Euthanasia continue to suffer; passive euthanasia, often permitted, is

Euthanasia

By Cosmina Blaj, MPH1

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Definitions

According to World Health Organization euthanasia is a deliberate act
undertaken by one person with the intention of either painlessly putting to
death or failing to prevent death from natural causes in cases of terminal
illness or irreversible coma of another person. The term comes from the Greek
expression for “good death”. Assisted
suicide is the act of intentionally killing oneself with the assistance of
another who provides the knowledge, means or both. Palliative care is the active total care offered to a person and
that person’s family when it is recognized that the illness is no longer
curable, in order to concentrate on the person’s quality of life and the
alleviation of distressing symptoms. The focus of palliative care is neither to
hasten nor postpone death. It provides relief from pain and other distressing
symptoms and integrates the psychological and spiritual aspects of care. It
offers a support system to help relatives and friends cope during an
individual’s illness and with their bereavement. (WHO, 2004)

Euthanasia and physician assisted suicide continue
to raise many controversies due to the different views on the ethics and
practical morality of such legislation, what would the effects be, who would
ask for it, and wouldn’t it be a better solution to improve pain management and
palliative care. The advances of medical care make people more receptive to
euthanasia. The idea of being hooked to breathing machines, unable to
communicate, or being terminally ill, are the modern correspondents of being
buried alive from the middle age period.

There are pro and con arguments
with regards to euthanasia, each party successfully arguing for their case.
Among the most important arguments sustaining euthanasia are: people’s right to
self-determination, and thus we should be allowed to choose our own fate; assisting
a patient to die might be a better choice than requiring that they continue to
suffer; passive euthanasia, often permitted, is a strong argument that active
euthanasia should be also; permitting euthanasia will not necessarily lead to
unacceptable consequences. The arguments against euthanasia are that not all
deaths are painful,; alternatives, such as cessation of active treatment,
combined with the use of effective pain relief, are available; the distinction
between active and passive euthanasia is morally significant; legalizing
euthanasia can place society on a “slippery slope”, one exception to a law is
followed by more exceptions until a point is reached that would initially have
been unacceptable.

Situation across Europe

There are three countries in EU in which both
euthanasia and patient assisted suicide are legal.

One of the countries is The Netherlands, where active,
direct euthanasia has been legal since April 2002. Requested administration of
a drug in lethal doses is authorized if patients make the request while fully
mentally lucid and must also endure unbearable and endless suffering from a
condition diagnosed as incurable by at least two doctors. The Netherlands has
also authorized euthanasia for children younger than 12 under strict
conditions.

Belgium lifted restrictions on euthanasia in
September 2002 for patients facing constant, unbearable and untreatable
physical or psychic suffering; aged 18 or over; and who request termination of
life in a voluntary, deliberated and repeated manner free from coercion. Provisions
for doctor-assisted death in cases that meet those criteria may also be
stipulated in “living wills” written by healthy people before they
fall ill, and which remain valid for five years. In February 2014, Belgium
became the first country to authorize children to request euthanasia if they
suffer a terminal disease, and understand the consequences of the act.

In Luxembourg, a text legalizing euthanasia in certain terminal cases
was approved in March 2009. It excludes minors.

There are many European countries where euthanasia
is authorized or tolerated.

Switzerland is one of the rare countries that allow
assisted suicide by patients administering a lethal dose of medication
themselves. Switzerland does not allow active, direct euthanasia by a third
party, but tolerates the provision of substances to relieve suffering even if
death is a possible side-effect. Passive euthanasia, or the halting of medical
procedures that maintain life, is also tolerated.

In France, in 2016, the Parliament adopted
legislation creating new rights for the terminally ill. The text modifies and
reinforces the rights of patients to end-of-life care and strengthens the
status of surrogate decision makers. The law introduces the right to continuous
deep sedation until death in three specific situations: at the patient’s
request when the short-term prognosis is death and continuous deep sedation is
the only alternative for relieving the patient’s suffering or one or more
otherwise uncontrollable symptoms; at the patient’s request when the patient
chooses to withdraw artificial life-sustaining treatment and such withdrawal
would be rapidly life-shortening and susceptible to cause unbearable suffering;
when the patient is unable to express his/her wishes and the collegiate medical
decision is to withdraw aggressive futile life-sustaining treatment; continuous
deep sedation is mandatory when the patient presents signs of suffering or when
the patient’s suffering cannot be evaluated due to the patient’s cerebral or
cognitive state. (Aubry, 2016)

Sweden authorized passive euthanasia in 2010.

Both euthanasia and assisted suicide are illegal Great
Britain. Assisted suicide is illegal under the terms of the Suicide Act (1961)
and is punishable by up to 14 years’ imprisonment. Trying to kill oneself is
not a criminal act. Depending on the circumstances, euthanasia is regarded as
either manslaughter or murder. The maximum penalty is life imprisonment. (NHS, 2017)

In Austria and Germany, passive euthanasia is
permitted if the patient has requested it.

Since 1992, Denmark has allowed patients to file
previously written refusal of excessive treatment in dire situations, with the
document held in a centralized register.

In Norway, passive euthanasia is permitted if
requested by the patient or by a relative if the patient is unconscious.

In Hungary, Spain and the Czech Republic, people with
incurable diseases can refuse treatment.

In Portugal, active and passive euthanasia is not
legal, but an ethical council has approved the halting of treatment in certain
cases.

In Italy, Romania, Greece, Bosnia, Serbia, Croatia,
Poland and Ireland euthanasia
is forbidden, and considered homicide. Punishment can range from 14 and 15
years in prison in Ireland and Italy respectively, to relatively light
sentences in Croatia.

The European Court of Human Rights and Parliamentary
Assembly positions

Parliamentary
Assembly of Council of Europe stated very clearly that: “Euthanasia, in the sense of the intentional
killing by act or omission of a dependent human being for his or her alleged
benefit, must always be prohibited” (Parliamentary Assembly, 2012).
The purpose of the resolution, entitled Protecting
human rights and dignity by taking into account previously expressed wishes of
patients, is to define the principles applicable in Europe to “living wills”, otherwise known as “advance directives”. Previously, in
its Recommendation from 1999 Protection
of the human rights and dignity of the terminally ill and the dying, the
Parliamentary Assembly of Council of Europe insisted that there is a “prohibition against intentionally taking the
life of a terminally ill or dying person”.

The Parliamentary Assembly of Council of Europe and
member States continue to strongly condemn euthanasia and assisted suicide.
However, the jurisprudence of the ECoHR has not enforced the prohibition of
euthanasia; implicitly it has given “permission” that lets member States adopt
such practices.

Case of Lambert and Others v. France

This case was the first one in which ECoHR was
called to decide on euthanasia. The case was about discontinuing treatment in
the case of a paralyzed patient, in the absence of a written consent, (Vincent
Lambert, a French citizen) who was in a vegetative state and had to be
artificially fed and hydrated through a gastric tube, following a motorcycle
accident. The controversy arose with respect to the removal of the tube, which
would result in the patient’s starvation, dehydration, and, ultimately, death: because
his parents wanted him to be kept fed and hydrated, while his wife and caring
physicians wanted the nutrition and hydration to be discontinued. Vincent
Lambert and his wife, who were both nurses and witnessed resuscitations and disabled
patients, while discussing their professional experiences Vincent Lambert had said
many times that he does not wish to be kept alive artificially.

The parents complained at the ECoHR against the French
court judgment delivered in
June 2014 that declared lawful the decision taken on 11 January 2014, by the
doctor treating Vincent Lambert, to discontinue his artificial nutrition and
hydration. They complain that the discontinuance of their son’s nutrition and
hydration, as well as the absence of proper care as a handicapped person, is
against to the State’s obligations under Articles 2 (right to life), 3 (inhuman
and degrading treatment) and 8 (right to private life) of the Convention and also
of a lack of clarity and precision in the legislation and challenge the process
which led to the decision of 11 January 2014.

ECoHR considered that there would be no violation of Article 2 (right to life) of
the European Convention on Human Rights in the event of implementation of the French
court judgment. The existing
French legislation on withdrawing treatment, constituted a legal framework
which was sufficiently clear to regulate with precision the decisions taken by
doctors in situations such as that in this case.

ECoHR reiterated that it was primarily for the national
authorities to verify whether the decision to withdraw treatment was compatible
with the domestic legislation and the Convention, and to establish the
patient’s wishes in accordance with national law.  ECoHR examined the State’s compliance with its
positive obligations flowing from Article 2 of the Convention, and found the French
legislative framework and the decision-making process, which had been conducted
objectively and thoroughly, to be compatible with the requirements of Article
2.

ECoHR concluded in this case all points of view were
expressed and all aspects had been carefully considered, in the light of both a
detailed expert medical report and general observations from the
highest-ranking medical and ethical bodies. ECoHR
underlined that the French legislation does not authorize either euthanasia or
assisted suicide, but rather discontinuation of treatment – including
life-sustaining treatment. (ECoHR, 2015)

Case of GARD and Others vs. the United Kingdom decision

The
case was about Charlie Gard, a baby suffering from a rare and fatal genetic
disease, with no cure. In February 2017, the treating hospital addressed the national
courts as to whether it would be lawful to withdraw artificial ventilation and
provide Charlie with palliative care. Charlie’s parents also asked the courts
to consider whether it would be in the best interests of their son to undergo
experimental treatment in the U.S.A. The British court concluded that it would
be lawful for the hospital to withdraw life sustaining treatment because Charlie’s
disease has reached the point of no recovery and the experimental therapy,
never tested on humans, nor for exactly the same disease, would work. In the
proceedings before the ECoHR, Charlie’s parents argued – on their own behalf
and that of their son – under Article 2 (right to life) of the Convention that
the hospital has blocked access to life sustaining treatment (in the U.S.A.)
for Charlie and under Article 5 (right to liberty and security) that, as a
result, he is unlawfully deprived of his liberty. They further alleged under
Articles 6 (right to a fair trial) and 8 (right to respect for private and
family life) that the domestic court decisions amounted to an unfair and
disproportionate interference in their parental rights.

ECoHR has by a
majority endorsed British courts’ decision and declared the application
inadmissible. In particular, ECoHR bore in mind the considerable room for maneuver
(“wide margin of appreciation”) left to the authorities in the sphere
concerning access to experimental medication for the terminally ill and in
cases raising sensitive moral and ethical issues, reiterating that it was not
for ECoHR to substitute itself for the competent domestic authorities. From
this perspective, ECoHR gave weight to the fact that a domestic legal framework
– compatible with the Convention – was available, governing both accesses to
experimental medication as well as withdrawal of life sustaining treatment. Furthermore,
the national court decisions had been meticulous, thorough and reviewed at
three levels of jurisdiction with clear and extensive reasoning giving relevant
and sufficient support for their conclusions; the domestic courts had direct
contact with all those concerned (notably, they had heard from all the medical
experts involved in the treatment as well as experts instructed by the
applicants, from Charlie’s parents themselves and from an independent
professional appointed as the child’s guardian, had received expert reports
from other doctors of international standing in the field and had visited the
hospital); it was appropriate for the hospital to approach the courts in the UK
in the event of doubts as to the best decision to take; and, lastly, the
domestic courts had concluded, on the basis of extensive, high-quality expert
evidence, that it was most likely Charlie was being exposed to continued pain,
suffering and distress and that undergoing experimental treatment with no
prospects of success would offer no benefit, and continue to cause him
significant harm. (ECoHR, 2017)