TWO APPROACHES TO
RIGHT-TO-DIE LAWS:
GRANTING
PERMISSION
or BANNING HARMS
SYNOPSIS:
Almost all of the laws (and proposed laws) on Earth
concerning the right-to-die specify how to choose death:
They grant permission
for certain persons to aid others in dying.
Most such laws allow physicians to prescribe
life-ending chemicals for qualified patients.
But other right-to-die laws ban
harms as a form of homicide.
Such proposed laws separate behavior that is harmful to a victim
from behavior that is beneficial
to a patient.
They might define the new crime of causing
premature death.
These laws against harming patients (and others thought to be dying)
specify exceptions
to the old laws against 'assisting a suicide'.
OUTLINE:
1.
LAWS THAT GRANT PERMISSION TO USE GENTLE POISON.
2. LAWS THAT BAN CAUSING
PREMATURE DEATH.
3. SOME ADVANTAGES OF
PUTTING THE RIGHT-TO-DIE
WITHIN THE
HOMICIDE LAWS.
A.
PRESUMED INNOCENT.
B.
SAFEGUARDS BECOME OPTIONAL,
NOT
MANDATORY.
C. ANY
PROSECUTIONS WOULD FAVOR THE DEFENSE.
4. CONCLUSION.
RESULT:
Readers who began assuming that the
right-to-die
means granting special permission for life-ending chemicals
will discover a completely new way to achieve the same right:
When the law defines the new crime of causing premature death,
it also allows all forms of helping patients to die at the best time.
Will advocates of the right-to-die
favor changing the laws
against murder
so that helping patients to shorten the process of dying
will no longer be included as a form of homicide?
TWO APPROACHES TO RIGHT-TO-DIE LAWS:
GRANTING
PERMISSION
or BANNING HARMS
by James Leonard Park
1.
LAWS THAT GRANT PERMISSION TO USE GENTLE POISON.
In the United States, Oregon's Death with Dignity Act
has permitted physicians since the middle 1990s
to approve lethal chemicals for a qualified patient
to bring the patient's life to a peaceful and
painless end.
In 2009 the state of Washington implemented a similar law.
In 2013 Vermont followed with its Patient Choice at End of
Life Act.
In 2016 California became the largest right-to-die state.
Also in 2016 Colorado voters passed a gentle poison law.
In 2018 Hawaii joined the list of right-to-die states.
In 2019 New Jersey passed its right-to-die law.
About 10 safeguards are embedded in Oregon's Death
with Dignity Act.
Here is the full text of the Act, with safeguards highlighted:
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG-OR-DD.html
And here is an
organized list of the safeguards used in Oregon:
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG-LAWS.html
The basic
procedures are simple in principle:
Doctors certify that the patient qualifies under the law
by virtue of fulfilling the stated criteria.
Then after appropriate waiting periods,
the physician gives written approval to use life-ending chemicals.
The laws do not specify how and when the patient
should take the
chemicals
intended to bring immediate death,
so that part of the
process is left in the hands of the individual
patient.
In the Netherlands, various laws and guidelines over
the years
have permitted physicians to grant death to their patients.
The procedures have been changed from time to time,
but they now basically permit a patient to ask for 'euthanasia'.
If the physician believes that the patient meets the criteria,
the physician gives a lethal
injection that brings death.
4-5% of all deaths in the Netherlands
are achieved by chemicals provided by a physician.
In recent years, life-ending decisions in Holland have mainly
taken the form of increasing
pain-medication and terminal
sedation,
which are not subject to the same process of review.
2. LAWS THAT BAN CAUSING
PREMATURE DEATH.
The other form of right-to-die law falls within the
laws against murder.
If and when the homicide law of any state or country is modified
to define what kinds of behavior constitute causing a premature death,
that very definition will also describe behavior that leads to a
timely death
—a death that is not a harm
to the patient and is therefore not a crime.
Here is model legislation outlawing "Causing
Premature
Death":
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/PREM-DTH.html
This draft law contains a section
describing 26 suggested safeguards
that are intended to separate harmful, criminal behavior
—here called "causing premature death"—
from helpful, non-criminal behavior
—which results in a timely, peaceful, &
usually painless death.
This new law is proposed to replace laws against
assisting suicide.
At least it permits some forms of helping other people to die
that are no longer prohibited by law.
Behavior that assists another person to commit an irrational suicide
is still a criminal offense under this proposed new law.
But behavior that aids a
patient who wisely chooses a voluntary
death
or whose proxies compassionately choose a merciful death
is approved end-of-life
assistance—not
a criminal offense.
Here are two
additional background essays
separating the approved
behavior from the disapproved
behavior:
Will this Death be an "Irrational Suicide" or a "Voluntary Death"?
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/CY-IS-VD.html
Will this Death be a
"Mercy-Killing" or a "Merciful Death"?
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/CY-MK-MD.html
3. SOME ADVANTAGES OF
PUTTING THE RIGHT-TO-DIE
WITHIN THE
HOMICIDE LAWS.
The laws that permit physicians to provide
life-ending chemicals
necessarily require a government
process for granting that permission.
This sometimes involves cumbersome paperwork.
Such procedures required by some government agency
often seems unnecessary to the people involved.
Thus there are valid suspicions
that many doctors and patients are
avoiding the paperwork
and choosing death without officially fulfilling the
safeguards
and without reporting the death as achieved by voluntary means.
The recent Dutch shift from lethal injection
to increasing pain-medication
or to terminal sedation
avoids the burdensome paperwork associated with legal
'euthanasia'.
When the right-to-die safeguards
are embodied in a law against causing premature death,
the burden of proof shifts to
the prosecution side.
If the patient, doctors, & proxies know they are choosing a
timely death,
not causing a premature death
for the patient,
they can keep their process of fulfilling the safeguards private.
The fulfilled safeguards would not be examined by the government
unless there is probably
cause to believe that a
crime has occurred.
Then the fulfillment of the safeguards can be presented
as a defense against
the charge of causing a premature death.
The paradigm for this approach to the right-to-die
is withdrawing life-supports
systems.
Doctors consult with the patient and/or the proxies
when it is no longer meaningful to keep the patient on
life-supports.
If and when they collectively decide that the patient will not recover,
they might decide to 'pull the plug'—disconnecting or discontinuing
whatever systems are keeping the patient
alive.
If they withdraw life-supports before it would be
appropriate,
then they are committing a crime
for which they can be prosecuted.
And they would defend themselves against any such charge
by presenting the full medical record,
which shows that all meaningful treatments
were tried
and were subsequently discontinued when they did no good.
Another on-line essay discusses this pattern
for life-ending decisions:
Pulling the Plug: A Paradigm for Life-Ending Decisions:
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/CY-PLUG.html
A.
PRESUMED INNOCENT.
When the right-to-die falls under some part of the
criminal law,
then the accused is presumed
to be innocent until proven guilty.
This seems to be entirely appropriate when we are talking about
withdrawing life-supports in a hospital setting.
The patient, the proxies, & the doctors
are assumed to be acting in the best interest of the patient
—unless
there is some compelling proof to the contrary.
Presumed innocence should apply to
most life-ending
decisions.
When reasonable
safeguards are followed,
there should be no question that the death was wisely decided.
And most cases will be so
obvious that there is no need
for representatives of any government agency to visit the bedside
or become involved in considering the end-of-life options.
But everyone knows the possibility of criminal
prosecution
if they actually harm
the patient when they choose death.
B.
SAFEGUARDS BECOME OPTIONAL,
NOT
MANDATORY.
When the legal burden of proof shifts to the
criminal prosecutor,
then the patient, proxies, & doctors who are choosing death
do not have to fulfill a set of safeguards prescribed in law.
They know the specific content of their end-of-life deliberations.
And they know which facts
would be most convincing to a jury
if ever someone were charged with causing premature death.
When approving death is obvious to all
who know the facts,
then there will be less need to fulfill elaborate safeguards.
All involved in the life-ending decisions
will know that even the most biased prosecutor would see
no chance
of getting a conviction for causing premature
death
because this death obviously was not premature.
C. ANY
PROSECUTIONS WOULD FAVOR THE DEFENSE.
The law against causing premature death specifies
safeguards
that might be fulfilled in order to prove
that the death was timely
rather than premature.
And because these safeguards are included in the written law,
no judge can exclude
such facts and opinions from any subsequent trial.
The last trial of Jack Kevorkian was lost because
the defense
could
not offer testimony from the patient and the
family
that death at this time was the best possible alternative.
The judge ruled that all such facts and opinions were irrelevant.
The only question was: Did Jack Kevorkian give a lethal injection?
If Dr. Kevorkian had been charged with causing premature
death,
he would never have been sent to prison because the death
of Thomas Youk—who was dying of ALS—was not premature.
The fact that he died a timely death
would have been proven by presenting safeguards
that were fulfilled in choosing the best time for him to die.
If Michigan had a law against causing premature
death,
it would not have been possible for the prosecution
to try Kevorkian under another part of the homicide statute.
Thomas Youk's death was a
wise life-ending
decision.
It was not second degree
murder.
Under a law banning assistance in premature death,
the defense could have presented several safeguards
which tended to show that it was a timely death,
wisely decided by everyone involved, especially the patient
himself!
When safeguards embodied
in laws
enable everyone to separate wise
life-ending medical decisions
from causing premature death,
then helping patients to die will clearly not be a criminal offense
if meaningful safeguards are fulfilled.
4. CONCLUSION.
Shifting the right-to-die laws from granting
permission for death
to defining what constitutes
causing a premature death
—thereby allowing choosing timely death—
will require new thinking within the right-to-die movement.
But this second approach is likely to be supported by more people
who formerly were undecided about the right-to-die.
We all want to avoid
premature death for ourselves.
And we can support new laws that
prohibit
helping or causing anyone to die too
soon.
AUTHOR:
James Park is an independent philosopher,
living and writing in Minneapolis, Minnesota, USA.
He is a strong advocate of the right-to-die,
as illustrated by several links below.
Much more information about him will be found on his website:
James
Leonard Park—Free
Library
created
February 24, 2007; revised 8-3-2007; 4-18-2008; 8-15-2008; 8-31-2008;
3-13-2009; 5-15-2009; 3-27-2010; 6-28-2010; 2-15-2011;
1-11-2012; 2-28-2012; 3-15-2012;
4-6-2012; 8-4-2012; 8-31-2012;
4-6-2013; 6-13-2013; 6-19-2014; 7-9-2014; 5-1-2015; 7-15-2015;
8-6-2016; 12-1-2017; 11-30-2018; 1-8-2020;
Draft
model law against Causing Premature
Death:
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/PREM-DTH.html
Go
to Advantages
of the Premature-Death Approach to the Right-to-Die.
How
prosecutors would probably respond
to the 26 recommended
safeguards for life-ending decisions:
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG-A-PROS.html
Canada's national
right-to-die law (2016)
is a hybrid of these two
approaches to the right-to-die.
This law makes exceptions to the law against assisting
suicide,
which remains in force as part
of the Criminal Code of Canada.
Doctors and nurse practitioners
are granted
permission
to help qualified
patients to die.
When the specified safeguards
are fulfilled,
no one who cooperates will be
charged with assisting suicide.
Here is Canada's law
allowing medical assistance in dying (MAiD):
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/RTD-CAN.html
Safeguards
Website:
This website explores all the pros and cons of
various proposals for allowing people to make wise life-ending
decisions.
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG.html