By Vera Lúcia Raposo
Recently, in spite of protests from conservatives and the Catholic Church, the Portuguese parliament approved five proposals aimed to allow medically assisted death (referred to as ‘anticipation of death’) at the patient’s request.
The procedure requires specific conditions: patients of legal age, with incurable and fatal disease or permanent injury, and ‘lasting and unbearable suffering’, able to understand the meaning and scope of the request (minors and those with mental disorders that affect the ability to make decisions are excluded).
The proposals cover both medically assisted suicide and actual euthanasia, since the act to anticipate death might be performed either by the patient himself/herself or by healthcare professionals, doctors or nurses. However, it is imperative that the intervention takes place under medical supervision. All proposals grant health professionals the possibility to invoke consciousness objection. It is debatable whether a health facility can generally refuse to perform such acts (a kind of institutional consciousness objection).
The proposals agree that in the event the patient becomes unconscious before the scheduled date for the anticipation of death, the procedure is interrupted and cancelled, unless the patient regains consciousness and maintains his/her decision. The revocation of the request, which can be freely made at any time, also interrupts the procedure.
We are in the very beginning and much is still to come. The final approved draft might be vetoed by the President of the Republic using a political veto, but this type of veto can be surpassed by an approval from the majority of the Parliament, which, in light of the latest voting, is likely to happen.
Another possibility is to send the draft to the Constitutional Court for a preventive assessment of constitutionality (prior review). If the draft regulation is pronounced unconstitutional, Portugal risks having a ping pong game similar to what is still happening with the surrogacy law.
To make matters even more complicated, it is not totally clear how cases of this kind would be decided in Portugal (no case has until now been brought to court) in the existing legal scenario, that is, without express authorization of medically assisted death.
According to mainstream scholars, any anticipation of death will be treated as a crime of homicide. At best, it will be a less severe form of homicide or assisted suicide, but in any case, it will be treated as criminal conduct.
However, this interpretation is open to discussion.
It can be argued that active indirect euthanasia (acts aimed to reduce the patient’s suffering, but that end up causing his/her death) is excluded from the crime of homicide, because the doctor’s intention is not to kill (as in homicide), but to alleviate suffering. Furthermore, article 150 of the Penal Code establishes a special regime for medical acts aimed to reduce the patient’s suffering, as long as they fill some requirements: carried out by an authorised health care provider, in compliance with current medical knowledge and the best standard of care. If the requirements are met, the act is not considered a crime of bodily harm. The norm considers criminally irrelevant acts that otherwise would be sanctioned as bodily harm and it has been interpreted as also making criminally irrelevant acts that otherwise would be a homicide, a solution that provides legal grounds to the admissibility of active indirect euthanasia.
Likewise, under Portuguese law, the so-called passive euthanasia (omission to perform a medical act required to keep the patient alive) cannot be treated as homicide whenever the patient has refused the doctor’s intervention. Actually, the crime would be to act in such circumstances. The Portuguese jurisdiction foresees a very particular solution regarding consent for medical interventions. Article 156 of the Penal Code establishes that no doctor can intervene without the patient’s informed and free consent, expressed or presumed. Failure to comply with this norm might carry a condemnation for the crime of arbitrary medical interventions, punished with a fine or imprisonment up to 3 years. This norm grants the patient the power to refuse any medical intervention, and not even has a safeguard for life-saving ones. So, the patient has the right to refuse medical interventions that would be necessary to keep him alive.
In light of the existing norms it is difficult to support the legality of active direct euthanasia (acts whose purpose is to end the patient’s life), but the general spirit embodied in Portuguese law, clearly grounded in personal self-determination in matters related with health and the body, provides the legal framework for its acceptance in the future.
Europe remains in a turmoil regarding medically assisted death: Spain is also discussing its admissibility and the German Supreme Court has just declared unconstitutional the criminalization of services providing assisted suicide.
Portugal is a paradox in this regard. Even though catholic and conservative, it has allowed same sex marriage, change of legal gender, access to reproductive techniques by single women and same sex female couples and eventually it will allow surrogacy. Clearly in Portugal self-determination is a basilar value. So, one might question why is it taking so long to expressly allow euthanasia.
Author: Vera Lucia Raposo
Affiliations: Associate Professor at the Faculty of Law of Macau University, China; Auxiliary Professor at the Faculty of Law of Coimbra University, Portugal
Competing interests: None declared