Inconstitucionalidade da criminalização do médico pela prática de eutanásia / Unconstitutionality of criminalizing physicians for the practice of euthanasia / Inconstitucionalidad de la criminalización del médico por la práctica de la eutanasia

Resumo Este estudo objetivou evidenciar a inconstitucionalidade da aplicação dos arts. 121 e 122 do Código Penal brasileiro à prática de eutanásia. Para isso, realizou-se análise crítica desses artigos, considerando os fundamentos constitucionais e casos de paciente com doença grave e incurável acometido por sofrimento insuportável. Serviram de base a Constituição Federal brasileira, a doutrina do direito constitucional e a Ação Direta de Inconstitucionalidade 3.510-DF/2008. Após a análise, verificou-se a incompatibilidade dos referidos artigos com a moldura constitucional, concluindo-se que a aplicação desses dispositivos legais à prática de eutanásia usurpa a autonomia do cidadão para proteger apenas uma dimensão da vida, às custas da violação de direitos fundamentais: dignidade da pessoa humana, liberdade, inviolabilidade da vida privada e não ser submetido a tortura nem a tratamento desumano ou degradante.

Abstract This study aimed to show the unconstitutionality of applying arts. 121 and 122 of the Brazilian Penal Code to the practice of euthanasia. To this end, we carried out a critical analysis of these articles, considering the constitutional foundations and cases of patients with severe and incurable diseases affected by unbearable suffering. It was based on the Brazilian Federal Constitution, the doctrine of constitutional law, and the Direct Action for the Declaration of Unconstitutionality 3,510-DF/2008. After the analysis, we found incompatibility of these articles with the constitutional framework, concluding that the application of these legal provisions to the practice of euthanasia usurps citizen autonomy to protect only one dimension of life, at the expense of violating fundamental rights: dignity of the human person, freedom, inviolability of private life, and not being subjected to torture or inhuman or degrading treatment.

Resumen Este estudio tuvo como objetivo poner de manifiesto la inconstitucionalidad de la aplicación de los artículos 121 y 122 del Código Penal brasileño a la práctica de eutanasia. Para ello, se llevó a cabo un análisis crítico de estos artículos, teniendo en cuenta los fundamentos constitucionales y casos de paciente con enfermedad grave e incurable que padecen un sufrimiento insoportable. Se utilizaron como base la Constitución Federal brasileña, la doctrina del derecho constitucional y la Acción Directa de Inconstitucionalidad 3.510-DF/2008. Tras el análisis, se comprobó la incompatibilidad de dichos artículos con el marco constitucional y se llegó a la conclusión de que la aplicación de estas disposiciones legales a la práctica de eutanasia usurpa la autonomía del ciudadano para proteger una sola dimensión de la vida, a expensas de la violación de derechos fundamentales: la dignidad de la persona humana, la libertad, la inviolabilidad de la vida privada y el derecho a no ser sometido a tortura ni a trato inhumano o degradante.

Institutional Objection to Voluntary Assisted Dying in Victoria, Australia: An Analysis of Publicly Available Policies.

BACKGROUND: Victoria was the first Australian state to legalize voluntary assisted dying (elsewhere known as physician-assisted suicide and euthanasia). Some institutions indicated they would not participate in voluntary assisted dying. The Victorian government issued policy approaches for institutions to consider OBJECTIVE: To describe and analyse publicly available policy documents articulating an institutional objection to voluntary assisted dying in Victoria. METHODS: Policies were identified using a range of strategies, and those disclosing and discussing the nature of an institutional objection were thematically analysed using the framework method. RESULTS: The study identified fifteen policies from nine policymakers and developed four themes: (1) extent of refusal to participate in VAD, (2) justification for refusal to provide VAD, (3) responding to requests for VAD, and (4) appeals to state-sanctioned regulatory mechanisms. While institutional objections were stated clearly, there was very little practical detail in most documents to enable patients to effectively navigate objections in practice. CONCLUSION: This study demonstrates that despite having clear governance pathways developed by centralized bodies (namely, the Victorian government and Catholic Health Australia), many institutions' public-facing policies do not reflect this guidance. Since VAD is contentious, laws governing institutional objection could provide greater clarity and regulatory force than policies alone to better balance the interests of patients and non-participating institutions.

Medical Assistance in Dying, Palliative Care, Safety, and Structural Vulnerability.

As more jurisdictions consider legalizing medical assistance in dying or assisted death (AD), there is an ongoing debate about whether AD is driven by socioeconomic deprivation or inadequate supportive services. Attention has shifted away from population studies that refute this narrative, and focused on individual cases reported in the media that would appear to support these concerns. In this editorial, the authors address these concerns using recent experience in Canada, and argue that even if we accept these stories at face value, the logical policy response would be to address the root causes of structural vulnerability rather than attempt to restrict access to AD. In terms of concerns about safety, the authors go on to point out the parallels between media reports about the misuse of AD and reports of wrongful deaths due to the misuse of palliative care (PC) in jurisdictions where AD was not legal. Ultimately, we cannot justify having a different response to these reports when they apply to AD instead of PC, and nobody has argued that PC should be criminalized in response to such reports. If we are skeptical of the oversight mechanisms used for AD in Canada, we must be equally skeptical of the oversight mechanisms used for end-of-life care in every jurisdiction where AD is not legal, and ask whether prohibiting AD protects the lives of the vulnerable any better than legalization of AD with safeguards.

Access to voluntary assisted dying in Victoria: a qualitative study of family caregivers' perceptions of barriers and facilitators.

OBJECTIVES: To investigate barriers to and facilitators of access to voluntary assisted dying in Victoria under the Voluntary Assisted Dying Act 2017 (Vic). DESIGN, SETTING, PARTICIPANTS: Qualitative study; semi-structured interviews with people who had applied for voluntary assisted dying or their family caregivers, recruited via social media and interested advocacy groups; interviews conducted 17 August - 26 November 2021. MAIN OUTCOME MEASURES: Barriers to and facilitators of access to voluntary assisted dying. RESULTS: We interviewed 33 participants about 28 people who had applied for voluntary assisted dying; all but one of the interviews were with family caregivers after their relatives' deaths, and all but three were conducted via Zoom. The major barriers to access identified by participants were finding trained and willing doctors to assess eligibility for voluntary assisted dying; the time required for the application process (especially given how ill the applicants were); the prohibition of telehealth consultations; institutional objections to voluntary assisted dying; and the prohibition of health practitioners raising voluntary assisted dying with their patients. The major facilitators mentioned were care navigators (both the Statewide service and local navigators); finding a supportive coordinating practitioner; the Statewide Pharmacy Service; and system flow once the process had been initiated (although not during the early days of voluntary assisted dying in Victoria). Access was particularly difficult for people in regional areas or with neurodegenerative conditions. CONCLUSIONS: Access to voluntary assisted dying has improved in Victoria, and people generally felt supported while navigating the application process once they found a coordinating practitioner or a navigator. But this step, and other barriers, often still made patient access difficult. Adequate support for doctors, navigators and other facilitators of access is vital for the effective functioning of the overall process.

Moral uncertainty and distress about voluntary assisted dying prior to legalisation and the implications for post-legalisation practice: a qualitative study of palliative and hospice care providers in Queensland, Australia.

OBJECTIVES: There is little research on moral uncertainties and distress of palliative and hospice care providers (PHCPs) working in jurisdictions anticipating legalising voluntary assisted dying (VAD). This study examines the perception and anticipated concerns of PHCPs in providing VAD in the State of Queensland, Australia prior to legalisation of the practice in 2021. The findings help inform strategies to facilitate training and support the health and well-being of healthcare workers involved in VAD. DESIGN: The study used a qualitative approach to examine and analyse the perception and anticipated concerns of PHCPs regarding challenges of providing assisted dying in Queensland. Fourteen PHCPs were recruited using a purposive sampling strategy to obtain a broad representation of perspectives including work roles, geographical locations and workplace characteristics. Data were collected via one in-depth interview per participant. The transcripts were coded for patterns and themes using an inductive analysis approach following the tradition of Grounded Theory. SETTING: The study was conducted in hospital, hospice, community and residential aged care settings in Queensland, Australia. These included public and private facilities, secular and faith-based facilities, and regional/rural and urban facilities. PARTICIPANTS: Interviews were conducted with fourteen PHCPs: 10 nurses and 4 physicians; 11 female and 3 male. The median number of years of palliative care practice was 17, ranging from 2 to 36 years. For inclusion, participants had to be practising palliative and hospice care providers. RESULTS: PHCPs are divided on whether VAD should be considered part of palliative care. Expectations of moral distress and uncertainty about practising VAD were identified in five areas: handling requests, assessing patient capacity, arranging patient transfers and logistical issues, managing unsuccessful attempts, and dealing with team conflicts and stigma. CONCLUSIONS: The possibility of having to practise VAD causes moral distress and uncertainty for some PHCPs. Procedural clarity can address some uncertainties; moral and psychological distress, however, remains a source of tension that needs support to ensure ongoing care of both patients and PHCPs. The introduction of VAD post-legalisation may present an occasion for further moral education and development of PHCPs.

[Suicidality in older adults]. / Suizidalität im Alter.

Older people have the highest suicide risk compared to all other age groups. Expressions of no longer wanting to live are also found in a large number of older people. The reasons are usually multifactorial and sometimes go back a long way in the personal biography. Limitations resulting from physical illness, mental disorders and social problems make an important contribution. Doctors are often the contact person, even though many older people avoid direct communication in this respect. It is important to perceive and actively address indirect notes, because suicidality is also changeable in very old age. Suicide prevention includes the multimodal treatment of the physical and mental illness, including the (re)activation of resources; however, it also begins in advance, when differentiated images of old age are communicated at the societal level, social participation of older people is practised and the quality of life is maintained until the end.

Pendiente resbaladiza de la muerte asistida en los Países Bajos, Bélgica y Colombia / An analysis of the "slippery slope" of assisted death

The study analyzes the phenomenon of the "slippery slope" of assisted death in The Netherlands, Belgium, and Colombia after the depenalization or legalization of this practice. Data analysis was performed reviewing the evidence published in scientific journals and in the governments' official reports. We verified a progressive broadening of the limits initially established by the law for the practice of assisted death in these three countries. This confirms the occurrence of the "slippery slope". Also, the exponential increase in the number of assisted deaths in these three countries after the legalization indirectly suggests the presence of the "slippery slope". An analysis of the anthropological and ethical implications of assisted death highlights that its moral assessment should not be exclusively based on consequentialist arguments. Also, a prudential interpretation of the slippery slope argument in the legal debate about assisted death should be incorporated. We conclude that the moral evaluation of assisted death cannot be exclusively grounded on its negative social consequences, but rather on the lack of respect for basic human values such as life and the intrinsic dignity of a person. The verification of the "slippery slope" in these three countries should be regarded as an alarm for an eventual legalization of euthanasia in Chile.

The Judgment of the German Federal Constitutional Court regarding assisted suicide: a template for pluralistic states?

The article presents the judgment of the German Federal Constitutional Court from 26 February 2020 on assisted suicide. The statements regarding human dignity, human rights and the relationship between citizens and the state are examined. Furthermore, the consequences resulting from this interpretation of human dignity for states that are pluralistic and based on human rights will be laid out. The court's judgment limits the power of parliaments and poses a challenge to many laws in states that see themselves as pluralistic, human rights-based states.

Spiritual Beliefs and Hastened Death: A Study on Medical Students.

This study focuses on the impact of common spiritual beliefs regarding metaphysical questions in agreeability with the practice of hastened death. A sample of 497 Portuguese medical students was collected. Differences between genders and religions, predictors for agreeability with hastened death and the association between spiritual beliefs and opinion towards hastened death cases were assessed. Respondents were mostly favourable to the practice of hastened death. Formal religious affiliation and higher levels of religiosity significantly associated with lesser agreeability with hastened death. Statistically significant association was found between every hastened death scenario and multiple of the spiritual beliefs used. A number of spiritual beliefs were predictors of agreeability. We discuss the implications of religion and spirituality in agreeability with hastened death. Further research is required to better understand the true weight of spirituality in one's opinion towards this ethical dilemma.

Euthanasia and organ donation still firmly connected: reply to Bollen et al.

Bollen et al, replying to my own article, describe, in great detail, administrative and logistical aspects of euthanasia approval and organ donation in the Netherlands. They seem to believe that no useful lessons can be drawn from experiences of related groups such as euthanasia patients (typically patients with cancer) who cannot donate organs; patients who chose assisted suicide as opposed to euthanasia; patients in intensive care units and their relatives and suicidal young people as if we can only learn about organ donation in euthanasia patients by studying this exact group and no other, no matter how closely related and obviously relevant. However, it is not only permissible but also absolutely essential to gather evidence that goes beyond immediate point of interest and carefully study groups that share important features with it. Also, groups eligible for euthanasia are constantly expanding, theoretically, legally and practically, and it would be irresponsible to not foresee what are likely future developments. Finally, myopic focus on the technicalities of the procedure misses psychological reality that drives decisions and behaviours and which rarely mimics administrative timelines. Patients proceeding through euthanasia pipeline already face substantial situational pressure and adding organ donation on top of it can make the whole process work as a commitment device. By allowing euthanasia patients to donate their organs, we are giving them additional reason to end their lives, thus creating an unbreakable connection between the two.

Making a case for the inclusion of refractory and severe mental illness as a sole criterion for Canadians requesting medical assistance in dying (MAiD): a review.

BACKGROUND: Following several landmark rulings and increasing public support for physician-assisted death, in 2016, Canada became one of a handful of countries legalising medical assistance in dying (MAiD) with Bill C-14. However, the revised Bill C-7 proposes the specific exclusion of MAiD where a mental disorder is the sole underlying medical condition (MAiD MD-SUMC). AIM: This review explores how some persons with serious and persistent mental illness (SPMI) could meet sensible and just criteria for MAiD under the Canadian legislative framework. METHODS: We review the proposed Bill C-7 criteria (capacity, voluntariness, irremediability and suffering) as well as the nuances involved in separating a well-reasoned request for assisted suicide from what might be solely a manifestation of a SPMI. FINDINGS: In this paper, we argue against the absolute exclusion of patients with SPMIs from accessing MAiD. Instead, we propose that in some circumstances, MAiD MD-SUMC may be justifiable while remaining the last resort. Conducting MAiD eligibility assessments removes the need to introduce diagnosis-specific language into MAiD legislation. Competent psychiatric patients who request MAiD should not be treated any differently from other eligible candidates. Many individuals with psychiatric disorders will be incapable of consenting to MAiD. The only ethical option is to assess eligibility for MAiD on an individual basis and include as legitimate candidates those who suffer solely from psychiatric illness who have the decisional capacity to consent to MAiD.

How can we improve the experiences of patients and families who request medical assistance in dying? A multi-centre qualitative study.

BACKGROUND: Medical assistance in dying has been available in Canada for 5 years, but it is unclear which practices contribute to high-quality care. We aimed to describe patient and family perspectives of quality of care for medical assistance in dying. METHODS: We conducted a multi-centre, qualitative descriptive study, including face to face or virtual one-hour interviews using a semi-structured guide. We interviewed 21 english-speaking patients found eligible for medical assistance in dying and 17 family members at four sites in Canada, between November 2017 and September 2019. Interviews were de-identified, and analyzed in an iterative process of thematic analysis. RESULTS: We identified 18 themes. Sixteen themes were related to a single step in the process of medical assistance in dying (MAID requests, MAID assessments, preparation for dying, death and aftercare). Two themes (coordination and patient-centred care) were theme consistently across multiple steps in the MAID process. From these themes, alongside participant recommendations, we developed clinical practice suggestions which can guide care. CONCLUSIONS: Patients and families identified process-specific successes and challenges during the process of medical assistance in dying. Most importantly, they identified the need for care coordination and a patient-centred approach as central to high-quality care. More research is required to characterize which aspects of care most influence patient and family satisfaction.

Impacto social de la despenalización de la muerte médicamente asistida

The debate on legalization of physician-assisted death (PAD) has focused on its purely individual aspects, leaving aside equally relevant social dimensions such as a progressive expansion of PAD's causes, strains and changes in the doctor-patient relationship, and unreported PADs. The aim of this work was to explore these aspects through an analysis of the experience of Belgium and the Netherlands, countries where PAD is legal since 2002. The results, obtained through a systematic review of the literature, indicate that in both countries, the acceptance of the concept of "psychological suffering" allowed PAD to be performed in psychiatric patients, in persons with dementia and in older people with geriatric conditions. The acceptance to perform a PAD has a significant emotional burden for the physician who must assume the role of executor of the patient's will, which is aggravated by pressures from patients and their relatives. Moreover, more than 30% of PADs are not reported. All this information was obtained from physicians not willing to incriminate themselves, after the commission of the PADs, therefore hampering the monitoring of law abiding. These results reveal the existence of a social impact of PAD decriminalization that deserves greater consideration and further studies.

Eutanasia: aclarando conceptos / Clarifying concepts on euthanasia

Euthanasia is a subject of permanent discussion everywhere, mainly about its ethical appropriateness and about its legalization in different countries. This debate includes many ethical, legal, social, political, spiritual, religious, and public health issues. A relevant problem is the frequent misunderstanding that many have about the meaning of the terms and concepts used in different ethical and clinical end of life settings. Many views and even texts are affected by such mistakes, rendering a constructive discussion almost impossible. The goal of this article is to contribute to an improvement of the social and legislative discussion about euthanasia through an elucidation of the main terms and notions linked to this topic. We present definitions and explanations for euthanasia, assisted suicide, withdrawal or foregoing of therapy, treatment rejection, palliative sedation, dignified death and others.

¿Contradice la eutanasia o el suicidio asistido el ethos médico? Orientaciones para una ética médica moderna y pluralista / Is there a contradiction between medical ethos and euthanasia?

The practice of euthanasia in the medical context has a plurality of actors and interests, has ethical issues and the definition of "good death" is complicated. Therefore, it is necessary to be clear about the key concepts in the debate about this practice. But, above all we must ask ourselves to what extent euthanasia or assisted suicide contradicts the medical ethos in contemporary culture, aiming to evaluate the most acceptable medical and ethical options in our pluralistic societies. Only after such reflection and clarification, we will be able to understand the ethical conflicts of this practice and propose the appropriate ethical guidelines.