Analysis Euthanasia Law

“Analysis Of Euthanasia Law In Netherlands And Uk”

Introduction

Progressive development of human rights together with medical science brings continuously discussible question of euthanasia. There are various opinions how euthanasia should be practice. Each of those opinions is supported by considerable arguments but right now it’s hard to say if there are more followers or opponents and to choose which way is the right one.

The progress in modern medicine had allowed us to longer live expectancy and healthier lives. But new health problems are still developing. However, by prolonging live this way does not mean a better or more acceptable death. Even there are people who would argue that modern medicine provides the means for extending the process of dying, which can be painful and meaningless for patients, and torturous and financially burdensome for their families.

The question of euthanasia is being discussed mainly in circles of doctors and religion communities, then less by lawyers. Even though that lawyers are the main part for finding the legal definition of euthanasia. How we can see today, each country has its own legal approach to euthanasia which is reflected on its respective laws.

This paper reflects the comparison of euthanasia law in Netherlands and UK. Comparing these two states of Europe is mainly because just in one of them the euthanasia is legalized which will clearly show the legal differences. But are the differences so distinct in practice as well? In order to clarify these issues first chapter focuses on general definition of concepts of euthanasia for better understanding the whole concept of euthanasia law. The analysis of both jurisdiction approaches towards this concept is mentioned in the second chapter. The third chapter is based on the comparative view of these countries and whether they are really so different? The fourth chapter only just determines a position of International law towards problematic of euthanasia.

Definition Of The Concepts Of “Euthanasia“

The word Euthanasia originated from the Greek language: eu means “good” and thanatos means “death”. One meaning given to the word is “the intentional termination of life by another at the explicit request of the person who dies.” However, there are some more classifications of this term as active or passive, and as either voluntary or involuntary. Similar or even one form of euthanasia is considered assisted suicide. The result of this division is an issue of great confusion and absence of common legal definition of the term of “Euthanasia”.

Active Vs Passive

Active euthanasia might defined as intentionally bringing death of an ill patient on his express request by active means such as injecting the patient with poison. This type used to be called ‘mercy killing‘, but this term was soon avoid because its connected with Nazis in World Word II and their killing Jews, Gypsis,etc. On the other hand, there is passive euthanasia which is usually defined as refusal of medical treatment with the intention of causing the patient’s death. It means that the patient with incurable illness, no chance to get better and where the death is irrevocable has right to refuse all treatment innervations. By this act the patient is taking all responsibility from his step. It means if the patient has any sudden interruption in life functions, the doctors just don’t do anything to save him and just leave him die.

Voluntary Vs Involuntary

Another division is between Voluntary and Involuntary euthanasia. These two types are not so much relevant for this paper but just to mention them for better understanding of whole concept of euthanasia. Voluntary euthanasia means when the patient’s life is end up on

his behalf or that he refuses his treatment with knowing that the act will lead to his death. The opposite of voluntary is involuntary euthanasia which occurs when a patient’s life is ended without the patient’s knowledge. This may be a case when a patient is unconscious or in vegetative state and somebody makes a decision for him. This type does not follow so many obstructions and is pretty clear from the legal point of view than the previous one.

Assisted Suicide

Somewhere between active and passive euthanasia is considered assisted suicide. This type is seen when a doctor gives to a patient an advice how to end his own life, but the doctor does not perform the act by himself. For example, if a doctor gives you a pill sufficient to cause your death, explains to you what it is and you later on take it by yourself, this is considered assisted suicide.

The Regulation Of Euthanasia By Criminal Law

Pain And Symptom Relief Approaches

If patient is seriously ill or has great pain there exists general agreement which can help him out of his suffering. There are two special approaches which can be practice even though they may shorten a patient’s life and without any violation of the terms of criminal law causing bodily harm. The first is called Double Effect which is based on doctor’s intention. Another way is Medical Exception. These concepts are more described below.

Medical Exception

In general, the medical exception means that doctors are allowed to do things which are for others forbidden, as long as there is a medical reason for that. The medical treatment falls outside the criminal law. It means that things which are done by doctors would be very serious crimes for others. This provision should help doctors as well as patients. An example where a doctor is afraid of prosecution by his patient would not be contribution neither for doctors nor patients. On the other hand, this concept has also its disadvantages. Doctors are losing almost all liability for their acts so they don’t might not feel such responsibility towards patient even though it is very difficult to prove doctors negligence or mistake.

Double Effect

”The principle of double effect is doctrine that distinguishes between the consequences a person intends and those that are unintended but foreseen and may be applicable in various situations where an action has two effects, one good and one bad.” This means, if the doctor’s primary intention is to relieve suffering, he may prescribe pain relief even though he knows it may cause the patient’s death. The doctor will not be guilty of murder unless his purpose was to cause patients death. However, this raises an issue of intention since in most jurisdictions, there is not permit the fine distinctions between primary and secondary intention that the doctrine of double effect requires. The intention is intended even if is foreseen by the actor. Nevertheless, the approach in medical cases is taken with provision even though the legal grounds on which this can be done are not clear.

The Netherlands

On November 28, 2000, the Dutch Lower House of parliament, by a vote, approved the legalization of euthanasia [104 for and 40 against]. Then, on April 10, 2001 the Dutch Upper House of parliament followed and voted to legalize euthanasia [46 for, 28 against and one member was not present].

On April 1st 2002, Termination of Life on Request and Assisted Suicide Act came into effect and euthanasia became legal in the Netherlands. By this step, the Netherlands became the first and at that time only country in the world where euthanasia is formally legalized [Is not punishable]. Even though, already at the beginning of 90’s Royal Dutch Medical Association and the Ministry of Justice agreed that when a physician followed prescribed guidelines for non-prosecution agreement, there was practiced euthanasia.

Big part in approving of the Act played at that time proceeding case called Brongersma [2000]. This case is considered as one of the landmark in development of Dutch euthanasia law. The reason was also because parliamentary debate was closely interwoven. During parliamentary debates many question about the new Act was connected with this case.

The doctor Philip Sutorius helped an 86 year old patient, who was ex-senator Brongersma very well known to the public, to die in belief that he was suffering because of his hopeless existence. That simply meant that the doctor helped him because of the reason being “tired of life”. Even another medical opinion confirmed that he was in a great pain. However, public prosecutor disagreed with the solution. The case ended after 2 years [2002] where the Supreme Court rejected all of Sutorius defenses and he was convicted of murder (article 40, Penal Code), but the court used discretion to not impose any punishment.

The most important about the case of Brongersma is that it raised the debates in parliament and forced all members to focus on issue of euthanasia. Its part has also that the actor who died was former senator of the Labor Party. Right before the end of the proceedings the Termination of Life on Request and Assisted Suicide Act was approved by member of parliaments.

Active Euthanasia And Assisted Suicide

In big number of other countries the term of ‘euthanasia’ is including most of all behaviors concluding the death, as is euthanasia active, passive, voluntary, etc. But in the Netherlands only the ‘active euthanasia’ is legally considered as effective.

Since 2002, the conditions of euthanasia are governed by the Termination of Life on Request and Assisted Suicide Act [Review Procedures]. The law is made out of three parts. The first regulate ‘requirements of due care’ and talks about responsibilities of reviewing reported cases. The second amends articles 293 and 294 of the penal code. And the third amends the Burial and Cremation Law.

The statutory ‘requirements of due care’ is consisted of six points:

1-The patients request was voluntary and well-considered

2- The conviction that the patient’s suffering was unbearable and without improvement

3-The doctor informed the patient about the situation he was in and about his prospects

4-The patient has to be informed that there was no other reasonable solution for the situation he was in

5-The doctor has consulted at least one other, independent physician who has seen the patient and has given his written opinion on the requirements of due care, referred to in parts 1 – 4, and

6-The doctor has terminated a life or assisted in a suicide with due care

The illegality of euthanasia was ended by coming of article 293. Article 293[1] provides: “Any person who terminates another person’s life at that person’s express and earnest request shall be liable to a term of imprisonment not exceeding twelve years or a fifth-category fine.”

But article 293[2] adds:” The act referred to in the first paragraph shall not be an offence if it committed by a physician who fulfils the due care criteria of the Termination of Life on Request and Assisted Suicide Act, and if the physician notifies the municipal pathologist of this act in accordance with the provisions of Burial and Cremation Act.”

It means that behavior usually punishable is not recognized as criminal offence if the act is committed by physician who fulfils the set requirements and notifies pathologist.

Since the only type which is ‘legally’ recognized as euthanasia is active one then assisted suicide falls out of this group in the Netherlands. However, assistance with suicide has never been considered as a crime before creation of new article 294 of Penal Code.

Article 294 states:” Any person who intentionally assist another to commit suicide or provides him with the means to do shall, if suicide follows, be liable to a term of imprisonment not exceeding three years or a fourth-category fine”.

Nevertheless, both of those types are treated differently by Penal Code, but Dutch law does not make any differences between active euthanasia and assisted suicide in practice as far as they are justifiable. It means that in practice both of these approaches are considered as ‘euthanasia’ in the Netherlands.

Refusal Of Treatment

Refusal of treatment is known as passive euthanasia. In the Netherlands this action is covered by the Law on Contracts for Medical Treatment which is part of Dutch penal code. According to article 11 of the Constitution which states the right of all persons to the inviolability of the body, the doctor has to follow a wish of a patient in refusing a treatment. The right to refuse begins at age o12. In case where a child is 12-16 years old there is need consent of both the child and his parents. In a case when a child is younger than 12 or between12-18 and is not competent, then he or she is represented by parents or his guardian. But for people 18 years old or older who are not competent, the decision has to make a representative [Court-appointed representative, spouse or partner and a parent, child, brother or sister, doctor]. Another possibility to refuse treatment is through written treatment directive. Article 450.3 of Law on Contracts for Medical Treatment says: “In a case patient sixteen years of age or older cannot be considered capable of reasonable assessment of his relevant interests, the health care provider and [the personal representative] shall follow the patients apparent views laid down in writing when he was still capable of such reasonable assessment and containing a refusal of consent. The health care provider may depart herefrom if he considers that there are well-founded reasons for doing so. ” There are almost no formal requirements such as witness or signature, but these instruments might increase chance of a valid treatment directive. The only issue which may occur is while a doctor departs from the written document if he considers that there are ‘well-founded reasons’ to do so. This formulation is vague; there is an agreement that the personal view of a doctor cannot amount ‘well founded reason’. A professional opinion that it will cause death of a patient is irrelevant. In effect, ‘well founded reason’ refers to authenticity of the document.

Conclusion

The question is, may be patient killed with active euthanasia or assisted suicide against his will when there are requirements as voluntary request and intolerable suffering? If the suffering is sufficient enough to be considered as intolerable that depends on doctor’s subjective opinion. Even though one of the rules is to consult it with another independent physician, there is not any way how a size of suffering is measured. But according to some people the final decision in voluntary request does not really depends on the patient. The Dutch law which is supposed to protect autonomous decision has proved to be insufficient and allow killing of people who did not request it. One of front Dutch authority and advocate in question of euthanasia for many years, René Diekstra, was “troubled that his vision of providing relief from irremediable suffering while preserving autonomy was lost in the realities of euthanasia in the Netherlands”. Here is created an argument of those who are against of concept of euthanasia which is the ‘slippery slope’ to warn people against tolerating euthanasia and assisted suicide. The argument of ‘slippery slope’ is very simple. Even though that euthanasia does not have to be the worst idea, it might lead to bad things as killing patient which has not requested it. Even if a line can be drawn between voluntary and non-voluntary euthanasia, it is impossible to adequately safeguard to slip to one side. But there is not any hard evidence of a slippery slope in the Netherlands. However, there will always be the potential for abuse when euthanasia is legalised in this form.

The United Kingdom

In the United Kingdom, differently from the Netherlands, is Euthanasia according to law illegal. As well as euthanasia the assisted suicide is acceptable neither from legal point of view nor in practice. But the competent adults may refuse their treatment, incompetent adults and children are treated in their best interest. In 1994, the House of Lords in UK rejected the possibility of legalizing euthanasia because it would breach the sanctity of life doctrine. In 2005 UK they re-visited the question of legalizing euthanasia as a consequence of the introduction into the House of Lords of the Assistance with Dying for the Terminally Ill Bill. The primary aim of this Bill was to legalize euthanasia for those patients which are not able to commit suicide. The Select Committee travelled to Belgium, Switzerland and the Netherlands where euthanasia and assisted suicide have been legalized to analyze its advantages and disadvantages. The Assisted Dying Bill was not successful and was rejected in 2006 for a reason of indeterminate key terms such as pain, suffering and distinction between euthanasia and assisted suicide.

Active Euthanasia And Assisted Suicide

Since there is no any provision for legal euthanasia then euthanasia is considered as murder under English law where a convicted is charged of life sentence. However, the motive of offender or consent of the victim is relevant to the case and this is presented in case of Bland [1993]. There are some factors which can reduce the sentence. For example, if the defendant’s primary intention was to act in good faith to help to the person from suffering. Then another part is assisted suicide which is prohibited by Suicide Act 1961 section 2[1] which states: „A person who aids, abets, counsels or procures the suicide of another, or attempt by another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years“. The issue raises if somebody assists to another person to obtain assisted suicide in other country [where the act is considered as legal], is he then going to be prosecuted under the Suicide Act 1961 section 2? One of the favorite destinations where people go to receive assisted suicide is Switzerland. As far as I know there are around 150 cases every year and nobody has been prosecuted yet. The view how strictly is the law followed is seen in a case Pretty v. The United Kingdom. The plaintiff Dianne Pretty claimed that the criminal prohibition on assisted suicide is in contradiction with European Convention on Human Rights, but she was not successful. This case is analyzed in more details in section four “Approach of International law towards “Euthanasia”.

Passive Euthanasia

A mentally competent adult has an absolute right to refuse any medical treatment which is considered as passive euthanasia even though it leads to death of a patient. In case of a competent child, he or she does not need parental permission to do so. But the decision has to be in the best interest of the patients, where a court can overrule any of those refusals. When an adult is mentally incompetent, the treatment decision is made on behalf of his representative, who is chosen by the individual himself [at the time he was still competent] or judicially appointed. This decision maker has to use the ‘best interest’ test. The action of prolonging life is usually considered to be in the best interest of the patient. The Mental Capacity Act 2005 section 4[6] states the requirements which must be considered:

A, the person’s past and present wishes and feelings, B, the beliefs and values that would be likely to influence his decisions if he had f capacity,and C, the other factors that he would be likely to consider if he were able to do so.

The case Airedale NHS Trust v. Bland [1993] is the landmark case in passive euthanasia [withdrawal]. Antony Bland was a victim of a disaster at Hillsborough stadium. He was found in the crush. Unfortunately after the accident he was diagnosed as a being in persistent vegetative state. He was fed through a tube. The conclusion by doctors was that Antony would never get out of this state. Since he was not a competent then his family and doctors agreed that it was in his best interest to withdraw artificial nutrition, but against this decision was Official Solicitor who represented incapable people as Antony. Lord Lowry said:

“There is no duty, or indeed right to feed, when feeding is not in the best interests of the patient. But the real reason for withdrawing feeding is that the doctors consider that it would be in the patient’s best interests for him to be allowed to die.”

The House of Lords agreed with opposing solicitor that if the doctors’ intention is to deny any food and fluids to Antony then it would be considered as murder. But the Lords held that they would not commit murder because the offence requires an act not an omission. Where, stopping feeding is considered as an omission not an act. The Law Lords dismiss the appeal against withdrawing feeding of Anthony Bland, the feeding was stopped and he died couple of days later. Lord Mustill said:

“The conclusion that the declarations can be upheld depends crucially on a distinction drawn by the criminal law between acts and omissions, and carries with it inescapably a distinction between, on the one hand what is often called “mercy-killing”, where active steps are taken in a medical context to terminate the life of a suffering patient, and a situation such as the present where the proposed conduct has the aim for equally humane reasons of terminating the life of Anthony Bland by withholding from him the basic necessities of life..“

Conclusion

Th argument of ‘slippery slope’ is one of the biggest fears in UK. The legislation in United Kingdom is very strict towards a problematic of opening ‘flood gate’. That is the reason why euthanasia and assisted suicide could be just hardly legalized in UK. They are really careful in choosing their laws and as far as they don’t find a sufficient definitions in question of euthanasia there won’t be any possibility in legalizing euthanasia and/or assisted suicide. Even though before couple of years this idea of legalization was unimaginable idea for any country and these days there are three Europeans states where it is legalized.

Comparitive Analysis

Law of euthanasia, assisted suicide and other medical behavior that potentially shortens life are now recognized as diverse in the Netherlands, United Kingdom and in other western countries. Debates involve high number of problems, which are including instruments as ethics, law, and medicine; nevertheless, they have a very general character. The issues are discussed in the media and elsewhere but then less in by legalization bodies. The key concepts and definitions of euthanasia and physician assisted suicide differ between countries and their legal and medical traditions, fueling confusion and misunderstanding.

United Kingdom V. Netherlands

According to law United Kingdom and Netherlands stand against each other on a opposite border in question of euthanasia. But are the differences really so distinct in practice as well? In both of these countries there have been made anonymous survey for year 2004-2005. The survey in the Netherlands a number of total deaths was 136,790 where 1.3% was the result of voluntary euthanasia and 0.4% involuntary euthanasia. Then 25 % deaths had been accelerated by doctors using pain relief, known medically as “alleviation of symptoms with possibly life-shortening effect”. In UK revealed that out of the 584,791 deaths, 0.16% was by voluntary euthanasia and 0.33% involved the doctor ending a patient’s life without consent from the patients, which is considered as involuntary euthanasia. But in some 33 % 191,811 deaths had been accelerated by doctors using pain relief. From the research is clearly seen that the number of euthanasia committed in the Netherlands is almost three times higher than in UK, it is obviously for a reason of legalization. But from the numbers in the survey there can be also clearly seen that doctors from UK prefer another way of helping patient to die and that way is doctrine of ‘double effect’. By using this ‘possibly life shortening’ method the doctors are more protected against possible prosecutions because it is very difficult to prove the doctor’s primary intention. Even thought those doctors committed it for a reason of helping patient to die. In UK the doctrine of double effect is for doctors something like replacement for euthanasia. It also reason why only country in which the doctrine of double effect has been explicitly accepted for legal purposes is UK. The assisted suicide is according to law in both of these countries forbidden. In Netherlands is covered by Dutch penal code article 294 and in UK it is Suicide Act 1961 section 2[1], but in practice their approaches differ. The Netherlands does not make any differences in practice between legalized euthanasia and illegal assisted suicide. They are both commonly use without any further prosecutions. A reason for that is when euthanasia is legalized then there is no reason why AS should ban. In United Kingdom it is little more complicated. AS is not accepted neither according to law nor in practice but there are some factors which could be considered when deciding on a case but “there are no guarantees against prosecution. Those factors are:

• Whether a person stands to benefit financially from assisting a suicide or if they were acting out of compassion
• If the individual wanting to die was deemed competent enough and had a “clear and settled” wish to make such a decision. Particular attention would be paid to issues such as being under 18, and having a mental illness
• Whether the person was persuaded or pressured into committing suicide, or if it was their own decision

But generally it’s very difficult to establish causation of AS because the person assisted to die usually dies alone. The similarity which connects these two countries is the position of the patient, which is very strong. But the legal position of representative of the patient can be only in the Netherlands described without qualifications as strong. Great Britain is odd in leaving a key role in some sorts of decision-making to the courts. In most countries courts are the main part of legal development. In United Kingdom and the Netherlands, there are distinct legal bodies which are responsible for medical law, but only in Great Britain does the General Medical Council seem to be an essential factor in the development of legal rules. Then in the Netherlands a non-criminal procedure for reviewing cases of euthanasia and assisted suicide has taken over the control.

Approach Of International Law Towards “Euthanasia”

There is not any international source which addresses euthanasia directly. However it does not mean that euthanasia is overall excluded from International Human Rights Law. The basic sources of international law where is possible to find relevant articles are the International Covenant on Civil and Political Rights (ICCPR) , The Universal Declaration of Human Rights (UDHR) and mainly the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR). One of the most relevant cases in question of euthanasia on international level is case of Pretty v. United Kingdom [2002]. The case was decided by European Court of Human Rights.

Article 3 of UDHR states: “Everyone has the right to life, liberty and security of person.” According to many experts the ‘right to die’ is included in this article. The individual has a right to refuse the right to life. If we consider that a life is a right, then we are allowed to refuse this right in a case we are capable of it. Even though it is not a part of this universal document, in these days the patient may refuse a medical treatment which is considered as passive euthanasia. The doctor has to have an approval from a patient to do any step. The only question is under exactly what conditions. In ICCPR Article 6 (1) is said: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The important term is ‘arbitrarily’. The commission for Human Rights considered that the meaning of the term is ‘unlawfully or unjustly’ deprived of his life by somebody else. If we demonstrate the term ‘arbitrarily’ by this definition, then an involuntary euthanasia would be in infringement with Article 6. Then in ECHR for example Article 3 prohibits torture: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Modern medicine may prolong lives in cases which were hopeless before. However, by prolonging life of patient which doesn’t not have any chance to get better and is living just in pain, it might be sometimes a torturing and inhuman for him. It would mean that euthanasia should be legal but the question is who decide the best for a patient? A doctor, state or individual by himself? The question of euthanasia has its legal supporters as well as opponents nourished by various ideological sources around the world. Those who are against euthanasia argue that the right to die is in contradiction to the right to life. They are opinions that international law does not contain any instrument to justify euthanasia. Also one of the biggest arguments is that it’s not ethical because every doctor has to follow Hippocrates principles to help ‘beneficere’ and don’t harm ‘non maleficere’. On the other hand, the one who are supporting euthanasia are saying that once we have the right to life then we automatically obtain the right to die. They think that life prolonging methods are often very painful and cruel and might be comparing to Middle Ages torture. In this situation euthanasia brings solution to choose between great suffering and death.

Case Of Pretty V. United Kingdom

Diane Pretty is dying of a degenerative disease affecting the muscles, for which there is no cure. The disease is at a level where she is paralyzed from a neck down. However, she still has mental capacity to make decision about her future treatment. It is known that commit suicide under English law is not consider as a crime in her case. But the problems is she wants to be assisted by her husband in committing suicide, which is strictly forbidden by 2[1] of the Suicide Act 1961. The Directory of Public Prosecutions has refused her request to guarantee that her husband won’t be punished if he does so. She appealed through English courts but she was not successful. Then she went to the European Court of Human Rights and stated that Suicide Act 1961 is against articles 2,3,8,9 and 14 of European Convention for the protection of Human Rights and Fundamental Freedoms but was unsuccessful as well.

In European Convention for the protection of Human Rights and Fundamental Freedoms Article 2 §1: „ Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. “

The Court held that the Article 2 §1 not only to refrain from the unlawful taking of life, but also to actively participate in protecting those life. Also the Court stated that the obligation may be use on protecting person who was in danger from a criminal act. The decision according to Article 2 was that there is no right to die, no matter by whose hand. There had therefore been no violation of that provision.

Article 3: „No one shall be subjected to torture or to inhuman or degrading treatment or punishment. “

The Court noted: “It was beyond dispute that the respondent Government had not, themselves, inflicted any ill-treatment on the applicant. Nor was there any complaint that the applicant was not receiving adequate care from the State medical authorities.” The applicant had claimed not to prosecute her husband if he helps her to commit suicide and to finish degrading and inhuman treatment. The Court had to consider approach to the interpretation of the Article. The Court could not agree to the applicant’s fear that without the chance