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 chemicals
to be taken by the patient when he or she chooses to die.
However, there is another section of our laws that
needs reform.
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 them 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 COMMITTING 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 REPEALING OUTDATED LAWS AGAINST ASSISTING SUICIDE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 OR TOO LATE, WE CAN DIE AT THE
RIGHT TIME
A
NEW WAY TO SECURE THE RIGHT-TO-DIE:
LAWS AGAINST CAUSING PREMATURE DEATH
by
James Leonard Park
Most of the recent attempts to change laws all
around the world
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 reforms could begin with a completely different
part of the law.
Instead of new laws permitting physicians to provide
life-ending chemicals,
we can replace all laws
against assisting suicide
with laws against causing
premature death.
Laws against assisting suicide are usually found within the
homicide laws.
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 COMMITTING 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.
For example, how would it be possible to steal from oneself?
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 did
not change the crime of assisting a suicide.
When suicide itself was a crime,
it was reasonable to outlaw behavior that assisted that crime.
Those who helped people to commit suicide were
accomplices.
But logically there are problems with continuing to criminalize
helping someone to perform an
act that is no longer a crime.
Careful and consistent laws that replace laws against 'assisting
suicide'
can separate behavior 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
gives 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 ways to distinguish irrational suicide from 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?
These terms are fully developed in another on-line essay entitled:
Will this Death be an "Irrational Suicide" or a "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 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 make their end-of-life medical decisions.
3.
NEW LAWS AGAINST CAUSING PREMATURE DEATH
New laws
against causing premature death 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 this 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
essay explores disconnecting
life-supports:
"Pulling the Plug: A Paradigm for Life-Ending Decisions":
http://www.tc.umn.edu/~parkx032/CY-PLUG.html.
We are not required
to make any additional applications
or to complete government paperwork
before pulling the plug.
We
have an inherent right to
end our lives 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,
they can be prosecuted under existing laws against homicide.
This proposal for making new laws for dying patients
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 26 recommended safeguards
that would prevent
irrational suicide and other forms of premature death
while
at the same time permitting
all forms of legitimate life-ending decisions:
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
FOR REFLECTION
OPPORTUNITIES
FOR THE PATIENT TO RESCIND OR POSTPONE 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
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.
Most of the above safeguards
are organized in a different way here:
26 Recommended Safeguards for Life-Ending Decisions:
http://www.tc.umn.edu/~parkx032/SG-A-Z.html
Almost all of these safeguards could be used in
other kinds of laws,
such as the more conventional attempts
to permit physicians to
prescribe life-ending chemicals.
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 might 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 is ready to die.
5. CONCLUSION: INSTEAD OF
DYING
TOO SOON OR TOO LATE,
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
harming themselves by committing
irrational suicide
and from harming 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; 4-1-2009; 6-7-2009; 2-11-2010: 5-22-2010; 3-12-2011;
12-7-2011;
1-15-2012; 2-28-2012; 3-16-2012; 4-6-2012; 7-10-2012; 9-6-2012; 4-6-2013
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 on-line essays also by James
Park:
Two Approaches
to Right-to-Die Laws:
Granting Permission & Banning Harms .
Losing the Marks of Personhood:
Discussing Degrees of Mental Decline.
Advance
Directives for Medical Care:
24 Important Questions to Answer
.
Fifteen
Safeguards
for Life-Ending Decisions
.
Will
this Death be an "Irrational Suicide" or a "Voluntary Death"?
.
Will
this Death be a "Mercy-Killing" or a "Merciful Death"? .
Four
Legal
Methods of Choosing Death .
Pulling the
Plug:
A Paradigm for Life-Ending Decisions .
Voluntary
Death
by Dehydration:
Why Giving Up
Water is Better than other Means of Voluntary Death .
Voluntary
Death by Dehydration:
Safeguards to Make Sure it is a Wise Choice .
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 Patients to Die
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 10 subject-areas.
Return to the beginning
of this
website:
An Existential
Philosopher's
Museum
.