• Terry Ang

Euthanasia, end of life or the start of choice?

New Zealand will be having a landmark referendum to decide whether legalize euthanasia on the End of Life Choice Bill in October. This article explores why the legal system has stigmatized the act of suicide and adopted an archaic deterrent system to circumvent such a complex issue. There are understandably labyrinthine ethical implications of such laws revolving the conflict between autonomy and sanctity of life. The focal point in this article, however, is to will look at past suicide legislation and current euthanasia laws all around the world from a legal standpoint.


"Trigger warning; It is well-known that the mental health of lawyers is an evolving crisis that Survive Law takes seriously. Although the article attempts to destigmatise suicide, the topic itself is understandably distressing. As such Survive Law has included a list of mental health helplines below.







Death with indignity

Early this year in Malaysia, a man with physical disabilities was sentenced to six months in prison after he attempted to commit suicide, which is a crime in the Malaysian Penal Code (Section 309). In Saudi Arabia, a Jordanian ex-pat has sentenced to a month in jail and 60 lashes after attempting suicide because of a failed proposal. It was odd that the courts seemed to think by putting men plagued with physical and mental illnesses in prison and public flogging would deter him from committing such a ‘crime’ again. Both countries adhere to Islamic theological inclinations, thus religious doctrines have influenced laws on euthanasia with the notion that only God can determine when you die.[1] To relate it to western religious ideals, philosopher St. Thomas Aquinas gave similar arguments against suicide on the basis that it goes against the natural inclination to live. The Bible said thou shall not kill and ending of one’s life is thus a sin. Life ought not to be rejected as it is a gift from God, and therefore must not perish at the hands of humans even if it is self-inflicted.




Deterrence is the primary motivation behind why archaic laws such as Section 309 of the Malaysian Penal Code exists.


Attempt to commit suicide s309.

Whoever attempts to commit suicide, and does any act towards the commission of such offence, shall be punished with imprisonment for a term which may extend to one year or with fine or with both.

It is up to debate whether such a ‘deterrent’ works. Arguably, such a motion devised to punish people who attempted suicide has been a harmful and ongoing approach in most cultures. Early English Common Law adopted the view the people who attempted suicide are felons and their bodies will be left hanging on a stake in the middle of the crossroad of a street as a cautionary tale. Their property will then be forfeited to the state. In 1832, the Burial of Suicide Act (felo de se) was enacted due to societal progression by allowing the bodies to be buried in a churchyard, but the Act still upholds previous draconian ideas that attempting suicide is a crime by using civil forfeiture as a deterrent.


Apparently living a life of misery was not punishing enough


Global Developments in Legislation decriminalising suicide

The first country to officially decriminalised suicide attempts is Germany in 1751.[2] Europe seems to be the most progressive continent, with only Georgia and the Republic of Cyprus still criminalising suicide. The UK was late to the party, only abolishing it in 1961 with the Suicide Act. Australia and New Zealand do not have any laws criminalising suicide attempts. Singapore which is facing a suicide epidemic among young people has just recently decriminalised suicide in the Criminal Law Reform Act.


While Canada and all 50 states and territories in the US have decriminalised suicide attempts, there are certain situations where law enforcement still conduct suicide profiling. In 2011, two separate Canadian women were denied entry into the US because their previous suicide attempts were documented in their medical reports, and there were similar cases have occurred after that. The victims of the suicide profiling lodged a complaint to the Information and Privacy Commissioner of Canada as it is alarming that their medical records were accessed by a foreign government. After an application of judicial review into the Toronto Police Service's conduct, the Canadian authorities will still be able disclose certain suicide-related entries to U.S. Customs and Border Protection albeit subjected to restriction and time limitation. The Toronto Police Service will have to conduct periodic audit on its suicide-related disclosure reports. This shows that in a digital post 9/11 age where privacy is relinquished in the name of security, these cases are a forewarning of the practical repercussions that can still haunt to people who had a troubled past.



Will you assist me? A rundown on the NZ Bill

Following the decriminalisation of suicide attempts, the Netherlands is the first country in the world to legalise physician-assisted suicide and euthanasia. This can be described as a huge leap into the unknown regarding societal values on the preservation of life. It is much more complex and controversial than decriminalising suicide as there are conducts required from other parties involved in the process of euthanasia. It is important here to explain the different terms that are going to be relevant.


Euthanasia: the intentional act of ending someone’s life to relieve pain and suffering.

Active Euthanasia: Euthanasia brought by an act, e.g. overdosing someone with pills, lethal injection with Potassium Chloride.

Passive Euthanasia: Euthanasia brought by an omission, e.g. withholding treatment, or medication from an individual.

Voluntary, Non-voluntary & Involuntary Euthanasia: Euthanasia that is conducted with consent; when consent is unavailable; against the will of the patient, respectively.

Physician-Assisted Suicide (PAS): Doctors providing the means of death, mainly through prescriptions.


New Zealand’s upcoming bill essentially follows the Dutch and Canadian approach through legal physician-assisted suicide (PAS). It is only available to people who are in an irremediable medical condition or a terminal illness that will likely end their life within 6 months. They have to experience unbearable suffering and be aware of the nature of assisted dying and the consequences of their death. The American Cancer Society stated that 10% of patients have pain that cannot be relieved with any degree of treatment, so in theory, the Act is only applicable to 10% terminally ill patients. Section 6 of the Bill requires patients to make a conscientious decision and that any form of objection would prevent any PAS. Several rounds of opinions must be reached from different attending practitioners and specialist to affirm that the decision is sound.




"First do no harm"

Doctors are one of the main opponents against the Bill, understandably as it breaks their Hippocratic oath of ethics. [3] They are faced with a massive bioethics conundrum that they are essentially playing God. A practical argument against the bill is that patients will have the mindset that they are financial and emotional burden towards their family and would be inclined to request for PAS. There are further observations that euthanasia will open up a gigantic can of worms to the already convoluted branch of law that is medical and health law. Two sisters of a patient that was euthanized in Belgium sued her doctors for not handling her death with respect to the family's wishes, and then her sister falls short of the standards required under Belgium law to be "serious and incurable disorder". The doctors were acquitted eventually on the basis that there is no reasonable doubt that the doctor's actions were of good faith and had met the requirements under Belgium Law. This case was noticed by New Zealand’s Justice Committee and they have included specific clauses governing the administering of the drug in Part 2 of the Bill to prevent this predicament from arising.




If the Bill passed, New Zealand will be part of a club comprised only of a few countries that legalized physician-assisted suicide and euthanasia. An interesting note is that the Supreme Court of Canada case Carter v Canada (AG), the Court struck down s14 and 241(b) of the Canadian Criminal Code.


S14: no person may consent to death being inflicted on them;
S241(b): everyone who aids or abets a person in committing suicide commits an indictable offence.

Some called it an act of judicial activism, hence the Court suspended the ruling for 12 months just so the Canadian Federal government could enshrine the order into statute.



Conclusion The common law system has a certain nature of political and legal liberalism. The debates regarding euthanasia are endless, and the system we have while able to house several conflicting ideas still essentially boils down to one or the other. The argument between sanctity and autonomy will never find a middle ground due to the polarizing values held by libertarians and physician professionalism. Theory-crafting aside, only 5% of the population who end up terminally ill will ever rely on or reference this Act. Perhaps it is in the best interests for society to forgo outdated ideologies cater to the practical needs of the minority. However, if the assigned doctors and physicians themselves are opposed to the task of conducting the voluntary euthanasia, who are we as a society to force them to. These are indeed motions that the NZ Parliament should not ignore.


Illustration by Pawel Kuczynski


Helplines

NZ Lifeline Aotearoa: 0800 543 354

Aus Suicide Call Back Service: 1300 659 467

Canada Suicide Crisis Line: 1 833 456 4566

China 400 821 1215

Finnish Association for Mental Health: 010 195 202 (Finnish) or (09) 4135 0501 (foreigners)

Germany Telefonseelsorge: 0800 111 0 111 (Protestant), 0800 111 0 222 (Catholic), 0800 111 0 333 (for children and youth)

Hong Kong The Samaritans Hong Kong 2896 0000

UK Samaritans 116 123

Malaysia Befrienders 03-79568145

Singapore Samaritans of Singapore 1800 221 4444

United States America National Lifeline 1-800-273-8255

Brazil 141

India 91 8422984528


For other lifelines, please go to http://www.suicide.org/international-suicide-hotlines.html





[1] 1 Corinthians 6:19-20; Job 14:5; Qur`an 6: 151.

[2] See Prussian Civil Code by Frederick the Great and subsequent developments into the German Civil Code; https://www.finalexit.org/assisted_suicide_world_laws_page2.html.

[3] The Hippocratic oath is an oath of ethics that most doctors swear upon. Most notable parts of the oath include "do no harm", "protect the privacy of my patients", "must not Play at God" etc; https://en.wikipedia.org/wiki/Hippocratic_Oath


Sources

Cases

  • Carter v Canada (AG), 2015 SCC 5

  • Wackwitz v. Roy, 418 S.E.2d 861 (Virginia Supreme Court 1992)

  • 2 BvR 2347/15, Zum Urteil des Zweiten Senats vom 26. Februar 2020


Legislation

  • ABX2-15 (AB-15), the End of Life Option Act. (California)

  • End of Life Choice Bill (NZ)

  • Section 309, Malaysian Penal Code

  • Section 217, German Criminal Code

  • Suicide Act of 1971. (UK)

  • Section 16 Crimes Act 1900 (Australian Capital Territory)

  • Section 6A Crimes Act 1958 (Victoria)

Journal Articles

  • David Lester (2006) Suicide and Islam, Archives of Suicide Research, 10:1, 77-97

  • Émile Durkheim (1897) Le Suicide

  • Kazarian SH, Evans DR. Handbook of Cultural Health Psychology, Academic Press; 2001.

  • Oxford University Press Medical Law Review Med Law Rev. 2010 Winter; 18(4): 541–563.

  • Indian J Psychiatry (2015) Apr-Jun; 57(2): 122–124.

  • Michael Bradley (2019) The long history of criminalising suicide

  • 1 Graber ML. The incidence of diagnostic error in medicine. BMJ Qual Saf 2013

  • Mark A. O’Rourke, M. Colleen O’Rourke, and Matthew F. Hudson Reasons to Reject Physician-Assisted Suicide/Physician Aid in Dying Journal of Oncology Practice 13, no. 10 (October 01, 2017)

  • Laws By Plato Written 360 B.C.E Translated by Benjamin Jowett

  • Katalin Szanto, Szanto K, Clark L, Hallquist M, Vanyukov P, Crockett M, Dombrovski AY. The cost of social punishment and high-lethality suicide attempts in the second half of life. Psychol Aging. 2014;29(1):84-94.

Websites