Suicide and euthanasia: Ending one’s life is a legal minefield

There have been public expressions of concern at the number of suicides and attempted suicides in the recent past in Kenya.

It is not clear whether the number of suicides is on the increase or the reporting of the incidents is the reason for this feeling.

Public opinion seems to be somewhat settled that suicide rates depict not only an issue of morality, law but is also a public health concern.

It is noted that although people do not willingly decide to commit suicide, taking life for whatever reason is not an act to be encouraged.

There is a point of divergence with a person who argues that it may in certain instances be better to deliberately end a life if the individual is in such state of health that the life is full of pain and ceased to be meaningful and wholesome.

This is part of the thinking why some countries have laws which permit people who are seriously ill to end their lives under the supervision of medical personnel.

This week, there was an international incident which raised concern and media coverage of a story as well as the actual circumstances under which a girl aged 17 chose to end her life.

It was reported that a Dutch teenager, Noa Pothoven, chose to starve herself to death to relieve her of the psychological anguish and depression.

She suffered from depression and post-traumatic stress disorder as a result of sexual assault she suffered while she was about 11 years old, coupled with a rape incident when she was 14.

These unfortunate experiences had rendered the girl so unwell that she couldn’t attend school.

As a result, the 17-year-old girl became anorexic and had to be placed in an artificial coma so that she could be fed by force following concern from doctors that she would die from starvation.

In spite of this suffering, the girl had written a book about her experiences in which she told her story and campaigned for mental healthcare for children in situations similar to hers.

Sometime in 2018, she sought euthanasia from Dutch doctors claiming that the intensive trauma treatment that she was undergoing was too much for her to bear. This request was rejected.

This is because the law in the Netherlands is that only persons who are experiencing unbearable physical or mental suffering without possibility of cure may be allowed to end their lives with the supervision of a medical practitioner, otherwise known as euthanasia.

In the Netherlands, even a child between 12 and 16 years may choose death by euthanasia if the parents’ consent is obtained and subject to a doctor confirming that the suffering is unbearable.

This decision by the doctor is reviewed by a regional panel of doctors. Only then may the procedure be undertaken lawfully.

In the case of the teenager mentioned above, the original press reports were that she had undergone this physician-assisted death.

However, this turned out to have been untrue and the clarifications as to the circumstances of her death were not more consoling.

It is said that the girl simply refused to have any food or drink and starved herself to death on June 2, 2019.

At her request, it is said that her parents decided not to intervene in feeding her forcefully as they had done previously.

She then passed away in her parents’ house. The parents’ non-intervention was based upon medical guidelines which indicate that treatment may not be provided to a patient who withholds his or her consent.

This occurrence caused outrage and consternation all over the world and raised the issue as to whether a child who could not legally vote or enter a validly enforceable contract should be allowed to make such a life and death decision for herself, literally.

Dutch law is believed to be an outlier on the issue of end of life options such as physician-assisted death for seriously ill people certified so by doctors.

For persons undergoing intense physical and mental anguish with no reasonable prospect of cure, the laws of the Netherlands and Switzerland permit euthanasia and assisted suicide.

The difference is that in the former, the doctors take the role of ending the patient’s life while in the latter, the patient is given the means to end his own life.

This controversial legal regime took effect in the Netherlands in 2002. Records for the year 2017 indicated that about 6,000 people ended their lives by euthanasia, most of whom were persons suffering from incurable cancer.

Although it is appreciated that suicidal behaviour is a symptom of a medical or psychological problem, in Kenya, the law looks with disfavour at any attempt to end life for whatever reason. It is taken that life in whatever state is too sacred to be diminished.

For this reason, the law is clear that an unsuccessful attempt to end one’s own life would lead to prosecution for a crime punishable by imprisonment of up to three years.

Neither does the law give room for any two or more people to collude in the attempt at suicide. These are called suicide pacts, and the survivor would be guilty of the offence of manslaughter punishable by life imprisonment.

In effect, the law in Kenya places a stiffer penalty for any person who may collude with another person to commit suicide or bring about their death.

In these ways, the law in Kenya and in most countries with a legal tradition drawn from the English Common Law, take a dim view of the attempt to end human life by anyone other than natural means.

It is no defence that the suicide attempt was the person’s own life.

Put another way, the law seems to be saying that the sanctity of life is such that not even the beneficiary of that life can choose to terminate it without consequence.

So that had the girl in the Netherlands been Kenyan, her parents would have risked prosecution for manslaughter for facilitating her ending her life.

This represents the differences in worldview or outlook by which what is perfectly valid in law in one country is abominable in another.

In the United States, physician-assisted suicide is available in a number of states under certain circumstances.

In Montana, it is subject to prior approval by a court. After the doctors have made their finding that the person seeking to be euthanised has a serious illness from which recovery is not possible, the matter is presented to a judge for review and approval before the procedure is carried out.

Granted, there is some ground to justify euthanasia or ending of life for a person undergoing immense suffering.

It is also generally accepted that animals too may qualify to be put down in circumstances where the animal has an injury or ailment from which full recovery is unlikely.

An example often seen at racecourses is the taking down of race horses whose feet have been fractured while racing.

It is said that the fractures rarely heal and provide as lifelong discomfort to the injured horse.

Such horses are often relieved of the pain of the injury by being put down almost immediately as an accepted veterinary practice.

However, with regard to animals, an incident in the state of Virginia in the United States last month caused consternation and outrage in equal measure as to the meaning of euthanasia with regard to a dog.

Emma, a healthy dog, had to be euthanised not because of illness or injury but because of the need by the executors of the will of Emma’s deceased owner.

The owner had directed in her will that upon her death, the dog be put down by a Vet, cremated and the remains be buried with her.

Complaints by an animal welfare organisation that this did not constitute euthanasia were dismissed by a court which held that the pet was personal property and the owner had the right to decide how the pet could be dealt with alongside all her other property under the will.

The owner’s reason for seeking the euthanising of the dog was that the dog would suffer loneliness and neglect in her absence.

For this reason the owner thought that the dog would be better off being cremated and buried with her.

The story of the Dutch girl, which sparked off the discussion on the meaning of life and the limits of personal choice and autonomy of the individual over her life, also shows not only how different national and cultural perspectives differ on the issue of life and what power the state may have on the life of the individual.

The writer is head of Legal Affairs, Nation Media Group