A NEW WAY TO SECURE THE RIGHT
TO DIE:
LAWS
AGAINST CAUSING PREMATURE DEATH
SYNOPSIS:
Most recent attempts to secure the right-to-die
have focused on adding provisions to the health-care sections of our
laws
so that physicians could prescribe life-ending drugs
to be taken by the patient when he or she chooses to die.
However, there is another section of our laws that
needs to be reformed.
Our homicide laws usually include a provision against assisting suicide.
Since suicide itself
is no
longer a crime in most places,
we can also repeal or revise the laws against assisting suicide
and replace those laws with new laws against causing premature death.
When our laws define the new crime of causing premature death,
these laws will also define wisely-chosen deaths that were NOT premature.
OUTLINE:
1.
LAWS AGAINST SUICIDE AND ASSISTING SUICIDE
2. REPEALING OUTDATED LAWS AGAINST ASSISTING SUICIDE
3.
NEW LAWS AGAINST CAUSING PREMATURE DEATH
4.
SAFEGUARDS TO INCLUDE IN NEW LAWS AGAINST CAUSING PREMATURE DEATH
5.
CONCLUSION: INSTEAD OF DYING TOO SOON, WE CAN DIE AT THE RIGHT TIME
A
NEW WAY TO SECURE THE RIGHT TO DIE:
LAWS AGAINST CAUSING PREMATURE DEATH
by
James Park
Most of the recent attempts to change laws all
around the world
in order to allow people to choose the best time and the best means of death
have focused on procedures
for granting permission or approval
or establishing protocols that allow patients to apply for the right-to-die.
But we who advocate the right-to-die
could begin with a completely different
part of the law.
Instead of new laws to permit physicians to write prescriptions for
life-ending drugs,
we can replace all laws
against assisting suicide
with laws against causing
premature death.
Laws against assisting suicide are usually contained within the
statutes against murder.
The homicide laws define
assisting a suicide as a form of murder.
And they use the criminal-justice procedures
for determining who has committed the crime of assisting a suicide.
1. LAWS
AGAINST SUICIDE AND ASSISTING SUICIDE
Suicide itself used to be part of the homicide laws
in most places on Earth.
Suicide was considered a form of murder—murdering
oneself.
It is now difficult for us to think of a crime against oneself.
How would it be possible to steal from oneself, for example?
Some early thinking about suicide considered it
a crime against God:
The sovereign of the universe owns each and every life.
And anyone who takes a life (even his or her own life)
destroys something that belongs to God.
With a somewhat different twist, within monarchies,
all the people (subjects) were said to belong to the king or queen.
Thus murder or suicide were crimes
against the crown,
destroying subjects who belonged to the earthly sovereign.
Nowadays almost everywhere,
irrational suicide is said to be a form of harming oneself.
It is no longer a crime because we want suicidal people
to receive psychological help
rather than be punished.
But when the laws against committing suicide
were repealed,
usually the law-makers left in place the subsidiary crime of assisting a suicide.
When suicide itself was a crime,
it was reasonable to outlaw behavior that assisted that crime.
Those who helped the suicidal person to commit that crime were
accomplices.
But logically there are problems with continuing to criminalize
helping someone perform an act that is no longer a crime.
Careful and consistent laws that replace laws against 'assisting
suicide'
can separate behavior that is harmful
to a victim (which should remain a crime)
from behavior that is helpful
to a patient (which should not be a crime).
2. REPEALING OUTDATED LAWS
AGAINST ASSISTING SUICIDE
This oddity of half-changed ancient laws
give us an opportunity to secure the right-to-die
in a completely unexpected place: within the laws against homicide.
We can propose replacing all laws against
assisting suicide
with new laws against
causing premature death.
Even tho we agree with de-criminalizing suicide and
attempted suicide,
we see that these are still self-harming
behaviors that should be
discouraged.
However, when we look more closely,
we notice another kind of behavior that is not harmful.
Here are four basic distinctions between irrational suicide and voluntary death:
Is the behavior harmful
or helpful to the
person?
Is the behavior irrational
or rational?
Is the behavior capricious
or well-planned?
Is the behavior regrettable
or admirable?
All of these terms need to be fully developed.
This is done is another cyber-sermon entitled:
"Four Differences between Irrational Suicide and Voluntary Death":
http://www.tc.umn.edu/~parkx032/CY-IS-VD.html.
If we do not want
to encourage irrational suicide,
we could revise our laws against
assisting a suicide
to say more explicitly that we
will
punish people who assist an irrational
suicide.
This will require such laws to
define irrational suicide
so that it does not include wisely
helping patients to die.
3.
NEW LAWS AGAINST CAUSING PREMATURE DEATH
If we enact new laws against causing premature death,
these would prohibit
encouraging an irrational suicide or committing a mercy killing.
And they would provide safeguards to
permit assisting a voluntary death or granting a merciful death.
See the draft Model Law against Causing Premature Death:
http://www.tc.umn.edu/~parkx032/PREM-DTH.html.
This new approach to life-ending decisions
is based on the well-established paradigm for withdrawing
life-supports.
When patients are being kept alive by machines and drugs,
they can now decide to discontinue
all curative treatments
and disconnect all
life-support machinery,
thus allowing their disease, illness, or injury
to run its expected course, resulting in a natural death.
As now practiced wherever life-support systems are
used,
such life-ending decisions are made by doctors and patients.
When the patients are no longer able to decide for themselves,
relatives or formal proxies are empowered to decide for the patients.
The safeguards in place that prevent premature withdrawal of
life-supports
consist mainly of the medical records for each patient,
which show all of the medical procedures that have already been tried
in the now-proven-vain efforts to save the patient from death.
[Another
cyber-sermon explores the life-ending decision of disconnecting
life-supports:
"Pulling the Plug: A Paradigm for Life-Ending Decisions":
http://www.tc.umn.edu/~parkx032/CY-PLUG.html.]
The doctors and/or proxies are not required to make
any additional applications
or to fill-out any government paperwork before they are permitted to
pull the plug.
There is an inherent right to
end one's life by terminating all
life-supports.
However, it should be noted that there are possible
crimes
that might be committed under the color of removing life-supports.
If the doctors and/or the family want the patient dead
even tho this would not
be the best choice for this patient at this
time,
they might maliciously disconnect whatever is keeping the patient alive
or even violently destroy the life-support machines.
When any such criminal acts are committed in the hospital context,
they can be prosecuted under the existing laws against homicide.
This proposal for making new laws that apply
especially to people who are dying
would make such crimes even
more explicit.
And different penalties would be applied to crimes against the dying
than would be applied to crimes against people
who were expected to live indefinitely.
This new approach to right-to-die legislation
would permit all forms of the right-to-die
by providing explicit safeguards that carefully separate
the harmful behavior of
causing a premature death
from the helpful behavior of
aiding a patient to choose a timely death.
4. SAFEGUARDS TO INCLUDE IN NEW
LAWS AGAINST CAUSING PREMATURE DEATH
Here is a list of 27 recommended safeguards
that would permit a
voluntary death or a merciful death
while at the same time prevent
irrational suicide and other forms of premature death:
Each of the following safeguards is linked to a further explanation.
SAFEGUARDS TO BE FULFILLED BY
PHYSICIANS
AND OTHER PROFESSIONAL CONSULTANTS
PHYSICIAN'S
STATEMENT OF CONDITION AND PROGNOSIS
CERTIFICATION
OF TERMINAL ILLNESS OR INCURABLE CONDITION
INDEPENDENT
PHYSICIAN REVIEWS THE CONDITION AND PROGNOSIS
ENROLLMENT
IN A
HOSPITAL OR HOSPICE
STATEMENTS
FROM
HOSPITAL OR HOSPICE STAFF MEMBERS
PALLIATIVE CARE
TRIAL
THE PATIENT
IS
MENTALLY CAPABLE OF MAKING A LIFE-ENDING DECISION
AN
INSTITUTIONAL
ETHICS COMMITTEE APPROVES THE DEATH
PHYSICIANS
REVIEW THE COMPLETE DEATH-PLANNING RECORDS
SAFEGUARDS TO BE FULFILLED BY THE
PATIENT
ADVANCE
DIRECTIVE FOR MEDICAL CARE
REQUESTS FOR
DEATH FROM THE PATIENT
INFORMED
CONSENT FROM THE PATIENT
UNBEARABLE
SUFFERING
UNBEARABLE
PSYCHOLOGICAL SUFFERING
WAITING PERIODS
BEFORE DEATH IS PERMITTED
OPPORTUNITIES
FOR THE PATIENT TO RESCIND ANY LIFE-ENDING DECISIONS
THE
PATIENT IS CONSCIOUS AND ABLE TO CHOOSE DEATH
SAFEGUARDS TO BE FULFILLED BY
PROXIES FOR THE
PATIENT
AND/OR FAMILY MEMBERS
STATEMENTS
OF
UNDERSTANDING AND SUPPORT FROM OTHERS
REQUESTS FOR
DEATH FROM THE PROXIES
STATEMENTS
FROM FAMILY MEMBERS
AFFIRMING OR
QUESTIONING THE CHOSEN DEATH
STATEMENTS
FROM
ADVOCATES FOR
DISADVANTAGED GROUPS
IF INVITED BY
THE PATIENT AND/OR THE PROXIES
SAFEGUARDS TO BE FULFILLED BY
MEMBERS OF THE CLERGY
A
MEMBER OF THE CLERGY APPROVES OR QUESTIONS THE CHOICE FOR DEATH
RELIGIOUS OR
OTHER MORAL PRINCIPLES
APPLIED TO THIS
LIFE-ENDING DECISION
SAFEGUARDS TO BE FULFILLED BY THE
PROSECUTING
AUTHORITY
REPORT TO THE
PROSECUTOR BEFORE THE DEATH TAKES PLACE
CIVIL AND
CRIMINAL PENALTIES FOR CAUSING PREMATURE DEATH
SAFEGUARDS TO BE FULFILLED BY THE
DEATH-PLANNING
COORDINATOR
COMPLETE
RECORDING AND SHARING OF ALL MATERIAL FACTS AND OPINIONS
THE
DEATH-PLANNING COORDINATOR ORGANIZES THE SAFEGUARDS
The above list of
safeguards has been selected
from a more complete list of over 30 possible safeguards:
Catalog of Proposed Safeguards of Life-Ending Decisions:
http://www.tc.umn.edu/~parkx032/SG-CAT.html.
And the above list of 27 recommended safeguards
is organized in a different way here:
http://www.tc.umn.edu/~parkx032/SG-A-Z.html
[The only difference between these two ways of
listing the recommended safeguards
is that civil
and criminal penalties listed above
is not included as a safeguard
in the proposed legislation,
since it appears in the penalties
section of any such law or proposed law.
In the draft
by the present author,
this penalties provision appears as part of Safeguard T:
Report to the
Prosecutor before the Death Takes Place.]
Almost all of these safeguards could also be used in
other kinds of laws,
such as the more conventional attempts to permit physicians to
prescribe life-ending drugs.
Different states within the United States and different countries of
the world
will try their own approaches to secure the right-to-die.
And some of them will probably consider the new approach suggested here:
If we define and describe the new crime of causing premature death,
then we will also permit aid
in dying when the patient reaches the best time to die.
5. CONCLUSION: INSTEAD OF DYING
TOO SOON, WE CAN DIE AT THE RIGHT TIME
Once laws defining premature death are enacted by
states or countries,
then the safeguards embodied in those laws
will also define which
deaths are NOT premature.
As civilized societies, we should continually strive
to prevent people from doing
harm to themselves by committing
irrational suicide
and from doing harm to
others by encouraging them to kill themselves
foolishly.
Once laws are in place to discourage such harms,
the same laws will also permit wise choices
of the best times and
the best means for us
to end our lives.
Isn't that what we mean by the
right-to-die?
drafted
February 2,
2007; revised 2-4-2007; 2-8-2007; 2-16-2007; 2-17-2007; 3-8-2007;
3-29-2007;
4-4-2008
AUTHOR:
James Park is an independent existential philosopher
with deep interest in medical ethics,
especially the many issues surrounding the end of life.
Medical Ethics and Death are two of the seven doors
to his website called "An Existential Philosopher's Museum":
http://www.tc.umn.edu/~parkx032/
Here are a few related cyber-sermons also by James
Park:
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 .
Four Legal
Means to Choose a Voluntary Death or a Merciful Death .
Pulling the
Plug:
A Paradigm for Life-Ending Decisions .
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.
Return to the DEATH
page.
Go to the Medical Ethics
index page.
Go to other
cyber-sermons by James Park,
organized into 9 subject-areas.
Return to the beginning
of this
website:
An Existential
Philosopher's
Museum
.