On euthanasia: Does the right to life include a concomitant right to die?

By: Ujunwa Umeokeke, alumnus of University of Ibadan


Introduction:

As a result of advances and development in modern medicine, possibility arises which once was never considered of sustaining the life of a person far beyond the point which death would normally have occurred. A problem however arises in that same sphere where it is considered a burden to continue in any way to sustain the life of a person who as a result of severe pain or a combination of other factors is considered to be better off dead. At this point, a decision has to be taken as to whether or not a person would be allowed to live in extreme pain or whether mercy killing should be administered as a form of reprieve from the world of pain

This borders on the question, does a right to life include within it a concomitant right to be put to death? Should an individual have the sole right to determine free from any state interference in the extreme of circumstances to terminate his own life with the aim of easing the burden he poses to his dependants or easing the pain which his life in an entirety has become?

 

Right to Life:

Every human being as a general rule has a right to life and a number of international human rights instruments assert the existence of this right. These instruments include the 1948 Universal Declaration of Human Rights, the 1945 United Nations Charter, European Convention for the Protection of Human Rights and Fundamental Freedom 1950, American Convention on Human Rights 1969 as well as the African Charter on Human and People’s Rights 1981 which prohibit explicitly and implicitly, the unlawful taking of life of another and generally stand for the protection of life.

In Nigeria, the right to life is a sacrosanct provision and a very fundamental human right as it forms the basis for the existence of all other rights vested on an individual. The right to association, right to education, right to peaceful assembly and all other rights which are contained in the provisions of chapter four of the Nigerian constitution ceases to exist without the presence of a right to life. The life of an individual is sacrosanct and incapable of being taken by anyone except in accordance with the provisions of the law.

Section 33(1) of the 1999 Constitution of Nigeria, provides for the right to life. It states that no one shall be deprived intentionally of his life save in the execution of the sentence of a court in respect of a criminal offence of which he has been found guilty of. Therefore, the right of a person must be absolutely protected unless the decision to deprive him of his life is as a result of the judgement of the court based on an offence he is found to be guilty of.

Yet, there are times when as a result of a medical condition or disease, the existence of a person becomes so riddled with pain and unbearable difficulty that death seems and is the only reprieve. The question in this regard thus becomes, does the right to life include the right to die? Should the individual’s decision to die in this instance be exempt and protected from state intrusion? This is one of the biggest controversies of the right to life which is known as “Euthanasia” interpreted as “good death” or mercy killing. Many countries of the world have grappled with the dilemma and controversy surrounding this concept as well as debates for and against its existence.

In the case of R v Johnson,[1] Judge Slade stated,

“I accept that what you did was done out of human compassion but what you did was after considerable premeditation and you acted knowing you were breaking the law, thus I cannot pass over a matter of that gravity, lest others might be tempted to think they can deal in that same way”.

Euthanasia is a form of assisted suicide where a person who is terminally or gravely ill elects to die after all medical intervention has proven unsuccessful. In this instance, the life of such a person is taken if it is believed he is in more pain alive than dead. According to Blacks’ Law Dictionary, Euthanasia also referred to as Mercy killing is: “the act or practice of causing or hastening the death of a person who suffers from an incurable or terminal disease or condition especially a painful one for reasons of mercy.

It is derived etymologically from two Greek words, ‘Euthukos’ which means ‘good’ and ‘thanatos’ meaning ‘death’ which literally means good death or mercy killing. According to Manson and McCall Smith,[2] euthanasia is a quiet, painless death, an intentional putting to death by artificial means of persons with incurable or painful disease. It implies an intentional termination of life by another at the explicit request of the person who wishes to die.

Euthanasia generally involves three major parties namely; the dying patient, the family of the dying patient and the physician or doctor who may in some instance be given permission by the dying patient to carry out the act. The dying patient may as a result of extreme distress voluntarily request either a family member or physician to terminate his life for him. Euthanasia generally, requires a form of intervention by a third party to end the life of the dying patient. The patient usually plays a very important role in any case of euthanasia as the debate on the issue usually arises from the perspective of the patient. The debate on euthanasia is the determination of whether a person’s decision to terminate his or her own life surpasses or trumps his or her right to live on.[3]

 

Types and Classifications of Euthanasia

According to Omipidan, euthanasia can be categorized under six headings. They include: passive euthanasia; active euthanasia; physician-assisted suicide; voluntary euthanasia; involuntary euthanasia; and non-voluntary euthanasia.

  1. Passive Euthanasia simply involves the hastening of the death of a particular person by altering some form of the person’s support and letting nature take its course.
  2. Active Euthanasia involves the causing of death of a person through direct action in response to the request of the person for death. The difference being that in active euthanasia there is an action on the part of the doctor or the person entrusted with bringing about that death whereas in passive euthanasia there is no direct action.
  3. Physician-assisted suicide is a blend of both active and passive euthanasia as the physician in this instance, supplies the necessary information or means of committing the suicide. In People v Kevorkian,[4] Dr Kevorkian, a retired pathologist from Michigan set up a machine that allowed a 54 year old woman suffering from Alzheimer’s disease (a degenerative neurological condition) to press a button that allowed lethal poison to be delivered into her veins. Dr Kevorkian was charged with murder but was not initially found guilty. It was however later held that there is no constitutional right to commit suicide, with or without any form of assistance and his further appeal to the Supreme Court was refused.
  4. Voluntary Euthanasia arises where a person requests a doctor or a family member to put an end to his or her life. The patient might also have given this consent in the form of an advance directive before he or she becomes incapacitated as a result of the sickness. In the case of the case of Tony Nicklinson, a stroke in 2005 left Mr. Tony Nicklinson with ‘locked-in syndrome’ i.e. mentally sound but paralyzed from the neck down and incapable of speaking. He requested to be euthanized but was unsuccessful. As British law stands, any doctor who carried out her request might find themselves facing a charge of murder. Consequently, Tony Nicklinson instituted an action in a London High Court urging the judges to rule that if and when he decides to die, a doctor will be immune from prosecution if they help him. At the hearing, Nicklinson who communicates by blinking or with limited head movement described his existence as dull, miserable, demeaning, undignified and intolerable and not worth living. He further bemoaned his present state of having no privacy or dignity left and having his right to choose life or death taken away. His application for euthanasia or assisted suicide was refused by the High Court. Nicklinson died 6 days thereafter from starvation and pneumonia, after having refused food following the ruling. British police, rather significantly, declined conducting investigation into the circumstances of his death.
  5. Involuntary Euthanasia describes the killing of a person who has not explicitly requested any form of aid in dying. According to Robin, involuntary euthanasia is a situation where medications or other interventions is intentionally administered to cause the death of the patient when the patient was competent but without his/her explicit request or informed consent.

 

Consent as a Defence to a Case of Euthanasia

Under most penal systems all over the world, a person who kills another is liable for the offence of murder and the fact that the deceased gave consent is no justification or excuse for that crime. The idea behind Euthanasia especially voluntary euthanasia is that the dying patient gives permission for his or her life to be extinguished. However, does that consent serve as a reasonable justification for the murder committed?

The issue of consent plays a very vital role in criminal law as in some cases it serves as a suitable justification for the crime committed. Consent has not been accepted as a defence in all cases of criminal law but unlike cases of stealing and rape where consent is capable of serving as a defence for the crime committed, the defence of consent has not been accepted in euthanasia cases. In the case of Commonwealth v Mink,[5] the Supreme Court of Massachusett per Judge C. Gray held that

“the life of every individual human being is under the protection of the law and cannot be lawfully taken by himself or another with his consent except by legal authority”.

The right to life of an individual is so sacrosanct and protected by law that it cannot be terminated at law with or without consent. Therefore under the existing laws of crime, consent is not a justification for the taking of life of another and as such, consent is no defence to euthanasia. Where a person causes the death of another even with permission, such person will be liable to a charge of murder. In the case of State v Okezie,[6] the accused, a native doctor, prepared some charms for the deceased. The deceased then invited the accused to test the charm on him by firing a shot at him. The accused shot him in the chest and killed him. He was convicted of murder.

 

Euthanasia or Mercy Killing: The Nigerian Position

The penal laws in Nigeria are generally governed by the statutes. This comprises of the Penal Code applicable in the Northern Nigeria as well as the Criminal Code applicable in Southern Nigeria. Under those laws, there is no mention of euthanasia or mercy killing. Euthanasia has no place in Nigerian laws and it is considered illegal.

The killing of another person amounts to a crime and the degree of the offence as either murder or manslaughter is dependent on the intent with which it is carried out. There is no distinction in the penal laws of Nigeria between a killing that is carried out by the assistance of a third party with the consent of the deceased and any other kind of killing with the effect that euthanasia in any of its forms is regarded as murder. Section 326(3) of Criminal Code Act provides that ‘any person who aids another in killing himself is guilty of a felony and is liable to imprisonment for life’. Consent has no role to play in this instance.

There is no legal framework put in place in Nigeria to address the fact that some people might in the extreme of circumstances such as terminal illness or incurable diseases choose death over life, that they might decide to sacrifice their right to life at the altar of practicality.

 

Conclusion:

The right to life is regarded as sacrosanct in Nigeria with the effect that there is no concomitant right embedded within to die. Thus as established by the above, where a person consents to the taking of his life by another, such an action amounts to a crime. Euthanasia is illegal in Nigeria and it is no justification that consent is granted.

 

References

  • Bamgbose .O. 2004. Euthanasia: Another Face of Murder. International Journal of Offender Therapy and Comparative Criminology. 48(1) 111-121.
  • Obi M.C. 2014. A critical appraisal of Euthanasia under Nigerian
  • Omipidan B.A. 2011. Euthanasia: The 21st Century Culture of Death. Nigerian Bar Journal. Vol 7, No 1. p 213.
  • Oniha E and Oniha O.S. Euthanasia and Assisted suicide as basic constitutional rights under the 1999 Constitution of Nigeria.

 


[1] (1961). 1 Medical Science Law 192

[2] Manson J.K and McCall Smith, R. A. 1991. Law and Medical Ethics. Butterworths, London. 319

[3] Bamgbose .O. 2004. Euthanasia: Another Face of Murder. International Journal of Offender Therapy and Comparative Criminology. 48(1) 111-121.

[4] 447 mich 436, N.W.2d 714

[5] 123 Mas 422 (1877)

[6] (1972), 2 E.C.S.L.R. 419

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