Abstract
The term ‘euthanasia’ is not clearly defined. Euthanasia is evoked in many aspects of terminal care: interruption of curative treatment at the end of life, palliative care or the act of deliberately provoking death through compassion. A law on ‘patients’ rights and the end of life', promulgated in France on 22 April 2005, led to changes in the French Code of Public Health. In this work, we have first outlined the key provisions of this law and the changes it has brought, then we have compared current legislation on the subject throughout Europe, where a rapid overview of current practice in terminal patient care revealed four different types of legislation: the first authorizes euthanasia (in the sense of provoking death, if this choice is medically justified), the second legalizes ‘assisted suicide’, the third, which is sometimes referred to as ‘passive euthanasia’, consists of the non-administration of life-sustaining treatment and, finally, the fourth prohibits euthanasia in any form whatsoever. In the last section, we have attempted to clarify the as yet indistinct notion of ‘euthanasia’ in order to determine whether the conception of terminal care in the Law of 22 April 2005 was consistent with that put forward by the philosopher Francis Bacon, who claimed that, ‘The physician's role is to relieve pain, not only when such relief can lead to healing, but also when it can proffer a calm and trouble-free death, thus putting an end to the suffering and the agony of death’ (modern adaptation of the original quote).
Introduction
The term ‘euthanasia’ was invented in the 16th century by the English philosopher Francis Bacon, from the Greek eu, meaning ‘good’ and thanatos, meaning ‘death’. This etymological origin therefore offers a definition of euthanasia as being a gentle and peaceful way to die, evoking death without suffering. In Bacon's Instauratio Magna, he claimed that, ‘The physician's role is to relieve pain, not only when such relief can lead to healing, but also when it can proffer a calm and trouble-free death, thus putting an end to the suffering and the agony of death’ (modern adaptation of the original quote). 1 In the medical world, the relief described by Bacon and offered in the last instants of life would appear to approach the notion of ‘palliative care’, the term ‘euthanasia’ more often referring to chosen as opposed to natural death and/or to the voluntary and compassionate act of provoking death. A law on ‘patients’ rights and the end of life', promulgated in France on 22 April 2005, led to changes in the French Code of Public Health. 2 The aim of this work is, first, to outline the key provisions of this law and the changes it has brought, then to compare current legislation on the subject throughout Europe. Finally, in the last section, we will attempt to clarify the as yet indistinct notion of ‘euthanasia’ in order to determine whether the conception of terminal care in the Law of 22 April 2005 is consistent with that put forward by Bacon.
French regulation on end of life in France: general outline of the law of 22 April 2005 2–8
Although the French Law of 22 April 2005, pertaining to patients' rights and the end of life, does not legalize euthanasia (in the sense of compassionately and voluntarily provoking the death of a terminally ill patient), it does highlight the rejection of ‘unreasonable obstinacy’ and allows for treatment to be either suspended or simply not initiated, whenever it appears to be ‘needless, disproportionate or having the sole effect of artificially maintaining life’, which was not the case prior to the promulgation of this law. 2 Consequently, the law proffers new rights to patients, enabling a shift from curative to palliative care, including the administration of analgesic drugs, the side-effects of which include the hastening of death (the physician being required in such cases to appropriately inform the patient, confidential person, family or close friend). The law of 2005 enables any terminally ill patient to decide either to limit or to stop all treatment, the term ‘all treatment’ replacing ‘a treatment’, hence implying that, when survival depends solely on the maintenance of artificial feeding or any other life-sustaining treatment, the patient may demand that these be stopped in favour of palliative care aimed at offering a dignified accompaniment towards death, without suffering. If the patient is unconscious or unable to express his/her own will, the termination or limitation of any treatment may only be decided upon within the framework of a collegial procedure involving the care team and following consultation with a ‘confidential person’ formerly identified by the patient. 3 The patient's prior instructions should be taken into account (provided that such instructions were given less than three years prior to the loss of consciousness). 4 In such cases, the physician collects information on any previous wishes potentially expressed by the patient, via prior instructions or witness reports from a duly designated confidential person, failing which a family member or friend. These prior instructions ‘indicate the person's own wishes with regard to his/her end of life and concern the conditions for limiting or stopping treatment. They may be revoked at any time.’ If a patient who is unable to express his/her wishes has failed to convey such instructions, the physician may, within the framework of a collegial decision and after having consulted the confidential person, decide to limit or stop any treatment considered as needless, disproportionate or having the sole aim of artificially prolonging the dying person's life. The ultimate decision is made by the physician responsible for the patient, following justified approval from at least one other physician, called upon to act as a consultant and having no hierarchical link with the former. In all cases, such decisions, together with their justification and the associated procedure, need to be noted in the patient's medical file. When these conditions are duly satisfied, the law protects the physician according to article 122-4 of the French Criminal Code, of which the first paragraph states, ‘Any person accomplishing acts prescribed or authorized by legislative or regulatory provisions is not criminally responsible’. Furthermore, the law provides for the extension of palliative care to the patient's home, health-care centres or medico-social centres.
This law consequently offers concrete solutions to the various realities with which patients, their families, close relations and care-givers can be faced, without as much as mentioning the term euthanasia.
Legislation on the end of life in certain European countries
A rapid overview of current practice in terminal patient care throughout Europe reveals four different types of legislation: the first authorizes euthanasia (in the sense of provoking death, if this choice is medically justified), the second legalizes ‘assisted suicide’, the third, which is comparable to French legislation and sometimes referred to as ‘passive euthanasia’, consists in the non-administration of life-sustaining treatment and, finally, the fourth prohibits euthanasia in any form whatsoever.
Two European countries have legalized euthanasia: the Netherlands and Belgium 9–16
In 2001, the Netherlands was the first country in the world to legalize euthanasia: legally speaking, euthanasia and assisted suicide remain criminal offences; however, Dutch law has introduced an exemption from criminal responsibility in favour of physicians who abide by a number of ‘criteria of due care’. 9 To satisfy such criteria, the patient's request must be voluntary and carefully considered, he/she must be fully informed of his/her situation and suffering must be unbearable with no prospect of improvement. Furthermore, another independent physician must be consulted and must provide his/her written assessment of the aforementioned ‘criteria of due care’. In addition, Dutch law strictly forbids euthanasia for minors aged under 12, for minors aged under 16 and incapable of expressing their personal wishes and for all minors, independent of age, deemed incapable of adequately appreciating their own best interests. On the contrary, for minors aged from 12 to 16, and deemed capable of adequately appreciating their own best interests, euthanasia is authorized provided that approval is granted from the person(s) exerting parental authority. For minors aged from 16 to 18, person(s) exerting parental authority must be ‘involved in the decision’.
The criteria adopted in Belgium on 28 May 2002 are stricter, the physician only being permitted to practise euthanasia in the case of a ‘serious and incurable medical condition, whether accidental or incurable’. 12,13 The physician must ensure that the patient, adult or emancipated minor (aged at least 15 years), expresses his/her request in a voluntary manner, following careful consideration and under no outside pressure. Law does not impose any particular medical technique for practising euthanasia and, consequently, assisted suicide falls within the scope of this law. The physician in charge of the patient is obliged to call upon one or several outside consultants, to guarantee that the medical condition the patient is suffering from is indeed serious and incurable, and that associated suffering (physical or psychological) is ‘constant, unbearable and impossible to relieve’. The first consultant must examine the patient and consult his/her medical file, then establish a report summarizing his/her observations and conclusions. The second consultant must be called upon if the patient's death is not likely to occur in the foreseeable future: he/she must ensure that the patient's request is indeed ‘voluntary, carefully considered and repeated’, and that his/her suffering is unbearable and cannot be relieved. Belgian law also provides for the possibility for any person, adult or emancipated minor, to have his/her wishes recorded in writing, certifying his/her desire to have euthanasia practised by a physician, should he/she become incapable of expressing such desire or in a state of irreversible unconsciousness. A royal decree dated 2 April 2003 states that, in order to remain valid, prior instructions must be confirmed every five years. It is worthy of note that a databank centralizing patients' prior instructions was established in July 2008.
In both of the aforementioned countries, law has established a procedure to control euthanasia, involving the preparation of a report drafted by the physician practising euthanasia, which must be submitted to an ad hoc committee. This committee is composed of physicians, jurists and specialists in ethical issues, who are responsible for ensuring that euthanasia has indeed been practised within the conditions set down by law. Should this fail to be the case, the committee informs the public prosecutor. In the Netherlands, control of the abidance by ‘criteria of due care’ is conducted by the community forensic scientist, the Queen's Prosecutor and regional control committees. The Queen's Prosecutor or control committees refer any contentious cases to the College of Principal Public Prosecutors. The latter then has total liberty to initiate a legal enquiry. In Belgium, the Federal Evaluation and Control Committee on Euthanasia (CFCEE), in charge of examining registered cases of euthanasia, comprises 16 members (8 medical doctors, 4 of whom are professors in a Belgian university; 4 professors in law in a Belgian university or lawyers; and 4 members from fields concerned with issues relating to patients suffering from incurable disease).
In Luxembourg, deputies voted on legislation on euthanasia on 18 December 2008, in the case of ‘terminal medical situations’; however, they prohibited euthanasia on minors. The legal provision, adopted by deputies on 17 March 2009, is awaiting its second reading. 15,16 According to the text adopted after first reading, patients must suffer from a terminal medical condition, presenting with constant and unbearable physical or psychological suffering for which there is no prospect of improvement. In all cases, and prior to practising euthanasia, the practising physician is obliged to consult another physician, the latter providing an assessment of the irreversible nature of the patient's condition. Within four days of practising euthanasia, the practising physician must submit a registration document to a committee comprising nine members, appointed by the Chamber of Deputies.
In England and Wales and certain Swiss cantons, although ‘assisted suicide’ is prohibited, it can, in certain very specific circumstances, and subject to compliance to a number of conditions, escape prosecution 17–25
Thus, in Switzerland, the federal government has prohibited euthanasia; however, certain cantons have decriminalized ‘assisted suicide’. 17–19 As there is no federal legislation pertaining to patients' rights at the end of life, medico-ethical directives set by the Swiss Academy of Medical Sciences (SAMW) apply. The academy defines euthanasia as cases for which the person who provokes death is not the person who dies. It draws a distinction between three types of euthanasia: active direct euthanasia (when a third party voluntarily provokes the death of an individual), which is punishable according to the Swiss Criminal Code; indirect active euthanasia (consisting of administering substances aimed at relieving suffering, even if such substances may also hasten death), which is authorized by the SAMW under the term ‘therapeutic withdrawal’, given the absence of the notion of intention and, finally, passive euthanasia, involving the renunciation of life-sustaining measures, which is authorized provided that the patient has expressed his/her associated desire or, should he/she be unconscious, has expressed such desire by means of prior instructions. Assisted suicide can be defined as cases where the person practising euthanasia is his/her own victim, and is only repressed by the Swiss Criminal Code when based on ‘selfish grounds’. The patient's discernment is mandatory, since he/she must desire physically (via his/her act) and mentally to die. Hence, assisted suicide is excluded for patients suffering from certain psychological disorders. According to the SAMW, ‘in exceptional circumstances’, the physician responsible for the patient can help the latter to commit suicide, provided that the former has confirmed that the patient's death is imminent, that alternative treatment has been proposed, that the patient is capable of discernment and that he/she wishes to die. The physician is then authorized to provide the terminally ill patient with a fatal dose of a medicinal drug which the patient may then administer him/herself. Under no circumstances may the physician perform such drug administration, considered as criminally punishable. The patient's death must be declared to the competent authorities as being of a non-natural cause.
In England and Wales, where active euthanasia and assisted suicide are prohibited, treatment can legally be discontinued in certain cases. Indeed, ‘the Bland case’ is an important and rare case where non-voluntary euthanasia was legally permitted: Mr Bland suffered irreversible damage to his brain and was in a persistent vegetative state for four years. He was incapable of deciding for himself whether to continue or stop treatment but the court decided that it was in his best interest to stop tube feeding and the antibiotics and allow him to die. The view of the judges was that ‘it would have been appropriate to stop the antibiotic treatment as soon as agreement would have existed between the medical team and the family’. The lower court's approach was later approved by the House of Lords. The decision was based on the doctrine set out in F v West Berkshire HA (1993) where the court considered artificial feeding to be a medical treatment and decided that any life-sustaining measures (including hydratation, nutrition and other medical treatment, including antibiotics) should be discontinued. Nevertheless, in such specific cases, doctors have to seek a declaration from the courts before withdrawing medical treatment; otherwise they run the risk of being prosecuted for murder. 20,21 British jurisprudence acknowledges that any patient may refuse treatment, even if such a decision implies provoking his/her death, this right being a fundamental liberty to which any individual is entitled. 22 The law also acknowledges a patient's prior instructions, via which he/she has expressed the desire not to be reanimated (in the case of ‘DNAR – do not attempt resuscitation’ orders). Furthermore, British law has developed a ‘double effect’ theory, authorizing a physician to legally administer analgesics to any terminally ill patient, the secondary (double) effect of which, foreseeable yet not sought, is to hasten death. 23 The 1961 Suicide Act legalized suicide and attempted suicide, but assisted suicide remains an offence. 24 However, in July 2009, the Director of Public Prosecution (DPP) was asked by the House of Lords, Britain's highest court, to clarify the law on assisted suicide, following the case of Debbie Purdy, 26 a British citizen suffering from multiple sclerosis and who was considering assisted suicide in Switzerland. Debbie Purdy asked for clarification on whether or not her husband would face prosecution if he helped her to travel to the Dignitas clinic in Switzerland to take her own life. On 29 September 2009, Keir Starmer, QC, the DPP, made public specific directives on the circumstances under which an individual may or may not be prosecuted for having assisted the suicide of a close relation. 25 Concurrently, the crown prosecution service (CPS) launched a consultation exercise inviting members of the public to respond with their views on the policy. The consultation exercise was conducted over the 12-week period prior to 16 December 2009. Mr Starmer consequently published the policy on 15 February 2010 after taking account of thousands of responses received as part of what is believed to be the most extensive snapshot of public opinion on assisted suicide since the Suicide Act 1961 was introduced. Indeed, close to 5000 responses were received by the CPS following the consultation exercise launched in September. This specific policy focuses more precisely on the motivation of the suspect rather than the characteristics of the victim and provides a clear framework for prosecutors to decide which cases should proceed to court and which should not. 27 It is clearly emphasized that assisted suicide remains illegal in Great Britain, and that although no ‘guarantee of non-prosecution’ results from the policy, individuals assisting others to take their own lives will very probably escape prosecution, provided that such assistance is motivated by compassion and that no doubt whatsoever remains on the patient's personal will to do so. Mr Starmer declared that he hoped his guidance would now bring greater clarity to the issue, adding, nevertheless, that all cases would still be investigated by the police. He listed a number of factors that may influence the authorities not to prosecute, specifying that it was not in the public interest to charge an individual if the deceased ‘had reached a voluntary, clear, settled and informed decision to commit suicide’ and had requested such assistance on his/her personal initiative. The assisting individual must be ‘wholly motivated by compassion’ and his/her help must be limited to ‘minor encouragement or assistance’. He also specified that the suspect had to ‘report the victim's suicide to the police and fully assist them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance’. On the contrary, prosecution is more likely in cases where the deceased was aged under 18 years, if his/her judgement appeared to be impaired or if he/she had not clearly expressed the wish to end his/her life, but also where outside pressure may have been exerted on the deceased, or if the ‘suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim’. Mr Starmer further specified that these new rules were immediately in force and that they concerned England and Wales.
The majority of these new directives mark a major advance and the Law Society of England and Wales has requested that the Parliament legislate on the matter. Consequently, a bill for the decriminalization of assisted suicide in certain cases, at the time of writing in abeyance owing to the suspension of Parliament prior to the UK general election on 5 May 2010, is likely to be reconsidered.
Other countries have adopted legislation similar to that applicable in France, the principles of the Law of 22 April 2005, condemning euthanasia but authorizing, under certain circumstances, the possibility of ‘assisting death’ 28–34
Consequently, in Denmark, since 1 September 1992, terminally ill patients capable of expressing their prior refusal for treatment may draft a ‘medical will’, which physicians must abide by should the patient suffer from an incurable disease or serious injury, and should he/she no longer be capable of expressing such will. 28,29 Danish law obliges health-care professionals to consult the registry of medical wills. Nevertheless, in the absence of a ‘medical will’, laws pertaining to the medical profession allow the physician caring for a terminally ill patient to ‘refrain from initiating or pursuing treatment, the sole benefit of which is to delay the date of death. In the same circumstances, the physician may administer analgesics, tranquillisers or equivalent products required to relieve the patient, even if such action may accelerate death’.
Similarly, in Germany, Austria, Spain and Italy, jurisprudence acknowledges refraining from administering life-sustaining treatment to an incurable patient, provided that the latter has clearly expressed such a wish. In Germany, as in Austria, law and jurisprudence grant any incurable patient the right to refuse care and treatment, provided that he/she has clearly expressed such a wish. In Germany, the Federal Court of Justice has affirmed its preference for ‘dignified death, without suffering and in keeping with the patient's wishes’, acknowledging the discontinuation of treatment or care that will prolong life, at the incurable patient's request. On the contrary, the administration of a medicinal product that will provoke death is considered as homicide. The German ethics committee voted against assisted suicide on 13 July 2006, whereas the German Association of Jurists recommends the criminal punishment of assisted suicide. 30
In Spain, the very first law granting patients the right to refuse medical treatment and to draft prior instructions was voted in the year 2000 in Catalonia, an independent Spanish region. Subsequently, on 14 November 2002, the national Parliament adopted a law officially authorizing Spanish regions to establish legislation on the subject. Today, 13 of Spain's 17 regions have adopted a text acknowledging patients' rights at the end of life. However, the government clearly refuted the eventuality of a law on active euthanasia. 31
Euthanasia is also prohibited by Italian law, even if the patient has given his/her consent. 32 In the absence of a clear legal framework, the discontinuation of life-sustaining treatment(s) is nevertheless tolerated: hence, an incurable patient, at the end of his/her life, may request that prolonging life by medical means be stopped or care suspended. In order to preserve the patient's right for free choice, in December 2003, the Italian National Bioethics Committee approved the implementation of a ‘biological will’, a document that should form the basis of a law enabling patients to indicate which treatment they wish to receive if terminally ill. Nevertheless, the Italian Senate voted in a law in February 2009 prohibiting terminally ill patients from deciding on the discontinuation of care, including feeding and hydration. This law also exempts the physician from applying any ‘biological testament’.
In Hungary and the Czech Republic, where active euthanasia and assisted suicide remain prohibited and punishable by the Criminal Code, patients suffering from incurable disease have the right to refuse life-sustaining treatment(s). 33 The Czech Republic Upper House rejected a bill aimed at authorizing euthanasia in 2008.
In Portugal, even if euthanasia and assisted suicide are considered as qualified homicide by the Criminal Code, 34 according to the code of medical deontology adopted in January 2009, ‘the use of extraordinary means to sustain life’ can be discontinued in the case of cerebral death, or upon request from the patient; however, under no circumstances may hydration or feeding be stopped, even if artificially administered.
Other European countries consider euthanasia, in any form whatsoever, as homicide 35–37
Such is the case in Greece, Poland, Bosnia, Romania, Croatia, the Ukraine and Serbia. Slovakia specifies that ‘euthanasia and assisted suicide are acceptable’, however medical staff ‘relieve the pain suffered by incurable and dying patients … and respect the patient's wishes in conformity with legislation’. Furthermore, in Poland, although passive euthanasia is prohibited by law, the same law specifies that a physician may not administer treatment to a patient against the latter's will.
It is worthy of note that Greece and the Ukraine are currently considering the integration of legislation equivalent to the French law of 22 April 2005.
Euthanasia – an indistinct concept
The term ‘euthanasia’ is not clearly defined. Euthanasia is evoked in many aspects of terminal care: interruption of curative treatment at the end of life, palliative care or the act of deliberately provoking death through compassion.
If we consider, as has been the case since the 19th century, that euthanasia is the voluntary act of provoking death, the Law of 22 April 2005 in France does not legalize it, in accordance with the Criminal Code which fails to draw a distinction between voluntary homicide and euthanasia, since the victim's consent is inoperative according to French criminal law. Hence, Article 221-1 of the Criminal Code states, ‘Voluntarily provoking the death of an individual constitutes murder. It is punishable by 30 years’ imprisonment', whereas Article 221-3 of the same code states, ‘Murder committed with premeditation constitutes assassination. It is punished by life imprisonment’. Nevertheless, the fact that the terminally ill patient may request therapeutic abstinence from his/her physician, even if such abstinence may hasten death, enables the physician to avoid criminal penalty for failure to fulfil his/her duty to rescue. Indeed, within the context of the Law of 22 April 2005, although the key aim is to ‘relieve pain in terminally ill patients’, it by no means authorizes any person, in particular the physician, to deliberately provoke death. In agreement with the patient's family (or confidential person, if the patient is unable to express his/her own will), the physician proposes the therapeutic pathway to relieve the patient that is as faithful as possible to his/her own will. Within this context, the physician plays an accompanying role and his/her mission is to preserve ‘the dying person's dignity’ and to ensure ‘his/her quality of life’ through the administration of palliative care. Such palliative care can offer an alternative to voluntarily provoking death, since the elimination or at least the alleviation of the pain suffered by the terminally ill patient very often leads to the withdrawal of any explicit request for euthanasia.
The termination of curative treatment therefore signifies a move towards palliative care on the part of the care team: administered treatment is aimed at relieving the patient's pain and enabling him/her to die both peacefully and with dignity, without the administration of needless treatment likely to impede upon his/her quality of life. This notion is consistent with Bacon's definition, ‘The physician's role is to relieve pain, not only when such relief can lead to healing, but also when it can proffer a calm and trouble-free death, thus putting an end to the suffering and the agony of death’ (modern adaptation of the original quote).
Conclusion
With the Law of 22 April 2005, France has adopted a legislative tool enabling adaptable end-of-life patient care from both a human and purely medical point of view, without legalizing euthanasia as such. Indeed, this law promotes the culture of palliative care and the accompaniment of terminally ill patients, the principle aim of which is to relieve their suffering while preserving their dignity. Consequent to the law of 4 March 2002 pertaining to patients' rights and the quality of the health-care system, 5 it further enhances patients' rights by offering them the free choice of limiting or terminating therapies aimed at prolonging their lives and, in particular, of avoiding such prolongation by insistent technical means (i.e. the rejection of ‘unreasonable obstinacy’). It enables the physician to accompany his/her patients during the last instants of life, and to offer them a ‘gentle’ death, free from suffering. As such, it is consistent with Bacon's conception of the physician's role in terminal care. Euthanasia could therefore be considered as synonymous with accompaniment, rather than being assimilated with voluntarily provoking death.