TWO APPROACHES TO RIGHT-TO-DIE LAWS:
GRANTING PERMISSION or BANNING HARMS
Almost all of the laws (and proposed laws) on Earth concerning with 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. So far, the only form of such laws defines 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'.
by James Leonard Park
1. LAWS THAT GRANT PERMISSION TO USE LIFE-ENDING CHEMICALS.
In the United States, the west-coast state of Oregon has had a successful law since the middle 1990s
that permits physicians to write prescriptions for chemicals which can be used by the patient for the purpose of bringing the patient's life to a peaceful and painless end. In 2009 the state of Washington implemented a similar law.
About 10 safeguards are embedded in Oregon's Death with Dignity Act. Here is the full text of the Act, with safeguards highlighted: http://www.tc.umn.edu/~parkx032/SG-OR-DD.html
And here is another file with an organized list of Oregon's safeguards:
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 writes a prescription for life-ending chemicals. The law does 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. About 2% 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 do not require as much paperwork.
2. LAWS THAT BAN CAUSING PREMATURE DEATH.
The other form of right-to-die law falls within the laws against murder. No such law has yet been enacted anywhere in the world. But 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 a draft model law called "Causing Premature Death":
This draft law contains a section describing 26 suggested safeguards which 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 a 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 gives aid to 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"?
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":
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 involved knows the possibility of criminal prosecution if they actually harm the patient when they choose death.
B. THE SAFEGUARDS BECOME OPTIONAL RATHER THAN 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 the case for choosing 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 that there is no chance of getting a conviction for causing premature death because this death most 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 whether Jack Kevorkian gave 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 an example of 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.
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.
James Park is an existential 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: An Existential Philosopher's Museum.