Gating Reversibility

As the voluntary passive euthanasia or refusal/withdrawal of an unwanted medical treatment is the universally acknowledged principle of patient's expression of his self-determination and privacy, the debatable issue with NVPE then, is boiled down to whether in spite of the

unavailability of a direct communication with a patient, either verbal or by means of an advance directive, a decision to withdraw patient's artificial life support treatment can be made nevertheless, by reasoning that this is what a patient would have wanted if he were able to express that in person.

In first place it must be asked, why do we need, and how can we suppose, that a patient would not have wanted to receive crucial to him treatment, that sustains his very own life? In my belief, in the absence of a clear and direct evidence from a patient himself, when presenting that he would have opposed medical treatment, that he is being provided with in his current state, no one will ever attempt to substitute that claim for him if patient's medical condition can be alleviated, as that would be plainly wrong to do that. However, even if a patient's proxy were to claim that this is the case, I suppose that neither medical personnel nor a court would follow that assertion, as it would be an extremely bad public policy not to err on side of life here. It follows then, that a decision to withdraw a treatment from an incapacitated patient can only be made if patient's condition is beyond the relief and a futile one, when it can be clearly presented, that a medical intervention has become for that person a burden and is a groundless invasion of his privacy.

An argument can be put forward, that NVPE should not be legal as the vulnerable members of society might be exploited by means of that practice. However, even if it can be imagined, that a person with the malicious intent to get his hands on the inheritance has executed a perfect plan, due to which victim of his scheme is left in a PVS state with no prospect of recovery, and therefore a villain now presents a convincing evidence that his mark would not have wanted to remain in a vegetative state, that would still not constitute a valid opposition

to not to permit NVPE in the absence of an advance directive. In my view this cannot be called a public safeguard, as the only thing that would be protected in such the case, is the inheritance from being grabbed by a criminal sooner rather than later. Prohibition of NVPE in this case does not achieve anything, as in either way a patient is in a hopeless condition from which he will never recover, and “the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.”121 This can be opposed though, by arguing that as a patient in a PVS can express no interest in anything whatsoever, how it might be in his interest not to receive artificial life support?

This, in my view, can be resolved by the following rationale, - current issue is different from that one of the case with a “pleasantly demented” person (described in chapter 2.1), where though he can possibly be in no position to conceive and/or express his view on anything, including the question on whether the life is of any significance in his present condition or not, that demented person still exercises what little is there of a human mind, and we are after all humans and must be human (please excuse me for the repetitiveness) to him, but a patient in a PVS state is numb, his personality and everything that makes us human is gone (I am not saying that, therefore, we can be inhuman to him), and that condition cannot be alleviated, not with the current state of medical advancement at least it is possible for us to regenerate dead brain tissue (please see Annex 1). Therefore it is best for such a patient not to remain in a state of an unconscious biomass, and with the respect and humbleness, that patient should be let go.

In my perspective, for the reasons outlined above, it would make no sense to keep a patient in the permanent (as opposed to a “persistent”) vegetative state on an artificial life support. Apart from the reasoning that have been already mentioned, it is also unjustifiable to direct state's financial resources to a hopeless patient in the permanent vegetative state, as the cost of the ANH support can run in the vicinity of 3,000 US dollars per day (in the case of Latvia the figure is about 10 times lower),122 and it would be much wiser, and even wrong to not to, direct financial attention to the ones who are alive, in the fullest sense of this meaning, and would really benefit from the treatment they need. This should not be viewed as an argument on its own, but rather as an additional consideration in light of the already presented

121 “Airedale N.H.S. Trust -v- Bland.” lawindexpro - Case Law. Updated - 18 Aug. 2002. Retrieved - 10 Apr. 2006 <http://www.swarb.co.uk/c/hl/1993airedale_bland.html>.

122 Lister, S. “Minister puts a price on the right to life.” Times Online. Updated - 19 May 2005. Retrieved - 16 May 2006 <http://www.timesonline.co.uk/article/0,,8122-1618268,00.html>.

arguments, as otherwise it may seem like we should just abandon any patient in despair because his healthcare costs too much. Though it may sound cruel, this concerns only patients for whom there is absolutely no way out of their tragic condition. Such is the reality and sometimes we must make tough choices.

It must be noted, that though the “European Convention on Human Rights” under Article 2.1 provides that “[e]veryone's right to life shall be protected by law[, and n]o one shall be

deprived of his life intentionally[,]”123 a patient can still be switched off the ANH support and be allowed to die, as has been decided in the UK cases of NHS Trust A v M and NHS Trust B v H, where in year 2000 (after the UK has incorporated the “European Convention on Human Rights” into its domestic law, - the “Human Rights Act”), two women in a PVS state were released from their treatment with the consent of their families, by applying the principles of Anthony Bland case.124 Here, judge Dame Elizabeth Butler-Sloss, reasoned that withdrawal of one's treatment is not the act of ending his life, as a person will die of natural causes, and there can be no duty on part of doctors to continue administration of treatment, if that is not in the patient's best interest. The judge also went to reason that the Article 3 of the Convention (Prohibition of torture), would not be breached either, as “[a]n insensate patient suffering from permanent vegetative state has no feelings and no comprehension of the treatment accorded to him or her.”125 It can be supposed, that keeping a PVS patient on the artificial life support may be interpreted as to be even in breach of the Article 3,126 however, for the same reasons the judge Dame Elizabeth Butler-Sloss has presented, this cannot be a valid

reasoning, in my view, and though the Convention does not define what torture means here, I suppose it would be safe to detail it the way the “UN Convention against Torture” does, - “the term "torture" means any act by which severe pain or suffering, whether physical or mental, is

123 “Convention for the Protection of Human Rights and Fundamental Freedoms.” Council of Europe - Treaty Office. Updated - 1 Nov. 1998. Retrieved - 17 May 2006

<http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm>.

124 Dyer, C. “Judge confirms patients' right to die.” Guardian Newspapers Limited. Updated - 7 Oct. 2000. Retrieved - 18 May 2006

<http://www.guardian.co.uk/uk_news/story/0,,378849,00.html>.

125 “Substitute decision-making and advance directives in relation to medical treatment.” The Government of the Hong Kong Special Administrative Region of the People's Republic of China. Updated - Jul. 2004. Retrieved - 18 May 2006

<http://www.info.gov.hk/archive/consult/2004/decision-e.pdf>. p. 36

126 Samanta, J., Samanta, A. “In search of a good death: Human Rights Act 1998 imposes an obligation to facilitate a good death.” British Medical Journal. Updated - 26 Jul. 2003. Retrieved - 18 May 2006 <http://bmj.bmjjournals.com/cgi/content/full/327/7408/225-a>.

intentionally inflicted on a person[.]”127

Concerning the defense from mistreatment of the vulnerable members of society, in light of Haleigh's Poutre case there is obviously a need to protect patients from the misdiagnosis, and therefore guidelines must developed for the treatment of a PVS patients and be regularly updated so as to reflect the latest advancements achieved in the medical world. Such

guidelines, for instance, can be drawn from the “International Working Party Report On The Vegetative State,”128 where it is presented, that depending on the severity of initially incurred damage, patients can emerge from a persistent vegetative state after the several years of suspension, and following that, might lead a more or less normal human life. In such the guidance drawn by the British Medical Association, for example, it is being provided that the “decisions to withdraw treatment should only be considered when the patient has been insentient for 12 months[,]”129 while in the case of Haleigh, that was done just within nine days.

What is also beneficial to take in mind, is for the doctors, when reasoning on making a unilateral decision on withdrawing/withholding a treatment from a patient, by placing a DNR order on him in view that the treatment is medically pointless, is to be sensible to the patient's past and his guardian's present views, and consider, as some argue, “that a court could even determine that it is in a PVS patient’s ‘best interests’ to remain alive - notwithstanding the medical view that treatment was medically futile - if there was persuasive evidence that the patient valued being alive in whatever condition he or she would survive.”130 Patient in a PVS state may have had a deep religious conviction, that, according to the Bible, he must endure all his hardships to the end and not to run away from them, and though in a PVS state one cannot go through any hardships, as the element of being able to experience them is missing and one's spirit which may suffer, is not legally nor scientifically recognized, and therefore that would not amount to one's exercise of the religious belief as protected by the Article 9 of

127 “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.” Office of the United Nations High Commissioner for Human Rights. Updated - 10 Dec. 1984. Retrieved - 18 May 2006 <http://www.ohchr.org/english/law/cat.htm>.

128 “International Working Party Report On The Vegetative State - 1996.” Coma Recovery Association, Inc. Updated - 23 Dec. 2002. Retrieved - 19 May 2006

<http://www.comarecovery.org/artman/publish/ReportOnTheVegetativeState.shtml>.

129 “Treatment decisions for patients in persistent vegetative state.” British Medical Association. Updated - Jun. 1996. Retrieved - 19 May 2006 <http://www.bma.org.uk/ap.nsf/Content/pvs>. 130 Gevers, S. “Withdrawing Life Support from Patients in a Persistent Vegetative State: the Law

the European Convention on Human Rights, that would be still ethically and morally correct and of the benefit to a society as a whole, in my view, not to act against patient's guardian objections, if possible, not at least in a blunt way. Such objections must be reasonable however, meaning that if a patient will be resuscitated, that will not subject him to an even greater suffering, as has been determined to be the case with the 19-month-old boy, born with severe physical and mental disabilities, and later given the DNR order over objection of his parents, because the High Court has found that the boy's parents were overly optimistic about their son's prospects for a recovery, and “that it was likely that his condition would deteriorate rapidly and that further artificial ventilation would lead to a death that was "neither peaceful nor dignified".”131

As in regards to the situation concerning NVPE in Latvia, to my knowledge, up until now there were no court cases disputing over a guardian's demand for a patient to be taken off the life support machine, or objecting to a DNR order.

Medical sector in Latvia is quite under funded, in comparison to the “western standard,” and probably not too many people even know that they can make the living will and/or to object to an unwanted medical treatment, as it is safer for doctors not to discuss that with their patients and just to do their duty, without being involved in anything that might present them a legal or professional headache. And that state of medicine in Latvia is reflected in the country's laws as well, which in the relation to an incompetent patient, are contradictory.

That contradiction occurs because of the clash of the two articles and an ambiguity within the one of them, - the Article 49 of the “Medical Treatment Law,” and the Article 25 of the “On Medical Practitioners” statute. The first law holds, that in the case when a delay threatens patient's life, and it is not possible to obtain the permission from patient's family and/or his guardian for a medical intervention, a doctor's conference is to decide on the needed medical treatment plan for such a patient, save for emergency situations when an immediate action is required.132 The second provision in law, delivers that, if a patient, his family members or a guardian, voice their objection to a medical assistance, and as a result of such refusal it is possible that patient's health condition will deteriorate or that he will die, a doctor in such

131 “Disabled boy 'should die with dignity'.” BBC (British Broadcasting Corporation). Updated - 12 Jul. 2000. Retrieved - 21 May 2006 <http://news.bbc.co.uk/2/hi/health/830346.stm>.

132 “Ārstniecības likums.” Latvijas Likumi. Updated - 1 Jul. 1997. Retrieved - 17 May 2006 <http://www.likumi.lv/doc.php?id=44108>.

situation is obliged to make it clear for the objecting party what its refusal will result in, and to try to direct them to visit another medical practitioner.133

It is clear that these two articles are contradictory, and the ambiguity inside the Article 49, is that it is not clear about what does the “not possible to obtain the permission” means, as it can be interpreted in two ways. Either it supposes, that a patient's family/guardian cannot be reached for their comment on medical treatment, or the statute can be viewed as providing doctors with the legal instrument to perform medical treatment over objection of patient's relatives/proxy.

I imagine, if there is to be a court case on the matter of withdrawing/withholding treatment from a patient, a court would view that the Article 49 would be seen as allowing doctors to act in opposition to the objections raised by a patient's guardian, as the principle of medical intervention is to care for the patients, and doctors are obliged to help people. And I suppose, that the Article itself would be viewed as not concerning the withdrawal of treatment, but its withholding, because there is the reference in the Article to an emergency situation. However, even if that can be interpreted to be so, and thus the clash between the article is resolved, that ambiguity serves no purpose in law, in my opinion, and the Article 49 must be amended to directly point out, that in the absence of the living will, in the emergency situations patient's guardian cannot object to a treatment. The Article 25 must be amended also, because currently it does not protect vulnerable members of society, as a withdrawal of patient's treatment may occur in a non-terminal medical situation, and there must be no such leeway provided in law.

Non-Voluntary Active Euthanasia

Now, it has been discussed, that in certain cases and under satisfied conditions, it is permissible to withdraw/withhold life support treatment from a patient who's cognitive functions are not developed yet or are impaired, making a patient in no position to neither immediately consent nor to object to his medical sustenance, but can there be a justification to take the active steps in regards to an incompetent patient, that would bring his death?

In Latvia, and which I believe must be the universally accepted medical principle worldwide,

133 “Par prakses ārstiem.” Latvijas Likumi. Updated - 8 May 1997. Retrieved - 24 May 2006 <http://www.likumi.lv/doc.php?id=43338>.

according to the “Doctor's Code of Ethics,” a doctor is ought to ease patient's suffering and to let him die in dignity, when the death is imminent.134 This principle, I assume, would apply to such cases, for example, when due to the car accident a driver has a big open wound and it is evident that his critical internal organs are so severely damaged that even the emergency team cannot do much about preventing swift arrival of death. However, this standard surely does not give to physicians the right to take progressive action, to completely stop patient's suffering right in its tracks, so to say. “But why not?” - can be argued, “is it not cruel to see torn apart person in agony and not to help him to pass away peacefully?” It would be reasonable to say, in the context of Haleigh's case, that even an “evidently” futile medical condition might turn out to be not so hopeless after all, and therefore one must not judge a situation hastily and pick an easiest solution available, leaving a vulnerable person

unprotected from the misjudged outside influence.

That has been the reasoning for the above mentioned road accident case, - the emergency situation with a lot of movement in its atmosphere, metaphorically speaking. What would be the reasoning, however, not to take active death bringing steps in a relatively slow-paced stationary condition and in regards to a severely impaired infants, like in the cases of Kadijk and Prins (touched upon in chapter 1.2 of the present thesis), where there exists a body of the medical evidence, that babies with such defects have no prospect for their future recovery - they live in pain and will die in the matter of months, and where there is all the time that is needed to unmistakably confirm a futile medical condition? What would be the difference between the DNR order, coupled with the administration of pain killing drugs, and the active euthanasia?

In my view, in the cases where there is a conclusive evidence, that a patient will soon die and that all the time prior to his death, he will suffer, there is no legal or moral consideration, if there are no objections from patient's/family's/guardian's side, not to allow active steps to be taken, that would put a patient at rest. The only reasonable objection that can be presented here, is the slippery slope argument (which will be touched upon again later in this text), - that by allowing a certain conduct, the practice will be broadened, not by the legal framework, but