Thursday 21 March 2013

Euthanasia is a matter for Parliament: Chief Justice Menon

Issues are complicated and need much debate, he says
By K. C. Vijayan, The Straits Times, 20 Mar 2013

CHIEF Justice Sundaresh Menon has made it clear it is for Parliament to decide if voluntary euthanasia, or assisted suicide, is to be allowed in Singapore.

But the choice is a complicated one, requiring plenty of debate.

When he delivered the Singapore Medical Association's annual lecture titled "Euthanasia: a matter of life or death?" two Saturdays ago, he highlighted the example of Singaporean lawyer Suzanne Chin to show that even science did not have all the answers.

After she collapsed in Hong Kong in 2009, her family was informed she was brain dead. Her husband was advised to switch off the ventilator as there was no hope of recovery. Three days later, she revived. Eight days later she was discharged.

"I make these points to make the point that there are limits to what we know and what science can tell us," said CJ Menon, who explained that issues relating to accelerated and assisted dying were profound, with so many deeply different views that no "categorical conclusion" might be reached.

Euthanasia is illegal in Singapore but in certain cases under the country's Advance Medical Directive (AMD), a terminally ill person whose condition will soon lead to death can instruct doctors not to keep him alive by artificial means such as respirators. The Act, introduced in 1996, was preceded by much debate in Singapore.

CJ Menon noted that the AMD Act, "a carefully structured statute", does not condone, authorise or approve euthanasia, mercy killing or the abetment of suicide. He said: "... nothing in it authorises any act that causes or accelerates death as distinct from that which permits the dying process to take its natural course."

But he believes that the topic of assisted dying should continue to be a matter of "public debate, private conversations with our loved ones and personal reflection".

He listed several issues to guide the discussion, such as to what extent can the experience of other countries in legalising assisted suicide or voluntary euthanasia be relevant to Singapore.

He also asked "how slippery and steep might be the slope that starts with a narrow exception permitting assisted suicide in limited circumstances".

He added that experiences from abroad perhaps suggested that "the choices about these matters are best not left to the courts". He cited a US judge who said that the answers "are not known to the nine Justices of the Supreme Court any better than they are known to nine people picked at random from the... telephone directory".

Instead, "the challenge for the courts will be to deal with particular issues as they arise from time to time" based on "well-developed principles", and "any development would have to be incremental".

He added it would be "presumptuous and certainly unfeasible" for him to give answers to resolve the issues raised at the lecture.

About 300 people, including lawyers and doctors, attended the talk.

Assisted dying: A matter of life and death
Intensely complicated, there are many facets to it with very few ready answers, says CJ
By Sundaresh Menon, Chief Justice, Published The Sunday Times, 24 Mar 2013

Whatever our political, religious or moral leanings, the assisted dying debate remains an irreducibly human issue. It follows that we must summon all the compassion and kindness in our hearts when broaching this matter.

The subject of assisted dying is an intensely complicated one. There are many facets to it with very few ready answers. It would therefore be helpful to begin with some conceptual distinctions and definitions.

The most common abstraction used to represent the core principle in the debate on assisted dying has been the "right to die". This encapsulates the competing notions of "sanctity of life" on the one hand and "freedom of choice" on the other. Curiously, it suggests that we are at liberty to die, just as we are at liberty to live. However, as with any conversation of such moral complexity, we must be wary of reductive labels.

This leads us to an important set of definitions related to the various modes by which accelerated dying can be effected.

Euthanasia entails the termination of the life of a patient by someone other than the patient himself. A working definition of euthanasia as it is commonly understood is: An action that results in the immediate merciful killing by a doctor of a sick and suffering patient who has consented to this action. It is the deliberate and very humane ending of a patient's life to prevent further suffering... and rests on two fundamental principles: autonomy and mercy.

Voluntary euthanasia takes place at the patient's request but it is the physician who executes the final act. This is to be distinguished from assisted suicide, where the patient performs the final act and causes his own death. The assistance may come in the form of practical assistance, such as that rendered by friends and family members to those who travel abroad for the purpose of ending their lives. It may also take the form of medical assistance.

Physician-assisted suicide is legal in the Netherlands, Luxembourg, Belgium, Switzerland and the states of Washington, Oregon and Montana in the United States.

It is most prominently associated with the Dignitas clinic in Zurich, founded in 1998 with the avowed aim of assisting those with "medically diagnosed hopeless or incurable illness, unbearable pain or unendurable disabilities" to end their lives with dignity.

Here, I will focus on accelerated dying and the practices of assisted suicide and voluntary euthanasia, which will be collectively referred to as assisted dying.

If we begin from the premise of a competent individual's liberty to choose what treatment he receives, we will inevitably have to consider what should be done at the other end of the spectrum, where he is unable to formulate or communicate his choice.

One existing solution would be to rely on Advance Medical Directives (AMDs) or living wills which are direct expressions of personal choice, albeit usually at a point in time while the patient was still competent and able. Under section 3(1) of the AMD Act, any person who has attained the age of 21 and who desires not to be subjected to extraordinary life-sustaining treatment in the event of suffering a terminal illness may at any time make an AMD in the prescribed form.

However, even such directives cannot simplistically be taken as conclusive of the patient's present preferences as opposed to what was in his mind at the time of making the directive.

Where the patient cannot indicate his preference, let alone exercise his will, it is inevitable that some kind of substituted decision- maker will have to be relied upon, even if it is that same patient's younger self.

The ethical difficulties become even more acute where there is an absence of any evidence of the patient's preferences. In these cases, an external substitute decision-maker - whether an individual such as next-of-kin, a corporate body such as a medical board, or even an institution like the court - will have to make a proxy decision.

Any decision would necessarily be permeated with assumptions as to deeply subjective matters such as the meaning of death, the value and quality of one's existence, what constitutes a person's identity, and how existential choices are made.

The questions are not susceptible to neat solutions but I hope to unravel three thematic strands: the nature of rights, the interaction between law and science, and the potential implications for policy.

Even though we must reserve a place in our collective consciousness for universal truths and values, we must also remember that until they find expression in our own system of law they are both unrealised and incomplete.

We must arrive at our conclusion on the strength of our own convictions, values and experiences, instead of imbibing those of another polity. There has been a knee-jerk tendency to look to other jurisdictions which have legalised assisted dying.

Reforms in countries such as the Netherlands and Belgium have been born of their own socio-political conditions (and) reached via a tortuous process which reflects a wider social struggle to come to terms with accelerated and assisted dying.

Even if we can reach broad agreement on the value of being given the option to choose the point of one's death, we must still have a serious conversation about whether and how this is to be realised in practice. This is an intensely important choice about intensely important issues, and it affects not only personal rights but also collective ones. For any decision to be legitimate, it will have to speak to our national character as much as to abstract ideals.

Law is the expression of society's choices about the policy choices we will live by and if society chooses to recognise the right to get assistance in dying, that will be reflected in the law. But when prospective policies interface with science, we must be sensitive to the fact that there remains a gap between what we know, what we know we don't know, and what we don't know about what we don't know.

Some may have heard the story of Suzanne Chin, a Singaporean lawyer. Suzanne today is alive and thankfully in perfect health but on April 20, 2009, she was warded in the intensive care unit of a hospital in Hong Kong after a cardiac arrest. When she was brought to the hospital that morning, she was unconscious with unrecordable blood pressure.

Resuscitation efforts followed and these lasted for two hours. She was intubated and administered dopamine and adrenaline intravenously. Although she was eventually resuscitated, her prognosis was poor. Her doctors diagnosed an acute aortic valve prolapse leading to cardiac arrest.

They also informed the family that she had brain stem death. Suzanne's husband was advised to consider authorising the doctors to switch off her ventilator since, for all practical purposes, she was dead and there was no hope of recovery.

The family requested a second opinion from a neurologist, who examined her and also diagnosed brain stem death.

Twenty-four hours later, she started to respond to stimuli. Eight days after her admission to hospital, she was discharged. Today, she is in Singapore leading a normal life.

One study suggests that, whereas legal restrictions and safeguards have been enacted wherever euthanasia or assisted suicide has been legalised, these have been "regularly ignored and transgressed" often without prosecution.

The same writer suggests that the acceptance of these transgressions creates a social slippery slope with the practice gradually expanding, both in terms of what procedures will be acceptable as well as in diluting the qualifying criteria so that it may no longer even be necessary to demonstrate terminal illness.

If we return to the difficulties that have been traced with entrusting end-of-life decisions to substitute decision-makers, these get greatly exacerbated when the range of possible ailments causes us to conflate biological death with a different type of "death" where it is the personality that is no longer recognisable. Will there no longer be a distinction between the conventionally dead person, the patient in a permanent vegetative state and the one suffering from advanced dementia or Alzheimer's?

One of the problems with the slippery slope is that what seems unthinkable today may not be so tomorrow. Plainly, the fact that something is unthinkable cannot be a reason for not changing or moving in a progressive way. But the debate about assisted suicide is perhaps different because it has the potential to affect our values and ideas about life itself.

In the final analysis, there are perhaps four points that underlie the concern with the slippery slope.

The first is that whereas there is something of a clear, bright line in the act-omission divide of the common law, once that is lost and the notion is accepted that a liberty right exists which permits positive acts being taken to hasten death or end life, it may be difficult to find an alternative stopping-point that is coherent and sensible.

Secondly, attempts to restrict access to any such right may be questionable as a matter of logic and intuition.

Thirdly, in seeking to understand and explain any restriction that might be imposed on those who may avail themselves of such a right and the circumstances under which they may do so, we might be saying something about our collective interest in seeking to preserve their lives, even if subconsciously at first.

And fourthly, the inclusion of active steps to terminate life as a medical treatment option might fundamentally alter the role of doctors and the nature of their relationship with patients. Given this, if answers are to be found, they should perhaps be looked for in the context of an honest and open appraisal of just where it might all end.

The position in Singapore

Attempted suicide is an offence in Singapore by virtue of Section 309 of the Penal Code. Read together with Section 107 of the Code, any abetting of an attempted suicide is also a crime. Where the attempt to commit suicide succeeds, Section 306 of the Penal Code provides that the abettor of the suicide shall be punished with imprisonment for a term of up to 10 years, and shall also be liable to a fine. The law is therefore clear. Physicians who assist their patients in committing suicide will be committing a crime.

Our position in relation to end-of-life issues is regulated to some degree by the Mental Capacity Act. Section 3(5) stipulates that an act done, or decision made for or on behalf of a person who lacks capacity must be done, or made, in his best interests. Relevant decision-makers include caregivers, nurses, doctors or court-appointed deputies.

What would constitute a person's "best interests"? We can take guidance from Section 6(5) (which) states that, where the decision relates to whether life-sustaining treatment is in the best interests of the patient, the decision-maker must not be motivated by a desire to bring about the patient's death.

In addition, Section 6 takes an expansive, indeed all-inclusive, approach which covers both prospective assessments of future welfare and retrospective inferences of what the patient would have intended. This sends a strong signal of the need to be comprehensive and to strike a balance between the full range of considerations when acting as a substitute decision-maker.

Finally, the AMD Act provides a system for competent adults to refuse life-sustaining medical treatment. The AMD remains the most reliable means of ascertaining the patient's wishes. It becomes relevant if the patient is terminally ill.

Under Section 9, the question of whether the patient is terminally ill must be answered unanimously by the patient's doctor and two other doctors (and at least two of the three must be specialists empanelled for the purpose of such assessments). If either of the two referred doctors disagree, the matter must be referred to a committee of three specialists and the determination that the patient is terminally ill may only be made by the committee unanimously.

The AMD is a directive made by an adult who is not mentally disordered and who desires not to be subjected to "extraordinary life-sustaining treatment". This in turn is defined as treatment that will only prolong the process of dying but excludes palliative care. As a matter of practical use, an AMD will not be retrieved until the patient has lost the capacity to decide, and so it is and remains a confidential document until nearly the end.

Even at that point, however, the physician cannot be absolutely certain that the AMD has not been revoked, as revocations can be made orally and need not be registered. Therefore, it is clear that the AMD system was never intended to operate in a way which would allow caregivers and physicians to abdicate their responsibilities toward an incompetent patient. Nevertheless, it remains a worthwhile instrument which encourages competent adults to engage in a serious discourse on end-of-life issues and to treat death as a fact of life. Physicians therefore have a crucial role to play in advising their patients to consider these issues and to continually update the legal instruments which may be used as proxies of their intentions.

Significantly, the Act in Section 17 explicitly states that nothing in it authorises any act that causes or accelerates death as distinct from that which permits the dying process to take its natural course. The Act also states that nothing in it condones, authorises or approves the abetment of suicide, mercy killing or euthanasia.

The AMD Act is a carefully structured statute that sticks close to the common law distinction between acts and omissions, by enabling recognition to be accorded to a patient's expressed preference not to continue to receive treatment. But this is made subject to a number of important safeguards that are directed principally at avoiding these important decisions being made by those in any conflict of interest and at ensuring that there is as much certainty as possible on contentious medical issues.

There is value in drawing out some broad points that could inform further discussion about these issues:

a) The common law has long drawn a distinction between the right to refuse treatment which is recognised within the ambit of a right to bodily integrity, and the ability to choose the moment and means of one's passing by actively taking steps to end life. Does this remain a valid distinction?

b) If it is thought that the distinction is not valid, then is there any logical stopping point which restricts the circumstances in which and the persons by, or in respect of whom, steps may be taken to terminate life? Should there be any restriction on one's personal autonomy over decisions to end life? Is it ultimately humane to say that only those who are disabled or depressed or over the age of 70 may opt for this? What do such choices say about how the rest of society? Will it affect the nature of the doctor-patient relationship if active steps to terminate life or to hasten death are regarded as medical treatment options?

c) When personal autonomy is not in play because the patient is unable to express a preference and/or to act on it, who decides? And on what basis?

d) To what extent can or should the experience of other countries in legalising assisted suicide or voluntary euthanasia be relevant to our own choices?

e) To what extent should the limits of our knowledge about science constrain decisions that are irreversible in nature?

f) How slippery might be the slope that starts with a narrow exception permitting assisted suicide in limited circumstances?

The experience of common law courts abroad suggests that, perhaps, the choices about these matters are best not left to the courts.

Precisely because these are deeply dividing, even ideological differences, it must be for Parliament to legislate any changes, such as has happened with the AMD Act.

The challenge for the courts will be to deal with particular issues as they arise from time to time. As is the wont of the common law, any development will have to be incremental and founded upon well-established principles.

In the meantime, this should continue to be a matter for public debate, private conversations with our loved ones, and personal reflection.

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