OPEN SAFEGUARDS KEPT
PRIVATE
CREATED FOR SAFEGUARDS GROUP
by James Park
September 28 & 29, 30, 2006.
Dates of revisions are noted at the end.
INTRODUCTION—FULFILLING
SAFEGUARDS IN WRITING
When patients and/or their proxies
are considering which pathway towards death would be wisest for the
patient,
it might be best to record the entire death-planning process in writing.
More specifically, there should be a written record
of the safeguards that have been fulfilled.
We all endorse the concept of having
strong safeguards
to make sure that mistakes and abuses do not occur
when patients are considering how best to meet death.
I propose that we clarify just how safeguards are
being fulfilled
and that we make a careful record of just who
took the steps to fulfill
each specific safeguard
and who certifies
that the safeguard has been used as planned.
For example, when we ask the physician who has primary responsibility
for care of the patient to present his or her diagnosis and prognosis,
this should not only be given verbally to the patient and/or proxies,
but the physician should also create a written summary
of the diagnosis and prognosis.
This should be in addition to the regular medical
records,
which are often recorded in the short-hand
and technical terms of the
medical profession.
The diagnosis and prognosis should be expressed in non-technical terms,
spelling out all medical expressions and explaining what they mean.
This summary diagnosis and prognosis
could also be
made a part of
the official medical record,
but it will be created primarily for the death-planning process,
which will be conducted by laypersons for the most part.
KEEPING THE DEATH-PLANNING RECORD
COMPLETELY PRIVATE
Just as all medical records are kept private
unless there is some suspicion of wrong-doing,
(in which case law-enforcement authorities can obtain the full medical
record),
the written records that make up death-planning safeguards
should be kept private from
the eyes of all
except those duly authorized to see the medical records.
Strangers have no right to read medical records.
And strangers should have no right to read death-planning records.
The safeguards will be fulfilled and certified by creating written
records,
but these records will not
be available to strangers or to the news
media.
The most extreme opponents of the right-to-die
would like to examine every
death-planning record
looking for all possible errors and omissions that might have slipped
in.
And where the record is not complete,
these most extreme opponents of the right-to-die will assume (and
assert)
that terrible crimes have been omitted from the record.
This is a worst-case scenario,
but it is not beyond
the realm of
possibility.
We need only to consider what happened in the case of Terri Schiavo:
Every conceivable abuse and mistake was asserted
based on very flimsy evidence
and gaps in her medical record as it was leaked to the public.
Even the Congress of the United States
was convinced enough to try to pass a special law
to keep Terri
Schiavo connected to life-supports.
There are similarities between these most extreme
opponents
of the
right-to-die and conspiracy theorists,
who claim that John F. Kennedy was killed by
the CIA
and that the American government was somehow involved in the 9-11
attacks.
They pick over the public record in great detail,
always looking for any shred of 'evidence' that might support their case
and pointing out gaps and doubts that suggest to them
that terrible crimes were committed and then covered up.
Thus, we might need to improve the security
measures now in
place
to protect the medical
records and the death-planning
records
of all patients who are considering exercising
their right to choose
the best pathway towards death.
The most radical opponents of the right-to-die
will attempt to use every possible gap in
security
to get records in order to raise doubts
and in order to keep every body 'alive' as long as possible.
(More moderate opponents of the right-to-die
will not use illegal methods to support their arguments.)
THE MEANING OF "OPEN SAFEGUARDS"
When we create and implement safeguards for
life-ending decisions,
we should always put these into complete writings
so that this record could be reviewed in a court of law
if there is ever any doubt that a crime (harm) might have been committed
under the color of the 'right-to-die'.
This is the case now with all written medical
records:
Civil and criminal courts have the power to subpoena medical
records
to help settle civil lawsuits and criminal cases.
Thus all the medical records must be kept in
standard formats
so that they can be understood by strangers
who might be called upon to examine them at some later time.
Medical experts for both sides of any case
will be called upon to review these records
to make sure that no mistakes in medical practice were made
and that no abuses took place under the cover of medical practice.
Likewise, the safeguards fulfilled as part of the
death-planning
process
will have to be at least standard enough
to be understood by
well-qualified experts who might be call upon
to examine the death-planning record at some
later time.
And the easiest way to make sure the safeguards are
fulfilled as
intended
is to follow all the procedures as planned and to write down the
results.
Probably one page of writing for each safeguard
would be sufficient to prove that each safeguard has been fulfilled.
These safeguards should be simple enough for laypersons to understand.
And their fulfillment should also be easy to verify.
For example, if there are 26 safeguards for
life-ending decisions,
then there would be 26 separate documents,
each showing how that particular safeguard has been fulfilled.
This should not become a cumbersome process.
And when we propose safeguards,
we ought to estimate how many hours of work will be required
to make sure this particular safeguard
could actually have prevented a
premature death.
And we might also estimate how many pages
would be needed to create the documentation required by that safeguard.
If and when it is our own lives and deaths that are
being decided,
we would not want the deciders to take short-cuts with the
safeguards
simply because they could not be bothered with all the paperwork.
As a preview of possible safeguards,
to make this abstract discussion more concrete,
here are fifteen proposed safeguards:
"Fifteen Safeguards for Life-Ending Decisions":
http://www.tc.umn.edu/~parkx032/CY-10SG.html
SECRETIVE DEATHS, DISGUISED
CAUSES,
FALSE OR INCOMPLETE
DEATH-CERTIFICATES
Open
safeguards might be contrasted with the
secretive
processes
that have been used in the early years of the right-to-die movement.
When law-enforcement officials were not open to the right-to-die,
then the whole death-planning process was very secretive and hidden.
When safeguards were being fulfilled,
these were never put into writing,
for fear that some people involved in the death-planning process
might be charged with some crime (such as "aiding a suicide").
There were professional opinions given by doctors,
but these did not become part of the official medical records.
Often the immediate cause of death
was not disclosed on the death certificate.
Because the right-to-die began as an underground
movement,
many who have been part of this movement for many years
will resist the idea of having open safeguards,
even if the facts of each case are kept completely private.
These advocates of the right-to-die were comfortable
with having secret and
informal safeguards,
which were never intended to be put into writing
that might be examined by law-enforcement officials
or judges and
juries at a later time.
But as the right-to-die becomes more open and public,
so will the safeguards become more open and public.
This is parallel to the trend toward
more open and public medical
decisions in general.
Old-school doctors did not think it was necessary
to explain everything to their patients and/or the proxies for their
patients.
It was enough for the doctor to examine the patient and make a
decision.
But now even the most technical medical decisions are committed to
writing.
And doctors are well aware that there might be a judicial review
of their medical decisions at some time in the future.
They might be sued for malpractice in civil court.
Or their might even be a criminal complaint if someone thinks
that some law was broken under the cover of medical treatment.
Death-planning skates even closer
to the edge of the
law than most
medical practice,
because assisting an irrational suicide is still a crime in most places.
(And it ought to remain a crime because harm is being visited upon the
victim,
even if the dead person wanted to die.)
The open and public safeguards
must be observed and fulfilled in all
right-to-die cases
because there could always be some people
who claim that the patient
should not have died
or was coerced into
dying prematurely.
Following proper safeguards will prove that this
death was
helpful, rational, well-planned, & admirable.
These are the four characteristics of a voluntary death or a merciful
death.
Not following the safeguards or merely pretending to fulfill them
could lead to an irrational suicide or a mercy-killing.
The four corresponding features of such deaths are the following:
Irrational suicides and mercy-killings are:
harmful, irrational, capricious, & regrettable.
These differences are spelled out more completely in the following
essays:
"Four Differences between Irrational Suicide and Voluntary Death"
http://www.tc.umn.edu/~parkx032/CY-IS-VD.html
"Four Differences between Mercy-Killing and Merciful Death"
http://www.tc.umn.edu/~parkx032/CY-MK-MD.html
THE DEATH-PLANNING RECORD WILL
NEVER BECOME PUBLIC INFORMATION
When we say that we want open safeguards that are
kept private,
we mean that the written record of fulfilling the safeguards
will never become public
information.
If one of the safeguards is
to have the prosecuring
authority review the
death-planning documents,
then we will know that a neutral third party,
who is familiar with obfuscations used by criminals to cover their
tracks
has looked at the documents proving that the other safeguards have been
fulfilled
and has issued his or her own document saying that the planned death
will not violate any law in that jurisdiction.
It should be public information that the prosecuting authority
has ruled that the planned death can go ahead
because no crime will be committed
if the plans proceed as explained in
the documents.
The public and the news media have only this right to know
that the people responsible for prosecuting any possible crime
have examined the death-planning record and have found
that no crime will be
committed if the plans are carried forward.
To prevent second-guessing by extreme opponents of
the right-to-die,
the details of the death-planning record will not be made public.
And perhaps it should be a new crime
to disclose any such records to the public and/or to the news media.
When we make our medical decisions
—including our
decisions that will
lead to death—
we need to be certain that these medical records
will never become public
information.
In the past, no death-planning records were created,
which helped prevent extreme opponents of the right-to-die
from raising doubts about the cases.
But now we are probably ready for a more open and honest process
of making life-ending decisions,
even tho in most cases, the death-planning documents
will never be disclosed to the public.
Even if we are certain about the decision for death,
we must be willing to have
the safeguards put into writing
because open safeguards, carefully fulfilled,
will prevent some unnecessary and unwise deaths.
We genuinely want to prevent
premature deaths of all sorts:
mercy-killings, premature withdrawal of life-supports,
manipulated 'choices' of death, & irrational suicides.
Other people will benefit from the fact
that we have fulfilled the safeguards as completely and honestly as
possible.
Created September
30, 2006;
Revised 11-24-2006, 1-3-2007; 2-14-2008; 11-13-2008