SAFEGUARD
FOR
LIFE-ENDING DECISIONS
CIVIL
AND CRIMINAL PENALTIES
FOR CAUSING PREMATURE DEATH
Because there is always a slight danger
that some unscrupulous persons will try to misuse 'the
right-to-die'
as a way of
ending someone's life prematurely,
we must keep (and in some cases, strengthen) the penalties
for persons who cause
premature death under the guise of:
(1) a legitimate withdrawal of medical treatments and life-supports,
(2) a well-planned voluntary death, or
(3) a certified merciful death.
In order to make sure that no crime will be
committed,
all of the documents gathered for the death-planning record
might be send
to the county attorney or other authority
responsible for prosecuting anyone who might be guilty
of facilitating, encouraging, or causing a premature death.
For each of the 3 modes of death protected by
these safeguards,
there is a corresponding crime
(harm) that might be committed
under the color of a reasonable and ethical medical decision.
Even tho patients and/or their proxies
always have the right to end medical treatments and
life-supports,
falsifying records
and/or providing false
information
so that others will agree to premature withdrawal should be a crime.
And while a person does have a right to commit
irrational suicide,
most states and nations still prohibit
assisting an irrational suicide.
The thinking behind this paradox is that
suicidal persons should receive treatment, not punishment.
If suicide were a crime, suicidal persons would not seek
treatment.
But no state or nation wants to encourage irrational suicide,
hence the laws against counseling or assisting an irrational suicide.
The safeguards for life-ending decisions
provide an operational
method
for separating irrational
suicides from voluntary
deaths.
Irrational suicides are (1) harmful to the victim,
(2) irrational, (3) capricious, & (4)
regrettable.
Voluntary deaths are (1) helpful to the patient, (2) rational,
(3) carefully and compassionately planned, & (4) admirable.
In other words, irrational suicides answer "no" to the following 4
questions,
whereas voluntary deaths answer "yes":
1. Was this death a definite benefit to the patient?
2. Was this death a rational and wise response to the situation?
3. Was this death well and compassionately planned?
4. Do members of the patient's family and friends
think this death was an admirable, commendable choice,
setting a good example for others?
These four ways of separating irrational suicides
from voluntary deaths
are explored more deeply in the following essay:
"Four Differences between Irrational Suicide and Voluntary Death":
http://www.tc.umn.edu/~parkx032/CY-IS-VD.html
Thus the law should continue to prohibit
assisting irrational suicide
while at the same time permitting
people to assist a voluntary
death.
"Mercy killing" is a third type of crime
that might be committed under the cover of safeguards for life-ending
decisions.
Sometimes relatives and friends become so desperate
about the suffering of their loved ones
that they act (without fulfilling any safeguards)
to end the lives of those they love.
Such "mercy killing" should continue to be a crime,
even tho the killers had merciful motives.
However, each state and nation should revise
its homicide
laws to distinguish
the killing of a terminally-ill person for reasons of compassion
from the pre-meditated murder of a person who was not dying.
This lowest level of homicide
should come after vehicular homicide or similar negligent
manslaughter.
It could be called "causing or assisting a premature death".
The harm done to the person who was dying anyway
is much less than the harm done in all other forms of homicide.
The drunk driver who kills someone on the highway
should receive a more severe punishment
than the husband or wife who complies with a spouse's request for death
(without fulfilling any other safeguards).
The drunk driver has clearly harmed
the accident victim.
But the compassionate spouse has performed an act of mercy.
The law has extensive practice in making
subtle distinctions
between such things as negligence
and recklessness.
But it would be easier to separate malice from mercy.
The person found guilty of committing a mercy killing
should receive a minimal prison sentence or probation.
Such acts must remain criminal offenses with meaningful
punishment
in order to discourage others from causing premature death.
Here is a draft law called "Causing Premature Death":
http://www.tc.umn.edu/~parkx032/PREM-DTH.html
This draft legislation embodies 26 recommended safeguards.
But if several safeguards for life-ending
decisions have been
fulfilled,
and if all the documents have been provided to the county attorney
or other prosecuting authority,
and if that authority sees no reason to prevent this death,
then the patient and/or proxies can proceed with their plans for:
(1) the proposed withdrawal of curative treatments and life-supports,
(2) the proposed voluntary death (perhaps with assistance), or
(3) the proposed merciful death.
Because fulfilling the safeguards proves that the planned death
is a benefit to the
patient, not a harm
of any kind,
everyone can proceed without fear of being charged with a crime.
And the prosecuting authority should issue a
statement,
explaining what parts of the death-planning record have been reviewed
and assuring all who follow this plan in good faith
that they will not be prosecuted for any crime.
The difference between a mercy killing and a
merciful death
is fulfilling several safeguards for life-ending decisions:
The compassionate spouse has the choice between:
doing the paperwork in advance to certify the act as a merciful
death
or committing a mercy killing
and spending a year in jail
afterwards.
Briefly the following are the four ways
to separate
a mercy killing from
a merciful death:
Mercy killings are: (1) harmful to the victim,
(2) irrational, (3) usually capricious, & (4) regrettable.
Merciful deaths are: (1) helpful to the patient,
(2) rational, (3) well-planned, & (4) admirable.
The same four questions asked
to separate irrational
suicides from voluntary
deaths
can be asked to separate mercy
killings from merciful
deaths.
Mercy killings answer
"no" to the following 4 questions,
whereas merciful deaths
answer "yes":
1.
Was this death a definite benefit
to the patient?
2. Was this death a rational
and wise response to the situation?
3. Was this death well and compassionately planned?
4.
Do members of the patient's family and friends
think this death was an admirable,
commendable choice,
setting a good example for others?
These four ways of separating mercy
killings from merciful
deaths
are explored more deeply in the following essay:
"Four Differences between Mercy Killing and Merciful Death":
http://www.tc.umn.edu/~parkx032/CY-MK-MD.html
Whenever the county attorney or other
prosecuting authority
has reason to believe that a crime is on the verge of being committed,
he or she has an obligation to raise objections
immediately,
thereby delaying the proposed death.
If the proposed death is really legitimate,
it should be easy to provide additional documentation to prove it.
More medical facts of the case
and more opinions of all other persons involved
should be able to convince the prosecutor
that no harm will
come to the person who is choosing a voluntary death
or for whom the proxies are choosing a merciful death.
But if someone was really planning to cause a premature death,
then that person can be prevented from committing that crime.
The civil law permits lawsuits for "unlawful
death".
These procedures will remain in force and can be applied
(after the death) to any cases in which it can be shown
that the motives of those who facilitated or promoted the death
were not in the patient's best interest.
If the premature death has harmed some other
person,
then that person can sue for financial compensation in civil court.
If, for instance, some provision of a will depended on the date of
death,
one relative might gain financial advantage by accelerating the death.
If such motives can be proven in court,
then the injured party can collect monetary damages
from the party who benefited from the premature death.
The complete death-planning record
created by complying with the safeguards for life-ending decisions
will help settle any wrongful-death suits that might result.
Even better, the process of collecting all of the facts and opinions
should bring out any such
underhanded motives beforehand.
Anyone who suspects others of rushing someone into a premature death
should articulate such doubts as soon as they occur.
If the applicable laws are changed to
recognize the right-to-die,
each prosecuting authority will have to develop expertise in reviewing
proposals for: (1) withdrawal of treatments and life-supports,
(2) voluntary death, & (3) merciful death.
And such a regularization of the process of planning death
might require additional safeguards proposed by law-enforcement
authorities.
Or the county attorney's office might develop simple procedures
to apply to the most straight-forward cases.
Whatever the procedure, once the prosecuting
authority has certified
that no criminal acts
will be committed in a particular plan for death,
everyone involved can proceed without fear of prosecution:
(1) They can withdraw all medical treatments and life-supports.
(2) The individual can voluntarily end his of her life
—with
assistance if needed.
(3) They can carry out the planned merciful death.
HOW CIVIL AND CRIMINAL PENALTIES FOR CAUSING PREMATURE DEATH
WILL DISCOURAGE IRRATIONAL SUICIDE
AND OTHER FORMS OF PREMATURE DEATH
Laws against committing an irrational suicide were
not effective,
since those who thought they were going to kill themselves
did not believe they would be around for any punishments.
But laws against assisting an irrational
suicide
should remain in place.
Then any people who want to help others to die
will have to make sure that they have fulfilled several safeguards,
which can then be presented to the prosecuting authority,
so that no charges of causing a premature death will even be brought.
And if an over-zealous prosecutor does charge someone with causing
premature death,
then the death-planning record will be ample proof
that the death was not a
harm to the person now dead,
that it was wisely and carefully planned,
with the approval of several other people, etc.
The very process of fulfilling several safeguards
will make the life-ending decision ever more clear.
Or if the proposed death would be a harm to the patient,
then fulfilling the safeguards will bring possible harms into
the open.
With each new document created to fulfill a safeguard,
those decisions that would have resulted in premature death
will be separated from those choices that will create
a wise voluntary death and/or a compassionate merciful death.
The new laws against causing a premature death
will not approve to every
form of assisted dying.
And whenever someone does in fact cause a premature death,
that person will have to bear the burden
of the civil and criminal penalties imposed for that violation of law.
And as a few cases of causing premature death come into the news media,
others will be discouraged from doing similar harms to the people they
love.
Whenever someone is punished for causing a premature death,
hundreds of other people will
be warned away from committing similar
crimes.
created January 17, 2007; revised
4-4-2008; 6-17-2008