9th Greek Australian Legal and Medical Conference
Rhodes, Greece 2003

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FROM HIPPOCRATES TO THE 21ST CENTURY

Miss Agni Kortsidaki

The roots of the ideas about euthanasia go back to the ancient Greek society. The ancient Greeks, who developed the notion of euthanasia, defined the term as the 'good death'.

Sparti was notorious for the extermination of each crippled male newborn child. This practice was justified as a means for eugenics, or as a way to protect the society from unnecessary burden, or as a way to 'save' the people confounded with the death sentence, because it was thought that they were absolved from the difficulties they would face due to their problematic existence.

In Marseilles and in the Greek island of Kos there was a poisonous drink and the civilians who wished to die would drink it in front of the city's authorities declaring that they wanted to die peacefully, because they felt that this life was too despairing.

Pythagoras and his pupils were completely against suicide due to their religious beliefs that the Gods place the man as the protector of the earthly life and he is not allowed to escape with his own will. The Gods had all the power and the people belonged to them. This belief was based on the respect for human life that derived from the holly soul, which existed in the body.

Pythagoras and his teaching had a great influence on Hippocrates. In his oath we read: "I shall not give a lethal medicine to anyone, no matter how much I am asked to do so and I shall not give such an advice to anyone." It is clear that he condemns euthanasia with the use of a lethal drug. But on the other hand we read that doctors' followers of Hippocrates would not deal with patients with no hope for any cure. This was in accordance with the social beliefs.

In the after-Hippocrates era and in the Greek-Roman years the philosophers Plato and Senekas respectively supported euthanasia under certain circumstances. Plato mentions in his book 'Politia' that each citizen has a specific duty to fulfil in a well-governed society and he has no right to live in sicknesses or with the help of drugs. According to him, only those mentally and physically healthy should be cared for, whereas those suffering should be left to die. The Roman philosopher Senekas writes: 'Just as I shall choose the boat I shall travel with, or I shall choose the house I shall live in, in the same manner I shall choose my death for the passage from this life to the next one'.

Aristotle was against both suicide and euthanasia, because he believed that the man who undertook either was harming society by depriving it from his services and by violating his duty to lead a productive life to the end. Even if a patient is struck by an illness and has lived his productive years, he should not have the option of euthanasia. Meeting death with courage and resisting the suffering and discomfort is a characteristic of a virtuous man.

Contrary to the ancient Greek and Roman world, the Jewish society, dominated by the teaching of the Bible and especially the sixth command 'thou shall not kill', had rejected centuries ago every theory on shortening the life of handicapped or disadvantaged people. The Jews would not only allow the handicapped people to live, but would take special care of them, even if they did not belong to their family. Judaism considered life to be sacred and 'untouchable'.

The real revolution came with Christianity, which refuses to the individual the right to decide for either his own death (suicide) or the death of others (murder). Life is regarded a holy gift and no one can or has the right to take it away. The fathers of the Church highlight the eternal value of human life and its spiritual and sacred kind. Christ taught the love for one another. By performing euthanasia, by the discontinuation of the biological life, we go against the love of God towards that person, because we stop his corporal dimension and we disregard his other dimension, the spiritual one. The life of every man, but also of every creature is an adaptation of God's will and plan. Life is rendered as a great gift by the Creator in order to give fruits, first here on earth but also in order to find its fulfilment in the eternal life. Every suffering and misfortune is a necessary test by God and aims at making our faith stronger.

Euthanasia is considered as a suicide and thus is immoral and forbidden in the Muslim religion. The Koran says: 'Do not kill yourselves. Allah will not be merciful with you. He who commits suicide will suffer in the fires of hell and will be exiled from paradise forever'. Only the Eastern religions, such as Buddhism and Confucianism seem to let's say tolerate euthanasia, since they allow suicide. Proof of that, the hara-kiri.

During the Renaissance and the return to the thoughts of the ancient Greeks and Roman philosophers, there was indulgence towards suicide and voluntary euthanasia. Thomas Moore in Utopia (1516 AD) associated euthanasia with suicide and plead to doctors, priests, government authorities etc. to induce people suffering from incurable illnesses, from great pain and agony, to terminate their lives, since their life has become useless and painful both to them and their beloved ones.

About a century later (1627 AD) Francis Bacon supported the idea that doctors should provide the incurable patients with a peaceful and easy death so as to redeem them from the pain and the death agony.

In the 17th and 18th century the attitude towards euthanasia took a different turn. The philosophical theories on suicide were diversified from the religious beliefs and the French revolution led to the abolition of the old laws on suicide.

During the 19th century, euthanasia became the object of more mature meditation and research. The ideas connecting it with social use (eugenics) were abandoned. The new questioning concentrated on the cases of incurable patients for whom voluntary or involuntary death is the only redemption.

Very characteristic is the case of a French lawyer, called Lenan, who killed his paralysed mother in 1898, in order to save her from the insufferable pain. He was acquitted by the Paris criminal court. This court decision led to a storm of protests by the opponents of euthanasia but also to a storm of congratulations towards the dareful judges.

Of course the greatest developments on euthanasia were materialised during the 20th and 21st century. In the 1900s there were efforts to legalise euthanasia in the Saxon parliament and the American cities of Ohio, Washington and Iowa. They were all unsuccessful.

In 1920 a book by Karl Binding and Dr. Alfred Hochen was published in Germany with the title 'Releasing the destruction of worthless animals'. This book was the base of involuntary euthanasia in the Third Reich.

In 1936 the Voluntary Euthanasia Society was founded in England. The next year the English Parliament (of the Lords) rejected a proposal to legalise euthanasia. It was a time of confrontations on the issue in the west European and North American societies. In opinion polls of those years, euthanasia supporters had around 60% of the votes. In 1938 the Euthanasia Society of America was established in New York.

Euthanasia was denigrated by the Nazi regime in Germany, which referred to populist ideas for race segregation and cleanness. There was a phenomenal in cruelty and brutality campaign against whole groups of people who had to be killed because they were dangerous for the 'New Order'. At the beginning it was people with an illness or who belonged in social minorities (e.g. physically disabled, powerless old people, homosexuals etc.) and later on, during the war, it was whole race or ethnic groups (mainly the Jews and the Gypsy). In those days the term euthanasia lost its meaning and was used as an excuse for massive murders.

After the end of the war, the conversations on the ethical, social and scientific nature of euthanasia, if it right or wrong, started again.

There were cases of euthanasia and developments in various countries, e.g. Japan, Holland, USA, Germany etc.

And we come to 1975. Karen Ann Quinlan, from New Jersey, an attractive and vivacious young woman, went to a birthday party with some friends. She did not eat much but along with alcohol, she ingested some drugs. Then she started 'to act kind of strange' and her friends, thinking she was drunk, drove her home and put her to bed. A while later they returned to check on her and they discovered that she was not breathing. They tried mouth-to-mouth resuscitation and called a rescue squad. The rescue team tried to revive Karen Ann's breathing but she remained comatose as she was rushed to the hospital and she was placed on a respirator. The doctors told the family that all they could do was wait to see if she would awaken from the coma. She never did.

After a few months her parents decided that she had suffered enough and signed a release to allow the doctors to take her off the respirator. But the doctors, even though they believed the young woman would never recover, refused to remove the breathing apparatus, fearing that they may be held liable for murder. Ann's father went to court to secure authority to discontinue all extraordinary medical measures. What had been a private nightmare for the Quinlan family became the opening round in an ongoing national debate.

On March 1976 the Supreme Court of the State of New Jersey handed down its historic ruling that people have a constitutionally protected right to die and that this right can be exercised for them in situations where the patient can no longer make such decisions. The Court declared: 'we have no doubt that if Karen were herself miraculously lucid for an interval and perceptive of her irreversible condition, she would effectively decide upon discontinuance of the life support machine even if it meant the prospect of natural death'.

That case brought forward questions that concerned Americans for years. What rights does an individual have in refusing treatment, even if that refusal leads to death? Who can make medical decisions for a person who is legally incompetent? Can a person legally secure assistance in dying? These are all of course questions of law but there is no area of law more fraught with ethical and moral considerations than the right to die.

There were more cases like that one, i.e. Joseph Saikewitz, brother Charles Fox etc. After the ruling on those cases the trends discerned were:

  1. A competent patient had the right to terminate treatment, although courts differed on whether this right derived from common-law rules of self-determination, the constitutional protection of privacy or both.
  2. If a formerly competent person had made a clear and convincing statement of intent, those wishes would be honoured, and in most jurisdictions there would be no need to involve the courts in the decision-making process. The adoption of a living-will or death-with-dignity statutes had made it possible for a person to make choices against the contingency of future disaster with a reasonable certainty that such wishes would be honoured.
  3. The hard cases and the ones that caught the headlines, involved incompetent patients who either had never been competent or when competent had left no indication of their wishes. Here courts had to grapple with the most difficult of legal and moral questions, trying to balance the state's interest in preserving life with what would be best for the individual, while also taking into account the judgments and fears of the health care providers.

And the core of the debate is the question of who decides if the individual is unable to do so ­ the family, the doctor, the hospital and its ethics committee, a judge, or some other party? What criteria should they use? What if their own beliefs run counter to those of the patient? How great a role should courts, as opposed to legislatures, play in the process? When, if ever, is it more beneficial for the patient or for the society to "pull the plug"? What happens if the best interests of the patient do not coincide with what appear to be the best interests of the society? Is society best served by preserving life in all instances? Is there a slippery slope, so that allowing a person in severe pain to die today may lead to allowing less-afflicted people to die tomorrow and the merely elderly or infirm the day after?

And we come to the 80s. In 1983 coming home from her job 25 year old Nancy Cruzan had a car accident. Emergency help came promptly but not soon enough. As her father said: 'If only the ambulance had arrived five minutes earlier ­ or five minutes later'. The rescue squad resuscitated Nancy but by then her brain had been deprived of oxygen far too long. She never regained consciousness and sank into PVS (persistent vegetative state) for seven years. The Cruzans did not consider this half-existence to be life, and they went to court asking that the feeding tube be removed to allow Nancy to die. The case differed from earlier ones in the fact that no artificial machines kept Nancy alive. Her heart beat and she could breathe on her own. She needed only food and removing the feeding tube would mean that she would starve to death. Although doctors (AMA and BMA) consider artificial feeding and hydration a medical treatment that, like a respirator, can be withdrawn from a terminally ill patient, the idea horrified many people. Even though Nancy was 'technically' alive, did she have a 'life'? Her parents did not think so. They considered their daughter to be trapped in a cage and themselves to have the obligation ­ and the right ­ to free her from the prison.

The Cruzan case reached the Missouri Supreme Court, which ruled that an individual has the right to die but also that the family of an incompetent has to prove that the patient if competent and able to make his or her wishes known, would want medical treatment or artificial feeding terminated.

Under the common law, 'no right is held more sacred, or is more carefully guarder than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law'.

From 1990 onwards we have the cases against Dr. Death (Kevorkian). Jack Kevorkian helped in 1990 Janet Atkins to commit suicide. The murder case against him was dismissed. Kevorkian helped a number of people die and even though he was prosecuted he remained free of criminal charges until 1999. A year before he administered lethal injection to Thomas Youk. A videotape with the incident was broadcast on 60 Minutes. Kevorkian was indicted for murder and was found guilty of second-degree murder. He was sentenced to 10-25 years in prison.

In 1994 the State of Oregon legalised physician assisted suicide with the 'Death with Dignity Act'. This Act came into effect in 1997. Since then, 129 Oregonians have ended their lives with prescription drugs obtained under the law.

On the other side of the Atlantic, in the UK famous cases were:

Re T where the court recognised that the right to refuse life-sustaining treatment applied to all competent adult patients and not merely those who were terminally ill.

In Bland the House of Lords gave a landmark decision. Medical treatment including artificial feeding and the administration of antibiotic drugs could be withheld from an insensate patient with no hope of recovery when it was known that the result would be that the patient would shortly thereafter die, provided competent and responsible medical opinion was of the view that it would be in the patient's best interests not to prolong his life by continuing that treatment because such continuance was futile and would not confer any benefit for him.

In Australia there was the 1995 Northern Territory Rights of the Terminally Act Bill. The Northern Territory was the first place in the World to legalise euthanasia (assisted suicide), the active killing of the terminally ill. The bill went into effect in 1996 but less than a year later was overturned by the Australian Federal Senate. Four people had gone through the procedures set out in the Act to end their life, using a computer to administer a lethal concoction of drugs. Australia has its own Dr. Death (Philip Nitschke).

The latest developments on euthanasia are the legalisation in Holland and Belgium last year and the Diane Pretty case. She took her case to the European Court of Human Rights where she tried to claim that a denial of her right to die constituted a violation of her fundamental rights. She had requested fatal treatment to be administered to her because she was suffering from the motor neurone disease and the British courts refused to give her husband immunity from prosecution if he helped her die. She lost her case. On the other hand, Mrs. B won her case in the English courts. The Court Judgement authorised a mentally competent adult to refuse medical treatment, including the right to have her ventilator switched off.

What happens today:

Switzerland, once known in the tourism business for its spectacular alpine landscape, the watches and chocolate, has a new claim to fame as the world's death Mecca. Physically and mentally vulnerable patients have been lining up for a one way trip to Zurich. In 2000 three foreigners committed suicide in Zurich. In 2001, the number of death tourists rose to 38, plus 20 more in Bern. Last year, in Zurich alone, 55 foreigners came to die by their own hand in a strange land in an apartment not their own. Most of the deaths occurred in an apartment rented by Dignitas, one of the four groups that have taken advantage of Switzerland's 1942 law on euthanasia to help the terminally ill die. Dignitas has assisted the suicides of 146 people over the last four years. The Swiss parliament has been alarmed and there is a move to ban the 'suicide tourism' and to place tougher bans on assisted suicide.

SELECTED BIBLIOGRAPHY

Bekas I., Crimes against Life and Health (Eglimata kata tis Zois kai tis Ygeias) (Sakkoulas, Athens, 2002)

Gillon R., Suicide and Voluntary Euthanasia: Historical Prospective. (Downing, Smoker (ed.), 1986)

Kennedy and Grubb, Medical Law (Butterworths, 2000)

Kennedy, Grubb, Principles of Medical Law (Oxford University Press, New York, 1988)

Margaritis M., 'Euthanasia' (I Efthanasia), Greek Justice Journal (Elliniki Dikaiosini) (2000)

McLean S., Death, Dying and the Law (Dartmouth, 1996)

Menikoff J., Law and Bioethics. An Introduction (Georgetown University Press. Washington D.C., 2001)

Pretty v United Kingdom [2002], ECHR

Ottlowski M., Voluntary Euthanasia and the Common Law (Oxford University Press, 1997)

Tannock C., 'Euthanasia and the EU', The European Journal, May 2002

Tsounakos O., 'Euthanasia. Historic-Sociological Approach' (Efthanasia. Istoriki-Koinoniologiki Proseggisi), Pharmaceutical Treatment Journal (Farmakeutiki Agogi) (1999)

http://news.bbc.co.uk

http://www.euthanasia.com

http://www.health.in.gr

http://www.reuters.com

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Copyright 2003. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at jennycrofts@ozemail.com.au