Euthanasia from a Secular, Christian and Legal Perspective

//Euthanasia from a Secular, Christian and Legal Perspective

Euthanasia from a Secular, Christian and Legal Perspective

A comprehensive walk-through the legal and ethical implications of  Euthanasia written by solicitor, Roddy Tyrrell, Masters of Science (Healthcare Ethics and Law) and publisher of Lawyer.ie.

1. Introduction

This paper examines ethical issues on Euthanasia from a secular and Christian perspective in particular the views of the leading influential ethicists in Bioethics and the teachings of the Roman Catholic Church. It broadly maps the legal position in European and Common law jurisdictions where the law has evolved with a particular focus on the present law in Ireland.

It concludes that the secular view is centered mainly on two ideas – autonomy and differences of moral values of the human person and that the parameters of these ideas leads to a wide diversion as to what is morally acceptable.

It finds that the Christian position is also based on these two principles however they are limited by the   notion that autonomy is a gift not exercisable at the end of life which is only a matter for the donor God and that each life because it is owned by God is of equal value.

It concludes that after a rapid advance to the acceptance of involuntary medically assisted   suicide the legal position has begun to retrenched to a more conservative position of a   personnel only exercise of autonomy in end of life decisions which is the currant position  in Ireland.

Euthanasia is defined loosely as mercy killing in Collins Dictionary. Although most people believe it is a relatively new concept, the idea of mercy killing can be traced back to ancient Greek where it literally means “good death”.

The Catholic Church in Evangelium Vitae give a more narrow definition as “an act or omission which of itself   and by intention causes death, with the purpose of eliminating all suffering”. Mullet, Sorum and Teisseyre (2005) in a broader definition define euthanasia as the active ending of another person’s life to prevent that person’s continued suffering and indignity.   This is also known as active euthanasia.

Differences lie between passive euthanasia where “letting nature takes its course” includes omitting intervention which would take  care of the clinical problem; and active euthanasia which is a deliberate taking of life by “active” intervention.

There is also a difference between voluntary euthanasia, which  occurs when the competent adult patient requests it, and involuntary euthanasia when the health professional administers a lethal intervention to the patient who does not have the ability to express or make a decision.

Dubois 2005 states medically assisted suicide occurs when a physician provides a medical means of death, usually a prescription for a lethal amount of poison, that the patient takes on his or her own. The doctor does not  directly administer these means but makes them available to the patient knowing that the patient intends to use those means to cause his or her own death.

Kuhse and Singer state the notion of Advance Directives which will allow a competent person direct how   treatment should or should not be given in the event they become incompetent and Living wills which would allow a proxy make the decisions if incompetent .

However Robinson in “Euthanasia” who defines suicide “as an act or an instance of killing oneself intentionally” goes on to say that the terminological move to define  euthanasia as assisted suicide serves to obscure important differences in the issues raised.

We can conclude that Euthanasia has no precise definition and with the exception of non   voluntary euthanasia can broadly mean the ending of ones life by choice by ones own  action or inaction or the action or inaction of another on consent

 

2. Literature review

Jonathan Glover rejects the view that all human life is sacred and is absolutely   valuable. He proposed the concept of a “life worth living” and proposed that killing is   only morally wrong when it destroys a “life worth living” and examples a suffering   terminally ill patient asking his doctor to kill him and where a patient has irreversibly lost all consciousness persistent vegetative state (PSV)

James Rachels suggests that there is no moral difference between taking an action to   kill a person and omitting to take action to save a patient’s life on the basis that deciding   not to do an action is in fact an action. He suggests that once one makes the moral choice   to euthanize it might be more morally sound to be active in bringing about a swift end.

Grises and Boyle echoing the view in the Declaration on Euthanasia hold that the   distinction between active and passive euthanasia is the agent’s intention. It is morally   wrong when death is intended by an action or inaction. However, when death is a   consequence of an action or omission which itself is morally sound, then that death is   morally permissible. They argue that whether by action or inaction death occurs, if it’s   the agent’s intention, then it is morally wrong.

Winston Nesbitt puts forward the view that killing and letting die are not morally   equivalent because a doctors who is prepared to kill is a greater threat to society than a   person who is only prepared to let die. That doctors would tend to be more proactive in   killing. On that basis he suggests that killing is worse than letting die.

Helga Kuhse suggests in “Why killing is not always worse” that the distinction   between killing and letting die is only relevant where the agent may make a personal   gain, however, where the benefit is to the patient in a death, then there is no moral   difference between them. She goes further in “ A Modern Myth “ and states that begging   the difference between killing and letting die or what she calls the “Moral Difference   Myth” should be abandoned and that the debate should centre on when it is morally   permissible to kill either actively or passively.

Neil Campbell paper “ When Care Cannot Cure “ suggests that doctors will hold or   withdraw treatment and bring about death for infants suffering from serious disability in   the belief that it is in the patient’s best interest to do so. The distinction here is “ best   interest”.

R. M. Hare in “The Abnormal Child “ broadens the best interest test and asks that all   parties interests be taken into account when deciding if one should treat or not treat the   seriously disabled child. In particular the “next child in the Queue” as being the decider   between killing and not killing.

Alison Davis herself, disabled, rejects in “ Right To Life Of The Handicapped “ the   notion that disability be a deciding factor or that new born infants are not persons of full human value.

Singer suggests that by accepting the “Brain Death” definition of the “ Ad Hoc Committee of the Harvard Medical School in 1968 “ which has become the accepted   definition of death we are engaging in a “ convenient fiction “ because it permits the  withdrawal of medical treatment for body part harvesting where further treatment and is   of no benefit to the patient. In doing so we have abandoned the “Sanctity of Life”   argument and adds support to his argument that human life is not of equal value.

Dworkin raises the question on the value that should be placed on Advance Directive   and suggests that the past interest of the competent person may not be the same as the   present interest of that same person now in competent and cites the case of the “happy” Alzheimer’s patient who had earlier decided her life should be ended should she   become incompetent however he argues that the “precedence of autonomy” dictates that   the competent person autonomous choice in controlling her life should take precedence   over any future interest that she may have as an incompetent person.

Rebecca Dresser argues that to maintain this “precedence of autonomy” there should be   a link between the competent and incompetent person or “psychological continuity”   exhibited in shared memories, intentions, beliefs, desires etc. If these links are weak or   absent, than the incompetent person is a different person that the original competent   person and as a different person can not be the subject of the advance directive.

Seneca thought it better to end his own life not because of pain itself but if that pain was   to be always endured it would become a hindrance to all the” reason for living” and one   needed courage

Chris Hill in “The Note” gives this as the reason when he kills himself because the   “reasons for living” are no longer possible because he is paralysed from the chest down  and his doctor, George Quittner later comments in “ Some thoughts on the life and death of Chris Hill” that his unpleasant death was because assisting him would be deemed   wrong because of the “ sanctity of life principle”

Callahan D argues that it is not “medicine’s place to determine when lives are not worth living or when the burden of life is too great to be borne” Medicine should try to relieve   human suffering, but only that suffering which is brought on by illness and dying as   biological phenomena not that suffering which comes from anguish or despair at the   human condition”.

Pieter Admiral disagrees and states that doctors have a duty to ensure the well being of   patients and respect their autonomy. He argues that the provision of voluntary euthanasia  is a doctor’s role.

B and C argue that the involvement of a doctor in assisting in suicide is a “ slippery   slope” to direct killing, which they say is never morally sound, in that it makes taking that   next step more acceptable`

We can conclude from the literature that the secular view is centered mainly on two principles – autonomy and the differences of value of the human person either one’s moral intrinsic value or one’s quality of life and that the varying parameters of these  principles leads to a wide diversion as to what is morally acceptable.

Variations from  Kant’s view that suicide is never acceptable because ones autonomy dictates that one must   choose life as a higher moral end over pain as a lesser moral goal to Admirals view of   the “precedence of autonomy” empowers a doctor to kill a patient to Hares view that the   lack of availability of resources and quality of life would permit the killing of   handicapped infants and such a notion as disability being a deciding factor being rejected  by Alision Davis.

3(a) The Christian position generally

Engelhardt and Iltis view that for Christians, the moral issues about withholding or withdrawing treatment or provision of terminal sedation can be fully considered only within the spiritual goal of eternal salvation.

Christian moral prohibitions flow from a  belief in a way of living and dying that involves a decision to turn away from self and focus on others and God which will bring ultimate union with God.

An adequate account of Christian end-of-life decisions is also complicated by the ambiguity of the term  Christian, which encompasses a cluster of religious groups sharing at best family resemblances. These groups differ both in foundational theology and in matters of bioethics bearing on end-of-life decisions End-of-life decisions provoke a great deal of controversies within Protestant theologies, opinions range widely, and often less attention is paid in cases of passive euthanasia to the concern never directly to intend death, than Roman Catholics.

The absence of unanimity between Protestants about euthanasia is increasing. Much controversy also exists about the appropriateness of withdrawing hydration and nutrition at the end of life and for people in a persistent vegetative state. At stake is whether such treatment is limited to avoid the spiritual harms or whether   undertaken with the intention to cause death.

3(b) The Christian Position – Roman Catholic Church

The traditional catholic position is stated in the Declaration on Euthanasia, which advances the position of the Catholic Church and states that all human life regardless of   its quality has sanctity and can never be deliberately destroyed.

However, it makes a moral distinction between directly killing a person and allowing a person to die by not   preventing a death,that is killing and letting die or active and passive euthanasia. It does not impose an absolute duty to prevent death.

The main pillars of the Catholic Church (CC) that support its prohibition on Euthanasia and Suicide is its belief;

(1) in an objective moral law which is derived by reason from the   natural law which because of our god given ability to reason and discover it is in fact   Gods law and that law provides a prohibition on killing innocent human beings

(2)that we   stewards and not owners of our life, the true owner being God, and although we have   freewill to live we must live within the parameters of Gods law

(3) that every human   being has full value and becomes a person from the moment of creation regardless of   ability and is therefore entitled as a matter of justices to be treated equally

(4) that every   human life is valuable because each is made in Gods image and therefore has an unique worth over other life forms

(5) that suffering has a purpose in that it can become a means of affirming the existence of a higher truth that of the suffering of Jesus was a   redemptive act for the failings of humanity and which opens the blocked way to eternal life of and a means of solidarity with others who are not suffering.

However these beliefs do not place an absolute value on life and oblige us to prolong it at all costs. Pope John Paul recognizes in Evangelium Vitae that we all have to die and that futile treatment that postpones the inevitable may interfere with a dieing persons chance to make peace with God and impose excessive burdens on the dying.

It also recognises that a dying person’s desire to live out the last remaining days in comfort as a reasonable   alternative to invasive futile treatment…. “to forego extraordinary or disproportionate   means is not the equivalent of suicide or euthanasia”.

Robinson concludes that the notion of a comfortable death does not extend to intentionally causing death by pain control drugs but it is possible to administer such drugs knowing that they will hasten death provided that the intention is to relive pain and not kill although death may be foreseeable as a consequence. This is permissible by the doctrine of double effect.

It is a precondition of these exceptions that the patient remains able to be reconciled with God. However the CC in the Declaration on Euthanasia  permits in rare cases of “terminal anguish” a patient to be kept comatose by sedation until  death.

4(a) Legal Position generally

During the past four decades, the Netherlands played a leading role in the debate about euthanasia and assisted suicide. In 1984 the Dutch court accepted in the Schoonheim case(N.J.1985,106) that euthanasia could be legal in some circumstances.

A provisional legal arrangement via Regional Review Committees was followed by a euthanasia law in 2002 The Termination of life on Request and assisted Suicide (Review Procedures)Act.

Whereas this law covers traditional euthanasia cases only, that is, euthanasia on competent persons suffering from a medically classifiable disease, Boer states some recent expert reports advocate more far reaching options, such as euthanasia on infants and euthanasia on elderly persons.

Mills notes that some commentators have seen the reduction in euthanasia cases since the Act as an argument against “the slippery slope “ doctrine, he is of the view that it may be due to underreporting of deaths or the advances in palliative care.

Smith however urges caution in reviewing the empirical data and is skeptical that the data supports either side in the argument. So far, only the American state of Oregon in 1997 with the Death with Dignity Act and Belgium in 2002 with the Euthanasia Act have followed suit. In Switzerland, assisted suicide has been possible since 1941 because of a lacuna in the law and in 2001 the Swiss National Council confirmed the assisted suicide law but kept the prohibition of voluntary euthanasia.

Other attempts to legalize euthanasia have failed. The Australian Northern Territories’ euthanasia law in 1996 was overruled in 1997, and the Assisted Dying for the Terminally Ill Bill in Great Britain was rejected in 2006.

The legalisation of euthanasia in the US state of Oregon, and in both the Netherlands and Belgium has meant that certain types of medical life-ending behaviors, when certain criteria are met, are no longer a matter for the criminal justice system and regulatory authority is delegated to review bodies their composition and remit differ between the three jurisdictions.

The first jurisdiction to legalize life-ending behavior by physicians at a patient’s explicit and considered request was Australia’s Northern Territory, but the experiment proved to be short-lived. The Commonwealth of Australia’s General Assembly swiftly moved to overturn the Northern Territory’s Rights of the Terminally Ill Act, which was in operation for less than a year in the last decade, and currently defunct.

Although the criteria under which euthanasia is allowed are different between the three jurisdictions, what they have in common is that:

  • such conduct should be a voluntary matter for both physician and patient;
  • that all acts of euthanasia should be notified to a relevant body;
  • that the legal framework only applies to certain types of patients in certain medical conditions;
  • that all patient requests to have medical life-ending behavior performed upon them are considered, informed and repeatedly made;
  • and that the life-ending behavior is performed with due care and attention.

Any act of life-ending behavior that falls outside of this falls back into the criminal justice system. High penalties tend to apply to those who abuse or violate the law, such as coercing patients or by falsifying documents whereas murder charges can be brought against physicians or anybody else who do not act within the legal framework.

Pakes suggests that “formulating and enforcing such laws is a tight rope-type of exercise which might help explain why, globally, euthanasia laws are so few and far between”.

All current euthanasia or assisted-suicide acts decriminalize certain life-ending behaviors, performed by medical doctors further to a patient’s explicit and considered request. The two classes of conduct that the laws seek to legalize, depending on circumstances, are either active voluntary euthanasia, or medically-assisted suicide, or both.

It is important to note that all require a second medical opinion and in Belgium, in certain circumstances a further psychiatric opinion is also required before a doctor can engage in any life-ending conduct.

The Northern Territory Rights of the Terminally Ill Act 1995(NT) when in operation required a third opinion. The Oregon Death with Dignity Act is limited in its provision as it exclusively legalizes physician-assisted suicide.

The Dutch Act however allows for both physician-assisted suicide and active voluntary euthanasia.

The balance of the historically Christian democratic world with the exception of Hungry has removed any criminal sanctions for suicide where they were in place but with the exception of the four jurisdictions mentioned no further advances have been made to legalize euthanasia.

It can be concluded that some countries responded quickly to make laws for the changing liberal moral view which accepted medically assisted suicide but was not taken up by most western countries and indeed retrenched in Australia.

Euthanasia map

 

4 (b) Legal Position in Ireland

In Ireland the Criminal Law(Suicide) Act 1993 decriminalised suicide but provides for the criminalisation of assisted suicide at Section 2(2).

When death is imminent there is no legal obligation to engage in futile treatment as in the case of fruitless resuscitation of a patient who has suffered cardiac arrest when a doctor has formed a reasonable clinical judgement that treatment would be against the  “best interest” of the patient (re. a ward of Court No 2 1996 2IR 70 p.100)(re aWard)

However, in Airendale NHS Trust v Bland (1993) AC789 p.865(Bland) a distinction is  made between withdrawing and withholding treatment. In that case the Court prevented the withdrawing of treatment. The issue is not so clear where a patient is not  (a) clinically dead or (b) where death is not imminent but has not hope of recovery and where the patient cannot communicate their wishes or where a patient expresses a wish to be allowed to die without intervention

In Fitzpatrick– v – K and Anor (Irish Times Reports May 5 2008) ( K), Mr. Justice Laffoy stated the position with regards to Competent Patients. “If as a competent adult the   patient refused to accept treatment, the clinician’s duty to provide such treatment is  discharged”.

Mills has noted that in previous cases there is a recognised “right to choose to die” in Irish Law and its not necessary that death is imminent or the patient is facing a condition with no hope of recovery.

Laffoy in the same case also stated that when a patient who lacks capacity to consent, the “duty of the clinician to advise and provide the appropriate treatment remains”. However, as stated the law does not require a physician to engage in futile treatment merely to postpone death.

The Supreme Court. in re a Ward laid down what it called guidelines for the   withdrawal of treatment for patient in or near Permanent Vegetative State (P.V.S).

1. Treatment decisions should be in the first instance be taken by the patient’s family   in the light of medical opinions.

2. Feeding by nasogastric tube and by gastrostomy was artificial and a form of   treatment.   3. Decisions to withdraw treatment and allow to die are on the basis of the   “best interests” of the patient taking into account the views of the family.

4. The Court if consulted with decide on the basis of a “prudent, good and loving parent”.

The Court further ruled that the “ right to life” includes the “right to die peacefully and naturally” and not to have ones life prolonged by abnormally artificial means which have no curative effect.

Laffoy’s judgment would also appear to have confirmed the use of advance directives being taken into account when she noted that “ K. did not have the advance Directive Card (normally carried by Jehovah Witnesses) to assist medical personnel in making  decisions when capacity is impaired”.

The Court however limited this right to die to patients;

(1) who are effectively insensate

(2) who have no prospects of recovery

(3) are being kept alive by “artificial” means and

(4) it is in the patient’s “best interest” to be allowed to die.

Mills notes that this case upheld the Doctrine of the Patient’s autonomy with respect to consent or to withholding treatment as the patient deems fit but as to withdrawing treatment such action requires the criteria above and of course if a patient meets them he would not be competent and the “best interest” test applies.

It was explicit in firmly stating that it was opposed to euthanasia to deal with “the old and  infirm, the mentally defective and the physically infirm”.

It is therefore clear that it may be possible to withdraw artificial life-sustaining treatment in limited circumstances however, it is never possible to take an explicit step even if requested to by the patient with the intention of killing a patient.

The Doctrine of Double effect is an exception to acting to shorten a patient’s life and Mills notes that it is possible to give pain relief even if it shortens life provided the intention is to relieve pain and not shorten life and provided the pain relief is stopped when enough medication has been given.

In relation to Advance Directives both Mills and Madden are if a view that an advance statement made and containing no directives, that were in themselves unlawful would be acceptable to an Irish Court on the basis of the “Ward” case which favoured personal autonomy.

The comment of Laffoy in the “ K “case would also appear to have confirmed the use of advance directives being taken into account when she noted that K. did not  have the advance directive card (normally carried by Jehovah Witnesses) to assist medical personnel in making decisions when capacity is impaired “.The overriding  proviso being that the patient had full capacity at the time of making of the directive and the directive was clear and its instructions.

Ireland therefore has steered a middle course and has adopted the position of the majority   in accepting the patients right to self determination in ending life and forbids direct action   or assistance to bring death about. It allows indirect action that can result in death where the intention is not to kill.

5. Conclusion

The secular moral view supporting Euthanasia is based on two pillars – firstly autonomy on which it has a common agreement on as a primary deciding factor but with different  views on its extent and secondly the worth of a human being but it also has wildly divergent views on that value of a human being.

The argument from self-determination is that it is up to each individual based on their own subjective moral criteria to decide when to die by their own hand or by the hand of another.

The argument from the worth of a human being consists of two forms one that unless life is of sufficient quality (to be determined by a subjective decision) then it is not worth preserving and two on the basis that human beings have value based on personhood which can be diminished, if one lacks self-consciousness ,the ability to reason or form relationships and therefore have no absolute right to life.

It finds that the Christian position is also broadly based on autonomy and human value however they are limited by the notion that autonomy is a gift from God not exercisable  at the end of life and which is only a matter for the donor God and that each life because it is owned by God is of unique value.

The broad Christen churches are at odds with one another on specific issues on how these values are applied in practice.

The Catholic Church has however declared that autonomy must be exercised within its objective   natural law framework to be morally sound. It has developed a solution to unbearable suffering by the doctrine of double effect and futility of invasive life prolonging treatment by an acceptance of the inevitability of death.

The law in Ireland has moved from the traditional prohibitive view of the Catholic Church in relation to suicide and euthanasia to a position of complete self-determination in the matter of one’s own death an with the possible acceptance of Advance Directives has moved to the position of the majority of countries with a Christian history in their makeup.

These countries in the main have however maintained a rejection of third party assistance in the intentional death of another and in those countries that have allowed assisted death it is tightly regulated or has abandoned or not been commenced where it was under consideration.

It is reasonable to conclude that the law in Ireland reflects the optimum position in that as  respect to oneself one is free to determine when life ends according to ones beliefs.   However it follows the Christian tradition by forbidding assisted suicide. Given that laws  are made as a political act of government and at least in democratic countries are a reflection of the will of the people one can surmise that the consensus of the people is to follow Christian morality when it comes to people other than ones self.

 

REFERENCES

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About the Author:

Roddy has over 20 years’ experience in private legal practice. He has also lectured in University College Dublin and the Law Society. He holds an MA in Healthcare Ethics & Law from the Royal College of Surgeons of Ireland. >> View full profile here