Die a human right
Urs Peter Haemmerli
Medicine and human rights
from: processes 36 (issue 6/1978), pp. 47-64
Human dignity as "reasonable autonomy"
Man is a unique being in this world. In relation to other living beings, freedom and reason characterize him as new modes of behavior. Not a principle, but specifically human acts, or at least the possibility of doing so, characterize the person as a person. That man alone seeks, grasps, and even sets meaning, therein lies his dignity.
The term "human dignity" was defined by Kant as "reasonable autonomy". For Kant only man is a person, all other natural beings are mere things. Human dignity is not based on humanity as such, but on the personality of the human being, in the individual, in the individual. The individual represents a value in itself, an end in the Kantian terminology, and never just a means. As a value, the individual is the bearer of certain inalienable fundamental rights and freedoms. These are collectively referred to as human rights. The core of this philosophical consideration is: Human rights are rights of the individual.
General human rights
The general human rights of our time were recorded on October 10th 1948 in a declaration of the United Nations as a basic declaration of human rights without binding legal effect. The Council of Europe, founded on May 5, 1949, went on. He wrote one on November 4, 1950 "European Convention for the Protection of Human Rights and Fundamental Freedoms", which came into force on September 3, 1953 and was subsequently ratified by all 18 member states. In contrast to the UN declaration, the European Convention on Human Rights is legally binding. Anyone can bring an action. Article 13 of the Convention reads: ... the injured party has the right to lodge an effective complaint ... even if the injury was committed by persons who were acting in an official capacity. " After domestic legal rights have been exhausted, the complainant can contact the European Commission for Human Rights arrive (Art 25ff).
The sick person naturally also has general human rights, ie personal rights. A first attempt at clarification was made on November 17, 1972 through the "Patients's Bill of Rights" of the American Hospital Association. Although this document is not legally binding, it already deals in detail with the important problems in medicine that have arisen over the past 20 years. The rapid development of technical equipment, the resulting introduction of resuscitation techniques and the establishment of intensive care units led to the priority of what is technically feasible and manipulable, in which the patient can become the mere object of the equipment. The Council of Europe noted with concern that the advancement of medical science creates problems and even threats to fundamental human rights and the integrity of the sick. He also found that it is often difficult for sick people, especially in large hospitals, to defend their own interests.
The Council of Europe was therefore of the opinion that general human rights should be more precisely defined for the specific group of sick and dying people. On January 24, 1974, the Social and Health Committee of the Council of Europe was given the task of dealing with the problem. The main clerk (Rapporteuro ") was the Austrian lawyer and parliamentarian Dr. Marga Hubinek. Two medical experts were invited to the commission meeting on March 14, 1975 in Paris *). After two years of intensive work, the Parliamentary Assembly of the Council of Europe received two documents entitled The Rights of the Sick and the Dying (Recommendation 779/1976 and Resolution 613/1976) presented and adopted by an overwhelming majority on January 29, 1976.
The rights of the sick and the dying
The short text of the two documents can only be fully understood if one is familiar with the extensive working documents of the committee. The basis for all conclusions of the Council of Europe is the relationship between doctor and patient, which has long been regulated by law: There is a legal contractual relationship between the two partners, even if this contract is not set out in writing. The client is clearly the client. As the Council of Europe emphasizes, this goes back to the patient's right to self-determination, namely self-determination as a fundamental human right.
From a legal point of view, this is by no means new. In principle, every medical treatment, whether it is surgically with a "knife" or with a drug, is an interference with the patient's integrity and thus falls under the concept of bodily harm according to the jurisprudence. The medical intervention may therefore only be carried out with the consent of the patient, otherwise it is punishable by law.
The same is true from the moral and religious point of view. Pope Pius XII said on February 24, 1957: In general, the doctor cannot act without the patient expressly or tacitly (directly or indirectly) authorizing him. For doctors, the wish of the patient who refuses a promising treatment of a curable disease is legally and morally binding. A typical example is a Jehovah's Witness who refuses a blood transfusion if there is massive bleeding from a benign gastric ulcer and could therefore die of a curable disease. The basic legal formulation is: Voluntas aegroti, non salus aegroti suprema lex esto (The will of the sick person, not the sick person's health, is the highest law).
The action of the doctors "on behalf" of the patient
In general, we doctors assume that the sick or injured person agrees to our treatment proposals and we do not care much about his or her right to self-determination. In addition, the doctors have to act in emergency situations without being able to ask the patient beforehand, e.g. in the event of sudden respiratory or cardiac arrest. Here the doctor only has a few minutes for a successful resuscitation, otherwise irreparable brain damage occurs. The doctor follows the presumed wishes of the patient. Under civil law, one speaks of "management without a mandate", in criminal law of "presumed consent".
What is the unwritten assignment of every patient, be they judgmental or unconscious? The answer to this question also defines the professional duty of the doctor. The ideal requirement is: Heal and save life. As is well known, however, there are a number of diseases for which life-saving and healing are not possible, even with today's state of medicine. Of course, this should not mean that the doctor cannot or should not help and alleviate his incurable patient. The famous internist Sir William Osler (1849/1919) defined the professional duty of the doctor very realistically: To cure sometimes, to relieve often, and to comfort always.
The working documents of the Council of Europe show that the patient's right to self-determination is to be guaranteed through the formulation of five specific rights. What is important is the definition of the term right (in the sense of human rights) by the Council of Europe: a right is an option for the individual, something that they can exercise if they want, but which they can also do without if they so choose. For example, Article 2, Section 1 of the General Convention on Human Rights of the Council of Europe contains the right to life, while the Council of Europe resolution on the sick and dying contains the right not to suffer, also formulated as the right to die in peace and dignity. There is no contradiction between these two rights when viewed under the concept of self-determination. The individual and only the individual himself can choose between the two anchored rights, ie seek an appropriate realization of his rights under the given circumstances.
The exercise of self-determination presupposes that the individual is capable of judging in a legal sense; children and the mentally ill are therefore excluded from the regulation of the Council of Europe. For their treatment, in addition to the medical indication, the wishes and will of the parents or guardian apply, without whose consent treatment may not be restricted or discontinued. Society must not deny the right to life for patients who are capable of judgment or who are patronized, neither for individuals nor for categories of the sick, as happened under the Hitler regime.
The rules of the Council of Europe
The five rights of the sick and the dying are:
- the right to freedom, for example the right to be admitted to or discharged from a hospital, the right to refuse a proposed treatment or operation;
- the right to personal dignity and integrity, e.g. the right to privacy, the right to secrecy;
- the right to information, not only about the technical installations of a hospital, but also about the diagnosis and prognosis of one's own illness and about the possible effects and side effects of a proposed treatment;
- the right to appropriate treatment, not only in the medical sense, but above all in human care and a form of treatment that is appropriate to the individual and not to the diagnosis of disease;
- the right not to suffer.
These five rights are no longer separated in the above form in the final text of the Council of Europe, as they overlap in practice. For example, the right to information forms the basis for exercising the right to accept or reject a proposed treatment (called “informed consent” in technical terms). The full information that the patient may want in certain cases about their cancer, which may be fatal, is given correctly by the doctor, but in such a way that the patient is never deprived of the last hope and comfort. This corresponds to the patient's right to appropriate treatment. The fact that full information is not the duty of the doctor if the patient does not want this information at all corresponds to the same right.
The Council of Europe took a very courageous step with the formulation of the right not to suffer. The Council of Europe takes a clear position on the whole euthanasia problem without ever mentioning this word in the text.
Definition of euthanasia
The term euthanasia has been and is used in so many ways that one has to speak of an actual confusion of terms. Many misunderstandings in discussions and in the mass media arise solely from the fact that the interlocutors understand completely different things under the same word and that emotions take the place of urgently needed objectivity.
Only the simple division into active and passive euthanasia should be mentioned here, which corresponds to the usual medical and legal usage. Active euthanasia means killing the patient: the conscious and often rapid bringing about death by interfering with the patient's physical integrity, both at the patient's own request (legal: killing on request) and out of compassion for the patient (legal: deliberate Killing), both with a dying person or with a suffering person who is not dying, be it by a doctor or by other people. Active euthanasia is a criminal offense, is neither accepted nor practiced by doctors and is morally unacceptable, even if the killing is done for humane motives of compassion and, in the words of the Stuttgart pastor A. Liebhardt - is understandable in cases of hardship. Active euthanasia is also rejected by the Council of Europe in point 7 of its recommendation.
Incidentally, it is noteworthy that in international criminal proceedings involving active euthanasia in which a doctor acted as a perpetrator or killer, this doctor, with one exception, was never the treating doctor of the patient, but a close relative of the person killed.
Passive euthanasia means letting the irretrievably lost terminally ill patient die by foregoing further medical measures by the doctor. These include drugs, artificial force-feeding, artificial circulatory support, artificial respiration, oxygen supply, blood transfusions, artificial kidney, surgery, etc. Important - and often forgotten in lay circles - are two aspects of this definition. On the one hand, these patients must be those with an incurable underlying disease, which, even with today's advanced state of the art of medicine, can neither be cured nor improved and which will definitely lead to death in the foreseeable future. With patients of this kind, the doctor is not in control of life and death, but is powerless in the face of an inevitable fate. At most, it can prolong life by postponing dying and thus only influences the place of death (hospital or own home) and the time of death, but not the actual fate of the patient. The second important aspect of the definition lies in the process of dying that has already begun (definition follows below); euthanasia must therefore not be used on seriously suffering patients without a fatal disease.
Passive euthanasia, understood as the renouncement of life-prolonging measures in the terminally ill, can appear in three specific external forms: by renouncing hospitalization of a dying person (probably the most common form of passive euthanasia), through the primary renouncement of the initiation of life-extending measures in a person Illness with a clearly hopeless prognosis (eg severest skull crushing in an accident) and through the renouncement of continuation, ie the discontinuation of previously initiated measures; if these are unsuccessful (e.g. unsuccessful resuscitation).
The churches and the concept of euthanasia
The basic legal and medical definition and the distinction between active and passive euthanasia is unfortunately not adopted by any of the churches in their official statements. Unfortunately because this leads to the most common misunderstandings in the press. With their own definition, the churches anticipate a moral evaluation. For them, passive euthanasia is morally permissible in the legal and medical sense. For this reason, the word euthanasia is not used at all in the sense of letting a terminally ill patient die. The German bishops write: We owe help to the sick when they are dying.
Euthanasia in the parlance of the churches always and exclusively means active euthanasia in the sense of conscious killing. The latest definition in the Vatican organ Osservatore Romano of September 12, 1976 reads literally: Per eutanasia si intende 'intervento positivo di medici o di altre persone per procurare direttamente la morte. " (Euthanasia is understood as a positive intervention by doctors or other people with the aim of bringing about death directly.) Similar definitions from the Catholic side can already be found in the pastoral letters of the English bishops of December 8, 1974, and of the German bishops of June 15 1975 and the French bishops of June 15, 1976. On the Protestant side, the Anglican Church in its statement On Dying Well of December 1974 formulated its conclusion No. 1 on page 61 with the words: In its narrow current sense, euthanasia implies killing, and it is misleading to extend it to cover decisions not to preserve life by artificial means when it would be better for the patient to be allowed to die. Such decisions, coupled with a determination to give a patient as good a death as possible, may be quite legitimate. (In today's narrow sense, euthanasia means killing; it is misleading to extend the term to decisions not to preserve life by artificial means when it would be better for the patient to allow him to die. Such decisions, along with the determination to Giving the patient as good a death as possible can be perfectly lawful.) The Archbishop of Canterbury, Dr. Donald Coggan, on December 13, 1976, in a remarkable lecture to the Royal Society of Medicine in London, emphasized: There is a great deal of consensus among Christians of widely differing traditions about the injustice of lengthening the life of patients with terminal illnesses for the sake of lengthening life . Both ecclesiastical and legal-medical definitions are justified. Both are useful for their purpose. However, the existence of two different, although clear, definitions increases the confusion of terms among the population, not less. For this reason, an agreement on the same terms should be sought.
Definition of the dying process
Dying is the last great life task of every human being. With the exception of sudden deaths, dying means a slow decrease in quality of life, increasing and considerable impairment of the elementary bodily functions of life and finally the failure of first individual and then all organs. The dying process of a sick or injured person begins for the doctor when, based on a series of clinical signs and long observation of the course of the disease, he comes to the conclusion that the underlying disease is irreversible, progressive and death can only be postponed, but not avoided .Observing the course of the disease is often more important than diagnosing the underlying disease when determining the onset of dying.
It is therefore advisable to distinguish between the doomed (moriturus) and the dying (moribundus). The term moriturus is based on the exact diagnosis of a basic disease, which with today's medical means is definitely not curable and must lead to death. This includes certain forms of cancer. Despite such a diagnosis, the patient may well be in good general condition and able to work. In addition, the doctor can often help him over the first flare-ups of his fatal illness with temporary improvement, keep him relatively symptom-free and often enable him to live a decent life for years (term of palliative therapy).
The term moribundus is rarely based on the diagnosis of the underlying disease itself. Of course, every moriturus becomes a moribundus at some point. Much more common, however, for the dying are diagnoses with a wide range of options for the course of the disease: from complete recovery to partial disability to inevitable death. Examples of this are a heart attack or a stroke. Here the prognosis is based on the course of the disease and the occurrence of secondary complications. Finally there are patients for whom the eventual fatal outcome is unequivocally certain, the diagnosis of the basic disease Karen Quinlan. Euthanasia may only be given to the moribundus, not the moriturus.
For the patient himself there are three principal manifestations that remain unknown. A well-known example of this is the American dying: the slow, agonizing dying with suffering while fully conscious, suffering while conscious with a gradual transition to a twilight state with clouding of consciousness and thus alleviation of subjective suffering, and finally irreversible unconsciousness without subjective suffering. This distinction is important in relation to the various aspects of passive euthanasia.
Definition of irreversible unconsciousness
Every loss of consciousness means a dysfunction of the brain, every permanent, irreversible loss of consciousness means a failure of parts or the whole of the brain. Our brain has two principal functions, which are defined in the judgment of the Supreme Court of New Jersey of March 31, 1976 in the case of Karen Quinlan as follows: The brain works essentially two ways, the vegetative and the sapient (i.e. vegetative regulation and reason) . The function of consciousness or reason is essentially located in the cerebral cortex, and cannot be replaced by any machine. The vegetative brain function lies in the deeper brain centers, mainly the brain stem, and takes over the central regulation of important body functions, e.g. breathing, circulation, body temperature, waking and sleeping. The failure of most of the organs outside the brain can now be technically replaced by apparatus or other aids.
Irreversible loss of consciousness anatomically means an irreversible failure of the cerebral cortex and / or its connection to the deeper brain centers. Since the vegetative brain function can also fail, a clinical distinction is made between two forms of permanent unconsciousness.
The failure of both brain functions leads to the immediate death of the patient, unless the failed organ functions, especially breathing and circulation, are immediately replaced technically and mechanically in an intensive care unit. Patients of this type are only a small group of all permanently unconscious. Mostly it concerns severe skull injuries, occasionally severe poisoning, electrical accidents, or conditions after attempts at resuscitation, after brain operations or after anesthesia incidents.
The failure of the cortex function alone, with the respiratory and circulatory functions preserved, means that the patient must be kept alive by artificial supply of fluids and food. This is also possible in a normal hospital ward or in a nursing home. Mostly these are patients with strokes or other brain diseases, occasionally also patients in whom the vegetative function recovers after a total brain failure (as with Karen Quinlan). The New Jersey Supreme Court describes such a condition as being comatous in a chronic persistent vegetative state, having no awareness of anything and anyone around, existing at a primitive reflex level, which can never be restored to sapient and cognitive life (a coma in a chronically persistent state of vegetation, without any perception of anything or anyone in the environment, an existence on a primitive level of reflex, which can never be returned to a knowing and rational life). Medically, one speaks of decerebration, apallic syndrome, or akinetic mutism. In French literature, the term coma vigile, or waking unconsciousness, is used because these people often open their eyes, react reflexively to noises, utter howling and, for the medical layperson, simulate a handshake with a grasp reflex or body movements by reflexive muscle twitches. The theologian H. Thielicke describes this condition as organ preservation, the theologian A. Lienhardt as vegetating a vital preserve.
Definitions of death
In almost every country in the world, death is determined by a doctor according to the law. The World Medical Association writes in its Declaration of Sydney: Statement on Death in 1968: “The determination of the time of death is the legal responsibility of the physician and should remain so. (The determination of the time of death is the legal responsibility of the doctor; it should stay that way.) Pope Pius XII made a similar statement. in 1957: It is up to the doctor to give a clear and precise definition of the essence of the death and the 'moment of death' of a sick person.
The doctor makes the diagnosis of death on the basis of general clinical criteria, not on the basis of a scheme or a program of points. He uses a multitude of signs and findings that ultimately make up a whole. In the same way, a doctor diagnoses pneumonia, for example: not because of fever, not because of coughing, not because of the X-ray findings, not because of the rattling noises in the lungs, but from the combination of these and many other criteria, which can all occur as individual symptoms in other diseases.
In the past, death (in the words of the Pope: moment of death) was defined as cardiac death, today it is referred to as brain death. The following reasons have led to this change: With today's medical technology, many organ functions, with the exception of the consciousness function of the brain, can be taken over automatically. With a surgical heart transplant, a patient lives for about two hours without their own heart and without their own lungs because a heart-lung machine keeps their brain alive. Ferrier: In the case of sudden cardiac death, the brain lives for a few minutes until it also dies due to a lack of blood and oxygen supply; cardiac death leads to brain death.
The concept of brain death has become topical over the past 20 years for two reasons. Due to the improved technical possibilities of medicine, the number of permanently unconscious patients (eg with resuscitation attempts with partial success ") who were artificially kept alive and for whom the question of the meaning of a further artificial prolongation of life (or death prolongation) arose. The second, more acute reason was the organ transplant surgery needs for healthy donor organs, which requires official approval to kill a donor by turning off the ventilator in an artificially alive unconscious patient.
Brain death and transplants
This led to the definition of total brain death as a criterion for the medical determination of death in the biologically still living body. The criterion created for organ transplantation is often and incomprehensibly misunderstood as the general and only valid definition of death. Incomprehensible because the defined situation can only occur in an intensive care unit due to the necessary machines, but most people die outside of such a unit. Incomprehensible also because there is an obvious connection between a new definition and an existing specific need.
To explain this state of affairs, the needs of transplant surgery must be briefly described. The donor organ must be completely healthy and therefore mostly comes from young people. At the same time, the donor must be dead. A succinct phrase reads: “The donor should be as dead as necessary, but the transplant should still be as alive as possible. The typical organ donor is a young person with a severe skull injury and an otherwise healthy body, often a motorcyclist with an accident without a crash helmet. The time interval between skull injury, i.e. total brain death, and organ removal, i.e. switching off the ventilator, must not exceed 48 hours, as otherwise the donor organ, usually a kidney, is no longer functional due to insufficient blood flow in the organ recipient. This extremely short time limit requires absolutely safe, strict and restrictive criteria for determining death (in the words of the Pope: the essence of death), since in this situation the doctor’s most important criterion for diagnosing the irreversibility of unconsciousness, namely long observation of the The course of the disease is absent.
These strict criteria for organ removal are listed in Switzerland in the guidelines for the definition and diagnosis of death of the Swiss Academy of Medical Sciences of January 25, 1969 and by the Swiss Federal Supreme Court in a judgment of June 28, 1972 on the first heart transplant in Switzerland been accepted. The text of the Swiss guidelines is based on the criteria and definitions of an ad hoc committee of the Harvard Medical School in Boston on August 5, 1968. The title of the original is correctly A definition of irreversible coma and not definition of death. Incidentally, these criteria are nowhere anchored in law in Europe, in the United States only in the states of Kansas (1971) and Maryland (1972) and in a modified form in Connecticut (1972).
The so-called Harvard criteria
The strict Harvard criteria will and must continue to apply to organ removal for transplant purposes, mainly because of the extremely short time limit of 48 hours between the onset of unconsciousness and the switching off of the respirator. The questionability of this definition as a general definition of death arises from the fact that a “Harvard dead” can become “Harvard alive” again if ventilation is continued beyond 48 hours: develop after the first stage of complete lack of reflexes (one of the main criteria) The reflexes from the spinal cord gradually return, and the criteria are no longer met. A partial recovery of the vegetative brain centers is possible, but a return to consciousness is never possible. The additional criterion of a flat brain waveform (electroencephalogram or EEG) is also questionable: An EEG is flat even with high doses of sleeping pills or anesthesia, i.e. reversible unconsciousness due to drug intoxication. An EEG can also be false normal: The neurologist Prof. Adrian Upton from Hamilton derived a "normal EEG" from a pudding made by his wife, which was in an intensive care unit and therefore transmitted interference currents from other electrical devices.
The Harvard criteria are certainly not sufficient to allow therapy to be discontinued in the far more frequent number of permanently unconscious patients in whom the vegetative brain functions are partially or completely preserved (apallic syndrome). The case of Karen Quinlan has brought this back to the public eye. The Harvard criteria were no longer met in the later course of the disease. Even so, the Supreme Court ruled that the girl should die. His decision was based on the permanent loss of the cognitive and sapient life, i.e. the person with continued organic vegetation.
It is irrelevant for the doctor whether the death of personal-human life is now designated as one of the official definitions of death or whether this is just one of the criteria for stopping medical treatment that has become meaningless because it is unsuccessful and an artificial prolongation of death. Incidentally, the criterion of the death of the person was already hinted at in 1957 by Pope Pius XII when he said about the essence of death by the doctor in an irreversibly unconscious patient: “One can refer to the common term of the complete and final separation of soul and Fall back on the body. The World Medical Association means the same in its declaration of 1968 (the year of the Harvard definition) with regard to the discontinuation of further medical measures in the unconscious: Clinical interest lies not in the state of preservation of isolated cells but in the fate of a person. (The clinical interest does not lie in the state of preservation of individual cells, but in the fate of the person.)
The Council of Europe also rejects the Harvard criteria as the only valid definition of death, because in point 6 of its resolution of January 29, 1976 it demands from the European Office of the World Health Organization a new definition of death which "can be used everywhere in medical practice and not just in hospitals" . With this formulation, the new definition of death can only be based on purely clinical criteria.
Medical aspects of passive euthanasia
In the case of a terminally ill or fatally injured patient, any doctor will, at the slightest chance of cure or improvement, take whatever measures may serve this purpose. If he is in doubt about his chances of success, then he will always choose the possibility of a cure. This is especially true in emergency situations in which the consulted doctor sees the patient for the first time, does not know his medical history and is also insufficiently informed about the course of the acute illness to date. This situation always applies to the hospital doctor in the event of an emergency admission.
Every doctor first tries to fulfill his primary mandate, the healing, and thus his duty to guarantee the patient, taking into account the patient's resilience to pain or mutilation as a result of the healing procedure as well as the patient's overall health (example: inoperability of a curable colon cancer due to pre-existing severe heart or lung disease). He also obeys the will of the discerning patient and the presumed will of the unconscious patient. If his primary mission is medically impossible to fulfill, then helping and alleviating suffering is his next goal and legally his next guarantor duty. His help is not purely medical-technical, but consists of human assistance and the best possible care for the dying patient.
The doctor works under the principle of therapeutic rationalism. He implements all promising measures. If, however, there is no improvement or no alleviation of the measures used, then they are turned off as useless and therefore pointless. This corresponds to the daily medical practice also for the "banally sick". If the pneumonia pathogen does not respond to the antibiotic used, it is discontinued and replaced with an effective one. A viral illness like a runny nose is not treated with antibiotics because viruses do not respond to them.
The same applies to the dying or seriously ill: If breathing stops and becomes unconscious, a respirator is used until spontaneous breathing and consciousness return while the underlying disease is treated. Resuscitation means, literally translated, resouling. If this success does not occur after a sufficiently long treatment and observation period for the patient, then the machine can be switched off and the disease, now recognized as incurable, can be allowed to take its natural course. In the suffering dying person with preserved consciousness, it is a self-evident duty to alleviate the suffering. Everything else is just bad medicine. Too often the lay press only mentions pain as an expression of suffering. Other ailments can be far more excruciating in the dying and even drive the patient to suicide. These include slow suffocation in the case of severely chronic lung patients, uncontrollable vomiting, the blockage of the esophagus, which also makes it impossible to swallow saliva, as well as the smelly, disintegrating cancer in the oral cavity. Sigmund Freud, for example, suffered from such an ulcer for 16 years. When his favorite dog no longer wanted to enter his room because of the stench, he let his doctor friend help him to die.
The same principle of therapeutic rationalism applies to the unconscious dying person without subjective suffering, vital functions are supported, artificial nutrition is continued, secondary complications are fought as long as there is a possibility of a cure. If, on the basis of a long, often months-long follow-up, the doctor sees no success in his efforts, but rather a slow deterioration, then he will discontinue the artificial life extension in accordance with the presumed will of the patient.The Bonn neurosurgeon Prof. P. Röttgen says: "The limit for mandatory medical action lies where the possibilities of genuine humanity have been lost forever." The goal of the doctor in the judgmental as well as in the unconscious dying is to enable him to die in dignity and peace.
This therapeutic rationalism must be strictly separated from the reprehensible principle of success itself, the “acharnement therapeutique at any price, the desire to prove the efficiency of medical procedures. The principle of success, as the treatment of General Franco demonstrated in a frightening way and is therefore also called Franconasie, makes the patient the object of a treatment machine that prolongs suffering and not life and that robs the dying of all dignity. In the wrong hands, medical technology can turn from saving life to cruel death prevention, to death in installments and a terror of humanity, as H. Thielicke puts it. "To do everything that is medically and technically possible today," says the philosopher Carl-Friedrich von Weizsäcker, "can be unconscionable behavior for the modern doctor."
For detailed medical guidelines on caring for the dying who are granted the right to death, see the New York Academy of Medicine Statement on Measures Employed to Prolong Life in Terminal Illness, December 20, 1972: "Measures to maintain hydration and comfort and the administration of medicines to relieve suffering ", i.e. pure fluid intake, painkillers and basic care, which certainly also includes psychological care. This declaration was recommended for acceptance in all hospitals. We doctors have to learn again how to treat people and not diagnose diseases. Doctor Maurice Millard from Leicester says: "Some doctors forget that they are dealing with a person and not a preparation."
One thing must be said clearly: There is no such thing as a life unworthy of life for the doctor. But there are beings who are no longer viable. They must be given the right to their death. We must not become a society that values the flesh more than the spirit.
Legal aspects of passive euthanasia
The legal situation for the dying is clearly regulated. In the conscious, the right to self-determination, ie the patient's mandate, applies. He can refuse further treatment and nutrition, but he can also insist on the use of all technical means, even if these are not promising in the opinion of the attending physician. In the case of the permanently unconscious, the principle of management without order (civil law) applies, that is, the presumed wish and will of the patient (criminal law. This presumed wish was formulated in the case of Karen Quinlan by the New Jersey Supreme Court as follows: “We have no doubt , in these unhappy circumstances, that if Karen herself were miraculously lucid for an interval (not altering the existing prognosis of the condition to which she would soon return) and perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life support apparatus, even if it meant the prospect of natural death. "(We have no doubt, under these unfortunate circumstances that Karen herself, she would be miraculously conscious for a short time [without this changing the prognosis regarding her condition, in which she would fall back again] and if she could grasp her irreversible state that Karen would then stop the life-extending would like to decide on measures, even if that meant her natural death.) The Zurich criminal lawyer Prof. J. Rehberg has a similar opinion: “In my opinion, it can hardly be said that it corresponds to the presumed will of the patient and the medical professional obligation if one keeps such a 'living organism' functional for as long as possible through medication, artificial nutrition and the like. "Another legal approach concerns the professional duty of the doctor (as a presumed mandate of the patient). The mission is to heal. If healing is no longer possible, then this order is no longer applicable, and with it the doctor's obligation to guarantee. Then he has to turn to his second assignment and his second duty of guarantee, to alleviate the sufferer.
The lawyers also see the problem from the perspective of medical-therapeutic rationalism, ie from the prognosis, the patient's prospects for improvement. The New Jersey judgment reads: "... the focal point of decision should be the prognosis as to the reasonable possibility of return to cognitive and sapient life, as distinguished from the forced continuance of that biological vegetative existence to which Karen seems to be doomed. " (The crux of the judgment should be based on the prognosis regarding the possibility of a return to a knowing and rational life, as distinct from the forced continuation of this biological existence to which Karen seems doomed.)
Medical measures that have become meaningless because they do not bring the expected benefit may therefore be discontinued, Prof. J. Rehberg needs the following comparison: If the fire brigade cannot contain the fire after long attempts to extinguish a house, then they stop their attempts and leave the house burn. Nobody accused the fire brigade of arson because of this. Therefore, a doctor must not be accused of intent to kill if he discontinues a treatment that was primarily used to save the dying but unsuccessful, lets the disease take its natural course and allows the patient his natural and inevitable death. The criminal lawyer Prof. P. Noll formulates the situation with the dying person with irreversible loss of person even more simply: You cannot kill a dead person. Other lawyers ironically describe death relief as a "victimless crime".
"Death wills "
A final legal aspect of euthanasia concerns the question of the importance of an earlier written declaration by the patient in which he specifies in advance that life-prolonging measures should not be taken in the event of a fatal illness or injury with loss of consciousness or impaired judgment. In the Anglo-Saxon language, such a declaration is called living will, the “living testament”. The California State Parliament passed the recognition of such documents on September 30, 1976; the Right to Die Bill came into force on January 1, 1977. The California Medical Association actively supported the law. Similar bills are currently before parliament in another 17 American states. In the canton of Zurich, a similar demand, Rolf Wyler's professional initiative, came to a referendum. In this referendum, 60% of the voters approved the professional initiative in favor of future impunity for active euthanasia. For the doctor, living will is a declaration of intent, for the lawyer it is an important indicator. The only decisive factor is the patient's presumed will in the current illness situation. The written declaration can be revoked at any time; the doctor has to decide whether the patient would reasonably revoke them under the current illness situation or not. People close to the patient are to be heard. The doctor has to ask himself whether these people are really expressing the patient's wish or whether selfish motives are involved The final decision is legally up to the doctor.
Ethical and philosophical aspects of passive euthanasia
For many ethicists and philosophers, suffering is part of our human existence. It should not be concluded from this that the alleviation of suffering is unethical or even unchristian. On the contrary: In the hopelessly lost dying person, artificial life extension often means artificial extension of suffering, and this in turn often means torture and torture of the dying person. Such man-made suffering is not required of any religion. Pope Pius XII already in 1957 demanded a sufficient dosage of painkillers for the dying, even if this should bring about a certain acceleration of the onset of death.
The problem of the permanently unconscious patient can be formulated most clearly in philosophical terms. As mentioned at the beginning, Kant (1724/1804) defines human dignity as reasonable autonomy; he only approves it to the human individual, that is, to the person. The oldest definition of the term person comes from Boetius (480/525); Persona est naturae rationalis individua substantia, i.e. the rational individual. Thus the old definition of person is completely in line with the Kantian definition of human dignity. In addition to the individual = autonomy, the definition demands rationality = reason. The term reason, for its part, is defined as the ability to communicate, namely to communicate on three levels: with oneself (reflection, thinking), with the environment (through conversation with fellow human beings) and with God or the universe. Interestingly, the first level corresponds to Descartes' (1596-1650) definition of human life: Cogito, ergo sum; so I think I am.
When the ability to communicate is extinguished, reason is extinguished. If reason is extinguished, then according to the above philosophical definition, the person no longer exists either. With the extinction of the person, human dignity is also extinguished. So it is not allowed to speak of an inhumane existence, but only of a person's death, of a body that is incapable of living.
With regard to this view, it is occasionally said by predominantly emotionally inclined persons that the medical professionals do not know a lot, and it is quite possible that apallic beings still have an inner life and that the artificial lengthening of life must therefore continue. The consequence of this line of thought seems so cruel that a doctor could even be driven to active euthanasia. Solitary confinement in the smallest of spaces, the tiger cage, is one of the worst forms of torture. Feeling trapped in one's own body as if in a straitjacket, and this for months and years, would have to represent the most unbearable torture for the patient that a barbaric sadist could imagine. Who of us would wish to be in such a state ourselves? Who of us would wish someone else to be in such a state?
Representatives of the Catholic Church also subscribe to the concept of personal death. At the hearings of the National Council Commission of Dr. L.Spreng on the parliamentary initiative on passive euthanasia by National Councilor W. Allgöwer said the moral theologian and ethicist Prof. A. Sustar, then episcopal vicar in Chur, on July 1, 1975 regarding the question in which borderline cases euthanasia is allowed: The borderline case is becoming essential characterized by the irreversible death of personal human life. It will therefore be an unconscious person who, according to medical knowledge, no longer has any prospect of being called back to personal-human life.
The criterion: personal death
The doctor's duty to prolong life has to give way to other medical duties in terminally ill dying people, Prof. A. Sustar defines it as follows:
- the duty to let the patient die his dignified death.
- the duty not to senselessly prolong biological life in the event of personality death by technical means.
- the duty to respect the will of the patient who wants to refrain from extraordinary and inappropriate interventions because he accepts and affirms his inevitable death,
- the duty to admit the limits of what is technically possible in medical art,
- the duty not to see the terminally ill as an object of experimentation.
In the English House of Lords, in the debate on the Incurable Patient Bill presented by Baroness Wootton of Abinger, the verse written more than a hundred years ago by Arthur Hugh Clough (1819–1861) was quoted three times (Parliamentary Debates, House of Lords, Official Report, Vol. 368, No 31, of February 12, 1976):
Thou shalt not kill;
But need'st not strive
Officiously to keep alive.
(Thou shalt not kill; but there is no need to be overzealous for the preservation of life.)
Passive euthanasia and human dignity
Passive euthanasia for terminally ill dying people is therefore not only permitted from a medical, moral, religious and legal point of view, but also required under the aspect of human dignity.
Everyone needs help when they are alone and helpless. Each person is alone at the extreme limit of his life: at birth and at death. With both he needs the support of his fellow men. Obstetrics corresponds to the right to life, euthanasia corresponds to the right to a dignified and peaceful death. “We doctors,” says cardiac surgeon Prof. Ch. Barnard, “have become dazzling technicians; we have to learn again to be humane. " The Council of Europe wants to promote this humanism in medicine. In point 9 of his recommendation he not only demands the best possible alleviation of all suffering of the dying person, but also wants to give the dying person the possibility of psychological preparation for his own death, with the assistance of trained staff. We are still a long way from this ideal situation in our hospitals and homes. And yet we doctors keep saying: it is the living who fear death, not the dying.
Let's return to our starting point. Human dignity is threatened by everything that calls into question freedom, which is understood as reasonable autonomy. We enable the sick and dying to preserve their human dignity if we grant them their human rights, ie personal rights. We all, whether we are family members, friends, nurses, doctors, theologians or politicians, must enable the sick and dying to exercise these rights. Human dignity as a human right is ultimately a question of humanity.
*) Haemmerli was one of the two experts. The expose he presented there was published in the "Schweizerische Ärztezeitung" from April 16, 1975, volume 56, No. 15, S554-563. (The editorial office)
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