UNDERGROUND
AID-IN-DYING RESISTS REPORTING TO THE PROSECUTOR
In the early days, aid-in-dying organizations (and
individuals)
had to operate under archaic laws against 'assisting suicide'.
Therefore, those who helped others 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 people intending to help others to die a
timely death
had all the best intentions and motives,
they knew that the public prosecutor was employed to enforce the law,
even if the law sometimes seemed out of date.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 put out of
business by law enforcement.
Among other things, they were accused of assisting suicide.
It will take several months, perhaps years,
before these cases will be
resolved by the courts.
These law-enforcement activities support the determination
of some 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 end.
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 everyday 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.
When the 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 reviewing 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 then 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.
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 road 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 tring 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 to help 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 the 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.
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 those considering when
to die
but also all who cooperate in such freely-chosen deaths.
THE PUBLIC PROSECUTOR FOR ENGLAND AND WALES
CREATES GUIDELINES CONCERNING PROSECUTIONS FOR 'ASSISTING SUICIDE'
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.
This 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.
Reasonable people are seeing that end-of-life medical decisions
are not the same as commiting
irrational sucide.
And the guidelines should help to separate harming (which should be
prosecuted)
from helping (which
should not result in any prosectutions).
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.
Created
March 5, 2009; Revised 3-10-2009; 3-17-2009; 10-14-2009; 10-22-2009