The Portuguese parliament passed Decree No. 109/XIV on 29 January, 2021, legalizing euthanasia and assisted suicide. It has been referred by the President of Portugal for a review by Portugal’s Constitutional Court.
The law permits physicians and nurses to assist in suicide or provide euthanasia for eligible patients. Eligible patients are adult nationals or legal residents of Portugal who experience intolerable suffering as a result of an extremely severe and permanent injury or incurable terminal illness. Eligible patients must also demonstrate a serious, voluntary, informed, continuing and reiterated decision to seek euthanasia/assisted suicide. Physicians who are satisfied that a patient is eligible must obtain the approval of the Committee for the Verification and Evaluation of Clinical Procedures for Advancing Death (CVA) before providing the procedure.
The law includes a protection of conscience provision. Any health professional may decline to “practise or assist in the act of antecipação da morte de um doente“, which, literally translated, means the act of “anticipating the death of a patient.” However, from the context it appears that this is more correctly translated as “advancing the death of a patient.” To assist in “advancing the death of a patient” is broad enough to encompass diagnosis, evaluation and facilitation by referral or other means.
An objection can be based upon clinical, ethical or other grounds. An objecting professional must advise a patient of the objection and reasons for it within 24 hours, presumably within 24 hours of a request from the patient. Objectors must also give written notice to the person in charge of the health establishment where they work and to their professional orders. Such an objection is permanently and universally valid and “does not need to be justified” (e não carece de fundamentação). This appears to mean that objectors are not required to demonstrate that their clinical, ethical or other reasons for refusing to participate are correct.
The law is not clear about the freedom of health care facilities to refuse to be involved with euthanasia and assisted suicide or to prohibit the procedures on their premises. Article 12.1 states that it is up to the patient to determine the location for the procedure (“A escolha do local para a prática da morte medicamente assistida cabe ao doente.”). However, nothing in the law requires a facility to comply with a patient’s choice. The rest of Article 12 simply describes places where the services can be provided.
Lack of clarity on this point is likely to cause problems, especially if Portuguese euthanasia/assisted suicide advocates are as aggressive as those in Canada. See, for example:
The Life Issues Institute reports that ads are being run on Facebook in the United Kingdom that offer women assistance in finding nearby abortion facilities, including late-term abortion specialists. The ads demonstrate that there is no need to force objecting health care workers to facilitate abortion by referral or by providing abortionist contact information, as access to abortion can be easily facilitated by popular social media and websites.
A court in the United Kingdom has awarded £410,000 ($663,000) in damages to 38 plaintiff families for an extraordinary cataloque of neglect, abandonment and abuse at the National Health Service’s Alexandra Hospital in Redditch, England. The incidents occurred between 2002 and 2009. Britain’s Health Secretary said that the case illustrates “the normailisation of cruelty.” One elderly patient was left unwashed for 11 weeks and another was starved to death. [RTE Question More; The Telegraph]
Those who, for reasons of conscience, refuse to facilitate morally contested procedures by referral or other indirect means should take note of the World Medical Association’s reaffirmation of its position against physician “participation” in executions, which now includes a statement that physicians must not facilitate executions by importing drugs for executions. Similarly, the British group, Reprieve, has embarked upon a campaign to have drug companies sign a Pharmaceutical Hippocratic Oath against the use of their products in executions. [Bioedge]
The European Court of Human Rights has issued a judgement adverse to freedom of conscience and ordered Poland to pay two complainants, a mother and daughter, a total of 61,000 Euros in damages and costs. Subject to the possibility that the English translation of the judgement is faulty, the use of the term “anti-choice activist” by the judges brings their impartiality into question. However, the facts of the case outlined in the judgement suggest that the conduct of Polish health care personnel, anti-abortion activists, clergy and state authorities effectively guaranteed an adverse outcome.
A 14 year old girl, P. supported by her mother, S., sought an abortion for a pregnancy alleged to have been the result of a rape. While she obtained the necessary prosecutor’s certificate for the procedure, mother and daughter received contradictory information from two public hospitals in Lublin. Further, health care personnel clearly violated principles of patient confidentiality and informed consent in an effort to dissuade the girl from having an abortion. These violations included clearly coercive and manipulative tactics. P and S experienced
- the intervention of a priest and anti-abortion activists, unsolicited and unwanted,
- importuning by anti-abortion activists that included confrontations in public,
- national media attention, including a press release issued by a hospital concerning P,
- detention and six hours of questioning by the police,
- apprehension of the girl by state authorities, apparently for the express purpose of preventing the abortion,
- posting on internet by the Catholic News Agency of the girl’s travel to Gdansk for an abortion,
- the filing of criminal charges against the girl for having had unlawful sexual intercourse with a minor (i.e., the rape that resulted in pregnancy)
While the court found that objecting physicians had a legal obligation to refer patients for abortion, the source of that legal obligation was Polish law. Article 39 of Poland’s Doctor and Dentist Professions Act imposes a legal obligation of referral. The imposition is objectionable in principle, but the European Court of Human Rights can hardly be criticized for applying Polish law to Polish citizens.