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(reprint from ERGA) By Derek Humphry When we look at what the right-to-die movement has achieved, against what it has wished to do, an honest person would agree that there is still a long, long way to go. The first signs of organized activity on this issue came in the late 1930s in Britain, but nothing really happened until the l970s when the public – the non-medical world – woke up with a shock to the fact that we often die differently nowadays compared to our ancestors. This revelation – first made famous and characterized by the ‘Karen Ann Quinlan pull-the-plug case in America’ – brought a rush of legislation introducing the so-called “Living Wills” – better known nowadays as Advance Directives, permitting the disconnection – or declining the use of – pointless life support equipment. Today Advance Directives are available pretty well everywhere. That fight has largely been won, although the problem remains in getting people to appreciate their significance and sign them early enough before terminal ill health appears. As this conference's information shows, Living Wills continually need to be improved to keep pace with medical advances and updated by the signators, even young people. Where we have even further – much further – to go is related to active voluntary euthanasia and assisted suicide for the terminally ill adult, and the hopelessly ill person. So far only the Netherlands and Belgium legally allow the first and second procedures, whilst Switzerland and Oregon (USA) allow assisted suicide. All the procedures mentioned here have strong rules and guidelines to prevent abuse. Actually helping people who desire a hastened death so as to avoid further suffering has a long fight ahead of it. There is stiff opposition. The underlying taboo in social life and the opposition of religious leaders in the rest of the Western world is holding back progress despite the knowledge that at a minimum – judging by electoral votes and opinion polls – fifty percent of the general public wishes to see reform to give them an eventual certain death with dignity. Other opinion testings shows 70 to 80 percent support for law reform. The main problem is: how do we convert the converted into actual voters? The experience in America, probably the only place where actual citizens have on six occasions been ask to ballot for a right-to-die law, there are early indications that law reform will pass. Then, as the voters get to place their YEA or NAY on the ballot paper, many appear to have doubts. Except for the successful polls in Oregon in l994 and l996, the ballot initiatives have all failed. Why is that? Many excuses have been offered, but my conclusion is that because we are not yet carrying a majority of the medical and nursing professions in support of us, the public – understandably – panics. Who amongst us is brave enough to defy our personal medical advisors? Of course, not all doctors and nurses will ever support us. They are entitled to have religious and ethical differences. Yet only when we have a majority of them on our side – and saying so publicly – can be assured that future law reform will succeed. What must we do to bring more of the healing professions and their clients around to our way of thinking? We have to change the climate of thinking in respect of individual choices in dying. We have to modify social changes ourselves. Others have done it in universal suffrage, birth control, marriage and divorces, abortion rights, and so on. Here is what I think we must do to start with: First, be right there on the front line, at the bedside, for dying people who seek our help. Help comes in many different ways, from straightforward advice (which is my speciality), skilled counseling, and supervision of the justifiable suicide of a person who is dying, has fought all they could, and wants a careful release from this world. The Dutch pioneered this ‘at the home’ approach from the l970s onwards, and also the Swiss groups have admirable set-ups. Non-doctor assisted suicide is often the appropriate action in certain cases. On the West Coast of America, Compassion in Dying successful launched this type of personal compassion in the early 1900s, and Hemlock's ‘Caring Friends’ began similar work in l999. This kind of careful assistance, which comes in a multitude of ways depending on the patient’s circumstances, is the most important way to build widespread voter confidence and trust. It takes time and effort but not only is it worth it to be responding to another human’s cry for help, it earns admiration from a widening circle. Secondly, if we are to eliminate the taboos and fears of abuse that some people have, we must make the subject of hastened death, assisted suicide, voluntary euthanasia – call it what you like – then we must get better integrated into our cultures. For too long, the Judeo-Christian religions have dominated ethical thinking in the West. I am not learned enough to be sure, but it seems the same position obtainsin the Buddhist, Muslim, Hindu, and other religions. Our goals will only be achieved when there is more written about the subject in an investigative and compassionate way. We need to work for the day when the modern news media will report ‘right-to-die’ matters in a straightforward way and not wait for the ‘scandal’ and ‘disgrace’ incidents which they most love to report. In sum, we must introduce our subject more healthily into literature, media and the arts so that is as commonplace to read, watch, or listen to, in our lives as watching sporting events or monitoring political news. At least we cannot blame Hollywood, the movie industry, for ignoring us. In the last few years there have been four major movies dealing with rational suicide, and all were appropriate and tasteful. Trouble is, they may run out of material unless concerned new writers emerge. Thirdly, we need a few ordinary physicians in different countries to become involved in criminal proceedings: to be the ‘guinea pigs’ and the cause celebres. If politicians are nervous about our goals, then we should use the courts. But you cannot go to the courts without a defendant willing to take the heat and strain of a high-profile trial. Such martyrs are a rarity. We need a few doctors who will stand up and say: “My patient was suffering unbearably as he was dying. My patient was rational. I assisted a death on request. I will fight in the courts for my duty to help a patient.” Dr. Jack Kevorkian thought he was the man to shake the American medical profession into changing its attitude on euthanasia. But he failed, and some say did harm to the cause but other disagree. His public relations problems in respect to enhancing the attitudes to euthanasia were that he was a pathologist and not a general practitioner, and more of a showman than a missionary. More of a media circus performer than a dedicated campaigner. A loner not a team player. He alone thought he could alter the attitudes of the huge American medical profession. He underestimated the respect doctors have for the law of the land. Without law reform accompanying it, they would not take the same chances which he would. Dr. Kevorkian's final objective was right but his tactics proved to be wrong. But I give Kevorkian the credit for awakening millions of slumbering people to the very existence of assisted deaths. Today he languishes in an American prison, convicted on his own evidence of murder, serving ten years to life. At 76 he may never see liberty again. For all his courage and unswerving dedication he has paid dearly. His legal advisors are now seeking a clemency deal, and I really hope they succeed. The predicament in thinking about Dr. Kevorkian is that, while legally he was 100 percent guilty of euthanizing Thomas Youk, who was dying, because he video-taped it, is that 'murder' in the usual sense of the term? Unfortunately, Anglo-American law makes no distinction on these grounds: “A person cannot ask to be killed.” We must get this modified. My plea is for the laws on homicide to be changed to allow somebody accused of a ‘mercy killing’ to at least plead justification and necessity. Not an automatic, knee-jerk excuse but a factual plea for understanding of the circumstances. Currently no such evidence or witness can be entertained. In my view we should work for a wider interpretation of the laws on death and dying and not just ‘assisted suicide’. In closing my remarks, please allow me to make a plea for more honest use of words and phrases throughout our movement. In recent years there has been a obvious backing away from words like ‘euthanasia’ and ‘assisted suicide’ and ‘mercy killing’. I am quite aware that this was done for political correctness, trying not to scare off the politicians and the voters. But not calling ‘a spade a spade’ – as the English say – is playing into the hands of our opponents, who increasingly are teasing us that we are more sinister than we say we are. Speaking in euphemisms – softened speech – develops into muddled thinking and mistaken actions. I hope we all here are – as I am – fighting for the ultimate civil liberty, the right to choose to die when we wish and how we wish, no matter what it is called. Thank you for listening. Derek Humphry Assisted Suicide Laws Around the
World Compiled by Derek Humphry, editor, World Right-to-Die Newsletter Assisted suicide laws around the world are clear in some nations but unclear – if they exist at all – in others. Just because a country has not defined its criminal code on this specific action does not mean all assisters will go free. It is a complicated state of affairs. A great many people instinctively feel that suicide and assisted suicide are such individual acts of freedom and free will that they assume there are no legal prohibitions. This fallacy has brought many people into trouble with the law. While suicide is no longer a crime – and where it is because of a failure to update the law it is not enforced – assistance remains a crime almost everywhere by some statute or other. I’ll try to explain the hodge-podge. For example, it is correct that Sweden has no law specifically proscribing assisted suicide. Instead the prosecutors might charge an assister with manslaughter – and do. In 1979 the Swedish right-to-die leader Berit Hedeby went to prison for a year for helping a man with MS to die. Neighbouring Norway has criminal sanctions against assisted suicide by using the charge "accessory to murder". In cases where consent was given and the reasons compassionate, the courts pass lighter sentences. A recent law commission voted down de-criminalizing assisted suicide by a 5-2 vote. A retired Norwegian physician, Christian Sandsdalen, was found guilty of wilful murder in 2000. He admitted giving an overdose of morphine to a woman chronically ill after 20 years with MS who begged for his help. It cost him his medical license but he was not sent to prison. He appealed the case right up to the Supreme Court and lost every time. Dr. Sandsdalen died at 82 and his funeral was packed with Norway’s dignitaries, which is consistent with the support always given by intellectuals to euthanasia. Finland has nothing in its criminal code about assisted suicide. Sometimes an assister will inform the law enforcement authorities of him or her of having aided someone in dying, and provided the action was justified, nothing more happens. Mostly it takes place among friends, who act discreetly. If Finnish doctors were known to practice assisted suicide or euthanasia, the situation might change, although there have been no known cases. Germany has had no penalty for either suicide or assisted suicide since 1751, although it rarely happens there due to the hangover taboo caused by Nazi mass murders, plus powerful, contemporary, church influences. Direct killing by euthanasia is a crime. In 2000 a German appeal court cleared a Swiss clergyman of assisted suicide because there was no such offence, but convicted him of bringing the drugs into the country. There was no imprisonment. France does not have a specific law banning assisted suicide, but 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. France bans all publications that advise on suicide - Final Exit has been banned since l991 but few nowadays take any notice of the order. Since l995 there has been a fierce debate on the subject, which may end in law reform eventually. Denmark has no specific law banning assisted suicide. In Italy the action is legally forbidden. Luxembourg does not forbid assistance in suicide because suicide itself is not a crime. Nevertheless, under 410-1 of its Penal Code a person could be penalized for failing to assist a person in danger. In March 2003 legislation to permit euthanasia was lost in the Luxembourg Parliament by a single vote. Tolerance for euthanasia appears in the strangest of places. For instance, in Uruguay it seems a person must appear in court, yet Article 27 of the Penal Code (effective 1934) says: "The judges are authorized to forego punishment of a person whose previous life has been honorable where he commits a homicide motivated by compassion, induced by repeated requests of the victim." So far as I can tell, there have been no judicial sentences for mercy killing in Uruguay. In England and Wales there is a possibility of up to 14 years imprisonment for anybody assisting a suicide. Oddly, suicide itself is not a crime, having been decriminalized in l961. Thus it is a crime to assist in a non-crime. In Britain, no case may be brought without the permission of the Director of Public Prosecutions in London, which rules out hasty, local police prosecutions. It has been a long, uphill fight for the British – there have been eight Bills or Amendments introduced into Parliament between l936-2003, all trying to modify the law to allow careful, hastened death. None have succeeded. As in France, there are laws banning a publication if it leads to a suicide or assisted suicide. But Final Exit can be seen in bookstores in both countries. The law in Canada is almost the same as in England; indeed, a prosecution has recently (2002) been brought in B.C. against a grandmother, Evelyn Martens, for counselling and assisting the suicide of two dying people. The case is so far unresolved. One significant difference between English and Canadian law is that 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. Assisted suicide is a crime in the Republic of Ireland. In 2003 police in Dublin began proceedings against an American Unitarian minister, George D Exoo, 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. The outcome of this incident has not been concluded. CONSENT IRRELEVANTSuicide has never been illegal under Scotland's laws. There is no Scots authority of whether it is criminal to help another to commit suicide, and this has never been tested in court. The killing of another at his own request is murder, as the consent of the victim is irrelevant in such a case. A person who assists another to take their own life, whether by giving advice or by the provision of the means of committing 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. 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. Assistance in suicide or attempted suicide is punishable by up to five years imprisonment. Euthanasia practiced by physicians was ruled as illegal by Hungary's Constitutional Court (April 2003), eliciting this stinging comment from the journal Magyar Hirlap: "Has this theoretically hugely respectable body failed even to recognize that we should make legal what has become practice in everyday life." The journal predicted that the ruling would put doctors under commercial pressure to keep patients alive artificially. Russia, too, has no tolerance of any form of assisted suicide, nor did it during the 60-year Soviet rule. A ray of commonsense can be seen in Estonia (after getting its freedom from the Soviet bloc) where lawmakers say that as suicide is not punishable the assistance in suicide is also not punishable. The only four places that today openly and legally, authorize active assistance in dying of patients, are:
Two doctors must be involved in Oregon, Belgium, and the Netherlands, plus a psychologist if there are doubts about the patient's competency. But that is not stipulated in Switzerland, although at least one doctor usually is because the right-to-die societies insist on medical certification of a hopeless or terminal condition before handing out the lethal drugs. The Netherlands permits voluntary euthanasia as well as physician-assisted suicide, while both Oregon and Switzerland bar death by injection. Dutch law enforcement will crack down on any non-physician assisted suicide they find, recently sentencing an old man to six months imprisonment for helping a sick, old woman to die. Switzerland alone does not bar foreigners, but careful watch is kept that the reasons for assisting are altruistic, as the law requires. In fact, only one of the four groups in that country, DIGNITAS, chooses to assist foreigners. When this willingness was published in newspapers worldwide, sick people from all over Europe, and occasionally America, started trekking to Switzerland to get a hastened death. In 2001 the Swiss National Council confirmed the assisted suicide law but kept the prohibition of voluntary euthanasia. Belgian law speaks only of 'euthanasia' being available under certain conditions. 'Assisted suicide' appears to be a term that Belgians are not familiar with. It is left to negotiation between the doctor and patient as to whether death is by lethal injection or by prescribed overdose. The patient must be a resident of Belgium (pop.: 10 million), though not necessarily a citizen. In its first full year of implementation, 203 people received euthanasia from a doctor. All three right-to-die organizations in Switzerland help terminally ill people to die by providing counselling and lethal drugs. Police are always informed. As we have said, only one group, DIGNITAS in Zurich, will accept foreigners who must be either terminal, or severely mentally ill, or clinically depressed beyond treatment. (Note: Dutch euthanasia law has caveats permitting assisted suicide for the mentally ill in rare and incurable cases, provided the person is competent.) The Oregon Death With Dignity Act came under heavy pressure from the US Federal government in 2001 when Attorney General John Ashcroft issued a directive essentially and immediately gutting the law. This brought on a public outcry that the Federal government was nullifying a law twice voted on by Oregon citizens. A disqualification of democracy! An interference with states' rights! Immediately the state of Oregon went to court (2002) to nullify the directive, won at the first stage, but the appeals are likely to continue until 2004. Since l980, right-to-die groups have tried to change the laws in Washington State, California, Michigan, Maine, Hawaii, and Vermont, so far without success. Thus in the USA, Oregon stands alone and under great pressure. New Zealand forbids assistance under 179 of the New Zealand Crimes Act, l961, but cases were rare and the penalties lenient. Then, out-of-the-blue in New Zealand in 2003 a writer, Lesley Martin, was charged with the assisted suicide of her mother that she had described in a book. That same year the country's parliament voted 60-57 not to legalize a form of euthanasia similar to the Dutch model. Similarly, Colombia's Constitutional Court in 1997 approved medical voluntary euthanasia but its parliament has never ratified it. So the ruling stays in limbo until a doctor challenges it. Assisted suicide remains a crime. RARE IN JAPANJapan has medical voluntary euthanasia approved by a high court in l962 in the Yamagouchi case, but instances are extremely rare, seemingly because of complicated taboos on suicide, dying and death in that country, and a reluctance to accept the same individualism that Americans and Europeans enjoy. 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, which seems strange to Westerners who have heard so much about the culture of ritual suicide, hari kari, in Japanese history. This is because, one Society official explained: "In Japan, everything is hierarchical, including academics, and government organization, and this makes it difficult for the medical staff and those who offer psychiatric care to join forces to treat the dying." Another factor in Japan's backwardness on euthanasia 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 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. Only four people were able to use it, all helped to die by the undaunted Dr. Philip Nitschke, who now runs the progressive organization, Final Exit Australia. Other states have since attempted to change the law, most persistently South Australia, but so far unsuccessfully. In a rare show of mercy and understanding, a judge in the Supreme Court of Victoria, Australia, in July 2003 sentenced a man to 18 months jail – but totally suspended the custody. Alex Maxwell had pleaded guilty to 'aiding and abetting' the suicide of his terminally ill wife, actions that the judge said were motivated by compassion, love, and humanity and thus did not deserve imprisonment. This was a trend in the right direction. EUROPE ON THE MOVEThe strongest indication that the Western world is moving gradually to allow assisted suicide for the dying and the incurable rather than to permitting voluntary euthanasia comes from a huge survey that the Council of Europe did in 2002. It received answers from 34 Central Asian and European states, plus the USA and Russia. Not a few replied that such terms were nowhere to be seen in their laws so had difficulty answering. Asked if legislation or rules made euthanasia possible, only one country (Netherlands) answered in the affirmative (Belgium had not yet passed its similar law) and 25 nations said definitely not. Asked if they had any professional codes of practice on assisted suicide, eight countries said that they did, while 21 said no. Some of the other questions had revealing answers:
The Council of Europe, representing 45 nations, did not let the matter rest there. Its Social, Health and Family Affairs Committee approved a report which called on European states to consider decriminalizing euthanasia. This was a massive step forward for the previously ignored right-to-die movement. The commonsense of the Committee's approach is shown in the draft report by Swiss Rapporteur Dick Marty:
 Formerly
a London Sunday Times reporter, Derek Humphry founded the
Hemlock Society USA in l980 and the Euthanasia Research &
Guidance Organization in l993. He is the author of six books
on euthanasia, the best-known one being "Final Exit" which
has been continuously in print for 12 years. He lives in
Oregon.
© Copyright Derek Humphry 2002-3. Extracts no longer
than 100 words each may be taken for scholarly or literary
purposes. Full publication requires the author's permission.
This article first appeared in a shorter form in the World
Right-to-Die Newsletter #41, June 2002.
SOME USEFUL WEB SITES
www.FinalExit.org (Oregon, USA) A Web page of the Euthanasia Research & Guidance
Organization (ERGO),
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