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A Comparative Study of the Law of Palliative Care and End-of-Life Treatment

Published online by Cambridge University Press:  01 January 2021

Danuta Mendelson  and
Timothy Stoltzfus Jost
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Extract

Since the Supreme Court of New Jersey decided the Quinlan case a quarter of a century ago, three American Supreme Court decisions and a host of state appellate decisions have addressed end-of-life issues. These decisions, as well as legislation addressing the same issues, have prompted a torrent of law journal articles analyzing every aspect of end-of-life law. In recent years, moreover, a number of law review articles, many published in this journal, have also specifically addressed legal issues raised by palliative care. Much less is known in the United States, however, as to how other countries address these issues. Reflection on the experience and analysis of other nations may give Americans a better understanding of their own experience, as well as suggest improvements to their present way of dealing with the difficult problems in this area.

This article offers a conceptual and comparative analysis of major legal issues relating to end-of-life treatment and to the treatment of pain in a number of countries. In particular, it focuses on the law of Australia, Canada, the United Kingdom, Poland, France, the Netherlands, Germany, and Japan.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 31 , Issue 1 , Spring 2003 , pp. 130 - 143
Copyright
Copyright © American Society of Law, Medicine and Ethics 2003

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References

Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702 (1997); Cruzan v. Missouri Dept. of Health, 497 U.S. 261 (1990).Google Scholar
Cantor, N.L., “Twenty-Five Years after Quinlan: A Review of the Jurisprudence of Death and Dying,” Journal of Law, Medicine & Ethics, 29 (2001): 182–194.CrossRefGoogle Scholar
See, e.g., “Symposium: The Undertreatment of Pain — Legal, Regulatory, and Research Perspectives and Solutions,” Journal of Law, Medicine & Ethics, 29 (2001); “Symposium: Legal and Regulatory Issues in Pain Management,” Journal of Law, Medicine & Ethics, 26 (1998); “Symposium: Appropriate Management of Pain,” Journal of Law, Medicine & Ethics, 24 (1996).Google Scholar
European Convention on Human Rights and Fundamental Freedoms, Rome (November 4, 1950), T.S. 71 (1953) (Cmd. 8969).Google Scholar
Den Exter, A.P., “Legal Reforms of the Polish Health Care System in View of Accessing the European Union,” European Journal of Health Law, 8 (2002): 5–25.CrossRefGoogle Scholar
See, e.g., England: Re M.B. (Medical Treatment) [1997] 2 F.L.R. 426 at 437; Ms. B. v. An N.H.S. Hospital Trust [2002] E.W.H.C. 429 (Fam.) [104]; Australia: Secretary, Department of Health and Community Services (N.T.) v. J.W.B. and S.M.B. (Marion's Case) (1992) 175 C.L.R. 218; Boughey v. The Queen (1986) 60 A.L.J.R. 422 at 428; France: Article 36 of the 1995 Code of Medical Deontology: “In every case, the consent of the person examined or attended should be sought. When the patient, in a condition to express his will, refuses the investigations or the proposed treatment, the doctor should respect this refusal having informed the patient of all its consequences.”Google Scholar
See, e.g., Canada: Mallette v. Shulman, (1990) 67 D.L.R. 4th 321, at 328, per Robins, J. See also Nancy B. v. L'Hotel Dieu de Quebec (1992), 69 C.C.C. (3d) 450; the United Kingdom: Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871 at 904–05; Re T. (An Adult) (Consent to Medical Treatment) [1993] Fam. 95 at 102; Re MB. (Medical Treatment) [1997] 2 F.L.R. 426 at 437; R. (Pretty) v. the D.P.P. [2001] U.K.H.L. 61 at [55] per Lord Steyn, citing St. George's Health Care Trust v. S. [1999] Fam. 26; Ms. B. v. An N.H.S. Hospital Trust [2002] E.W.H.C. 429 (Fam.) [104].Google Scholar
Pretty v. the United Kingdom, The European Court of Human Rights (Fourth Section), Strasbourg, April 29, 2002 (Application no. 2346/02).Google Scholar
Id. at [61]. Article 8 states: “(1) Everyone has the right to respect for his private and family life … and that (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society….”Google Scholar
R. v. Adams [1957] Crim. L.R. 365.Google Scholar
Devlin, P., Easing the Passing: The Trial of Dr John Bodkin Adams (London: Faber and Faber, 1986): At 71.Google Scholar
See Wilson, W.C. et al., “Ordering and Administration of Sedatives and Analgesics During the Withholding and Withdrawal of Life Support from Clinically 111 Patients,” JAMA, 267 (1992): 949–53. In this study, patients who were given large doses of opioids by way of palliation following the withdrawal of life supports lived on average as long as patients who were not so treated. The study suggests that the determining factor of the time of death is the underlying disease, rather than opioid medication.CrossRefGoogle Scholar
See, e.g., England: Re J. [1991] Fam. 33; Airedale N.H.S. Trust v. Bland [1993] A.C. 789.Google Scholar
Airedale N.H.S. Trust v. Bland [1993] A.C. 789; R. (Pretty) v. the D.P.P. [2001] U.K.H.L. 61.Google Scholar
Rodriguez v. Attorney General of Canada, [1994] 2 L.R.C. 136; R. v. Latimer, [2001] 1 S.C.R. 3.Google Scholar
Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702 (1997).Google Scholar
Consent to Medical Treatment and Palliative Care Act (1995), § 17(1).Google Scholar
Id. § 17(3)(a).Google Scholar
Law Hospital N.H.S. Trust v. Lord Advocate (1996) S.L.T. 848.CrossRefGoogle Scholar
Oates, Laurence, Practice Note (Official Solicitor: Declaratory Proceedings: Medical and Welfare Decisions for Adults Who Lack Capacity) [2001] 2 F.L.R. 158 [7.2].Google Scholar
Airedale N.H.S. Trust v. Bland [1993] A.C. 789 at 805.Google Scholar
Airedale N.H.S. Trust v. Bland [1993] A.C. 789.Google Scholar
Marshall v. Curry (1933) 3 D.L.R. 260 at 60.Google Scholar
Airedale N.H.S. Trust v. Bland [1993] A.C. 789 at 867.Google Scholar
N.H.S. Trust A. v. M.; N.H.S. Trust B. v. H. [2001] 1 All E.R. 801; 1 F.C.R. 406; 2 W.L.R. 942; 2 F.L.R. 367.Google Scholar
Following the enactment of the Human Rights Act (1998) (U.K.), previous English decisions, such as that in the Bland case, have became subject to the European Convention on Human Rights and Fundamental Freedoms. By virtue of § 6(6) of the Human Rights Act, public authorities are bound in relation to their omissions as well as their actions.Google Scholar
Secretary, Department of Health & Community Services (N.T.) v. J.W.B. and SMB. (Marion's Case) (1992) 175 C.L.R. 218 (sterilization).Google Scholar
To date, there have been no reported cases in Australia regarding withdrawal or withholding of treatment in the terminal stages of life, though in 2000 the Master of the Supreme Court of New South Wales granted an injunction, requested by the patient's family, to restrain the hospital from withdrawing artificial hydration and alimentation until a firm diagnosis could be obtained.Google Scholar
Consent to Medical Treatment and Palliative Care Act (1995) (S.A.), § 17(2). The Northern Territory's Natural Death Art (1989) (N.T.) stated that withholding or withdrawal of “extraordinary measures” at the direction of a person suffering from a terminal illness does not constitute a cause of death. For the provision to be operative, the patient must have been diagnosed as “terminally ill” (Natural Death Act (1989) (N.T.), § 6).Google Scholar
Consent to Medical Treatment and Palliative Care Act (1995) (S.A.), § 17(3)(b).Google Scholar
Child and Family Services of Central Manitoba v. R.L. and S.L.H., (1997) 123 Man. R. (2d) 35. The plaintiff in this case had claimed that there exists a positive right that obliges a physician to provide treatment that is requested by the patient or surrogate. The court denied such a right by ruling that a patient (or a family member) cannot enforce a demand for treatment considered by the physician to be futile. See also Sawatzky v. Riverview Health Centre Inc., (1998) 133 Man. R. (2d) 41 (Q.B.).Google Scholar
Rodriguez v. British Columbia (Attorney General), (1993) 3 S.C.R. 519.Google Scholar
Criminal Code (1985) (Can.), ch. C-46, § 241 provides: “Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”Google Scholar
Rodriguez v. British Columbia (Attorney General), (1993) 3 S.C.R. 519 at 521.Google Scholar
Senate of Canada, Of Life and Death: Report of the Senate Special Committee on Euthanasia and Assisted Suicide (1995). In 1997, the Parliament of Alberta enacted the Personal Directives Act, ch. P-4.03 (1997) (Alberta), the Preamble to which states that Albertans “should be able to provide advance personal instructions regarding their own personal matters while recognizing that such instructions cannot include instructions relating to aided suicide, euthanasia or other instructions prohibited by law.”Google Scholar
R. (Pretty) v. the D.P.P. [2001] U.K.H.L. 61.Google Scholar
Mrs. Pretty had virtually no decipherable speech, but apparently her intellect and capacity to make decisions remained unimpaired, including the ability to instruct her lawyers (her husband acted as her interpreter).Google Scholar
Suicide Act (1961) (9 & 10 Eliz. 2, c. 60), § 2.Google Scholar
Pretty v. the United Kingdom, The European Court of Human Rights (Fourth Section), Strasbourg, April 29, 2002 (Application no. 2346/02): At [39].Google Scholar
Id. at [74]. Both the House of Lords and the European Court of Justice in Pretty adopted the reasoning of the majority in Rodriguez v. British Columbia (Attorney General), (1993) 3 S.C.R. 519 at 521, which stated that the long-standing blanket statutory prohibition against assisted suicide fulfills the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life, and reflects the policy of the state that human life should not be depreciated by allowing life to be taken.Google Scholar
Crimes Act (1900) (A.C.T.), §§ 17–18; Crimes Act (1900) (N.S.W.), §§ 31A–31C; Criminal Code (Qld.), § 311; Criminal Law Consolidation Act 1935 (S.A.), § 13A; Criminal Code (Tas.), § 163; Crimes Act 1958 (Vic), §§ 6A–6B; Criminal Code (WA.), §288.Google Scholar
Received assent by the Administrator on June 16, 1995.Google Scholar
§ 4 of RTIA provided that “a patient who, in the course of a terminal illness, is experiencing pain, suffering and/or distress to an extent unacceptable to the patient” could request “the patient's medical practitioner to assist the patient to terminate the patient's life.” Part 1, § 3, defined the medical practitioner's assistance “in relation to death or proposed death of a patient” as involving “the prescribing of a substance, the preparation of a substance and the giving of a substance to the patient for self administration, and the administration of the substance to the patient.” By virtue of Part 4, § 18(2), this kind of “assistance” was to be “taken to be medical treatment for the purposes of the law.”Google Scholar
The Euthanasia Laws Act (1997) (Cth), Schedule (1). Additionally, the Commonwealth Parliament disempowered the Legislative Assembly of the Northern Territory from enacting “laws which permit or have the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life.”Google Scholar
R. v. Latimer, [2001] 1 S.C.R. 3.Google Scholar
Latimer was convicted of murder in two trials: (1997) 121 C.C.C. (3d) 326 (Sask. Q.B.); (1998) 131 C.C.C. (3d) 191.Google Scholar
Latimer pleaded that the conviction should not stand because the trial judge erred in removing the defense of necessity from the jury. The necessity consisted of the pain his daughter was thought to experience during seizures, which she suffered daily, and additional pain that was due to weight loss caused by a lack of nutrients in her spoon-feeding regimen. The final aspect of “necessity” was the recommendation of hospital doctors that in order to relieve pain caused by a dislocated hip, Tracy should undergo surgery to remove her upper thigh bone. Latimer perceived this procedure as mutilation, and “formed the view that his daughter's life was not worth living.” R. v. Latimer, [2001] 1 S.C.R. 3 at 13.Google Scholar
Id. at 12. The Supreme Court rejected all three arguments, and determined that the defense of necessity was misconceived. Latimer himself did not face any peril, and Tracy's ongoing pain did not constitute an emergency. The court emphasized that though severely disabled, Tracy was not terminally ill. She “enjoyed music, bonfires, being with her family and the circus. She liked to play music on a radio, which she could use with a special button. Tracy could apparently recognize family members and she would express joy at seeing them Tracy also loved being rocked gently by her parents.” For further discussion of Tracy's chronic pain, see id. at 24.Google Scholar
Id. at 26.Google Scholar
Id.Google Scholar
Medical Profession Act (Ustawa o Zawodzie Lekarza of December 5, 1996; consolidated on August 30, 2002), available at <http://www.rzeczpospolita.pl/prawo/doc/2>..>Google Scholar
Health Services Institutions Act (Ustawa o Zakładach Opieki Zdrowotnej of August 30, 1991) (Dziennik Ustaw Nr 91, poz. 408).Google Scholar
Ustawa o Izbach Lekarskich of May 17, 1989 (Dziennik Ustaw Nr 30, poz. 158 ze zm).Google Scholar
Penal Code (Kodeks Karny) of June 6, 1997 (Dziennik Ustaw Nr 88 zdn. 2.08.1997).Google Scholar
Konstytucja Rzeczypospolitej Polskiej of July 16, 1997 (Constitution of the Polish Republic).Google Scholar
Opinion of October 7, 1992 (U. 1/92).Google Scholar
According to the Opinion of October 7, 1992, deontological norms per se do not have a legal character, because only nominated medical associations (izby), and not the legislature or state administrative organs, have the power to define deontological principles on the basis of the system of values recognized by these medical corporations.Google Scholar
Zielonka, T.M., “Na marginesie Kodeksu Etyki Lekarskiej,” Gazeta Lekarska, Numer 10/2001.Google Scholar
Żelichowski, M., “Kodeks Etyki Lekarskiej,” MP OnLine, available at <http://www.mp.pl/prawo/show.php?aid=116436cPHPSESSID=774E4A57B83C485D9157CFC77EB63942&_tc=A2FA152C344C467D8DE4B597BFDEA1EC> (last visited December 6, 2002).+(last+visited+December+6,+2002).>Google Scholar
Polish Constitutional Tribunal Opinion of March 17, 1993 (W 16/92), available at <http://www.mp.pl/prawo/show.php?aid=116438cPHPSESSID=774E4A57B83C485D9157CFC77EB63942&_tc=1671BBE14697414F9A356C6729138ECD>..>Google Scholar
The provision entrenches the autonomy of medical practitioners’ decisions regarding treatment options. It also imposes on medical practitioners an obligation to inform patients of alternative medical treatments. However, the parenthetical clause, which is an exception relating to the necessity for prompt medical intervention, makes it unclear whether medical discretion extends to instances of withholding or withdrawal of life-saving or life-sustaining treatment.Google Scholar
“The physician may decide to discontinue or not institute a treatment (unless prompt medical intervention is necessary), but is obliged to inform the patient before doing so and suggest other factual opportunities for obtaining medical treatment. If the physician is employed at an institution, the consent of his/her superior must be obtained.”Google Scholar
Medical practitioners have a duty to render medical help in each case where a delay would cause a risk of loss of life or serious physical or mental injury or in other cases of emergency. Medical Profession Act of December 5, 1996 (Ustawa o Zawodzie Lekarza).Google Scholar
See also Penal Code, Article 162.2: “No offense will arise where a private person does not render help to another, if the latter must undergo a medically necessary procedure, or where it is possible to obtain immediate help from an institution or a person under a duty to help” (emphasis provided).Google Scholar
Żelichowski, , supra note 59. Consequently, a medical practitioner who infringes Article 162 of the Penal Code or Article 30 of the Medical Profession Act, while adhering to Article 32 of the Code of Medical Ethics, will be punished.Google Scholar
Penal Code (Kodeks Karny of June 6, 1997; Dziennik Ustaw Nr 88 zdn. 2.08.1997).Google Scholar
“A medical practitioner must not practice euthanasia.”Google Scholar
Article 38 of the Constitution provides that “the Polish Republic guarantees each person a legal right to protection of life.”Google Scholar
Żelichowski, , supra note 59.Google Scholar
France ratified the European Convention on Human Rights and Fundamental Freedoms in 1974. Consequently, under Article 55 of the French Constitution, the international law embodied in the provisions of the ECHR prevails over domestic legislation.Google Scholar
French appellate courts have the power to make decisions as arrêts de principe, which lay down new principles of law for application in subsequent cases. Boyron, B.J. and Whittaker, S., Principles of French Law (Oxford: Oxford University Press, 1998): At 19.Google Scholar
European Convention on Human Rights and Fundamental Freedoms, supra note 4.Google Scholar
Conseil de l’Europe, Assemblée Parlementaire, Commission des Questions Sociales, de la Santé et de la Famille, Protection des Droits de l'Homme et de la Dignité des Malades Incurables et des Mourants, Rapport, Doc. 8421 (1999).Google Scholar
Loi n° 99–477 of June 9, 1999, Visant à Garantir le Droit à l’Accès aux Soins Palliatifs (JO 10 06 99: 8487). See also Article L-711-4 of the Code of Public Health, which provides that “health care establishments give preventive, curative, or palliative care to patients as required by their state of health and ensure the continuity of such care once they are discharged.”Google Scholar
The Code of Medical Deontology sets normative standards for medical practice, the violation of which exposes medical practitioner to disciplinary sanction by the French Order of Physicians. French courts of law use provisions contained in the Code both to define legal obligations and as a guide to understanding the ethical nature of the doctor-patient relationship.Google Scholar
See also the first clause of Article 37 of the Code of Medical Deontology, which states: “In any circumstances, the physician should do his utmost to alleviate the sufferings of his patient, and give him moral solace.”Google Scholar
Article 32 of the Code of Medical Deontology states: “the doctor undertakes to personally provide the patient with conscientious care, devoted to and based on the acquired scientific data….”Google Scholar
Duguet, A.M., “Euthanasia and Assistance to End of Life Legislation in France,” European Journal of Health Law, 8 (2001): 109–23, at 114. In its report on End of Life, Ending Life, Euthanasia, the French National Consultative Ethics Committee for Health and Life Sciences pointed out: “a medical decision to abstain from resuscitation, to refrain from prolonging or initiating deep sedation … on occasion described by some as being passive euthanasia … is not a deliberate ending of life; it is simply recognizing that ensuing death is the consequence of the disease or of certain therapeutic decisions which it may have prompted. In fact, these situations when therapeutic procedures are curtailed are consistent with a rejection of futile and aggressive therapy and should not be criticised on ethical grounds.” French National Consultative Ethics Committee for Health and Life Sciences (CCNE), Report N° 63 (January 27, 2000), available at <http://www.ccne-ethique.Org/english/avis/a_063.htm#deb>.CrossRefGoogle Scholar
According to Article 36 of the Code of Medical Deontology: “In every case, the consent of the person examined or attended should be sought. When the patient, in a condition to express his will, refuses the investigations or the proposed treatment, the doctor should respect this refusal having informed the patient of all its consequences.” The right to refuse medical treatment is reinforced under the palliative care law of June 9, 1999, which states that “a sick person may refuse to submit to investigation or therapy of whatever kind.” The burden of proving a patient's consent to treatment rests on the doctor. The Council of State [le Conseil d’Etat] law of January 5, 2000.Google Scholar
Article 36.3 of the Code of Medical Deontology.Google Scholar
Ferrand, E. et al., “Withholding and Withdrawal of Life Support in Intensive-Care Units in France: A Prospective Survey,” The Lancet, 357, no. 9249 (2001): 9–14.CrossRefGoogle Scholar
See, e.g., Mazeaud, H., Mazeaud, L., and Tunc, A., Traité Théorique et Pratique de la Responsabilité Civile (Paris: Montchrestien, 1965): At 524–25; Terré, F., Simler, P., and Lequette, Y., Droit Civil, Les Obligations, 6th ed. (Paris: Dalloz, 1996): At 688.Google Scholar
“Any one who has intentionally (volontairement) failed to render or to obtain assistance for an imperilled person (une personne en peril) when such was possible without danger to himself or others, shall be subject to like punishments [specified in paragraph 1 as up to 5 years of imprisonment and 75,000 euros].” Article 223–6(2) of the Criminal Code.Google Scholar
“Every doctor, who is in the presence of a patient or of a wounded person in danger, or informed that a patient or a wounded person is in danger, must provide assistance or make sure that that person receives the necessary care.”Google Scholar
Dadamo, C. and Farran, S., French Substantive Law: Key Elements (London: Sweet & Maxwell, 1997): At 212.Google Scholar
Rouen Court of Appeal, March 6, 1996, discussed in Nys, H., “Physician Involvement in a Patient's Death: A Continental European Perspective,” Medical Law Review, 7 (1999): 208–46, at 225.CrossRefGoogle Scholar
Cour de Cassation, Criminal Chamber, February 19, 1997, discussed in Nys, supra note 86, at 225.Google Scholar
Editions Dalloz (1998), 236 comments of B. Legros; Jurisclasseur pèriodique, Semaine Juridique (1997), II, 22.889, comments of R.-M. Chevallier.Google Scholar
The uncontrolled sale of medicines over the Internet makes it relatively easy to obtain lethal medicines. The Economic and Social Committee of the Commission of the European Communities has suggested that Articles 2 and 3 of Council Directive 92/28/EEC of March 31, 1992, which ban advertising of medical products for human use that can only be supplied by medical prescription, be updated by national authorities in light of the promotion and distribution of these drugs over the Internet. Opinion of the Economic and Social Committee of the Commission of the European Communities, “The Role of the European Union in Promoting a Pharmaceutical Policy Reflecting Citizens' Needs: Improving Care, Boosting Innovative Research and Controlling Health Spending Trends,” Official Journal, C 014, 16/01/2001 P. 0122–0132 (January 16, 2001): § 10. However, it is up to the member states to ensure that the market is monitored in terms of advertising in accordance with the provisions of the directive. Article 223–14 of the Criminal Code might be regarded as imposing a penalty for a very serious infringement of the directive.Google Scholar
Article 121–3(1) provides that intention is an essential element of major crimes. Article 121–3 of the Criminal Code (Loi n° 96–393 of May 13, 1996; Loi n° 2000–647 of July 10, 2000, art. 1, the Official Journal of the French Republic of July 11, 2000).Google Scholar
Article 221–5.Google Scholar
Cour de Cassation, Criminal Chamber, June 22, 1994, Bull. Crim., No. 248.Google Scholar
Duguet, , supra note 78, at 110.Google Scholar
Code of Medical Deontology, Decret n° 95–1000 of September 6, 1995.Google Scholar
See Scherer, J.M. and Simon, R.J., Euthanasia and the Right to Die, A Comparative View (Lanham: Rowman and Littlefield Inc., 1999): At 68; Sass, H.-M., “Images of Killing and Letting Die, of Self-Determination and Beneficence,” in Sass, H.-M., Veatch, R.M., and Kimura, R., eds., Advance Directives and Surrogate Decision Making in Health Care (Baltimore: Johns Hopkins Unversity Press, 1998): At 154–56.Google Scholar
Article 2, ¶ 1.Google Scholar
Article 2, ¶ 2.Google Scholar
Article 1, ¶ 1.Google Scholar
Bundesgerichtshof decision, November 28, 1957.Google Scholar
Bundesgerichtshof decision, 5 St. R. 474/00, judgment of February 7, 2001 (LG Berlin).Google Scholar
St. G.B. § 216. Killing another at that person's “express and serious request” is a lesser offense than murder or manslaughter, punishable by 6 months to 5 years in prison, compared to 1 to 10 years for manslaughter.Google Scholar
Bundesgerichtshof decision, 5 St. R. 474/00, judgment of February 7, 2001 (LG Berlin).Google Scholar
Nys, , supra note 86, at 232.Google Scholar
Id. at 233.Google Scholar
See a description of the case in Nys, , supra note 86, at 228–29, and in Koch, H.-G., “The Decision to Aid Dying and Related Legal Issues,” in Sass, , Veatch, , and Kimura, , eds., supra note 95, at 114, 119–121.Google Scholar
See Meran, J.G. and Poliwoda, H., “Clinical Perspectives on Advance Directives and Surrogate Decision Making,” in Sass, , Veatch, , and Kimura, , eds., supra note 95, at 95–113; Koch, , supra note 105, at 124–31.Google Scholar
See Bundesärtekammer, , Handreichungen für Ärzte zum Umgang mit Patienttenverfuegungen, October 13, 1999.Google Scholar
This possibility has existed for some time, but was expressly recognized in amendments to § 1904 of the Bürgerliches Gesetzbuch in 1999.Google Scholar
Gesetzbuch, Bürgerliches, § 1904, ¶ 1.Google Scholar
Bundesärztekammer, , supra note 107, at ¶ 1.2.Google Scholar
See Bundesärztekammer, , Grundsätze der Bundesärzterkammer zur ärztlichen Sterbebegleitung, September 11, 1998, § IV.Google Scholar
Kurzer, K. (Chief Judge, German Supreme Court), Pain Therapy from the Legal Perspective, Saarland Pain Forum, October 20, 2001, available at <www.soziaIes.saarland.de/medien/inhalr/StatemenrKutzer.pdf>.Google Scholar
Nys, , supra note 86, at 232, citing Bundesgerichtshof decision of November 15, 1996, Bundesgerichtshof St. 42, 301. See also Kutzer, K., “Rechtliche Aspekte der Behandlung Schwerstkranker bei irreversiblen Schädigungen,” Europäishes Akademie Newsletter (June 2001): At 2.Google Scholar
Kutzer, , supra note 112.Google Scholar
See Sohn, W., “Care for the Dying between the Right to Self-Determination and the Obligation to Provide Treatment,” in Sohn, W. and Zenz, M., eds., Euthanasia in Europe (Stuttgart: Schattauer, 2001): 67–70; Csef, H., “Euthanasia as an Ethical Problem,” in id. at 71–80, at 78.Google Scholar
See generally Scherer, and Simon, , supra note 95, at 85–89.Google Scholar
Takeda v. State, 54(2) Minshu 582, 1710 Hanrei Jiho 97, 1031 Hanrei Taimuzu 158 (Sup. Ct., Feb. 29, 2000).Google Scholar
See Leflar, R.B., “Informed Consent and Patients’ Rights in Japan,” Houston Law Review, 33 (1996): 1–112. See also Hayashi, M. and Kitamura, T., “Euthanasia Trials in Japan: Implications for Legal and Medical Practice,” International Journal of Law and Psychiatry, 25 (2002): 557–71.Google Scholar
Kimura, R., “Death, Dying and Advance Directives in Japan: Sociocultural and Legal Points of View,” in Sass, , Veatch, , and Kimura, , eds., supra note 95, at 189.Google Scholar
Id. at 192.Google Scholar
See id. at 195–97.Google Scholar
Id. at 197.Google Scholar
By way of analogy to the United States, a decision from the district court level in Japan is somewhat greater than a respected federal district court decision in the United States. An English translation of the case by Robert Leflar can be found in Jost, T.S., ed., Readings in Comparative Law and Bioethics (Durham: Carolina Academic Press, 2000): At 354. A commentary on the case can be found in Yamazaki, F., “A Thought on Terminal Care in Japan,” in Hoshio, K., ed., Japanese and Western Bioethics (Dordrecht: Kluwer Academic Publishers, 1997): 131–34, and in Gutierrez, E., “Debate on Euthanasia Encouraged in Japan,” The Lancet, 349 (1997): 409. A similar case from Kawasaki, south of Tokyo, was widely reported in the Japanese press in the spring and summer of 2002, though that case has not yet been reported in legal reports.Google Scholar
Kimura, , supra note 119, at 193–94.Google Scholar
Hayashi, and Kitamura, , supra note 118, at 564–65.Google Scholar
Kimura, , supra note 119, at 189.Google Scholar
Articles 293 (taking the life of another on request); 287 (manslaughter); 289 (murder); and 294 (assisting in suicide).Google Scholar
A translation of the Schoonheim decision, Nederlandse Jurisprudence 1985, no. 106, is found in Griffiths, J., Bood, A., and Weyers, H., Euthanasia and the Law in the Netherlands (Amsterdam: Amsterdam University Press, 1998): At 322.CrossRefGoogle Scholar
Translation from id. at 307.Google Scholar
The court rejected alternative arguments that the prohibition against taking life did not extend to medical situations or that the defendant's conduct had only amounted to an insubstantial violation of the law. See id.Google Scholar
See Kimsma, G. and van Leeuwen, E., “The New Dutch Law on Legalizing Physician-Assisted Death,” Cambridge Quarterly of Healthcare Ethics, 10 (2001): 445–50.CrossRefGoogle Scholar
An English translation of the Act is available at <http://www.minbuza.nl/OriginalDocuments/c_55024.pdf> (last visited December 6, 2002).+(last+visited+December+6,+2002).>Google Scholar
Burial and Cremation Act, as amended (2001), § 7.Google Scholar
Id. § 10.Google Scholar
Id.Google Scholar
Id. § 8.Google Scholar
id. § 9. The Committee must inform the physician of its decision within 6 weeks (with one possible 6-week extension).Google Scholar
Failure to report is in fact a separate offense under the Criminal Code, Article 228(1).Google Scholar
Griffiths, , Bood, , and Weyers, , supra note 128, at 236–40.Google Scholar
Nys, , supra note 86.Google Scholar
Burial and Cremation Act, § 2(3).Google Scholar
Id. § 2(4).Google Scholar
Id. §2(2).Google Scholar
Chabot, Nederlandse Jurisprudence 1994, no. 656, is reproduced in Griffiths, Bood, and Weyers, supra note 128, at 329. See also Cohen-Almagor, R., “The Chabot Case: Analysis and Account of Dutch Perspectives,” Medical Law International, 5 (2001): 141–59.CrossRefGoogle Scholar
The Dutch reject terms like “passive euthanasia” or “indirect euthanasia,” used elsewhere, reserving the term “euthanasia” to mean only the taking of another's life in response to that person's request.Google Scholar
Nys, , supra note 86, at 233.Google Scholar
Id. at 234.Google Scholar
This practice was approved of in the Stinissen case in 1976. Nys, , supra note 86, at 234–35.Google Scholar
Nys, , supra note 86, at 236. In the Netherlands, euthanasia tends to be defined as a form of palliative care: Keown, J., “Euthanasia in the Netherlands: Sliding Down the Slippery Slope?,” in Keown, J., ed., Euthanasia Examined (Cambridge: Cambridge University Press, 1997): 261–97, at 269.Google Scholar
Griffiths, , Bood, , and Weyers, , supra note 128, at 210.Google Scholar
Sheldon, T., “Dutch GP Found Guilty of Murder Faces No Penalty,” British Medical Journal, 322 (2001): 509.Google Scholar
Griffiths, , Bood, , and Weyers, , supra note 128, at 131–33.Google Scholar
Cohen-Almagor, R., “An Outsider's View of Dutch Euthanasia Policy and Practice,” Issues in Law & Medicine, 17 (2001): 35–68.Google Scholar