Aix-En-Provence, France:
'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."
Within the next half century, perhaps much sooner, the right to
choose to die with dignity will be as widely recognized as the right to
free speech or to exercise one's religion.
It will cease to be called euthanasia or mercy killing. It will not
be viewed as killing, but as a fundamental human right as expressed in
the imaginary constitutional amendment above.
In Europe, euthanasia is already sanctioned by law in Belgium, the
Netherlands and Switzerland. In the United States, the state of Oregon
has also allowed it.
The decision last week by a French criminal court in Périgeux
illustrates how social mores precede changes in the law. The facts of
the case are simple: A 65-year-old woman suffering from terminal
pancreatic cancer was given potassium chloride by a nurse and died
shortly after.
Potassium chloride is a fatal poison. The dose was prescribed by a
doctor and administered by a nurse acting on the doctor's orders. Prior
to the fatal dose, the patient suffered from fever, trembling,
incontinence, nausea, pain and an intestinal blockage causing vomiting
of fecal matter.
The nurse was indicted for assassination and the doctor for
assisting. The charges were later changed to poisoning. The two accused
risked maximum prison sentences of 30 years.
After four days of trial the nurse was acquitted and the doctor was
given a one-year suspended sentence. The court also ordered that the
conviction not be registered in national government files, which will
enable the doctor to continue to practice. It is not clear who
initiated the prosecution. Neither the husband nor the son of the
deceased woman pressed charges. In fact, they supported and thanked
both doctor and nurse. The prosecution argued that the principle of not
killing must be upheld, but the jury did not agree.
The decision shows once again that laws are a lagging indicator of social change.
France revised its law in 2005 and now permits what it terms passive
euthanasia, which may mean withholding treatment or giving painkillers
in such a massive dose that the patient can slide into an eternal
sleep. But it forbids active euthanasia such as the use of potassium
chloride.
A generation ago, in 1980, a number of people in France formed an
Association for the Right to Die with Dignity (ADMD), which now has
over 40,000 members. As medical care improves and people live longer,
one can expect to see more such associations around the world, and
eventually a change in perspective.
At present, the law focuses on the act of the physician or nurse,
and not on the rights of the patient. As that focus shifts so that the
right of the patient to die with dignity becomes paramount, one can
expect to see the law proclaim a fundamental right.
The fear of abuse by doctors, nurses, or family members wishing to do away with an unruly patient or parent will recede.
Every time we step into an automobile we run the risk of being
killed or seriously injured. Yet despite the thousands of auto
fatalities every year in every country, the risk is accepted because of
the benefits of automobile travel.
The legal philosopher Hans Kelsen defined justice as social
happiness. But social happiness is an evolving concept and one that
varies from one culture to another.
One need only look at how practices in the workplace — holidays,
wages, hours per week, maternity leave for mothers and fathers — vary
widely from country to country, and yet are regarded as vested rights
in each.
Neither the French nor the American Constitution, nor the UN
Universal Declaration of Human Rights, nor the European Convention on
Human Rights, includes the right to die with dignity. But then many of
the human rights we take for granted today — including
non-discrimination and free speech — are far more recent than one might
imagine.
One can predict with some confidence that as life expectancy is extended, social mores will evolve and the law will follow.
Ronald Sokol, former lecturer in law at the University of Virginia, practices law in Aix-en-Provence, France.