PROSECUTORS CAN ANNOUNCE THEIR GUIDELINES

SYNOPSIS:
 
    In every judicial system,
public prosecutors are responsible for bringing charges.
And when prosecutors know that the case will be heard by laypersons,
they realize that technical violations of law will not easily result in conviction.
Juries are employed in order to bring common-sense into the process.
And if a death was wisely decided by the patient and the family,
in consultation with a physician,
then the prosecutor has almost no chance of convincing a jury
that some crime was committed in making the end-of-life decisions.

    Also, everyone who helps to make the life-ending choices
need not fear that civil complaints or criminal charges will result
if they follow reasonable procedures for making terminal-care decisions,
including all decisions that accept or lead to the patient's death.

    The following 26 recommended safeguard-procedures
are offered as operational steps to be fulfilled by laypersons and doctors
and to be considered by public prosecutors
when they decide whether or not to bring charges.

    When the most relevant of these safeguards have been fulfilled,
the prosecutor will know that no jury of peers will convict.
And the laypersons who cooperate in making life-ending decisions
will know that they will probably not even be investigated
if they have fulfilled all reasonable safeguards
designed to prevent premature death.

    Best of all, public prosecutors anywhere
could announce that following these guidelines
will result in immunity from prosecution.

OUTLINE:

26 SAFEGUARDS FOR LIFE-ENDING DECISIONS
THAT MIGHT BE RECOMMENDED BY PROSECUTORS:

A. ADVANCE DIRECTIVE FOR MEDICAL CARE

B. REQUESTS FOR DEATH FROM THE PATIENT

C. PSYCHOLOGICAL CONSULTANT EVALUATES
            THE PATIENT'S ABILITY TO MAKE MEDICAL DECISIONS

D. PHYSICIAN'S STATEMENT OF CONDITION AND PROGNOSIS

E. INDEPENDENT PHYSICIAN REVIEWS THE CONDITION AND PROGNOSIS

F. CERTIFICATION OF TERMINAL ILLNESS OR INCURABLE CONDITION

G. UNBEARABLE SUFFERING

H.  UNBEARABLE PSYCHOLOGICAL SUFFERING

I.   PALLIATIVE CARE TRIAL

J. INFORMED CONSENT FROM THE PATIENT

K. REQUESTS FOR DEATH FROM THE PROXIES

L. ENROLLMENT IN A HOSPITAL OR HOSPICE

M. STATEMENTS FROM HOSPITAL OR HOSPICE STAFF MEMBERS

N. STATEMENTS FROM FAMILY MEMBERS
            AFFIRMING OR QUESTIONING CHOOSING DEATH

O. A MEMBER OF THE CLERGY
            APPROVES OR QUESTIONS CHOOSING DEATH

P. RELIGIOUS OR OTHER MORAL PRINCIPLES
              APPLIED TO THIS LIFE-ENDING DECISION

Q. AN INSTITUTIONAL ETHICS COMMITTEE
            REVIEWS THE PLANS FOR DEATH

R. STATEMENTS FROM ADVOCATES FOR DISADVANTAGED GROUPS
            IF INVITED BY THE PATIENT AND/OR THE PROXIES

S. REVIEW BY THE PROSECUTOR (OR OTHER LAWYER)
            BEFORE THE DEATH TAKES PLACE

T. CIVIL AND CRIMINAL PENALTIES FOR CAUSING PREMATURE DEATH

U. WAITING PERIODS FOR REFLECTION

V. OPPORTUNITIES FOR THE PATIENT TO RESCIND OR POSTPONE
            ANY LIFE-ENDING DECISIONS

W. PHYSICIANS REVIEW THE COMPLETE DEATH-PLANNING RECORDS

X. COMPLETE RECORDING AND SHARING
            OF ALL MATERIAL FACTS AND OPINIONS

Y. THE PATIENT MUST BE CONSCIOUS AND ABLE TO ACHIEVE DEATH

Z. THE DEATH-PLANNING COORDINATOR ORGANIZES THE SAFEGUARDS

THE PROSECUTOR DEFINES IN ADVANCE
            EXACTLY WHICH FULFILLED SAFEGUARDS WILL RESULT IN
            NO PROSECUTION OF ANYONE INVOLVED.



PROSECUTORS CAN ANNOUNCE THEIR GUIDELINES
by James Leonard Park

26 SAFEGUARDS FOR LIFE-ENDING DECISIONS
THAT MIGHT BE RECOMMENDED BY PROSECUTORS

    Each of the following 26 safeguards
is linked to a more complete explanation on the Internet.
Which of these practices would be the most powerful for separating
foolish premature death from wise end-of-life medical decisions?

A. ADVANCE DIRECTIVE FOR MEDICAL CARE

    Has the patient who is approaching death
written an Advance Directive for Medical Care?
Does the AD explain what the patient wants under the current circumstances?
If the patient affirmed his or her right-to-die in an Advance Directive
—probably written years before and revised periodically—
then the prosecutor knows that there is no point in raising the question
of whether some crime might be committed in following the Advance Directive.

    In fact, most laws authorizing Advance Directives explicitly state
that following those written instructions for the last year of life
will not result in any prosecution for the doctor
or anyone else involved in the health-care decisions.

    How could it be a crime to follow a legally-binding Advance Directive?

    The most complete Advance Directives for Medical Care
will include a section for statements of understanding and support
from everyone who will be involved in the patient's last year of life.

    If the prosecutor is offered a handful of written statements
from relatives and friends of the patient,
all of which support the decision for a chosen death,
then the prosecutor knows that each and every one of these people
will stand up in court and say that this death was not a crime.
Rather, it was a well-considered end-of-life decision,
which they all approved in advance—in writing.

    If the prosecutor even considers bringing charges
against people who helped the patient to die,
then there will be several others who will come forward
to say that they also cooperated with the chosen death.
And then the prosecutor would have to reconsider,
since there would be far too many defendants to try.
And probably none of these cases would reach a conviction,
since all of these people would support one another
in the claim that this death was a wise end-of-life choice,
not a crime or a harm to the patient.
A jury of their peers would hear their stories with complete sympathy.
And a reasonable prosecutor could never hope for conviction.

    Confronted with such overwhelming testimony,
the wise prosecutor would not even bring charges.



B. REQUESTS FOR DEATH FROM THE PATIENT

    The written and witnessed requests to die from the patient
should be enough all by themselves to convince the prosecutor
that there is no case.
If the patient clearly and convincingly requests death
under the given circumstances,
then who is the prosecutor to say that
this patient does not have a right to choose
a good death now rather than a worse death later?



C. PSYCHOLOGICAL CONSULTANT EVALUATES
            THE PATIENT'S ABILITY TO MAKE MEDICAL DECISIONS

    In addition to all of the verified requests for death from the patient,
the prosecutor will read signed statements from psychological professionals
stating that they have evaluated the patient's state of mind
and awareness of his or her end-of-life situation.
And the psychologist or psychiatrist has found no reasons
why the proposed death should not go forward.

    If in doubt, the prosecutor could hire another consultant
who would also evaluate the thinking and situation of the patient.

    Considering a possible trial, the prosecutor will know
that the defense will call these psychological professionals
to testify that they personally examined the patient
and found the patient to be making a wise end-of-life decision,
not suffering from any irrational thinking
or under any pressure from relatives to choose a premature death.

    If the plan for death was approved by psychological professionals,
why would the public prosecutor become involved?

D. PHYSICIAN'S STATEMENT OF CONDITION AND PROGNOSIS

    The prosecutor will also be able to read the medical doctor's
analysis of the situation of the patient at the end of life.
The decision in favor of dying now rather than waiting for death later
is based on what the doctor has written
about the condition and future of this particular patient.

    How could the prosecutor have a better plan for the patient?
The wise prosecutor will not move any case toward trial
if the doctor will testify that the end-of-life decisions were reasonable.

E. INDEPENDENT PHYSICIAN REVIEWS THE CONDITION AND PROGNOSIS

    And if there might be any doubt of the validity of the first doctor's report,
then the case will be made even more certain
if a second physician independently comes to the same conclusion. 
If the patient's doctors all believe that the patient's life is over,
what prosecutor will insist on keeping the patient alive?

    If the prosecutor doubts the validity of any of the doctors' reports,
that prosecutor can appoint still more doctors to examine the patient
and to recommend the best time for this patient to draw life to a close.



F. CERTIFICATION OF TERMINAL ILLNESS OR INCURABLE CONDITION

    And if the doctors have issued a written statement
saying that the patient has a terminal illness or hopeless condition,
then the prosecutor should know that this death is a medical decision
not any violation of law.

    Confronted with all this medical evidence and testimony,
the wise prosecutor will take no further action against anyone.
The prosecutor might even issue a statement
affirming that no one will be prosecuted
if the planning for death proceeds as described in the documents.

    Even before any change of law to confirm the right-to-die,
the prosecutor could announce
that deaths approved by medical professionals
would not lead to any prosecutions of anyone for any crime.



G. UNBEARABLE SUFFERING

    The prosecutor will be told that the patient is suffering unbearably.
And the prosecutor can investigate more deeply
if there is any doubt about the condition of the patient.

    No prosecutor would want to bring a case against anyone
who helped the patient to find relief from unbearable suffering.
That would put the prosecutor on the side of insisting
that everyone must suffer before dying.
How long could such a prosecutor stay in that job?
Common sense will prevail in court,
even if some interpretations of law might say
that a different course of action was required.
The jurors will side with everyone who acted to reduce suffering.



H. UNBEARABLE PSYCHOLOGICAL SUFFERING

    And if there is psychological suffering involved,
this could also be a valid reason for choosing a shorter process of dying.
Those who testify that the patient had unbearable emotional suffering
will carry the jury with them toward this conclusion:
no conviction of anyone who helped to relieve this inward suffering.



I. PALLIATIVE CARE TRIAL

    If the medical record shows that the patient received medical care
intended to relieve all forms of suffering,
this will be additional evidence that the final choice of death was wise.
If the suffering could not be prevented by any medical means,
then the patient has a right to choose death to end that suffering.

    The prosecutor will not want to confront the palliative-care doctors
and try to convince the jury that these doctors were incompetent.
A wise prosecutor will not insist on additional forms of terminal care
instead of allowing a reasonable, shorter pathway towards death.



J. INFORMED CONSENT FROM THE PATIENT

    If the patient has given official informed consent to the plans for death,
then the prosecutor simply has no case to present to a jury.
The patient wants to die because of all of the objective medical facts.
How could a prosecutor insist on any other course of action?
And what chance would any prosecutor have against the evidence
of the written and witnessed informed consent of the patient?



K. REQUESTS FOR DEATH FROM THE PROXIES

    Whenever the patient's thinking ability has declined below
reasonable capacity to make medical decisions,
the duly-authorized proxies take over all medical choices.
The prosecutor has no role in selecting proxies.
And when the official proxies request death for their patient,
based on well-established medical facts and recommendations,
then the prosecutor has no case to investigate.

L. ENROLLMENT IN A HOSPITAL OR HOSPICE

    When the patient is receiving terminal care in a hospital
or even an at-home hospice program,
this is very strong evidence that the patient is dying.
And appropriate medical care is being provided.
Only under very unusual circumstances
(such as a doctor who has killed patients before)
would there be any role for the public prosecutor
when terminal care is being provided by medical professionals.

    And what jury would convict if the patient died in a hospital,
unless there were very strange happenings in that place?

    In Oregon, which does have a Death with Dignity law,
most patients who die by taking lethal chemicals prescribed by a doctor
are also receiving hospice care.
Such professional end-of-life medical care is not required by Oregon.
But receiving terminal care from medical professionals
should convince everyone that this death was wisely chosen.
It was not irrational suicide or assistance with a foolish self-killing.

    Any prosecutor could announce that most routine deaths
under professional medical care will not even be investigated.



M. STATEMENTS FROM HOSPITAL OR HOSPICE STAFF MEMBERS

    When statements from medical staff and volunteers
—who are providing the daily care for the dying patient—
support the proposed death,
then the prosecutor will not charge anyone with doing harm.

N. STATEMENTS FROM FAMILY MEMBERS
            AFFIRMING OR QUESTIONING CHOOSING DEATH

    Also, when family members have written statements of support,
the prosecutor sees that the evidence is all on one side.
If those who are closest to the dying patient also affirm the plan
for shortening the process of suffering before death,
then the prosecutor will have difficulty convincing a jury of their peers
that something harmful to the patient took place.



O. A MEMBER OF THE CLERGY
            APPROVES OR QUESTIONS CHOOSING DEATH

    Even more, if there is a written statement from a clergy-person
affirming the right of this patient to choose death,
then the prosecutor would feel foolish confronting this testimony at trial.
The jury (and even the prosecutor) might be people of faith.
So they will be especially attentive to the testimony of a clergy-person
who affirmed this patient's end-of-life choices.



P. RELIGIOUS OR OTHER MORAL PRINCIPLES
            APPLIED TO THIS LIFE-ENDING DECISION

    If there is a religious or moral analysis of the end-of-life situation,
which concludes that choosing death is the best option,
then the prosecutor will not bring any kind of criminal case
against anyone involved in planning this death.



Q. AN INSTITUTIONAL ETHICS COMMITTEE
            REVIEWS THE PLANS FOR DEATH

    If ever the end-of-life choices were submitted to an ethics committee,
then their conclusion will be very powerful in the minds of any jury
that might be gathered to decide whether this death was wise.

    What prosecutor would have any chance in court
against the testimony of a duly-authorized institutional ethics committee?

    If an ethics committee of the medical institution
has reviewed all of the facts and opinions relevant to the plan for death
and concluded that a chosen death is the best course of action,
then the public prosecutor has nothing to investigate. 



R. STATEMENTS FROM ADVOCATES FOR DISADVANTAGED GROUPS
            IF INVITED BY THE PATIENT AND/OR THE PROXIES

    If the patient belongs to any minority group
that has sometimes suffered discrimination,
then a representative of that same minority group
might have been asked to review this case
to make certain that there is no discrimination.
If this community representative agrees with the life-ending decision,
could the prosecutor make the opposite case before a jury?



S. REVIEW BY THE PROSECUTOR (OR OTHER LAWYER)
            BEFORE THE DEATH TAKES PLACE

    And this might be the decisive factor concerning whether to prosecute:
The complete death-planning record is presented to the public prosecutor
before the patient dies.
And that public official investigates any questionable parts of the record.
Finding no problems needing further elaboration
(or obtaining any further medical facts or professional opinions needed),
the public prosecutor decides that no law would be violated
if the chosen death proceeds as planned.

    If one prosecutor approves the plans for death,
could a different prosecutor claim that some crime was committed?
If the prosecutor says that this death will not be a crime,
then there would be no case to investigate later.

    In fact, this safeguard could embrace all of the other safeguards:
The public prosecutor reviews all the death-planning documents,
seeking additional information and testimony as needed,
and then issues an official statement that no prosecutions will follow
for anyone involved if the death proceeds as planned.

    If the public prosecutor examines the death-planning documents
and finds no reasons to delay or prevent this death,
the prosecutor can issue a declaration of immunity from prosecution.



T. CIVIL AND CRIMINAL PENALTIES FOR CAUSING PREMATURE DEATH

    However, if anyone has made a mistake or committed a crime
under the color of a reasonable life-ending decision,
then penalties can still be applied to any such violator.
Civil courts will hear any claims of wrongful death.
And criminal courts will try any harms committed by anyone,
especially if such behavior might have caused a premature death.



U. WAITING PERIODS FOR REFLECTION

    The death-planning record will show that specific periods of time
were observed for more thinking and investigation
before the plan for death was carried forward.
Even with the approval of everyone already asked,
mistakes might still be possible.
And requiring reasonable times for reconsideration
will further confirm that no harm will come to the patient.



V. OPPORTUNITIES FOR THE PATIENT TO RESCIND OR POSTPONE
            ANY LIFE-ENDING DECISIONS

    There must be recorded opportunities for the patient to change course.
If the patient reaffirms the choice of death at each such opportunity,
how could some harm come from this death?

W. PHYSICIANS REVIEW THE COMPLETE DEATH-PLANNING RECORDS

    After the planning for this death is nearly complete,
the physicians in charge of the care of the patient
should read thru all of the documents collected
to see if there might have been some omissions or errors of judgment.
Finding none, the death can go ahead as planned.
And this final review by the medical professionals in charge
will be very convincing evidence for any jury
that appropriate precautions were observed to prevent premature death.



X. COMPLETE RECORDING AND SHARING
            OF ALL MATERIAL FACTS AND OPINIONS

    One person should collect and circulate the documents.
And the very fact of such careful record-keeping
should be strong evidence that this death is being wisely chosen. 
And, as already noted, the prosecutor might be one of the people
who reads the death-planning record.

Y. THE PATIENT MUST BE CONSCIOUS AND ABLE TO ACHIEVE DEATH

    If it seems wise for this particular death,
one final confirmation of the wishes of the patient
might be that the last decision leading to death
was taken by the patient himself or herself.

    But this safeguard should not be used to deny death
to someone who completed all of the necessary steps
before becoming unable to make the final decision for death.



Z. THE DEATH-PLANNING COORDINATOR ORGANIZES THE SAFEGUARDS

    A death-planning coordinator collects and maintains the documents
created in the process of planning for this specific death.
This will be the basic record that the prosecutor might consult
in making any decision about whether or not to prosecute anyone.

THE PROSECUTOR DEFINES IN ADVANCE
            EXACTLY WHICH FULFILLED SAFEGUARDS WILL RESULT IN
            NO PROSECUTION OF ANYONE INVOLVED.

    If any public prosecutor endorses these 26 recommended safeguards
(or any modification of the safeguards discussed above),
he or she can publish that determination.
This will allow everyone to know exactly what criteria will be used
for deciding whether or not to prosecute anyone.

    Should those who help others to die try to outguess the prosecutor?
The standards for prosecution should be defined in advance for all to read.

    Would any prosecutor bring any charges against anyone
for a death that fulfilled all (or nearly all) of these 26 safeguards?

    Even without any change in the law against 'assisting a suicide',
these safeguards should enable everyone to know what will happen next:
No further investigation will be needed.
The prosecutor will bring no charges.
There will be no trial.
And no one will be convicted of any violation of law.

     If reasonable safeguards endorsed by public prosecutors
show that wise end-of-life medical decisions
can go forward without any harm to patients,
then the official laws of that jurisdiction can be changed
to embrace and codify the same safeguards.

    Enlightened prosecutors can lead the way
toward better end-of-life decision-making
by defining in advance of any terminal-care decisions
exactly which fulfilled safeguards will preclude prosecution.



 AUTHOR:

    James Park is an independent original philosopher
with deep interest in medical ethics,
especially the many issues surrounding the end of life.  
Medical Ethics and Death are two of the ten sections
to his website called:
James Leonard Park—Free Library

    The above explanation of how enlightened prosecutors
can help establish the right-to-die
is also Chapter 56 of How to Die: Safeguards for Life-Ending Decisions:
"Prosecutors Can Announce their Guidelines".
Created February 12, 2011; Revised 2-13-2001; 2-16-2011; 5-26-2011;
9-4-2011; 10-4-2011; 12-30-2011;
1-14-2012; 2-28-2012; 3-16-2012; 7-19-2012; 9-1-2012:
4-6-2013; 6-13-2013; 6-19-2014; 11-21-2014; 2-20-2015; 7-15-2015;
8-6-2016; 11-28-2017; 12-1-2018; 1-7-2020;

    One public prosecutor has already begun to de-criminalize aid-in-dying.
His guidelines apply for all public prosecutors in England and Wales:

GUIDELINES FOR PROSECUTORS IN ENGLAND AND WALES:

https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG-UK10.html

    Another presentation of these same 26 recommended safeguards
shows how they would protect against prosecution:
26 SAFEGUARDS SUGGESTING NO PROSECUTION
FOR MURDER, MANSLAUGHTER, OR ASSISTED SUICIDE
https://s3.amazonaws.com/aws-website-jamesleonardpark---freelibrary-3puxk/SG-26PROS.html

Go to the Catalog of Safeguards for Life-Ending Decisions.
This catalog includes the 26 recommended safeguards above,
plus a few more.
Go to the index page for the Safeguards Website.

Go to the Right-to-Die Portal.

Go to the beginning of this website
James Leonard Park—Free Library