Legal approaches to end of life decision-making Penney Lewis Centre of Medical Law and Ethics King’s College London
Plan • how the law regulates end of life decisions (ELDs) legal change • • empirical evidence of ELDs implemented by doctors across broad spectrum of ELDs across broad range of jurisdictions • varying legal systems, cultural and religious backgrounds, health systems etc.
Regulating end of life decisions
End of life decisions (ELDs) 1. abstention: withdrawal or withholding of life-sustaining or life-saving treatment 2. symptom alleviation with possible or probable hastening of death 3. assisted suicide (AS) or physician-assisted suicide (PAS) 4. euthanasia ie termination of life on request 5. termination of life without request most jurisdictions permit 1 & 2 only small number also permit 3 or both 3 & 4 Netherlands permits 5 for neonates with parental requests
Decision-maker patient (P) legal proxy for P • appointed by P prior to incapacity • through qualifying relationship with P • appointed by court or other responsible body • NB: existence of a ‘proxy’ does not always mean the proxy is the decision-maker! • eg France proxy is consultee not decision-maker doctor court or tribunal
1. Most common ELD: abstention P with capacity refuses life-sustaining treatment contemporaneously • • in advance (advance directive/decision, living will etc.) • binding: UK; Ireland; Netherlands; Belgium; Switzerland; Canada; US legal proxy for P lacking capacity refuses life-sustaining treatment • differing legal standards substituted judgment (what the patient would have wanted) • • best interests (balancing benefits and burdens) doctor makes abstention decision • on basis of futility, best interests, substituted judgment, or other legal test • differing concepts of futility • eg clinically assisted nutrition & hydration (CANH) for P in vegetative state (VS) • resource allocation has background role • eg decision whether to admit to intensive care or high dependency unit
2. Symptom alleviation? legal acceptance of symptom alleviation with possible or probable hastening of death (BUT query whether these decisions are ELDs) • doctrine of double effect (DDE) accepted: redefinition of intention to exclude oblique intention (knowledge that side-effect will be virtually certain to occur) • eg England & Wales; Switzerland; New Zealand medical indication/medical exception • • via specific statutory exception eg Denmark; South Australia • by necessary implication from statutory obligation to inform patient, proxy or family eg Netherlands; France • application of defence of necessity • eg Belgium? • terminal and/or palliative sedation often subject of separate guidelines with little formal legal involvement
3 & 4. Assisted suicide & Euthanasia range of terminology lack of consensus
3. Assisted suicide specific criminal offence of assisted suicide • most common law jurisdictions eg England & Wales; Ireland; Canada; US • many civil law jurisdictions eg Austria; Italy; Netherlands; Spain; Portugal; Norway limited prohibition • when motive is selfish eg Switzerland; Denmark (more serious offence if committed for ‘reasons of personal interest’) • perhaps England & Wales now falls here given post- Purdy prosecutorial policy not to prosecute compassionate assistance by non- physicians resulting from legal challenge absence of prohibition • eg Germany; Scotland; Sweden • other relevant offences may be used eg failing to assist person in danger, involuntary homicide • or disciplinary law may be used (eg Sweden)
4. Euthanasia murder (or poisoning, administering noxious substance) • most common law jurisdictions including UK some civil law jurisdictions eg France; Belgium; Luxembourg • • sentence may be mitigated by presence of request (eg England & Wales) or aggravated by victim’s vulnerability (eg France) lesser offences • consensual homicide • some civil law jurisdictions eg Italy; Netherlands; Norway; Denmark; Germany • compassionate homicide • eg Colombia; Germany • compassionate consensual homicide • eg Switzerland; Spain
5. Termination of life without request murder (or poisoning, administering noxious substance) • most common law jurisdictions including UK • most civil law jurisdictions eg France; Belgium; Luxembourg • sentencing may reflect presence of compassionate motive lesser offence of compassionate homicide • eg Germany (prosecuted as manslaughter); Colombia
Defences to termination of life statutory defences for doctors who perform euthanasia or assisted suicide in accordance with due care criteria • eg Netherlands; Belgium; Luxembourg; Canada (also applies to nurse practitioners) necessity • available in Netherlands, Belgium where doctor faced conflicting duties to preserve life and prevent suffering • not applicable in common law jurisdictions, France diminished responsibility • often used for family members, usually inapplicable to doctors • may reduce severity of offence rather than exculpate eg compassionate consensual homicide (Switzerland) • • eg manslaughter (England & Wales)
Covert tools decisions not to prosecute • diversion to disciplinary process selective charging decisions quashing indictment/refusal to indict accepting guilty pleas to lesser offences manipulation of intention or causation • when medication used can be used to relieve pain as well as to cause death, eg use of opioids • when timing of death unclear eg Forzatti (brain death may have occurred before he disconnected • ventilator) jury nullification light sentencing based on compassionate motive pardons
Legal change
legal change on assisted dying • different legal routes towards legalisation: 1. constitutionally entrenched human rights • eg Canada; Colombia 2. statutory interpretation a) duty-based defence of necessity eg Netherlands b) medical exception: public policy + consent eg Montana 3. legislative approaches • PAS for terminally ill only: eg Oregon; Washington; Vermont; California; Colorado; Hawaii; Washington DC; New Jersey; Maine; Victoria (Australia) • euthanasia for unbearable suffering: eg Belgium; Luxembourg • esoteric: eg Northern Territory (Australia); Québec (Canada)
differing contours of regulation of assisted dying resulting from these mechanisms of legal change • reveals interesting features • highlights importance of choice of legal route in shaping regulatory regimes features request • patient’s condition/experience of suffering • • terminal illness; unbearable & hopeless suffering • type of assistance • euthanasia; assisted suicide (sometimes prescription only) • consultation and referral • review/approval • retrospective review; prospective approval • assistor doctor; nurse practitioner; lay volunteer •
OUP, , 2007 007
Empirical evidence
End of life decisions by doctors • comparisons • across jurisdictions, time periods and different kinds of medical behaviour • sources: • anonymous prevalence surveys of doctors in different countries and different years • based on one originally designed by Dutch researchers • caveats: • 95% confidence intervals not shown • as indicated, some comparisons from different years • although similar, surveys not identical • very small figures make comparisons difficult • 95% confidence intervals overlap in some cases • percentage of deaths in which ELD made varies across jurisdictions
Rates of absten tenti tion on (withdraw thdrawal al or withh hhol oldin ing g of life- prolonging nging treat atme ment) t) and symptom om alleviati viation on with h possible le life-shor orteni tening ng effect (percentag rcentage of all deaths hs) UK 2007-8 UK 2004 Switzerland 2001-2 Sweden 2001-2 Netherlands 2015 Netherlands 2010 Netherlands 2005 Netherlands 2001-2 Italy 2001-2 ABSTENTION France 2009 SYMPTOM ALLEVIATION Denmark 2001-2 Belgium 2013 Belgium 2007 Belgium 2001-2 Belgium 1998 Australia 1996 0 10 20 30 40 50 60 70
Rates s of euthana hanasi sia, physician-assiste ssisted d suicide de & termina nation tion UK 2007-8 of life without t request est (perce centage tage of all d death ths) s) UK 2004 Switzerland 2013 Switzerland 2001-2 Sweden 2001-2 Netherlands 2015 Netherlands 2010 Netherlands 2005 EUT Netherlands 2001-2 PAS Italy 2001-2 TLWR France 2009 Denmark 2001-2 Belgium 2013 Belgium 2007 Belgium 2001-2 Belgium 1998 Australia 1996 0 1 2 3 4 5 6 7
Recommend
More recommend
