By Ruwan Laknath Jayakody –

The right to die.

The question posed by the Greek Grim Reaper Thanatos looms large in the individual’s journey towards self actualization, as living life is a prelude to memento mori. It is in the articulation of the ultimate full stop of physiology, which is ‘death’, that humanity seeks to transgress its limitations by seeking the potential of collective destiny through individual fates. So what if the ‘I’ ceases to want to be? What if the ‘we’ have to make that decision on behalf of the ‘I’ as is the case in euthanasia? Does the autonomy to self determination and to exert dominion over the decaying ‘I’, which is afforded to all as a fundamental human right in the form of the right to life, extend its sovereignty to include the right to death or is one precluded by default from exercising it. The first acolyte of Dr. Death, the man who knew that he knew nothing, Greek philosopher Socrates thought that it should be done and drank hemlock to prove the point. Greek physician Hippocrates disagreed. According to the former Head of the Department of Forensic Medicine and Toxicology at the Faculty of Medicine of the University of Colombo, Senior Prof. Ravindra Fernando, who spoke to the author, an acceptable medical and legal definition of euthanasia constitutes a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering. The House of Lords Select Committee on Medical Ethics in the United Kingdom states the same. ‘Good death’ as the Greeks call it, is an intentional ending and termination of a life by a doctor at the explicit request and expressed will of a patient. Physician assisted suicide is euthanasia where doctors are involved. Many controversial ethical and moral dilemmas abound from such understandings. It is illegal for laymen even if they are the guardians of the patient to assist in suicide. There is voluntary or consensual euthanasia which are termed active euthanasia, where lethal substances are injected or an overdose is prescribed, and passive euthanasia, where essential treatments for sustaining life and prolonging death are withdrawn. There is non-voluntary or non-consensual euthanasia. Then there is involuntary euthanasia which is euthanasia done in violation of the express will of the patient. Suicides due to chronic illness and physical disabilities according to the statistics of the Sri Lanka Police from 2005 to 2011 indicate that those with terminal illnesses committing suicide shows an ever increasing trend particularly in the over 60-years of age, age category. Section 299 of the Penal Code of Sri Lanka outlaws the practice of euthanasia for both doctors and laymen. Understanding the need of the hour, and whilst calling for euthanasia to be legalized based on the antecedent models of the Netherlands, Belgium and the United States of America (USA) to help suffering patients, it is hereby proposed to explain how this legalizing can be done as American poetess Sylvia Plath puts it in ‘Lady Lazarus’, “exceptionally well”.

Legalize Euthanasia

Since the 1950s, Sri Lanka has seen a dramatic rise in the number of victims of suicide.

Suicide, in itself, could be deemed legal in Sri Lanka on the grounds that there is no provision in the Penal Code preventing a person from doing so.

However, any person who assists a person in suicide would be punished by virtue of Section 299 of the Penal Code which reads: “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with death”.

The subsequent provision in the Penal Code makes it illegal for a person to perform any act with the intention or knowledge that such an act could cause death. Such an act, as according to Section 300 of the Penal Code, would result in a punishment of 10-years, and if the act had involved harm to the victim, the sentence for the abettor could be increased up to 20-years in prison.

These provisions make it difficult for any person to assist a person in death, whether or not such an act is performed with good intentions and without pain. In other words, assisted suicide is prohibited by Sri Lankan law regardless of the circumstances.

The people most affected by such laws are essentially doctors whose patients are terminally ill and irrecoverable, and the families who have to bear the brunt of the expenses. On most occasions, doctors are unaware of when to pull the plug when a patient is on life support, and the patients must endure much pain in order to die a natural death. There are also the persons of senile old age, who have lost the urge to live for longer and merely live until death comes to them naturally.

Suicides due to chronic illnesses and physical disabilities according to Police statistics in 2005 included 554 males and 118 females, in 2007 included 439 males and 92 females, in 2008 included 461 males and 85 females, in 2009 included 467 males and 86 females, in 2010 included 239 males and 66 females and in 2011 included 461 males and 84 females.

“We have an aging population. The ever increasing trend of those with terminal illnesses committing suicide, particularly in the over 60-years age range, means that may be, there is no one to look after them. Suicide among the elderly is going to become a major problem,” Prof. Fernando observed.

This is where the legalizing of euthanasia comes in.

“Euthanasia conducted with the consent of the patient is termed voluntary euthanasia. It can be active or passive. In active euthanasia, lethal substances are, or an overdose is, used to end the life of a terminally ill patient. Passive euthanasia is the withholding of common treatments, such as antibiotics or intravenous fluids, necessary for the continuance of life including drugs to keep the heart pumping efficiently for patients with heart failure, or oxygen.” Euthanasia, conducted where the consent of the patient is unavailable, is termed non-voluntary euthanasia, and is, according to Prof. Fernando, tantamount to murder along with involuntary euthanasia which is when the patient who is able to provide informed consent does not do so because they do not choose to die or because they were not asked.

“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, and who, finding the condition intolerable, competently and persistently requests to be removed from the respirator.”

“More than doctors, it is mainly the relatives of a patient dying of cancer for an example that may exacerbate the death by giving drugs or whatever other means. The complications that can arise by running solely on the interests of the individual, particularly in cases where they are in a persistently or permanently vegetative state or are of unsound mind, are that one cannot do anything other than let the person die a natural death. Euthanasia is killing somebody because a person is suffering from a disease which cannot be cured,” Prof. Fernando explained.

“The Dutch in the Netherlands in 2001 set out narrow guidelines in going in for euthanasia.”

As registered psychotherapist Dr. Ruwan M. Jayatunge’s article on the subject states, in the Netherlands, ‘The patient, who must be suffering unbearably and has no hope of improvement, must ask to die. The patient must clearly understand the condition and prognosis and a second doctor must agree with the decision to help the patient die’.

“Two doctors must certify that the patient is not going to live and the patient wants death and that the patient is of course sane and of normal mind or mental state and that he or she is not mad,” Prof. Fernando noted.

“In Belgium, since the legalization of euthanasia, it now accounts for 2% of the deaths averaging over 2,000 per year. Former Dutch Health Minister and Deputy Prime Minister, Dr. Else Borst-Eilers, who guided the euthanasia law through the Parliament recently admitted that medical care for the terminally ill had declined.”

“In the long run, concerns that euthanasia could be utilized as a measure of health care cost containment should not be a consideration at all. It will be, but it is not fair. The standards of medical care of the terminally ill should not change and doctors should continue their treatment of the patient till the issue of euthanasia is raised by the patient,” Prof. Fernando mentioned.

“Again, in the Belgian law which came into effect in 2002, two doctors must be involved, confirming that the patient is going to die and that there is no hope of recovery or that he/she is in very severe pain that cannot be treated (patient is given drugs like morphine in very high doses to relieve pain, yet does not respond). A psychologist or psychiatrist has to be involved if the patient’s competency is in doubt. The doctor and patient then negotiate whether death is to be by lethal injection or prescribed overdose.”

“Suffering is gauged in that any physiological pain causes psychological pain. The reason for the pain however should be obvious. Just because the patient says that they have pain one cannot go ahead unless the patient has a cancer somewhere which impinges on the nerves or causes severe difficulty in breathing, all of which cause pain. The doctor should clearly understand as to what is happening to the patient. The mere fact that the patient states ‘I am in pain’ is not allowed. Euthanasia should be the last course of action when all other means are exhausted and prove unfruitful. For an example, with patients who have lung cancer with secondary tumours in the brain where doctors put drips and nasal feeding is used, relatives sometime ask for voluntary passive euthanasia, requesting the doctor to stop and allow the patient to die peacefully. The patient is unconscious in this case and has not given consent. Only the relatives’ consent is there. This is a very difficult situation if the patient has a wife and children, where all must unanimously decide to give consent as otherwise one child could come and say ‘You have killed my father, I have not given consent’ and because it can be deliberately done by one son to obtain property. It is however being done. I recorded a detailed statement from a wife and children at a private hospital in a case where the patient had severe lung cancer and the wife and children wanted the treatment stopped and afterwards I told the doctors that they could do it. In a way, we practice it. We do not call it euthanasia but state that the patient’s relatives insisted,” Prof. Fernando said.

“Euthanasia and physician assisted suicide are legal in Luxembourg since 2008 and in Switzerland, euthanasia is illegal but assisted suicide is legal since 1942.

The District Court in Yokohama, Japan, in 1995, sentencing Dr. Masahito Tokunaga to a two-year suspended prison term for murdering a terminally ill cancer patient who was expected to die within a few days, judged that euthanasia killing would be permitted if 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 option left open, and the patient has clearly expressed their will to approve the shortening of life.

Passive voluntary euthanasia is legal throughout the USA after the case of Cruzan by Cruzan vs. Director, Missouri Department of Health.

In 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. After years, her husband and parents accepted that there was no hope. More years after the accident, they went to the Supreme Court (SC) requesting to terminate her life. 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 five-four decision, the Court (majority opinion by Chief Justice William Hubbs Rehnquist) found in favour of the Missouri Department 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 Cruzan would have wanted her life support terminated and eventually won a Court order to have her removed from life support. She died days later, years after the accident.

In the USA, physician assisted suicide is legal in the State of Oregon, since 1998, in the State of Washington, District of Columbia since 2009, and in the State of Montana since 2009. The European Association of Palliative Care Ethics Task Force has stated that, ‘Medicalised killing of a person without the person’s consent, whether non-voluntary (where the person is unable to consent) or involuntary (against the person’s will) is not euthanasia: it is murder’.

Non-voluntary euthanasia including child euthanasia was decriminalised under certain specific circumstances in the Netherlands under the Groningen Protocol describing procedures and guidelines as to how to actively end the life of infants. The termination of a child’s life (under the age of 12-years) is acceptable if the requirements of the presence of hopeless and unbearable suffering, the consent of the parents to the termination of life, medical consultation having taken place, and the careful execution of the termination are fulfilled, and the 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 1973 in India, Aruna Shanbaug was discovered in the basement of 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 years and she has not left the hospital where she was once a capable nurse. A petition for euthanasia was filed for Shanbaug by journalist Pinky Virani who has written a book on the woman who she says is being forced to live her life stripped of basic dignity. The SC (Justice Markandey Katju delivering the judgment with Gyan Sudha Misra J. in Aruna Ramchandra Shanbaug vs. The Union of India and Others) in March, 2011, ruled that euthanasia and in this case mercy killing was not a permissible option for Shanbaug as they had no indication of Shanbaug’s views or wishes. The verdict of this case allowed passive euthanasia depending on the circumstances, for the right to withhold medical treatment – take a patient off a ventilator, for example, in the case of an irreversible coma. The Indian judgement made it clear that passive euthanasia will “only be allowed in cases where the person is in a persistent vegetative state or are 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.

The Nazi version of euthanasia was based on the ‘The Right to Death’ by Austrian psychologist Adolf Lothar Jost, arguing that control over the death of the individual must ultimately belong to the State.

“Euthanasia based on the models of the Netherlands, Belgium and the USA should be legalized to help suffering patients. Religions say that this cannot be allowed. The practical implications are such that if we legalize it, we must ensure checks and balances. There should be clear provisions which must state that it should be done in a hospital, both State and private, otherwise there could be cases like the one with British general practitioner cum serial killer Dr. Harold Shipman who is said to have claimed the lives of 250 persons by going to houses and giving injections,” Prof. Fernando explained.

“There should be severe uncontrollable pain in a terminally ill patient who has no hope of cure or recovery and the patient 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, and ideally, the procedure to be followed should be comparable to terminating ventilator support in a brain dead patient.”

“Two doctors, on separate occasions, must examine the patient and when certifying, must give reasons as to why they have decided upon euthanasia, like in the Dutch system. A set of broad guidelines must be prepared which state under what conditions a patient could be euthanized, the situations and types of illnesses. The qualifications of the doctors must be mentioned including specifying that at least one of the two doctors be a specialist in the particular disease. Otherwise, in a hospital in Kataragama for example, two medical officers can get together and allow euthanasia, which is a bad situation. Principles governing contractual law do not apply. Doctors need to enter into a contract with the guardian or the relatives of the patient or with the patient. The doctors must record in the patient’s bed head ticket as to why they think that the patient will not recover,” Prof. Fernando reiterated.

In the issue of property and the transferring of one’s estate, it is hereby recommended that legal advice be sought and that a lawyer or lawyers be involved in the process, a point which Prof. Fernando also concurred with.

“Under the Death with Dignity law legalized in 1994 in Oregon in the USA, with regard to qualifying for a physician assisted suicide, as Dr. Jayatunge’s article states, a person must be an Oregon resident, be 18-years of age or older, must have the decision making capacity and must be suffering from a terminal disease that will lead to death in six months. Although nowhere in the Netherlands, Belgium or USA is it stated that lawyers should be involved, in certain instances, it is better, especially in the case of a very rich person with property. The patient can get a lawyer and give the consent in front of a lawyer. Patients who have previously expressed their will are allowed to subsequently rescind it,” Prof. Fernando opined.

“Doctors should obtain informed consent for euthanasia in the presence of a relative or an independent witness. The death should be referred for an inquest”.

The advantages of euthanasia is that there will be a painless death which relieves the patient through the speedy termination of physical and emotional suffering, saves the family’s money by eliminating the need to spend money on expensive, painful, or debilitating treatments, surgery, medicine and life support.

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, and that active euthanasia violates the fundamental prohibition against killing, except in the case of self defence or the defence of others, and if it is made a public policy, active euthanasia could in turn lead to involuntary euthanasia, and also that active euthanasia would undermine the integrity of medicine and the patient-physician relationship.

Advocates against euthanasia conclude that there must be better palliative care and alternatives such as the cessation of active treatment which can be combined with the use of effective pain relief.

At the cutting edge of euthanasia devices, Director of the pro euthanasia group Exit International, Dr. Philip Nitschke, on a request by a British man’s (Tony Nicklinson) lawyers to look into the possibility of the use of technology to help their client who had ‘locked in’ syndrome (neurological disorder that happens when a part of the brain stem is damaged, usually from a stroke, and results in total paralysis but still having consciousness and normal cognitive abilities) die with dignity, invented the Sarco. This is a three dimensional printed capsule – the concept of which is described in its website as “where art meets its end …” – and which produces a “rapid decrease in the oxygen level (hypoxic) while maintaining a low carbon dioxide level” which is according to the site, “the conditions for a peaceful, even euphoric death”, replacing the ingestion of doses of anything lethal. With removing the need for any assistance as its goal, the machine’s industrial design system claims to require no specialised skills or involvement including of medical personnel and drugs (“de-medicalisation of the dying process”, per Nitschke, by “remov(ing) any kind of psychiatric review from the process and allow(ing) the individual to control the method themselves”), as it envisions activation by eye movement and voice control. At present, the detachable pod is mounted on a stand that contains a canister of liquid nitrogen (inert gas), the latter which prevents the panic, sense of suffocation and struggling before unconsciousness, known as the hypercapnic (build up of carbon dioxide in the bloodstream) alarm response (caused by the presence of high concentrations of carbon dioxide in the blood). To access the device, one has to pass an online test that gauges one’s mental fitness, upon which one receives an access code valid for a period of 24-hours, and when the activation code is entered on the touchpad, the individual who wishes to die is once again asked whether they wish to die, and if the answer is affirmative, upon the pressing of a button, it causes the nitrogen to flow into the capsule, thus displacing oxygen (a total of four litres of liquid nitrogen causes the oxygen level to drop below 5% in less than a minute). This biodegradable capsule which can be detached from the machine’s base can then serve as a coffin. However, it also has a built in emergency exit button.

There are also the cases of Dr. Jack Kevorkian aka. Dr. Death and the Scottish, Exit (Right-to-Die Organization). In cases where medical procedures and products are prohibited by religious doctrines and beliefs and are denied by parents or guardians to children (as in the case of blood transfusions by the followers of the non-orthodox, non-denominational Christian sect – Jehovah’s Witnesses), Prof. Fernando said that “the doctors should go ahead and give the blood transfusion even if the parents object, and that no one can sue the doctors for damages as they are acting in good faith. The doctors can also get a Court order against the parents.”

“There must also be guidelines so as to prevent inappropriate killings. If there are two doctors, the independent witness need not necessarily be there or we can get a lawyer or a Magistrate instead. In the administration of the suicide, the doctors should correctly calculate the quantity of whatever the drugs that they are using or the drug that is given intravenously. They should not make a mistake. If they make a mistake, they can give another drug or the same drug, in the same dose or a higher dose. If something goes wrong, there should be provisions to provide legal impunity as the Dutch have, as otherwise, doctors will not go ahead if they know that they can be charged or sued for conditions arising out of failed euthanasia,” Prof. Fernando added.

He emphasized that, “There is no problem if the law is there and it is properly legislated and the people are aware of it. They might demand it.”

In the villanelle ‘Do not go gentle into that good night’, Welsh enfant terrible cum poète maudit Dylan Marlais Thomas, implores “wise men at their end” who “know (that) dark is right”, and “grave men, near death, who see with blinding light”, to “rage, rage against the dying of the light”.

The right to life, in death.