Bachelor Thesis

Euthanasia and Physician-Assisted Suicide: End-of-life practices overview and their implementation rationality

submitted on 2 June 2006 by Ervins Strauhmanis

Supervisor Prof. Evhen Tsybulenko, Ph.D International University Concordia Audentes Law School

Declaration

I hereby solemnly declare that I have written this thesis by myself and without support from any other person or source, that I have used only the materials and sources indicated in the footnotes and in the bibliography, that I have actually used all materials listed therein, that I have cited all sources from which I have drawn intellectual input in any form whatsoever, and placed in “quotation marks” all words, phrases or passages taken from such sources verbatim which are not in common use and that neither I myself nor any other person has submitted this paper in the present or a similar version to any other institution for a degree or for publication.

Tallinn, 2 June 2006 (Ervins Strauhmanis)

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Table of Contents
List of Abbreviations………………………………………………………………..…………4 Introduction…………………………………………………………………………………….5

Part I. The Debate around Euthanasia and Physician-Assisted Suicide 1.1. Physician-assisted suicide…………………………………………………...…….8 1.2. Non-voluntary active euthanasia………………………………………………....16 1.3. Involuntary euthanasia………………………………………………………...…18 1.4. Voluntary active euthanasia………………………………………………..…….20 1.5. Voluntary passive euthanasia…………………………………………………….25 1.6. Non-voluntary passive euthanasia………………………………………………..28 1.7. Indirect euthanasia / Double effect doctrine……………………………….…….35

Part II. Analysis and Proposals for Implementations of End-of-Life Solutions 2.1. Essential principles - refusal of unwanted treatment and double effect………….38 2.2. Non-voluntary end-of-life decisions……………………………………………..43 2.3. Should we have a conscious right to die?..............................................................50

Conclusion……………………………………………………………………………...…….57 Annex 1………….……………………………………………………………………...…….59 Bibliography…………………………………………………………………………………..60

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List of Abbreviations (in alphabetical order)
ANH - Artificial Nutrition and Hydration DNR - Do Not Resuscitate ECHR - European Court of Human Rights GMC - General Medical Council (in United Kingdom) IVE - Involuntary Euthanasia NVAE - Non-Voluntary Active Euthanasia NVPE – Non-Voluntary Passive Euthanasia PAS - Physician-Assisted Suicide PVS - Persistent Vegetative State VAE - Voluntary Active Euthanasia VPE - Voluntary Passive Euthanasia

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Introduction
Nowadays, one can frequently hear debates around the topic of euthanasia and PhysicianAssisted Suicide (hereinafter PAS) in mass media. Some may frown at this idea, by considering just the outcome - death, which lies in a dimension of unknown and is therefore frightening, some welcome it, even without knowing much about the whole complex issue. In my opinion there is no easy answer to this debate, and it may be, that ultimately, one can only perceive the grandness of the issue, when it hits home, as the discussions on questions on life and death, the ideas and reasoning, may fade away when it will come to the actual experience, and you may not always foresee how will you act, in my view. Still however, let us try to proceed forward, and see where it will take us. Euthanasia, translating from the Greek as a “good death,” 1 in its broadest concept, is the practice of ending patient's life, in view that it is for the higher good of that person to die. “How and why would it be better for a patient to die?” - can be asked, “does it not defeat the purpose of medical institution in the first place?” A quick answer that can be given, is that the responsibility of a physician is surely to protect patient's health and life, as well as possible, and not vice versa, however, not all conditions can be cured. In some cases a terminally ill patient may decide to die, as he knows that soon a horrible death will be upon him, in sense that there will be a certain period of great physical and psychological suffering for him, and thus he reasons, that it is better to die sooner, but peacefully. In other cases a person may be left in a Persistent Vegetative State (hereinafter PVS), without any prospect for recovery, but as the medical techniques and equipment become increasingly more advanced, it is possible to keep such patient's vital bodily functions operational, for an extremely longer period of time than he would have otherwise lived without the cutting edge medical interference, and thus may come a time for the question, if it is really in the best interest of a patient to keep him on life support machine any longer.

Originally, the Hippocratic Oath declared, that no one can be given deadly medicine or advice that may cause death. 2 That has been reasoned upon many centuries ago however, when

1 Mavroforou, A., Michalodimitrakis, E. “Euthanasia in Greece, Hippocrates' birthplace.” European Journal of Health Law (vol.8, no.2, 2001): 157. 2 “Hippocratic Oath.” Wikipedia, The Free Encyclopedia. Updated - 3 Apr. 2006. Retrieved - 4 Apr. 2006 <http://en.wikipedia.org/w/index.php?title=Hippocratic_Oath&oldid=46725085>.

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medical care has been quite primitive, in comparison with the present day level of sophistication, and it was probably impossible to sustain a patient in a PVS state for a long time, if at all, or to provide a palliative care of much significance, if any, to a critically ill person. Therefore one should not have waited too long for his death to come, at that time, but as human civilization progresses and gains higher grounds in the medical area, it is reasonable for the physician's pledge to receive an update as well, and thus the modern version of Hippocratic Oath announces now, that “[i]f it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.” 3

Though there exists a strong opposition to the pro-right-to-die movement, and rightfully so, which campaigns for the practices of PAS and/or Voluntary Active Euthanasia (hereinafter VAE) to be given legal status in states where they are prohibited, there is no doubt that the debates on the issue become more active, and they must not be silenced, so as to for an assisted death to remain to be practiced without reporting that to a public. The argument on which to contemplate about, is that the polemic should be on “how best to regulate what doctors have always done, and what they will probably always do. The choice is not between having euthanasia, and not having it, but letting it stay underground, and trying to make it visible.” 4 The study shows, 5 that in the United Kingdom (hereinafter UK) in year 2005, physicians in secret have assisted the deaths of about 3,000 people, where in about 1/3 of cases it is believed that a patient has himself asked for the death, - which has resulted in the voluntary euthanasia or assisted suicide, and in remaining 2/3 of cases, patients did not explicitly request for the death to take place, - non-voluntary euthanasia. Though deaths by the illegal practices in this report constitute only about 0.5% of all the cases of mortality in the country, it clearly shows, that though these practices may get doctors into big trouble, they nevertheless hold it at their disposal. And as these deaths were not reviewed by the public officials and could not be regulated, it is really impossible to tell, if all of these people's deaths were really for their highest good, and if all other options were undoubtedly exhausted, in order for the ultimate one to be resorted to.
3 Lasagna, L. “Hippocratic Oath -- Modern Version.” Public Broadcasting Service (PBS). Updated Mar. 2001. Retrieved - 4 Apr. 2006 <http://www.pbs.org/wgbh/nova/doctors/oath_modern.html>. 4 Magnusson, R. S. “Euthanasia: above ground, below ground.” Journal of Medical Ethics. Updated 11 Aug. 2003. Retrieved - 10 Apr. 2006 <http://jme.bmjjournals.com/cgi/content/full/30/5/441>. 5 Boseley, S. “Euthanasia: doctors aid 3,000 deaths.” Guardian Newspapers Limited. Updated - 18 Jan. 2006. Retrieved - 25 May 2006 <http://society.guardian.co.uk/health/story/0,7890,1688609,00.html>.

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The reason I have chosen to write thesis on this highly debatable and controversial subject, is because I myself had an experience of separation with my family member, who became terminally ill, and shortly before dying, attempted to commit a suicide, not an assisted one, but a self-suicide. Even though the suicide attempt has failed, it most definetely hastened the death. That was done because of an unbearable suffering, pain and knowing that the illness cannot be cured, and it is only a matter of time before you will die.

With the presentation of current thesis, I would like to make a subtle matter on life and death in medical situations, a little bit more clear to a reader, by means of displaying important decisions that have been made in relation to the assisted death practices, along with my own reasoning. And perhaps the information found here, might be of assistance to someone at some point of life, if that would happen to be so. Here I am not going to postulate that this research is to answer the ultimate question on “how it must be done” or “what is right,” as the considerations in favor, or against, the assisted suicide and euthanasia are closely intertwined with each one's own ethical, medical and religious perspectives, and it well may be that my perspectives are that of a minority. Honestly, I cannot tell how I would act myself, or feel like acting, so that my conscience would be clear in different given situations, if I were a real-life medical practitioner, or what would be my outlook if I were to happen to find myself in a difficult medical condition, because what is presented in this work does not come from me as being someone who has been closely dealing with such issues for many years, and being present at the deaths or nearing death situations on a regular basis. What is being presented in the current paper, can be constituted as the “legal common sense reasoning,” which I hope is reasonable.

The current paper is divided into two parts: the first part will discuss the various types of endof-life practices, demonstrate relevant cases and present arguments for supporting and opposing sides of the issue. The second part will analyze and consider if these practices of putting patients to death might be reasonable for implementation in a country having no accordant legislation, on example of Latvia, or if existing PAS/euthanasia legislation, where these practices are allowed, should be amended.

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I. The Debate around Euthanasia and Physician-Assisted Suicide 1.1. Physician-assisted suicide
Physician-Assisted Suicide (hereinafter PAS), which currently is legal in the state of Oregon in the United States (hereinafter US), the Netherlands, Belgium and Switzerland, 6 is a practice of voluntary ending one's own life, with a help of a willing to participate in this process physician, who prescribes/furnishes patient a lethal agent, a deadly drug cocktail for example, which patient administers/takes himself, or where a doctor aids his patient by providing him with a death-dealing device, such as Jack's Kevorkian needle inserting machine “Thanatron” and the gas mask “Mercitron.” 7

Jack Kevorkian Jack Kevorkian, through his controversial and bold work became the most well-known promoter of PAS in the US, where he practiced assisted suicide in the state of Michigan, and helped around 130 people to die that way, before being convicted for substantial prison term in 1999, for the 2nd degree murder and the use of federally controlled substance, 8 after performing voluntary active euthanasia on the 52-year-old Thomas Youk on 17th September 1998, who has been suffering from the Lou Gehrig's Disease, which “gradually weakens nerves to muscles, causing difficulty in breathing, paralysis, and finally death,” 9 whose death Mr. Kevorkian has videotaped, and allowed it to be aired on the CBS's “60 Minutes” television show. Prior to this case of euthanasia, Mr. Kevorkian was tried numerous times for assisting in suicides, but was always set free. On 1st September 1998, however, Michigan's second law, first one was enacted in 1993 but expired a year later, 10 banning assisted suicide went into effect, and probably that is why Jack Kevorkian decided to perform euthanasia - a spectacular end of his practice. 11

6 Humphry, D. “Assisted Suicide Laws Around the World.” Euthanasia Research & Guidance Organization. Updated - 1 Mar. 2005. Retrieved - 3 May 2006 <http://www.assistedsuicide.org/suicide_laws.html>. 7 “Jack Kevorkian.” Wikipedia, The Free Encyclopedia. Updated - 14 Apr. 2006. Retrieved - 17 Apr. 2006 <http://en.wikipedia.org/w/index.php?title=Jack_Kevorkian&oldid=48433130>. 8 Humphry, D. “Dr. Jack Kevorkian.” Euthanasia Research & Guidance Organization. Updated - 8 Apr. 2006. Retrieved - 20 Apr. 2006 <http://www.finalexit.org/drkframe.html>. 9 “Thomas Youk.” Focus on ALS. Updated - 6 Apr. 2006. Retrieved - 20 Apr. 2006 <http://www.focusonals.com/thomas_youk.htm>. 10 “Assisted Suicide and Euthanasia in Michigan.” The New England Journal of Medicine. Updated 22 Sep. 1994. Retrieved - 24 Apr. 2006 <http://content.nejm.org/cgi/content/full/331/12/812>. 11 “Chronology of Dr. Jack Kevorkian's Life and Assisted Suicide Campaign.” Public Broadcasting

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While no doubt, that Mr. Kevorkian's cause has been a noble one, with no selfish motives, and he surely must have helped certain critically ill people to die in peace, what has been disturbing in Mr. Kevorkian's assisted suicides, in my opinion, is that around 60% of the people he helped to die, were not terminally ill, and eleven people had backgrounds of depression, alcohol/drug use, and in some instances his patients had no identifiable medical issues. 12 This fact, clearly puts Jack Kevorkian in line of fire of the arguments against PAS/euthanasia, permitting which, is argued:

would open door for non-critically ill people to die, and expose vulnerable citizens to possible abuse, - the “slippery slope” argument. As Dr. K. F. Gunning have put it, “[o]nce you accept killing as a solution for a single problem, you will find tomorrow hundreds of problems for which killing can be seen as a solution[;]” 13

consequently the value of human life will “cheapen,” and with passage of time even the Involuntary Euthanasia (hereinafter IVE) may be performed on patients against their will or without giving a chance to express their view on the matter;

practice of putting patients to death will hinder medical research and advancement, as it would be easier and more cost effective, to just let the patients pass away, and the incentive to develop new and better cures for critical situations, will wither away;

practice will discredit the medical profession and the trust of patients in it, will be broken, as the medical practice will be perceived not as relieving one from his problem, but eliminating a patient altogether, thus there will be an impression for one who seeks medical treatment, that his condition would not be considered with full and outmost concern.

The case of Jack Kevorkian is not the only one in regards to suicide assistance offerings made to a non-terminally ill people. The most unique example would be the case with Switzerland, where even the non-physician’s can assist people in a suicide, decided to be carried out for whatever reason, and be free from the prosecution, as long as there were no selfish motives in
Service (PBS). Updated - not known. Retrieved - 24 Apr. 2006 <http://www.pbs.org/wgbh/pages/frontline/kevorkian/chronology.html>. 12 Taylor, S. J. “"Death with dignity" for people who are not dying?” Syracuse University: Center on Human Policy. Updated - Apr. 2000. Retrieved - 3 May 2006 <http://thechp.syr.edu/death_with_dignity.htm>. 13 “Arguments against Euthanasia.” BBC (British Broadcasting Corporation). Updated -10 Mar. 2004. Retrieved - 5 Apr. 2006 <http://www.bbc.co.uk/religion/ethics/euthanasia/euth_slipslope.shtml>.

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assistance of a suicide. 14 However, for a physician to prescribe a lethal medicament, patient must have a medical indication. 15 Another distinctive case with Switzerland is, that unlike anywhere else, foreigners are allowed to be assisted in their suicide in the country, which has resulted in “death tourism,” with the help to outlanders being offered by one of the several Swiss right-to-die groups, “Dignitas,” 16 which helps non-terminally people to die as well, and aspires to be able to assist deaths of mentally ill patients also, but not however depressed people, like happened in two cases of Chabot and Brongersma in the Netherlands, which will be discussed further. Ludwig Minelli, 17 the founder of Dignitas, believes that each individual must be able to control his own life, and if it would be one's wish, at some point of life to choose death, one must be able to exercise that choice and be offered sincere help. Because otherwise, if a person is really determined to carry out a suicide and cannot be legally assisted in that, he will do it anyway by himself, and as Mr. Minelli have put it, such a person might be left in a PVS state due to a badly performed suicide, or might need several attempts before finally achieving his goal, which has been the case with Mr. Minelli's school friend, who was diagnosed as being a schizophrenic, and who during her lucid moments of existence tried to kill herself, first - by cutting throat, then stabbing herself in the stomach, and after that has failed, the last and successful attempt, has been effected by drowning. That, in addition to making a person suffer physically, surely puts the one who is trying to kill himself and people close to him on a psychological anvil as well, but if it were possible to advise such a person on a methods how he can die, and add a pinch of personal human warmth and compassion to it, it may well be, that after all one will choose life to death, like did one Mr. Minelli's 21-year-old client, who needed only Minelli's offering to look into his telescope, to aspire to live. 18

As has been reported by the US Public Health Service, “[i]njurious suicide attempts by

14 Schwarzenegger, C., Summers, S. J. “Criminal Law and Assisted Suicide in Switzerland.” Rechtswissenschaftliches Institut der Uni Zürich. Updated - 3 Feb. 2005. Retrieved - 29 Mar. 2006 <http://www.rwi.unizh.ch/schwarzenegger/unterlagen/unterlagen/assisted-suicideSwitzerland.pdf>. 15 “A date with death.” Times Online. Updated - 16 Apr. 2006. Retrieved - 4 May 2006 <http://www.timesonline.co.uk/printFriendly/0,,1-531-2121731-531,00.html>. 16 Spooner, M. H. “Swiss irked by arrival of "death tourists".” Canadian Medical Association Journal. Updated - 4 Mar. 2003. Retrieved - 11 Apr. 2006 <http://www.cmaj.ca/cgi/content/full/168/5/600>. 17 “A date with death.” Times Online. Updated - 16 Apr. 2006. Retrieved - 4 May 2006 <http://www.timesonline.co.uk/printFriendly/0,,1-531-2121731-531,00.html>. 18 Ibid.

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adolescents are over 100 times more frequent than completed suicides.” 19 While I have not come across such statistics for adult people, and though I presume that being a mature person gives one much more reasoning faculty on how better to carry out a suicide, if that is the main reason why do suicide attempts fail, I still imagine, looking at numbers for adolescents, that numbers of injurious failed suicides would still prevail over successful ones, for adults as well. It is also interesting to look at the analysis, showing, that out of the all non-fatal injuries treated in the emergency departments of the US hospitals, 60% were considered to be probably caused by suicide attempts, 10% of injuries were attributed to possible suicide attempts and in 30% of cases the reason was not clear or not recorded. 20 Looking at these statistics, the misfortune of Mr. Minelli's school friend, and the prospect of desire to live again, thanks to a helping hand that is being given by the suicide assistants themselves, all that certainly makes a point in favor of legalizing PAS, in my view.

Wertheim In the Netherlands, the country which is most liberal on the matter of the right-to-die issues, the legal guidelines for assisted suicide and euthanasia were set by the case that took place in 1981. The case involved Ms. Wertheim, a 76-year-old euthanasia activist, who assisted death of the ill 67-year-old woman. Court, which found Ms. Wertheim guilty, and gave her sentence of two weeks house arrest, along with conditional six months sentence, subject to a year of probation, 21 has set the following requirements, which if followed, would free one from prosecution on charges of wrongdoing:
− − −

patient must be in an enduring and unbearable suffering, either physical or mental; patient has continuously expressed his wish to die, and it is his voluntary decision; patient is fully informed about his condition, has weighted everything, and there exists no alternatives to alleviate his condition;

patient's death would not inflict any unnecessary suffering on others.

In regards to a physician, who is participating in this process, the following conditions must

19 Borowsky, I. W., Ireland, M., Resnick, M. D. “Adolescent Suicide Attempts: Risks and Protectors.” Pediatrics: Official Journal of the American Academy of Pediatrics. Updated - Mar. 2001. Retrieved - 7 May 2006 <http://pediatrics.aappublications.org/cgi/content/full/107/3/485>. 20 Brickman, A. L., Mintz, D. C. “Datapoints: U.S. Rates of Self-Inflicted Injuries and Suicide, 19921999.” Psychiatric Services. Updated - Feb. 2003. Retrieved - 9 May 2006 <http://ps.psychiatryonline.org/cgi/content/full/54/2/168>. 21 Smies, J. T. “The legalization of euthanasia in the Netherlands.” Gonzaga Journal of International Law. Updated - 14 Jun. 2005. Retrieved - 18 Apr. 2006 <http://www.acrossborders.com/Articles/Smies/Smies.pdf>. p. 10

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be met:
− −

doctor's decision on an assistance, may not be made by him alone; decision to assist, and the assistance itself, must be carefully thought through, and discussed with colleagues and experts.

It also has been decided that a special committee, based on the above mentioned guidelines, is to decide whether cases are to be eligible for prosecution or not, and also, if a case falls out of the frames of the guideline, the committee is to decide whether physician's actions were acceptable or not. 22 Therefore, the case of Wertheim is a very important one, as it laid out a foundation for the rules which made it into the Dutch law on euthanasia and assisted suicide of the year 2002, where the law requires almost the same conditions to be fulfilled, that were considered here (they will be presented in section 1.4 of the present paper).

Chabot and Brongersma In the case of Chabot, 23 a 50-year-old Hilly Bosscher decided to die, due to that after the death of her two children, her life has lost its meaning. Following unsuccessful suicide attempt in 1991, and after Dutch Voluntary Euthanasia Society as well as people she knew, refused to help her in that endeavor, Mrs. Bosscher turned to the psychiatrist Dr. Chabot, who at first has tried to help her by conducting therapies over a two-month period. His patient, however, made it clear that she would make no undertaking to change her outlook on life, and was determined to die. As much as Dr. Chabot was willing to help Mrs. Bosscher, he accepted that no other option would cure her psychological suffering, except death, which she would seek to come even without his assistance, and therefore he finally decided to take part in her assisted suicide. Two lower courts have acquitted Chabot's action “after becoming convinced that Mrs. Bosscher was experiencing long-term psychic suffering that for her was unbearable and unremitting.” 24 The Dutch Supreme Court in 1994, however, found Dr. Chabot guilty, as there has been no personal examination of his patient by other physicians, and thus the death of Mrs. Bosscher may not have been necessary. No punishment was imposed on Chabot, though, except a reprimand from the Amsterdam Medical Disciplinary Court.

22 Downie, J. “The Contested Lessons of Euthanasia in the Netherlands.” Health Law Institute: Health Law Journal. Updated - 13 Nov. 2003. Retrieved - 18 Apr. 2006 <http://www.law.ualberta.ca/centres/hli/pdfs/hlj/v8/euthanasiafrm.pdf>. p. 122 23 Cohen-Almagor, R. “Euthanasia in the Netherlands: The Policy and Practice of Mercy Killing”, 2005, p. 45 24 Ibid. p. 48

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The second case involved the 86-year-old Edward Brongersma, who experienced an aimless life, as all people that were close to him have died, with that depression being complicated by his past history of being a pedophile and an animosity that people express towards him because of that. Thus he saw no point in being alive and repeatedly expressed his wish to die. Dr. Philip Sutorius, backed up by the second medical opinion, assisted his patient's death in 1998, and at first was acquitted. Appeal's Court has reversed that decision, however, and the Supreme Court upheld that reversal in 2002, reasoning, that being tired of life does not constitute the valid reason for assisted suicide, and that the interpretation of unendurable suffering has been stretched too far in current situation. Like in the previous case, no sentence was given to Dr. Sutorius, as he acted out of compassion, and the case itself was viewed as a test one. 25

The court rulings in these two cases are quite peculiar, in my opinion. Not because physicians were given no sentences to serve, which is understandable, taking in mind that such has been the trait in the Netherlands not to give a serious punishment for helping one to die a good death since 1950s, but because the rulings are seemingly inconsistent. That is, following the Chabot case, we arrive at the conclusion, that described psychological suffering constitutes sufficient grounds for assisted suicide, but in the case of Brongersma, a comparable psychological torment, does not. “Termination of Life on Request and Assisted Suicide (Review Procedures) Act,” 26 a document that must be followed when performing euthanasia and PAS, and which legalized these acts as of 1st April 2002, is silent on the matter whether suffering must be physical or psychological, in order to fall within the law, and only “A guide to the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act” published by the Netherlands Ministry of Foreign Affairs, points out that such matter must be carefully examined and should be consulted with at least two independent practitioners, providing the link to Chabot judgment. 27 Thus, it can be concluded, that non-somatic suffering can be a valid ground for assisted suicide and euthanasia in the Netherlands.

In contrast, Oregon's law on PAS is the most strict one, and the state's “Death With Dignity
25 Ibid. p. 164 26 “Termination of Life on Request and Assisted Suicide (Review Procedures) Act.” Right to Die-NL. Updated - 1 Apr. 2002. Retrieved - 4 May 2006 <http://www.nvve.nl/assets/nvve/english/euthlawenglish.pdf>. 27 “A guide to the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act.” The Netherlands Ministry of Foreign Affairs. Updated - 24 Jul. 2001. Retrieved - 4 May 2006 <http://www.minbuza.nl/default.asp?CMS_ITEM=MBZ418607>.

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Act,” which has been voted on by Oregonian's first in 1994, passing with 51% votes, and in 1997, passing with 60% of votes and finally coming into effect that year, due to an injunction delaying its implementation earlier, 28 provides, that only a competent adult, who is a resident of Oregon and suffers from “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months,” 29 may make the request to be assisted in suicide by a physician.

Oregon is not the only state in the US which has sought to pass legislation in favor of assisted suicide, states of Washington, Michigan, Maine, Hawaii, Connecticut, engaged in similar initiatives, which did not succeed though, but perhaps they will be revived again in future, while other states are working on their own projects. 30 It is also notable to mention Gonzales, Attorney General v. Oregon case, 31 previously known as Ashcroft v. Oregon, but renamed as Ashcroft has been succeeded by the Gonzales. In this case, Attorney General John Ashcroft, in the year 2001, has challenged Oregon's “Death With Dignity Act” by stating, that it is in violation of the Controlled Substances Act, as prescription of controlled substances for the assisted suicide does not constitute a “legitimate medical purpose,” 32 and thus he issued the Interpretive Rule which has threatened to prosecute any Oregon's doctor practicing PAS. Opposition to this development has challenged Attorney General, and the District Court including the Ninth Circuit Court of Appeals, both have invalidated Ashcroft's Interpretive Rule, as he was found to be in no position to make medical policies. Attorney General has appealed, but on 17th January 2006, the US Supreme Court affirmed decision of the lower court.

Washington v. Glucksberg and Vacco v. Quill In 1997, the US Supreme Court has decided two cases that challenged ban of individual states on the practice of the assisted suicide. The first case was brought by Harold Glucksberg along with three more fellow physicians, three gravely ill patients and the organization
28 “FAQs about Physician-Assisted Suicide.” Official Web Site for the State of Oregon. Updated - not known. Retrieved - 4 May 2006 <http://egov.oregon.gov/DHS/ph/pas/faqs.shtml>. 29 “Legislative Statute - Death w/ Dignity.” Official Web page for the State of Oregon. Updated 1994. Retrieved - 4 May 2006 <http://egov.oregon.gov/DHS/ph/pas/ors.shtml>. 30 “Status of assisted-suicide initiatives.” USA Today. Updated - 17 Jan. 2006. Retrieved - 9 May 2006 <http://www.usatoday.com/news/washington/judicial/2006-01-17-states-status_x.htm>. 31 “Gonzales, Attorney General, Et al. v. Oregon Et al.” Supreme Court of the United States. Updated - 17 Jan. 2006. Retrieved - 9 May 2006 <http://www.supremecourtus.gov/opinions/05pdf/04623.pdf>. 32 Ibid. p. 35

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“Compassion in Dying”, challenging prohibition on thr assisted suicide of the state of Washington, on grounds that the ban violated Due Process and Equal Protection clauses of the Fourteenth Amendment, and arguing that there is “liberty of competent, terminally ill adults to make end-of-life decisions free of undue government interference,” 33 and that the right to choose to hasten one's death by taking a lethal agent, is as strong as the right to refuse unwanted medical treatment. The US Supreme Court first went on to say, that in a long legal history, traditionally such right was almost always opposed to, and thus it cannot be considered as a fundamental one, protected by the US Constitution. The court continued, and finally decided the case in favor of the state of Washington by ruling, that the state has an “unqualified interest” 34 in protecting human life, and by forbidding an assisted suicide it protects vulnerable groups of citizens from possible abuse and preserves integrity of medical profession. Thus the state is acting legitimately.

The second case was brought by Timothy Quill in company with two more medical practitioners and three severely ill patients, claiming that by banning assisted suicide, the state of New York violated Equal Protection clause of the Fourteenth Amendment to the US Constitution, as although “it would be consistent with the standards of their medical practices to prescribe lethal medication for mentally competent, terminally ill patients who are suffering great pain and desire a doctor's help in taking their own lives, they are deterred from doing so.” 35 Prior to the case going before the US Supreme Court, Second Circuit Court held, that due to the fact of differential treatment, which is “not rationally related to any legitimate state interests,” 36 being given to patients wishing to be removed from life support systems, and terminally ill patients wishing to self-administer lethal agent, the sate of New York does violate Equal Protection clause. The US Supreme Court disagreed, by referring to the case of Washington v. Glucksberg, that there is no fundamental right to thr assisted suicide, and that there is an important and objective distinction between letting and making a patient die. As in one instance patient dies from a natural causes, but in the second, he is killed by a lethal drug. Though the line may not always be clear in discernment of the two acts, as intent to discontinue life support treatment might or might not be death, it is not required to be clear-

33 “Washington v. Glucksberg, 521 U.S. 702 (1997).” Medical and Public Health Law Site. Updated 16 Oct. 2004. Retrieved - 24 Apr. 2006 <http://biotech.law.lsu.edu/cases/pro_lic/glucksberg.htm>. 34 Ibid. 35 “Vacco v. Quill, 117 S. Ct. 2293 (U.S. 1997).” Medical and Public Health Law Site. Updated - 16 Oct. 2004. Retrieved - 24 Apr. 2006 <http://biotech.law.lsu.edu/cases/pro_lic/Vacco_v_Quill.htm>. 36 Ibid.

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cut, the court held. The reasons for the state to distinguish between the cause and effect are legitimate here, and lie in the area of state's public policy, as it wishes to preserve healer's role of physicians, protect vulnerable members of society from insensitivity, prejudgment or other pressures for their lives to be ended prematurely, and from possible drift towards euthanasia.

1.2. Non-voluntary active euthanasia
Non-Voluntary Active Euthanasia (hereinafter NVAE) is the practice of putting to death a patient who has no capability to express himself. These could be critically ill/disabled infants/babies or gravely ill incompetent adults, for example, with condition of advanced dementia, and such a patient is being put to death in a belief, that it is in his best interests, for the death to take place instead of being subjected to a living hell. The decision to end life is made either solely by a physician and/or by patient's guardian.

In the Netherlands, where euthanasia is legal but the request for it must come from the patient, the law does not address NVAE as of now, with a guidelines for such cases being only in consideration, 37,38 two court cases (which are laid out below), however, have already established certain rules when NVAE may be performed, which also resulted in development of the “Groningen Protocol” 39 in 2002, that has been put together by doctors and district attorney, and which basically repeats court decided conditions which are to be met when performing NVAE.

Kadijk and Prins In 1995, two cases were decided on the matter of putting to death severely impaired newborns. Kadijk case involved a 25-day-old baby suffering from the Pateau Syndrome, which results in a severe bodily defects/disorders and mental deficiency. Such condition can be summarized as a hopeless one, and as there was evidence that 90% of such babies die within their first year, it has been decided by the physician to give the baby a lethal injection,

37 “Dutch ponder 'mercy killing' rules.” CNN News. Updated - 2 Dec. 2004. Retrieved - 11 May 2006 <http://www.cnn.com/2004/HEALTH/12/01/netherlands.mercykill/>. 38 Smith, W. J. “Killing Babies, Compassionately.” Weekly Standard. Updated - 27 Mar. 2006. Retrieved - 5 Apr. 2006 <http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=12003>. 39 Verhagen, E., Sauer, P. J. J. “The Groningen Protocol - Euthanasia in Severely Ill Newborns.” The New England Journal of Medicine. Updated - 10 Mar. 2005. Retrieved - 11 May 2006 <http://content.nejm.org/cgi/content/full/352/10/959>.

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considering the “explicit and earnest desire of the parents” 40 to go for that. Prins case concerned a 3-day-old infant impaired by the Spina Bifeda and Hydrocephalus conditions, with a life expectancy of no more than six months. The newborn was also administered a lethal injection, on request of the parents. In both cases court upheld a defense of necessity, 41 and though request for euthanasia needs to be made by a patient, as has been laid out by the Wertheim case, doctors were decided to be acquitted as their actions were based on the following conditions:

it was determined beyond doubt, that the conditions of newborns were hopeless, and there could have been no other way to alleviate their suffering, except putting them to death;

requests to terminate babies lives, came from their parents, in an explicit form and were well considered;

doctors have acted according to scientifically responsible medical judgment, within the norms of medical ethics, and babies were put to death in a careful manner. 42

In other parts of the world, where active euthanasia is illegal, NVAE undoubtedly constitutes a serious offence, depicted by the following case.

Robert and Tracy Latimer The case took place in Canada, where in 1993, Robert Latimer has put to death his daughter, Tracy Latimer. 43 Tracy was a 12-year-old paralytic, who could not talk, feed herself or walk, living at level of a 3-month-old baby. Occasionally suffering from great pains, she however responded to her surrounding environment, sometimes smiled, and was fond of certain things. Robert has decided to put an end to the miserable condition of his daughter, and performed an act of “compassionate homicide,” 44 by extending exhaust hose into interior of his car, where he placed Tracy. Mr. Latimer went through two trials and was given life sentence, for seconddegree murder, with parole possible after 10 years.
40 “Report - Inquiry into Euthanasia Laws Bill 1996.” The Parliament of the Commonwealth of Australia: Senate Legal and Constitutional Legislation Committee. Updated -19 Nov. 2003. Retrieved - 06 Apr. 2006 <http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/199699/euthanasia/report/report.pdf>. p. 99. 41 Ibid. 42 Downie, J. “The Contested Lessons of Euthanasia in the Netherlands.” Health Law Institute: Health Law Journal. Updated - 13 Nov. 2003. Retrieved - 18 Apr. 2006 <http://www.law.ualberta.ca/centres/hli/pdfs/hlj/v8/euthanasiafrm.pdf>. p. 126-127 43 O'Malley, M., Wood, O. “Indepth: Robert Latimer.” CBC News. Updated - 17 Dec. 2003. Retrieved - 18 Apr. 2006 <http://www.cbc.ca/news/background/latimer/>. 44 Ibid.

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1.3. Involuntary euthanasia
Involuntary euthanasia happens when it is performed against will of a competent patient, or when such a patient is put to death without ever being consulted on that matter, and thus it may be even inappropriate for such an act to be called euthanasia at all, and it can be constituted as a murder, instead.

During my research, I have not come across any known modern cases that would involve this type of euthanasia, and therefore I will outline the practice of putting patients to death during the Nazi rule, where among other types of euthanasia, IVE took place as well.

Nazi euthanasia program, aimed at building the perfect Aryan race, and believed to have caused deaths of more than 100,000 people during period of 1939-1945, 45 can be traced back to the year 1895 when the physician Alfred Plötz first used concept of “racial hygiene,” 46 and Alfred Jost has pondered on a right to die and a concept of merciful death, who both were influenced by the Charles Darwin's natural selection theory. Then in 1920 came the influential publication by Alfred Hoche and Karl Binding. Hoche, most importantly, argued that there are no explicitly defined ethical standards in the medicine and that these standards depend on peer opinion, which is relative and can be altered as conditions change. He also presented concept of “mental death,” 47 and argued that killing a mentally dead people cannot be wrong, especially so, when society is under severe economic burden. Karl Binding, notably, presented three categories of people whose life is not worth living, neither on legal, social, ethical or religious grounds:

those who cannot be cured, because of an illness or injury, and in understanding of their condition have express wish to die; “incurable idiots,” 48 who are indifferent to life and death, and can be asked to be put to death by their guardians;

45 Wright, W. “Peter Singer and the Lessons of the German Euthanasia Program.” Issues in Integrative Studies (no. 18). Updated - 2000. Retrieved - 7 Apr. 2006 <http://www.units.muohio.edu/aisorg/pubs/issues1/restricted/032/paper.pdf>. p. 1 46 Biesold, H. “From Social Darwinism to National Socialism.” Gallaudet University Press. Updated 11 Jun. 2004. Retrieved - 11 May 2006 <http://gupress.gallaudet.edu/Chexcerpt.html>. 47 Wright, W. “Peter Singer and the Lessons of the German Euthanasia Program.” Issues in Integrative Studies (no. 18). Updated - 2000. Retrieved - 7 Apr. 2006 <http://www.units.muohio.edu/aisorg/pubs/issues1/restricted/032/paper.pdf>. p. 32 48 Ibid. p.30

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comatose ill patients, who cannot be helped and have or would have had requested to be put to death if were conscious.

In 1934, “A Law for the Prevention of Hereditarily Diseased Progency” 49 has been passed, which required compulsory sterilization of patients with such hereditary diseases as epilepsy and schizophrenia.

The euthanasia program, which began in 1939 was not based on a law, idea of which Hitler has rejected probably to keep it low-profile, but on his personal authorization given to Karl Brandt and Philipp Bouhler, permitting them to perform euthanasia on patients, who have been carefully diagnosed and believed to be suffering from an irreversible illness. 50 Children's euthanasia program which started about half a year earlier before the authorization document was signed, and commencing with Knauers 51,52 family requesting for their baby, born blind with one leg missing and a part of his arm too, to be euthanized, was performed in special children's wards on a basis of assessing recorded form information, provided on a newborns and children under 3-years-old, by midwives and physicians, who were looking for physical and mental deformities/abnormalities in children. Euthanasia has been performed through the administration of widely used medications in high dosages.

After Hitler has authorized euthanasia, adults were added to the program as well, and it received a codename “Aktion T-4,” 53 name given after its administrative location at Tiergartenstrasse 4, Charlottenberg. Like it has been done previously, euthanasia victims were also chosen on the basis of form information being analyzed by experts. Word “analysis” however, would be quite an overstatement here, as it amounted to no more then ticking checkboxes beside an overview of patient's condition.

In one of the locations where euthanasia program has been executed, the psychiatric

49 Ost, S. “Doctors and Nurses of Death: A Case Study of Eugenically Motivated Killing under the Nazi ‘Euthanasia’ Programme.” Liverpool Law Review (vol.27, no.1, 2006): 10. 50 Ibid. p.13 51 Ibid. p.11 52 Smith, W. J. “Killing Babies, Compassionately.” Weekly Standard. Updated - 27 Mar. 2006. Retrieved - 5 Apr. 2006 <http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=12003>. 53 Ost, S. “Doctors and Nurses of Death: A Case Study of Eugenically Motivated Killing under the Nazi ‘Euthanasia’ Programme.” Liverpool Law Review (vol.27, no.1, 2006): 13.

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institution in Kaufbeuren, Bavaria, it has been found that both adults and children were kept in horrible unsanitary conditions, and have been killed either by being given lethal injections, poisoned food, which killed a person in period of 2-5 days, or through a starvation, either slow or rapid, which could take up to more then 3 months, and which was considered to be the most economical approach, as a weakened by malnutrition person needs only a fraction of lethal medication to be put to death.

It is interesting to note, that Catholic nuns, have too participated in the killings, some because of perhaps genuine conviction of accomplishing the right cause, while others doing that because they had to obey the orders, which they were trained to follow without questioning, but it were due to the protests of a high-ranked Church members, the euthanasia program has ended, but still however, remained to be practiced in secret till the takeover of Germany. 54

Such is the grave overview of the massive injustice inflicted upon a vulnerable members of German society under the Nazi rule, which was done out of consideration to preserve the purity of the race and not to spend resources on worthless freeloaders, with compassion being intended only at the back of a mind, if at all.

1.4. Voluntary active euthanasia
This type of euthanasia comes about with the request by a rationally reasoning patient, whose life is made unbearable due to some incurable condition, such as terminal illness, and thus the patient wishes to die in dignity, and asks to be administered a lethal agent, as for patient to do that himself is impossible or is very hard, due to the deterioration of motor functions. Currently, this type of euthanasia is legal only in two countries, the Netherlands, as of 1st April 2002 and in Belgium, as of 28th May 2002.

Unlike the Belgium, which had no significant history on the practice of euthanasia prior to its almost simultaneous legalization with its neighbor, in the Netherlands the practice has been de facto legal since the mid-twentieth century, where the first case of euthanasia took place in 1952, when a doctor have put to death his brother, who suffered from an advanced tuberculosis and wished to die. The doctor was tried and found to be guilty, but however, was

54 Ibid. p.14-20

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given only one year probation sentence. 55 Another case in 1969, involved a 21-year-old comatose woman, Mia Versluis, whose doctor wanted to get her off life support system, her father objected however, and though artificial life support has not been removed, court imposed a 450 US dollar equivalent fine on the doctor, saying that before the withdrawal of life support equipment, other doctors and patient's family, are to be consulted with. 56 Next important case took place in 1973, when doctor Ms. Postma have on request ended life of her 78-year-old ill mother. At the court hearing it was agreed, that a common medical practice in the country had an outlook, that a patient's life should not be stretched to its end, and therefore patient can be given life-shortening medication for alleviation of his suffering, if the following conditions are met:
− − −

patient is cureless, and suffers either physically or mentally; patient has expressed his wish to die; action of putting patient to death is performed by a physician.

Dr. Postma was given one week of conditional jail sentence and one year probation, as she has administered an instantaneously lethal agent to her mother. 57

Schoonheim and Pols The first case, reaching the Dutch Supreme Court, took place in 1983. The case involved doctor Schoonheim, who has performed euthanasia on the 95-year-old patient, who repeatedly asked for his death. On case reaching to the Supreme Court, it has been found that no illegal actions were performed by the doctor, as he followed the guidelines set in the Wertheim case, but the court however remanded case to the lower instance, to determine if doctor's actions were justified under the defense of necessity, which Schoonheim argued to be the case, meaning, that he found himself in a conflict of duties, - preservation of life and alleviation of patient's suffering. Court examined that issue and found, that doctor successfully resolved his conflict of obligations, by following responsible medical opinion. Therefore it follows from the decision, that physicians gained another backing when performing euthanasia - defense of necessity. However, as has been determined in Pols case, the second one to reach the Dutch Supreme Court, euthanasia cannot be interpreted as a commonplace medical practice, and in failing to follow guidelines set in the Wertheim case, - by not consulting with colleagues,
55 Smies, J. T. “The legalization of euthanasia in the Netherlands.” Gonzaga Journal of International Law. Updated - 14 Jun. 2005. Retrieved - 18 Apr. 2006 <http://www.acrossborders.com/Articles/Smies/Smies.pdf>. p. 7 56 Ibid. p. 8 57 Ibid. p. 9

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there can be no defense of necessity. 58

Three years later after the Wertheim case, which set guidelines for assisted suicide and euthanasia, in 1984, the Executive Board of the Royal Dutch Medical Society published a report, featuring five requirements, following which would make euthanasia acceptable. These conditions are basically the same as set in the Wertheim, except missing the clause requiring, that no alleviation of suffering can be achieved, in order for death to be admissible. 59 That, has once again reaffirmed acceptability of euthanasia, and made the practice a bit more relaxed, by allowing more patients to be eligible for it. These five conditions, and a sort of compromise solution between having the “unalleviatable suffering” clause from the Wertheim guidelines, and having no clause at all, have made it into the euthanasia and PAS law of 2002, setting the following requirements for a physician: “a. holds the conviction that the request by the patient was voluntary and wellconsidered, b. holds the conviction that the patient's suffering was lasting and unbearable, c. has informed the patient about the situation he was in and about his prospects, d. and the patient hold the conviction that there was no other reasonable solution for the situation he was in, e. e. 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 a - d, and f. has terminated a life or assisted in a suicide with due care.” 60

While the Wertheim guidelines, though not being explicit about it, placed a decision if suffering can be relieved by a means other then death, on a physician, this presumption I draw by reasoning that a medical expert should be more competent on such matter, the present law, in my view, effectively eliminates a need to go through a possibly existing alternative way to alleviate misery, altogether. As this matter is left to be determined by a patient himself, by exercising his own “conviction.”
58 Ibid. p. 15-18 59 Ibid. p. 18 60 “Termination of Life on Request and Assisted Suicide (Review Procedures) Act.” Right to Die-NL. Updated - 1 Apr. 2002. Retrieved - 4 May 2006 <http://www.nvve.nl/assets/nvve/english/euthlawenglish.pdf>. p. 2

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Diane Pretty The following is an important case that took place in the UK, where both VAE and PAS are currently illegal, that involved Diane Pretty. In 1999, 41-year-old Diane Pretty was diagnosed with a degenerative illness condition, which soon has physically incapacitated her and confined to a wheelchair, her intellectual capacity remained unaffected however. As this incurable motor neuron disease progresses, death usually takes place due to a severe weakness of throat muscles and muscles associated with breathing, which leads to a respiratory dysfunction and pneumonia. Due to such a miserable condition, which Diane Pretty found herself in, she wanted her husband to be able assist here in suicide, perform VAE - to be correct, when the time was right, as she were not in a state do it by herself. It is illegal to assist suicide in the UK, by Suicide Act of 1961 section 2(1) providing, that “[a] person who aids, abets counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years,” 61 and VAE would be regarded as a murder. Therefore the Director of Public Prosecutions was asked for the undertaking not to prosecute Mr. Pretty if he will help her wife to die. Such undertaking was refused to be given, and turning to the Divisional Court and appealing to the House of Lords, gave no satisfaction to the right Pretty couple was seeking for, either. Brian and Diane Pretty then went to the European Court of Human Rights (hereinafter ECHR) in hope of winning their legal battle there, by arguing that the UK has violated the European Convention on Human Rights, and specifically the articles discussed below. 62,63

It has been disputed, that the Article 2 (Right to life), provided that it is for a person himself to decide as whether to live or not, and that the right to death, then, is equally protected as is the right to life. To which the court answered, that the Article cannot be interpreted as to safeguard anything that is opposite to life, and especially if death comes as a result of another's action, so therefore it even places an obligation on a state to protect human life from
61 English V., Romano-Critchley G., Sheather J., Somerville A. “Human rights and assisted suicide.” Journal of Medical Ethics. Updated - 2002. Retrieved - 10 Apr. 2006 <http://jme.bmjjournals.com/cgi/content/full/28/1/53>. 62 “Pretty v. The United Kingdom - 2346/02 [2002] ECHR 427 (29 April 2002).” WorldLII. Updated - Mar. 2006. Retrieved - 11 Apr. 2006 <http://www.worldlii.org/eu/cases/ECHR/2002/427.html>. 63 “Case of Pretty v. The United Kingdom [European Court of Human Rights], Application no. 2346/02, Strasbourg, April 29, 2002: Case Summary.” Nightingale Alliance. Updated Sep. 2004. Retrieved - 11 Apr. 2006 <http://www.nightingalealliance.org/pdf/pretty_v_uk.pdf>.

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acts that are contrary to one's well-being.

The Article 3 (Prohibition of torture), was brought, as it has been claimed, that the only way for Diane Pretty not to suffer, because of her degrading condition, is for the state to not charge with a criminal offence Mr. Pretty, if he will help his wife to pass away. And that the state, has an obligation not to subject Mrs. Pretty to an inhuman treatment. This interpretation of the Article was refuted by the court, stating, that the UK surely did not ill-treat, and never intended to, Mrs. Diane Pretty, and that the Article 3 had to be viewed in light of the Article 2, which protects human life, and does not permit conduct that would be contrary to the assertion of life. Therefore a state is under no obligation to facilitate death.

The Article 8 (Right to respect for private and family life), was argued to provide an individual with the right to self-determination, which includes the choice to be made whether to end one's own life or not to, but the UK law prevented Mrs. Pretty from exercising this right. The court found, that the state had a reason to interfere in questions of life and death, in order to protect society, and especially its vulnerable members from possible abuses, and thus the UK government has a reasonable justification for such interference.

The Article 9 (Freedom of thought, conscience and religion), it was presented, gave Diane Pretty the right to exercise her belief, that it was in her highest good to be assisted with her death, and that it was unlawful for the state to not let that belief to be acted upon. The court has ruled, that here, applicant basically repeated the argument, which allegedly infringed Mrs. Pretty rights under the Article 8, and that the claim made here, is not of the form, which is protected under the Article 9.

The Article 14 (Prohibition of discrimination), was violated by the UK, applicant declared, because it was not a criminal offence for a person to commit suicide himself, however for the one who is of sound mind, but who is physically incapacitated to be able to commit a suicide without an external help, it is impossible to do. Here the court decided, that the state had a reasonable motive and aim in discriminating between the one's who are physically fit to commit suicide, and the one's who are not, so as to protect the later from a possible exploitation of their helpless condition. Therefore the court found no violations on the side of the United Kingdom. On 3rd May 2002, 24

Diane Pretty was admitted to a hospice. Her condition turned to worse as she developed chest infection, her breathing became difficult, and on 11th May 2002, Mrs. Pretty died. 64

1.5. Voluntary passive euthanasia
Voluntary Passive Euthanasia (hereinafter VPE) is the least controversial form of euthanasia, and actually can be considered not to be euthanasia at all, because there is no intention to hasten a patient's death, as it is simply a refusal of a medical treatment by a competent person, which is universally considered to be each individual's right, and under common law, “to provide treatment for a competent adult without his or her consent, or in the face of a valid refusal, would constitute battery or assault and could result in legal action being taken against the doctor,” 65 and therefore a patient's death comes as a result of natural causes and not any kind of interference.

In this thesis, I have decided to make a distinction between the VPE and Non-Voluntary Passive Euthanasia (hereinafter NVPE), though it is possible to merge these two forms together. In my view it is important to discern one's own competent and explicit decision to refuse a medical treatment, either being made while in a difficult medical situation or in a form of prior written will, from that of a substitute decision of a proxy, when no such written will was made ahead of a patient's incapacitation, however well it might be argued by a guardian, that a person expressed his wish not to be kept on a life support apparatus, if impaired.

Written will, constructed for such emergency situations, is generally referred to as an “advance directive” or a “living will,” and is made by a competent person, expressing that person's wish how he is to be treated in a particular medical circumstances, when unable to communicate his preferences verbally. Advance directive, made “on the basis of adequate information about the implications of his/her choice, is legally binding and must be respected where it is clearly applicable to the patient’s present circumstances and where there is no reason to believe that the patient had changed his/her mind.” 66 It must be noted, that not

64 “Diane Pretty: Timeline.” BBC (British Broadcasting Corporation). Updated - not known. Retrieved - 11 Apr. 2006 <http://news.bbc.co.uk/1/hi/health/1983562.stm>. 65 British Medical Association, “Withholding and Withdrawing Life-prolonging Medical Treatment: Guidance for decision making”, 2nd Ed., 2001, p. 17 66 “Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making.” General Medical Council. Updated - Aug. 2002. Retrieved 10 April 2006 <http://www.gmc-

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everything can be covered by an advance directive, and namely one generally cannot:

disallow basic nursing care, such as personal hygiene, and basic comforting drugs, such as pain killers;

− − −

refuse to be orally given food and drink; ask for unlawful acts to be performed, such as active euthanasia or PAS, where illegal; demand medical care, that health professionals would consider inappropriate. 67

In addition to being a written document, an advance directive can also be a verbal one, and it also possible to assign a person to make all medical decisions instead of you, if you were to become incompetent, and this is called as the “durable power of attorney.” 68 Word “durable” means, that the power given to the guardian will not be invalidated with principal's incapacitation, which can be the case with other types of “power of attorney.” 69

As the matter of requesting euthanasia in an advance directive has been touched here, I would like to point out that under the Dutch “Termination of Life on Request and Assisted Suicide (Review Procedures) Act” Article 2.2, 70 a physician may honor such a request for euthanasia, provided that all the usual guidelines for the practice are met. However, the following questions arise in regards to this matter, as presented by the example of a demented patient, who requested euthanasia in his living will:

physician must believe that the request for euthanasia has been voluntary and well considered, however, while presumably the request was well thought through at the time when the advanced directive was drawn, physician cannot reasonably be sure that his patient is still true to his previously expressed consideration, as the “if I become demented, I want you to kill me” 71 request, is not quite the same as “I want you to kill me

uk.org/guidance/library/W_&_W.pdf>. p. 47 67 “Future medical treatment: advance statements and advance directives or living wills.” Alzheimer’s Society. Updated - not known. Retrieved - 2 May 2006 <http://www.alzheimers.org.uk/After_diagnosis/Planning_for_the_future/info_livingwills.htm>. 68 Crane, M. K., Wittink, M., Doukas, D. J. “Respecting End-of-Life Treatment Preferences.” American Academy of Family Physicians. Updated - 1 Oct. 2005. Retrieved - 10 Apr. 2006 <http://www.aafp.org/afp/20051001/1263.html>. 69 “What's a Power of Attorney?” Office of New York State Attorney General Eliot Spitzer. Updated - not known. 2003. Retrieved - 29 May 2006 <http://www.oag.state.ny.us/seniors/pwrat.html>. 70 “Termination of Life on Request and Assisted Suicide (Review Procedures) Act.” Right to Die-NL. Updated - 1 Apr. 2002. Retrieved - 4 May 2006 <http://www.nvve.nl/assets/nvve/english/euthlawenglish.pdf>. p. 2 71 Delden van, J. J. M. “The unfeasibility of requests for euthanasia in advance directives.” Journal of Medical Ethics (vol.30 no.5, 2004). Updated - 11 Mar. 2003. Retrieved - 9 Apr. 2006

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now, because I have become demented” 72;

it is required that patient's suffering must be continuous and unbearable in order for euthanasia to performed, but how does one asses a psychological suffering of a demented patient, who cannot logically and coherently argue for his case, can this question be left for a physician to decide alone?;

it is necessary that the patient must be informed of his condition and believe that no treatment can alleviate it, - this surely cannot be communicated with an incompetent patient as well;

another physician must assess the case of the patient, but arguably, he can do no more then the first physician did. 73

Thus it is clear, that in an absence of an effective verbal communication with the patient, which is a key issue here, in certain situations a physician can be presented with quite an ambiguous case to resolve.

While an advance directive is generally considered to be publicly safe, and indeed is a valid exercise of one's own free will, making it a valuable tool for asserting one's own interests and avoiding lengthy court proceedings, it is still possible to arrive at a couple of issues 74 which are challenging in an ethical and moral manner, and relate to the above mentioned situation in the Netherlands. The first issue can be described as “an advance directive v. present state,” let us suppose that an elderly person has made an advance directive stating, that he would not want to be given life sustaining treatment if he were mentally impaired. Years later, that person is in a nursing home with condition “categorized as severely but "pleasantly" demented,” 75 (it is assumed that the state's law allows activation of an advance directive in such a case) meaning, that though he is mentally impaired, there appears to be no suffering and he is seen to enjoy the life, however senseless such life may seem to be in view of a “normal” person. Now, the person contracts pneumonia, and unless given the treatment to which he has objected, he will die.

How should this case be resolved? In my view, such a situation can be resolved the way it has
<http://jme.bmjjournals.com/cgi/content/full/30/5/447>. 72 Ibid. 73 Ibid. 74 Mappes, T. A. “Some Reflections on Advance Directives.” APA Newsletters. Updated - 1998. Retrieved - 2 May 2006 <http://www.apa.udel.edu/apa/archive/newsletters/v98n1/medicine/mappes.asp>. 75 Ibid.

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been in the case of “HE v Hospital NHS Trust,” in 2003 in the UK, where a Muslim born woman, who converted to Jehovah’s Witnesses, whose faith does not allow blood transfusion, urgently needed a medical interference to stay alive. Her father stepped in into the situation and presented the evidence, that his daughter's signed blood refusal card is not valid, as she was engaged now with a Muslim man, and did not attend Jehovah’s Witnesses meetings for several months. Court has ruled, that an advance directive is revocable, and that the burden of proof for claiming its invalidity, lies on those who seek to challenge it, and if presented with a dilemma, a case is to be decided in the favor of life. 76

Another issue, that can be thought of, might be described as disregarding present wishes based on an advance directive. That is, when in an advance directive one requests not to be given treatment when incompetent, even if he will ask for it, in a delirious condition perhaps. This certainly presents a moral and ethical controversy, in my opinion, but some have found a way out of it. Advance directives being a very important tool nowadays, are being constantly reviewed and updated by state's laws, and I am aware, that at least one state in the US, state of Vermont, has adopted the so called “Ulysses Clause,” 77 deriving from the Greek mythology, where Ulysses asked his crew to tie him up to the ship's mast and not to listen to anything he says, while sailing near Sirens. Thus the law has cleared a physician's way and enabled him to act in such situation. But did that solve the ethical and moral dilemma? In my impression, not.

1.6. Non-voluntary passive euthanasia
Non-voluntary passive euthanasia is almost the same as VPE, - when the death comes as a result of patient's withdrawal from an artificial life support machine treatment, that has helped to sustain patient's life, but with an exception, that a person is incapacitated, and in the absence of an advanced directive cannot himself make any immediate requests in concern to his treatment.

Karen Quinlan Karen Quinlan's case is one of the important one's, that contributed to the right-to-die issue, and took place in the state of New Jersey, US, where on 15th April 1975, 21-year-old Karen
76 Woolley, S. “Jehovah’s Witnesses in the emergency department: what are their rights?” Emergency Medicine Journal. Updated - 21 Feb. 2005. Retrieved - 2 May 2006 <http://emj.bmjjournals.com/cgi/content/full/22/12/869>. 77 “VEN Newsletter March 05.” Vermont Ethics Network. Updated - 2 Feb. 2006. Retrieved - 3 May 2006 <http://www.vtethicsnetwork.org/NewsLetFeb06.htm>.

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Ann Quinlan has collapsed at a friend's party, because of the combination of lack of a nutrition due to a self-imposed diet, taking alcohol and the Valium tranquilizer, which all resulted in a respiratory failure for a considerable amount of time, and thus the unalterable brain damage happened to Karen and left her in a PVS state. 78 Her parents wanted their daughter to be taken off the respirator, but as the hospital refused to do that, the case was taken first to the Superior Court, where the parents have lost, and then to the New Jersey’s Supreme Court, which has decided the case in their favor, giving permission for all life support to be withdrawn. After separating Karen from the respirator however, she continued to breathe on her own, and probably because of that her father wanted artificial nutrition and hydration (hereinafter ANH) support to continue to be administered, 79 and thus Karen remained in a PVS state until her death in 1985 from pneumonia.

It has been decided by the Supreme Court of New Jersey that, even though Karen was incompetent to make any decisions herself, the Karen's father could assert her constitutional right to privacy, and to refuse an unwanted medical treatment on her behalf, because he has presented the evidence, that it is what his daughter would have wanted - not to prolong her life if found in a hopeless condition. The medical treatment, as has been found, served only a “maintenance function,” 80 and could not alleviate or improve Karen's condition, “but at best can only prolong her inevitable slow deterioration and death.” 81 The court said, “that the State's interest [in preserving life] weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims,” 82 and that the justice and the law must not unquestionably give in to the possibilities of modern medical technology, but instead to critically asses the issues these advancements present. It was concluded that no homicide would occur in the circumstances of this case, as Karen's life would end because of natural causes, and even if it can be interpreted as a homicide, constitutional right to privacy, in the case presented, would make it lawful, as there is a clear distinction between an unlawful killing and withdrawing life support as an act of one's own freedom of self-determination. The
78 “Karen Ann Quinlan.” Answers Corporation. Updated - not known. Retrieved - 26 Apr. 2006 <http://www.answers.com/topic/karen-ann-quinlan>. 79 “Quinlan, Karen Ann.” Ascension Health. Updated - not known. Retrieved - 26 Apr. 2006 <http://www.ascensionhealth.org/ethics/public/cases/case21.asp>. 80 Supreme Court of New Jersey. “In the matter of Karen Quinlan, an alleged incompetent.” University of Wisconsin: Department of Philosophy. Updated - 16 Dec. 1999. Retrieved - 26 Apr. 2006 <http://philosophy.wisc.edu/streiffer/BioandLawF99Folder/Readings/In_re_Quinlan.pdf>. p. 24 81 Ibid. 82 Ibid.

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court held, that “[i]f a putative decision by Karen to permit this non-cognitive, vegetative existence to terminate by natural forces is regarded as a valuable incident of her right of privacy, as we believe it to be, then it should not be discarded solely on the basis that her condition prevents her conscious exercise of the choice. The only practical way to prevent destruction of the right is to permit the guardian and family of Karen to render their best judgment.” 83

Thus, the following legal precedents were set by the decision of this case:

the right to privacy allows a patient to refuse medical treatment, even though the decision may result, or will hasten his death;

if patient is incompetent, such decision is allowed to be taken by his guardian in a dialogue with medical professionals, and court interference is not needed;

the patient's right to privacy grows in a proportion to the degree of an external invasion needed to sustain patient's life, as his prospects of recovery become more bleak.

Nancy Cruzan Like in the previous case of Karen Quinlan, the 25-year-old Nancy Cruzan, due to the car accident in 1983, was left in a PVS state, after waking up from the 9-month coma period. Her parents and husband hoped for Nancy's recovery, but as the four years have passed, they have accepted that there is no hope for her condition to improve, and asked the hospital to take off Nancy's ANH support, hospital however requested a court's order to do that. The trial court has ruled, basing its decision on the testimony of Cruzan's housemate, claiming that Nancy would not have wanted to live that way, that the artificial life support can be removed. The decision was afterwards reversed by the Missouri State Supreme Court, and later upheld by the US Supreme Court, by holding, that no clear and credible evidence was presented, as to be sure that Nancy would really have wanted to be removed from a life support, if found to be in a deplorable state. The case was then brought once again to a lower court, where the new evidence was presented, and where it was finally decided, that ANH support can be removed, thus allowing Nancy to die in 1990. 84

This case differs from that one of the Karen Quinlan in a way, that the US Supreme Court

83 Ibid. 84 “Nancy Cruzan.” Wikipedia, The Free Encyclopedia. Updated - 18 Apr. 2006. Retrieved - 26 Apr. 2006 <http://en.wikipedia.org/w/index.php?title=Nancy_Cruzan&oldid=49068807>.

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established, that an incompetent person should not necessarily posses the same right to refuse ANH support, that a competent one has, and “[w]hile Missouri has in effect recognized that, under certain circumstances, a surrogate may act for the patient in electing to withdraw hydration and nutrition and thus cause death, it has established a procedural safeguard to assure that the surrogate's action conforms as best it may to the wishes expressed by the patient while competent.” 85 Therefore it is up to each individual state to decide what kind of reasonable requirements aimed to protect a vulnerable person, should be met, in order to establish beyond a doubt, that an action on the behalf of an incompetent person would reflect his wish, and the demand for such requirements to be met is not forbidden by the US Constitution.

Terri Schiavo Probably the most famous case up to date, that has been debated on the issue surrounding end-of-life decisions, is that of the Terri Schiavo. While the case itself did not present any significant medical or legal challenges, and in fact was quite simple, it has been blown out of proportions and spilled well over to nation-wide arena, reaching even the US president George W. Bush. After collapsing on 25th February 1990, for reasons not clearly identified, 27-year-old Terri was resuscitated, and after being in a comatose condition for more than a two-month period, emerged from it to be diagnosed as living in a PVS state. Terri has been through many therapies, but all in vain, and when in 1994 she contracted urinary tract infection, most of her therapies were suspended with “Do Not Resuscitate” (hereinafter DNR) order, in the decision made jointly by her physician and husband, however Terri's parents did not agree to that, and the order was reversed. In 1998 her husband Michael, filed petition for the ANH support to be removed. The case was heard in 2000, and Judge Greer concluded it by granting the order to stop artificial life support. This decision was upheld by Florida's Second District Court of Appeal. The case was decided that way, as the clear evidence has been presented, that Terri would not have wanted to remain in a PVS state, and that there is no prospect for her recovery whatsoever.

85 “U.S. Supreme Court: Cruzan v. Director, MDH, 497 U.S. 261 (1990)”. FindLaw. Updated - not known. Retrieved - 27 Apr. 2006 <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=497&invol=261>.

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What has happened after that decision, can be summarized as a theater drama, consisting of attempts, made out of despair, denial and/or religious convictions of Terri's parents to invalidate the court's order that has granted removal of their daughter from the ANH support, on every occasion and by any possible and impossible means, also involving a mad-man putting the cash bounty on heads of Terri's husband (250,000 US dollars) and Judge Greer (50,000 US dollars), 86 and joined by high-ranking government officials, who had their own political agenda in regards to this case, such as Florida's Governor Jeb Bush, who in 2003 signed “Terri's Law,” enabling him to intervene into the case, but which was found to be unconstitutional, and by the US president George W. Bush including certain members of the US Congress, when in year 2005 they have pushed the bill to transfer the case to federal jurisdiction. The US Supreme Court and federal courts, however, denied an appeal. After that, when finally all the feasible and unfeasible moves to prevent Terri's removal from the ANH support were exhausted by “pro-life” supporters, Terri has passed away on 31st March 2005. 87

Anthony Bland Important case that was ruled out by the UK's House of Lords in 1993 is “Airedale NHS Trust v. Bland.” 88 In this case, Anthony Bland, who became a victim of the Hillsborough disaster on 15th April 1989, where he has been crushed by a stadium crowd during the football cup, suffered the incurable brain damages, and as a consequence was left in a PVS state without prospect for recovery. Anthony Bland spent more than three years in such a state, by means of artificial feeding and hydration, and died on 3rd March 1993, after his artificial life support was switched off on 22nd February 1993. 89 Anthony's life support was made possible to be removed, as both medical personnel and his parents sought no sense to support condition of Anthony, who could have remained in a PVS state for many years to come, before the “natural death” could have claimed his life, and therefore, they asked court's permission to legally withdraw the treatment from him.

86 “Man arrested in alleged Schiavo case murder plot.” CNN News. Updated - 25 Mar. 2005. Retrieved - 17 May 2006 <http://www.cnn.com/2005/US/03/25/arrest.schiavo/>. 87 “Terri Schiavo.” Wikipedia, The Free Encyclopedia. Updated - 24 Apr. 2006. Retrieved - 27 Apr. 2006 <http://en.wikipedia.org/w/index.php?title=Terri_Schiavo&oldid=49862911>. 88 “Airedale N.H.S. Trust -v- Bland.” lawindexpro - Case Law. Updated - 18 Aug. 2002. Retrieved 10 Apr. 2006 <http://www.swarb.co.uk/c/hl/1993airedale_bland.html>. 89 “1992: Hillsborough victim allowed to die.” BBC (British Broadcasting Corporation). Updated not known. Retrieved - 10 Apr. 2006 <http://news.bbc.co.uk/onthisday/hi/dates/stories/november/19/newsid_2520000/2520581.stm>.

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The two main arguments of the solicitor against withdrawing artificial treatment were, that withdrawal of the treatment is intended to cause death of the patient, which is murder, and also that this will constitute breach of medical duty to care about the patient, as it is a basic responsibility to feed and care for a helpless person. The reasoning refuting these arguments was presented as follows, - withdrawing the artificial life support would satisfy guidelines laid out in the “Discussion Paper on Treatment of Patients in Persistent Vegetative State” issued by the Medical Ethics Committee of the British Medical Association, and would meet Bolam 90 requirement, under which, if a responsible medical practitioner arrives at a reasonable conclusion, which is of an accord of a responsible medical body, then the actions of that doctor are lawful. The medical practitioners found that prolonging the current given medical treatment to Anthony would be not in his best interests, as it is futile and will not improve his condition, it will bring him no benefit; and Anthony is not aware whether the treatment is being supplied to him and he will not be aware if it would stop. Medical treatment, under category of which falls an artificial feeding, as is regarded by medical circles, is appropriate only when it would be of a benefit to a patient, and doctors are not required to supply treatment, if nothing will be achieved by doing so. Thus the House of Lords decided, that it would be lawful, to withdraw medical treatment from Anthony Bland.

Leslie Burke While it has been taken for granted, for myself, that legal battles of critically ill conscious patients are fought for the right to be able to choose their own timing of death, it was a very interesting discovery for me, that there are people fighting for the opposite right, - to be able to stay on a life support treatment, and such is the case of Oliver Leslie Burke, that took place in the UK. Mr. Burke is a 46-years-old man who suffers from the spino-cerebellar ataxia condition, a degenerative illness which currently confines him to a wheelchair, and in time Mr. Burke will require a life support machine treatment to be able to stay alive, his cognitive functions though, it is believed, will remain almost until the very death, but the communication would be possible only through a computer device, however.

Leslie Burke decided to go to the court, to secure his right for an ANH support until his death of natural causes, as he feared, that when his ability to speak and move will be gone, he can

90 “Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582.” Oxford Centre for Higher Education Policy Studies. Updated - 14 Oct. 2002. Retrieved - 11 Apr. 2006 <http://oxcheps.new.ox.ac.uk/casebook/Resources/BOLAMV_1%20DOC.pdf>.

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be prematurely put to death against his consent, and thus argued that the guidance provided by the General Medical Council (hereinafter GMC) on “Withholding and Withdrawing Lifeprolonging Treatments,” 91 is in the breach of the Articles 2, 3, 6, 8 and 14 of the European Convention on Human Rights. Mr. Burke's fear was founded on the fact, that ultimately it is up to the doctor to decide, which treatment patient must or must not receive, as patient's wishes do not equate to his best interests, where it would be “clinically inappropriate.” 92 Though Mr. Burke has won his case in the High Court, the Court of Appeals ruled that the GMC's guidance was perfectly within the law, albeit it should be taught and explained more actively on all levels of medical system, and that this case should not have been brought before the court in the first place, however “[i]f the extensive interest generated in this case helps achieve that objective[, gaining confidence in receiving a proper treatment], the proceedings will have served a useful purpose.” 93 The Court of Appeals has reassured Mr. Burke, that he will receive all the treatment he would need, and he is not going to be denied an ANH support, of which withdrawal he would be conscious and aware, and that nothing in the guidance prevented him to be treated in the best possible way. There may come a time however, when an ANH treatment would be of no benefit to a patient, or even would harm him, and interfere with natural dying process. In such case it is impossible to demand for an artificial life support, as it would not be in the patient's best interests to receive it, but that kind of situation is “extremely unlikely to arise in practice.” 94

Haleigh Poutre Another important case that took place in the US, state of Massachusetts, is the case of Haleigh Poutre. Haleigh is 11-year-old girl, who has been allegedly beaten into the coma by her adoptive parents. The girl has been diagnosed to be in a PVS state on 11th September 2005, and just in nine days time after being beaten, the Department of Social Services, which has been given temporary custody of Haleigh, stated, that the life support and feeding should be removed from Haleigh. The matter was submitted to the trial court, where it was decided, within 24 days since the girl was abused, that her life should indeed end, as Haleigh's “dignity
91 “Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making.” General Medical Council. Updated - Aug. 2002. Retrieved 10 April 2006 <http://www.gmcuk.org/guidance/library/W_&_W.pdf>. 92 Ibid. p. 21 93 “Oliver Leslie Burke vs General Medical Council. Case No: C1/2004/2086.” Matrix Chambers. Updated - 28 Jul. 2004. Retrieved - 16 Apr. 2006 <http://www.matrixlaw.co.uk/showDocument.aspx?documentId=1555>. 94 Ibid. p. 19

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and quality of life would be most respected by withdrawing both the ventilator and the feeding tube along with the issuance of a [DNR] order[.]” 95 The case was then appealed to the Supreme Judicial Court by the girl's adoptive father, where the ruling of the lower court was upheld. However, while the matter was still being reviewed by the Supreme Judicial Court, Haleigh's condition began to improve, as she began to breathe without the need for life support equipment, and started to respond to simple commands. In such an extraordinary turning of the events, a special panel for the review of Haleigh's Poutre case has been established, which found, “that this case represents a systemic failure in the child welfare, health care and mental health systems to provide the safety net that children deserve - not just at the Department of Social Services (DSS), but at all levels, public and private.” 96 The report of the panel has presented, that people from many disciplines, who were involved in this case, have made errors in their judgments, and concluded, “that what happened to Haleigh should not have happened, and did not have to happen.” 97

1.7. Indirect euthanasia / Double effect doctrine
Indirect euthanasia, which is even more known as the “double effect,” 98 takes place when a patient is given certain drugs to control/detach his pain, but it is admitted, that these drugs may hasten patient's death, especially with the increase of their dosage, which can be needed as body adapts to the medicaments, and thus will require higher quantities of it to bring the intended soothing effect. Causing death is not an intention in this case however, instead, here it is an awareness that the death may happen because of the medication, but it is justified, that by administering the drugs, only bringing of the good effect of alleviating pain is meant, which outweighs even the prospect of non-reversible side effect of death. In summary, four points must be met, for the double effect to be justified:

the intended final aim must be positive;

95 Barnett, D. “Haleigh Poutre.” Weekly Standard. Updated - 27 Jan. 2006. Retrieved - 19 Apr. 2006 <http://www.weeklystandard.com/Content/Public/Articles/000/000/006/635seuoj.asp?pg=1>. 96 “Poutre panel recommends reforms in child welfare system.” The Commonwealth of Massachusetts: Executive Department. Updated - 21 Mar. 2006. Retrieved - 19 Apr. 2006 <http://www.mass.gov/?pageID=pressreleases&agId=Agov2&prModName=gov2pressrelease&prF ile=gov_pr_060321_halieh_poutre.xml>. 97 Ibid. 98 “Report - Inquiry into Euthanasia Laws Bill 1996.” The Parliament of the Commonwealth of Australia: Senate Legal and Constitutional Legislation Committee. Updated - 19 Nov. 2003. Retrieved - 06 Apr. 2006 <http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/199699/euthanasia/report/report.pdf>. p. xii.

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− − −

the intended method to reach the aim must be morally acceptable; the foreseen negative consequences must not be intentional; the positive aim must be substantial enough, for negative effects to be justified. 99

While the doctrine of double effect is believed to be established by the Roman Catholic theologians in the Middle Ages, who oppose both euthanasia and PAS, 100 and is specifically attributed to Thomas Aquinas, 101 studies conducted before the recent modern developments at the end of 1990s took place, have shown that the vast majority of physicians were reluctant to administer high or even sufficient doses of medicaments to their patients, because of legal and ethical concerns, and it would be probably safe to say, that many doctors are still hesitant of this practice, as arguably, it is a thin line between intending death of a patient and foreseeing it. 102,103

The legality of the doctrine has been affirmed by the US Supreme Court in the case of Vacco v. Quill in 1997, where the court has stated, that “[j]ust as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended "double effect" of hastening the patient's death,” 104 making reference to the New York State Task Force on Life and the Law, recognizing that the practice is broadly acknowledged and “is ethically and professionally acceptable.” 105 The practice is also affirmed by the American

99 “COBRA Issue Guide: The Doctrine of Double Effect.” National University of Ireland (Department of Philosophy). Updated - not known. Retrieved - 19 Apr. 2006 <http://www.nuigalway.ie/philosophy/cobra/double-effect.html>. 100 “Declaration on Euthanasia.” Official site of Vatican: Sacred Congregation for the Doctrine of the Faith. Updated - 5 May 1980. Retrieved - 8 May 2006 <http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_1980050 5_euthanasia_en.html>. 101 “Doctrine of Double Effect.” Stanford Encyclopedia of Philosophy. Updated - 28 Jul. 2004. Retrieved - 15 May 2006 <http://plato.stanford.edu/entries/double-effect/>. 102 Quill, T. E., Dresser, R., Brock, D. W. “The Rule of Double Effect - A Critique of Its Role in End-of-Life Decision Making.” The New England Journal of Medicine (vol.337, no.24). Updated 11 Dec. 1997. Retrieved - 25 Apr. 2006 <http://content.nejm.org/cgi/content/full/337/24/1768>. 103 Fohr, A. S. “The Double Effect of Pain Medication: Separating Myth from Reality.” International Association for Hospice and Palliative Care. Updated - 1998. Retrieved - 25 Apr. 2006 <http://www.hospicecare.com/Ethics/fohrdoc.htm>. 104 “Vacco v. Quill, 117 S. Ct. 2293 (U.S. 1997).” Medical and Public Health Law Site. Updated 16 Oct. 2004. Retrieved - 24 Apr. 2006 <http://biotech.law.lsu.edu/cases/pro_lic/Vacco_v_Quill.htm>. 105 “When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context.” The New York State Task Force on Life and the Law. Updated - May 1994. Retrieved - 8 May 2006 <http://www.health.state.ny.us/nysdoh/consumer/patient/chap8.htm>.

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Medical Association, which distinguishes between the euthanasia and “administering a medically sound pain relief treatment which will likely shorten the patient's life,” 106 difference, although being subtle, is significant nevertheless.

United Kingdom In the UK, it is possible to trace the double effect principle being affirmed by the court as early as 1957, when Dr. John Bodkin Adams has been acquitted of administering painrelieving medicine that caused death of an elderly patient on principle, that “a doctor is entitled to do all that is proper and necessary to relieve pain even if the measure he took might incidentally shorten life.” 107 Another case involved Dr. Nigel Leigh Cox, who in 1991 was charged with an attempted murder of his patient, as it has been perceived that the quantity of the drug he administered to Mrs. Boyes, who evidently was at best hours away from her death, has been too high to be of a therapeutic intention. Court held, that even though a physician can legally administer potentially life shortening medication, “no doctor can lawfully take any steps deliberately to hasten that death by however short a period of time,” 108 but as the evidence presented, was not clear if Mrs. Boyes died either of natural causes, as she has been literally within minutes to her death, or because of the deadly injection, Dr. Cox's sentence was suspended.

Even though the rule of double effect is widely recognized as a valid and important one, it certainly is not without its own criticism, and as it has been hinted earlier, it stems from the fact, that there is a very thin line here, between deliberating death and envisaging it. Though it is ruled out from the doctrine, that one can bring about harm, being death, as an end, some actually may and do, according to the British practitioner Dr. Michael Irwin, give lifeshortening medicaments with an intention to bring about death, but “will never admit that they have given it to honor a patient's request to die.” 109 This statement is seen to be affirmed

106 “Decisions Near the End of Life.” American Medical Association. Updated - 15 Jan. 2004. Retrieved - 8 May 2006 <http://www.amaassn.org/ama1/pub/upload/mm/369/ceja_rep_33_0104.pdf>. p. 6 107 Howard, P., Bogle, J. “Lecture Notes: Medical Law and Ethics.” Blackwell Publishing. Updated - 2004. Retrieved - 8 May 2006 <http://www.blackwellpublishing.com/content/BPL_Images/Content_store/Sample_chapter/14051 18687/howardchap11.pdf>. p. 123 108 Tur, R. H. S. “The Doctor’s Defense.” The Mount Sinai Journal of Medicine. Updated - 1 Nov. 2002. Retrieved - 8 May 2006 <http://www.mssm.edu/msjournal/69/v69_5_page317_328.pdf>. p. 322-324 109 Thompson, B. A. “Final exit: should the double effect rule regarding the legality of euthanasia

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in the case of Dr. David Moor, who has expressed his support of Dr. Irwin's views in media, admitting that he too has helped patients to die, but when prosecution, on the basis of that admission tried to convict him, Dr. Moor stated in the court, that he has been faithful to the double effect doctrine in his actions and operated within the law, therefore due to the lack of evidence, confirming that he had acted illegally, he was not sentenced. 110 Thus it is clear, that when it comes to a real-life situations, the practice of the doctrine presents itself to be quite ambiguous, and that the intentions of physicians are not painted in black or white colors, but are multi-layered, and it well may be, that doctor wants to treat his patient's pain as much as he wishes to help that person to pass away peacefully. 111

Part II. Analysis and Proposals for Implementations of End-of-Life Solutions 2.1. Essential principles - refusal of unwanted treatment and double effect
Voluntary Passive Euthanasia There is no controversy when a patient communicates directly to his physician that he does not want to be attached to, or asks to be withdrawn from the artificial life support machine, as it is the universal precept that no one's privacy should be invaded against his free will, and no one should be imposed unwanted intrusive medical assistance. However, that is not so simple if there is no direct and immediate contact between a patient and his doctor. And while a living will and/or durable power of attorney, whom you appoint to be your decision-maker in case of incapacitation, were invented to facilitate communication between the physician and his disabled patient, in some cases a medical practitioner can still face difficult ethical and moral decisions.

As has been mentioned earlier (p. 27 of the present paper), let us suppose that there is a “pleasantly demented” senior patient, quietly enjoying his unsophisticated life, who has contracted pneumonia and unless his advance directive is disregarded, he will die. Now, you can ask, - “what is the problem, that is what the old man wanted, not to be given treatment in

in the United Kingdom be laid to rest?” Vanderbilt Journal of Transnational Law. Updated - 1 Oct. 2000. Retrieved - 8 May 2006 <http://www.highbeam.com/library/doc3.asp?docid=1G1:67532881>. 110 Ibid. 111 Quill, T. E. “The Ambiguity of Clinical Intentions.” The New England Journal of Medicine. Updated - 30 Sep. 1993. Retrieved - 9 May 2006 <http://content.nejm.org/cgi/content/full/329/14/1039>.

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such a situation, did not he?” Yes, that is correct, that was his wish, and he has made it because he has foreseen, that from the perspective of a “normal” human being, such backwards life has no meaning, and more than that, - it is suffering. I would disagree with that however, and argue that a non-terminally ill person with degraded mental capacity, is to be presumed willing to live, as does any nature's creation, and must be protected by the law. In my view, you cannot draw a parallel between, for example, an adult and a baby, - can one claim that the infant's life has no meaning as its mental abilities basically amount to nothing? Baby grows, develops and exercises cognitive faculties, ages and dies, - you surely cannot view someone's life as good-for-nothing only because its middle part is “defective,” cannot you?

To decide cases like this one, when there is a doubt about the validity of one's living will, and if even a patient has appointed an attorney to speak for himself, who might or might not be too busy with his life to be able or willing to consider the issue in all its wholeness, the same can be true about patient's physician, law must require that a commission of an independent experts is to be notified of such a case and after the close observation to give their verdict whether a non-terminally ill patient must be provided with treatment or not, and if necessary, by overriding surrogate's position on the treatment issue, as in cases like these it is always safe to err on the side of life. The same procedure must also be required for the decision of cases that feature the “Ulysses Clause,” as in my opinion it is wrong to provide in law, like the US state of Vermont did, that this clause is to be followed unquestionably, by reasoning that “[i]t's for people who realize they might get scared (when facing death) and change their mind, but don't want to be able to[.]” 112 Even demented people during their “lucid moments” 113 can change their views, and therefore, a patient, by saying that he does want a treatment to be administered, may really mean it, and thus he must not be denied the choice to change his mind, even if he has previously objected to be able to do precisely that, and agreed to the implications of his decision in presence of both his lawyer and medical advisor. The legal reasoning for not providing such a clause in law is, that the state is obliged to protect life and in cases of doubt, side of life must be taken, and I am certain that in such situations doubt

112 Zicconi, J. “New law gives Vermonters more power to plan end-of-life care.” Times Argus. Updated - 1 Sep. 2005. Retrieved - 24 May 2006 <http://www.timesargus.com/apps/pbcs.dll/article?AID=/20050901/NEWS/509010334/1003/NEW S02>. 113 Morris, C. “Communication Problems in Dementia.” Picks Disease Support Group. Updated not known. Retrieved - 14 May 2006 <http://www.pdsg.org.uk/Factsheets/communication.htm>.

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surely must be present there, - when a person is lying on a bed and begs for his life to be saved.

In regards to the durable power of attorney concept, and verbal instructions concerning one's medical care, I am strongly against that this type of the advance directive is to posses the same strength that the written living will has, as there always can be a room for skepticism if patient's attorney really communicates wishes of the one who gave that power of the guardianship to him, and especially on such question as the refusal of treatment. Therefore only the written living will must be followed unquestionably, exception being ambiguous circumstances as presented above, and in other cases, doctors must critically asses guardian's statements and if deemed defective, - refuse to follow them. And in fact, such are the rules of the several states in the US, where a clear and credible evidence of patient's preferences is required in addition to the attorney's verbal claims. 114 In Latvia, according to the Article 23 of the “Medical Treatment Law,” 115 it is being provided, that a patient has the right, in full or partly, to refuse medical treatment, attesting that decision with his signature. Therefore the law provides an effective living will legislation, which is in accord with the Article 9 of the “European Convention on Human Rights and Biomedicine,” Latvia has signed, which provides that “[t]he previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.” 116 There is no concept of the “durable power of attorney” in Latvian law, instead, the patient's family members and/or his guardian can make decisions in case a person is incapacitated (that will be discussed in chapter 2.2 of present paper).

Another issue with the living wills, is that for them to be really effective, a physician must know that such a document exists, and the document must be easily available to him, and that

114 Crane, M. K., Wittink, M., Doukas, D. J. “Respecting End-of-Life Treatment Preferences.” American Academy of Family Physicians. Updated - 1 Oct. 2005. Retrieved - 10 Apr. 2006 <http://www.aafp.org/afp/20051001/1263.html>. 115 “Ārstniecības likums.” Latvijas Likumi. Updated - 1 Jul. 1997. Retrieved - 17 May 2006 <http://www.likumi.lv/doc.php?id=44108>. 116 “Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine.” Council of Europe - Treaty Office. Updated - 4 Apr. 1997. Retrieved - 17 May 2006 <http://conventions.coe.int/Treaty/EN/Treaties/Html/164.htm>.

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can be of a challenge, as if you are a single or if your family cannot be readily available to be inquired whether you have a living will or not, how can a doctor be informed of your medical preferences? The solution is to create a computer database repository, which will store living wills in digital format and will readily provide them to physicians upon their request, and a doctor will know that you have a living will in that repository, because there will be a sticker on your driving license or some other document, where your registration number with the repository will be printed, thus providing the possibility for an immediate access to all the required information. 117

Indirect Euthanasia / Double Effect Doctrine The importance of the double effect is that this principle serves to be something of a milestone leading up to the VAE, while being morally permissible to the majority of people, at the same time. Double effect rule differs from the voluntary active euthanasia and PAS only on one count, here I am considering only the moral aspect of the issue without going into technical details, being, that in the case of the former, foreseen negative consequence (death) must not be intended, while in the later such intent is present. And here lies the critique and concern with the double effect doctrine, - there is a very delicate line between intending patient's death and foreseeing it. However, it must be noted, this concern is not directed at the doctrine as such, at its form, as it is a locked algorithm with no deviations being possible in it, by following which a physician helps his patient to relieve pain and suffering. Controversy comes into play only when the idea is being taken from the intellectual plane of existence to be applied in our imperfect and contradictory world, where it can be quite hard not to have any conflicting intentions, especially in an environment filled with misery and anguish. We are human beings after all, not robots without emotions.

The single moral value, which sets apart assisted suicide/VAE and the principle of double effect, can be argued not to be of the significant importance, - it does not matter whether bringing of patient's death is deliberate or not, because death is foreseen on both PAS/voluntary active euthanasia and double effect occasions, and in the case of Vacco v. Quill, prior to its standing in the US Supreme Court, the Circuit Court has held that double effect “commonly takes the form of putting a patient on an intravenous morphine drip, with

117 “Frequently Asked Questions (FAQ) About The U.S. Living Will Registry®.” U.S. Living Will Registry ®. Updated - not known. Retrieved - 16 May 2006 <http://www.uslivingwillregistry.com/faq.shtm>.

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full knowledge that, while such treatment will alleviate his pain, it will also indubitably hasten his death,” 118 and “[t]here can be no doubt, therefore, that the actual cause of the patient's death is the drug administered by the physician or by a person acting under his supervision or direction,” 119 and thus the argumentation on whether there is an intention to put a patient to death, or not, has no compelling backing here.

It can be imagined, that in an ideal set of conditions, where a physician can always act only in the best interests of his patient (implied - always pro-life), so as to there can never be even a doubt in that by administering medication with the double effect property he only pursues a positive aim, we can forget all about the issue of an intent. Though as this consideration can never take place beyond a reasonable doubt, I agree that the US Supreme Court in the case of Vacco v. Quill has decided to discern between “actions taken "because of" a given end from actions taken "in spite of" their unintended but foreseen consequences,” 120 to protect vulnerable members of society. Though this has affirmed the importance of the moral value that differentiates between the assisted suicide/voluntary active euthanasia and double effect, that does not address on how to deal with the issue of possible ambiguity of physician's true intentions or concealment of thereof, because a doctor, according to the Dr. Michael Irwin (as mentioned in chapter 1.7 of present thesis), will never admit that he has deliberately caused patient's death as a means to end his suffering.

In my view, there must be no gray areas in the practice of the double effect doctrine. Even if the VAE/NVAE is legal in the country, the practice of euthanasia and double effect must be kept apart nevertheless, so as for euthanasia not to fall out of the scrutiny of the required review, in order to protect the patients who can be taken of an advantage, by maliciously exploiting their problematic, and not always terminal, condition, and the doctrine must be revised and supplemented with additional safeguards specifically related to the medical area of applicability of the principle. One such safeguard can be, for the law to require that an independent expert is to review cases of individuals, who require administration of medication with the double effect characteristic, and if there would be a reason to believe that a patient is
118 “Compassion in Dying v. State of Washington.” Courtroom Television Network. Updated not known. Retrieved - 15 May 2006 <http://www.courttv.com/archive/legaldocs/rights/assist.html>. 119 Ibid. 120 “Vacco v. Quill, 117 S. Ct. 2293 (U.S. 1997).” Medical and Public Health Law Site. Updated 16 Oct. 2004. Retrieved - 24 Apr. 2006 <http://biotech.law.lsu.edu/cases/pro_lic/Vacco_v_Quill.htm>.

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treated improperly, he is to intervene into the matter. This review probably may be feasible for the more or less routine/regular pain killing medication injections, and not for emergency situations, but such a requirement is the safeguard nevertheless.

2.2. Non-voluntary end-of-life decisions
Non-Voluntary Passive Euthanasia As the voluntary passive euthanasia or refusal/withdrawal of an unwanted medical treatment is the universally acknowledged principle of patient's expression of his self-determination and privacy, the debatable issue with NVPE then, is boiled down to whether in spite of the unavailability of a direct communication with a patient, either verbal or by means of an advance directive, a decision to withdraw patient's artificial life support treatment can be made nevertheless, by reasoning that this is what a patient would have wanted if he were able to express that in person.

In first place it must be asked, why do we need, and how can we suppose, that a patient would not have wanted to receive crucial to him treatment, that sustains his very own life? In my belief, in the absence of a clear and direct evidence from a patient himself, when presenting that he would have opposed medical treatment, that he is being provided with in his current state, no one will ever attempt to substitute that claim for him if patient's medical condition can be alleviated, as that would be plainly wrong to do that. However, even if a patient's proxy were to claim that this is the case, I suppose that neither medical personnel nor a court would follow that assertion, as it would be an extremely bad public policy not to err on side of life here. It follows then, that a decision to withdraw a treatment from an incapacitated patient can only be made if patient's condition is beyond the relief and a futile one, when it can be clearly presented, that a medical intervention has become for that person a burden and is a groundless invasion of his privacy.

An argument can be put forward, that NVPE should not be legal as the vulnerable members of society might be exploited by means of that practice. However, even if it can be imagined, that a person with the malicious intent to get his hands on the inheritance has executed a perfect plan, due to which victim of his scheme is left in a PVS state with no prospect of recovery, and therefore a villain now presents a convincing evidence that his mark would not have wanted to remain in a vegetative state, that would still not constitute a valid opposition

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to not to permit NVPE in the absence of an advance directive. In my view this cannot be called a public safeguard, as the only thing that would be protected in such the case, is the inheritance from being grabbed by a criminal sooner rather than later. Prohibition of NVPE in this case does not achieve anything, as in either way a patient is in a hopeless condition from which he will never recover, and “the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.” 121 This can be opposed though, by arguing that as a patient in a PVS can express no interest in anything whatsoever, how it might be in his interest not to receive artificial life support?

This, in my view, can be resolved by the following rationale, - current issue is different from that one of the case with a “pleasantly demented” person (described in chapter 2.1), where though he can possibly be in no position to conceive and/or express his view on anything, including the question on whether the life is of any significance in his present condition or not, that demented person still exercises what little is there of a human mind, and we are after all humans and must be human (please excuse me for the repetitiveness) to him, but a patient in a PVS state is numb, his personality and everything that makes us human is gone (I am not saying that, therefore, we can be inhuman to him), and that condition cannot be alleviated, not with the current state of medical advancement at least it is possible for us to regenerate dead brain tissue (please see Annex 1). Therefore it is best for such a patient not to remain in a state of an unconscious biomass, and with the respect and humbleness, that patient should be let go.

In my perspective, for the reasons outlined above, it would make no sense to keep a patient in the permanent (as opposed to a “persistent”) vegetative state on an artificial life support. Apart from the reasoning that have been already mentioned, it is also unjustifiable to direct state's financial resources to a hopeless patient in the permanent vegetative state, as the cost of the ANH support can run in the vicinity of 3,000 US dollars per day (in the case of Latvia the figure is about 10 times lower), 122 and it would be much wiser, and even wrong to not to, direct financial attention to the ones who are alive, in the fullest sense of this meaning, and would really benefit from the treatment they need. This should not be viewed as an argument on its own, but rather as an additional consideration in light of the already presented
121 “Airedale N.H.S. Trust -v- Bland.” lawindexpro - Case Law. Updated - 18 Aug. 2002. Retrieved - 10 Apr. 2006 <http://www.swarb.co.uk/c/hl/1993airedale_bland.html>. 122 Lister, S. “Minister puts a price on the right to life.” Times Online. Updated - 19 May 2005. Retrieved - 16 May 2006 <http://www.timesonline.co.uk/article/0,,8122-1618268,00.html>.

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arguments, as otherwise it may seem like we should just abandon any patient in despair because his healthcare costs too much. Though it may sound cruel, this concerns only patients for whom there is absolutely no way out of their tragic condition. Such is the reality and sometimes we must make tough choices.

It must be noted, that though the “European Convention on Human Rights” under Article 2.1 provides that “[e]veryone's right to life shall be protected by law[, and n]o one shall be deprived of his life intentionally[,]” 123 a patient can still be switched off the ANH support and be allowed to die, as has been decided in the UK cases of NHS Trust A v M and NHS Trust B v H, where in year 2000 (after the UK has incorporated the “European Convention on Human Rights” into its domestic law, - the “Human Rights Act”), two women in a PVS state were released from their treatment with the consent of their families, by applying the principles of Anthony Bland case. 124 Here, judge Dame Elizabeth Butler-Sloss, reasoned that withdrawal of one's treatment is not the act of ending his life, as a person will die of natural causes, and there can be no duty on part of doctors to continue administration of treatment, if that is not in the patient's best interest. The judge also went to reason that the Article 3 of the Convention (Prohibition of torture), would not be breached either, as “[a]n insensate patient suffering from permanent vegetative state has no feelings and no comprehension of the treatment accorded to him or her.” 125 It can be supposed, that keeping a PVS patient on the artificial life support may be interpreted as to be even in breach of the Article 3, 126 however, for the same reasons the judge Dame Elizabeth Butler-Sloss has presented, this cannot be a valid reasoning, in my view, and though the Convention does not define what torture means here, I suppose it would be safe to detail it the way the “UN Convention against Torture” does, - “the term "torture" means any act by which severe pain or suffering, whether physical or mental, is

123 “Convention for the Protection of Human Rights and Fundamental Freedoms.” Council of Europe - Treaty Office. Updated - 1 Nov. 1998. Retrieved - 17 May 2006 <http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm>. 124 Dyer, C. “Judge confirms patients' right to die.” Guardian Newspapers Limited. Updated - 7 Oct. 2000. Retrieved - 18 May 2006 <http://www.guardian.co.uk/uk_news/story/0,,378849,00.html>. 125 “Substitute decision-making and advance directives in relation to medical treatment.” The Government of the Hong Kong Special Administrative Region of the People's Republic of China. Updated - Jul. 2004. Retrieved - 18 May 2006 <http://www.info.gov.hk/archive/consult/2004/decision-e.pdf>. p. 36 126 Samanta, J., Samanta, A. “In search of a good death: Human Rights Act 1998 imposes an obligation to facilitate a good death.” British Medical Journal. Updated - 26 Jul. 2003. Retrieved 18 May 2006 <http://bmj.bmjjournals.com/cgi/content/full/327/7408/225-a>.

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intentionally inflicted on a person[.]” 127

Concerning the defense from mistreatment of the vulnerable members of society, in light of Haleigh's Poutre case there is obviously a need to protect patients from the misdiagnosis, and therefore guidelines must developed for the treatment of a PVS patients and be regularly updated so as to reflect the latest advancements achieved in the medical world. Such guidelines, for instance, can be drawn from the “International Working Party Report On The Vegetative State,” 128 where it is presented, that depending on the severity of initially incurred damage, patients can emerge from a persistent vegetative state after the several years of suspension, and following that, might lead a more or less normal human life. In such the guidance drawn by the British Medical Association, for example, it is being provided that the “decisions to withdraw treatment should only be considered when the patient has been insentient for 12 months[,]” 129 while in the case of Haleigh, that was done just within nine days.

What is also beneficial to take in mind, is for the doctors, when reasoning on making a unilateral decision on withdrawing/withholding a treatment from a patient, by placing a DNR order on him in view that the treatment is medically pointless, is to be sensible to the patient's past and his guardian's present views, and consider, as some argue, “that a court could even determine that it is in a PVS patient’s ‘best interests’ to remain alive - notwithstanding the medical view that treatment was medically futile - if there was persuasive evidence that the patient valued being alive in whatever condition he or she would survive.” 130 Patient in a PVS state may have had a deep religious conviction, that, according to the Bible, he must endure all his hardships to the end and not to run away from them, and though in a PVS state one cannot go through any hardships, as the element of being able to experience them is missing and one's spirit which may suffer, is not legally nor scientifically recognized, and therefore that would not amount to one's exercise of the religious belief as protected by the Article 9 of
127 “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” Office of the United Nations High Commissioner for Human Rights. Updated - 10 Dec. 1984. Retrieved - 18 May 2006 <http://www.ohchr.org/english/law/cat.htm>. 128 “International Working Party Report On The Vegetative State - 1996.” Coma Recovery Association, Inc. Updated - 23 Dec. 2002. Retrieved - 19 May 2006 <http://www.comarecovery.org/artman/publish/ReportOnTheVegetativeState.shtml>. 129 “Treatment decisions for patients in persistent vegetative state.” British Medical Association. Updated - Jun. 1996. Retrieved - 19 May 2006 <http://www.bma.org.uk/ap.nsf/Content/pvs>. 130 Gevers, S. “Withdrawing Life Support from Patients in a Persistent Vegetative State: the Law in The Netherlands.” European Journal of Health Law (vol.12, no.4, 2005): 353.

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the European Convention on Human Rights, that would be still ethically and morally correct and of the benefit to a society as a whole, in my view, not to act against patient's guardian objections, if possible, not at least in a blunt way. Such objections must be reasonable however, meaning that if a patient will be resuscitated, that will not subject him to an even greater suffering, as has been determined to be the case with the 19-month-old boy, born with severe physical and mental disabilities, and later given the DNR order over objection of his parents, because the High Court has found that the boy's parents were overly optimistic about their son's prospects for a recovery, and “that it was likely that his condition would deteriorate rapidly and that further artificial ventilation would lead to a death that was "neither peaceful nor dignified".” 131

As in regards to the situation concerning NVPE in Latvia, to my knowledge, up until now there were no court cases disputing over a guardian's demand for a patient to be taken off the life support machine, or objecting to a DNR order.

Medical sector in Latvia is quite under funded, in comparison to the “western standard,” and probably not too many people even know that they can make the living will and/or to object to an unwanted medical treatment, as it is safer for doctors not to discuss that with their patients and just to do their duty, without being involved in anything that might present them a legal or professional headache. And that state of medicine in Latvia is reflected in the country's laws as well, which in the relation to an incompetent patient, are contradictory.

That contradiction occurs because of the clash of the two articles and an ambiguity within the one of them, - the Article 49 of the “Medical Treatment Law,” and the Article 25 of the “On Medical Practitioners” statute. The first law holds, that in the case when a delay threatens patient's life, and it is not possible to obtain the permission from patient's family and/or his guardian for a medical intervention, a doctor's conference is to decide on the needed medical treatment plan for such a patient, save for emergency situations when an immediate action is required. 132 The second provision in law, delivers that, if a patient, his family members or a guardian, voice their objection to a medical assistance, and as a result of such refusal it is possible that patient's health condition will deteriorate or that he will die, a doctor in such
131 “Disabled boy 'should die with dignity'.” BBC (British Broadcasting Corporation). Updated 12 Jul. 2000. Retrieved - 21 May 2006 <http://news.bbc.co.uk/2/hi/health/830346.stm>. 132 “Ārstniecības likums.” Latvijas Likumi. Updated - 1 Jul. 1997. Retrieved - 17 May 2006 <http://www.likumi.lv/doc.php?id=44108>.

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situation is obliged to make it clear for the objecting party what its refusal will result in, and to try to direct them to visit another medical practitioner. 133

It is clear that these two articles are contradictory, and the ambiguity inside the Article 49, is that it is not clear about what does the “not possible to obtain the permission” means, as it can be interpreted in two ways. Either it supposes, that a patient's family/guardian cannot be reached for their comment on medical treatment, or the statute can be viewed as providing doctors with the legal instrument to perform medical treatment over objection of patient's relatives/proxy.

I imagine, if there is to be a court case on the matter of withdrawing/withholding treatment from a patient, a court would view that the Article 49 would be seen as allowing doctors to act in opposition to the objections raised by a patient's guardian, as the principle of medical intervention is to care for the patients, and doctors are obliged to help people. And I suppose, that the Article itself would be viewed as not concerning the withdrawal of treatment, but its withholding, because there is the reference in the Article to an emergency situation. However, even if that can be interpreted to be so, and thus the clash between the article is resolved, that ambiguity serves no purpose in law, in my opinion, and the Article 49 must be amended to directly point out, that in the absence of the living will, in the emergency situations patient's guardian cannot object to a treatment. The Article 25 must be amended also, because currently it does not protect vulnerable members of society, as a withdrawal of patient's treatment may occur in a non-terminal medical situation, and there must be no such leeway provided in law.

Non-Voluntary Active Euthanasia Now, it has been discussed, that in certain cases and under satisfied conditions, it is permissible to withdraw/withhold life support treatment from a patient who's cognitive functions are not developed yet or are impaired, making a patient in no position to neither immediately consent nor to object to his medical sustenance, but can there be a justification to take the active steps in regards to an incompetent patient, that would bring his death?

In Latvia, and which I believe must be the universally accepted medical principle worldwide,
133 “Par prakses ārstiem.” Latvijas Likumi. Updated - 8 May 1997. Retrieved - 24 May 2006 <http://www.likumi.lv/doc.php?id=43338>.

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according to the “Doctor's Code of Ethics,” a doctor is ought to ease patient's suffering and to let him die in dignity, when the death is imminent. 134 This principle, I assume, would apply to such cases, for example, when due to the car accident a driver has a big open wound and it is evident that his critical internal organs are so severely damaged that even the emergency team cannot do much about preventing swift arrival of death. However, this standard surely does not give to physicians the right to take progressive action, to completely stop patient's suffering right in its tracks, so to say. “But why not?” - can be argued, “is it not cruel to see torn apart person in agony and not to help him to pass away peacefully?” It would be reasonable to say, in the context of Haleigh's case, that even an “evidently” futile medical condition might turn out to be not so hopeless after all, and therefore one must not judge a situation hastily and pick an easiest solution available, leaving a vulnerable person unprotected from the misjudged outside influence.

That has been the reasoning for the above mentioned road accident case, - the emergency situation with a lot of movement in its atmosphere, metaphorically speaking. What would be the reasoning, however, not to take active death bringing steps in a relatively slow-paced stationary condition and in regards to a severely impaired infants, like in the cases of Kadijk and Prins (touched upon in chapter 1.2 of the present thesis), where there exists a body of the medical evidence, that babies with such defects have no prospect for their future recovery they live in pain and will die in the matter of months, and where there is all the time that is needed to unmistakably confirm a futile medical condition? What would be the difference between the DNR order, coupled with the administration of pain killing drugs, and the active euthanasia?

In my view, in the cases where there is a conclusive evidence, that a patient will soon die and that all the time prior to his death, he will suffer, there is no legal or moral consideration, if there are no objections from patient's/family's/guardian's side, not to allow active steps to be taken, that would put a patient at rest. The only reasonable objection that can be presented here, is the slippery slope argument (which will be touched upon again later in this text), - that by allowing a certain conduct, the practice will be broadened, not by the legal framework, but by the human mind, as can be seen to be the case with the double effect doctrine.

134 “Latvijas Ārstu Ētikas Kodekss.” Medicina.lv. Updated - 9 Oct. 1998. Retrieved - 22 May 2006 <http://www.medicina.lv/lat/second4.php?page=zakoni&page=zakoni&P1=4>.

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Involuntary Euthanasia As concerning involuntary euthanasia practice, there is not much that can be said about it, in my opinion, except the words of condemnation and that no one must be murdered that way, by covering this criminal conduct with a perceptibly credible cause. And in my opinion it would be morally perverted to execute IVE even in the following hypothetical cases:

“A soldier has [his] stomach blown open by a shell burst. [He is] in great pain and screaming in agony. [He] beg[s] the army doctor to save [his] life. The doctor knows that [he] will die in ten minutes whatever happens. As he has no painkilling drugs with him he decides to spare the soldier further pain and shoots him dead.

A person is seen at a 10th floor window of a burning building. [His] clothes are on fire and fire brigade has not yet arrived. The person is screaming for help. A passer by nearby realises that within seconds the person will suffer an agonising death from burns. He has a rifle with him and shoots the screaming person dead.

A man and a woman are fleeing from a horde of alien monsters notorious for torturing human beings that they capture. They fall into a pit dug to catch them. As the monsters lower their tentacles into the pit to drag the man out he begs the woman to do something to save him. She shoots him, and then kills herself.” 135

2.3. Should we have a conscious right to die?
Physician-assisted suicide When I have just started to work on this thesis paper, I wanted to present one's sentient decision to die, as a human right, because I have thought that I must be allowed to do anything with my life as I please, - it is my sovereign right to kill myself if I want to, especially if the reason for that is meaningful enough. Though this is correct that my life is my own and I can commit a suicide, if that would be my wish, public officials however, must exercise extreme caution in aiding someone's death, so as to preserve well-being and order of society, because when my sovereign right is exercised in a vacuum, so to say, without anyone's else involvement, there is no possibility for an improper conduct towards me, but when there is an intersection with a third party, my sovereignty is no more pure, and the door for a possible misconduct opens up. Thus, as the work has progressed and I gained broader perspective on the issues of life and death presented in this work, my view now is, that one's
135 “Examples of Involuntary Euthanasia.” BBC (British Broadcasting Corporation). Updated not known. Retrieved - 30 May 2006 <http://www.bbc.co.uk/religion/ethics/euthanasia/euth_invol_exs.shtml>.

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determination to die, because of certain complicated circumstances, must not be given a human right status, but should rather be an exception to the “right to life” principle. The reason I have changed my standpoint is because during my research I have discovered, that certain people who were assisted in their suicide, were determined and helped to die because of, in my view, clearly uncompelling reasons, and it is up to the government to protect its citizens in such cases. These uncompelling considerations are the ones which purely or partly amount to the person's psychological suffering, which may or may not, be coupled with a non-terminal medical condition.

Mental suffering alone, like in the case of Chabot (p. 12 of this paper), must never be grounds for one's suicide, and especially the suicide assisted by a medical practitioner, which in my conviction, is a gross negligence and unprofessionalism to help someone die because of a supposedly unbearable psychological suffering, resulting from an aimless living and unwillingness to reconsider own life. In my mind, the case of Chabot lucidly shows in action the fears of anti-PAS/VAE argumentators:

that doctors will not do their best to help patients and opt for a quick resolution of a problem, which is not only morally depraved, but that effectively stalls doctor's personal professional growth and hinders advancement in the area of patient's care as a whole, therefore amounting to exactly the opposite of what a doctor must strive to, as according to the Latvian “Doctor's Code of Ethics,” and I am sure most other's countries code's of ethics as well. For instance, the code of ethics as laid out by the American Medical Association provides, that “[a] physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education[;]”136

the Chabot's case also shows, that the vulnerable members of society, such as elderly people, may be directly or indirectly pressured to end their lives, because of the heartless actions or ignorance of their children, with whom they live, for example;

thus the trust in medical profession will crumble, and it is possible that not only there will be no improvement in the medicine, but that the public health sector will even deteriorate.

Though, for me at least, it is hard to imagine that anything like that may happen on a substantial scale, unless people will fall so heavily on their morals so as to plunge into something comparable to the times of the Nazi rule, and thus, while applying only to the one's who should not be working in the medical sphere in the first place, these are still valid
136 “Principles of medical ethics.” American Medical Association. Updated - 17 Jun. 2001. Retrieved - 23 May 2006 <http://www.ama-assn.org/ama/pub/category/2512.html>.

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arguments, when looking at them through the lens of Chabot's case.

Albeit I am not a medical professional and cannot judge for all the possible cases of mental pain, and perhaps there exists a number of valid instances where a punishing mental distress results from the medical complication related to the human brain, but to assist a depressed person's death, even if it is a severe chronic depression, is plain wrong. Psychological pain in the absence of a physical brain damage/abnormality cannot be incurable, and in fact, medical professionals “are coming to believe that psychological factors play a crucial role in perpetuating many physical illnesses[,]” 137 and therefore by your own thinking you either aggravate your condition or not. 138 In turn, one's thinking is certainly influenced by the surrounding environment and whether one is being active in his life or not, 139 and it is interesting to note, that according to the “Eighth Annual Report on Oregon’s Death with Dignity Act,” persons who were never married or are divorced, are more likely to opt for PAS in comparison to the one's who are married or widowed. 140 This suggests, that a person who has no one close and intimate to turn to for comfort and empowerment in difficult times, if even in memories (in case of a widow(er)), has less strength to fight for his life till the end. That is also substantiated by the finding, that patients who request PAS can be characterized as independent and self-sufficient people who do not wish to rely on others, and can even be ashamed about that, as seen from the following sketch, - “[i]t was embarrassing for him [to be reliant,] in terms of his tough, macho, partly Native-American image and as head of the household, and he has always been the leadership, and in charge.” 141 If that can be the case with one's family, then what can be said about patient's physician, who can be a complete stranger to him, and there cannot be even a hint for the hand-giving relationship? Therefore it is evident, that there is a strong need for the medical personnel on all levels of the system, to
137 Schorr, M. “Is It All in My Head?” Psychology Today Magazine. Updated - 20 Jul. 2005. Retrieved - 23 May 2006 <http://www.psychologytoday.com/articles/pto-20050503-000002.html>. 138 Moore, N. D. “Pain that is relieved by placebo is not therefore unreal.” British Medical Journal. Updated - 1 Jan. 2005. Retrieved - 23 May 2006 <http://bmj.bmjjournals.com/cgi/content/full/330/7481/45-c>. 139 Ansorge, R. “Cognitive Factors Affect Acceptance of Chronic Pain.” Mental Help Net. Updated - 8 May 2006. Retrieved - 23 May 2006 <http://mentalhelp.net/poc/view_doc.php?type=news&id=93568>. 140 “Eighth Annual Report on Oregon’s Death with Dignity Act.” Official Web Site for the State of Oregon. Updated - 9 Mar. 2006. Retrieved - 23 May 2006 <http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf>. p. 12 141 Ganzini, L., Dobscha, K. S., Heintz, T. S., Press, N. “Oregon Physicians’ Perceptions of Patients Who Request Assisted Suicide and Their Families.” Death with Dignity National Center. Updated - 25 Sep. 2002. Retrieved - 25 May 2006 <http://www.deathwithdignity.org/documents/Oregon%20Physicians.doc>. p. 7

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provide their patients with encouragement to aspire to live and to promote that cause in every possible way.

It has been just suggested that the reasons to choose PAS are largely psychological, and according to the “Eighth Annual Report on Oregon’s Death with Dignity Act,” most stated reasons for assisted suicide comprise of not being able to take part in activities making one's life enjoyable, loosing dignity and autonomy. 142 These are all, arguably, intangible considerations for choosing PAS, being of the nature of a hopelessness and depression as seen in the Chabot's case. And while a professional, open and compassionate approach to these issues can lead for a patient to abandon the idea of resorting to PAS, 143 in my view, PAS can be seen even as a sort of psychological support tool. That is so, because a patient will die anyway of natural causes, and even if he would never go through all the PAS process till the end, and complete it, it is still a “great reassurance to know that [a lethal medication] is available in case [he] require[s] it.”144 A patient, therefore, has a peace of mind, as he knows that when his pain will become to be too terrible to take it any longer, - he is in the control of the situation and he will have the means to end his torment.

In regards, as to why provide PAS only to the terminally ill people, and to counter the argument, that “if it is cruel to force someone to go on living who will die shortly anyway, it would seem to be even more cruel to force someone to endure suffering for a longer period[,]” 145 I would say that the exception to the “right to life” is provided precisely because a terminally ill person will soon die, and that there's nothing that can stop his condition from being deteriorated, while in other cases, a condition perhaps may not always be curable, but at least it can be certainly controllable, and it would be wrong not to treat such people in the best possible way, and to let them die instead. So such “discrimination” is justified on grounds of public policy and the need to provide protection from malicious exploitation to the vulnerable
142 “Eighth Annual Report on Oregon’s Death with Dignity Act.” Official Web Site for the State of Oregon. Updated - 9 Mar. 2006. Retrieved - 23 May 2006 <http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf>. p. 14 143 Bascom, P. B., Tolle, S. W. “Responding to Requests for Physician-Assisted Suicide.” Journal of the American Medical Association. Updated - 3 Jul. 2002. Retrieved - 19 Apr. 2006 <http://jama.ama-assn.org/cgi/content/full/288/1/91>. 144 “Lords Hansard text for 12 May 2006 (60512-01).” The United Kingdom Parliament. Updated - 12 May 2006. Retrieved - 28 May 2006 <http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds06/text/60512-01.htm>. 145 Steinbock, B. “The case for physician assisted suicide: not (yet) proven.” Journal of Medical Ethics. Updated - 29 Jan. 2004. Retrieved - 10 Apr. 2006 <http://jme.bmjjournals.com/cgi/content/full/31/4/235>.

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persons.

Therefore there must be no exception to the “right to life” for cases where one's physical health is not threatened by a terminal condition, and thus I find that there is a need for the Dutch end-of-life legislation admissibility requirements (p.22 of this paper) to be amended, as to be more specific and restrictive.

Voluntary active euthanasia The turn has now come for the final part of the discussion, - the VAE practice, which technically differs from the PAS only in that the lethal agent, here, is administered not by a patient himself but by a physician. “And why is there the need for a physician to be able to administer a lethal drug by his own hands, is PAS not good enough already?” - can be asked. To answer that, - it has previously been discussed for the NVPE practice, that a severely deformed newborns might benefit from the active assistance, and even not all competent persons have the possibility to administer a lethal medication personally, the Diane's Pretty case being the good example of that kind of situation. Also, the Dutch research shows that sometimes PAS attempts have failed and the doctors have stepped in to the process to perform VAE. 146 Complications for the three of the patients during PAS process, were also reported by the Oregonian authorities for the year 2005, 147 and such difficulties have been declared to take place in the three previous years as well. And another point in the favor of VAE, that is being made by Mr. Minelli of “Dignitas” 148 and another Swiss right-to-die group “EXIT,” 149 is that by legalizing VAE, a patient who is contemplating about his death by the means of PAS (active euthanasia is considered to be illegal in this case), in certain situations will actually live longer, as he would not need to be dying in a hurry out of the concern, that as his motor functions become increasingly weaker, so as he would not be able to administer a lethal agent himself, there is the reason for him to
146 Keown, J. “Euthanasia, Ethics and Public Policy: An Argument against Legalisation”, 2002, p. 34 147 “Eighth Annual Report on Oregon’s Death with Dignity Act.” Official Web Site for the State of Oregon. Updated - 9 Mar. 2006. Retrieved - 23 May 2006 <http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf>. p. 13-14 148 “A date with death.” Times Online. Updated - 16 Apr. 2006. Retrieved - 4 May 2006 <http://www.timesonline.co.uk/printFriendly/0,,1-531-2121731-531,00.html>. 149 Sobel, J. “Outline of the campaign to decriminalise active euthanasia in Switzerland.” Association EXIT. Updated - 5 Apr. 2004. Retrieved - 17 Apr. 2006 <http://www.exitgeneve.ch/Exitldepangl.pdf>. p. 3

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die “in advance,” although the person knows that it is not the time yet for him.

When it comes to the critique of the permission for a person's to be able to choose the timing of his own death, the strongest argumentation against euthanasia and PAS, is the “slippery slope” criticism, in which all the other non-religious objections have their roots, I believe. That has been the concern half a century ago, and it is still true today, - the real opposition to these end-of-life practices is grounded in the “consequentialist” 150 reasoning.

However, if we are to look at the statistics of PAS/euthanasia provided by the state of Oregon and the Netherlands, it can be concluded that the number of people who are put to rest by these practices, does not sway significantly. The number of people who have died as the result of PAS in the Oregon are presented in the table below, and in terms of comparing the figure for the year 2005 to the total number of deaths of that year, it would amount to about 0.12%: 151 1998 16 1999 27 2000 27 2001 21 2002 38 2003 42 2004 37 2005 38

For the Netherlands, the officially reported figures for the deaths due to the both assisted suicide and euthanasia are presented below, and if we are to view the year 2001 figure in terms of the percentage to the total number of deaths, - these end-of-life practices would make up about 1.46%: 152,153,154 2000 2123 2001 2054 2002 1882 2003 1815 2004 1886 2005 1933

150 Steinbock, B. “The case for physician assisted suicide: not (yet) proven.” Journal of Medical Ethics. Updated - 29 Jan. 2004. Retrieved - 10 Apr. 2006 <http://jme.bmjjournals.com/cgi/content/full/31/4/235>. 151 “Eighth Annual Report on Oregon’s Death with Dignity Act.” Official Web Site for the State of Oregon. Updated - 9 Mar. 2006. Retrieved - 23 May 2006 <http://www.oregon.gov/DHS/ph/pas/docs/year8.pdf>. p. 4, 11 152 “Jaarverslag 2003 (nieuw venster).” Regionale toetsingscommissies euthanasie (Regional review commissions for euthanasia). Updated - May 2004. Retrieved - 31 May 2006 <http://www.toetsingscommissieseuthanasie.nl/Images/jv%202003_tcm9-1077.pdf>. p. 11 153 “Jaarverslag 2005 (nieuw venster).” Regionale toetsingscommissies euthanasie (Regional review commissions for euthanasia). Updated - Apr. 2006. Retrieved - 31 May 2006 <http://www.toetsingscommissieseuthanasie.nl/Images/jaarverslagRTE2005_tcm9-1973.pdf>. p. 11 154 Onwuteaka-Philipsen, B. D., Heide, A., Koper, D., Keij-Deerenberg, I., Rietjens, J. A. C., Rurup, M. L., Vrakking, A. M., Georges, J. J., Muller, M. T., Wal, G., Maas, P. J. “Euthanasia and other end-of-life decisions in the Netherlands in 1990, 1995, and 2001.” The Lancet. Updated - 17 Jun. 2003. Retrieved - 23 May 2006 <http://image.thelancet.com/extras/03art3297web.pdf>. p. 2

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In my view, these figures are convincing in terms that over the years they have remained more or less the same, and there is no slide increase in the practices so as to suggest that they are being broadened by means of a corrupt human reasoning, and that the society would come to accept it.

It also must be noted, that as is the case with Oregon, in the Netherlands too, the reason to opt for one's life to be ended by euthanasia/PAS is not purely because of one's extreme pain, but mostly due to the deterioration. That strong trend, - the diminishing significance of pain, as being the reason to not to wait for the death due to a natural causes, and the growing concern of one's deterioration, is being traced from the 1970s. 155 Therefore it is evident, that though the ever advancing medical technology can alleviate one's pain, it cannot lift one's declining spirit. Recent surveys of the British medical practitioners, 156 show that the majority of them are against the legalization of PAS/VAE, but these practices however, as has already been mentioned, still make up about 0.5% of all deaths in the country, which is something of the middle ground between the 0.12% as in the case of Oregon and 1.46% being the case with the Netherlands. Looking at these numbers, I do not see how the UK, or Latvia (for which there is no underground PAS/VAE statistics though, but where these practices do take place) can only but to benefit from the legalization of assisted suicide and active euthanasia, because by doing so, not only the end-of-life practices can be reviewed and perfected, meaning that the vulnerable persons will be protected, but also the patients who were not fortunate enough to stumble upon a physician who would help them to pass away peacefully, will now have that opportunity. The important concern is also, - “[j]ust how autonomous [the] requests for VAE” 157 can be? Perhaps it may be difficult to be sure, if an ill senior patient wants to end his life just not to be
155 Marquet, R. L., Bartelds, A., Visser, G. J., Spreeuwenberg, P., Peters, L. “Twenty five years of requests for euthanasia and physician assisted suicide in Dutch general practice: trend analysis.” British Medical Journal. Updated - 26 Jul. 2003. Retrieved - 30 May 2006 <http://bmj.bmjjournals.com/cgi/content/full/327/7408/201>. 156 “Doctors in revolt over legalising euthanasia.” Times Online. Updated - 10 May 2006. Retrieved - 30 May 2006 <http://www.timesonline.co.uk/article/0,,8122-2173618_1,00.html>. 157 Keown, J. “Euthanasia, Ethics and Public Policy: An Argument against Legalisation”, 2002, p. 56

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of a burden to his children, or if he is even pressured by them to do so. For such reasons, - to protect the vulnerable member of society, I believe that the Dutch legislation on euthanasia and assisted suicide must be amended, and other countries, if they are to consider legalizing these practices, should model their laws on the basis of the Oregonian “Death With Dignity Act.”

What I consider to be wrong with the legislation of the Netherlands, is that just about anyone who is suffering in some way (the Chabot's case), may be assisted in suicide or euthanized. While I believe, that largely, only the people who can be seen as qualified for the PAS under the Oregonian rules, do receive access to PAS/VAE in the Netherlands, cancer being the stated reason for the 1713 out of the 1933 deaths in the year 2005, 158 the law must be changed nevertheless, so as to prevent cases of the likeness of the Chabot ever happening. Only terminally ill people must be allowed to use PAS/VAE practices, and there are no compelling reasons so as to permit people with other types of illnesses to be allowed to die, at least that is so from my personal viewpoint, as so far, I have had an experience to witness only the terminal illness.

Conclusion
The purpose of medical profession has been and always will be, to care for the sick and dying. However, “[o]ne of the achievements of modern medicine is the creation of chronic illness[,]” 159 in the sense that in certain situation and to a certain extent it is now possible to perpetuate person's seriously difficult state of health, of which a patient may not even have a possibility to be aware of. But we have not only made advancements in the medical care and technology, - we have also progressed in our outlook on life, which I believe, has been deepened and made more profound. We have moved away from the traditional definition of life, that views the heartbeat as the only required condition for the person to be considered alive, - we now hold one's consciousness as that what is important, and that what makes us to be able to experience life. Would there be any benefit to the patient, if his heart is just to pump his body's blood for many years, till his death, without the patient actually participating

158 “Jaarverslag 2005 (nieuw venster).” Regionale toetsingscommissies euthanasie (Regional review commissions for euthanasia). Updated - Apr. 2006. Retrieved - 31 May 2006 <http://www.toetsingscommissieseuthanasie.nl/Images/jaarverslagRTE2005_tcm9-1973.pdf>. p. 11 159 Loewy, E. H., Loewy, R. S. “The Ethics of Terminal Care: Orchestrating the End of Life”, 2002, p. 2

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in the life, - the activities of the mind? Not for me, at least.

In certain cases, to brake free from the situation where doctors can bring no cure to a hopeless condition of a patient, the obvious, but tough choice, is to release that person from the medical care and perhaps to even aid him in the active way.

If we will apply and follow the holistic approach to the personal health, support of which is ever increasing in the world, and which holds that the person is not the sum of an individual parts, but rather the interconnected whole, where the physical part affect the psychological and vice versa, - the “good death” might not necessarily come as a result of the assisted suicide or euthanasia.

The palliative care, however, must not be imposed as the only one solution for the prevention of patient's suffering. I believe, that it is possible to effectively regulate in law, all the valid end-of-life tools, and that being the case, the state is ought to provide these instrument to the one's who need them.

In the western part of the world, the dominant religion is Christianity, and the followers of this religion are predominantly against the intentional ending of person's life, even if in a passive way, because only the God must be giver and the taker of person's life. We live in the multicultural world however, where everyone is entitled to his own views, and the end-of-life statutes do not interfere with the “sanctity of life” belief.

What I believe in, is that everyone's death should happen in a peaceful manner and in a dignified way. And if that is to be achieved by the carefully regulated process of assisted suicide or euthanasia, I see these practices as an important means for the caring of a person.

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Annex 1
Terri Schiavo's Computed Tomography (CT) Scan

Image on the left: scan of normal 25-year-old's brain. Image on the right: Terri Schiavo's CT scan in year 2002 at age of 38 (after 12 years of sensory deprivation). The bright dot is an electrode that was implanted as experimental treatment in 1990, in an attempt to stimulate brain function. 160 The black area is a spinal fluid that occupies the space of cerebral cortex. 161 Cerebral cortex has the following functions: it determines intelligence and personality, interprets sensory impulses, is responsible for motor function, touch sensation and planning/organization. 162

160 “Terri Schiavo.” Wikipedia, The Free Encyclopedia. Updated - 24 Apr. 2006. Retrieved - 27 Apr. 2006 <http://en.wikipedia.org/w/index.php?title=Terri_Schiavo&oldid=49862911>. 161 “Terri Schiavo's husband allows her family to visit.” CNN News. Updated - 23 Oct. 2003. Retrieved - 18 May 2006 <http://www.cnn.com/2003/LAW/10/22/coma.woman/>. 162 “Anatomy of the Brain - Cerebral Cortex.” About, Inc. Updated - not known. Retrieved - 19 May 2006 <http://biology.about.com/library/organs/brain/blcortex.htm>.

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