doctor be informed of your medical

preferences? The solution is to create a computer database repository, which will store living

wills in digital format and will readily provide them to physicians upon their request, and a

doctor will know that you have a living will in that repository, because there will be a sticker

on your driving license or some other document, where your registration number with the

repository will be printed, thus providing the possibility for an immediate access to all the

required information.117

Indirect Euthanasia / Double Effect Doctrine

The importance of the double effect is that this principle serves to be something of a

milestone leading up to the VAE, while being morally permissible to the majority of people,

at the same time. Double effect rule differs from the voluntary active euthanasia and PAS

only on one count, here I am considering only the moral aspect of the issue without going into

technical details, being, that in the case of the former, foreseen negative consequence (death)

must not be intended, while in the later such intent is present. And here lies the critique and

concern with the double effect doctrine, - there is a very delicate line between intending

patient's death and foreseeing it. However, it must be noted, this concern is not directed at the

doctrine as such, at its form, as it is a locked algorithm with no deviations being possible in it,

by following which a physician helps his patient to relieve pain and suffering. Controversy

comes into play only when the idea is being taken from the intellectual plane of existence to

be applied in our imperfect and contradictory world, where it can be quite hard not to have

any conflicting intentions, especially in an environment filled with misery and anguish. We

are human beings after all, not robots without emotions.

The single moral value, which sets apart assisted suicide/VAE and the principle of double

effect, can be argued not to be of the significant importance, - it does not matter whether

bringing of patient's death is deliberate or not, because death is foreseen on both

PAS/voluntary active euthanasia and double effect occasions, and in the case of Vacco v.

Quill, prior to its standing in the US Supreme Court, the Circuit Court has held that double

effect “commonly takes the form of putting a patient on an intravenous morphine drip, with

117 “Frequently Asked Questions (FAQ) About The U.S. Living Will Registry®.” U.S. Living

Will Registry ®. Updated - not known. Retrieved - 16 May 2006 <http://www.uslivingwillregistry.com/faq.shtm>.

42

full knowledge that, while such treatment will alleviate his pain, it will also indubitably hasten

his death,”118 and “[t]here can be no doubt, therefore, that the actual cause of the patient's

death is the drug administered by the physician or by a person acting under his supervision or

direction,”119 and thus the argumentation on whether there is an intention to put a patient to

death, or not, has no compelling backing here.

It can be imagined, that in an ideal set of conditions, where a physician can always act only in

the best interests of his patient (implied - always pro-life), so as to there can never be even a

doubt in that by administering medication with the double effect property he only pursues a

positive aim, we can forget all about the issue of an intent. Though as this consideration can

never take place beyond a reasonable doubt, I agree that the US Supreme Court in the case of

Vacco v. Quill has decided to discern between “actions taken "because of" a given end from

actions taken "in spite of" their unintended but foreseen consequences,”120 to protect

vulnerable members of society. Though this has affirmed the importance of the moral value

that differentiates between the assisted suicide/voluntary active euthanasia and double effect,

that does not address on how to deal with the issue of possible ambiguity of physician's true

intentions or concealment of thereof, because a doctor, according to the Dr. Michael Irwin (as

mentioned in chapter 1.7 of present thesis), will never admit that he has deliberately caused

patient's death as a means to end his suffering.

In my view, there must be no gray areas in the practice of the double effect doctrine. Even if

the VAE/NVAE is legal in the country, the practice of euthanasia and double effect must be

kept apart nevertheless, so as for euthanasia not to fall out of the scrutiny of the required

review, in order to protect the patients who can be taken of an advantage, by maliciously

exploiting their problematic, and not always terminal, condition, and the doctrine must be

revised and supplemented with additional safeguards specifically related to the medical area

of applicability of the principle. One such safeguard can be, for the law to require that an

independent expert is to review cases of individuals, who require administration of medication

with the double effect characteristic, and if there would be a reason to believe that a patient is 118 “Compassion in Dying v. State of Washington.” Courtroom Television Network. Updated -

not known. Retrieved - 15 May 2006 <http://www.courttv.com/archive/legaldocs/rights/assist.html>.

119 Ibid. 120 “Vacco v. Quill, 117 S. Ct. 2293 (U.S. 1997).” Medical and Public Health Law Site. Updated -

16 Oct. 2004. Retrieved - 24 Apr. 2006 <http://biotech.law.lsu.edu/cases/pro_lic/Vacco_v_Quill.htm>.

43

treated improperly, he is to intervene into the matter. This review probably may be feasible

for the more or less routine/regular pain killing medication injections, and not for emergency

situations, but such a requirement is the safeguard nevertheless.

2.2. Non-voluntary end-of-life decisions Non-Voluntary Passive Euthanasia

As the voluntary passive euthanasia or refusal/withdrawal of an unwanted medical treatment

is the universally acknowledged principle of patient's expression of his self-determination and

privacy, the debatable issue with NVPE then, is boiled down to whether in spite of the

unavailability of a direct communication with a patient, either verbal or by means of an

advance directive, a decision to withdraw patient's artificial life support treatment can be

made nevertheless, by reasoning that this is what a patient would have wanted if he were able

to express that in person.

In first place it must be asked, why do we need, and how can we suppose, that a patient would

not have wanted to receive crucial to him treatment, that sustains his very own life? In my

belief, in the absence of a clear and direct evidence from a patient himself, when presenting

that he would have opposed medical treatment, that he is being provided with in his current

state, no one will ever attempt to substitute that claim for him if patient's medical condition

can be alleviated, as that would be plainly wrong to do that. However, even if a patient's

proxy were to claim that this is the case, I suppose that neither medical personnel nor a court

would follow that assertion, as it would be an extremely bad public policy not to err on side of

life here. It follows then, that a decision to withdraw a treatment from an incapacitated patient

can only be made if patient's condition is beyond the relief and a futile one, when it can be

clearly presented, that a medical intervention has become for that person a burden and is a

groundless invasion of his privacy.

An argument can be put forward, that NVPE should not be legal as the vulnerable members of

society might be exploited by means of that practice. However, even if it can be imagined,

that a person with the malicious intent to get his hands on the inheritance has executed a

perfect plan, due to which victim of his scheme is left in a PVS state with no prospect of

recovery, and therefore a villain now presents a convincing evidence that his mark would not

have wanted to remain in a vegetative state, that would still not constitute a valid opposition

44

to not to permit NVPE in the absence of an advance directive. In my view this cannot be

called a public safeguard, as the only thing that would be protected in such the case, is the

inheritance from being grabbed by a criminal sooner rather than later. Prohibition of NVPE in

this case does not achieve anything, as in either way a patient is in a hopeless condition from

which he will never recover, and “the question is not whether it is in the best interests of the

patient that he should die. The question is whether it is in the best interests of the patient that

his life should be prolonged by the continuance of this form of medical treatment or care.”121

This can be opposed though, by arguing that as a patient in a PVS can express no interest in

anything whatsoever, how it might be in his interest not to receive artificial life support?

This, in my view, can be resolved by the following rationale, - current issue is different from

that one of the case with a “pleasantly demented” person (described in chapter 2.1), where

though he can possibly be in no position to conceive and/or express his view on anything,

including the question on whether the life is of any significance in his present condition or

not, that demented person still exercises what little is there of a human mind, and we are after

all humans and must be human (please excuse me for the repetitiveness) to him, but a patient

in a PVS state is numb, his personality and everything that makes us human is gone (I am not

saying that, therefore, we can be inhuman to him), and that condition cannot be alleviated, not

with the current state of medical advancement at least it is possible for us to regenerate dead

brain tissue (please see Annex 1). Therefore it is best for such a patient not to remain in a state

of an unconscious biomass, and with the respect and humbleness, that patient should be let go.

In my perspective, for the reasons outlined above, it would make no sense to keep a patient in

the permanent (as opposed to a “persistent”) vegetative state on an artificial life support.

Apart from the reasoning that have been already mentioned, it is also unjustifiable to direct

state's financial resources to a hopeless patient in the permanent vegetative state, as the cost of

the ANH support can run in the vicinity of 3,000 US dollars per day (in the case of Latvia the

figure is about 10 times lower),122 and it would be much wiser, and even wrong to not to,

direct financial attention to the ones who are alive, in the fullest sense of this meaning, and

would really benefit from the treatment they need. This should not be viewed as an argument

on its own, but rather as an additional consideration in light of the already presented 121 “Airedale N.H.S. Trust -v- Bland.” lawindexpro - Case Law. Updated - 18 Aug. 2002.

Retrieved - 10 Apr. 2006 <http://www.swarb.co.uk/c/hl/1993airedale_bland.html>. 122 Lister, S. “Minister puts a price on the right to life.” Times Online. Updated - 19 May 2005.

Retrieved - 16 May 2006 <http://www.timesonline.co.uk/article/0,,8122-1618268,00.html>.

45

arguments, as otherwise it may seem like we should just abandon any patient in despair

because his healthcare costs too much. Though it may sound cruel, this concerns only patients

for whom there is absolutely no way out of their tragic condition. Such is the reality and

sometimes we must make tough choices.

It must be noted, that though the “European Convention on Human Rights” under Article 2.1

provides that “[e]veryone's right to life shall be protected by law[, and n]o one shall be

deprived of his life intentionally[,]”123 a patient can still be switched off the ANH support and

be allowed to die, as has been decided in the UK cases of NHS Trust A v M and NHS Trust B

v H, where in year 2000 (after the UK has incorporated the “European Convention on Human

Rights” into its domestic law, - the “Human Rights Act”), two women in a PVS state were

released from their treatment with the consent of their families, by applying the principles of

Anthony Bland case.124 Here, judge Dame Elizabeth Butler-Sloss, reasoned that withdrawal

of one's treatment is not the act of ending his life, as a person will die of natural causes, and

there can be no duty on part of doctors to continue administration of treatment, if that is not in

the patient's best interest. The judge also went to reason that the Article 3 of the Convention

(Prohibition of torture), would not be breached either, as “[a]n insensate patient suffering

from permanent vegetative state has no feelings and no comprehension of the treatment

accorded to him or her.”125 It can be supposed, that keeping a PVS patient on the artificial life

support may be interpreted as to be even in breach of the Article 3,126 however, for the same

reasons the judge Dame Elizabeth Butler-Sloss has presented, this cannot be a valid

reasoning, in my view, and though the Convention does not define what torture means here, I

suppose it would be safe to detail it the way the “UN Convention against Torture” does, - “the

term "torture" means any act by which severe pain or suffering, whether physical or mental, is

123 “Convention for the Protection of Human Rights and Fundamental Freedoms.” Council of

Europe - Treaty Office. Updated - 1 Nov. 1998. Retrieved - 17 May 2006 <http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm>.

124 Dyer, C. “Judge confirms patients' right to die.” Guardian Newspapers Limited. Updated - 7 Oct. 2000. Retrieved - 18 May 2006 <http://www.guardian.co.uk/uk_news/story/0,,378849,00.html>.

125 “Substitute decision-making and advance directives in relation to medical treatment.” The Government of the Hong Kong Special Administrative Region of the People's Republic of China. Updated - Jul. 2004. Retrieved - 18 May 2006 <http://www.info.gov.hk/archive/consult/2004/decision-e.pdf>. p. 36

126 Samanta, J., Samanta, A. “In search of a good death: Human Rights Act 1998 imposes an obligation to facilitate a good death.” British Medical Journal. Updated - 26 Jul. 2003. Retrieved - 18 May 2006 <http://bmj.bmjjournals.com/cgi/content/full/327/7408/225-a>.

46

intentionally inflicted on a person[.]”127

Concerning the defense from mistreatment of the vulnerable members of society, in light of

Haleigh's Poutre case there is obviously a need to protect patients from the misdiagnosis, and

therefore guidelines must developed for the treatment of a PVS patients and be regularly

updated so as to reflect the latest advancements achieved in the medical world. Such

guidelines, for instance, can be drawn from the “International Working Party Report On The

Vegetative State,”128 where it is presented, that depending on the severity of initially incurred

damage, patients can emerge from a persistent vegetative state after the several years of

suspension, and following that, might lead a more or less normal human life. In such the

guidance drawn by the British Medical Association, for example, it is being provided that the

“decisions to withdraw treatment should only be considered when the patient has been

insentient for 12 months[,]”129 while in the case of Haleigh, that was done just within nine

days.

What is also beneficial to take in mind, is for the doctors, when reasoning on making a

unilateral decision on withdrawing/withholding a treatment from a patient, by placing a DNR

order on him in view that the treatment is medically pointless, is to be sensible to the patient's

past and his guardian's present views, and consider, as some argue, “that a court could even

determine that it is in a PVS patient’s ‘best interests’ to remain alive - notwithstanding the

medical view that treatment was medically futile - if there was persuasive evidence that the

patient valued being alive in whatever condition he or she would survive.”130 Patient in a PVS

state may have had a deep religious conviction, that, according to the Bible, he must endure

all his hardships to the end and not to run away from them, and though in a PVS state one

cannot go through any hardships, as the element of being able to experience them is missing

and one's spirit which may suffer, is not legally nor scientifically recognized, and therefore

that would not amount to one's exercise of the religious belief as protected by the Article 9 of

127 “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.” Office of the United Nations High Commissioner for Human Rights. Updated - 10 Dec. 1984. Retrieved - 18 May 2006 <http://www.ohchr.org/english/law/cat.htm>.

128 “International Working Party Report On The Vegetative State - 1996.” Coma Recovery Association, Inc. Updated - 23 Dec. 2002. Retrieved - 19 May 2006 <http://www.comarecovery.org/artman/publish/ReportOnTheVegetativeState.shtml>.

129 “Treatment decisions for patients in persistent vegetative state.” British Medical Association. Updated - Jun. 1996. Retrieved - 19 May 2006 <http://www.bma.org.uk/ap.nsf/Content/pvs>.

130 Gevers, S. “Withdrawing Life Support from Patients in a Persistent Vegetative State: the Law in The Netherlands.” European Journal of Health Law (vol.12, no.4, 2005): 353.

47

the European Convention on Human Rights, that would be still ethically and morally correct

and of the benefit to a society as a whole, in my view, not to act against patient's guardian

objections, if possible, not at least in a blunt way. Such objections must be reasonable

however, meaning that if a patient will be resuscitated, that will not subject him to an even

greater suffering, as has been determined to be the case with the 19-month-old boy, born with

severe physical and mental disabilities, and later given the DNR order over objection of his

parents, because the High Court has found that the boy's parents were overly optimistic about

their son's prospects for a recovery, and “that it was likely that his condition would deteriorate

rapidly and that further artificial ventilation would lead to a death that was "neither peaceful

nor dignified".”131

As in regards to the situation concerning NVPE in Latvia, to my knowledge, up until now

there were no court cases disputing over a guardian's demand for a patient to be taken off the

life support machine, or objecting to a DNR order.

Medical sector in Latvia is quite under funded, in comparison to the “western standard,” and

probably not too many people even know that they can make the living will and/or to object

to an unwanted medical treatment, as it is safer for doctors not to discuss that with their

patients and just to do their duty, without being involved in anything that might present them

a legal or professional headache. And that state of medicine in Latvia is reflected in the

country's laws as well, which in the relation to an incompetent patient, are contradictory.

That contradiction occurs because of the clash of the two articles and an ambiguity within the

one of them, - the Article 49 of the “Medical Treatment Law,” and the Article 25 of the “On

Medical Practitioners” statute. The first law holds, that in the case when a delay threatens

patient's life, and it is not possible to obtain the permission from patient's family and/or his

guardian for a medical intervention, a doctor's conference is to decide on the needed medical

treatment plan for such a patient, save for emergency situations when an immediate action is

required.132 The second provision in law, delivers that, if a patient, his family members or a

guardian, voice their objection to a medical assistance, and as a result of such refusal it is

possible that patient's health condition will deteriorate or that he will die, a doctor in such 131 “Disabled boy 'should die with dignity'.” BBC (British Broadcasting Corporation). Updated -

12 Jul. 2000. Retrieved - 21 May 2006 <http://news.bbc.co.uk/2/hi/health/830346.stm>. 132 “Ārstniecības likums.” Latvijas Likumi. Updated - 1 Jul. 1997. Retrieved - 17 May 2006

<http://www.likumi.lv/doc.php?id=44108>.

48

situation is obliged to make it clear for the objecting party what its refusal will result in, and

to try to direct them to visit another medical practitioner.133

It is clear that these two articles are contradictory, and the ambiguity inside the Article 49, is

that it is not clear about what does the “not possible to obtain the permission” means, as it can

be interpreted in two ways. Either it supposes, that a patient's family/guardian cannot be

reached for their comment on medical treatment, or the statute can be viewed as providing

doctors with the legal instrument to perform medical treatment over objection of patient's

relatives/proxy.

I imagine, if there is to be a court case on the matter of withdrawing/withholding treatment

from a patient, a court would view that the Article 49 would be seen as allowing doctors to act

in opposition to the objections raised by a patient's guardian, as the principle of medical

intervention is to care for the patients, and doctors are obliged to help people. And I suppose,

that the Article itself would be viewed as not concerning the withdrawal of treatment, but its

withholding, because there is the reference in the Article to an emergency situation. However,

even if that can be interpreted to be so, and thus the clash between the article is resolved, that

ambiguity serves no purpose in law, in my opinion, and the Article 49 must be amended to

directly point out, that in the absence of the living will, in the emergency situations patient's

guardian cannot object to a treatment. The Article 25 must be amended also, because

currently it does not protect vulnerable members of society, as a withdrawal of patient's

treatment may occur in a non-terminal medical situation, and there must be no such leeway

provided in law.

Non-Voluntary Active Euthanasia

Now, it has been discussed, that in certain cases and under satisfied conditions, it is

permissible to withdraw/withhold life support treatment from a patient who's cognitive

functions are not developed yet or are impaired, making a patient in no position to neither

immediately consent nor to object to his medical sustenance, but can there be a justification to

take the active steps in regards to an incompetent patient, that would bring his death?

In Latvia, and which I believe must be the universally accepted medical principle worldwide, 133 “Par prakses ārstiem.” Latvijas Likumi. Updated - 8 May 1997. Retrieved - 24 May 2006

<http://www.likumi.lv/doc.php?id=43338>.

49

according to the “Doctor's Code of Ethics,” a doctor is ought to ease patient's suffering and to

let him die in dignity, when the death is imminent.134 This principle, I assume, would apply to

such cases, for example, when due to the car accident a driver has a big open wound and it is

evident that his critical internal organs are so severely damaged that even the emergency team

cannot do much about preventing swift arrival of death. However, this standard surely does

not give to physicians the right to take progressive action, to completely stop patient's

suffering right in its tracks, so to say. “But why not?” - can be argued, “is it not cruel to see

torn apart person in agony and not to help him to pass away peacefully?” It would be

reasonable to say, in the context of Haleigh's case, that even an “evidently” futile medical

condition might turn out to be not so hopeless after all, and therefore one must not judge a

situation hastily and pick an easiest solution available, leaving a vulnerable person

unprotected from the misjudged outside influence.

That has been the reasoning for the above mentioned road accident case, - the emergency

situation with a lot of movement in its atmosphere, metaphorically speaking. What would be

the reasoning, however, not to take active death bringing steps in a relatively slow-paced

stationary condition and in regards to a severely impaired infants, like in the cases of Kadijk

and Prins (touched upon in chapter 1.2 of the present thesis), where there exists a body of the

medical evidence, that babies with such defects have no prospect for their future recovery -

they live in pain and will die in the matter of months, and where there is all the time that is

needed to unmistakably confirm a futile medical condition? What would be the difference

between the DNR order, coupled with the administration of pain killing drugs, and the active

euthanasia?

In my view, in the cases where there is a conclusive evidence, that a patient will soon die and

that all the time prior to his death, he will suffer, there is no legal or moral consideration, if

there are no objections from patient's/family's/guardian's side, not to allow active steps to be

taken, that would put a patient at rest. The only reasonable objection that can be presented

here, is the slippery slope argument (which will be touched upon again later in this text), - that

by allowing a certain conduct, the practice will be broadened, not by the legal framework, but

by the human mind, as can be seen to be the case with the double effect doctrine.

134 “Latvijas Ārstu Ētikas Kodekss.” Medicina.lv. Updated - 9 Oct. 1998. Retrieved - 22 May

2006 <http://www.medicina.lv/lat/second4.php?page=zakoni&page=zakoni&P1=4>.

50

Involuntary Euthanasia

As concerning involuntary euthanasia practice, there is not much that can be said about it, in

my opinion, except the words of condemnation and that no one must be murdered that way,

by covering this criminal conduct with a perceptibly credible cause. And in my opinion it

would be morally perverted to execute IVE even in the following hypothetical cases:

− “A soldier has [his] stomach blown open by a shell burst. [He is] in great pain and

screaming in agony. [He] beg[s] the army doctor to save [his] life. The doctor knows that

[he] will die in ten minutes whatever happens. As he has no painkilling drugs with him he

decides to spare the soldier further pain and shoots him dead.

− A person is seen at a 10th floor window of a burning building. [His] clothes are on fire and

fire brigade has not yet arrived. The person is screaming for help. A passer by nearby

realises that within seconds the person will suffer an agonising death from burns. He has a

rifle with him and shoots the screaming person dead.

− A man and a woman are fleeing from a horde of alien monsters notorious for torturing

human beings that they capture. They fall into a pit dug to catch them. As the monsters

lower their tentacles into the pit to drag the man out he begs the woman to do something

to save him. She shoots him, and then kills herself.”135

2.3. Should we have a conscious right to die? Physician-assisted suicide

When I have just started to work on this thesis paper, I wanted to present one's sentient

decision to die, as a human right, because I have thought that I must be allowed to do

anything with my life as I please, - it is my sovereign right to kill myself if I want to,

especially if the reason for that is meaningful enough. Though this is correct that my life is

my own and I can commit a suicide, if that would be my wish, public officials however, must

exercise extreme caution in aiding someone's death, so as to preserve well-being and order of

society, because when my sovereign right is exercised in a vacuum, so to say, without

anyone's else involvement, there is no possibility for an improper conduct towards me, but

when there is an intersection with a third party, my sovereignty is no more pure, and the door

for a possible misconduct opens up. Thus, as the work has progressed and I gained broader

perspective on the issues of life and death presented in this work, my view now is, that one's

135 “Examples of Involuntary Euthanasia.” BBC (British Broadcasting Corporation). Updated -

not known. Retrieved - 30 May 2006 <http://www.bbc.co.uk/religion/ethics/euthanasia/euth_invol_exs.shtml>.

51

determination to die, because of certain complicated circumstances, must not be given a

human right status, but should rather be an exception to the “right to life” principle. The

reason I have changed my standpoint is because during my research I have discovered, that

certain people who were assisted in their suicide, were determined and helped to die because

of, in my view, clearly uncompelling reasons, and it is up to the government to protect its

citizens in such cases. These uncompelling considerations are the ones which purely or partly

amount to the person's psychological suffering, which may or may not, be coupled with a

non-terminal medical condition.

Mental suffering alone, like in the case of Chabot (p. 12 of this paper), must never be grounds

for one's suicide, and especially the suicide assisted by a medical practitioner, which in my

conviction, is a gross negligence and unprofessionalism to help someone die because of a

supposedly unbearable psychological suffering, resulting from an aimless living and

unwillingness to reconsider own life. In my mind, the case of Chabot lucidly shows in action

the fears of anti-PAS/VAE argumentators:

− that doctors will not do their best to help patients and opt for a quick resolution of a

problem, which is not only morally depraved, but that effectively stalls doctor's personal

professional growth and hinders advancement in the area of patient's care as a whole,

therefore amounting to exactly the opposite of what a doctor must strive to, as according

to the Latvian “Doctor's Code of Ethics,” and I am sure most other's countries code's of

ethics as well. For instance, the code of ethics as laid out by the American Medical

Association provides, that “[a] physician shall continue to study, apply, and advance

scientific knowledge, maintain a commitment to medical education[;]”136

− the Chabot's case also shows, that the vulnerable members of society, such as elderly

people, may be directly or indirectly pressured to end their lives, because of the heartless

actions or ignorance of their children, with whom they live, for example;

− thus the trust in medical profession will crumble, and it is possible that not only there will

be no improvement in the medicine, but that the public health sector will even deteriorate.

Though, for me at least, it is hard to imagine that anything like that may happen on a

substantial scale, unless people will fall so heavily on their morals so as to plunge into

something comparable to the times of the Nazi rule, and thus, while applying only to the one's

who should not be working in the medical sphere in the first place, these are still valid 136 “Principles of medical ethics.” American Medical Association. Updated - 17 Jun. 2001.

Retrieved - 23 May 2006 <http://www.ama-assn.org/ama/pub/category/2512.html>.

52

arguments, when looking at them through the lens of Chabot's case.

Albeit I am not a medical professional and cannot judge for all the possible cases of mental

pain, and perhaps there exists a number of valid instances where a punishing mental distress

results from the medical complication related to the human brain, but to assist a depressed

person's death, even if it is a severe chronic depression, is plain wrong. Psychological pain in

the absence of a physical brain damage/abnormality cannot be incurable, and in fact, medical

professionals “are coming to believe that psychological factors play a crucial role in

perpetuating many physical illnesses[,]”137 and therefore by your own thinking you either

aggravate your condition or not.138 In turn, one's thinking is certainly influenced by the

surrounding environment and whether one is being active in his life or not,139 and it is

interesting to note, that according to the “Eighth Annual Report on Oregon’s Death with

Dignity Act,” persons who were never married or are divorced, are more likely to opt for PAS

in comparison to the one's who are married or widowed.140 This suggests, that a person who

has no one close and intimate to turn to for comfort and empowerment in difficult times, if

even in memories (in case of a widow(er)), has less strength to fight for his life till the end.

That is also substantiated by the finding, that patients who request PAS can be characterized

as independent and self-sufficient people who do not wish to rely on others, and can even be

ashamed about that, as seen from the following sketch, - “[i]t was embarrassing for him [to be

reliant,] in terms of his tough, macho, partly Native-American image and as head of the

household, and he has always been the leadership, and in charge.”141 If that can be the case

with one's family, then what can be said about patient's physician, who can be a complete

stranger to him, and there cannot be even a hint for the hand-giving relationship? Therefore it

is evident, that there is a strong need for the medical personnel on all levels of the system, to

137 Schorr, M. “Is It All in My Head?” Psychology Today Magazine. Updated - 20 Jul. 2005.

Retrieved - 23 May 2006 <http://www.psychologytoday.com/articles/pto-20050503-000002.html>. 138 Moore, N. D. “Pain that is relieved by placebo is not therefore unreal.” British Medical

Journal. Updated - 1 Jan. 2005. Retrieved - 23 May 2006 <http://bmj.bmjjournals.com/cgi/content/full/330/7481/45-c>.

139 Ansorge, R. “Cognitive Factors Affect Acceptance of Chronic Pain.” Mental Help Net. Updated - 8 May 2006. Retrieved - 23 May 2006 <http://mentalhelp.net/poc/view_doc.php?type=news&id=93568>.

140 “Eighth Annual Report on Oregon’s Death with Dignity Act.” Official Web Site for the State of Oregon. Updated - 9 Mar. 2006. Retrieved - 23 May 2006 <http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf>. p. 12

141 Ganzini, L., Dobscha, K. S., Heintz, T. S., Press, N. “Oregon Physicians’ Perceptions of Patients Who Request Assisted Suicide and Their Families.” Death with Dignity National Center. Updated - 25 Sep. 2002. Retrieved - 25 May 2006 <http://www.deathwithdignity.org/documents/Oregon%20Physicians.doc>. p. 7

53

provide their patients with encouragement to aspire to live and to promote that cause in every

possible way.

It has been just suggested that the reasons to choose PAS are largely psychological, and

according to the “Eighth Annual Report on Oregon’s Death with Dignity Act,” most stated

reasons for assisted suicide comprise of not being able to take part in activities making one's

life enjoyable, loosing dignity and autonomy.142 These are all, arguably, intangible

considerations for choosing PAS, being of the nature of a hopelessness and depression as seen

in the Chabot's case. And while a professional, open and compassionate approach to these

issues can lead for a patient to abandon the idea of resorting to PAS,143 in my view, PAS can

be seen even as a sort of psychological support tool. That is so, because a patient will die

anyway of natural causes, and even if he would never go through all the PAS process till the

end, and complete it, it is still a “great reassurance to know that [a lethal medication] is

available in case [he] require[s] it.”144 A patient, therefore, has a peace of mind, as he knows

that when his pain will become to be too terrible to take it any longer, - he is in the control of

the situation and he will have the means to end his torment.

In regards, as to why provide PAS only to the terminally ill people, and to counter the

argument, that “if it is cruel to force someone to go on living who will die shortly anyway, it

would seem to be even more cruel to force someone to endure suffering for a longer

period[,]”145 I would say that the exception to the “right to life” is provided precisely because

a terminally ill person will soon die, and that there's nothing that can stop his condition from

being deteriorated, while in other cases, a condition perhaps may not always be curable, but at

least it can be certainly controllable, and it would be wrong not to treat such people in the best

possible way, and to let them die instead. So such “discrimination” is justified on grounds of

public policy and the need to provide protection from malicious exploitation to the vulnerable 142 “Eighth Annual Report on Oregon’s Death with Dignity Act.” Official Web Site for the State

of Oregon. Updated - 9 Mar. 2006. Retrieved - 23 May 2006 <http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf>. p. 14

143 Bascom, P. B., Tolle, S. W. “Responding to Requests for Physician-Assisted Suicide.” Journal of the American Medical Association. Updated - 3 Jul. 2002. Retrieved - 19 Apr. 2006 <http://jama.ama-assn.org/cgi/content/full/288/1/91>.

144 “Lords Hansard text for 12 May 2006 (60512-01).” The United Kingdom Parliament. Updated - 12 May 2006. Retrieved - 28 May 2006 <http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/60512-01.htm>.

145 Steinbock, B. “The case for physician assisted suicide: not (yet) proven.” Journal of Medical Ethics. Updated - 29 Jan. 2004. Retrieved - 10 Apr. 2006 <http://jme.bmjjournals.com/cgi/content/full/31/4/235>.

54

persons.

Therefore there must be no exception to the “right to life” for cases where one's physical

health is not threatened by a terminal condition, and thus I find that there is a need for the

Dutch end-of-life legislation admissibility requirements (p.22 of this paper) to be amended, as

to be more specific and restrictive.

Voluntary active euthanasia

The turn has now come for the final part of the discussion, - the VAE practice, which

technically differs from the PAS only in that the lethal agent, here, is administered not by a

patient himself but by a physician. “And why is there the need for a physician to be able to

administer a lethal drug by his own hands, is PAS not good enough already?” - can be asked.

To answer that, - it has previously been discussed for the NVPE practice, that a severely

deformed newborns might benefit from the active assistance, and even not all competent

persons have the possibility to administer a lethal medication personally, the Diane's Pretty

case being the good example of that kind of situation. Also, the Dutch research shows that

sometimes PAS attempts have failed and the doctors have stepped in to the process to perform

VAE.146 Complications for the three of the patients during PAS process, were also reported

by the Oregonian authorities for the year 2005,147 and such difficulties have been declared to

take place in the three previous years as well.

And another point in the favor of VAE, that is being made by Mr. Minelli of “Dignitas”148

and another Swiss right-to-die group “EXIT,”149 is that by legalizing VAE, a patient who is

contemplating about his death by the means of PAS (active euthanasia is considered to be

illegal in this case), in certain situations will actually live longer, as he would not need to be

dying in a hurry out of the concern, that as his motor functions become increasingly weaker,

so as he would not be able to administer a lethal agent himself, there is the reason for him to

146 Keown, J. “Euthanasia, Ethics and Public Policy: An Argument against Legalisation”, 2002, p.

34 147 “Eighth Annual Report on Oregon’s Death with Dignity Act.” Official Web Site for the State

of Oregon. Updated - 9 Mar. 2006. Retrieved - 23 May 2006 <http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf>. p. 13-14

148 “A date with death.” Times Online. Updated - 16 Apr. 2006. Retrieved - 4 May 2006 <http://www.timesonline.co.uk/printFriendly/0,,1-531-2121731-531,00.html>.

149 Sobel, J. “Outline of the campaign to decriminalise active euthanasia in Switzerland.” Association EXIT. Updated - 5 Apr. 2004. Retrieved - 17 Apr. 2006 <http://www.exit-geneve.ch/Exitldepangl.pdf>. p. 3

55

die “in advance,” although the person knows that it is not the time yet for him.

When it comes to the critique of the permission for a person's to be able to choose the timing

of his own death, the strongest argumentation against euthanasia and PAS, is the “slippery

slope” criticism, in which all the other non-religious objections have their roots, I believe.

That has been the concern half a century ago, and it is still true today, - the real opposition to

these end-of-life practices is grounded in the “consequentialist”150 reasoning.

However, if we are to look at the statistics of PAS/euthanasia provided by the state of Oregon

and the Netherlands, it can be concluded that the number of people who are put to rest by

these practices, does not sway significantly. The number of people who have died as the result

of PAS in the Oregon are presented in the table below, and in terms of comparing the figure

for the year 2005 to the total number of deaths of that year, it would amount to about

0.12%:151

1998 1999 2000 2001 2002 2003 2004 2005 16 27 27 21 38 42 37 38

For the Netherlands, the officially reported figures for the deaths due to the both assisted

suicide and euthanasia are presented below, and if we are to view the year 2001 figure in

terms of the percentage to the total number of deaths, - these end-of-life practices would make

up about 1.46%:152,153,154

2000 2001 2002 2003 2004 2005 2123 2054 1882 1815 1886 1933

150 Steinbock, B. “The case for physician assisted suicide: not (yet) proven.” Journal of Medical

Ethics. Updated - 29 Jan. 2004. Retrieved - 10 Apr. 2006 <http://jme.bmjjournals.com/cgi/content/full/31/4/235>.

151 “Eighth Annual Report on Oregon’s Death with Dignity Act.” Official Web Site for the State of Oregon. Updated - 9 Mar. 2006. Retrieved - 23 May 2006 <http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf>. p. 4, 11

152 “Jaarverslag 2003 (nieuw venster).” Regionale toetsingscommissies euthanasie (Regional review commissions for euthanasia). Updated - May 2004. Retrieved - 31 May 2006 <http://www.toetsingscommissieseuthanasie.nl/Images/jv%202003_tcm9-1077.pdf>. p. 11

153 “Jaarverslag 2005 (nieuw venster).” Regionale toetsingscommissies euthanasie (Regional review commissions for euthanasia). Updated - Apr. 2006. Retrieved - 31 May 2006 <http://www.toetsingscommissieseuthanasie.nl/Images/jaarverslagRTE2005_tcm9-1973.pdf>. p. 11

154 Onwuteaka-Philipsen, B. D., Heide, A., Koper, D., Keij-Deerenberg, I., Rietjens, J. A. C., Rurup, M. L., Vrakking, A. M., Georges, J. J., Muller, M. T., Wal, G., Maas, P. J. “Euthanasia and other end-of-life decisions in the Netherlands in 1990, 1995, and 2001.” The Lancet. Updated - 17 Jun. 2003. Retrieved - 23 May 2006 <http://image.thelancet.com/extras/03art3297web.pdf>. p. 2

56

In my view, these figures are convincing in terms that over the years they have remained more

or less the same, and there is no slide increase in the practices so as to suggest that they are

being broadened by means of a corrupt human reasoning, and that the society would come to

accept it.

It also must be noted, that as is the case with Oregon, in the Netherlands too, the reason to opt

for one's life to be ended by euthanasia/PAS is not purely because of one's extreme pain, but

mostly due to the deterioration. That strong trend, - the diminishing significance of pain, as

being the reason to not to wait for the death due to a natural causes, and the growing concern

of one's deterioration, is being traced from the 1970s.155 Therefore it is evident, that though

the ever advancing medical technology can alleviate one's pain, it cannot lift one's declining

spirit.

Recent surveys of the British medical practitioners,156 show that the majority of them are

against the legalization of PAS/VAE, but these practices however, as has already been

mentioned, still make up about 0.5% of all deaths in the country, which is something of the

middle ground between the 0.12% as in the case of Oregon and 1.46% being the case with the

Netherlands. Looking at these numbers, I do not see how the UK, or Latvia (for which there is

no underground PAS/VAE statistics though, but where these practices do take place) can only

but to benefit from the legalization of assisted suicide and active euthanasia, because by doing

so, not only the end-of-life practices can be reviewed and perfected, meaning that the

vulnerable persons will be protected, but also the patients who were not fortunate enough to

stumble upon a physician who would help them to pass away peacefully, will now have that

opportunity.

The important concern is also, - “[j]ust how autonomous [the] requests for VAE”157 can be?

Perhaps it may be difficult to be sure, if an ill senior patient wants to end his life just not to be

155 Marquet, R. L., Bartelds, A., Visser, G. J., Spreeuwenberg, P., Peters, L. “Twenty five years of

requests for euthanasia and physician assisted suicide in Dutch general practice: trend analysis.” British Medical Journal. Updated - 26 Jul. 2003. Retrieved - 30 May 2006 <http://bmj.bmjjournals.com/cgi/content/full/327/7408/201>.

156 “Doctors in revolt over legalising euthanasia.” Times Online. Updated - 10 May 2006. Retrieved - 30 May 2006 <http://www.timesonline.co.uk/article/0,,8122-2173618_1,00.html>.

157 Keown, J. “Euthanasia, Ethics and Public Policy: An Argument against Legalisation”, 2002, p. 56

57

of a burden to his children, or if he is even pressured by them to do so. For such reasons, - to

protect the vulnerable member of society, I believe that the Dutch legislation on euthanasia

and assisted suicide must be amended, and other countries, if they are to consider legalizing

these practices, should model their laws on the basis of the Oregonian “Death With Dignity

Act.”

What I consider to be wrong with the legislation of the Netherlands, is that just about anyone

who is suffering in some way (the Chabot's case), may be assisted in suicide or euthanized.

While I believe, that largely, only the people who can be seen as qualified for the PAS under

the Oregonian rules, do receive access to PAS/VAE in the Netherlands, cancer being the

stated reason for the 1713 out of the 1933 deaths in the year 2005,158 the law must be changed

nevertheless, so as to prevent cases of the likeness of the Chabot ever happening. Only

terminally ill people must be allowed to use PAS/VAE practices, and there are no compelling

reasons so as to permit people with other types of illnesses to be allowed to die, at least that is

so from my personal viewpoint, as so far, I have had an experience to witness only the

terminal illness.

Conclusion The purpose of medical profession has been and always will be, to care for the sick and dying.

However, “[o]ne of the achievements of modern medicine is the creation of chronic

illness[,]”159 in the sense that in certain situation and to a certain extent it is now possible to

perpetuate person's seriously difficult state of health, of which a patient may not even have a

possibility to be aware of. But we have not only made advancements in the medical care and

technology, - we have also progressed in our outlook on life, which I believe, has been

deepened and made more profound. We have moved away from the traditional definition of

life, that views the heartbeat as the only required condition for the person to be considered

alive, - we now hold one's consciousness as that what is important, and that what makes us to

be able to experience life. Would there be any benefit to the patient, if his heart is just to

pump his body's blood for many years, till his death, without the patient actually participating

158 “Jaarverslag 2005 (nieuw venster).” Regionale toetsingscommissies euthanasie (Regional

review commissions for euthanasia). Updated - Apr. 2006. Retrieved - 31 May 2006 <http://www.toetsingscommissieseuthanasie.nl/Images/jaarverslagRTE2005_tcm9-1973.pdf>. p. 11

159 Loewy, E. H., Loewy, R. S. “The Ethics of Terminal Care: Orchestrating the End of Life”, 2002, p. 2

58

in the life, - the activities of the mind? Not for me, at least.

In certain cases, to brake free from the situation where doctors can bring no cure to a hopeless

condition of a patient, the obvious, but tough choice, is to release that person from the medical

care and perhaps to even aid him in the active way.

If we will apply and follow the holistic approach to the personal health, support of which is

ever increasing in the world, and which holds that the person is not the sum of an individual

parts, but rather the interconnected whole, where the physical part affect the psychological

and vice versa, - the “good death” might not necessarily come as a result of the assisted

suicide or euthanasia.

The palliative care, however, must not be imposed as the only one solution for the prevention

of patient's suffering. I believe, that it is possible to effectively regulate in law, all the valid

end-of-life tools, and that being the case, the state is ought to provide these instrument to the

one's who need them.

In the western part of the world, the dominant religion is Christianity, and the followers of

this religion are predominantly against the intentional ending of person's life, even if in a

passive way, because only the God must be giver and the taker of person's life. We live in the

multicultural world however, where everyone is entitled to his own views, and the end-of-life

statutes do not interfere with the “sanctity of life” belief.

What I believe in, is that everyone's death should happen in a peaceful manner and in a

dignified way. And if that is to be achieved by the carefully regulated process of assisted

suicide or euthanasia, I see these practices as an important means for the caring of a person.

59

Annex 1 Terri Schiavo's Computed Tomography (CT) Scan

Image on the left: scan of normal 25-year-old's brain.

Image on the right: Terri Schiavo's CT scan in year 2002 at age of 38 (after 12 years of

sensory deprivation). The bright dot is an electrode that was implanted as experimental

treatment in 1990, in an attempt to stimulate brain function.160 The black area is a spinal fluid

that occupies the space of cerebral cortex.161

Cerebral cortex has the following functions: it determines intelligence and personality,

interprets sensory impulses, is responsible for motor function, touch sensation and

planning/organization.162

160 “Terri Schiavo.” Wikipedia, The Free Encyclopedia. Updated - 24 Apr. 2006. Retrieved - 27

Apr. 2006 <http://en.wikipedia.org/w/index.php?title=Terri_Schiavo&oldid=49862911>. 161 “Terri Schiavo's husband allows her family to visit.” CNN News. Updated - 23 Oct. 2003.

Retrieved - 18 May 2006 <http://www.cnn.com/2003/LAW/10/22/coma.woman/>. 162 “Anatomy of the Brain - Cerebral Cortex.” About, Inc. Updated - not known. Retrieved - 19

May 2006 <http://biology.about.com/library/organs/brain/blcortex.htm>.

60

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