Only between 2010 and 2021, 125 investigations were opened in the Prosecutor’s Office for the crime of inducing or aiding suicide. The statistics become relevant now that the Constitutional Court decriminalized the practice of physician-assisted suicide, a decision that has been causing a stir for 48 hours.
The adjustment to the norm unleashed a wave of doubts about its implementation and raised a blister in the medical union and even in the Ministry of Health.
This Thursday, May 12, the Constitutional Court issued the statement of the ruling and, as has happened with the regulation of euthanasia, launched a new urge to Congress to legislate on the right to die with dignity “with a view to eliminating the barriers still existing for effective access to said right.
Led by experts, EL COLOMBIANO unraveled some doubts that remained in the air about physician-assisted suicide, what it means to legalize it, and the medical debate that arose after the high court’s ruling.
1. Why did the Court decriminalize it?
What the Constitutional Court did with this ruling was to modify a part of article 107 of the Penal Code, which contemplates the crime of “Inducing or aiding suicide.” Whoever commits it, says the rule, will be subject to a prison sentence of between 32 and 108 months – from two and a half years to nine years.
However, in its decision the high court warned that in the drafting of that article the fundamental rights to life and death with dignity and the development of the free personality of patients who have serious or incurable diseases were ignored.
In addition, the Constitutional Court indicated that doctors who help those who suffer suffering and freely decide to end their lives are working under the protection of the Constitution and should not be judged by the judicial branch.
For the experts in law and public health consulted by this newspaper, it was essential to stop penalizing doctors for this practice. The decision could even have retroactive effects.
Of those 125 cases that the Prosecutor’s Office opened for the crime of inducing or supporting suicide in the last 11 years, there could be some that should be closed completely.
“If a doctor was being tried for having helped a person die – with the criteria contemplated by the Court – the criminal process will have to cease in his favor,” explained criminal lawyer Nixon Forero.
“There is a principle of favorability that is applied in criminal matters when it comes to substantial issues. And this is a substantial issue, because it establishes guarantees”, indicated the penalist.
2. What differentiates it from euthanasia?
In simple terms, in euthanasia, the process that leads to the death of the patient is carried out entirely by health personnel. Meanwhile, in physician-assisted suicide, the patient is the one who activates the mechanism or ingests the drugs that will lead to her own death.
This, however, must always be done under the tutelage of health professionals, who are in charge of determining what type of drug the patient is going to administer to himself, by means of which route of administration and with what dose.
3. How will the procedure be implemented?
This is the most critical point about the implications that the Court’s ruling will have. In fact, this newspaper learned that the decision did not go over well with some medical sectors and with the Ministry of Health itself.
This goes beyond mere controversy, since that ministerial portfolio is in charge of regulating what the Court decided and had already ruled against that court decriminalizing medically assisted suicide and not Congress.
Why is there such a stir? Because the change in the rules of the game seems to make sense for constitutionalists and criminal lawyers, but it will imply a series of ethical dilemmas and practical difficulties for nurses, palliative care specialists and anesthesiologists.
“At this time we are not prepared,” said Boris Pinto, a doctor and researcher in clinical bioethics at the Universidad del Rosario. While he said it’s a relief that doctors aren’t penalized, he noted that even international experience with physician-assisted suicide is still very scant and has been different from country to country.
Even so, the Colombian State will have to look beyond its borders to implement this procedure in its health system.
Dr. Pinto said that it will be necessary to put a magnifying glass on countries like Switzerland or specific states of Canada, Australia and the United States. In some jurisdictions, machines have even been invented that allow people to activate mechanisms that end their lives, but this infrastructure is clearly not yet available in Colombia.
Among other difficulties that come to the health system is also the lack of knowledge on the part of the workers in this sector about a dignified death. “We never teach in medical schools how to do assisted suicide,” Pinto said.
And he noted that an enormous pedagogical job will have to be done with both health personnel and patients.
For her part, Camila Jaramillo (see attached interview), one of Desclab’s lawyers who was behind the lawsuit resolved by the Constitutional Court, pointed out that the path has already been paved with the regulation of euthanasia.
“To say that the health system is not prepared is to put up a barrier, it is not true. There are practices elsewhere where this works well and is safe. It is a matter of the Ministry of Health issuing the protocol to guarantee the right to die with dignity,” said Jaramillo.
On this point, Pinto indicated that although there are protocols that could be implemented in both practices, assisted suicide continues to have a different medical process. And he stressed the importance of this procedure being carried out with an ideal method that minimizes the suffering of patients.
4. Who can use this process?
Although the decision of the Constitutional Court has been widely publicized in recent hours, the truth is that it would only apply to a small portion of the population.
In fact, the Court indicated that the procedure is for any patient who “suffers intense physical or mental suffering, arising from bodily injury or serious and incurable disease.” In addition, he must have freely expressed his willingness to submit to that process.
The ruling of the high court also indicates that the crime of aiding or inducing suicide continues to exist. What changes is that now some exceptions are going to be included, so to speak.
While induction continues to be fully penalized in all cases, assistance is decriminalized only in the case of doctors who provide support to people who meet the aforementioned criteria.
5. And what about conscientious objection?
Although the high court did not mention how the issue of conscientious objection will work in these cases, the experts consulted by this newspaper agreed that there is already enough jurisprudence to foresee how the exercise of this right will work.
As has happened with other public health decisions that cause debate –such as euthanasia and abortion–, all health professionals will be able to use conscientious objection and refrain from taking part in medically assisted suicide. Current regulations, however, indicate that institutional conscientious objection cannot be invoked in these cases. In other words, hospitals, clinics and EPS are obliged to assist patients who wish to access the right to a dignified death, but doctors and nurses are not.
Even so, Professor Boris Pinto indicated that some institutions are likely to resist practicing these procedures in response to their values, which will create strong controversies, as with abortion and euthanasia.
Interview with Camila Jaramillo, lawyer who filed the lawsuit before the Constitutional Court
What was the central reason that led to the decriminalization of physician-assisted suicide?
“What needs to be observed is the consistency that was lacking in our legal system. While euthanasia is legal in Colombia, medical assistance to suicide continued to be a crime. Since 1999, euthanasia was decriminalized, which means that when a doctor caused the death of a person – who met the requirements – he would not receive a criminal sanction. But if the doctor gave him some drugs to cause death, he was committing a crime. The Court concluded that there was no logic to this”.
What barriers could make it difficult to access this procedure?
“Talking about a dignified death and talking about the disease is a taboo in Colombia and in the world. If you don’t speak up, you don’t have information, myths and lies are generated about what it means to exercise this right. The implementation of the sentence will be a challenge and materializing the sentences is always complex: it has happened with euthanasia and with abortion. Health care providers do not always know how to put this into practice. We have to wait for a regulation from the Ministry of Health.
How many people could access this health service? In the case of euthanasia, very few patients make that decision…
“As of April 2022 we have 257 euthanasia procedures and we started counting six years ago. It is not something of thousands of people, there are few people who access this provision of health services. We think there are going to be a few other people who are going to agree to physician-assisted suicide, but it’s really not the only option for people. We all want to live. It is simply an option that we can have in the future for when we are facing a disease that has no cure and that simply progresses and deteriorates our quality of life. The right to die with dignity is ultimately about protecting the autonomy and freedom of patients. That also implies having the ability to decide how to die”.