UNDERGROUND
AID-IN-DYING
RESISTS REPORTING TO THE PROSECUTOR
SYNOPSIS:
Aid-in-dying used to be an hidden or underground
activity.
Those who helped others to die did not want their role to be
discovered.
And because of fears of prosecution,
they certainly would never have submitted their plans to the public
prosecutor.
But prosecutors can become more sympathetic to the
plight of the dying.
And they can issue guidelines to separate helping from harming.
OUTLINE:
1.
PROSECUTORS USED TO ENFORCE OUTDATED LAWS.
2.
IMAGINING A NEW, RATIONAL WORLD.
3.
THE PUBLIC PROSECUTOR FOR ENGLAND AND WALES
CREATES GUIDELINES FOR PROSECUTING 'ASSISTING SUICIDE' —OR
NOT PROSECUTING AT ALL.
CONCLUSION
UNDERGROUND
AID-IN-DYING RESISTS
REPORTING TO THE PROSECUTOR
by James Leonard Park
1. PROSECUTORS USED TO ENFORCE
OUTDATED LAWS.
In the early days, aid-in-dying organizations (and
individuals)
had to operate under archaic laws against
'assisting suicide'.
Therefore, those who helped
other people to die did not want
to report
their plans to the public prosecutor.
Many were convinced (based on well-publicized examples)
that the prosecutor would only call the police
to prevent any further actions intended to bring death.
Even if the supporters intending to help others to
die
timely deaths
had all the best intentions and motives,
they knew that the public prosecutor was employed to enforce the law,
even if the law seemed out of date.
There were a few examples of prosecutors declining
to charge someone with a crime
when a family member had committed
what was usually called a
"mercy-killing".
The prosecutor has discretion
about how to apply the law.
And when the actions under review were motivated by
mercy,
the prosecutor might decide that on balance little or no real harm
was visited upon the patient who is now dead.
If the person who committed the alleged 'mercy-killing'
had in fact pursued meaningful safeguards for life-ending decisions,
the final result would have been the same.
In other words, under the best medical care,
the official procedures might well have led to the same decision
that death at this time
is better than death at some
later time.
In early 2009 the Final Exit Network
was temporarily put out of
business by law enforcement.
Among other things, officers and volunteers were accused of assisting
suicide.
It took years for these cases to be resolved by the courts,
where the helpers were exonerated.
What would have happened if the helpers
had reported their plans to the public prosecutor beforehand?
Perhaps the prosecutor would have asked for more evidence and testimony,
showing that voluntary death or merciful death was a wise choice
under the specific circumstances.
But more likely the prosecutor would have stopped
the death-planning process.
As long as prosecutors have no sympathy for the right-to-die,
they will simply try to keep the patient alive.
Such responses from law-enforcement support the determination
of some people who help others to die
not to report anything to
the prosecutor.
Sending a summary of the death-planning record to the county attorney
would only result in unwanted investigation by the police.
And, even if the planned aid-in-dying were completely justified,
the death-planning process would come to a sudden halt.
2. IMAGINING A NEW, RATIONAL
WORLD.
However, the laws against 'assisting suicide' are
not
written in stone.
Rather, these are all paper laws—printed
in law books.
And they have not been examined or revised for many decades.
Since they were first created, medical care has advanced dramatically.
Now every day in our hospitals, end-of-life medical
decisions are being made.
And the public prosecutors have not tried to regulate
any in-hospital
treatments or non-treatments.
For example, when a family decides to disconnect life-supports
that were sustaining a former person in a persistent vegetative state,
the public prosecutor never even learns about this decision
unless some family-member or care-giver objects.
Once public safeguards for life-ending decisions are
formalized,
perhaps following the paradigm of
removing life-supports,
then there will be meaningful procedures in place for examining and
evaluating
even the life-ending decisions that take place in
hospitals.
Advocates for the right-to-die should support the creation of careful safeguards.
Then, even the most liberal helpers can operate within the law.
In the meantime, underground aid-in-dying
will be forced even more deeply underground.
Fearing detection by law-enforcement employees,
they will work even harder to cover
their tracks
when they help anyone to choose a timely death.
I would not be surprised if some new restrictions
are placed on the sale of helium —now
sold for the purpose of inflating party balloons
but often used by underground aid-in-dying helpers to bring death.
Perhaps a certain percentage of oxygen will be added
so that party-balloon helium will no longer cause death.
If and when society creates good procedures for
choosing
death in timely ways,
then the cops-and-criminals
games will end. Police have no training in
bedside end-of-life medical decisions.
And people who help others to die under careful safeguards are not criminals.
(Crime means harming
another person.)
The right-to-die will ultimately become a well-recognized right.
But the pathway from clandestine
aid-in-dying to life-ending decisions based
on public safeguards privately fulfilled
might be a long and twisting road.
How will we make open and reasonable life-ending
decisions
by the middle of the 21st century?
I think we will give up trying to interpret and enforce 'assisted
suicide' laws.
Such laws never contemplated the many problems
that now frequently arise at the end of life.
Laws against assisting a suicide were intended to discourage irrational suicides —not
wise and compassionate end-of-life
medical decisions.
The mind-set of clandestine aid-in-dying will also
have to change.
People who have devoted their lives to helping in the dark
will find it very strange to fulfill
public safeguards
and to open themselves to the possibility of judicial review
in case they make a mistake
or abuse their power
when helping others to die.
The history of the practice of medicine also shows a
similar movement
from secret and disguised actions by the very early healers
to the modern medical practice, where everything is open and
above-board.
Doctors now welcome the possibility that their decisions
can be reviewed by other doctors
and perhaps even in malpractice civil suits.
People who help others to die
should also welcome consultation with their colleagues
and even the possibility that their behavior
might result in a criminal investigation for causing
premature death.
All kinds of helpers can occasionally make mistakes.
When advanced societies openly embrace the
right-to-die,
some of the earliest advocates of the right-to-die
might find themselves completely out of their element.
They might have to retire from aid-in-dying, as Jack Kevorkian did,
because secrecy is
the only mode-of-operation in which they feel
comfortable.
But a new
generation of helpers will arise,
who want to make sure that they are making wise life-ending decisions.
These new helpers will
embrace wise safeguards,
because these safeguards will protect not only patients considering
when
to die
but also all who cooperate in such wise, freely-chosen deaths.
3. THE PUBLIC PROSECUTOR FOR
ENGLAND AND WALES CREATES GUIDELINES FOR PROSECUTING
'ASSISTING SUICIDE' —OR
NOT PROSECUTING AT ALL.
In September 2009, the Crown Prosecution Service
issued its
"Interim policy for prosecutors in respect of cases of assisted suicide" http://www.cps.gov.uk/consultations/as_policy.html
This policy lists 16 factors in favor of prosecution and 13 factors
against.
In February 2010, these guidelines were slightly
updated.
There are now 22 guidelines total:
This file presents both the old formulation and the new formulation of
each guideline.
The creation of these guidelines shows
that at least some public prosecutors are
considering
adopting a new attitude toward possible cases of 'assisted suicide'.
And as a matter of historical fact,
very few cases of 'assisted suicide' have been prosecuted in the UK.
And one member of parliament reports
that no one has ever gone to
jail for violating this law in 50 years.
Reasonable people agree that end-of-life
medical decisions
are not the same as committing
irrational suicide.
And the guidelines should help to separate harming (which should be
prosecuted)
from helping (which
should not result in any prosecutions).
Will other jurisdictions create similar guidelines?
Prosecutors have discretion about applying laws.
And when the laws are out-of-date,
they can adopt guidelines that clarify just when the laws should be
applied.
Such guidelines might eventually be embodied in new laws,
as happened in the Netherlands.
And then underground aid-in-dying can become open
and public, applying meaningful
safeguards to all life-ending decisions.
CONCLUSION
Advocates of the right-to-die will have assess their
chances with particular prosecutors.
Some prosecutors will become known for not prosecuting right-to-die
cases.
And other prosecutors will announce their guidelines
for deciding when to prosecute and when to do nothing.
Medical practice will continue to advance,
with less chance of interference from law-enforcement.
And in some place on the Earth, new laws will be
enacted
defining which behaviors are helpful and which are harmful.
Under new practices, guidelines, or laws,
those who help others to choose the best time to die
will be able to bring their helping into the open.
AUTHOR:
James Park is an independent existential philosopher
and advocate of the right-to-die with careful, public safeguards.
The links below lead to much more discussion of related themes.
Created
March 5, 2009; Revised 3-10-2009; 3-17-2009; 10-14-2009; 10-22-2009;
1-17-2010; 3-8-2010; 3-15-2010; 5-12-2010; 2-12-2011; 5-21-2011
Safeguards Used
by the Final Exit Network
A presentation and discussion of the 9 guidelines
used by the Final Exit Network
in deciding which potential clients to aid in dying.