TWO APPROACHES TO
RIGHT-TO-DIE LAWS:
GRANTING
PERMISSION & BANNING HARMS
SYNOPSIS:
Almost all of the laws (and proposed laws) on Earth
concerning with the right-to-die specify how to choose death:
They grant permission
for certain persons to aid others in dying.
Most such laws allow physicians to prescribe
life-ending drugs for qualified patients.
But a second category of right-to-die laws bans
harms as a form of homicide.
Such proposed laws separate behavior that is harmful to a victim
from behavior that is beneficial
to a patient.
So far, the only form of such laws
defines the new crime of causing
premature death,
which specify exceptions
to the old laws against assisting a suicide.
OUTLINE:
I.
LAWS THAT GRANT PERMISSION TO USE LIFE-ENDING DRUGS.
II. LAWS THAT BAN CAUSING
PREMATURE DEATH.
III. SOME ADVANTAGES OF
PUTTING THE RIGHT-TO-DIE WITHIN THE
HOMICIDE LAWS.
A.
PRESUMED INNOCENT.
B. THE
SAFEGUARDS BECOME OPTIONAL RATHER THAN
MANDATORY.
C. ANY
PROSECUTIONS WOULD FAVOR THE DEFENSE.
IV. CONCLUSION.
TWO APPROACHES TO RIGHT-TO-DIE LAWS:
GRANTING
PERMISSION & BANNING HARMS
by James Park
I.
LAWS THAT GRANT PERMISSION TO USE LIFE-ENDING DRUGS.
In the United States, the west-coast state of Oregon
has had a successful law since the middle 1990s
that permits physicians to write prescriptions for drugs
which can be used by the patient
for the purpose of bringing the patient's life to an end.
In 2009 the state of Washington implemented a similar law.
About 10 safeguards are embedded in Oregon's Death
with Dignity Act.
Here is the full text of the Act, with safeguards highlighted:
http://www.tc.umn.edu/~parkx032/SG-OR-DD.html
And here is another file with an
organized list of Oregon's safeguards:
http://www.tc.umn.edu/~parkx032/SG-LAWS.html
The basic
procedures are simple in principle:
Doctors certify that the patient qualifies under the law
by virtue of fulfilling the stated criteria.
Then after appropriate waiting periods,
the physician writes a prescription for a life-ending drug.
The law does not specify how and when the patient
should take the
chemicals
intended to bring a peaceful and painless death,
so that part of the
process is left in the hands of the individual
patient.
In the Netherlands, various laws and guidelines over
the years
have permitted physicians to grant death to their patients.
The procedures have been changed from time to time,
but they now basically permit a patient to ask for voluntary death.
If the physician believes that the patient meets the criteria,
the physician gives a lethal
injection that brings death.
About 5% of deaths in the Netherlands used to be achieved by this means.
In recent years, physician aid-in-dying in Holland
has mainly taken the form of terminal
sedation,
which does not require as much paperwork.
II. LAWS THAT BAN CAUSING
PREMATURE DEATH.
The other form of right-to-die law falls within the
laws against murder.
No such law has yet been enacted anywhere in the world.
But if and when the homicide law of any state or country is modified
to define what kinds of behavior constitute causing a premature death,
that very definition will also describe behavior that results in a
timely death
—a death that is not a harm
to the patient and is therefore not a crime.
Here is a draft model law called Causing Premature
Death:
http://www.tc.umn.edu/~parkx032/PREM-DTH.html.
This draft law contains a section describing 26 suggested safeguards
which are intended to separate harmful, criminal behavior
—here called "causing premature death"—
from helpful, non-criminal behavior
—which results in a timely, peaceful, &
usually painless death.
This new law is proposed to replace laws against
assisting a suicide.
At least it permits some forms of helping other people to die
that are no longer prohibited by law.
Behavior that assists another person in committing an irrational suicide
is still a criminal offense under this proposed new law.
But behavior that gives aid to a patient
who wisely chooses a voluntary
death
or whose proxies compassionately choose a merciful death
is no longer a
criminal offense.
Here are two
additional background essays
separating the approved
behavior from the disapproved
behavior:
"Four Differences between Irrational
Suicide & Voluntary
Death":
http://www.tc.umn.edu/~parkx032/CY-IS-VD.html
"Four Differences between Mercy-Killing
& Merciful Death":
http://www.tc.umn.edu/~parkx032/CY-MK-MD.html.
III. SOME ADVANTAGES OF
PUTTING THE RIGHT-TO-DIE WITHIN THE
HOMICIDE LAWS.
The laws that permit physicians to prescribe or
administer life-ending drugs
necessarily require a government
process for granting that permission.
This sometimes involves cumbersome paperwork.
Such procedures required by some government agency
often seems unnecessary to the people involved.
Thus there are valid suspicions
that many doctors and patients are
avoiding the paperwork
and going ahead with the process without officially fulfilling the
safeguards
and without reporting the death as achieved by voluntary means.
The recent shift in the Netherlands from lethal injection to terminal sedation
probably results from burdensome paperwork associated with legal
euthanasia.
When the right-to-die safeguards
are embodied in a law against causing premature death,
the burden of proof shifts to
the prosecution side.
If the patient, doctors, & proxies know that they are choosing a
timely death,
not causing a premature death
for the patient,
they can keep their process of fulfilling the safeguards private.
The safeguards would not become a matter for the government to examine
unless there is probably
cause to believe that a crime has been
committed.
Then the fulfillment of the safeguards can be presented
as a defense against the charge of causing a premature death.
The paradigm for this approach to the right-to-die
is withdrawing life-supports
systems.
Doctors consult with the patient and/or the proxies
when it is no longer useful to maintain the patient on
life-supports.
If and when they collectively decide that the patient will not recover,
they might decide to 'pull the plug'
on whatever systems are keeping the patient alive.
If they withdraw life-supports before it would be
appropriate,
then they are committing a crime
for which they can be prosecuted.
And they would present as their defense against any such charge
the full medical record,
which shows that all meaningful treatments
were tried
and were subsequently discontinued when they were no longer effective.
Another cyber-sermon discusses this pattern
for life-ending decisions:
"Pulling the Plug: A Paradigm for Life-Ending Decisions":
http://www.tc.umn.edu/~parkx032/CY-PLUG.html.
A.
PRESUMED INNOCENT.
When the right-to-die falls under some part of the
criminal law,
then the accused is presumed
to be innocent until proven guilty.
This seems to be entirely appropriate when we are talking about
withdrawing life-supports in a hospital setting.
The patient, the proxies, & the doctors
are assumed to be acting in the best interest of the patient
—unless
there is some compelling proof to the contrary.
The same assumption of innocence should apply to
most life-ending
decisions.
When reasonable
safeguards are followed,
there should be no question that the death was wisely decided.
And most cases will be so
obvious that there is no need
for representatives of any government agency to be at the bedside,
involved in the process of making the life-ending decisions.
But everyone involved knows about the possibility of criminal
prosecution
if they are actually harming
the patient when they choose death.
B. THE
SAFEGUARDS BECOME OPTIONAL RATHER THAN
MANDATORY.
When the legal burden of proof shifts to the
criminal prosecutor,
then the patient, proxies, & doctors
who are choosing a voluntary death or a merciful death
do not have to fulfill a set of safeguards prescribed in law.
They know the specific circumstances of their life-ending deliberations.
And they know which facts would be most convincing to a jury
if ever someone were charged with causing premature death.
When the case for choosing a voluntary death or a
merciful death
is obvious to all who look at the facts,
then there will be less need to fulfill elaborate safeguards.
All involved in the life-ending decisions
will know that even the most biased prosecutor would see
that there is no chance
of obtaining a conviction for causing premature
death
because this death most obviously was not premature.
C. ANY
PROSECUTIONS WOULD FAVOR THE DEFENSE.
The law against causing premature death suggests
safeguards
that might be fulfilled in order to prove
that the death was timely
rather than premature.
And because these safeguards are included in the written law,
no judge can exclude
such facts and opinions from any trial that might
follow.
The last trial of Jack Kevorkian was lost
because the defense could
not offer testimony from the patient and the
family
that death at this time was the best possible alternative.
The judge ruled that all such facts and opinions were irrelevant.
The only question was whether Jack Kevorkian gave a lethal injection.
If Dr. Kevorkian had been tried under a law against causing premature
death,
he would never have been sent to prison
because the death of Thomas Youk, who was dying of ALS, was not premature.
The fact that he died a timely death
would have been proven by presenting the safeguards
that were fulfilled in choosing his time of death.
If Michigan had a law against causing premature
death,
it would not have been possible for the prosecution
to try Kevorkian under another part of the homicide statute.
Thomas Youk's death was an example
of a wise life-ending
decision.
It was not second degree
murder.
Under a law banning assistance in premature death,
the defense could have presented several safeguards
which tended to show that it was a timely death,
wisely decided by everyone involved,
especially the patient
himself!
When safeguards embodied
in laws
enable everyone to separate wise
life-ending decisions
from causing premature death,
then helping people to die will no longer be a criminal offense
if the safeguards are fulfilled.
IV. CONCLUSION.
Shifting the right-to-die laws from granting
permission for some deaths
to defining what constitutes
causing a premature death
—thereby allowing choosing timely death—
will require considerable re-thinking within the right-to-die movement.
But this second approach is likely to be supported by more people
who formerly were undecided about the right-to-die.
We all want to avoid
premature death for ourselves.
And we can support new laws that
prohibit
helping or causing anyone to die too
soon.
AUTHOR:
James Park is an existential philosopher,
living and writing in Minneapolis, Minnesota, USA.
He is a strong advocate of the right-to-die,
as illustrated by several links below.
Much more information about him will be found on his website:
An Existential
Philosopher's Museum.
created
February 24, 2007; revised 8-3-2007; 4-18-2008; 8-15-2008; 8-31-2008;
3-13-2009; 5-15-2009
Draft
model law against Causing Premature
Death:
http://www.tc.umn.edu/~parkx032/PREM-DTH.html.
Go
to Advantages
of the Premature-Death Approach to the Right-to-Die.
Safeguards
Website:
This website explores all the pros and cons of
various proposals for allowing people make wise life-ending decisions.
http://www.tc.umn.edu/~parkx032/SG.html
Here are a few related
cyber-sermons also by James
Park:
A New Way to
Secure the Right-to-Die:
Laws Against Causing Premature Death .
When Is A
Person?
Pre-Persons & Former Persons
.
Advance
Directives for Medical Care:
24 Important Questions to Ask
.
Fifteen
Safeguards
for Life-Ending Decisions
.
Four
Differences between Irrational Suicide and Voluntary Death
.
Four
Differences between Mercy-Killing and Merciful Death .
Voluntary Death
by Dehydration
.
Depressed?
Don't Kill
Yourself! .
Further Reading:
Best
Books on Voluntary Death
Best
Books on Preparing for Death
Books
on Terminal Care
Books on Helping People to Die
Best Books on
the Right-to-Die
Books Opposing
the Right-to-Die
Go to the Right-to-Die
Portal.