Euthanasia

“ANALYSIS OF EUTHANASIA LAWS IN THE NETHERLANDS AND GREAT BRITAIN”

1. INTRODUCTION

The progressive development of human rights, together with medical science, establishes a continuous discussion on the question of euthanasia. There are various opinions concerning how euthanasia should be practiced. Each of those opinions is supported by considerable argument, but right now it's difficult to establish whether there are more proponents or opponents and which choice is correct.

Progress in modern medicine allows us a longer and healthier life expectancy. But new health problems continue to develop. However, prolonging life in this way does not necessarily provide a better or more acceptable death. There are even people who argue that modern medicine supports an extension of the process of dying, which can be painful and meaningless for patients, as well as torturous and financially burdensome for their families.[1]

The subject of euthanasia is more often discussed within circles of doctors and religious communities than by lawyers, even though lawyers are the main source for establishing legal definitions of euthanasia. We see today that each country has its own legal approach to euthanasia, as reflected in its respective laws.

This paper compares euthanasia law in The Netherlands and Great Britain[2]. We compare these two European states primarily because only one of them has legalized euthanasia, clearly illustrating the legal differences. But are their differences so distinct in practice as well? In order to clarify these issues, the first chapter focuses on a general definition of the concept of euthanasia, in order to better understand the entire concepts behind euthanasia law. The analysis of both jurisdictional approaches toward this concept is referred to in the second chapter. The third chapter is based on the comparative view of these countries and whether they are really so different. The fourth chapter only determines a position of International law towards the universal and problematic attitudes concerning euthanasia.

1.1. DEFINING THE CONCEPTS OF “EUTHANASIA“

The word Euthanasia originated from the Greek language: eu means "good" and thanatos means "death". One meaning given to the word is "the intentional termination of life by another, at the explicit request of the person who dies."[3] However, there are additional classifications of this term as active or passive, and as either voluntary or involuntary. One form of euthanasia is considered assisted suicide. This division results in greatly confusing issues and the absence of a common legal definition for the term "Euthanasia".[4] It is very important that during long and elaborate research, is acted very carefully and leisurely in establishing any common definition for the term of "Euthanasia" because the term is very powerful.

1.1.1. THE ORIGIN OF EUTHANASIA

The basic concept of euthanasia was founded in ancient Rome, many years BC and long before of the yet-to-come Christian religion. Many ancient Romans did not believe in the essential value of individual human life, so physicians in those times often committed voluntary (and even involuntary) mercy killings. Suicide was tolerated among patients who were suffering, in great pain and had an incurable illness. Famed philosopher Plato said that people who were mentally and physically ill should be killed and do not have the rights to life.[5] The first change in attitudes was noted with the creation of the Hippocratic Oath, which says: "I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrong- doing."[6] Afterward, euthanasia was considered a crime of murder in Rome. A few physicians acted in accordance with the Hippocratic ideal, but those who supported mercy-killing for reasons attributed to relief from pain, kept ‘helping' their patients to die. This illustrates that the philosophy behind euthanasia is a very complicated issue that has been with us from the origins of our civilizations. There always will be two groups of people with diverse opinions over this problem, no matter what the arguments or developments over time may be. But this does not mean these two groups could never come to common solutions agreeable to most people.

1.1.2. ACTIVE VS PASSIVE

Active euthanasia might defined as intentionally bringing on the death of an ill patient, at his express request, by active means such as injecting the patient with poison. This was once defined as ‘mercy killing‘, but the term was soon avoid because of its connection to the Nazis in World Word II and their killing of Jews, Gypsies, etc.[7] On the other hand is passive euthanasia, usually defined as the refusal of medical treatment with the intent of causing the patient's death. It is defined as the patient having a right to refuse all treatment and intervention when the illness is incurable; there no chance of recovery and death is inevitable. By this act, the patient takes all responsibility for his fate. That essentially means, if the patient suffers any sudden interruption in life-function, the doctors do nothing to save him and allow him to die.

1.1.3. VOLUNTARY VS INVOLUNTARY

Another division occurs between Voluntary and Involuntary euthanasia. These two types are not specifically relevant for this paper, but are mentioned for a better understanding of whole concept of euthanasia. Voluntary euthanasia allows refusal of treatment by the patient, knowing that this act of refusal will lead to his death.[8] The opposite of voluntary is involuntary euthanasia, which occurs when a patient's life is ended without his knowledge or consent. This may be a case in which a patient is unconscious or in vegetative state and someone makes the decision for him. [9] This method does not find so much obstruction and is clearer from a legal point of view than the voluntary act.

1.1.4. ASSISTED SUICIDE

Somewhere between active and passive euthanasia is the consideration of assisted suicide. This method is seen when a doctor gives a patient advice on how to end his own life, but does not perform the act himself. For example, it is considered assisted suicide if a doctor gives a pill sufficient to cause death, explains what it is and the patient takes it later by himself.[10]

2. THE REGULATION OF EUTHANASIA

2.1. PAIN AND SYMPTOM-RELIEF APPROACHES

If a patient is fatally ill and suffers great pain, a general agreement that can help him out of his suffering exists. There are two special approaches which can be practiced, without any violation of the terms of criminal law causing bodily harm, even though they may shorten a patient's life. The first is called the Double Effect, which is based on the doctor's intention. Another method is called the Medical Exception. These two concepts are further described below.

2.1.1.”THE MEDICAL EXCEPTION”

In general, the medical exception accepts that doctors are allowed to do things which are for others forbidden, as long as there is a substantive medical reason. Medical treatment falls outside criminal law.[11] That means things done by doctors are very serious crimes for others. This exception helps doctors as well as patients. For example, a doctor fearing prosecution by his patient would not be a contribution either to medicine or patients. On the other hand, this concept also has disadvantages. Doctors' relief of liability for their acts might tend away from a proper responsibility towards patients, even though medical negligence or error is very difficult to prove.

2.1.2. “DOUBLE EFFECT”

“The principle of the double effect is a doctrine that distinguishes between the consequences a person intends and those that are unintended but foreseen and may be applicable in various situations where an action has two effects, one good and one bad.” This means, if the doctor's primary intention is to relieve suffering, he may prescribe pain relief even though he knows it may cause a patient death. The doctor will not be guilty of murder unless his purpose was to cause a patient death.[12] However, this raises an issue of intention, since in most jurisdictions the fine distinctions between primary and secondary intention that the doctrine of double effect requires is not permitted. Intention is present if its result is foreseen by he who acts. Nevertheless, the approach in medical cases is taken with this provision, even though the legal grounds on which it can be accomplished are not clear.

2.2. THE NETHERLANDS

On November 28, 2000, the Dutch Lower House of parliament, by a vote, approved the legalization of euthanasia [104 for and 40 against]. Then, on April 10, 2001, the Dutch Upper House of parliament followed and voted to legalize euthanasia [46 for, 28 against and one member was not present].[13] On April 1, 2002, the Termination of Life on Request and Assisted Suicide Act came into effect and euthanasia became legal in The Netherlands. By this step, The Netherlands became the first and (at that time) only country in the world where euthanasia was formally legalized. By law, is not punishable. Even though, since the beginning of 90's, the Royal Dutch Medical Association and the Ministry of Justice agreed, that when a physician follows the prescribed guidelines for a non-prosecution agreement, euthanasia is practiced.[14]

A proceeding case called Brongersma [2000] played a big part in approval of the Act at that time. This case is considered as a landmark in the development of Dutch euthanasia law. Another reason was that parliamentary debate was closely interwoven. During parliamentary debate, many discussions concerning the new Act were centered on this case.

Doctor Philip Sutorius helped an 86 year old patient, ex-senator Brongersma (who was very well known to the public), to die in the belief that he was suffering because of his hopeless existence. The doctor helped him, the stated reason being that he was “tired of life”. A further medical opinion confirmed that he was in great pain. However, the public prosecutor disagreed with Dr. Sutorius's solution. The case ended after 2 years [2002], when the Supreme Court rejected all of the Sutorius defenses and he was convicted of murder (article 40, Penal Code). Yet the court used its discretion not to impose any punishment.[15]

The most important aspect of the Brongersma case is that it raised the debate in parliament and forced all members to focus on the issue of euthanasia. Additionally, the patient who died was a former senator from the Labor Party. Just prior to the end of the proceedings, the Termination of Life on Request and Assisted Suicide Act was approved by members of parliament.[16]

2.2.1 ACTIVE EUTHANASIA AND ASSISTED SUICIDE

In a majority of countries, the term ‘euthanasia' includes most behaviors concluding in death, such as active, passive, voluntary euthanasia, etc. But in The Netherlands, only ‘active euthanasia' has legal standing. [17] Since 2002, the conditions relevant to euthanasia are governed by the Termination of Life on Request and Assisted Suicide Act [Review Procedures]. The law is of three parts. The first regulates ‘requirements of due care' and talks about responsibilities for reviewing reported cases. The second amends articles 293 and 294 of the penal code. And the third amends the Burial and Cremation Law.[18]

The statutory ‘requirements of due care' consists of six points:

1-The patient request was voluntary and well-considered

2- The conviction that the patient's suffering was unbearable and without improvement

3-The doctor informed the patient of his situation and prospects

4-The patient must be informed that there is no other reasonable solution for his condition

5-The doctor has consulted at least one other independent physician, who has seen the patient and provided a written opinion on the requirements of due care, referred to in parts 1 - 4, and

6-The doctor has terminated a life or assisted in a suicide with due care

The illegality of euthanasia was ended by enactment of article 293. Article 293[1] provides: “Any person who terminates another person's life, at that person's express and earnest request, shall be liable to a term of imprisonment not exceeding twelve years or a fifth-category fine.” [19]

But article 293[2] adds:” The act referred to in the first paragraph shall not be an offence if it committed by a physician who fulfils the due care criteria of the Termination of Life on Request and Assisted Suicide Act and if the physician notifies the municipal pathologist of this act, in accordance with the provisions of the Burial and Cremation Act.”[20]

That means behavior usually punishable is not recognized as a criminal offence if the act is committed by a physician who fulfils the set requirements and notifies the pathologist.

Since the only method ‘legally' recognized as euthanasia is an active one, assisted suicide falls outside this group in The Netherlands. However, assisted suicide was never considered a crime prior to the creation of the new article 294 of the Penal Code.

Article 294[2] states: ”Any person who intentionally assists another to commit suicide or provides him with the means to do so shall, if suicide follows, be liable to a term of imprisonment not exceeding three years or a fourth-category fine”.[21]

Nevertheless, both of those methods are treated differently by the Penal Code, although Dutch law does not make any differentiation between active euthanasia and assisted suicide in practice when they are justifiable. This means that, in practice, both are considered ‘euthanasia' in the Netherlands.

2.2.2 REFUSAL OF TREATMENT

Refusal of treatment is known as passive euthanasia. In The Netherlands, this action is covered by the Law on Contracts for Medical Treatment, which is part of the Dutch penal code. According to article 11 of the Constitution, which states the right of all persons to the inviolability of the body, doctors must follow the wish of a patient in refusing a treatment. [22] The right to refuse begins at age of 12. In cases where a child is 12-16 years old, there is need of consent by both the child and his parents. In cases where a child is younger than 12 or between12-18 and not competent, then he or she is represented by parents or guardian. But for people 18 years old or older, who are not competent, the decision has to be made by a representative [Court-appointed representative, spouse or partner and a parent, child, brother or sister, doctor].[23] Another method of refusing treatment is through a written treatment directive. Article 450.3 of the Law on Contracts for Medical Treatment says: “In a case where a patient sixteen years of age or older cannot be considered capable of the reasonable assessment of his relevant interests, the health care provider and [the personal representative] shall follow the patients apparent views, laid down in writing, when he was still capable of such reasonable assessment and containing a refusal of consent. The health care provider may depart there from if he considers that there are well-founded reasons for doing so. ”[24] There are almost no formal requirements such as witness or signature, but these instruments might increase the chance of a valid treatment directive. The only issue which may occur is where a doctor departs from the written document if he considers there are ‘well-founded reasons' to do so. This formulation is vague; there is an agreement that the personal view of a doctor cannot amount to a ‘well founded reason'. A professional opinion that treatment will cause death of a patient is irrelevant. In effect, a ‘well founded reason' refers to the authenticity of the document.[25]

2.2.3 CONCLUSION

The question is, may a patient be killed by active euthanasia or assisted suicide against his will, when there are requirements for voluntary request and intolerable suffering? If the suffering is sufficient to be considered intolerable, that finding depends upon a doctor's subjective opinion. Even though one rule includes consultation with another independent physician, there is no way to measure the size of suffering. Yet according to some authorities, the final decision over a voluntary request does not essentially depend on the patient. The Dutch law, supposed to protect autonomous decision, has proved to be insufficient and allows the killing of people who did not request it. One leading Dutch authority and advocate for many years in the question of euthanasia, René Diekstra, was “troubled that this vision of providing ‘relief from irremediable suffering while preserving autonomy' was lost among the realities of euthanasia in The Netherlands”.[26] Here she has created an argument for those who are against the concept of euthanasia, as a ‘slippery slope' warning people against tolerating euthanasia and assisted suicide. The argument of the ‘slippery slope' is very simple. Even though euthanasia need not be seen as the worst idea, it might lead to such bad things as the killing of a patient who has not requested it. Even if a line can be drawn between voluntary and non-voluntary euthanasia, it is impossible to adequately safeguard against a slip to one side. But there is no hard evidence of a slippery slope in The Netherlands. However, there will always be the potential for abuse when euthanasia is legalized in this form.

2.3. GREAT BRITAIN

In Great Britain, differently from The Netherlands, Euthanasia is, according to law, illegal. As well as euthanasia, assisted suicide is acceptable neither from a legal point of view nor in practice. But competent adults may refuse treatment and incompetent adults and children are treated in what is believed to be their best interest. In the beginning of the 19th century, euthanasia began be a point of interest in philosophical circles, mainly because of the influences of that time. Then, in 1994, the House of Lords in Great Britain rejected the legalization euthanasia because it would breach the Sanctity of Life Doctrine. In 2005, they re-visited the question of legalizing euthanasia as a consequence of introduction into the House of Lords of the Assistance with Dying for the Terminally Ill Bill. The primary aim of this Bill was to legalize euthanasia for those patients who are unable to commit suicide. The Select Committee travelled to Belgium, Switzerland and The Netherlands (where euthanasia and assisted suicide have been legalized) to analyze the advantages and disadvantages. The Assisted Dying Bill was not successful and was rejected in 2006 for reasons of indeterminate key terms, such as pain, suffering and the distinction between euthanasia and assisted suicide.[27]

2.3.1. ACTIVE EUTHANASIA AND ASSISTED SUICIDE

Since there is no British provision for legal euthanasia, it is considered murder under English law, where conviction carries a life sentence. However, the motive of the offender or consent of the victim is relevant to the case and this was presented in case of Bland [1993].[28] There are some factors that can reduce the sentence. For example, if the defendant's primary intention was to act in good faith to alleviate suffering. Another issue is assisted suicide, which is prohibited by Suicide Act 1961 section 2[1] and states: „A person who aids, abets, counsels or procures the suicide of another, or attempt by another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years“.[29] The issue rises, if someone assists another person to obtain an assisted suicide in another country [where the act is considered legal], is he then liable to be prosecuted under the Suicide Act 1961 section 2? One of the favorite destinations to receive an assisted suicide is Switzerland. As far as I know, there are approximately 150 cases every year and no one has yet been prosecuted. [30] The evidence over how strictly the law is enforced is seen in the case Pretty vs. The United Kingdom. The plaintiff, Dianne Pretty, claimed the criminal prohibition against assisted suicide contradicted the European Convention on Human Rights, but she was not successful. This case is analyzed in more detail in section four, “Approach of International law towards “Euthanasia”.

2.3.2. PASSIVE EUTHANASIA

A mentally competent adult has an absolute right to refuse any medical treatment considered as passive euthanasia, even though it leads to death. In the case of a competent child, he or she does not require parental permission to do so. But the decision must be in the best interest of the patient and a court can overrule any refusal.[31] When an adult is mentally incompetent, the treatment decision is made on behalf of his representative, who is chosen by the individual himself, or judicially appointed [at the time he was still competent]. This decision-maker must pass the ‘best interest' test. The action of prolonging life is usually considered to be in the best interest of the patient. The Mental Capacity Act 2005, section 4[6] states the requirements that must be considered:

A, the person's past and present wishes and feelings, B, the beliefs and values that would be likely to influence his decisions if he had f capacity and C, other factors he would be likely to consider if he were able to do so.[32]

The case Airedale NHS Trust vs.Bland [1993] is a landmark case in passive euthanasia [withdrawal]. Antony Bland was a victim of the disaster at Hillsborough stadium. He was injured in the crush, after which he was diagnosed as a being in persistent vegetative state. He was fed through a tube. The conclusion by doctors was that Antony would never recover from this state. Since he was not competent in that state, his family and doctors agreed it was in his best interest to withdraw artificial nutrition. The Official Solicitor, Lord Lowry, representing incapable people such as Antony was against this decision. Lord Lowry said: “There is no duty, or indeed right to feed, when feeding is not in the best interests of the patient. But the real reason for withdrawing feeding is that the doctors consider that it would be in the patient's best interests for him to be allowed to die.” The House of Lords agreed with the opposing solicitor that if the doctors' intention is to deny any food and fluids to Antony then it would be considered as murder. But the Lords held that the doctors would not commit murder, because the offence requires an act, not an omission. Stopping feeding is considered an omission, not an act. The Law Lords dismissed the appeal against withdrawing the feeding of Anthony Bland, the feeding was stopped and he died couple of days later. [33] Lord Mustill said:

“The conclusion that the declarations can be upheld depends crucially on a distinction drawn by the criminal law between acts and omissions, and carries with it inescapably a distinction between, on the one hand what is often called "mercy-killing", where active steps are taken in a medical context to terminate the life of a suffering patient, and a situation such as the present where the proposed conduct has the aim for equally humane reasons of terminating the life of Anthony Bland by withholding from him the basic necessities of life“.

2.3.3 CONCLUSION

One of the characteristics of Common Law countries is the use of precedent. For example, in Great Britain they look at precedent from previous rulings to know what the law is and how to apply it. The whole responsibility lies upon a judge, who may create the precedent. This is the reason why the argument of ‘slippery slope' is one of the biggest fears in Great Britain. The legislation is very strict towards a problematic of opening ‘flood gates'. That is, thus far, the reason why euthanasia and assisted suicide has not been legalized in Great Britain. They are very careful in choosing their laws and, as far as they remain unable to find sufficient definitions in the question of euthanasia, there won't be any possibility of legalizing euthanasia and/or assisted suicide.

Nevertheless, before a couple of years ago this idea of legalization was an unimaginable idea for any country and yet these days there are three Europeans states where it is legalized and others outside of Europe. In my opinion, eventually euthanasia will be legalized in Great Britain even though, right now, Britain's is one of the strictest legal systems regarding euthanasia.

3. COMPARITIVE ANALYSIS

The laws regarding euthanasia, assisted suicide and other medical behavior that potentially shortens life are now recognized in places as diverse as the Netherlands, Great Britain and in other western countries. Discussions involve a large range of issues, including instruments such as ethics, law, and medicine; nevertheless they have a very common character. The issues are discussed in the media and elsewhere, but less by legal entities. The purpose for comparing the approaches to euthanasia in Great Britain and The Netherlands is to illustrate some basic differences and similarities in legislature and practice in these two European countries.

3.1. GREAT BRITAIN VS. THE NETHERLANDS

According to law, Great Britain and The Netherlands stand in opposition to each other in questions relating to euthanasia. But are the differences really so distinct in practice as well?

3.1.1. ACTIVE EUTHANASIA

In both of these countries an anonymous survey was made for the years 2004-2005. The survey in The Netherlands showed that out of 136,790 total deaths, 1.3% were the result of voluntary euthanasia and 0.4% involuntary euthanasia. Additionally, 25 % of deaths had been accelerated by doctors using pain relief, known medically as “alleviation of symptoms with possibly life-shortening effect”.[34] In Great Britain the survey revealed that out of 584,791 deaths, 0.16% was by voluntary euthanasia and in 0.33% cases doctors were involved who ended patient's life without consent, which is considered as involuntary euthanasia. But in some 33 % (191,811) deaths had been accelerated by doctors using pain relief. [35] It is clearly seen from the research that the number of euthanasia preformed in The Netherlands is almost three times greater than in Great Britain, obviously because of the legalization of euthanasia in the former. But, according to the numbers in the survey, it's clear from the data on pain relief [one third higher than in The Netherlands] that doctors in Great Britain prefer another method of helping patients die, the doctrine of the 'double effect'. By using this ‘possibly life shortening' method, doctors are more protected against possible prosecution, because it is very difficult to prove a doctor's primary intention. Even though those doctors committed it ‘clearly' for the purpose of helping patients to die. So euthanasia undoubtedly continues to be preformed secretly in Britain. In Great Britain, the doctrine of double effect is something like a replacement of euthanasia for doctors. Additionally, it is the only country in which the doctrine of double effect has been explicitly accepted as a legal defense.

3.1.2. ASSISTED SUICIDE

Assisted suicide is forbidden, according to law, in both of these countries. In The Netherlands assisted suicide is covered by Dutch penal code article 294 and in Great Britain by the Suicide Act 1961 section 2[1]. But in practice, their approaches differ. The Netherlands makes no distinction in practice between legalized euthanasia and illegal assisted suicide. They are both commonly used without prosecution. A reason for that is when euthanasia is legalized then there are no reasons why AS should be banned. In Great Britain the situation is a little more complicated. AS is not accepted according to law or practice, but there are some factors which could be considered when deciding a case, although “there are no guarantees against prosecution.[36] Those factors are:

* Whether a person stands to benefit financially from assisting a suicide or if they were acting out of compassion

* If the individual wanting to die was deemed competent enough and had a "clear and settled" wish to make such a decision. Particular attention would be paid to issues such as aged under 18, or suffering mental illness

* Whether the person was persuaded or pressured into committing suicide, or if it was their own decision

But generally it's very difficult to establish causation of AS because the person assisted to die most often dies alone.

3.1.3. PASSIVE EUTHANASIA

The next point that could be considered similar is the refusal of treatment, also called passive euthanasia. In both countries it is acceptable to allow the principle in all situations. In cases where a patient is unconscious, a doctor [or representative of a patient] must consider ‘quality of life'. Thus The Netherlands and Great Britain both allow judgments based on ‘quality of life' considerations in these cases. Contributing to that fact, the role of representative of non-competent patient is legally very well defined in both jurisdictions.

3.1.4. ANOTHER COMPARISON

The similarity connecting these two countries derives from the position of the patient, which is very strong. But the legal position of a representative of the patient can only in the Netherlands be described, without qualifications, as strong. Great Britain is odd in that it leaves a key role in certain decision-making to the courts. In most countries, courts are the main element of legal development. In Great Britain and The Netherlands, there are distinct legal bodies responsible for medical law, but only in GB does the General Medical Council appear to be an essential factor in the development of legal rules. In The Netherlands, a non-criminal procedure for reviewing cases of euthanasia and assisted suicide has been put in control of these issues. Religion plays a major role in questions of euthanasia. As long as people maintain close ties to the Christian faith, it is unlikely that there will be any major support for the legalization of euthanasia. But in Great Britain and The Netherlands, religion is no longer taking such a strong position in political strategies. However, that does not mean that religion could be turned aside. In The Netherlands, euthanasia was considered murder for a long time after these crimes ceased to be prosecuted. The same circumstances occur in Great Britain. In The Netherlands, as well as in Great Britain, there is always disagreement over interpretation of at least two fundamental principles over any debatable topic that comes before the legislature. Change will likely come only in answer to shifts in public opinion if it is legislative and is likely to develop further as a matter of judicial reasoning.

4. INTERNATIONAL LEGAL APPROACHES REGARDING “EUTHANASIA”

There is no international source that addresses euthanasia directly. However that does not mean euthanasia is excluded in its entirety from International Human Rights Law. The basic sources of international law where is relevant articles can be found are the International Covenant on Civil and Political Rights (ICCPR), The Universal Declaration of Human Rights (UDHR) and, perhaps most importantly, the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR). One of the most relevant cases on the question of euthanasia at an international level is the case of Pretty vs. United Kingdom [2002]. The case was decided by the European Court of Human Rights.[37]

Article 3 of the UDHR states: “Everyone has the right to life, liberty and security of person.”[38] According to many experts, the ‘right to die' is covered by this article. The individual has a right to refuse the right to life. If we consider that life is a right, then we are allowed to refuse this right when we are capable of it. Even though it is not a part of this universal document, these days a patient may refuse medical treatment which is considered to be passive euthanasia. The doctor must have the approval of a patient for any medical procedure.[39] The only relevant question is under exactly what conditions. In the ICCPR Article 6 (1) is said: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”[40] The crucial term is ‘arbitrarily'. The commission for Human Rights considers the meaning of that term to be ‘unlawfully or unjustly' deprived of his life by somebody else.[41] Demonstrating the term ‘arbitrarily' by this definition, involuntary euthanasia would be an infringement upon Article 6. In the ECHR, for example, Article 3 prohibits torture: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”[42] Modern medicine may prolong lives in cases that were previously hopeless. However, by prolonging the life of a patient who doesn't not have any chance of recovery and is living just in pain, it might, in certain circumstances, be torture and inhumane for him. That supports the legalization of euthanasia, but the question remains of who decides in the best interests of the patient. A doctor, a state, or the individual himself? The controversy over euthanasia has its legal supporters as well as opponents, each of them nourished by various ideological sources throughout the world. Those who are against euthanasia argue that the right to die is a contradiction of the right to life. They are of the opinion that international law fails to contain any instrument justifying euthanasia. One of the major arguments is also that euthanasia is not ethical, because every doctor swears the Oath of Hippocrates to help ‘beneficere' and not to harm ‘non maleficere'. On the other hand, supporters of euthanasia say that once we have the right to life, we automatically obtain the right to die. They argue that life prolonging methods are often very painful and cruel and might compare to the torture of the Middle Ages.[43] In this circumstance, euthanasia allows the choice between great suffering and death.

4.1. EUROPEAN COURT OF HUMAN RIGHTS

In cases where individuals feel the state restricts them from their fundamental rights (not just in connection with euthanasia), they may as citizens bring a case before the European Court of Human Rights [ex. Pretty vs. United Kingdom] in order to decide if the European Convention on Human Rights has been violated.

The European Court of Human Rights (ECHR), based in Strasbourg, is one of the largest and most exemplary regional judicial bodies. The Court was established under the European Convention on Human Rights, by the member states of the Council of Europe in 1959, for the purpose of enforcing state respect for human rights.[44] Since 1998, any individual, group or non-governmental organization believing their human [fundamental] rights to have been violated, can bring a case against their own state. Cases may also be brought by one state against another. [45]

The record of the ECHR is numerically impressive by comparison to all other regional judicial bodies. In fact, second only to the European Court of Justice [ECJ], the ECHR has decided the largest number of cases and developed the widest jurisprudence over protections to human rights.

All member states desiring entry to the Council of Europe are obliged to become parties to the European Convention on Human Rights. They are then subject to the jurisdiction of the European Court of Human Rights, in which each state is obliged to protect the rights of the ECHR. [46]

Over more than 50 years, the Court has made in excess of 12,000 judgments. In more than 80% of these cases, the Court ruled that a violation of the European Convention on Human Rights occurred. The largest portion of those judgments was made against Turkey, Italy, France and Russia. The Court's decisions are binding. The judgments of the ECHR have changed and influenced the law in many states in Europe. Its findings have also influenced law and practice in other countries in the world.[47]

There are 47 judges on the Court, their number dependent upon the total number of parties to the Convention. Judges are elected for a six-year term by the Parliamentary Assembly of the Council of Europe. Judges are elected as individuals, rather than representatives of a member country.[48]

Furthermore, investigating the case of euthanasia within the solidarity of the European Court of Human Rights demonstrates the conservative judicial process in highly controversial areas.

4.2. CASE OF PRETTY VS. UNITED KINGDOM

The best known case addressing euthanasia came before the European Court of Human Rights in 2002. Diane Pretty was dying of a degenerative disease affecting the muscles, for which there is no cure. The disease was at a level where she was paralyzed from the neck down. However, she still had the mental capacity to make informed decision over her future treatment. It is recognized that to commit suicide, under English law, is not considered a crime cases such as hers. But the case defined itself by her desire to be assisted by her husband in committing suicide, which is strictly forbidden by 2[1] of the Suicide Act of 1961. The Director of Public Prosecutions refused her request to guarantee that her husband would not be punished if he assists. She appealed through the English courts but was not successful. She then took her plea to the European Court of Human Rights and stated that Suicide Act 1961 contravenes articles 2,3,8,9 and 14 of the European Convention for the protection of Human Rights and Fundamental Freedoms. Here, she was unsuccessful as well.[49]

The European Convention for the protection of Human Rights and Fundamental Freedoms, Article 2 §1 reads: „Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally, save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. “[50]

The Court interpreted Article2 §1 not only to refrain from the unlawful taking of life, but also to actively participate in protecting that life. Also, the Court stated that the obligation may be extended to protecting persons in danger from a criminal act. The decision, according to Article 2, was that there is no right to die, no matter by whose hand. There had, therefore, been no violation of that provision.[51]

Article 3: „No one shall be subjected to torture or to inhuman or degrading treatment or punishment. “[52]

The Court noted: “It was beyond dispute that the respondent Government had not, themselves, inflicted any ill-treatment on the applicant. Nor was there any complaint that the applicant was not receiving adequate care from the State medical authorities.” The applicant had applied not to prosecute her husband if he helped her to commit suicide and to bring an end to her degrading and inhuman treatment. The Court had to consider all approaches to interpretation of the Article. The Court could not agree with the applicant's fear that, without the chance to end her life, she would die in great pain. Their conclusion was that that no positive obligation is present under Article 3 and that there had been no violation of that Article.[53]

Article 8 §1: „Everyone has the right to respect for his private and family life, his home and his correspondence. “[54]

§2 „There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. “

The only issue arising, as found by the Court, was the necessity of any interference. The applicant attempted to silence the nature of the ban on assisted suicide. The Court determined that States were obligated to regulate criminal law activities detrimental to the life and safety of other individuals. The law at issue in this case was created to protect life against an intended end of life or assistance in the ending of life. The Court did not agree that attempting to silence the nature of the ban on assisted suicide was disproportionate. Nor, under the circumstances, was there anything disproportionate in the refusal to give an advance understanding that no prosecution would be brought against the applicant's husband. The Court decided that the interference could be justified as "necessary in a democratic society" for the protection of the rights of others. There had, therefore, been no violation of Article 8.[55]

Article 9 §1: „Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.“[56]

The Court stated that the applicant's claims had no connection with the form of ‘manifestation of a religion or belief, through worship, teaching, practice or observance ‘as described in Article 9 § 1. The term "practice" does not mean any act which was influenced by a belief. The Court concluded that there had been no violation of Article 9.[57]

Article 14: „The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.“[58]

The court is considering Article 14 when there is not a reasonable relationship of proportionality. Discrimination could exist where a State, without an objective and reasonable justification, does not act not in a consistent way regarding persons whose situations were clearly different. The Court views that as reasonable justification for not distinguishing in law between those who were and those who were not physically capable of committing suicide. The reason is that any border between these two categories could, for those incapable of committing suicide, seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. There had been no violation of Article 14.[59]

Some hoped that the European Court would bring an argument in favor of the right to die. However, it failed to happen in the case of Diane Pretty. On the other side, the ECHR did not interpret the right to die to involve control over death. That means there is, as yet, no uniform concept on this issue. The differentiation only of three countries shows the widely varied opinions of member states. There is a basic respect for human life, but since there is no general agreement, the European Court of Human Rights may set the borders very wide in order to allow for competing views.

5. CONCULISION

Over several years, legalization of euthanasia and assisted suicide has become a topic of intense negotiation in many countries. After The Netherlands, Belgium and Switzerland followed with legislation on euthanasia. One may conclude that euthanasia and assisted suicide has strengthened its position in Europe. This, even though the European Court of Human Rights ruled in April 2002 that there is no right to die. There are two main positives concerning the legalization of euthanasia and assisted suicide. The first is ending great physical or psychological suffering. The second is extending individual autonomy. Yet on the other side, there are negatives as well, as the requirements for euthanasia which are not, or may not be sufficient to avoid suffering by people who don't want to die and may be killed anyway. In The Netherlands, there have been many cases where a patient was killed without their request, because their doctor thought they were suffering. [60] Comparing the legal systems of The Netherlands and Great Britain may, at first, seem very different regarding the general question of euthanasia. But after further investigation and a closer look at the subject, it becomes apparent that many similarities in their legal approaches exist, even though they clearly differ in their perspectives on active euthanasia. The Netherlands legalized euthanasia and Great Britain has not. But in the case of Great Britain, one side of the legal argument over euthanasia fails to be supported by the legislature because there are no sufficient definitions thus far. On the other side, the process is supported by doctors and citizens who are forced to practice euthanasia illegally. The fact that must be accepted is that euthanasia is practiced in both of these states, no matter what the laws state. I personally agree with the ‘right to die' in some of its forms and I have several reasons for that position. 'Every person shall have the right to die with dignity; this right shall include the right to choose the time of one's death and to receive medical and pharmaceutical assistance to die painlessly. No physician, nurse or pharmacist shall be held criminally or civilly liable for assisting a person in the free exercise of this right.'[61] But there are certain legal and practical differences between the ‘legal' forms [euthanasia, assisted suicide] of ending one's life. I think the process of active euthanasia and the Dutch system has not been sufficiently regarded. The legal regulation of active euthanasia is a very complex issue and depends upon a number of circumstances, including judicial interpretation, clarity of statute and even the prejudice of a particular judge. However, I would support euthanasia under conditions in which these factors are adequately managed. Euthanasia would then be very strictly controlled and monitored, primarily by ensuring important issues are addressed. The request for euthanasia should be truly autonomous, well-informed and no other options should be available within which to practice euthanasia. The Dutch experience with euthanasia also points out an important need to ensure that consulting doctors are independent from treating doctors, in order to limit the potential for abuse. At the same time, I surely support the form of physician-assisted suicide for reasons of autonomy, where a patient must be conscious to take a pill and it must be only at a patient's specific and voluntary request. Nobody else may make the decision on behalf of the patient, neither a guardian nor family, either of whom could abuse it. To give somebody the right to legally ‘kill' another person is a very dangerous instrument that should not be allowed under any conditions. One of the reasons why I agree with ‘right to die' is that no one should be forced to suffer. There are many reasons [various diseases, mental illnesses or old age] people may desire to end their life. But, when somebody arrives at that decision [supported by suffering], there should be methods for ending that life with dignity. If there is no right to die, people may be forced to extreme solutions, such as suicide, to refrain from suffering at home or in a hospital. Suicide should be considered an extreme solution, only in worst case scenarios. Another method that must be considered is passive euthanasia. Passive euthanasia [refusal of treatment] has no clear grounds in most countries, yet is generally accepted. The argument is that this method of euthanasia, which is supposed to legally shorten a life as much as possible, might often be a very slow and painful procedure before the patient reaches the end. But if the patient has no other form of euthanasia available, he or she will undergo it. a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a a aa a My last reason is possibility to travel to other countries, such as Switzerland, where it is permitted to obtain euthanasia, or assisted suicide. A lot of terminal patients from Great Britain and other European countries use the availability of death by assisted suicide in Switzerland, without concerns over prosecution.[62] Prohibitions against euthanasia and assisted suicide are therefore useless. Where is the point in not accepting the ‘right to die' in other countries in Europe, when you can travel abroad to obtain a legal death? A With fast growth in the development of medicine, distinctions either in the legalization or non-legalization of euthanasia are going to be minor within a few years. As time goes on, there are two likely conclusions concerning how that development may play out, before an already chaotic situation gets even worse. First, a drug may be invented to help old, psychically or psychologically ill people live without suffering and the drug won't shorten the patient's life. Then there will be no need of euthanasia and other medical behaviors that potentially shorten life. Second, euthanasia will be generally wide accepted in Europe in some form [active euthanasia, assisted suicide...]. European countries will not then be forced by legislators to legalize euthanasia, but will be pressured by its surrounding national states to accept its principles. In this more realistic scenario, one can only hope that the chosen method of euthanasia will by that time be supported with sufficient requirements.

6. BIBLIOGRAPHY

6.1. Primary Sources

Legislation:

GB

* Mental Capacity Act 2005

[http://www.opsi.gov.uk/Acts/acts2005/pdf/ukpga_20050009_en.pdf]

* The Suicide Act 1961

* The Law Commission

[http://www.lawcom.gov.uk/]

NL

* Termination of Life on Request and Assisted Suicide Act of 2002

[http://www.eutanasia.ws/leyes/lEYHOLANDESA2002.pdf]

* Dutch Criminal [Penal] Code, ss 293 (euthanasia), 294 (assistance with suicide), 287 (murder)

* Law on Contracts for Medical Care of 1995

* Burial and Cremation Act

* Netherlands State Commission on Euthanasia

INT

* The Universal Declaration of Human Rights

* The European Convention on Human Rights

* The Covenant on Civil and Political Rights

Cases:

* Airedale NHS Trust vs.Bland [1993] AC 789

* Pretty vs. United Kingdom [2002] ECHR 423

* Re (Wardship: Medical Treatment) [1997] 1 WLR

* Attorney-General vs. Able [1984] QB 795

* Wyatt vs. Porsmouth NHS Trust [2005] EWHC 693

* Sutorius Case, District Court at Haarlem, [2000]

6.2. Secondary Sources

Books:

* Friedlander, Henry; The Origins of Nazi Genocide: From Euthanasia to the Final Solution, 1995

* Dowbiggin, Ian; A Merciful End: The Euthanasia Movement in Modern America,2003

* Tulloch, Gail; Euthanasia-choice and death, 2005

* Raphael Cohen-Almagor; Euthanasia in The Netherlands: the policy and practice of mercy killing, 2005

Articles, Journals:

* Gerald A. Larue; Humanism Today, Euthanasia

* Williams, Glenys; The Principle of Double Effect and Terminal Sedation, Med Law Rev.2001

* The Free Legal Dictionary by Farlex [http://www.thefreedictionary.com/]

* Gonzaga Journal of International Law- Legalization of Euthanasia in the Netherlands; Jonathan T. Smies

* Treatment Directives in The Netherlands, [http://dissertations.ub.rug.nl/FILES/faculties/jur/2005/c.vezzoni/04_c4.pdf]

* European Court of Human Rights, official website

[http://www.echr.coe.int/echr/Homepage_EN]

* The medical news, Euthanasia in Britain

[http://www.news-medical.net/news/2006/01/19/15479.aspx]

* The Hippocratic Oath,

[http://www.members.tripod.com/nktiuro/hippocra.htm]

* Orlin T; The Right to Life ,The Right to Die

* The new England journal of medicine, End of life Practices in the Netherlands under the Euthanasia Act, 2007 [http://content.nejm.org/cgi/reprint/356/19/1957.pdf]

* Sokol Ronald; International Herald Tribune, The Right to die, 2007

* The new England Journal of Medicine, End of life Practices in the Netherlands under the Euthanasia Act, 2007

[http://content.nejm.org/cgi/reprint/356/19/1957.pdf]

* Herbert Hendin; Seduced by Death: doctors, patients, and the Dutch care, Professor of Psychiatry, New York Medical College, and
Medical Director, New York, USA

* Holland Legalizes Voluntary Euthanasia, 2000, The

Voluntary Euthanasia Society News, [http:// www.ves.org.uk/cgi-bin/]

[1] Gerald A. Larue, Humanism Today,Euthanasia

[2] For the purpose of this paper, I use the term ‘Great Britain‘ as inclusive of just England and Wales, because Scotland is governed by a different legal system which I will not cover.

[3] Netherlands State Commission on Euthanasia

[4] The Free Legal Dictionary

[5] Ian Dowbiggin, A Merciful End: The Euthanasia Movement in Modern America, 2003, p.1-16

[6] The Hippocratic Oath

[7] Friedlander, Henry, The Origins of Nazi Genocide: From Euthanasia to the Final Solution, pg. 11-17.

[8] Tulloch, Gail, Euthanasia-choice and death, 2005, pg. 33-35.

[9] Ibid.

[10] The Free Legal Dictionary

[11] Airedale NHS Trust vBland [1993] AC 789

[12] Williams, Glenys, The Principle of Double Effect, 2001, pg. 41

[13] Holland Legalizes Voluntary Euthanasia, 2000, The Voluntary Euthanasia Society News

[14] Termination of Life on Request and Assisted Suicide, Act of 2002

[15] Cohen-Almagor, Raphael, Euthanasia in The Netherlands: the policy and practice of mercy killing, 2005, pg.164-168

[16] T. Smies, Jonathan, Legalization of Euthanasia in The Netherlands, 2003

[17] Netherlands State Commission on Euthanasia

[18] Termination of Life on Request and Assisted Suicide, Act of 2002

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Treatment Directives in The Nehtherlands

[23] Law on Contracts for Medical Care of 1995, Art.450,460

[24] Treatment Directives in The Nehtherlands

[25] Ibid.

[26] Herbert, Hendin , Seduced by Death: doctors, patients, and the Dutch care, 1998,

[27] Law Commission

[28] Airedale NHS Trust v Bland [1993] AC 789

[29] The Suicide Act 1961

[30] Triggle Nick, Assisted suicide law clarified, BBC News, 2009

[31] Mental Capacity Act 2005

[32] Ibid.

[33] Bland [1993] AC 789

[34] End of life Practises in the Netherlands under the Euthanasia Act, The new England Journal of Medicine,2007

[35] Euthanasia in Britain, The medical news, 2006

[36] Triggle Nick, Assisted suicide law clarified, BBC News, 2009

[37] Pretty vs. United Kingdom [2002]ECHR 423

[38] The Universal Declaration of Human Rights

[39] Orlin T., The Right to Life, The Right to Die

[40] International Covenant on Civil and Political Rights

[41] Orlin T., The Right to Life, The Right to Die

[42] European Convention for the protection of Human Rights and F. Freedoms

[43] Foucault, Michel, Discipline and Punish, 1995

[44] European Court on Human Rights, official website

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Ibid.

[49] Pretty vs. United Kingdom [2002]ECHR 423

[50] European Convention for the Protection of Human Rights

[51] Chamber Judgment on the case of Pretty vs. United kingdom

[52] European Convention for the Protection of Human Rights

[53] Chamber Judgment on the case of Pretty vs. United kingdom

[54] European Convention for the Protection of Human Rights

[55] Chamber Judgment on the case of Pretty vs. United Kingdom

[56] European Convention for the Protection of Human Rights

[57] Chamber Judgment on the case of Pretty vs. United kingdom

[58] European Convention for the Protection of Human Rights

[59] Chamber Judgment on the case of Pretty vs. United kingdom

[60] Herbert Hendin , Seduced by Death: doctors, patients, and the Dutch care, 1998

[61] International Herald Tribune, Ronald Sokol, The Right to die, 2007

[62] RE Z [2004] EWHC 2817