Reflection On Legal and Political Deliberations regarding Human Life and Dignity after the 2020 Coronavirus Pandemic
dr. Andraž Teršek,
Professor of Constitutional Law
Faculty of Education, University of Primorska and European Faculty of Law, New University
In distanced year of 1999, on the 24th session of the Parliamentary Assembly of the Council of Europe was discussing on the “right to die” issue, as a potential fundamental human right implicitly determined by the ECHR. The result was clear: Convention does not guarantee such right. The issue of dignity of the life, life in and with dignity, especially in the connection with dying and death itself was also raised. The final conclusion was clear also: under the umbrella of the human right to life and liberty interest, protected with the Convention, there is positive obligation of each Counceil of Europe member State to secure an appropriate environment (nursing homes, hospitals, similar institutions, professional staff, funds, social contacts with the loved ones…) and quality care to alleviate the pain and the suffering terminally ill individuals; the so-called palliative care.
Only three years later, in 2002, the ECtHR passed its judgment in the case of Pretty v. The United Kingdom, not recognizing the “right to die” by a free will of the individual, or the “voluntarily euthanasia” and physician assisted suicide as a Conventional human right. The Court emphasized the member States must secure the proper systemic and institutionalized care of the terminally ill – in terms of palliative care. Also the s.c. “medical treatment with a double effect” was evaluated as legally unproblematic (to give the patient such a dose of a pain-relieving active substance so that death occurs quickly – such a procedure is considered to be primarily intended to relief the severe pain of a patient, while a faster death is – merely – a secondary effect). According to the Court, the Convention does not guarantee the right to voluntarily euthanasia or physician assisted suicide, but at the same time it doesn’t prohibit it, so the Member States may also recognize this right.
Still, a patient may refuse treatment or request its cessation. This is his fundamental human right. It is also the explicit constitutional right determined by the Article 51 of the Slovenian Constitution. The Slovenian Code of Medical Ethics and Deontology stipulates that a physician must reject and condemn euthanasia and considers it to be a “false humanism.” Slovenian Criminal Code prohibits the assistance to commit suicide, for which a sentence of up to three years in prison is threatened. But still, Criminal Court may take into account mitigating circumstances and impose a suspended sentence for such assistance.
Some medical and criminal law experts in Slovenia say that in practice, euthanasia and physician assistance in ending life of the terminally ill patient are matters of discreet decision between the physician, the patient and his closest relatives. Most lawyers seem to believe that this discretion should be maintained until the situation is “alarming.” (Note: three years ago there was a case about the alleged physician assisted suicide in Slovenia which raised a lot of controversy and sensationalism in the media. Physician was convicted at the Criminal Court of the 1st instance but his conviction was later repealed by the Higher Court.)
De facto “state of emergency” during the pandemic and its psychological consequences
During the officially proclaimed Coronavirus pandemic the questions regarding people’s health and human life were faced with a special, almost unprecedented challenges. In entire Europe. In Slovenia living conditions were, in some segments or points of view, as if it was the time of war. Constitutional rights and liberties were limited by government decree. Movement across the municipal borders was restricted. Or, to be more precise, any movement from one municipality to the other was prohibited in general, allowing only special and strictly checked (by the police, National Guard and municipal security guards operating on the field) exceptions; such as the need to go to work, necessary assistance provided to the members of the family, or elderly living in another municipality, necessary and emergency supplies shopping in neighbouring municipality if this was not possible in municipality where an individual had a permanent residence, or by similar reasons. Even though “the state of emergency” was not officially declared (the Constitution explicitly determines the conditions for such declaration) the concrete and exceptional circumstances of public life had an effect as if it has been declared. Slovenian citizens were living in de facto “state of emergency.” Slovenia was in quarantine.
People were scared, more and more each day. Understandable and as expected. Another problem was even more worrying: the hostile disposition towards each other was on the rise. People – some of them but still too many – almost became the police, the surveillance agents towards each other. With deeds, such as taking photographs and video recordings of their neighbours, acquaintances and strangers, presumably breaking the commandments not to stand too close to each other when having a conversation, not to cross the municipal borders on foot, on bikes and with cars, not to sit down on benches in parks … and sending the material to the police. Slovenia almost became a Police State: not because of the police (which did a good job during the pandemic), but because of the puritanical character of too many individuals.
By the date Slovenian Constitutional Court still didn’t decide on constitutionality of such government decree, after more than sixty initiatives for constitutional review of the decree were addressed to the Court.
Why I used the term “time of war”? Well, for most of the time politicians were addressing the public, not the doctors, other medical staff or medical scientists. The division of media space could be more balanced. In this way legitimate aims could still be sufficiently achieved, especially loosening public fear. Besides that, politicians were using words, such as “we are combating the Coronavirus.” I don’t consider this to be a big problem. I am only trying to offer some insight of what was happening. With best intentions and in good faith.
Politicians were addressing the public with pure statistical data: how many people have been tested for CIVID-19, how many of those were positive and how many people daily died from Coronavirus. No broader context was described, no information about their age, other and previous diseases, possible terminal illness… It worried me. From reasons which should be considered as legitimate and in good faith: this has even strengthened the fright, especially of the elderly. It is true: frightened people are more likely to obey the commands and instructions. Still, fear causes stress and stress weaken the immune system. And last, the declaration of the official end of pandemic was symbolically displayed with military airplanes flying over Ljubljana, the capital city of Slovenia. Slovenian public doesn’t have unified opinion on this. But the most important matter was the end of pandemic, undoubtedly.
Officially (according to the statistics provided by the Slovenian National Institute for Public Health) 108 people have died from Coronavirus in Slovenia. The vast majority of deaths included population of elderly over 85 y. o.: 61 people. Within the population of those between 75 and 84 y. o. there were 28 cases of death, between 65 and 74 y. o. the number is 15, with two cases of death between 55 and 64 y.o. and one death in the group of 45 to 54 y. o. More women then man died. The official number of people infected with the Coronavirus is – to the date – 1500. This includes 306 doctors or other medical staff, 323 care recipients living in nursing homes for elderly and 137 members of staff in those nursing homes. Conclusion: old people living in nursing homes for elderly (most of them with chronical diseases or other disabilities) were the most endangered population in Slovenia.
Publicly speaking psychiatrists and psychotherapists have already confirmed the mental health problem increased further during the pandemic and quarantine. Investigative journalists are trying to figure out how the nursing homes and special homes for elderly were operating during the pandemic and if there are any signs pointing to assisted suicides or involuntary withdrawal of medical care.
Discussions on matters of life, death and human dignity between the past and the future
There are many citizens, members of the academia, medical scientists and especially philosophers of ethics in Slovenia who not only think, but strongly support the idea of legalizing voluntary euthanasia and physician assisted suicide. In the past the question was publicly asked and repeated: are there persuasive reasons to once again rethink our position on the right to die and justify its recognition as a constitutional right – in cases of extreme suffering due to terminal illness?
Many well-founded reasons seem to argue in favour of a constitutional and medical re-evaluation of certain approaches to matters of life and death. Our concern with matters of quality life and dignified death should in fact imply the highest possible concern for effective, persuasive and responsible protection of the quality of life per se. This meaning, in constitutional terms, the strongest and the most effective protection of the right to human dignity, the dignity of each individual as-a-person. This issue seems to be an absolute, persuasive and coercive necessity in social and foundational constitutional democracy. This concern and responsibility must be strengthened. It was obvious before, it became obvious during the Coronavirus pandemic and it is becoming ever more obvious now, after the official end (let us hope not just the end of the first “wave”) of the pandemic in Slovenia.
The new reality for already problematic question of legalizing euthanasia
At the same time, there are several fair, reasonable and convincing arguments in favour of the view that the right to active voluntary euthanasia and physician assisted suicide should, at least in some cases, be legally allowed. In doing so, the society could (or would) necessarily, responsibly and persuasively show the respect for other fundamental human rights and important interests, such as (the most obvious) liberty interest and the right to the quality and effective protection of human dignity. For the life IN dignity. This is the most emphasized argument of the publicly most active supporters of legalizing voluntary euthanasia and physician assisted suicide in special cases of terminal illness.
But, before Slovenia (or even the global society and other EU member States) recognizes the right to voluntary euthanasia and physician assisted suicide by law, which I consider to be the legitimate proposal of the secondary importance, the goal with primary importance must be achieved: assuring and establishing much more efficient and quality systemic and institutional responsibility regarding the right to dignified life and human dignity as such. First, the quality, extensive enough and effective system of palliative care is needed (statistics and researches strongly support this claim). Second, the quality and effective systemic protection of mental health, of each individual and of the Nation as a whole, is needed. Third, the quality and effective system for preventing suicides is needed: in Slovenia, this must be especially emphasised, suicides are quite a problem, putting Slovenia near the top and in recent years even on the top of the list of European States with the highest rate of suicides per capita (Note: Slovenian public still awaits the information how many cases of committing suicide were there during pandemic).
The necessary priorities
Before this is done, that’s my strong claim, the proposal for legalizing voluntarily euthanasia and physician assisted suicide must step aside as the concern of secondary importance. There is an alternative that both aims are simultaneously being exercised. But more in theory, since this is most probably too unreal to expect – and to realize in practice.
So I claim: direct focus should be on fulfilling the primary goal: the effective protection of mental health, preventing suicide and assuring the quality palliative care. The latter being the positive obligation of the State even according to the (above mentioned) ECtHR case-law. I consider this to be the necessary and responsible task inside the frame of improving the system of public health in general, and improving the systemic care for terminally ill patients and for the elderly. This should be regarded as the political and legal necessity – in short term. Including (that is my strong belief) the effective systemic protection of children, especially terminally ill children and children with special needs – medical disabilities. It also includes the empowerment of their parents, guardians, educators and teachers with knowledge, sufficient funds for schools, clinics and nursing homes and providing employment possibilities: for professionals, specialised in this field and for people with medical disabilities.
I strongly consider all of the above to be a reasonable and necessary component of the positive obligations of the Social State. Before this task will be done convincingly, effectively and with the most quality, in the systemic and institutional manner, any real effort to defend the right to die as a human right (in the frame of ECHR), or as a part of EU law, or as the constitutional right (in any of the member States, including Slovenia), any attempt for serious and credible discussion on general “right to die” will seem more than just inappropriate.
Before the general public in Slovenia (and, after all, in all the EU member States) is acquainted with deep, precise and persuasive research and analysis how the hospitals, hospices, nursing homes and special homes for elderly were functioning during the pandemic, the continuation of reasonable public debate regarding the question, should the State legally allow the voluntary euthanasia and physician assisted suicide, has to be on hold. Especially in Slovenia: the public has already been informed, even alarmed, by public media about indications that many things presumably went quite wrong in this context. There is a lot of suspicion in the air at the moment regarding this issue. The representatives of the medical staff responded with objection, disappointment and in anger. So did the government. They oppose the substance and manner how the public media addressed this issue. They accuse the media for being partial, ignorant and sensationalist. And now the general public is legitimately concerned, questions have been asked and the public waits for detailed answers from the Government, ministers and other actors involved, especially form the doctors and nursing staff. We can assume the public debate on the issue will continue, heated and with inflamed passions.
These issues eclipse not only medical, legal, constitutional and philosophical aspects – they very much concern fundamental human relations, of which tolerance and trust are their most obvious and essential dimensions. The approach how to handle them will determine the future – especially the future of social constitutional democracy and Social State, with the right to life, health and human dignity in its core. This future is uncertain. Burning conflicts seem to be unavoidable.
Last but not least, fear must not become the new epidemic. After all, to be protected from fear by the State must be generally accepted as a human and constitutional right, implicitly outgoing at least from liberty interest and the right to the protection of human dignity. If there are too many of those who can’t find such right in the Constitution, or in the EU legal identity, maybe it should be explicitly written into the Constitution. We can’t be satisfied with ECtHR position that in general these questions of life and dignified death are in the discretion of the Counceil of Europe member States. On the other side the position of the ECtHR that palliative care is an essential element of the fundamental human rights to life, liberty and dignity must fully be executed with systemic legislation and in practice.