LEGAL ASPECT OF EUTHANASIA IN THAILAND: PROBLEMS AND PROSPECTS
Assistant Professor Dr. Saratoon Santivasa**
The right to death is a controversial subject in every society, guaranteed to generate heated debates whether an ill person has the right to end his life, particularly in cases whereby the patient falls into a state of irreversible coma or has long suffered from an incurable disease causing unbearable physical or mental pain. It so happens that very often, with sympathy of the family to the dying person or being influenced by medical decision, with or without the consent of the dying person, the doctors are forced to come to terms with a dilemma: whether or not to terminate the patient’s life before his natural time. Such an act is known as “euthanasia” which may either be accomplished through the suspension of life-sustaining equipment, food or the administration of high dose of lethal substance. No civilized countries, great or small, seems to be able to escape from the debate on the ethics of such a practice which provokes raging controversies owing to irreconcilable views among the general public as well as the medical professionals. Here are some of the questions that have caused major division.
Should society allow the doctor to end the life of an incurable patient even with the express consent of the latter? Must the Hippocrates’ oath, which obliges every doctor to do everything in his power to save life be respected in all circumstances or is there a threshold beyond which medical care actually turns into medical tenacity? Should patients be allowed to fix their own death? As we all know, each and every society somehow learns to find a way to accommodate conflicting opinions, taking into account its particular religious beliefs, history and social condition. Even those liberal countries which legalize euthanasia permit this practice only under extenuating circumstances.
In the case of Thailand, the subject of euthanasia has been discussed outside the academic circle because the media exposed how such a practice has been gaining current with alarming frequency. This has recently led to the introduction of a draft Act on Public Health addressing this issue for the first time. Under the current law, doctors caught practicing euthanasia will be subject to charges of murder and civil liabilities. Having said that, law and regulations relating to this subject remains quite nascent; many lacunae in the legal framework still need to be filled and more public forums to be organized and heard.
II. BUDDHISM AND EUTHANASIA1
It is generally known that Thailand is a land where Buddhism thrives and people of different religious faiths coexist peacefully even though the majority of Thai people are Buddhist. As Buddhism is very influential in Thais’ thinking and way of life, it will be interesting to examine how the religion views death and euthanasia.
The themes of impermanence, decay and death are omnipresent in Buddhist teaching. In Thailand, as in many Asian countries, Buddhism is identified as the authority par excellence on matters relating to death, and is closely linked to the rites and ceremonies associated with the transition from this life to the next one. Buddhist teaching emphasizes the importance of meeting death mindfully since the last moment of one’s life can be particularly influential in determining the quality of the next rebirth.2 Yet, the Thai people do not necessarily have only negative views on death. Because death is not regarded as a permanent loss but is part of the cycle of existence and rebirths, Thai people seem to accept death more readily than westerners.3
In Buddhism, the very first precept of admonition for good living is the abstention from destruction of life. This prohibition applies to life of all forms, human and animal. And the precept is equally binding on both monks and laypersons. In discussing the issue of euthanasia, we are essentially concerned with the death of human beings.
At a very basic level, death may be defined as the termination or cessation of life. It can come about through a number of causes. Failure of life-sustaining forces at any point of time in life brings about what we term death through natural causes. Here no agency of persons or processes is involved. On the contrary, we have death of persons through killing: suicide and murder or culpable homicide not amounting to murder, including euthanasia. Termination of life or unnaturally bringing about death, whether by oneself or another, is regarded as killing. In law, the intensity of the offense or crime, committed under serious provocation or in self-defense, may be judged differently. Yet, from Buddhist teaching’s point of view, killing, regardless of the motives, is prohibitive because it is a sin, even though that life is one's own.
III. DIFFERENT TYPES OF EUTHANASIA
The word euthanasia which means “good death” is derived from the Greek word eù signifying “good” and thanatos signifying “death”. From the beginning, the word associated dying with the art to die and the quality of the last instant of life.4 The second and contemporary meaning is introduced at the end of the 19th century. From then on, the word euthanasia has been commonly used in the sense of ending a patient’s life by a doctor in order to relieve him of the suffering.5 In the process, the intentional intervention to shorten the life of someone who has suffered a serious and incurable sickness has given rise to an ethical deliberation and come to acquire a criminal connotation. Those who support euthanasia contend that patients have the right to end life, rather than to continue it at all costs.
It is worth noting that euthanasia is always used with various adjectives which qualify different types of euthanasia: active, passive, voluntary and involuntary euthanasia.
-Active and passive euthanasia
The distinction between active and passive euthanasia is based on the nature of the involvement of the health professional or other person in control of the patient’s care. Therefore, the difference to be drawn is that between acting so as to cause death and omitting to act so that death is allowed to occur.6 Active euthanasia corresponds to the deliberate administration of lethal substance with the intention to provoke death, requested by the patient or decider by a relatives or a medical person in case where the patient can no longer give consent. As for passive euthanasia, it relates to the withdrawal of the necessary treatments to maintain life7.
The distinction between these two terms gives rise to confusion. The question is what conduct, in the context of medical care, will be regarded in law as an omission (passive euthanasia) rather than an act (active euthanasia). According to some writers, passive euthanasia is a nonsensical term because it is actually a non therapeutic intervention which cannot be perceived as euthanasia in the sense that it provokes death. In such case, the disease is the principal cause of death whereas in the case of active euthanasia the doctor’s conduct is the primary cause of death8. Moreover, this distinction in criminal law is relative. If the material element of voluntary homicide is subordinate to the existence of an act of commission, the qualification of an involuntary homicide does not depend on active or passive character of the fact generating the damage.9 In some cases, it is difficult to decide whether stopping the treatment is an omission or an act of commission. If it is an act of omission, it needs to be determined whether that omission was a failure to act, in which case it will be considered illegal. In the Bland Case10 Lord Goff points out that what the doctor did when he switches off a life support machine which “is in substance not an act but an omission to struggle”, and that “the omission is not a breach of duty by the doctor, because he is not obliged to continue in a hopeless case”. It is clear that health professionals have a duty to look after the patients. They risk being prosecuted for homicide if their patients die after a negligent failing to treat them. In other words, passive euthanasia by omission to act is equivalent to a breach of duty to take appropriate steps that are normally required by the responsible body of profession, and its legal consequence is not different from that of active euthanasia.11
-Voluntary, non-voluntary and Involuntary Euthanasia
Since the distinction between active and passive euthanasia leads to confusion, it seems more judicious to opt for the classification of euthanasia which is based on the will of the patient. This may fall into one of three categories12.
Firstly, voluntary euthanasia is described as the fact that the doctor puts an end to a patient’s life according to the will of competent patient or to the patient’s advance directive.13
Secondly, non-voluntary euthanasia concerns cases whereby the doctor decides, with or without consultation with the patient’s family, on behalf of the patient who has not expressed the will on this matter because the patient is either incompetent or has ignored to do so. The doctor often decides whether certain patients should be required to be artificially resuscitated or not.
Thirdly, involuntary euthanasia means euthanasia which is administrated against the wish of the patient.
IV. SILENCE ON EUTHANASIA IN CURRENT THAI LAW
In many countries, including Thailand, the law does not provide any specific offense in the case of the euthanasia.14 Therefore, existing legislations can be applied to the conduct of euthanasia.
In Thailand, laws concerning this matter are yet to be developed. In fact, the Thai Criminal Code concerning medical activities ignores completely the word “euthanasia”. The laws provide neither specific offense nor reduction of punishment. The lack of specific law on euthanasia means that punishment will be meted out under preexisting offenses.15 When euthanasia is carried out with the intention to kill, it is deemed voluntary homicide and could, therefore, be aggravated by premeditation.
Active euthanasia can be qualified as murder16 under Section 288 of the Criminal Code which provides that “whoever commits murder on the other person shall be punished with death, imprisonment for life or imprisonment of fifteen to twenty years”. The punishment is aggravated in case of euthanasia committed by premeditation.17
As for passive euthanasia, it is apparently qualified as an offence of abandonment. Section 307 of the Criminal Code states that “whoever, having duty by law or under a contract to take care of a person who is in a helpless condition through…sickness, infirmity in body or mind, abandons such person in a manner likely to endanger his life, shall be punished with imprisonment not exceeding three years or fine not exceeding six thousand baht, or both”. However, in some situations, it is more complicated when the patient has already been under medical treatment and the doctor stops the treatment because in his diagnosis the patient is nearly dead or beyond recovery; consequently, the therapeutic tenacity will do no good except to extend the patient’s life artificially. The question is whether the doctor has committed a murder in acting by omission since Section59§5 provides that “an act also includes any consequence brought about by the omission to do an act which must be done in order to prevent such consequence”. Lawyers’ opinions diverge on this point18 since there has never been a precedent case on this matter.
Euthanasia committed even with the patient’s consent and for the good sake of the patient is still considered as a crime because under the Thai criminal law the motive is not an element of crime in such a case. The principle volunti non fit injuria, even if it is not explicitly mentioned in the Criminal Code, is applied in the Thai criminal law with certain reservation.19 According to Thai Supreme Court’s decisions, the explicit consent of victim in criminal offences, if not contrary to good moral, can constitute an exemption of criminal punishment.20 However, if the victim’s consent is considered to be contrary to good moral; the person who committed the offence, even though he has the good intention to relieve the victim from his suffering, will be judged guilty of committing an offence against life and body. 21
When euthanasia is carried out by the patient himself with the assistance of the doctor, it is an act of suicide, or to put it more precisely, a physician-assisted suicide22. According to the Criminal Code’s provisions on offences causing death,23the offence of suicide does not exist and is, therefore, not a criminal offence under the Thai law.24 However, the assistance of suicide is a crime under Section 292 which stipulates that “whoever practices cruelty or employs similar factors on person who has to depend on him or for substance or any other activities in order that such person shall commit suicide, shall, if suicide has occurred or has been attempted, be punished with imprisonment not exceeding seven years and fine not exceeding fourteen thousand baht”; and Section 293 which stipulates that “whoever aids or instigates a child not over sixteen years of age, or a person who is unable to understand the nature and importance of his act or who is unable to control his act, to commit suicide, shall, if suicide has occurred or has been attempted, be punished with imprisonment not exceeding five years and fine not exceeding ten thousand baht”. As the Sections 292 and 293 imply, a physician-assisted suicide is not considered a crime in Thailand, although it is a crime in many other countries.25
If all types of euthanasia are unlawful under the Thai criminal law, it is not necessarily so under Thai civil law.
When euthanasia, whether active or passive, is performed without the patient’s consent, the doctor will be charged with a tort, and is required to pay the reparation.26 In case where euthanasia is accomplished with the patient’s own consent, the principle volunti non fit injuria is applied as a general principle of law even though the very same act would be criminally condemned.27
The problem arises in case where the consent to cease the care and treatment is given by the patient’s relatives when the patient is medically incurable and unconscious or in the persistent vegetative state. Under the Thai law, the Medical Council’s Regulations on Medical Ethics28 provides under Chapter 3 Clause 1 that “medical professionals will maintain the highest standard of the professional medical practice and make an effort in order that the patients be relieved from the suffering caused by the disease and from any disability….” Accordingly, the doctor must, with the patient’s own informed consent, give necessary care on the basis of the patient’s best interest principle. The informed consent of the third person is valid only in case of minor under 18 years old and the physically or mentally disabled who cannot exercise their rights29. When it concerns a patient who is incapable of giving informed consent by himself to receive medical care, there is still no provision under the Thai medical law. However, if the informed consent given by his relative or another person serves the interest of the patient ( to receive care for instance), it can be regarded as a management of an affair without a mandate, as stipulated in Section 395 of the Thai Civil and Commercial Code which states that “a person who takes charge of an affair for another without having received a mandate from him or being otherwise entitled to do so in respect of him, shall manage the affair in such manner as the interest of the principle requires, having regard to his actual or presumptive wishes”. On the contrary, the third person’s consent to euthanasia is not legally valid because it is neither an act of the patient’s agent nor the management without mandate according to the Thai Civil Code.
In the case of patient who falls into a persistent vegetative stage, the doctor cannot legally withdraw life-sustaining treatment and care even with the request of the patient’s relative. In such a case, the patient’s relative or the doctor has no legal possibility to ask the court to authorize prior to the withdrawal of the treatment since this right is not recognized under the Thai law and would be contrary to the good moral.
V. QUEST FOR LEGALISATION OF EUTHANASIA
Even though intellectually we all realize that death is inevitable, instinctively we try our hardest to defer it as long as we could. Throughout the ages, scientists and physicians have made experiments and come up with better and more efficient therapies to strengthen our bodies and prolong our life’s expectation to the extent that man’s therapeutic tenacity renders our lives impossible either to recover or to die. In other words, the patients may continue to be alive artificially for quite some time without any quality of life.30
Thai Lawyers differ in their opinions on the right to die. Whereas critics of euthanasia insist that any form of euthanasia is illegal because it is a crime and a breach to medical ethics31, partisans of decriminalization of euthanasia always base their argument on the respect of “the right to die”32 as corollary to “the right to live” and “the right to dignity”.33 However, this “right to die with dignity” has not been debated enough in Thailand as it has been elsewhere.
It is undeniable that the right to life is an undisputable fundamental right which has been universally recognized.34 Article 6 (1) of the International Covenant on Civil and Political Rights 1966 to which Thailand is party35 stipulates that “every human being has the inherent right to life. This right shall be protected by law…” Article2§1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1951 also provides that “everyone’s right to life shall be protected by law….” The right to life should be implemented in a positive manner such as taking the measure to increase life’s expectation36. The European Court of Human Rights pronounced in Pretty v. The United Kingdom case in 200237 that the right to life could not be interpreted as involving a negative aspect and could not, without distortion of language, be interpreted as conferring the diametrically opposite right, namely the right to die. In turn, the right to life creates the right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.
With regard to the right to dignity, this right is widely recognized by the international law of human rights38 as well as by many national constitutions.39 Articles 4 and 28 of the Constitution of the Kingdom of Thailand guarantee the respect of human dignity. Consequently, the right to dignity constitutes a fundamental principle. With regard to euthanasia, it is worth examining to what extent the concept of dignity comes into play since it has been referred to by both supporters and critics.
According to Immanuel Kant, “morality and humanity, so far as it is capable of morality, alone have dignity.”40 This dignity is founded on the simple and vital fact which belongs to mankind; it is natural and innate. The dignity does not set up a hierarchy between humans but between human and other living beings. Thus, human beings remain dignified regardless of their physical condition.
However, for partisans of the decriminalization of euthanasia, one of the principle arguments is “the right to die with dignity”. According to the partisans of this concept, certain human beings become less dignified because of their disease, their suffering or their disability. This kind of idea is both subjective and relative at the same time. It is subjective because each and every one of us would become judge of our own life. It is relative because the concept of the quality of life varies according to our material standing. It is, therefore, dangerous when society sees someone as undignified because of his medical dependence and unbearable suffering. Since it has been argued that the right to practice euthanasia is founded on the concept of the right to die with dignity; and euthanasia implies an act of putting an end to one’s life by a subjective and relative decision.
Contrary to the above idea, human dignity should serve as a guarantee against abuse and arbitrary decisions. The right to die with dignity ought to include the right to information, the right to medical consultations, the right to benefit from the latest medical techniques available and the right to refuse disproportionate treatment during the final stage.
In a research on lawyers’ opinion regarding this issue41, most of them agreed that
1. The applicable Thai laws on euthanasia are not sufficient, and the laws should be amended towards the acceptance of euthanasia.
2. Euthanasia carried out by doctor with the patient’s consent or even with the relative’s should be authorized under very strict conditions. However, the patient’s life should not be ended directly by medical prescription or any other means.
3. More rules and regulations on this matter should be adopted to control the transparency of such a practice.
4. An agency should be set up to monitor whether euthanasia is in compliance with the laws.
Moreover, according to a research,42 the attitude of Thai people regarding euthanasia is as follows:
1. Laypersons tend to support active euthanasia and active non-voluntary euthanasia more than physicians do.
2. Physicians who give medical opinions offhandedly without thinking of legal implications and medical ethics tend to support active voluntary euthanasia more than physicians who express their opinions while worrying about the legality and ethics of an act. In either case, physicians’ support of active non-voluntary euthanasia is significantly less than that of laypersons.
3. For physicians and laypersons alike, age is not a determining factor affecting their views on euthanasia.
4. Difference in income and educational background contribute to differing views on active non-voluntary euthanasia.
5. The majority of people believe that medical and nursing organizations should be responsible for euthanasia, that a doctor is competent to judge whether a patient’s case is hopeless or not, that the patient and the doctor should have joint decision in permitting euthanasia, and that an advance directive should be accepted by the doctor as constituting a patient’s written decision.
The findings of these researches show that euthanasia has been accepted to a certain extent. No one refuses it outright. As the current law still doesn’t recognize it, doctors who practice it will be charged with murder offence and the punishment is very high. New legislations on euthanasia are therefore needed in order that both doctors and patients would have a regulation on how to proceed, as well as a legal security.
VI. TOWARD A LEGAL RECOGNITION OF EUTHANASIA
In July 1997, when a report of the Committee on Women, Youth and Elderly Affairs of the Senate was submitted, a proposal was made that Thailand should have a law on euthanasia by giving a person the right to refuse medical treatment. This can be done by expressing his will in writing while he is fully conscious or by the decision of doctor and his family. Therefore, a careful and detailed proposal of such law, as well as a thorough study exploring social acceptance, was thought necessary.43 As a result, the Health System Reform Office took charge and proposed the first draft of Nation Health Act which contained a section on the issue. After a long discussion among concerning parties, the Government’s cabinet submitted the draft to Parliament in November 2005.
Section 10 of National Health Act provides that:
“A person has the right to make a written advance directive expressing his refusal to health care service that aims only to prolong his death (sic) at the end of his life or to terminate the suffering from the disease.
The compliance of the advance directive referred to in the first paragraph shall be in line with rules and procedures set forth in the ministerial regulation.
Medical professionals have the duty to act according to advance directive referred to in the first paragraph; and the execution in compliance to the advance directive shall not be considered illegal and shall be exempt from any liability”.
It is clear that this is first time that Thai legislation pays official attention to the question of euthanasia. Broadly, the draft aims to maintain punishment for active and non-voluntary euthanasia. This draft, based on the concept of the patient’s consent to treatment, remains very general and vague in term of legal obligation, and the wordings used can lead to confusion. Here are a few remarks on this proposed draft.
-Types of euthanasia
What is most apparent is that the word “euthanasia” has not been used in the draft. The sense one gets from reading the draft is that it doesn’t cover all types of euthanasia but only passive voluntary euthanasia. By using the phrase “…refuse to health care service that aims only to prolong his death at the end of his life or to terminate the suffering from the disease,” the draft aims to legalize only passive voluntary euthanasia. This idea is based on the fact that, by virtue of the right to medical treatment, the patient is also entitled to the right to refuse medical treatment, alternatives of which derive from the principle of consent to treatment, as provided in the Medical Council’s Regulation on Deontology of Medical Practice (1983). Cases not covered by the draft--namely voluntary or non voluntary active euthanasia and non voluntary passive euthanasia--are still regulated under existing laws.
Even though the draft deals exclusively with passive voluntary euthanasia, it does not address the case of incapacitated adults and infants. This silence could be interpreted that the draft maintains the principle that no one other than a doctor is entitled to make a clinical decision. The patient’s relatives should be kept informed only of the patient’s health, as their role is not to make a decision on behalf of the patient, although the reality of the situation often proves otherwise.
The draft also fails to mention an important question concerning the role of the court in the case of patients who remain in a persistent vegetative state. Under the current Thai law, the doctor cannot legally withdraw life-sustaining treatment and care even with the request of the relative. In such a case, the patient’s relative or the doctor has no legal possibility to ask the court to authorize prior to the withdrawal of treatment. Unfortunately, the draft fails to offer the possibility to let the court decide on this matter, as some countries do.
-Decision making on euthanasia
The draft stipulates that “the compliance of the advance directive referred to in the first paragraph shall be in line with rules and procedures set forth in the ministerial regulation”. Once again, it is surprising that such an important substance is not mentioned in the main text itself but relegated to a subordinate law. In deciding to administer euthanasia, the doctor is required to follow strict criteria set forth by law. The doctor’s conduct will be considered criminal or not depends on whether it complies with the law. However, the law does not define what the criteria are but relegates their description to a ministerial regulation which is just a subordinate law. In principle, an act constitutes a criminal offence only when it is so defined by law which identifies the elements of crime, and such law must be adopted by the legislative organ. By the same token, exceptions to an offence, along with its decriminalization elements, must be adopted in the form of law of the same hierarchy. As a consequence, the elements of decriminalization should by all means be stipulated in an Act, not in a subordinate law. Notwithstanding where the criteria should appear, it is important that the criteria should include the proof of an irreversible condition of patient, as well as second opinions of independent doctors.
-Recognition of advance directive
The advance directive is a written document by which a person expresses his wish concerning the medical treatment at the end of his life.44 The draft proposes that “a person has the right to make a written advance directive”. This is the first time that this concept is introduced in the Thai legislation. The draft uses the expression “medical professional has the duty to act according to advance directive”. With regard to the question of legal force, the draft uses the expression: “Medical professional has the duty to act according to advance directive”. It seems that the draft grants a very strong legal force to the advance directive, which is quite a dangerous foregone conclusion because the patient’s instructions can change according to his state of health. It seems excessive and dangerous to consider advance directive as a fixed and immutable expression of will, for which a doctor simply has the duty to respect in all circumstances. In principle, the doctor’s duty should be to take into account the advance directive and evaluate it together with other considerations for the best interests of the patient.
Moreover, the draft does not specify anything about the legal regime which sets out the conditions for the validity of the advance directive. It is a surprise that such an important element is left out of the draft. In order for the advance directive to be valid, the following elements should be considered. What should be the minimum age of the person who makes the advance directive? What are the requisites for the person to be competent enough to make the advance directive? Should there be a witness? How long should the advance directive stay valid? What should be the conditions for the revocation of the advance directive?
- Palliative cares: an alternative to euthanasia?
The above comments do not pretend to be exhaustive. Nevertheless, one could sense that this draft represents an important development which seeks to further guarantee the rights of patient in the legal and medical circles. Yet, it would be a serious error simply to concentrate on the question of recognizing voluntary euthanasia as an expression of the right to self-determination of patients who are struggling with his life. There are, in fact, other considerations relating to the respect of the rights of a dying patient which deserve as much, if not more, attention, from the legal and medical professions to ensure that the dying patient would receive the best possible care in a peaceful environment inside or outside the hospital. The main objective of such a method, known as palliative cares, will alleviate the suffering of the dying patient and allow the natural process of life to unfold under the best possible conditions, as much for the patient as for his family and the healthcare system. Therefore, palliative cares not only relieve the pain caused by the disease but also the discomfort and unpleasant environment associated with hospitalization. Another advantage of caring for a dying patient at home is that food and medical care would be adapted to his basic need, thus avoiding unnecessary medical equipment and procedures. Most of all, at a time when the dying patient needs quality attention and care, the close proximity of family members will bring the much-needed moral support. In many countries, the method of palliative cares is gaining popularity and is even legally recognized as an alternative to hospital care. The reasons for legal recognition of such an alternative have to do mainly with the status and rights and duties of the family member who may choose to take a temporary leave from his employer to take care of the dying patient as well as the financial support and benefits that the state would provide in such a case.
In the case of Thailand, some hospitals have already taken the initiative to encourage palliative cares even though the draft National Healthcare Act proposed by the Health System Reform Office never mentions palliative cares. As this alternative has proven to be quite promising, the legislative organ should attempt to incorporate this practice in the draft in order to provide a better guarantee of rights for the dying patient.
The question about the right of a sick person to end his life, particularly in cases whereby the patient falls into a state of irreversible coma or has long suffered from an incurable disease, is a controversial issue. Under the Thai law, euthanasia is illegal in almost all circumstances. It is a murder under the criminal law and a tort under the civil law. Yet, it is known that passive euthanasia is clandestinely practiced in Thailand.
Even though the current Thai law and Buddhism still prohibit euthanasia, there is a growing call, by virtue of the patient’s rights to self-determination, from the legal and medical professionals as well as from the dying patients and families to legalize this practice to a certain extent. A proposed law which seeks to legalize passive voluntary euthanasia has, however, raised many questions and doubts concerning the conditions of its implementation.
The fact that society is growing more tolerant toward certain types of euthanasia implies that dying may be preferred to living without quality of life. However, it does not mean that euthanasia is the only viable option of last resort. In fact, a gentler alternative, namely palliative cares which respect the dignity of the dying patient may prove to be a preferable option of the future. The official recognition and the adoption of legal framework for the palliative care system is, therefore, a great challenge for the new health care system and the respect of dying person’s dignity in Thai law.