SAFEGUARD S FOR LIFE-ENDING DECISIONS

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

    The prosecuting authority in any jurisdiction
is that public official who is responsible for bringing criminal changes
whenever a crime might have been committed.
Thus, one possible safeguard to prevent any crime being committed
under the color of a reasonable life-ending decision
would be to share the plans for death with the prosecuting authority
before the last steps towards death are taken.

    If we take as our model for life-ending decision
the withdrawal of life-support systems,
we realize there would be too many deaths achieved by such withdrawal
for every case to be reviewed by the public prosecutor.
When death occurs because the life-supports were removed,
the death-certificate will read "natural causes".
And the doctor who pronounces death will specify
just what diseases or conditions led to this death.
That statistical report of death goes to the department of health
or to some similar government agency that records all deaths.
What life-support systems were employed
will be recorded in the complete medical record,
but the final discontinuation of everything used in the ICU
is almost never mentioned on the certificate of death.

    The prosecuting authority in any jurisdiction only becomes involved
in suspicious deaths or in deaths caused by criminal activity.
The coroner or medical examiner is the public medical officer
who is responsible for investigating suspicious deaths,
especially deaths that take place outside of hospitals, nursing homes,
& other institutions that care for dying patients.

    However, if the patient and/or proxies planning a chosen death
want to make sure that they will not be prosecuted for their actions,
it should be possible for them to present their plans for death
to the prosecuting authority for the purpose of being assured
that no prosecutions will result from their actions.
The death-planning record should be sufficient proof
that this death will not be a harm to the patient,
will not be an irrational action taken on the spur of the moment,
and that after the death has been achieved,
all who know the medical facts and recommendations
will find this death a reasonable and even admirable choice
rather than a tragic and regrettable mistake.

    At first, the prosecuting authority might have a knee-jerk reaction
to any papers submitted proposing to help someone to die.
The prosecutor's job is to investigate possible crimes.
So when a packet of information comes in the mail
stating that such-and-such a patient is considering a voluntary death
or that the proxies are considering a merciful death for their patient,
then the prosecutor might first send the police to prevent any death.

    But as more people exercise their legal options at the end of life,
even the public prosecutor will become accustomed to such choices.
Perhaps half of all deaths in the United States
now include a meaningful element of choice.
Thus, it would be foolish to involve prosecutors in all of these deaths.
But when there are good reasons to question a proposed death,
the prosecuting authority might well be involved.
After a questionable death has taken place,
the prosecutor will become involved anyway.
So why not include this legal perspective
before any possible crime has been committed?
Similar amounts of time will be needed for either investigation,
but an investigation that takes place before death
has the possibility of preventing a premature death.

    Once the prosecutor has a summary of the death-planning record,
including the documentation of the safeguards already fulfilled,
he or she will ask the following question:
If this death is achieved as planned,
will this be a crime harming the patient
or will this be a wise, end-of-life medical decision?

    If any prosecutor automatically says "no" to all plans for death,
that prosecutor should be re-educated about medical ethics
and the legal options for making life-ending decisions.
These legal methods for choosing a timely death include:
(1) providing comfort-care only,
(2) inducing terminal coma,
(3) withdrawing curative treatments and life-supports, &
(4) giving up water and food.
If the prosecutor cannot be 'brought up to speed',
he or she should be replaced.
What good is a prosecutor who does not know the law?

    Large offices of prosecutors will probably appoint staff members
specifically trained to review questionable life-ending decisions.
And if more than 20 safeguards have already been fulfilled,
is there any reason to open a case-file concerning this proposed death?
Especially if the death will take place
in a hospital, nursing home, or under hospice care of any kind,
the safeguards already fulfilled by the medical profession
will probably need no further review.

    In Holland, after a few years of reports to the public prosecutor,
the Netherlands created 5 Regional Review Committees
to receive all reports of 'euthanasia' and 'physician-assisted suicide'.
Now a lawyer, a doctor, and an ethicist review each case
reported by the doctor who helped his or her patient to die.
Sometimes the committee asks for additional information,
but in the first decade of operation, the Regional Review Committees
have not referred any cases to prosecutors.
They now review 4,000-5,000 doctor-assisted deaths per year,
which amounts to 4-5% of all deaths in Holland.

    In addition, Holland has trained some of its doctors to be consultants
for all cases of 'euthanasia' and 'physician-assisted suicide'.
These special doctors are available to all physicians
considering taking some life-ending action for a patient.
When cases were discussed with a euthanasia consultant beforehand,
the Regional Review Committees spend less time reviewing those cases.
In the United States, such prior advice might be provided by
an institutional ethics committee or a private ethical consultant.

    Another alternative to seeking a review by the public prosecutor
would be asking a lawyer familiar with end-of-life law.
This lawyer could review all of the safeguards already fulfilled.
Which of these would most impress a prosecutor, judge, or jury?

    In most medical cases involving some life-ending decisions,
no legal review will be needed before the death takes place.
The careful procedures followed and the safeguards already fulfilled
will ensure that this is a wise end-of-life medical decision
not any sort of crime harming the patient.

    However, some difficult end-of-life situations have landed in court.
If there is any possibility of a trial coming from the proposed death,
then it is better to do the legal review before the death,
when it is still possible to prevent a premature death.
It will be more difficult to prove that this death was not premature
after the life-ending actions have resulted in the patient's death.

    If the evidence already collected is weak in some respects,
additional medical facts and professional recommendations
can be gathered to prove that this death will not be premature.   

    Either the lawyer hired to defend against a possible charge
of causing premature death or the public prosecutor
can review the facts and even interview the patient and/or the proxies
to make certain that the proposed death will not violate any laws.

HOW A LEGAL REVIEW BEFORE DEATH
WILL DISCOURAGE IRRATIONAL SUICIDE
AND OTHER FORMS OF PREMATURE DEATH

    Persons who are thinking of committing irrational suicide
will not inform the public prosecutor or consult a lawyer
before they proceed with their irrational plan to kill themselves.
And anyone who is planning to support an irrational suicide
likewise would not want this proposed criminal action
to be known by the prosecutor or any private attorney.

    But when proxies are planning to withdraw life-supports,
and if they are uncertain of their legal authority to do so,
they might ask for a legal opinion from the public official
who would normally be responsible for charging them with a crime
if their decisions or actions cause any harm to anyone.

    The very fact of sharing the plans with the public prosecutor
should be taken as strong evidence of no evil intent.

    The prosecuting authority can examine all of the documents
created in the death-planning process.
And if the prosecutor finds any problems with the documents,
he or she can request more information.

    All such deeper investigation should be for the purpose
of preventing premature death.
And sometimes the public prosecutor will discover some factors
that will change the plans for death.
If the prosecutor believes that some crime is being planned,
he or she can inform the doctor, the hospital, the proxies, etc.
that criminal charges will be brought if the death proceeds as planned.
This will be a strong way to prevent premature death.

    Civil and criminal penalties will remain in place.
Anyone tempted to encourage or cause a premature death
will know that there are criminal and civil penalties
that will be applied if someone does any harm to another
---even under the guise of a reasonable life-ending decision.

    However, if the prosecutor sees no problems in the end-of-life planning,
he or she can issue a written statement that in his or her opinion
no crime will be committed if the death proceeds as planned.
And everyone involved in the death-planning process
can rely on this statement from the prosecutor
and proceed without fear that they might be prosecuted
after the death has been achieved.
This death-planning process was reviewed beforehand by the prosecutor.
And the prosecutor issued a statement
assuring everyone involved that this death would not be a crime.
Created January 25, 2007; revised 4-12-2007; 3-21-2008; 7-9-2008;
3-4-2009; 10-14-2009; 2-10-2010; 5-21-2010; 5-21-2011; 12-16-2011;
1-31-2012; 2-23-2012; 3-10-2012; 3-23-2012; 8-2-2012; 8-22-2012; 12-6-2012;
 5-21-2013; 6-27-2013; 7-9-2014; 11-21-2014;
2-12-2015; 2-20-2015; 7-9-2015; 10-27-2015; 11-23-2017; 11-8-2018; 12-11-2019;

    An alternative to review by the public prosecutor
has been suggested in the United Kingdom:
"consent of the High Court, Family Division".
A judge of the family court would be asked to evaluate the request for death.
If a judge approves, there is no point in asking the prosecutor or any other lawyer.
But a lawyer might be needed to make the presentation to the High Court.
This is now Safeguard GG, Judicial Consent.

    A professional trained in the law
might be asked about some life-ending decisions.
Will this be a private lawyer, hired by the patient and/or the family?
Will this be the public prosecutor, employed to look for possible crimes?
Will this be a judge, who can rule that no crime will be committed
if the plans for death are followed as written?
If and when any such safeguards are applied anywhere in the world,
that can be reported here.
And such early methods of legal review might affect other places on earth,
where right-to-die laws are just being written or revised. 

This recommendation to share the death-planning documents
with the public prosecutor or other attorney
is Safeguard S in How to Die: Safeguards for Life-Ending Decisions:
"Review by the Prosecutor (or other Lawyer) Before the Death Takes Place".
PROSECUTORS CAN ANNOUNCE THEIR GUIDELINES
Some offices of public prosecutors have issued written criteria
to be used in making the decision about bringing criminal charges.

UNDERGROUND AID-IN-DYING RESISTS REVIEW BY THE PROSECUTOR
Especially right-to-die organizations
that base their actions on the right to end one's own life
do not want their plans known in advance by the public prosecutor.

Go to the Catalog of Safeguards for Life-Ending Decisions

Go to the list of 26 recommended safeguards.

Go to the index page for the Safeguards Website.


Go to the Right-to-Die Portal.


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