Assisted suicide - global trends

Dr. Ruwantissa Abeyratne

MEDICAL TECHNOLOGIES: The practice of assisted suicide is steeped in ancient tradition and lore and is by no means a modern phenomenon. History records that, in ancient Greece, the government made available hemlock to those who requested it.

William Shakespeare memorialized the enduring Roman practice in Julius Caesar by depicting Brutus running into the sword held by Strato. In ancient times, assisted suicide was frequently seen as a way to proclaim one’s honour and preserve it for posterity.

However, times have changed, particularly over the past twenty-five years, where the practice has been viewed as a corollary to the progress of modern medicine. New and often expensive medical technologies have been developed that prolong life.

However, the technologies also prolong the dying processes, leading some to question whether modern medicine is counter productive in offering patients the choice to live in unnecessary pain when there is no chance they will be cured.

Passive euthanasia-disconnecting a respirator or removing a feeding tube-has become an accepted solution to this dilemma. Active euthanasia-perhaps an overdose of pills or a deadly injection of morphine-remains controversial.

Assisted suicide is most widely defined as a type of active euthanasia in which a doctor provides the means of death-usually by prescribing a lethal dose of drugs-but the patient is responsible for performing the final act.

In the modern world, one’s natural inclination is to instinctively feel that suicide and assisted suicide are personal, constituting individual acts of freedom and free will, in turn leading one to the assumption that there are no legal prohibitions.

This misconception has caused many to be confronted with the law, particularly on the count of assisted suicide which remains a crime almost everywhere. In some nations, laws applicable to assisted suicide are specific and clear as to the punitive consequences of the act.

However, there are nations which are unclear as to whether assisted suicide constitutes a crime. Be that as it may, it is incontrovertible that even if a country has not defined its criminal code on this specific action it does not necessarily mean that all those who assist in suicides will go free.

European countries provide an interesting backdrop against which the nature of assisted suicide can be determined as a jurisprudential consideration. For example, Sweden has no law specifically proscribing assisted suicide, although there is seemingly nothing to preclude a prosecutor from charging a person who assists in a suicide, with manslaughter.

This has happened in the past, as in 1979, where a Swedish right-to-die proponent was sentenced to prison for a year for helping a man afflicted with multiple sclerosis end his life. Norway, on the other hand, enforces criminal sanctions against assisted suicide by applying the charge “accessory to murder”.

However, the Norwegian adjudicatory process has shown leniency in cases where consent is given and the reasons for assisting a suicide are compassionate, prompting the courts to hand down lighter sentences.

The legislative instruments of Finland contain nothing in their criminal law on assisted suicide. This often leads to a degree of leniency being exercised when a person who assists in a suicides informs the law enforcement authorities of his act of assistance in helping someone dying, and the act is overlooked provided the action was justified. Mostly it takes place among friends, who act discreetly.

There have been no known cases of Finnish doctors practicing assisted suicide or euthanasia and it will be interesting to see the approach the Finnish judiciary might take in such an instance.

It is recorded that Germany has had no penalty for either suicide or assisted suicide since 1751, and it rarely happens due particularly to powerful, contemporary, church influences.

In 2000 a German appeal court cleared a Swiss clergyman of charges of assisted suicide simply because there was no such offence in the German statute books. However the court convicted him of bringing drugs into the country, but there was no imprisonment involved.

The legislature of France does contain a specific law prohibiting assisted suicide, although it has been contended that such a case could be prosecuted under 223-6 of the Penal Code for failure to assist a person in danger. Convictions are rare and punishments minor.

The media reports that France bans all publications that advise on suicide. The book Final Exit has been banned in France since l991 but many question the practical effect of the Order. It is worthy of note that, since 1995, there has been much contention in France as to the recognition of assisted suicide as worthy of punitive sanction and some believe that this debate might end in eventual law reform

Similar to France, Denmark has no specific law banning assisted suicide. However, the act is legally prohibited in Italy. Again, it is reported that pro-euthanasia activists in Turin and Rome are pressing hard for law reform.

In Luxembourg, assisted suicide is not forbidden on the premise that suicide itself is not a crime under the laws of the State. Nevertheless, like in France, it may be argued that under 410-1 of its Penal Code a person could be penalized for failing to assist a person in danger. In March 2003 a vote taken in the legislature advocating euthanasia failed to be adopted in the Luxembourg Parliament by a single vote.

The United States has a strong philosophical conviction on the moral rectitude of assisted suicides. The overall tendency has been not to recognize assisted suicide as legally acceptable.

For instance, in June 1997, the U.S. Supreme Court ruled that people do not have a constitutional right to assisted suicide. Although a constitutional right was not established, the ruling did not preclude states from passing laws prohibiting or permitting assisted suicide.

However, similar to its status 130 years ago, assisted suicide is not widely supported in America’s state legislatures. As of 1997, physician-assisted suicide was legal in only one State-Oregon. Moreover, that law faced challenges from right-to-life opponents and the Justice Department, which was trying to decide whether the Oregon statute violated any federal law.

There are interesting legislative and judicial pronouncements on assisted suicide in various other jurisdictions. For instance in Uruguay, although a person assisting suicide must appear in court, there is much tolerance shown to a person who has led an honourable life.

Article 27 of the Penal Code, adopted by the Uruguayan legislature in 1934 provides that judges are authorized to refrain from punishing a person whose previous life has been honourable but he assists in a suicide motivated by compassion and induced by repeated requests of the victim.

Colombia’s Constitutional Court in 1997 approved medical voluntary euthanasia but its parliament has never ratified it, making the rule stay in suspended animation until challenged by a doctor.

In England and Wales there is stringent legislation admitting of up to 14 years imprisonment for anyone assisting a suicide. Curiously, in these jurisdictions suicide itself is not a crime, having been decriminalized in 1961.

Thus one could point out the perceived anomaly that in these jurisdictions, it is a crime to assist in a non-crime. In Britain, a case for assisted suicide has to be brought before a court only with the permission of the Director of Public Prosecutions in London, which effectively precludes hasty, local police prosecutions.

There have been eight Bills or Amendments introduced in the British Parliament between 1936-2003, all trying to modify the law to allow some flexibility and lenience on assisted suicide. It is also worthy of note that as in France, there are laws in Britain banning a publication if it leads to a suicide or assisted suicide.

Assisted suicide is a crime in the Republic of Ireland. In 2003 police in Dublin began proceedings against an American Unitarian minister for allegedly assisting in the suicide of a woman who had mental health problems. He responded that he had only been present to comfort the woman, and read a few prayers.

In Scotland, suicide is not outlawed. in fact, suicide has never been illegal under Scotland’s laws. There is no legal authority that establishes either way, whether it is criminal to help another to commit suicide, and this issue has so far not been tested in court.

However, it might be argued on the basis of general common law principles that the killing of another at his own request is murder, as the consent of the victim is irrelevant in such a case.

It can also be argued that a person who assists another in taking his own life, whether by providing advice or any other means that might assist in the suicide, might be criminally liable on a number of other grounds such as: recklessly endangering human life, culpable homicide (recklessly giving advice or providing the means, followed by the death of the victim), or wicked recklessness.

Elsewhere in Europe, it is recorded that Hungary has one of the highest suicide rates in the world, caused mainly by the difficulties the peasant population has had with adapting to city life.

In Hungary, assisted suicide or attempted suicide is punishable by up to five years imprisonment. It is also interesting that euthanasia practiced by physicians was ruled as illegal by Hungary’s Constitutional Court in April 2003.

It is recorded that voluntary euthanasia as well as physician-assisted suicide is permitted in the Netherlands, whereas both Belgium and Switzerland have made assisted suicide legal. Under Dutch law, enforcement authorities will crack down on any non-physician assisted suicide, which was seen in the recent sentencing of an old man to six months imprisonment for helping a sick, old woman to die.

Belgian law only uses the term ‘euthanasia’ as being available (under certain conditions), since the term assisted suicide’ is not usually used.

The law admits of negotiation between the doctor and patient as to whether death would be brought about by lethal injection or by prescribed overdose. It is recorded that the patient must be a resident of Belgium and that, in its first full year of implementation, 203 people received euthanasia from a doctor Across the Atlantic in Canada the law is almost the same as in Britain.

In 2002, an action was brought in British Columbia against a grandmother, for counselling and assisting the suicide of two dying people. She was acquitted on all counts in 2004.

However, it must be noted that one significant difference between English and Canadian law is that, as discussed earlier, no case may be pursued by the police without the approval of the Director of Public Prosecutions in London. This clause keeps a brake on hasty police actions.

Russia shows zero tolerance for any form of assisted suicide, and it has done so throughout the 60-year Soviet rule. The Russian legal system does not recognize the notion of ‘mercy-killing’.

Moreover, the 1993 law on Health Care of Russian Citizens strictly prohibits the practice of euthanasia. However, Estonia has taken a more lenient approach on the grounds that assisted suicide is not punishable as suicide is not punishable.

There are interesting studies of jurisprudence in the Asia Pacific.

The right-to-die movement has been strong in Australia since the early l970s, spurred by the vast distances in the outback country between patients and doctors. Families were obliged to care for their dying, experienced the many harrowing difficulties, and many became interested in euthanasia.

The Northern Territory of Australia actually had legal voluntary euthanasia and assisted suicide for seven months until the Federal Parliament stepped in and repealed the law in l997 New Zealand prohibits assisted suicide under 179 of the New Zealand Crimes Act, l961, although cases before the courts were few and far between and penalties were light and lenient.

However, a glaring exception was seen in 2003 where a writer, Lesley Martin, was charged with the assisted suicide of her mother that she had described in a book. Ms. Martin was convicted of manslaughter by using excessive morphine and served half of a fifteen-month prison sentence. She remained unrepentant. That same year the country’s parliament voted 60-57 not to legalize a form of euthanasia similar to the Dutch model.

In Japan, instances are extremely rare. The Japan Society for Dying with Dignity is the largest right-to-die group in the world with more than 100,000 paid up members. Currently, the Society feels it wise to campaign only for passive euthanasia - good advance directives about terminal care, and no futile treatment. Voluntary euthanasia and assisted suicide are rarely talked about..”

Another factor attributed to the low rates of assisted suicide in Japan is that some 80 percent of their people die in hospitals, compared to about 35 percent in the Netherlands, 35 percent in America, with as low as 25 percent in Oregon which has a physician-assisted suicide law.

Euthanasia is essential an in-home action.

The strongest indication that the Western world is moving gradually toward allowing assisted suicide for the dying and the incurable rather than to permitting voluntary euthanasia comes from a huge survey that the Council of Europe conducted in 2002.

It received answers from 34 Central Asian and European states, plus the USA and Russia. Many replied that such terms were nowhere to be seen in their laws and so they had difficulty answering.

The writer is Coordinator, Air Transport Programmes, International Civil Aviation Organization.