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CHN DIGEST ONLINE Jan. 16, 1996 VOLUME 1 No. 4

PREVIEW FOR JANUARY 16, 1996
bullet 1.) BRITISH PARLIAMENT REJECTS "LIVING WILLS" AND UPHOLDS THE BRITISH HOUSE OF LORDS BAN AGAINST EUTHANASIA
bullet 2. REGARDING THE RIGHT TO REFUSE MEDICAL TREATMENT & THE RIGHT TO SELF-DETERMINATION

1.) BRITISH PARLIAMENT REJECTS "LIVING WILLS" AND UPHOLDS   THE BRITISH HOUSE OF LORDS BAN AGAINST EUTHANASIA: Commentary   by Cheryl Eckstein, CHN

On January 16, 1996, the British Parliament "reaffirmed the Government's opposition to euthanasia." Lord Chancellor, Lord Mackay, rejected the Law Commission's proposals to legalise "living wills." In February last year, the "Law Commission published its report on mental incapacity, together with a draft bill" which covered issues such as "living wills and the withdrawal of artificial nutrition and hydration." The Law Commission proposals which were "set out in a draft bill, would have legalised living wills, in which people could ask for treatment to be withdrawn or withheld in certain circumstances...."

After studying the proposals, Lord Mackay criticised the proposals saying "no account was taken of possible advances in medicine, a patient's ignorance of any relevant factors, or, indeed, the fact that the frail might well be pressured or manipulated into signing a document which would be more to the benefit of inheritors or survivors than to themselves." "... Lord Mackay tonight ruled out any chance of legislation to enact the Law Commission's draft Bill on Mental Incapacity in its current form."

Phyllis Bowman, national director and spokeswoman of the Society for the Protection of Unborn Children, said: "We whole-heartedly welcome the decision of the Government not to legislate on the basis of the Law Commission's report on mental incapacity, which many doctors and lawyers felt would usher in euthanasia through the back door."

Dr. Andrew Fergusson, chairman of Healthcare Opposed to Euthanasia, agreed saying, "HOPE welcomes the Government's decision today, that it has recognised the complexity of the issues and the potential that they might otherwise have let euthanasia in by the back door."

Ann Winterton, Tory MP for Congleton, told PA News that euthanasia "is repugnant to the overwhelming majority of people", and should not be tolerated in a civilised state."

"Lord Mackay added: "The Government wishes to emphasise that it fully supports the views of the House of Lords select committee on medical ethics that euthanasia is unacceptable and has no plans to change this policy." [Linda Jackson and John Deane, PA News, January 16, 1996]

The British House of Lords released their full report in 1994, concluding that: "We recommend that there should be no change in the law to permit euthanasia...Rejection of euthanasia as an option for the individual entails a compelling social responsibility to care adequately for those who are elderly, dying or disabled."
["Report of The Select Committee on Medical Ethics" House of Lords, 1994, Vol. I, paragraph 262, p. 54.]

For more information on euthanasia and international opposition to legalising euthanasia, see "Physician Assisted Death: Is It Right For Canada?" A 56-page report submitted by the Compassionate Healthcare Network, to "The Senate Special Committee On Euthanasia and Assisted Suicide", August, 1994.]

2.)  REGARDING THE RIGHT TO REFUSE MEDICAL TREATMENT & THE RIGHT TO SELF-DETERMINATION: Commentary by Cheryl Eckstein, CHN.

 Itai Arad, a former Israeli fighter pilot, asked an Israeli court to bar doctors from connecting him to life support and allow him to "die with dignity." Arad has Amyotrophic Lateral Sclerosis (ALS) or Lou Gehrig's Disease, but does not yet need life support to help him breath. "Euthanasia is illegal in Israel, a society deeply rooted in the Jewish notion of the sanctity of life", says an Associate Press release. The report goes on to say, "But Israeli courts have allowed doctors some discretion in how they treat terminally ill patients." [Associated Press, Jerusalem, 31/12/95]

Reporting that "euthanasia is illegal in Israel" in this story, muddied the issue at hand, and mislead some readers to falsely conclude the request to "die with dignity" was a request to die by euthanasia. In fact, Arad's request is to 1.) die in his own home, and, 2.) not be forced to be put on a respirator if, and when, he is unable to breath on his own. Keeping to the facts would avoid possible misinterpretation.

If Itai Arad was a resident of Canada, he would not have had to bring his request before a court. In 1935, a law was established in Canada that states patients have the right to refuse life sustaining medical treatment. This can also be classified as the patient having the right to self- determination. The patient is allowed to die, without medical intervention. Even if the treatment outweighs the disadvantages, the physician must respect the wishes of "a patient who possesses decision-making capacity" to forego treatment.

Thus every Canadian has the right to refuse medical treatment. The primary cause of death is the underlying disease.

The Nancy B. case is an example of a patient wanting treatment that has already begun, to be terminated. In Nancy B. v. Hotel-Dieu De Quebec, Quebec Superior Court, Dufour j. (13-86 D.L.R.(4th) January 6, 1992, "Held, the plaintiff was entitled to the injunction sought. Permission should be given to her physician to cease treatment with the respirator at a time chosen by the plaintiff. The physician was entitled to the assistance of the hospital." (Id. at p. 385). In rendering his decision, Dufour, J. said:

Sections 222 to 241 of the Criminal Code deal with different forms of homicide. What I have just reviewed is sufficient to conclude that the person who will have to stop Nancy B.'s respiratory support treatment in order to allow nature to take its course, will not in any manner commit the crimes prohibited by these sections. The same goes for s. 241, aiding suicide. I would however add that homicide and suicide are not natural deaths, whereas in the present case, if the plaintiffs death takes place after the respiratory support treatment is stopped at her request, it would be the result of nature taking its course. [Id. at 394]

J. Dufour, commenting on the right to patient autonomy said:

The ability to consent is not however absolute, but rather subject to two limitations. First, the corresponding rights of others. Accordingly, an individual may not use his body in a manner which may have the effect of putting in jeopardy the life or health of others. Second, public order (policy). The law sometimes imposes limits on the right to freely do what one wishes with ones body. Accordingly, it does not allow a person to dispose inter vivos of a part of his body which is not capable of regeneration or, a vital organ. Subject to these two limits, however, one may consider that the right to autonomy and self-determination is absolute. [Id. at 391]

As a footnote to Arad's request; on January 11, 1996, an Israeli court ruled in his favour, granting him the right to die at home in peace, and "not to be connected to life support." "Judge Moshe Talgam ruled that a lucid person facing permanent dependence on machines for breathing and other bodily functions can refuse to be connected or ask to be removed...The ruling worried some observant Jews, uncomfortable that it could compromise the sanctity of human life."

"Dr. Mordechai Halperin, a rabbi and physician at the Schlesinger Institute, told Israel Television that the ruling itself did not contradict Jewish law. But he said it was dangerous because people might interpret it as validating suicide or mercy killings."
[Dianna Cahn, Associated Press Writer, Jerusalem, 11/1/96]

The CHN DIGEST ONLINE is researched and edited by Cheryl Eckstein, president of CHN and is copyright © of the Compassionate Healthcare Network (CHN).


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