{Some
modification of this proposed law should replace
all existing state and national laws against assisting suicide.
Or if the laws against assisting suicide
are still wanted to discourage assisting an irrational suicide,
a revised law against helping others to commit foolish self-killings
could replace the present ambiguous laws.
This model law against causing premature death
deals with patients who were believed to be dying.
It should be placed within the homicide law,
as the lowest degree of
homicide,
perhaps after negligent vehicular homicide.
The
numbers in the left margin
are intended to facilitate
discussion and revisions.
Only the numbered lines are intended as text for the law.
Other comments will have to be put into legal language
by people who know how to draft legislation.
Each state or national
legislature will create its own version
of this proposed legislation.}
1. Section I.
Definitions
2. "Life-support systems" shall
mean
3. all procedures, devices, and medications intended
to sustain life.
4. These include but are not limited to the
following:
5. respirators, heart-lung machines, dialysis
machines,
6. blood transfusions and other intravenous fluids
and nutrition,
7. feeding tubes to supply nutrition and hydration,
8. drugs to maintain blood pressure, and cardio-pulmonary
resuscitation.
9. And it shall include new methods of supporting
vital functions
10. that will be invented in the future.
11. But it will not include methods of controlling
pain and providing comfort.
12. "Irrational suicide" shall
mean the premature ending of one's own life.
13. As a matter of public policy,
14. this state does not wish to encourage anyone to commit
irrational suicide,
15. but neither irrational suicide nor attempted
irrational suicide is prohibited by this law.
16. However, assisting an irrational suicide of a
dying patient
17. or assisting an attempted irrational suicide is
prohibited
18. as forms of causing premature death
19. or attempting to cause premature death.
20. "Voluntary death" shall mean
ending one's own life
21. at the right time according to one's own ethical
principles
22. and by the means of one's own choosing.
23. To be certified and recorded as a voluntary death
24. the choice must meet all four of the following
criteria:
25. (1) It must be a benefit to the patient,
not a harm.
26. (2) It must be a rational decision
by the patient.
27. (3) It must be planned well in advance,
28. taking the
opinions of those who will be affected into account.
29. (4) It must be regarded as a commendable
and admirable choice
30. by others who
know all the facts.
31. Operationally, these four
criteria will be fulfilled
32. if the death-planning record shows that
substantially all
33. of the safeguards outlined in Section V have been
fulfilled.
34. Neither voluntary death nor
assisting a voluntary death
35. is prohibited by this law.
36. "Mercy killing" is the
premature ending of the life of another person,
37. whether requested by the decedent or not.
38. Mercy killing is distinguished from other forms
of homicide
39. in Section II of this law.
40. Mercy killing remains a punishable crime under
this law.
41. "Merciful death" is the
practice of ending the life of another person
42. at the right time and by the most appropriate
means
43. according to the ethical principles of the
proxies duly authorized
44. to make a life-ending decision for the patient.
45. To be certified and recorded as
a merciful death
46. the choice
must meet all four of the following criteria:
47. (1) It was a benefit to the patient,
not a harm.
48. (2) It was chosen rationally
49. by
duly-authorized proxies for the decedent.
50. (3) It was planned and announced
sufficiently in advance
51. to allow
all concerned to express
52. their
options about the decision.
53. (4) It is regarded by those who know
the facts
54. as a wise
and compassionate choice.
55. Operationally, these four
criteria are satisfied
56. if substantially all of the safeguards
57. outlined in Section V of this law are fulfilled.
58. Merciful death is not
prohibited by this law.
59. And persons who perform or cooperate in a
merciful death
60. are protected from prosecution
61. by fulfilling substantially all of the safeguards
in Section V.
1. Section II. Causing Premature Death
Distinguished from other
forms of
Homicide
2. Causing premature death shall
be distinguished
3. from other forms of homicide by the following
factors.
4. The act shall be classified as causing a premature
death
5. when all of the following factors are present:
6. (1) The perpetrator personally
knew the decedent.
7. (2) The perpetrator believed
with good reason
8. at
the time of the act that the decedent was dying.
9. (3) The perpetrator believed
with good reason
10. at the time
of the act that the decedent was suffering
11. and that
the causes of that suffering
12. could not
be cured or changed.
13. (4) The perpetrator's motive
was mercy rather than malice.
1. Section III. Three Classes of the Crime:
Causing Premature Death
2. The prosecutor shall decide
which of the following
3. three classes the alleged crime fits most closely:
4. (1) Premature withdrawal of
life-support systems.
5. (2) Assisting another person in
an irrational suicide.
6. (3) Acting to cause the
premature death of another person.
This crime is commonly known as "mercy killing".
1. Section IV. Punishment
2. If found guilty of any form of
causing premature death,
3. the court shall sentence the perpetrator
4. to imprisonment for a term of one year or less,
5. depending on the circumstances of the crime
6. and any prior convictions the perpetrator might
have.
7. This term of imprisonment shall
be less than
8. the punishment for any other form of homicide.
1. Section V. Safeguards for Life-Ending
Decisions,
which may be offered as Defense
Against the Charge of
Causing Premature Death
{The thrust of these defending factors
is to show that the death was not premature,
that the patient's life ended at a reasonable time
and by a painless means.
If these conditions are met, no harm came to the patient.
And hence no crime
was committed.}
2. Any and all of the following
factors shall constitute a defense
3. against the charge of causing a premature death:
1. A. ADVANCE DIRECTIVE
FOR MEDICAL CARE
2. The first statement from the patient is an
advance directive for medical care.
3. This will normally be prepared years before the last
year of the patient's life.
4. An
advance directive sets forth the patient's philosophy of life and death.
5. The patient explains how to separate
6. the conditions that
lead to the choice of continued life
7. from the conditions that lead to a life-ending decision.
1. B. STATEMENTS OF
UNDERSTANDING AND SUPPORT FROM OTHERS
2. Probably as an appendix to the patient's
advance directive,
3. the chosen proxies and perhaps others who are close to
the patient
4. can create their own statements
expressing their agreement with the advance directive
5. and (if they are proxies) their
commitment to carry forward the settled values of the patient.
1. C. REQUESTS FOR
DEATH FROM THE
PATIENT
4. The patient
repeatedly asked for death
5. over a period of several weeks.
6. If the patient put these requests into
writing,
7. as in a 'living will' or
advance directive for medical care,
8. this defense is strengthened.
9. If the patient was not capable of making a
request for death
10. at the time of death, his or her prior request
for death
11. under similar circumstances is definitive.
12. And any written records of such requests
13. also strengthen the case for the defense.
14. If the patient was not capable of making a
request for death
15. but had authorized a proxy or proxies
16. to make medical decisions for him or her,
17. then any request of such proxy or proxies
18. shall have the same standing as a request from
the patient.
1. D. THE PATIENT IS
MENTALLY CAPABLE OF MAKING A LIFE-ENDING DECISION
2. The patient was mentally
capable of deciding his or her death
3. at the time the request was made.
4. This capacity may be established by the testimony
of laypersons
5. as well as by the professional
opinions
6. of licensed
psychologists or psychiatrists.
1. E. PHYSICIAN'S
STATEMENT
OF CONDITION AND PROGNOSIS
2. A physician had
issued a professional opinion
3. that the patient was dying or had an incurable
condition
4. or was in a debilitated or unconscious condition
5. from which he or she would probably never
recover.
6. Such conditions include, but are not limited to,
7. persistent vegetative state and permanent coma.
1. F. INDEPENDENT
PHYSICIAN REVIEWS THE CONDITION AND PROGNOSIS
2. An independent
physician confirmed and substantially agreed
3. with the
diagnosis and prognosis of the physician mentioned in (E).
1. G. CERTIFICATION
OF TERMINAL ILLNESS OR INCURABLE CONDITION
2. The same physicians who have written full
statements of the patient's condition and prognosis
3. can create a separate
document to certify that the patient has a terminal illness or condition
4. if they can say with confidence that the patient's
illness or condition
5. will lead to death within 6 months.
6. They should say whether this projection includes
life-supports or not.
1. H. UNBEARABLE
SUFFERING
2. The patient requests death because of
physical suffering
3. that cannot be relived sufficiently by any known means.
4. This suffering is documented as well as possible
5. by the doctors who have been consulted.
1. I. UNBEARABLE
PSYCHOLOGICAL SUFFERING
2. The patient suffers from psychological
problems
3. that do not yield to the best methods of treatment.
4. Because being in a such psychological state
5. might render the patient unable to make wise medical
decisions,
6. proxies for the patient have been appointed,
7. who then must make the final life-ending decision
8. if it seems wiser than all the other alternatives.
1. J. PALLIATIVE CARE
TRIAL
2. The patient actually received comfort care
3. from medical personnel well trained in the care of
the dying.
4. This goes beyond counseling the patient about the
benefits of palliative care.
5. And it is more than a consultation with a palliative
care specialist.
6. The patient actually received physical and psychological
care
7. from providers who know how to care for the dying.
9. However, if the patient was fully informed
about the benefits of palliative care
10. and/or consulted with a palliative care specialist,
11. these facts also support the claim that the death was
not premature.
1. K. INFORMED
CONSENT FROM THE PATIENT
2. The patient must have full information
about his or her condition
3. and all the relevant medical options that still remain
open.
4. Only when the patient has received and understood
5. the medical statements from the doctors concerning
condition and prognosis
6. is the patient able to make a wise life-ending decision.
1. L. REQUESTS FOR
DEATH
FROM THE PROXIES
2. If the patient can no longer make
meaningful medical decisions,
3. then the decision-making power shifts to the proxies,
4. who have been carefully chosen by the patient
5. when the patient was still fully able to make medical
decisions.
6. The proxies shall carefully consider all of
the facts and opinions
7. expressed by the others who are considering what would be
best for the patient.
8. Then the proxies can
decide to make requests for death
9. in exactly the same ways as such requests were possible
for the patient.
1. M. ENROLLMENT IN A
HOSPITAL OR HOSPICE
2. The patient was
being treated in a hospital or a hospice program,
3. which kept careful records of all
discussions and decisions
4. regarding the care of the patient,
including but not limited to
5. all discussions and decisions related to
end-of-life choices.
1. N. STATEMENTS FROM
HOSPITAL OR HOSPICE STAFF MEMBERS
2. Beyond the official medical records kept by
the hospital or hospice,
3. nurses, doctors, & volunteers who have had
meaningful connections with the patient
4. can also create statements
about their discussions with the patient about life-ending decisions.
1. O. STATEMENTS
FROM FAMILY
MEMBERS
AFFIRMING OR QUESTIONING THE CHOSEN DEATH
2. Other persons who
had known the patient
3. for meaningful
periods of time agree with the life-ending decision.
4. Even though these significant other persons
5. might not have been directly involved
6. in the process of making the life-ending decision
7. and were not responsible for carrying it out,
8. they knew of the
plans well in advance of the
death
9. and in their considered opinions, it was a wise
choice.
1. P. A MEMBER
OF THE
CLERGY
APPROVES OR QUESTIONS THE CHOICE FOR DEATH
2. A member of the
clergy of any religious organization
3. or the professional leader of an ethical
organization
4. known by the patient approved of the life-ending
decision.
5. If the patient was not part of any such
organization,
6. another similar responsible member of the
community
7. may fill this role of disinterested
observer.
1. Q. RELIGIOUS
OR OTHER MORAL PRINCIPLES APPLIED TO THIS
LIFE-ENDING DECISION
2. If chosen by the patient, some authority on
the doctrine
3. of the religious organization with which the patient is
affiliated
4. reviews how those moral principles apply to the
end-of-life
decisions
5. being considered by the patient and/or the proxies for
the patient.
6. If that
interpretation of the religious doctrine supports a life-ending
decision,
7. then a written statement to that effect could be made
part of the death-planning record.
8. If the patient and/or the proxies so choose,
9. some non-religious moral principles
10. can be brought to bear on this life-ending decision.
11. All such moral analyses strengthen the case that no
premature death occurred.
1. R. AN
INSTITUTIONAL
ETHICS COMMITTEE APPROVES THE DEATH
2. An ethics
committee of the institution
3. where the patient is being cared for
4. reviews all of the documents created for the
death-planning process
5. and approves the life-ending decision.
1. S. STATEMENTS FROM
ADVOCATES FOR
DISADVANTAGED GROUPS
IF INVITED BY
THE PATIENT AND/OR THE PROXIES
2. If the patient has any worries that he or
she might be discriminated against
3. because he or she is a member of any group sometimes
disfavored by society,
4. he or she can select an advocate from his or her
identity group
5. who will review the death-planning documents
6. to make sure that no discrimination has taken place
7. because of the group-identity of the patient.
8. Adding any such statements to the death-planning record
9. will assure others who are not as close to the patient
10. that the life-ending
decision was as free as possible from discrimination
11. and that the patient received terminal care independent
of group identity.
1.
T. REPORT
TO THE
PROSECUTOR BEFORE THE DEATH TAKES PLACE
2. If those who are planning the
voluntary death or merciful death
3. have any doubts about the legality of their
proposed course of action,
4. they can opt to send a report of
the death-planning process
5. to the local
prosecuting authority for review.
6. They might explain which of the
following they are planning:
7. (a) withdrawal or withholding life-support
systems,
8. (b) assisting in a voluntary death, or
9. (c) granting a merciful death.
10. And the several documents of the death-planning
process already created
11. might be shared or summarized for the prosecutor
12. to show that the proposed course of action
violates no laws.
13. The prosecutor should be
allowed one week to respond.
14. The prosecutor can reply that there is no harm in
the planned death
15. and that all who participate or cooperate in the
planned death
16. will not be subject to prosecution for any crime.
17. Or the prosecutor can ask for additional
information
18. to make sure that this death will not be
premature.
19. Civil and
criminal penalties will remain in place.
20. Anyone tempted to encourage or cause a premature death
21. will know that there are criminal and civil penalties
22. that will be applied if someone does any harm to another
23. under the guise of the right to die.
1. U. WAITING PERIODS
BEFORE DEATH IS PERMITTED
2. An appropriate
waiting period is allowed to elapse
3. between the time when the life-ending decision is
taken
4. and when the act is performed:
5. (a) one week for the
withdrawal of life-support systems,
6. (b) one year for a voluntary
death, or
7. (c) six months for a merciful
death.
8. These waiting periods may be adjusted
9. when adequately explained by
10. the special circumstances of this life-ending
decision.
11. Spreading the life-ending decision over significant
periods of time
12. allows all concerned to re-think their previous
decisions.
1. V. OPPORTUNITIES
FOR THE PATIENT TO RESCIND ANY LIFE-ENDING DECISIONS
2. If the patient has already
begun the death-planning process,
3. ample
opportunities shall be provided for the patient to change his or her
mind.
4. The people offering these opportunities shall
document
5. that the patient was giving several chances to
reverse
the death-planning process.
6. Does the patient decline each opportunity to
change course
7. and reaffirm his or her determination to choose
a voluntary death?
1. W. PHYSICIANS
REVIEW THE COMPLETE DEATH-PLANNING RECORDS
2. Once most of the other statements have
been written,
3. the physicians most responsible for the patient's
terminal care
4. will read and
respond to each statement
5. and
make a final recommendation.
6. If authorized by law, and if the
terminal-care physician is convinced
7. that in his or her professional judgment
8. death
now is better than death
later,
9. this physician
is permitted to write a prescription
10. for life-ending
chemicals to be taken by the patient
11. for the purpose
of causing a peaceful and painless death.
1. X. COMPLETE
RECORDING AND SHARING OF ALL MATERIAL FACTS AND OPINIONS
2. The death-planning process
should be completely open and above-board.
3. The written
statements of all persons involved
4. should be
shared freely among everyone
5. who has a
legitimate right to take part in this
life-ending decision.
6. The fact of such open sharing and discussion
7. ---with signed and recorded opinions from many
participants---
8. should go a long way toward proving that this is a
well-considered decision,
9. not a hidden or secret conspiracy to cause a premature
death.
1.
Y. THE
PATIENT IS CONSCIOUS AND ABLE TO CHOOSE DEATH
2. While this is not a requirement to prove
that the life-ending decision was wise,
3. the fact that the patient
remained conscious until the last moment of life
4. and possibly took some
life-ending action by his or her own hand
5. will be strong evidence that his or her death was not
premature.
1.
Z. THE
DEATH-PLANNING COORDINATOR ORGANIZES THE SAFEGUARDS
2. If the process of planning the patient's
death
3. has employed a death-planning
coordinator
4. or if someone volunteers to organize the death-planning
records,
5. this level of organization for the death-planning process
6. will be impressive evidence that the chosen death was a
wise decision.
7. And the complete collection of death-planning documents
8. can be permanently stored in case there is ever any
future reason
9. to review this life-ending decision.
10. The death-planning
records shall not be made available to the public,
11. to any government officials
12. (except as might be required by law-enforcement
investigations)
13. or to any news-gathering organizations.
1. Section VI. Recording of Deaths
2. The commissioner of health of
this state,
3.
(or other authority responsible for keeping records of deaths)
4.
the medical examiner of each county,
5. and the prosecuting authorities throughout this
state
6. shall establish three new statistical categories
for deaths
7. as defined by this law:
8. (1) voluntary deaths (as
distinct from irrational suicides),
9. (2) merciful deaths (as
distinct from mercy killings), and
10. (3) premature deaths (a form of homicide).
11. Physicians responsible for
filing death certificates with the state
12. shall also conform to these definitions.
13. If the medical examiner finds
the death-planing record
14. fulfills the definition of a voluntary death in
this law,
15. that death shall be recorded for all purposes
16. as a voluntary death, not an irrational suicide.
17. And if the death-planing record explains the reasons
18. for the voluntary death to be a fatal disease,
illness, or
condition,
19. that fatal disease, illness, or condition
20. shall be recorded
as the primary cause of death,
21. with the additional notation
22. that the patient chose a voluntary death
23. rather than waiting for the natural processes to
kill him or her.
24. If the medical examiner finds
the death-planing record
25. fulfills the definition of a merciful death in
this law,
26. that death shall be recorded as a merciful death,
27. not any form of homicide, including causing
premature death.
28. And if the death-planning record explains the
reasons
29. for the merciful death to be a fatal disease,
illness, or
condition,
30. that fatal disease, illness, or condition
31. shall be recorded as
the primary cause of death,
32. with the additional notation that the proxies
chose a merciful death
33. rather than waiting for the natural processes to
kill the patient.
34. No new statistical category
need be established
35. for recording deaths that result from
36. the withholding or withdrawal of life-support
systems.
37. These deaths will automatically be recorded
38. as caused by the underlying disease, illness, or
condition.
39. But the record should also show that a careful
process was followed
40. in reaching the decision to remove the life-support
systems.
Revised several times
in January, 2007; revised 2-17-2007; 3-9-2007; 3-29-2007; 12-31-2007;
4-4-2008
The above draft legislation was first created in
1995 by James Park.
It was revised by him in 2004, 2005, & in 2007.
Some of the safeguards embodied in Section V
were originally published in a small book by James Park entitled
Ten Safeguards for
Life-Ending Decisions.
Here is a 3-page updated summary of that book,
now called "Fifteen Safeguards for Life-Ending Decisions":
http://www.tc.umn.edu/~parkx032/CY-10SG.html
Several advantages of this form of legislation
in contrast to the more conventional laws allowing life-ending chemicals
are discussed here:
Advantages
of the Premature-Death Approach to the Right-to-Die
http://www.tc.umn.edu/%7Eparkx032/PD-ADV.html
Other safeguards might also be included in any state
or national law
defining and prohibiting encouraging
or causing premature death.
A website discussing such safeguards was established in January 2007:
http://www.tc.umn.edu/~parkx032/SG.html
The above draft will be further revised
following the suggestions of any readers.
Send your suggestions to James Park, e-mail:
PARKx032@TC.UMN.EDU
If and when any state or national legislatures adapt any similar laws
repealing, replacing, or supplementing laws against assisting
irrational suicide,
such laws will be listed here, with appropriate links.
If other such suggestions exist on the Internet,
they can be linked from here.
Different versions of the provisions above
can also be offered here.
Completely different approaches to achieving the
same ends
are also welcome.
Let's be as creative as we can be.