All you need to know about euthanasia

 Euthanasia refers to deliberately ending someone's life, usually to relieve suffering. 

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What you need to know:

  • Euthanasia refers to the painless killing of a patient, who is either in a vegetative state or going through a non-reversible disease.

On Tuesday we published the story of Joe Mudukiza - a man in his late twenties battling sickle cell disease. The excruciating pain he experiences on a regular basis has had a debilitating effect on his life, to the point where he has considered requesting assisted suicide to end his suffering. Joe is a father of six and the constant agony has made it difficult for him to lead a normal life and provide for his family.

After the article was published, many Kenyans expressed an interest in understanding the procedure and its legal status in Kenya.

Like Joe, many Kenyans are facing chronic illness and considering options that are unimaginable to most. This raises crucial questions about euthanasia, also known as assisted dying: what exactly is the practice? Where does it stand legally and ethically in Kenya, and which countries have legalised it? 

We spoke to Dennis M. Nkarichia, a constitutional lawyer specialising in medical law.

What is euthanasia?

That depends on the context in which it is used. At a basic level, euthanasia is any deliberate intervention in a person's medical trajectory to alleviate pain and must be provided by a licensed medical service provider. If not, it becomes murder or manslaughter. If the person carries it out on themselves, it would be classified as suicide. 

There are three types of assisted suicide. There's voluntary euthanasia, which is the deliberate ending of a person's life at their request and is legal in a growing number of countries. This happens when the patient is conscious and able to give informed consent to the medical procedure.

The second is involuntary euthanasia, which occurs when a patient is unable to give consent. In some jurisdictions it is permitted in certain circumstances, either in an active or passive form. You may have given someone a power of attorney and they can decide what's in your best interests because they know your social background, your religious background and your value system.

The third is involuntary euthanasia, which is carried out without the patient's consent or against his or her wishes. The most common form is capital punishment, where the state carries out the death sentence after convicting someone of a capital crime.

What is the difference between euthanasia and assisted dying?

The difference is legal. It is not the outcome, because the outcome is the same - the ending of human life. The difference lies in how consent is obtained (if any) and the circumstances in which the end of life is carried out.

What medical protocols are followed when euthanasia is carried out?

Medical protocols depend on the patient's medical condition and the laws of the country. If it is a voluntary decision, the first step is to assess the patient's mental state to ensure that the decision is in their best interests and that they understand the implications of the decision. The doctor then determines the appropriate prescription to be given to the patient to end their life. The patient then injects or ingests the medication and euthanasia is carried out.

In the US, some state laws allow involuntary euthanasia for comatose or medically assisted patients. In such cases, the first step is to determine the patient's ability to recover and the extent to which they will be able to regain a dominant percentage of their neurological and physical function. Once this has been determined, they will also consider whether the patient has what we call an Advanced Directive for Refusal of Treatment (ADRT). 

This means that if a patient has requested it in an emergency, the doctor will know that they've asked not to be resuscitated. Even countries that allow it have strict safeguards to prevent abuse. These safeguards, which often include multiple assessments and independent reviews, aim to ensure that patients make informed and voluntary decisions, free from coercion or undue influence.

Which countries allow assisted dying?

Belgium, Canada, the Netherlands, Spain, Switzerland and all Australian states. Some states in the USA allow physician-assisted suicide, in which the patient self-administer medication, but not active euthanasia. In Portugal and New Zealand, legislation has been passed but is awaiting regulation. No African country currently allows euthanasia.

Has there ever been an attempt to change the law in Kenya?

There hasn't been any substantive attempt to change the euthanasia laws in Kenya, and they are shaped by what I would call the country's Judeo-Christian religious background.

The current constitution has created a two-tier approach where the right to life is not absolute and secondly, if there's legislation that provides for the restriction of that right to life, then that legislation is permissible and constitutional.

It also goes on to provide for the medical exception for pregnant women, but in a specific situation where the life of the pregnant mother is in danger and a competent medical practitioner determines that it would be better to have an abortion to preserve the life of the mother. Then abortion is permitted. This is a form of permitted involuntary euthanasia for the foetus. However, many people regard life as sacrosanct and would not want to pursue euthanasia because of the slippery slope argument.

What are the main arguments used in the debate against physician-assisted dying?

The first thing we have to remember is that in the Kenyan education system, locally trained doctors take the Hippocratic oath; a binding commitment that they will not kill a patient.

Every country has this code of conduct in its statutes.

In particular, the difference between euthanasia and murder is legal because the effect is the same.

Take the case of 2019, Republic vs. Emmanuel Kiprotich Sigei & Irene Sigei, where the parents of a one-and-a-half-year-old child were convicted of murder. Their defence was that their child was crawling and sickly with flu. The court rejected the defence and sentenced them to 15 years in prison.

In contrast, in the South African case of Stransham-Ford v Minister of Justice and Correctional Services and others, Mr Ford petitioned the court for an order allowing his doctors to assist him to end his life. Like Kenya, South Africa does not have an explicit law permitting euthanasia. But by arguing that the right to life entitled him to die with dignity, Mr Ford persuaded the High Court to grant his application for physician-assisted death. He died while awaiting the verdict.

If you compare the two cases, you will find that in both countries there is no law that explicitly allows euthanasia. Secondly, you cannot actively assist someone else to commit euthanasia if it is not expressly permitted. Had the Kenyan couple sought a medical opinion and then applied for a court order, their case would have sought to draw parallels with the South African case and arguments in favour of promoting the right to life as including the right to die with dignity.

Given the illegality of assisted dying in Kenya, is exploring this option in another country a realistic possibility?

It's called death tourism. Generally, you don't need much documentation, depending on the country you visit. Usually all you need is a diagnosis of incurable and terminal illness.

Hypothetically, if you travel to countries that allow it, it's just to see a doctor. Once you go to the doctor, they will assess you and determine your medical condition, which is always the first step because it's a criminal offence to kill someone.

Once they have determined that your cognitive functions are in order, they move on to the second step. This involves writing a prescription that will cause minimal pain. The patient then takes the medication to achieve the expected result. This is the most common.

The legal or financial hurdles vary from country to country.

From a legal and ethical point of view, what are some important considerations for someone considering euthanasia abroad, especially in places where it's illegal, such as Kenya?

From a legal perspective, if the country does not have an explicit law or regulatory framework allowing physician-assisted death, then any involvement in the issue is legally questionable. On a strict interpretation of the law, any involvement is potentially an accessory to murder, manslaughter or assisted suicide.

One must therefore consider that the interaction should, strictly speaking, be hypothetical or otherwise as a discourse that seeks to explore the issue. To make specific and detailed recommendations or suggestions could be construed as an active step in the euthanasia process. It would potentially open one up to the charge of aiding and abetting a criminal offence.

The crux of the matter is clearly whether the right to life includes the right to die with dignity.