Dilemmas surrounding passive euthanasia--a Malaysian perspective

In western societies where the principle of autonomy is jealously guarded, perhaps active euthanasia is more often the focus of public concern and debates rather than any other forms of euthanasia. However due to the advance in technology and its corresponding ability in prolonging life, in Malaysia passive euthanasia presents more of a dilemma. For those concerned and involved with end of life decision-making, it is generally agreed that this is an area fraught with not only medical but legal and ethical issues. In Malaysia where the society is not homogenous but is multi-cultural and multi-religious, in addition to medical, legal and ethical issues, religious principles and cultural norms further impact and play significant roles in end of life decision-making. This paper seeks to identify the issues surrounding the practice of passive euthanasia in Malaysia. It will be shown that despite applicable legal provisions, current practice of the medical profession combined with religious and cultural values together affect decision-making which involves the withholding and/or withdrawing of life-saving treatment.     

Withdrawal and withholding of medical treatment: Czech medical law at the crossroads

The making of an end of life decision represents worldwide one of the most difficult issues that physicians can be confronted with --not only should it be regarded as consisting of medical and legal aspects, but ethics and moral values are present as well. Furthermore, it shall not be supposed that the economic parameter is negligible, unfortunately even to the contrary. The fact that the decision is often made by physicians under pressure caused by a system of limited resources (and therefore it can not avoid being distorted) must be kept in mind. At any rate , according to Czech law under which neither assisted suicide nor euthanasia is allowed, the legality and legitimacy of withdrawal and withholding of medical treatment is based on the argument of informed consent of the patient, advanced directives and the standard of lege artis treatment. These also shall be pleaded as defences in eventual criminal proceedings.     

The euthanasia debate.

Debates about the moral dilemmas of euthanasia date back to ancient times. Many of the historical arguments used for and against the practice remain valid today. Indeed, any form of discussion on the subject often provokes emotive responses, both from members of the medical profession and the general public. For this reason alone, the issue will continue to be debated at all levels of society. There are, however, other factors that ensure euthanasia will remain a subject of major controversy within medical, legal and governmental bodies. Firstly, the act of euthanasia itself is illegal, yet in its passive form occurs on a daily basis in many of our hospitals (1). Secondly, medical advances have made it possible to artificially prolong the life of an increasing number of patients far beyond what was possible only a few years ago. Furthermore, we must all contend with the reality that financial constraints are an important consideration in modern health care provision. Finally, there is an ethical difficulty in interpreting the concept of a patient's right, or autonomy, versus the rights and duty of a doctor. Before attempting to answer the questions posed by these issues, it is important to have some accurate definitions of both euthanasia and of the concept of morality. According to the House of Lords Select Committee on Medical Ethics, the precise definition of euthanasia is "a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering" (2). The term can be further divided into voluntary and involuntary euthanasia. The former is said to occur if a competent patient makes an informed request for a life terminating event and the latter can be used if a patient does not give informed and specific consent for such treatment. It is the occurrence of involuntary euthanasia which forms one of the main arguments against legalisation. This is discussed in greater detail below. Euthanasia is frequently separated into active and passive forms. A number of authors consider these terms to be misleading and unhelpful. They are, however, used in the literature and in discussion and consequently should be understood. Active euthanasia takes place if deliberate steps are taken to end a patient's life; this would include administration of potassium containing compounds to induce cardiac arrest, a practice that is illegal in this country. Passive euthanasia is the withholding of treatments necessary for the continuance of life. Whether the administration of increasingly necessary, albeit toxic doses of opioid analgesia is regarded as active or passive euthanasia is a matter of moral interpretation, but in order to pacify doctors' consciences, it is usually regarded as a passive measure. Many people, therefore, regard it as an acceptable facet of good professional practice.     

A model for decision making at the end-of-life: Queensland and beyond

This paper addresses when it is legal to withdraw or withhold medical treatment that is needed to keep a patient alive. It draws on cases and legislation from the common law world (including Australia, England and New Zealand) and considers the various legal tests applied in the different jurisdictions. Two of the most common tests employed in this situation are the "best interests of the patient" test and the "substituted judgment" test. Some jurisdictions also include other criteria as well, such as a requirement that withdrawing or withholding of medical treatment is "not inconsistent with good medical practice". This paper analyses these different legal tests, and after identifying the factors that are judged to be legally relevant to consider when deciding to withdraw or withhold treatment, outlines a preferred model. This model addresses who the relevant decision maker should be, and the criteria that should govern their decision. It suggests that family members are better equipped and more appropriate to act as decision makers than health professionals, and also questions the appropriateness of responsible medical opinion as the decisive factor in such cases, preferring instead an approach more consistent with the principles of self determination. The model also proposes a method for resolving any disputes that arise.     

Terminal sedation: between pain relief, withholding treatment and euthanasia

In the last five to ten years there has been increasing debate on terminal sedation, a medical practice that is difficult to place between other decisions at the end of life, like alleviating pain, withholding treatment, and (in jurisdictions where this is allowed) euthanasia or physician-assisted suicide. Terminal sedation is the administration of sedative drugs with the aim to reduce the consciousness of a terminal patient in order to relieve distress. It is frequently accompanied by the withdrawal (or withholding) of life-sustaining interventions, such as hydration and nutrition. It is typically a measure of the last resort, to be considered in situations where all other measures to reduce pain and suffering have failed. While similar to palliative measures as far as the sedation itself is concerned, withholding of hydration and nutrition brings terminal sedation into the realm of non treatment decisions. At the same time, to the extent that the combination of these two measures may shorten the patient's life, the practice may be easily associated with euthanasia. It is no surprise therefore, that terminal sedation has been called (and has been disqualified as) 'slow euthanasia' or 'backdoor euthanasia'. This paper addresses the question how terminal sedation may be looked upon from a legal point of view. Is it indeed a disguised form of euthanasia, or should it be considered as a practice in its own right? In the latter case, what does it imply in legal terms, and under which conditions and safeguards could it be legally justified? To answer these questions, I will look first at the different clinical realities that may be brought under the heading 'terminal sedation'. Then I will deal with its two components--sedation on the one hand, and withholding artificial feeding on the other--in a legal perspective. The paper ends with conclusions on terminal sedation as a whole.     

The end of life decisions -- should physicians aid their patients in dying?

Decisions pertaining to end of life whether legalized or otherwise, are made in many parts of the world but not reported on account of legal implications. The highly charged debate over voluntary euthanasia and physician assisted suicide was brought into the public arena again when two British doctors confessed to giving lethal doses of drugs to hasten the death of terminally ill patients. Lack of awareness regarding the distinction between different procedures on account of legal status granted to them in some countries is the other area of concern. Some equate withdrawal of life support measures to physician assisted suicide whereas physician assisted suicide is often misinterpreted as euthanasia. Debate among the medical practitioners, law makers and the public taking into consideration the cultural, social and religious ethos will lead to increased awareness, more safeguards and improvement of medical decisions concerning the end of life. International Human Rights Law can provide a consensual basis for such a debate on euthanasia.     

Health and sports law collide: do professional athletes have an unfettered choice to accept risk of harm?

Is there a positive duty at law to prevent an athlete with a serious medical disability from performance, despite the player accepting the risk? Is high risk of serious injury or death in the athletic context equivalent to euthanasia? Euthanized death is a predictable consequence of deliberate action. Accepting high risk in the athletic context is distinguishable. Athletes are often more likely able to make voluntary decisions without the burdens of incurable pain and clouding medications. Should policy reasons, nonetheless, preclude athletes from accepting high or uncertain risks of serious injury or death? What standard of medical certainty or legal certainty is appropriate regarding the "right to risk"? The higher the risk of serious injury or death and the less the medical uncertainty the more tort law might trump contract principles. In contrast, medically certain outcomes are easier to knowingly and voluntarily assume by way of contract. Waivers are contracts and present a conflict between a person's rights to have freedom to contract and negligence. Contracts shift the risk. An athlete can be disqualified to avoid a significant risk of injury that cannot be eliminated through reasonable medical accommodations. The problem is that physicians tend to be conservative and without any input from informed athletes, many otherwise disabled players would be refused participation, albeit with a high risk. If an athlete is able to seek medical treatment that reduces the risk and does so, an athlete's will to return should not be ignored. The team must substantiate the restriction by justifying a relatively certain and substantial risk. An athlete may agree to accept high risk of serious injury or death through a contractual waiver to insulate others from liability in negligence. Independent legal advice and advice from medical experts ensure that such waivers are legally enforceable. As medical law has broad application, dealing with improving the rights, rules and policies of health care as it relates to the use of advanced medical technologies in potentially vulnerable persons and consequently the right to accept risk, is as important both evaluative and meritorious exercise for all health and legal systems throughout the world.     

End-of-life decisions without medical assistance in Germany

In contrast to the situation in the Netherlands and Belgium, as well as in the US State of Oregon, but comparable to most European countries, no euthanasia law exists in Germany. Active euthanasia is punishable by Criminal Law and is also prohibited by Professional Law. Two cases of a 59-year-old woman with locked-in syndrome and a 7-year-old boy in a stable vegetative state with convulsions after near-drowning, demonstrate that unbearable suffering may lead relatives (the husband and the grandmother as custodian, respectively) to killing. Both custodians were punished for killing on request and manslaughter, respectively. In neither case had medical doctors been involved. Palliative (terminal) sedation followed by death of the patient as an acceptable side-effect may have been a justifiable medical decision to end the life of the patients.     

Decision-making at the end-of-life and the incompetent patient: a comparative approach

In contrast to the situation in the Netherlands and Belgium, the legislatures in both England & Wales and Germany have not recognised that active euthanasia may be lawful in any circumstance. Nevertheless, the courts in both jurisdictions have held that passive euthanasia, that is the withdrawal or withholding of life-prolonging treatment, is perfectly lawful; indeed it will often constitute good medical practice. This article adopts a comparative approach to assessing the manner in which decisions to withdraw or withhold life-prolonging treatment are made in relation to previously competent patients without a legally effective advance directive or a proxy decision-maker, considering the approaches adopted by the courts in England & Wales and Germany: the best interests and 'presumed will' approaches respectively. Due to the inherent drawbacks associated with each approach it is concluded that the best way forward would be for both jurisdictions to adopt a mixed approach, allowing the autonomy model to temper the best interests approach, recognising that the patient is an individual rather than simply an object of concern.     

Euthanasia--he illusion of autonomy

The paper deals with some of the more common arguments used for the legalisation of voluntary euthanasia. It looks at these arguments from an ethical and philosophical point of view. First, the argument that to offer a person the possibility of euthanasia is to respect that person's autonomy is questionable. Can a person's decision on euthanasia be really autonomous? If euthanasia were legal everybody would be conscious of this option: the patient, the doctor, the family and the nursing staff. Thus, there could be indirect pressure on the patient to make a decision. The choice is meant to be free but the patient is not free not to make the choice. Secondly, a choice that seeks to alleviate suffering and thus improve life by annihilating it is irrational. Thirdly, autonomy as to one's own death is hardly exercised freely. Even an otherwise competent person may not be competent in deciding on his own death on account of despair, hopelessness, fear or maybe a feeling of being weak, superfluous and unwanted. This is a very uncertain base for decision-making, especially in the irrevocable decision of euthanasia. Finally, a competent person usually makes any choice in a responsible way and after due consideration; a 'good' decision should consider and respect the wishes and feelings of others. This will be no less the case in making a decision on the so-called free choice of euthanasia. Thus 'normal' behaviour in decision making will only add to the tendency of the already depressed person to feel a burden on his family, the staff and even on society.     

Law of 22 April 2005 on patients' rights and the end of life in France: setting the boundaries of euthanasia, with regard to current legislation in other European countries

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).     

Doctors can kill--active euthanasia in South Africa

Medical practitioners in South Africa will be given the legal right to end the lives of terminally ill patients. This is the practice of active euthanasia, the procedure whereby a medical doctor or a professional nurse can end the life of a terminally ill patient at the patient's request, by providing or administering a lethal dosage of a drug. Voluntary active euthanasia is included in a Draft Bill--The End of Life Decisions Act--which form part of a report of the South African Law Commission, wherein regulations regarding the end-of-life decisions are formulated. Specifically, it provides that a medical practitioner may under certain conditions stop the treatment of a patient whose life functions are being maintained artificially. Further, that a competent person may refuse life-sustaining treatment if he chooses to die. A medical practitioner may also give effect to a patient's living will in which the patient has requested the cessation of treatment. The Act also provides for the options of active voluntary euthanasia or physician-assisted suicide.     

Euthanasia: a summary of the law in England and Wales

When medical treatment becomes futile, or the patient's suffering is intractable, doctors face the agonising dilemma of whether to proceed with euthanasia. It is important for a doctor to be familiar with the law surrounding euthanasia, in order to avoid prosecution. This paper explores the law in England and Wales regarding the different categories of euthanasia: voluntary euthanasia, nonvoluntary euthanasia, passive euthanasia, and active euthanasia.     

Euthanasia and assisted suicide: comparison of legal aspects in Switzerland and other countries

The purpose of this paper is to present the legal aspects associated with assisted suicide in Switzerland and compare them with those in other countries. Like euthanasia, assisted suicide is a subject that induces much discussion in many countries. While the law is very liberal in some countries, such as Belgium and the Netherlands (where both euthanasia and assisted suicide take place), these practices are very controversial in other countries, such as France, where they remain taboo subjects. In the United States of America, the laws concerning assisted suicide can differ greatly from one state to another. For example, in Oregon, assisted suicide is allowed if applied by a medical doctor; in others, this act is illegal. In Canada, it is punishable according to the Criminal Code. In Switzerland euthanasia is punishable by law. However, the penal code does not condemn assisted suicide, whether carried out by a medical doctor or another person, provided it is not carried out through selfish motives. The application of these practices has become simplified in recent years and societies for the right to die with dignity based on this principle have come into being (Exit and Dignitas). In the French- and German-speaking parts of Switzerland the association Exit assists individuals living in Switzerland with serious progressive and incurable disease in their engagement to end their life. The association Dignitas, in the German-speaking part of Switzerland, also undertakes--in the same circumstances--to assist individuals coming from foreign countries. Dignitas welcomes several such individuals every year, especially from Germany, where a similar approach does not currently exist.     

Living wills and advance directives in South African Law

The legal status of living wills and advance directives in South African Law will be considered. Presently there is no reported judgment of a court in South Africa which has directly ruled on the validity of an advance directive or living will. In a case decided in 1992 the issue as to whether to discontinue life supporting treatment was decided with reference to the legal persuasions of society and whether, in light of these, it would be reasonable to discontinue artificial feeding of the patient. The judge indicated that just as a living person has an interest in the disposal of his body so did he think that the patient's wishes as expressed when he was in good health should be given effect. In South African law every person is legally entitled to refuse medical treatment even if the consequences may be to hasten death. The South African Law Convention has extensively investigated the issue in its report entitled Report on Euthanasia and the Artificial Preservation of Life in 1998. Certain problems were identified and a draft bill was suggested.     

Telemedicine: chances and risks

Problem. Due to the rapid progress in the fields of information technology and data networks, telemedicine applications are growing in number. Besides curative telemedicine, the electronic exchange of medical data and the integration of health information systems between health care providers is gaining importance. Through the improved accessibility of electronic patient record information, considerable risks arise. Methods. A project for the interconnection of medical picture archiving and communication systems (PACS) between several hospitals is presented and the possibilities for further developing such networking systems utilizing new software technologies for transparent data access between different locations (GRID) and for decision support (software agents) are considered. Results. The availability of the electronic patient record via the data network and the perspective of semi intelligent software systems automatically preparing the data bears great potential for a boost in treatment quality and efficiency. Systems for unique electronic patient identification and for secure digital signature are a prerequisite, but per se not enough to ensure the protection of data against illegitimate access. Conclusion. Despite quality and efficiency benefits, challenges in the protection of sensible data and in the change of the physicians role result.     

Euthanasia and related problems in swedish law

Summary The legal position in Sweden concerning euthanasia is that active euthanasia is illegal and regarded as murder. In certain conditions, however, it can get a lenient punishment or go without punishment altogether. Acceleration of death by painalleviating methods is illegal if it accelerates death more than is necessary to alleviate pain. Passive euthanasia in the form of forbearance to initiate life-sustaining treatment in a hopeless case is legal. If such treatment has been initiated, it ought to be legal to discontinue it, when there is no hope of recovery and death seems imminent. The state of the law on this point is not quite clear.

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Zusammenfassung Aktive Euthanasie ist nach schwedischem Recht rechtswidrig und wird als Mord angesehen. Unter Umständen kann sie sehr leicht bestraft oder ganz ohne Strafe gelassen werden. Rechtswidrig ist auch, den Tod durch schmerzstillende Mittel zu beschleunigen, wenn der Tod mehr beschleunigt wird, als das Bedürfnis den Schmerz zu stillen es verlangt. Passive Euthanasie in der Form der Unterlassung, eine lebensstützende Behandlung zu beginnen, wenn der Tod nahe und unvermeidbar ist, ist rechtsähnlich. Es sollte auch rechtsähnlich sein, eine solche Behandlung zu beendigen, wenn sie eingeleitet ist, aber der Tod nahe und unvermeidlich erscheint. Die Stellung des Rechts in dieser Hinsicht ist aber unsicher.

     

A new framework for facilitating decisions on death and dying

The troubling public, moral and legal issues surrounding questions of death and dying need a new focus on the virtues of compassion and respectfulness, on a better understanding of a person as someone who has deep emotional, spiritual, and social aspects and needs, and whose body is more than "physical machine," but is "lived body" which gives persons the capacity to act in the world and to feel and suffer deeply. Western medicine needs to re-humanize death; physicians need to see themselves as "assisting" persons in dealing with health, life and death in the context of being able to assert their values and beliefs and to realize their goals. Western medicine's concepts of 'benefit' and 'harm,' are too narrow, as is their fight to 'preserve life' at all costs. Finally, the present approach to death and dying, except for the Hospice movement, neglects the patient's emotional, psychological, social, and existential suffering.     

Use and disclosure of health information and protection of patient privacy in Taiwan

This paper examines Taiwan's current regulatory system for the use of healthcare information from the viewpoint of patient privacy protection. The author proposes a patient-centered, cooperative system centered on the "traffic light theory", as a solution to the potential conflict between the use of healthcare information and the protection of patient privacy. Taiwan, a country with a national healthcare insurance program and state-of-the-art electronic technology, takes a distinctive approach to the protection of patient privacy. On January 1st, 2004, the Bureau of National Health Insurance (BNHI) implemented a comprehensive embedded integrated circuit (IC) card, which puts the wide-ranging health information of its 22 million beneficiaries online to facilitate review of use and disclosure. It is well understood that healthcare information is of a personal and sensitive nature, demanding stringent privacy protection. Nevertheless, there is no denying the potential benefit of using personal health information (PHI) to achieve public good, especially in the area of cost containment. The comprehensive e-health system in Taiwan greatly facilitates copying, transmission, and use of PHI, but does the regulatory system provide enough safeguards for patient privacy? Because the law in Taiwan does not provide clear standards for the use and disclosure of healthcare information, healthcare providers are either too conservative or too aggressive. While most healthcare providers keep their oath of confidentiality, some rogue members severely abuse patient privacy. This paper proposes a "traffic-light system" to remedy this situation. Flashing yellow lights allow aggressive drivers to ignore others, while causing overly cautious drivers to be too hesitant. The author contends that clear standards should have been established for healthcare providers. Like car drivers, healthcare providers need red and green traffic signals. The law should indicate, through workable privacy regulations and guidelines, when the light is red or green-when to stop or to advance.