Deciphering Euthanasia by HAKITA

Authored by: Nurdiyana Farah Binti Roslan

Edited by: Aisha Husna binti Hapidra and Larissa Ann

One’s right to life is duly safeguarded in the Federal Constitution, in particular, Article 5 where it is said that no person shall be deprived of life or personal liberty so long as it is in accordance with the law.

Euthanasia is one of the treatments that make up a part of an end-of-life care, which falls within the ambit of palliative care. Palliative care, as defined by WHO, is a mechanism that offers a quality of life for patients that are facing life-threatening illnesses. Personnels providing palliative cares aim to prevent, diagnose, and treat the patients, reducing pains and symptoms, as well as giving advice in the decision-making of the patients and their families, especially when death is most likely imminent.

Euthanasia, which is literally defined as ‘mercy killing’, has been one of the treatment that many contemplated to resort to, but not without robust debate due to the nature of death being unnatural. In conjunction with this month’s ThuRights with HaKita, we were delighted to hear from two amazing speakers, namely, Mr. Jerald Joseph who was the Former Commissioner of SUHAKAM, and Mr. Prabu Manikam, a law lecturer from University of Reading Malaysia. Both speakers dived into Euthanasia in great detail and shared their constructive notions on the topic within the purview of the right to life and the right to euthanasia.

Attached below is the link for May’s THURights!

https://www.instagram.com/reel/CsYu8zUh9Ck/

A. Types of Euthanasia

1. Active Euthanasia

Active Euthanasia is where a medical practitioner, in the pursuit of treatment, takes measures to cause death to an ill patient. This could happen by providing them lethal drugs, and injunctions.

2. Passive Euthanasia

Passive Euthanasia is where a medical practitioner generally omits or withdraws a certain life-sustaining treatment or medication that would lead to the death of the patient.

3. Voluntary Euthanasia

Voluntary Euthanasia is where a patient provides consent for the Euthanasia to be administered upon them.

4. Involuntary Euthanasia

In contrast with voluntary Euthanasia, it is where a consent is derived by the guardians of the patient to administer Euthanasia upon them.

5. Physician-Assisted Euthanasia

Physician-Assisted Euthanasia is where physicians, or third-party prescribed the drugs to the patients at their request.

In addition to this, Mr. Prabu explained that active euthanasia fulfils the elements of murder under Section 300 of the Penal Code. This is because the medical practitioner is said to be actively committing an act of killing.

However, if euthanasia is administered with the consent of the patient, it would fall within the exception to Section 300. However, this exception would render the medical practitioner guilty of committing culpable homicide not amounting to murder. Attempting and abetting a suicide is still an offence too.

B. Why Euthanasia?

It is said that Euthanasia has its own potential, which is why people resort to them. They are said to be as follows:

a. Pain Relief

Euthanasia can help relieve individuals who are severely suffering.

b. Autonomy and Personal Choice

Euthanasia provides people with more control over the final decisions of their lives.

c. Frees up Medical Funds

Euthanasia can free up medical funds as well as machines to be used by patients in dire need, instead of being utilized by dead-end cases.

C. Why not Euthanasia?

There are various reasons why Euthanasia is thus far unfavorable by the public at large. This includes:

• Ethical issues

Religious opponents believe that life is given by God, and only God can decide to end it.

• Medical Errors and Misdiagnosis

During a 2005 study of terminal illnesses diagnosed by the Mayo Clinic, they found that only 1 in 5 patients received accurate life expectancy.

• Devaluation of Human Life

Widespread legalization of Euthanasia may undermine the belief that life is precious.

D. Position of Euthanasia in the Eyes of the World

Countries around the world place Euthanasia in varying legal positions, some had legalized it, and some had completely banned it.

Countries that are banning Euthanasia

• United Kingdom: codified Suicide Act 1961 that criminalized Euthanasia, as it and assisted suicide are criminal offences under this law. Assisting suicide by aiding or counselling someone to commit suicide is punishable by 14 years imprisonment.
• Hong Kong: Euthanasia is an unlawful act and is criminalized under Offenses Against Other Persons Ordinance (Cap. 212).
• Czech Republic: Euthanasia is a compassionate killing that is illegal in the Czech Republic, as said by the President of Czech Medical Chamber, Mr. Milan Kubek. Nonetheless, MP Pavel Ruzicka thinks that everyone should be able to decide whether to end their lives or continue suffering.

Countries that are legalizing Euthanasia

• Switzerland: Allows physician-assisted suicide without a minimum age requirement, diagnosis or symptoms, unless if the motivation is selfish.
• Netherlands: Allows euthanasia in situations where someone is experiencing unbearable sufferings and there is no chance of improving.
• Spain: Allows adults with serious and incurable diseases that cause unbearable sufferings to choose to end their lives. The requirements to administer such a decision is that the patient must be fully aware and conscious when the request is made.

E. The Legality of Euthanasia in Malaysia

The right to life is governed by Article 5 of the Federal Constitution. Mr. Prabu shared on various Indian cases that has been adopted by Malaysian Courts for construing the meaning of ‘life’. The Indian cases showed that the definition of life includes the ‘quality of life’, which if duly construed; would also be understood to include the right to die with dignity.

However, Article 5 explicitly mentioned ‘save in accordance with the law’ which means that in exercising the right to life, it must comply with the law. Hence, so long as the Parliamentary borne statutes continue to illegalize euthanasia, the legal status would remain the same until its amendment.

Notwithstanding this, Mr. Joseph elaborated that currently, passive euthanasia is allowed to be administered in special circumstances such as patients that are brain-dead or in a persistent vegetative state who show no signs of being cured.

Contemporaneously, Mr. Prabu explained that active euthanasia fulfils the elements of murder under Section 300 of the Penal Code (PC). This is because the medical practitioner is said to be actively committing an act of killing.

However, if euthanasia was administered with the consent of the patient, it would fall within the exception to Section 300 of PC. However, such an exception would render the medical practitioner guilty of committing culpable homicide not amounting to murder, even attempting and abetting a suicide is still considered an offence.

It is laid down in Exception 5 of Section 300 where culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years old, suffers death or takes the risk of death with his consent. A doctor who ends the life of a patient may fall within this ambit of exception, unless:

1. The consent was given by a person under a fear of injury, or under a misconception of fact, and if the person doing the act knows, or has a reason to believe, that the consent was given in consequence of such fear or misconception;
2. If the consent was given by a person who, from unsoundness of mind or intoxication, is unable to understand the nature or consequences of that to which he gives consent;
3. Unless the contrary appears from the context, if the consent is given by a person under twelve years of age.

Despite these, the doctor may not be absolved from the liability as a whole, but the sentence is up for a reduced or lighter one.

F. Legalizing Euthanasia in Malaysia

It can be seen herewith that the current position of euthanasia in Malaysia is still unclear. This controversial discussion becomes a root to a myriad of academic studies to arise, whether to recognize and legalize it, or in the contrary.

In answering this, Mr. Jerald’s standing was that other than the aforementioned state of illnesses, he believed that the government has the duty to protect people’s lives and to prevent a floodgate of loss of lives due to voluntary euthanasia. Hence, he believed that euthanasia should only be allowed when the best option to resort was to administer euthanasia.

Mr. Prabu also stood by the same opinion and added that there must be openness in Malaysians to discuss on Euthanasia before any decisions with regards to Euthanasia are reached. An openness to a discussion like this would open the gates to a settled policy that the entire country will be able to comply to, without uncertainty.

Therefore, there is a need for an open society to discuss matters encompassing Euthanasia, in order to allow policies that set up guidelines in administering it and limitations on it, if allowed, would become clearer, while safeguarding the rights to life in Malaysia.