UNDERGROUND
AID-IN-DYING
RESISTS REVIEW BY THE PROSECUTOR
SYNOPSIS:
Aid-in-dying used to be a 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 shared their plans with the public
prosecutor.
Especially when those who help others to die
might be committing the crime of 'assisting a suicide',
they certainly do not want to report
their potential criminal behavior 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.
3.
THE PUBLIC PROSECUTOR FOR ENGLAND AND WALES
CREATES
GUIDELINES FOR PROSECUTING 'ASSISTING
SUICIDE' —OR
NOT PROSECUTING AT ALL.
4.
CANADA UPDATES ITS LAW AGAINST 'ASSISTING SUICIDE'. 5.
CONCLUSION.
RESULT:
Advocates of the right-to-die
who once thought of the public prosecutor as the last person
they would ever involve in their end-of-life activity
might experience a complete turn-around in their thinking:
Instead of keeping all of the plans for help in dying completely secret,
they might invite a careful review
by the very person who might bring criminals charges
if the end-of-life decisions violated existing laws in any way.
UNDERGROUND
AID-IN-DYING RESISTS
REVIEW BY THE PROSECUTOR
by James Leonard Park
1. SHOULD PROSECUTORS
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OUTDATED LAWS?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 share
their plans with 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even if the law seemed inapplicable and/or out of date.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
was better than death at
some
later time.
In early 2009 the Final Exit Network (operating in
the USA)
was temporarily put out of
business by law enforcement.
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 shared their plans with the public prosecutor beforehand?
Would the prosecutor have asked for more evidence and testimony?
Would the advocates of the right-to-die have been able to show
that voluntary death or merciful death was a wise choice
given the end-of-life situation of the patient involved?
Especially if licensed physicians were cooperating in the planned
death,
the prosecutor would probably think twice before beginning legal
action.
But, more likely, the prosecutor would have
stopped
everyone who was planning for death.
As long as prosecutors have no sympathy for the right-to-die,
they will simply try to keep all patients alive.
Such responses from law-enforcement support the decision
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, nursing homes, &
hospices
end-of-life medical
decisions are being made.
And the public prosecutors have not tried to regulate
any medical
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 there is some objection from a family member or a care-giver.
Once public safeguards for life-ending decisions are
formalized,
perhaps following the paradigm
of
removing life-supports,
meaningful procedures will be created 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.
Is it any surprise that new restrictions
have been placed on the sale of helium —sold
for the purpose of inflating party balloons?
Once helium was a favored underground method of bringing death.
But then a certain percentage of oxygen was added
so that party-balloon helium will no longer cause death.
If and when society creates reasonable ways to
choose death,
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
after fulfilling 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 apply '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 dying patients to choose wise ways to end their lives.
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, with everything 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.
Anyone who helps others to die can occasionally make mistakes.
Thus—thinking
way ahead—the
first
right-to-die hospice
will have malpractice insurance.
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 was
their only comfortable mode-of-operation.
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 reasonable safeguards,
because these safeguards will
protect not only
patients who are choosing their best pathways towards death
but also all who cooperate in such wise, end-of-life medical decisions.
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 listed 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,
prosecutors can publish guidelines that
clarify
just when the law against 'assisting suicide' will be
applied.
Such guidelines might eventually be embodied in new laws,
as happened in the Netherlands.
4. CANADA UPDATES ITS LAW
AGAINST 'ASSISTING SUICIDE'
On
February 6, 2015, the Supreme Court of Canada
overturned the old Canadian federal criminal law against 'assisting
suicide'.
It was far too broad in its earlier applications,
sometimes preventing dying patients from getting appropriate medical
care.
The national Parliament of Canada was given
one year
to create a replacement for the old law,
which violated the Canadian Charter of Rights and Freedoms.
The new law spells out what behaviors are permitted
and what behaviors are prohibited
at the end of life.
Here are the four basic criteria for MAiD: Canadian
Criteria for Medical Assistance in Dying.
5. CONCLUSION
Advocates of the right-to-die
will have to assess
their
chances with particular prosecutors.
Some 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.
Terminal medical care 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.
In some places on the Earth, old laws against
'assisting suicide'
will be found to be unconstitutionally vague
because they do not clearly define
what behaviors are prohibited
and what behaviors are permitted.
Under new
practices, guidelines, or laws,
those who help others to
choose the best time to die
will bring their assistance into the open.
AUTHOR:
James Park is an independent writer
and advocate of the right-to-die with careful, public safeguards.
The links below lead to much more discussion of related themes.
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.