Specific Legal Issues on Terminally Ill Patients
The issue of euthanasia, regardless of its ethical, religious, or medical implications, is a highly important subject as far as the legal nature of the matter is concerned.
Precedent establishes that decision-making for issues regarding the assisted-termination of a medically-determined terminally-ill patient’s life to alleviate further suffering is beyond the physicians’ jurisdiction and falls within the reach of appointed legal experts or “Ethics Committees[1]”.
I. Arguing to death over euthanasia...
The issue of euthanasia presents some peculiarities, which are similar to those observed in the issue of abortion. Up until 1986, abortions were forbidden in Greece. The “dark” number (Dunkelziffer) was estimated between 200 and 400 thousand cases of abortion per year. The operations were held under poor hygienic conditions, which obviously jeopardized the pregnant woman’s health. Each year, only three or four cases made it to court. Law philosophers would argue that this results in a disharmony between social conscience and standing Law provisions.
In 1986, the legislation concerning abortions was rectified, according to the Act 1609/1986, freely allowing them to be carried out during the first trimester of pregnancy, without obligating the pregnant woman to justify her decision. After the first three months, however, abortion is permitted only under circumstances that jeopardize the pregnant woman’s health, or if there is a high risk of delivering a genetically defective newborn.
The issue of euthanasia is still more complicated. On the one hand, one may argue that a terminally-ill person, subject to severe pain, may wish for a dignified death that puts an end to suffering or long-term hospitalization. On the other hand, life is held as a supreme social and legal right and to prematurely end it not only causes fear and panic, but establishes a dangerous legal precedent.
This issue has been the source of much debate. Hippocrates forbids euthanasia in his “Oath[2]”, while Plato, in his “Laws”, upholds the right of a terminally ill patient to commit suicide.
The Church holds life as God’s gift and no individual, regardless of the circumstances, is allowed to end the life of another. "A man, even if seriously sick or prevented in the exercise of its higher functions, is and will be always a man ... [he] will never become a “vegetable” or an “animal”. “The intrinsic value and personal dignity of every human being does not change depending on their circumstances”[3]. Pope John Paul II, 2004
“To destroy the boundary between healing and killing would mark a radical departure from longstanding legal and medical traditions of our country, posing a threat of unforeseeable magnitude to vulnerable members of our society. Those who represent the interests of elderly persons with disabilities, and persons with AIDS or other terminal illnesses, are justifiably alarmed when some hasten to confer on them the "freedom" to be killed”[4].
However, it may be argued that ecclesiastical rules are centuries old and, hence, archaic and obsolete. Take a patient who suffers from the final stage of cancer, for example. This patient’s condition is terminal and as a result he/she desires to die to put an end to the severe pain. The Church’s belief that life is a gift regardless of its form is respectable, but it overlooks two important aspects: the quality of a patient’s life who suffers from a terminal disease and what we today claim as the right of a human being to live and die in dignity. The arguments supporting the Church’s teachings, including the official view-point of the Pan-Hellenic Medical Association and of the Greek State, are summarized in one phrase: No human being has the right to end the life of another, even a few minutes before its natural end. The opposing points of view can be summarized by this quote stated by Bertrand Russell: “I cannot understand a God who is happy seeing his creatures suffer”.
There are too many acts in our country legislating parameters and guidelines for the issue of Euthanasia. Furthermore, another problem inherent in our legal system, and other legal systems around the world, is our citizens’ attitude to loosely abide by the laws and to readily infringe upon them. In fact, it is when the law is breached that the law-makers of those states that have not yet legalized euthanasia become frightened. Under the excuse of “the quality of a life that is not worth living”[5], Hitler found the chance to eliminate thousands of patients who were hospitalized in mental institutions.
No one is in a position to know the motives that drive certain people to commit active euthanasia. It may be in the close relatives’ legitimate interests to approve of a procedure like euthanasia, however, their motives are sometimes not so noble, i.e. in the case of their having hereditary rights. People against euthanasia would support the theory that a patient’s consent, even in the case that it is expressed in the form of a voluntary and durable request, is not an expression of free will, rather it is a decision influenced or even negated by pain, discomfort and agony, made by a terminally ill patient.
Sometimes, the decision could be affected by what we can call “the living donor’s syndrome” to a relative. It may be the case that consent is not given based truly on the patient’s free will, but rather on the feeling of obligation towards family and relatives.
II. Forms of euthanasia and assisted dying for terminally ill patients. Legal issues.
1. The definition of the word “euthanasia”[6]:
•Euthanasia: the intentional killing by act or omission of a dependent human being for his or her alleged benefit [7].
In Greece, such acts performed without the patient’s consent are punishable by lifetime imprisonment. A physician performing euthanasia upon a voluntary and durable request on behalf of a terminally ill patient is subject to five years of imprisonment. In other countries, there is a distinction between murder and manslaughter, or as defined by German law, “Mord” and “Totschlag”. Manslaughter or “Totschlag” is punishable by milder penalties.
•Voluntary euthanasia: When the person who is killed has requested to be killed.
•Non-voluntary euthanasia: When the person who is killed made no request and gave no consent.
•Involuntary euthanasia: When the person who is killed made an expressed wish to the contrary.
•Assisted suicide: When someone provides an individual with the information, guidance, and means to take his or her own life with the intention that they will be used for this purpose. When it is a doctor who helps an individual to kill one’s self, it is called "physician assisted suicide".
•Euthanasia by Action: Intentionally causing a person's death by performing an action such as giving a lethal injection.
•Euthanasia by Omission: Intentionally causing death by not providing necessary and ordinary (common and customary) care or food and water[8].
2. There is much debate over whether or not ”passive euthanasia”, “euthanasia by omission”, or the act of non-compliance with due care requirements so as the terminally ill patient to die in peace, constitutes a penal offence. Though this issue is irresolute at present, international legal theory concludes that non-compliance with due care requirements is not within the realm of penal law.
The terms "physician-assisted suicide" and "euthanasia" are often used interchangeably. However, the distinctions between them are significant. "Physician-assisted suicide" involves a medical doctor who intentionally provides a patient with the means to kill himself/herself, usually by an overdose of prescription medication.
"Assisted suicide" involves a layperson providing the patient with the deadly means for suicide.
"Euthanasia" involves the intentional and direct killing of a patient by a physician or by another individual, most commonly by lethal injection. Euthanasia can be voluntary (at the patient's request), non-voluntary (without the knowledge or consent of the patient), or involuntary (contrary to the patients wishes).
It is important to note that a person can reject medical treatment at the end of his/her life without committing euthanasia or physician-assisted suicide. (“supra”).
The requirements for the term “euthanasia” to stand must be cumulative:
a. A voluntary and persistent request.
b. Full information.
c. Intolerable and hopeless suffering.
d. No acceptable alternatives left.
e. Consultation of another independent physician[9].
3. One of the most challenging legal issues arises when the physician administers medications at sufficient dosages to relieve pain, which could possibly though cause or accelerate death. In this case, the physician will either be accused of murder with implied malice (on the basis that he considered the death of the patient as a potential outcome of his actions and accepted it), or will be acquitted. It is our view that the physician should be found not guilty as the suffering of a terminally ill patient should be regarded as an illness that demands immediate treatment and entails high risk. Considering the fact that legal science allows the performance of high-risk surgical operations (i.e. open heart surgeries), then, the treatment of the pain, suffering or agony of the terminally ill patient should be considered as a high risk surgical operation and as a result the doctor should not be held accountable for any adverse outcomes.
If brain death occurs, the physician cannot be held liable for any act, or omission, given that the physician operates on a legally dead person. An issue that has occupied legal scientists is the case of a “Living Will,” in which a person indicates that he would prefer to be euthanized if faced with a terminal illness. Such “living wills” are regarded as illegitimate claims by quite a few legislations, including Greece’s.
4. One of the issues that still today occupies many legislations around the world pertains to whether a third party (a parent, child, or spouse for example) is entitled to or is in his/her legitimate interest to claim the termination of a patient’s life, who is in a persistent vegetative state (PVS), via judicial means.
In Karen Quinlan’s case (1975/1976), a US court denied her parents’ claim for euthanasia[10].
In 2005, the United States’ Supreme Court accepted a similar claim made by Terri Schiavo’s husband. Schiavo was in a persistent vegetative state for 15 years after suffering from a heart attack. This decision is of historical significance, deeming that the husband’s legitimate interests prevailed over a “weakened” form of life.
In the early 1980s, Jack Kevorkian argued in favor of deliberate euthanasia and in 1998 performed it on Tomas Hyde, who suffered from Amyotrophic Lateral Sclerosis (ALS). According to Greek law, Kevorkian’s act would have been legally classified as participation in suicide, because he assisted in the prospective suicide[11], and should have been punished by imprisonment of 10 days to 5 years.
Cases in which passive euthanasia could be permitted raise the issue of whether the physician is entitled, alleging reasons of conscience, to not perform the passive euthanasia himself. It is our view that the physician has the right to decline. It is also our opinion that the view of the updated Code of Medical Deontology[12] is correct.
III. The Resolution of World Medical Association on Euthanasia[13]
1.The World Medical Association's Declaration on Euthanasia, adopted by the 38th World Medical Assembly, Madrid, Spain, October 1987, states:
"Euthanasia, namely the act of deliberately ending the life of a patient, even at the patient's own request or at the request of close relatives, is unethical. This does not prevent the physician from respecting the desire of a patient to allow the natural process of death to follow its course in the terminal phase of sickness."
- The WMA Statement on Physician-Assisted Suicide, adopted by the 44th World Medical Assembly, Marbella, Spain, September 1992 likewise states:
"Physician-assisted suicide, like euthanasia, is unethical and must be condemned by the medical profession. Where the assistance of the physician is intentionally and deliberately directed at enabling an individual to end his or her own life the physician acts unethically. However the right to decline medical treatment is a basic right of the patient and the physician does not act unethically even if respecting such a wish results in the death of the patient."
3.The World Medical Association has noted that the practice of active euthanasia with physician assistance has been adopted into law in some countries. It proclaims that:
“The World Medical Association reaffirms its strong belief that euthanasia is in conflict with basic ethical principles of medical practice, and strongly encourages all National Medical Associations and physicians to refrain from participating in euthanasia, even if national law allows it or decriminalizes it under certain conditions”.
IV. The “altera pars”. The Dutch model.
The Netherlands has legitimated some kinds of euthanasia. In its comments on the Resolutions on euthanasia and therapeutic intransigence[14], it stated amongst others the following.
1. Scope and intention of the Resolution.
It is the opinion of the Dutch delegation that the scope of the resolution should include all dilemmas that can arise for doctors when they are treating patients who are at the end of their life. This implies a broader approach with attention on such issues as:
• Respecting the autonomous decision of a patient to refuse or withdraw consent for further medical treatment[15].
• Refraining from starting or continuing medical treatment in situations where such medical treatment must be considered futile from a medical point of view, either because it can no longer be considered to serve any reasonable purpose or because there is a severe disproportionality between the goals and the burdens[16].
• Increasing, in order to prevent suffering or pain, the level of medication to such dosages that - as an unintentional side-effect - the patient dies.
• Assisting a patient to commit suicide by providing him/her the means with which to end his/her life.
• Ending the life of a patient at his/her explicit request (euthanasia).
From this broader perspective of dilemmas in the treatment of patients at the end of their life, the question of euthanasia cannot and should not be considered as an isolated issue. In order to prevent overemphasizing euthanasia, we think it important also to pay ample attention to these other subjects as well in this resolution.
2. Opinion stated in the resolution on euthanasia.
The Royal Dutch Medical Association holds the firm and sincere conviction that euthanasia, defined as the ending of the life of a patient at his/her explicit request, should not be excluded as an option to the assistance doctors give their patients at the end of their lives.
The RDMA has always stressed that euthanasia and assisted suicide are to be seen as a last resort in those cases in which physicians and patients are standing with their backs to the wall and the patients’ suffering cannot be remedied or alleviated in any other acceptable way. It believes that through valid bio-ethical reasoning one can reach and support its point of view on euthanasia.
One of the central elements in the viewpoint of the RMDA is: there are situations in which a living person is lead to urgently request having his or her life ended when living further has become unbearable, meaningless and disgracing, when prolonged suffering overcomes the positive meaning of life. Provided that certain strict conditions are met, to follow such a wish is an act in which respect for human life and human dignity are expressed.
Of course the physician at all times should do his utmost to prevent the patient from finding himself/herself in a situation of unbearable, hopeless suffering, which may give rise to a request for euthanasia.
But the challenges for doctors in taking care of dying persons to the best of their abilities, include -if all possible palliative cares are deemed insufficient- the acceptance of patients’ requests for euthanasia, which is a reality of contemporary medicine.
It is generally accepted that euthanasia is not part of regular medical science: it is not a patient’s right. The acceptance of such a request on behalf of the patient entails certain basic priciples.
On the one hand, the duty to respect and preserve life and on the other hand the duty to end unbearable suffering when there is no prospect of improvement and the patient requests the physician to end his/her life. Physicians, when involved in the care for patients at the end of their life, can find themselves in a situation of conflicting duties[17].
In such situations the first value (respect for and preservation of life) should not necessarily always prevail. It is therefore ethically acceptable to give some leeway for a physician to decide that in a given situation the ending of further unbearable suffering, at the patient’s request, can and should take precedence over the duty to the perseverance of life.
The transgression of the basic medical rule to respect life requires evidence of high quality decision-making. This evidence can only come about through the transparency of these decisions and the accountability for them. Hence, the quality of the decision making process and the quality of the care provided are issues of fundamental moral importance.