RIGHT TO DIE--LAW AND LEGISLATION---new laws against causing premature death

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 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 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 REPEALING OUTDATED LAWS AGAINST ASSISTING SUICIDE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 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 prevent irrational suicide and other forms of premature death
while at the same time permiting voluntary death or merciful 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.

    Most of the above safeguards
are 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 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 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; 4-1-2009; 6-7-2009

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:

Two Approaches to Right-to-Die Laws:
Granting Permission & Banning Harms .

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! .

Go to Advantages of the Premature-Death Approach to the Right-to-Die.

Further Reading:

Best Books on Voluntary Death

Best Books on Preparing for Death