Legal regulation of euthanasia in selected countries of the world

Euthanasia as a social phenomenon, but also as a legal category, is a controversial concept in all its respects, in every social class, among professionals and lay people of different ages around the world. It is the prevailing social attitude to any issue in a democratic society that is transformed through elected representatives into specific legal regulations, often further interpreted by court decisions. The divergence in the perception of euthanasia will then, in the case of the legalization of one of its forms, be reflected, among other things, in the legalization of some "popular" form of euthanasia.

At present, there are several theoretical and practical breakdowns of forms of euthanasia, for the purposes of this paper we will deal with forms of euthanasia, the legalization of which can be seen in recent history. These will be the following: euthanasia in the true sense of the word, i.e. active requested euthanasia; assisted suicide, which is sometimes understood in professional circles as a concept close to euthanasia, but not as a form of euthanasia; and finally passive euthanasia. The aim of the paper is to summarize the specific legal regulations of selected countries of the world that have legalized some of the above forms of euthanasia.

Euthanasia in the true sense of the word.

Euthanasia, in the true sense of the word, means actively requested euthanasia, i.e. an act by which a person kills a terminally ill person at his or her prior express request. States that have legalized this form of euthanasia include Belgium, the Netherlands, Luxembourg and the Republic of Colombia.

Netherlands

Criminal law in the Netherlands is governed in particular by the Criminal Code of 1881 [1]. From the point of view of the Dutch Criminal Code, the issue of euthanasia and assisted suicide is regulated as follows. Euthanasia as homicide on request and assisted suicide are systematically divided into two individual acts, which are generally criminal, but under certain legal conditions its criminality is excluded.

Criminal law regulation

Article 293 of the Criminal Code provides for euthanasia or, in the Dutch sense, homicide on request, so that anyone who terminates the life of another person at the express and serious request of that person is criminally liable. However, the second paragraph of Article 293 of the Criminal Code provides that the above conduct is not unlawful if it is performed by a doctor who meets the requirements of due diligence laid down in a special regulation (Act on Termination of Life on Request and Assisted Suicide [2]) and at the same time the doctor notifies the locally competent pathologist that such an action has taken place (under the Funeral and Cremation Act [3]).

Proceedings considered as assisted suicide are regulated by the Criminal Code in Article 294. Here, the legislator stipulated that a person who intentionally incites another to commit suicide, if this occurs, will be criminally liable. Paragraph 2 of the article provides, somewhat differently, that if someone intentionally assists or provides him with the means to commit suicide and suicide occurs, that person will not be criminally liable if he fulfills the preconditions required by law as set out in para. 2 of the Criminal Code, i.e. that the above procedure is not an illegal act if it is performed by a doctor who meets the requirements of due diligence laid down in a special regulation (Act on Termination of Life on Request and Assisted Suicide) and at the same time the doctor notifies the locally competent pathologist, that such an act took place (according to the Funeral and Cremation Act). However, this article shall apply mutatis mutandis in connection with the provision of Article 294 of the Criminal Code.

This means that under this article, the person who incites another to commit suicide will always be criminally liable. In the case of assisted suicide, only a person who assists another person or provides him / her with the means to commit suicide will not be criminally liable if he fulfills the characteristics required by law.

Interestingly, the factual nature of the criminal offense of participation in suicide under the Slovak Criminal Code (Act No. 300/2005 Coll., The Criminal Code, as amended) is expressed in such a way that the criminal offense is committed by someone who incites other person to suicide or helps the other person to commit suicide if at least a suicide attempt is made. As follows from the above, the attempt of a criminal offense to incite suicide is not possible in the Netherlands, resp. it is not criminal.

Special legislation relating to euthanasia and assisted suicide

As mentioned above, euthanasia in form of homicide on demand and assisted suicide is not a criminal offense provided that the legal preconditions are met - the provision of "due diligence" and the notification of the act to the relevant pathologist. These preconditions are regulated by a separate legal regulation in the Act on Termination of Life on Request and on Assisted Suicide and the Act on Funerals and Cremation.

Due diligence for the purposes of Articles 293 and 294 of the Dutch Criminal Code, according to the Act on Termination of Life on Request and Assisted Suicide, means that a doctor:

must be convinced that the patient's request (for euthanasia or suicide assistance) has been voluntary and duly considered
must be convinced that the patient's suffering was lasting and intolerable
informed the patient about his situation and future prospects
makes sure that the patient is convinced that there is no other alternative
consulted the situation with at least one independent doctor who saw the patient and gave the doctor a written opinion on the requirements for proper care according to the previous points 1 to 4
ended the patient's life or assisted in suicide with proper care (in this case, it is the general duty of a doctor).

This law also regulates the performance of euthanasia and assisted suicide if a patient over 16 years of age who is no longer able to express his or her will, but at the time of request for euthanasia or assisted suicide, was able to do so, if the patient, who requests euthanasia or assisted suicide is between the ages of 16 and 18 (in which case a legal representative must be involved in the decision-making process) and if the patient requesting euthanasia or assisted suicide is between the ages of 12 and 16 (in this case, the legal representative must agree to the performance of euthanasia by the doctor).

The second of the requirements, the fulfillment of which is a precondition for the impunity of euthanasia and assisted suicide, i.e. the notification of this procedure to the relevant pathologist is regulated by the Funeral and Cremation Act as follows.

The attending physician who euthanized or assisted in suicide cannot issue a death certificate. Instead, he informs the pathologist concerned of the cause of death by sending a form stating how he has complied with the due diligence requirements. If the pathologist finds that the due diligence requirements have not been met, he will refer the case to the public plaintiff / prosecutor, who will further investigate the case and, if he agrees with the pathologist's position, may draw criminal consequences against the attending physician. The regional evaluation commission set up and intended, among other things, to assess compliance with the due diligence requirements is always informed about the above-mentioned actions. It works closely with the public prosecutor in these cases. The Commission was set up and also issued a report in 1985 defining euthanasia as "the intentional cessation of another person's life at the request of that person" and set out the conditions for its exercise. This definition is still used in the Netherlands.

From our point of view, euthanasia in the Netherlands can be considered as a circumstance precluding illegality, namely the exercise of a right and an obligation.

Belgium

For the purposes of criminal assessment of euthanasia in Belgium, there is no need to deal with the Belgian Criminal Code, on the grounds that the Belgian Euthanasia Act [4] provides in Chapter II § 1 that “a doctor who performs euthanasia shall not commit any criminal offense” if it meets the conditions required by law. Even though largely inspired by the scheme and concepts of the Dutch legislation, the Belgian legislation is simpler than the Dutch legislation, as all the legislation on the issue is concentrated in one piece of legislation - the Euthanasia Act. However, the conditions that must be met by the doctor performing the euthanasia are in Chapter II § 1 et seq. of the Euthanasia Act elaborated in much more detail.

The issue of meeting the above conditions can be divided into several groups for the purposes of this paper:

conditions for impunity for a doctor who performs euthanasia if the patient is an adult who is conscious, able to express his will and mentally healthy
conditions for impunity for a doctor who performs euthanasia if the patient is an adult who is conscious, able to express his will and mentally healthy, but the doctor does not expect the necessary death of the patient in the near future
conditions for impunity for a doctor who performs euthanasia if the patient is an adult who is unconscious or unable to express his or her will

The general conditions for the impunity of euthanasia mean that the person requesting euthanasia must be an adult, competent to perform legal acts and be aware at the time of the request for euthanasia, the request must be voluntary, well thought out, repeated, must not be the result of "external pressure" by which is meant persuasion, excessive description of further suffering, etc. and the patient requesting euthanasia must suffer unbearably and irreconcilably physically or mentally, and this suffering must be the result of a serious incurable disorder, disease or accident. In addition, other conditions must be met, namely:

the patient requesting euthanasia must be properly informed of his or her state of health and estimated life expectancy, and must be consulted on possible palliative care options
the doctor must be sure of the permanence of the request for euthanasia and the constant suffering of the patient, this must be provided with consultations regarding euthanasia for a longer period of time
the attending physician must consult the entire case with another independent and competent physician who will examine the patient and must be convinced of the above and the like.

These conditions apply to cases where the patient is a conscious adult able to express his or her will and mentally healthy. If the patient's death is not expected in the near future, the attending physician must consult the psychiatrist who is examining the above conditions in the context of the applicant's mental state. In this case, it is necessary to maintain a period of at least one month for performing euthanasia, which starts from the date of the patient's request for euthanasia. In all the above-mentioned cases, the law requires certain formal and material preconditions for the validity of the euthanasia application, which are, inter alia, the written form, date and signature of the applicant. If the applicant is unable to draw up such a document himself, he may designate a person to draw up the application. However, the person so designated must be an adult and must not have any property benefit from the patient's death. The application must be signed in front of the attending physician and added to medical documentation. The request can be revoked at any time. A patient for whom there is a reasonable presumption that there will be a situation where he permanently loses consciousness or is unable to express his will, can at any time before such a condition occurs perform a so-called predetermined guideline, resp. an order for a doctor to perform euthanasia under certain conditions. In USA it is known as “Living will”. In order for a physician to perform euthanasia on the basis of this order, he must be sure that the patient suffers from an incurable serious illness or disorder, is unconscious, and does not anticipate improvement in a given state of medical knowledge. The order must contain at least two witnesses, at least one of whom must not have benefited from the applicant's death and must also be signed by these witnesses. It is also limited in time, it must be made no more than 5 years before the patient loses consciousness. It goes without saying that it can be changed or revoked at any time.

If the doctor performs euthanasia, he is obliged to prepare and deliver a report within 4 working days to the statutory commission, which examines whether the preconditions for the legal performance of euthanasia have been met. If it concludes that not all the preconditions have been met, it delegates the case to the public prosecutor for resolution.

The Belgian legislation on euthanasia in a special law did not therefore change the wording of the provisions of the Criminal Code. As in the Dutch legislation, euthanasia is understood in the Belgian legislation as a circumstance precluding illegality - the exercise of rights and obligations.

The ongoing debate on the legalization of child euthanasia in Belgium is currently a controversial topic. However, in connection with the legislation in force in the Netherlands, the author expects the adoption of similar legislation in Belgium in the near future.

Republic of Colombia

Colombia is a country notorious for drug problems, the drug mafia and as a country that continues to be one of the highest ranked in the world in terms of murders. Nevertheless, and despite the prevailing case law and strict legislation by which the country's leadership seeks to address the seemingly intractable problem of homicide, the Constitutional Court of the Republic of Colombia ruled in 1997 in Case C-239/97 that “no one can be held criminally liable, if he takes another's life, and if that person is terminally ill and clearly asks for it.” In 1997, Colombia became a country that legalized euthanasia in this way. [5]

Assisted suicide.

Assisted suicide is the act by which a person provides a terminally ill person with the means or knowledge to commit suicide, which the terminally ill person himself performs. Assisted suicide is accepted in US states such as Montana, Oregon, Vermont and Washington, from European countries it is Switzerland.

Montana

Montana as one of the states of the USA is a country with a common law system. In addition to written law, court decisions are legally binding. It was such a court decision that legalized euthanasia in Montana. This is specifically the case of Baxter versus Montana [6], which was validly decided in the second instance on Dec. 31, 2009. It was a case involving four doctors, organization “Compassion and Choices” and Robert Baxter, a 76-year-old truck driver who was dying of lymph node cancer at the time of the decision. The plaintiffs in the court of first instance asked the court to establish the constitutional right "to receive and provide assistance in dying".

The Court of First Instance ruled that terminally ill patients who are legally competent have the right to a dignified death in accordance with Article II, paragraphs 4 and 10 of the Montana Constitution [7]. This includes the right for the help of the doctor in order to obtain a lethal dose of medication, which the patient can take on his own when he decides to end his life at his own risk. This judgment also protects the doctor who will provide assistance. The Attorney General appealed against the above decision, but the Supreme State Court agreed with the conclusion of the Court of First Instance in the matter of the basic operative part of the judgment. However, not because such a right derives from the Constitution, but because criminal law, as a circumstance excluding illegality, considers the consent of the injured party to be the consent given by a person qualified to give such consent who is aware of the consequences of the procedure to which the consent was given, consent is not enforced, given under duress or against public order. It was public policy as a possible circumstance in that regard that the Supreme State Court examined and concluded that it was not against the public policy of the State of Montana if someone consented to assistance in their own suicide.

The mentioned articles of the Constitution stipulate the following:

Article 4

Individual dignity

The dignity of the human being is inviolable. No one can be denied the same / equal protection by law.

Article 10

The right to privacy

The right to individual privacy is fundamental to the well-being of society and cannot be violated without demonstrating the public interest. [8]

Oregon

The state of Oregon legalized assisted suicide in a different way than Montana, specifically through the legislative process. Euthanasia in the form of assisted suicide was enacted in 1994 by one of the best-known legal acts on euthanasia, the Death With Dignity Act [9]. It generally lays down the conditions under which a person may be allowed to commit suicide and the conditions for the impunity of the person who provides the means to do so. These can be systematically divided into several categories.

Assisted suicide can only be requested by a person who is 18 years of age or older, a resident of the state of Oregon, is able, resp. qualified to make decisions about her health care and is diagnosed with a fatal disease which, according to the attending physician and his prognoses, will lead to the death of the patient within six months.

The patient's treating physician must be licensed in the same country as the patient being treated, his diagnosis to the patient must include information about the patient's fatal disease, the patient's life expectancy must be 6 months or less, and the diagnosis must be confirmed by another physician who also confirms the patient’s ability to make decisions about his or her healthcare. In the event that any of the above-mentioned physicians determine that the patient's judgment is impaired, the patient must undergo a psychological examination. The attending physician is also required by law to inform the patient of alternatives, including palliative care, hospice care, and pain management options. The attending physician is also obliged to ask the patient to inform his / her close family member of his / her intention. However, the patient may not comply with this, resp. does not have to have a person to whom he or she would report a request for assisted suicide, but this does not constitute an obstacle to the impunity of the assistant doctor's conduct if the other legal preconditions are met.

In terms of time, the patient must make at least three requests for the prescription of a lethal dose of medicines, the last of which must be in writing, and a legal 15-day period must be maintained between the first and second oral requests. Following a written request, the law requires an additional 48-hour period, after which the patient can choose the prescribed lethal dose of medication.

By law, any doctor who prescribes a lethal dose of medication is obliged to report this fact to the state authority, which determines whether in which case all legal requirements for impunity for a doctor have been met.

The interesting thing about the Oregon legislation is the fact that it follows directly from the law that doctors and medical facilities are not obliged to help with suicide. In the legislation of Belgium or the Netherlands, or in other countries, of course, the doctor does not have to assist in suicide or euthanasia, but in the case of refusal, he argues mainly by the Hippocratic Oath, resp. subject to conscience. Another amendment that distinguishes the Oregon Act from others is that it also regulates the patient's health and life insurance, legal acts related to assisted suicide, and others. Specifically, in § 3.12 and § 3.13, the law stipulates that no one may, by contract, will or agreement, undertake to request assisted suicide or to undertake not to request assisted suicide. Furthermore, the law stipulates that no obligation arising from the contract may be conditioned by an obligation to request assisted suicide or an obligation not to request it. Also, the preconditions for the provision of health, life or other insurance and annuities must not be made conditional on a person requesting assisted suicide or committing not to request assisted suicide. For a qualified legal act of a person who is affected by the acceleration of his death, it also applies that this must not affect the payment of insurance or annuities and other obligations and rights arising from insurance or annuities.

The impunity of a doctor and a patient in assisted suicide, provided that all legal preconditions are met, is regulated by law in § 4.01.

In 1997, the Oregon legislature tried to repeal the Decent Death Act, but the attempt was rejected. In 2005, the issue of euthanasia was addressed by the US Supreme Court in the Gonzales v. Oregon, where he adhered to the Dignified Death Act in justifying his judgment.

Switzerland

The commentary on the first Swiss Criminal Code of 1918 stipulated that “In modern criminal law, suicide is not a crime ... Assistance and participation in suicide can be motivated by altruistic motives. That is why such conduct is criminal only if the perpetrator is led by selfish reasons.”[10] At that time, Swiss society's views on suicide were influenced by romanticism and honesty, which were considered acceptable reasons at the time. Health reasons in that period did not play an important role, the presence of a doctor in suicide, respectively assisted suicide was therefore not considered necessary.

In view of the above, Article 115 of the Swiss Criminal Code [11] considers suicide assistance to be a criminal offense only if the motive for such conduct is selfish or for the benefit of a suicide bomber. Article 115 does not stipulate that a doctor must be involved in the performance of assisted suicide, nor that the patient, resp. the person requesting euthanasia does not have to be in the terminal stage of the fatal disease. Article 114 of the Criminal Code regulates "murder at the request of the victim", which, however, remains criminal. The concept of Swiss regulation is based on the difference between aid and participation in suicide on the one hand and homicide on request on the other, the first alternative remaining legal if the requirement of altruistic motivation is met, while the second alternative remains criminal.

In Switzerland, therefore, the issue of euthanasia and assisted suicide is determined directly by the Criminal Code without other (apart from the so-called medical prescriptions) legal regulations. Active euthanasia is considered a crime, while suicide assistance is not.

Very important for the further development of euthanasia in not only Switzerland was judgment of the European Court of Human Rights in case GROSS versus SWITZERLAND of 14 May 2013 which ruled that Switzerland had violated Art. 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms by preventing Ms. Gross from securing a lethal dose of sodium pentobarbital to end her life. [12] According to the so-called medical legislation (Law on Medicinal Products, Law on Therapeutic Products and others) it was not allowed to prescribe a lethal dose of medicines in Switzerland until the above decision was taken, as it did not meet the legal requirements. However, the complainant, Ms. Gross repeatedly asked for sodium pentobarbital to be ordered to end her life, as it was not complied with under effective law, despite Article 115 of the Criminal Code, and she turned to the ECtHR, which ruled as mentioned above. Despite the slight regulation of euthanasia, the practice of euthanasia in Switzerland is the longest in modern Europe. There are also several organizations dealing with euthanasia. Of the most important there are Dignitas or Exit.

Passive euthanasia

Passive euthanasia is a relatively broad term encompassing an omissive action due to which a patient dies due to the natural course of his or her illness when certain medical procedures are terminated or certain medical procedures are not initiated at the patient's request, or without the patient wishing to do so or commenting on the matter.

However, this form of euthanasia is not always considered "genuine" because it does not presuppose active action that would result in the death of the person. Based on the above, this form of euthanasia (for scientific purposes it can be argued that passive euthanasia is a valid form of euthanasia) is legal (especially in the form of passive requested euthanasia) in several developed countries, including the Slovak Republic, Spain, Ireland, India and almost all US states. Passive euthanasia is legalized in almost all the mentioned countries through the so-called medical laws and regulations governing the practice of the medical profession and patient care. In particular, these determine when it is possible to discontinue a particular type of treatment in a particular patient.

Another possibility to legalize this form of euthanasia is the adoption of legislation that grants patients the right to "live with dignity", which includes the patient's right not to continue treatment at his request under certain conditions. It is this method of legalization of passive euthanasia that is used in the Slovak Republic.

Passive requested euthanasia in Slovak Republic

In 2000, a "Charter of Patients' Rights in the Slovak Republic" was prepared on the premises of the Ministry of Health of the Slovak Republic within the PHARE project, where Article 8 briefly regulates "Care for the terminally ill and dying". The Charter was approved by the Government of the Slovak Republic on 11 April 2001 by Resolution no. 326. Under this Charter, the patient is granted several rights. In particular, these include:

- the patient has the right at the incurable stage of the disease to such relief and alleviation of pain, which corresponds to the current knowledge and possibilities of health care for the dying
- an incurably ill and dying patient has the right to humane care
- the patient has the right to be accompanied at the last moments of his life by a person of his choice
- the patient has the right to die with dignity
- the patient is entitled to strict compliance with his written request not to be resuscitated or to refuse the application of medical interventions and procedures. If, despite a proper explanation, the patient refuses the necessary healthcare, the doctor will request a statement of the patient's refusal in writing or otherwise provable.

The cited provisions of the Charter according to Art. 8 are not regulated in a legal regulation with the force of law. Nevertheless, the patient can invoke the mentioned rights due to the fact that this document was approved by a resolution of the Government of the Slovak Republic. According to the Charter of Patients' Rights, the patient has the right to strictly respect his written request not to be resuscitated or to refuse certain or all medical interventions and procedures. In this case the patient assumes all responsibility for the consequence. "If the attending physician respects the wishes of a terminally ill patient, he or she cannot be criminally liable for the death of that patient (for example, this physician cannot commit the offense of failing to provide assistance under Section 177 of the Criminal Code)." [13] However, if there will not be such a request of the patient and the doctor will intentionally not administer the drug or perform the procedure necessary to prolong the life or keep the patient alive, it will be a crime of murder, respectively premeditated murder under the Criminal Code.

Conclusion

Euthanasia in its various forms is legal in several countries around the world. Due to the expansion of medicine to such an extent as can be seen in recent decades, it can be assumed that in the near future it will be possible to keep a person alive even under socially unacceptable and unethical conditions. That is why the legalization of euthanasia will be an increasingly debated issue and the legislator will be forced to deal with this issue legally. The author of the article therefore considers it appropriate, even necessary, to compare the existing legal regulations of euthanasia, to be inspired by the positives of that regulation and to point out the shortcomings of legal regulations so that the legislator can avoid shortcomings in case of legalization of euthanasia.

References

Wetboek van Strafrecht

Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding

Wet op de lijkbezorging

The Belgian Act on Euthanasia of May, 28th 2002

www.euthanasia.com/colum2.html

http://www.americanbar.org/content/dam/aba/migrated/aging/PublicDocuments/baxtr_v_mont_sum.authcheckdam.pdf

http://courts.mt.gov/content/library/docs/72constit.pdf

Note, it is author's translation.

http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year14.pdf , http://public.health.oregon.gov/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Pages/ors.aspx

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1125125/

Strafgesetzbuch