Should euthanasia be legalized in Sri Lanka in exceptional situations?

Extracts from a lecture by Senior Professor of Forensic Medicine and Toxicology, University of Colombo, Prof. Ravindra Fernando delivered at the recently held National Law Conference

The termination of life decision represents one of the most difficult issues that physicians face worldwide because of its medical, legal, ethical and moral circumstances.

Euthanasia is a Greek word meaning "good death" and refers to the practice of intentionally ending a life. Euthanasia is generally understood as "termination of life by a doctor at the request of a patient".
Professor Heather Draper, Professor of Biomedical Ethics at the Centre for Biomedical Ethics, University of Birmingham, UK, has stated that any definition of euthanasia must incorporate four elements: an agent and a subject; an intention; a casual proximity, such that the actions of the agent lead to the outcome; and an outcome.

She defined euthanasia as “a death resulting from the intention of one person to kill another person, using the most gentle and painless means possible, that is motivated solely by the best interests of the person who dies.”

The House of Lords Select Committee on Medical Ethics in the United Kingdom defined euthanasia as "a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering".

It is believed that euthanasia has been practised by physicians secretly in many parts of the world.
Euthanasia was practised in Ancient Greece and Rome. Hemlock was employed as a means of hastening death on the island of Kea, a technique also employed in Marseilles and by Socrates in Athens. Euthanasia to hasten a person's death was supported by Socrates, Plato and Seneca the Elder in the ancient world.

Hippocrates spoke against the practice, writing, "I will not prescribe a deadly drug to please someone, nor give advice that may cause his death." Euthanasia can be divided into several categories.
Euthanasia conducted with the consent of the patient is termed voluntary euthanasia. It can be active or passive.

In active euthanasia a lethal substance or substances are used to end the life of a terminally ill patient.
Passive euthanasia is withholding of common treatments, such as antibiotics or intravenous fluids, necessary for the continuance of life.

Euthanasia conducted where the consent of the patient is unavailable is termed non-voluntary euthanasia. A review of the legal situation in the world shows that euthanasia and physician-assisted suicide (PAS) are legal in the Netherlands since 2001.In Belgium, euthanasia and PAS are legal since 2002 and in Luxembourg since 2008. In Switzerland euthanasia is illegal but assisted suicide is legal since January 1, 1942.

In Japan, in 1995, the District Court in Yokahama found Dr. Tokunaga guilty of murdering a terminally ill cancer patient who was expected to die within a few days. He received a two-year suspended prison term.

The court then listed four conditions under which euthanasia killing would be permitted in Japan. They are,

  • The patient is suffering from unbearable physical pain.
  • Death is inevitable and imminent.
  • All possible measures have been taken to eliminate the pain with no other treatment left open.
  • The patient has clearly expressed his or her will to approve the shortening of his or her life.

Passive voluntary euthanasia is legal throughout the United States of America (USA) after the case of Cruzan v. Director, Missouri Department of Health.

In January 1983, Nancy Cruzan lost control of her car. She was thrown from it and landed face down in a water-filled ditch. Paramedics found no vital signs but resuscitated her. She was in a coma and was diagnosed as being in a persistent vegetative state (PVS). After four years her husband and parents accepted that there was no hope and seven years after the accident they went to the Supreme Court requesting to terminate her life.

Pic courtesy fischecll.wordpress .com

The issue of this case was whether the State of Missouri had the right to require "clear and convincing evidence" in order for the Cruzans to remove her life support. In a 5-4 decision, the Court found in favour of the Missouri Dept. of Health.

However, it upheld the legal standard that competent persons are able to exercise the right to refuse medical treatment under the Due Process Clause. Because there was no "clear and convincing evidence" of what Nancy Cruzan wanted, the Court upheld the state's policy of keeping her alive.

After the case was decided the family went back and found more proof that Nancy would have wanted her life support terminated and eventually won a court order to have her removed from life support. She died 11 days later on December 26, 1990, 13 years after the accident.

In the USA, PAS is legal in the state of Oregon, since 1998, in the state of Washington since 2009 and in the state of Montana since 2009. The European Association of Palliative Care (EPAC) Ethics Task Force has stated that, "Medicalized killing of a person without the person's consent, whether nonvoluntary (where the person in unable to consent) or involuntary (against the person's will) is not euthanasia: it is murder.”

Example of non-voluntary euthanasia, include child euthanasia, which is illegal worldwide but decriminalised under certain specific circumstances in the Netherlands under the Groningen Protocol. This protocol was prepared after extensive consultation between physicians, lawyers, parents and the Prosecution Office. It describes procedures and guidelines how to actively end the life of infants.
Termination of a child's life (under age 12) is acceptable if the following requirements are fulfilled:

  • The presence of hopeless and unbearable suffering
  • The consent of the parents to termination of life
  • Medical consultation having taken place
  • Careful execution of the termination

Doctors who end the life of a baby must report the death to the local medical examiner, who in turn reports it to both the district attorney and to a review committee.

In Australia, a bill was passed in 1990 in the Northern Territory to enable physicians to practise voluntary euthanasia. Subsequent to the Act's proclamation in 1996, there was a series of legal challenges from opponents of voluntary euthanasia and in 1997 the Australian National Parliament overturned the legislation and prohibited Australian Territories (the Australian Capital Territory and the Northern Territory) from enacting legislation to permit euthanasia.

In India, the Shanbaug case has changed India's approach to euthanasia. In 1973, Aruna Shanbaug was discovered in the basement of the Mumbai's King Edward Memorial Hospital with an iron chain around her neck, 11 hours after she had been sodomized by a ward boy. The chain used to strangle her had cut off the supply of oxygen to her brain. The damage was irreversible.

She has not walked or spoken a word in 37 years and she has not left the hospital where she was once a bright capable nurse.

A petition for euthanasia was filed for Ms Shanbaug by Pinky Virani, a journalist who has written a book on the woman who she says is being forced to live her life stripped of basic dignity. The Supreme Court in March 2011 ruled that euthanasia was not a permissible option for Ms Shanbaug. "We have no indication of Aruna Shanbaug's views or wishes," the judges said. The judge who saw a CD of Ms Shanbaug said, "She is certainly not brain-dead. She expresses her likes or dislike with sounds and movements. She smiles when given her favourite food...she gets disturbed when many people enter her room and calms down when touched gently."

The verdict of this case allowed passive euthanasia depending on the circumstances. Indians can now argue in court for the right to withhold medical treatment - take a patient off a ventilator, for example, in the case of an irreversible coma. The judgement made it clear that passive euthanasia will "only be allowed in cases where the person is in persistent vegetative state or terminally ill."

In each case, the relevant high court will evaluate the merits of the case, and refer the case to a medical board before deciding on whether passive euthanasia can apply. And till Parliament introduces new laws on euthanasia, it is Ms Shanbaug's case that is to be used as a point of reference by other courts.
The Nazi version of "euthanasia" was based on the work of Adolf Jost, who published the book The Right to Death. He argued that control over the death of the individual must ultimately belong to the state. This concept is in direct opposition to the Anglo-American concept of euthanasia, which emphasizes the individual's 'right to die' or 'right to death' or 'right to his or her own death.'

Sometimes the distinction between killing and letting a person die is unclear. For example, consider the case of a patient suffering from motor neurone disease who is completely respirator dependent. He finds his condition intolerable, and competently and persistently requests to be removed from the respirator so that he may die. What should the doctors do?

Proponents of euthanasia have presented four main arguments. Firstly, they argue that people have a right to self-determination, and thus should be allowed to choose their own fate. Secondly, assisting a subject to die might be a better choice than requiring that they continue to suffer. Thirdly, the distinction between passive euthanasia, which is often permitted, and active euthanasia, is unreasonable or unsound, and fourthly permitting euthanasia will not necessarily lead to unacceptable consequences.
Therefore, they contend that if a person is suffering from a terminal illness and as a direct result of the illness, either suffering intolerable pain, or only has a life that is unacceptably burdensome, and has a voluntary and competent wish to die but is unable without assistance to commit suicide, then there should be legal and medical provision to enable her to be allowed to die or assisted to die.

The advantages of this is that there will be a painless death which relieves the patient from pain and suffering, speedy termination of physical and emotional suffering, saves family's money, eliminates the need to spend money on expensive surgery, medicine and life-support.

They argue that “patients have a right to make their own decisions to preserve free choice and human dignity: this right includes the right to choose assisted suicide”.

Those who are against euthanasia argue that,

  • if a person seeks to end his/her life by active euthanasia, then he/she intrinsically contradicts the value of his/her autonomy,
  • active euthanasia violates the fundamental prohibition against killing, except in the case of self-defence or defence of others,
  • there would be a general reduction of respect for human life if official barriers to killing are removed,
  • if made a public policy, active euthanasia could lead to involuntary euthanasia, and,
  • active euthanasia would undermine the integrity of medicine and the patient-physician relationship.

Advocates against euthanasia conclude that there must be better palliative care for those who suffer tremendously and for the terminally ill, rather than to actively terminate their lives. Alternatives, such as cessation of active treatment, combined with the use of effective pain relief should be available.

Those who are against active euthanasia understand that there is a demand for active euthanasia, as a response "to the fear of entrapment in a technologically sophisticated, seemingly uncaring world of medicine...”

They argue that euthanasia devalues human life and in the long run euthanasia can become a means of health care cost containment. Legalising euthanasia will place society on a slippery slope, which will lead to unacceptable consequences.

It is true that some terminally ill patients suffer from uncontrollable pain and no longer wish to have their lives artificially prolonged by expensive, painful, or debilitating treatments and would rather die quietly. For them, it would be most beneficial for the doctors to offer some kind of permanent solution to the pain and prolonged life as they may not wish to commit suicide themselves or maybe physically incapable of doing so.

Therefore, should Sri Lanka legalize euthanasia in exceptional circumstances?

First we have to decide what the exceptional circumstances are. There should be severe uncontrollable pain in a terminally ill patient who has no hope of cure or recovery. He should be able to give consent or have given consent for euthanasia.

If these criteria are fulfilled there should be a clear protocol to follow. Ideally, the procedure to be followed should be comparable to terminating ventilator support in a brain dead patient. For example, two doctors on separate occasions should examine the patient and determine that there is no hope of recovery from the terminal painful condition.

They should obtain informed consent for euthanasia in the presence of a relative or an independent witness. The doctors should then decide to terminate the life in a humane manner. The death may be referred for an inquest. We should take adequate precautions to prevent family physicians like Dr. Harold Shipman, or pathologists like Jack Kevorkian practising euthanasia in Sri Lanka.

We should be careful not to lower the standards of terminal care. Dr Els Borst, the former Health Minister and Deputy Prime Minister who guided the euthanasia law through the Dutch parliament recently admitted that medical care for the terminally-ill had declined since the law came into effect.

After studying the legal changes and case law in other countries, an Act of Parliament is necessary to practise euthanasia in Sri Lanka. In a country where even a simple amendment to the abortion laws enacted in 1883 is not possible even after 128 years, it will not be an easy task to facilitate euthanasia legally.

The question is not whether euthanasia should be legalized in exceptional circumstances but will it ever be legalized in Sri Lanka.

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