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Prominent academic calls to legalise non-voluntary passive euthanasia in SL

28 Sep 2021

  • Aims to uphold the right to dignified death of the terminally ill and prevent illegal/unethical malpractices
By Ruwan Laknath Jayakody In order to prevent any illegal and unethical practice of euthanasia, a proposal has been made for the consideration of the legalisation of non-voluntary passive euthanasia in Sri Lanka. This suggestion was made by M. Vidanapathirana (attached to the Sri Jayewardenepura University’s Medical Sciences Faculty’s Forensic Medicine Department, and who is also the incumbent National Child Protection Authority Chairman) in a paper presented on “Non-voluntary passive euthanasia should be legalised in Sri Lanka” which was published in the Medico-Legal Journal of Sri Lanka 5 (1) in December 2017. Background Euthanasia is a medically, ethically, legally, and socially controversial issue the world over. Euthanasia or a “good death” as the Greeks would have it or “mercy killing” as H. Kuhse and elsewhere V. Gajic’s “Euthanasia through history and religion” explained, is the practice of intentionally ending the life of another in order to and for the sake of relieving pain and suffering in the latter. Therefore, Vidanapathirana noted, to justify such acts and circumstances, the ethical principles of the right to die and the right to terminate life are applied. Euthanasia is practised at different stages of life, where according to Vidanapathirana; i) at the beginning of life, it is practised in circumstances such as locked twins, where one child is killed by the obstetrician to facilitate the delivery of the other, whereas ii) during life, it is practised among the terminally ill (patients with no hope of recovery and are either fully conscious or deeply comatose) or patients with incurable illnesses such as disseminated malignancy (patients who are not terminally ill but have no hope of recovery), and iii) at the end of life, in order to achieve a death with dignity. The classification of euthanasia depends on two factors,the consent of the patient and the involvement of the physician. When the consent of the patient is considered, it is classified into three categories; as voluntary euthanasia, non-voluntary euthanasia, and involuntary euthanasia. Voluntary euthanasia is when the patient knowingly declares the wish to end their life or especially requests through a “living will” made prior to the development of the illness or by way of an “advanced directive” made during the course of the illness, that their life be terminated. Non-voluntary euthanasia or “suicide by proxy” or “mercy killing” is when the patient leaves the decision making capacity with a physician or a relation by proxy (if there is no proxy, the relatives and physicians can obtain a court order to the effect), based on a request by the patient to take a decision on their behalf. The physician or relation or relation by proxy will in this scenario, directly or indirectly, end the patient’s life, as they believe that it is in the patient’s best interest. This is also practiced in instances where the patient is unable to express any view on the matter, such as in the case of patients who are in a permanent vegetative state. Involuntary euthanasia on the other hand, is performed against the will of the patient, where the physician takes an arbitrary decision to terminate the patient’s life without a personal or proxy-based invitation. Therefore, as R. Whiting pointed out in A Natural Right to Die: Twenty-Three Centuries of Debate, it amounts to homicide. When the physician’s involvement is considered, it is classified into two categories as active euthanasia and passive euthanasia. Active euthanasia is when the death is brought about by an act of commission on the part of the physician (such as when the physician injects potassium chloride or a double effect drug like a high dose of morphine, where both pain relief and respiratory suppression occur), where it is the physician who determines the date and time of death. This is however deemed both unlawful and unethical. Passive euthanasia is when the death is brought about by an act of omission on the part of the physician (like the cessation of naso-gastric feeds, nursing care, etc.). Voluntary euthanasia Regarding voluntary euthanasia, there is both voluntary passive euthanasia (the patient voluntarily refuses treatment or food and fluids) and voluntary active euthanasia (illegal). Voluntary passive euthanasia, does not, as per “Voluntary refusal of food and fluids: Attitudes of Oregon hospice nurses and social workers” by T.A. Harvath, L.L. Miller, E. Goy, A. Jackson, M. Delorit, and L. Ganzini, amounts to homicide, as an adult patient of sound mind has the right to refuse treatment at the time of the illness or in advance, by way of a living will or advance directive. Voluntary passive euthanasia also includes physician-assisted suicide, where the physician supplies information or the means of committing suicide (the physician supplies, as noted by J.F. McDougall and M. Gorman’s Contemporary World Issues: Euthanasia, a prescription for a lethal dose of sleeping pills). In this regard, some are of the belief that patients of sound mind have the liberty and right to end their lives by adopting methods of all manner that do not involve physicians but Y.T. Yang and F.A. Curlin’s “Why physicians should oppose assisted suicide” noted that the principle of the right to die is a reward for the patient to utilise the right to have the help of a physician to kill themselves. It is legal in Switzerland, Germany, Japan, Albania, and certain states in the United States. The United Kingdom Suicide Act of 1961 states that the legal system can allow a maximum punishment of a term of 14 years of imprisonment for anyone who assists in suicide. The “EXIT” which is the Scottish branch of the former British Voluntary Euthanasia Society published the “How to Die with Dignity” guidelines in 1980, on physician-assisted suicide. McDougall and Gorman query as to why British politicians are forcing their citizens who are in the most terrible circumstances and are determined to end their suffering in a manner of their own choosing, to leave their country to travel to Switzerland to exercise their free will. On the matter of physician-assisted suicide, American pathologist Dr. Jack Kevorkian or “Dr. Death”, on the basis of “dying is not a crime”, publicly campaigned for the terminally ill patient’s right to die by way of physician-assisted suicide. Vidanapathirana claimed that in the case of physician-assisted suicide, the physician should play a passive role instead of an active one as when they play an active role, it turns into voluntary active euthanasia, which due to its illegal and unethical nature can lead to criminal proceedings being instituted against them (in 1999, Dr. Kevorkian was arrested and tried for his direct or active role in a case of voluntary euthanasia and convicted of second degree murder and served eight years of a prison sentence). Non-voluntary euthanasia Non-voluntary euthanasia is classified into two categories as non-voluntary passive euthanasia (where the treatment is withdrawn by proxy consent or a court order, the latter seen in the case of Anthony David Tony Bland who suffered from severe brain damage and was in a persistent vegetative state for four years, and the hospital where he was at, with his parents support, applied and obtained a court order to die with dignity through the withdrawal of long prolonging treatment) and non-voluntary active euthanasia (illegal except in the Netherlands, Belgium, Luxemburg, and Switzerland where infants with conditions such as severe hydrocephalus – an abnormal build up of fluid in the ventricles/cavities deep within the brain – can be subjected to the practice if the parents and doctors decide that this is the best option for the child and in agreement between the physicians and district attorneys in the case of infants). Making an extended justification of such, Vidanapathirana pointed out that medical paternalism (a set of medical attitudes and practices in which a physician determines that a patient’s wishes or choices should not be honoured, which are characterised by a paternalistic attitude, surrogate decision making, and a lack of respect for the patient’s autonomy, undertaken with the intention of benefiting the patient, although this is not always the case) is less in the case of non-voluntary passive euthanasia. This is because, he noted, it is done on the basis of the patient’s written proxy consent with the proxy not being directly related to ending life as it pertains to the capacity to make the decision if incapacitated. In the event a prior proxy is unavailable, the relatives and the physicians can obtain a court order to stop medical management in the best interest of the patient so that they may die with a modicum of dignity. R. Shukla noted in “Passive euthanasia in India: A critique” that it was legalised in India (in 2011, when the Supreme Court legalised non-voluntary passive euthanasia via the withdrawal of life support to patients in a permanent vegetative state), in Albania, Hungary. and most parts of the US. Involuntary euthanasia is divided into two categories, involuntary passive euthanasia (non-treatment of a treatable condition by leaving “do not resuscitate [DNR]” orders) and involuntary active euthanasia. Both forms are illegal and unethical and are tantamount to homicide. With regard to involuntary active euthanasia, in 2008, Shirley Justins and Caren Jennings were found guilty of manslaughter for providing a lethal dose of medicine to Graeme Wylie in 2006, even though Justins claimed that Wylie wanted to die with dignity, as the prosecution argument that won the day noted that Wylie did not have the mental capacity to make the crucial decision to end his life. However, even though in 2005, a nurse in Tasmania was sentenced to two and a half years in prison for assisting in the death of her elderly father who had terminal cancer, the judge subsequently suspended the conviction as he believed that the community did not want the woman in question to be jailed. Conclusion In Sri Lanka, none of the methods of euthanasia, be they active or passive, can be practised. Posing the question of why euthanasia should be legalised in Sri Lanka, Vidanapathirana whilst emphasising that physician-assisted suicide should not be legalised, further emphasised that euthanasia, specifically non-voluntary passive euthanasia, should be legalised so as to uphold the rights of the terminally ill patients to die with dignity and to prevent physicians misuse of euthanasia and the performance of illegal and unethical malpractices such as DNR orders (physician orders not to resuscitate if the patient goes into cardiac arrest) and the making of false judgements that lives are of no value, thus resorting to medical paternalism (D.V. Chao, N.Y. Chan, and W.Y. Chan's “Euthanasia revisited”).


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