ABSTRACT
Over the years there has been a slim line between the right to life and the right to die. The 1999 Constitution of the Federal Republic of Nigeria (as altered) guaranteed the right to life in Section 33, that every individual has a right to life and the right is inalienable.
Thus contrary to this provision, cases of euthanasia arise to aid patients of incurable diseases to end their misery. Debates and arguments on euthanasia by scholars, decisions of the court, and medical approaches to this phenomenon in Nigeria have been conflicting. While murder is generally viewed as a crime, euthanasia has not received a defined stand.
Nigerians view euthanasia as murder through the backdoor. It has been also described as a paradox where the supposed healer becomes the killer.
INTRODUCTION
The word “euthanasia” was derived from two Greek words – “Euthokos” and “Thanatos” which mean ‘cheerful’ and ‘death’ respectively. [1] Deducibly, euthanasia implies the painless termination of the life of a person suffering from an incurable and stressful disease as an act of mercy. It can also be known as ‘mercy killing’.
The Black’s Law Dictionary defines euthanasia as “an act or practice of painlessly putting to death persons suffering from incurable and stressing disease as an act of mercy. [2] Oxford English dictionary defines it as “the practice of killing without pain a person who is suffering from a disease that cannot be cured.” [3]
This concept practically mirrors the choice of a person in a critical state who has lost hope and death becomes the only option to end the misery. However, it is forbidden in Nigerian jurisprudence for doctors to pay heed to such wishes and requests by their patients. Against this backdrop, this paper tends to explore amongst other things the concept of euthanasia and its comparative analysis with other jurisdictions.
CLASSIFICATIONS AND TYPES OF EUTHANASIA
There are five types of Euthanasia. They are as follows;
•Voluntary Euthanasia
•Non-Voluntary Euthanasia
•Physician-assisted suicide
•Active Euthanasia
•Passive Euthanasia
Voluntary Euthanasia: This arises when a patient requests a doctor to put an end to his or her life. In this kind of situation, the patient understands the gravity of his/her demand and its aftermath. Thus, in this type of euthanasia the right/choice to die is exercised by the patient, thus going contrary to the constitutionally guaranteed right to life.
This implies that the patient is mature, sane, and competent enough to understand his/her action or demand. [4] The patient might have been given an advance directive before he or she becomes incapacitated or unconscious as a result of the sickness. [5]
Voluntary euthanasia is done upon the expressed desire or approval of the patient in question. In this case, it is done on the person’s dying wish [6]. Voluntary Euthanasia entails a commitment to the fundamental ethical principles of respect for autonomy.
Involuntary Euthanasia: The term involuntary euthanasia means killing or aiding the killing of a person who has not consented to his or her death. In this kind of euthanasia, the patient has not explicitly declared his request to die. This type is mostly used on patients who are persistently in a vegetative state and probably would not recover from their unconsciousness [7] and cannot consent to or opt for death.
Mostly, the patient is usually incapable of expressing opinions about the continuation of his or her life. It entails the killing of a person who has not requested or consented to his dying wish.
Physician-Assisted Suicide: this is a kind of a hybrid between active and passive euthanasia. In this situation, the physician supplies information and or means of committing suicide. It occurs when the physician suggests to a patient the means of committing suicide for the patient to personally terminate their life.
Active Euthanasia: This means causing the death of someone from a direct action, in response to a request by the person. The important difference between passive and active euthanasia is that in passive euthanasia, the doctor does not do anything directly to bring about the death of the person, but in active euthanasia, the doctor does a direct action to aid the termination of the life of the patient.
The physician is the instigator of the death [8] or a propelling force in the patient’s death. Active Euthanasia includes the use or application of lethal injection to end a person’s life. In this way, the act is direct.
Passive Euthanasia: This is hastening the death of someone by altering some form of support and letting nature take its course. [9] Some of these acts include; turning off respirators, halting medications, discontinuing food and water to allow a person to dehydrate or starve to death, or failure to resuscitate, withdrawing or withholding treatment from a patient. [10]
In Passive euthanasia, the death can be indirect or remote but it is occasioned by the act of the physician.
It is noteworthy that the application of this concept springs from an existing law which gives it an authoritative effect. If our laws are plain and spelled out on it, there will be no cause for its application within our jurisdiction.
Firstly, we shall examine the Grundnorm which is the 1999 Constitution of the Federal Republic of Nigeria (as altered). The provision of Section 33(1) of the 1999 Constitution of the Federal Republic of Nigeria (as altered) is the main reason why there is a problem between the rules of ethics of medical personnel and the Nigerian constitution.
The problem here is that the rules of ethics of medical personnel forbid the practice of euthanasia in all forms. The Supreme Court in a recent case indirectly suggests that the refusal of treatment, (passive euthanasia) is a constitutionally guaranteed right. The provision of the section goes thus:
(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offense of which he has been found guilty in Nigeria.
The above section is clear that the right to life is part and parcel of the Nigerian constitution. There a re however three situations in which a person’s right cannot be said to have been denied him or her. They are contained in subsection (2) of the section;
(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –
(a) for the defense of any person from unlawful violence or the defense of property:
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
(c) for the purpose of suppressing a riot, insurrection, or mutiny.
Although the Nigerian constitution, like most constitutions of the world, under Section 33(1) and (2), acknowledges the sanctity of life, the provision is not adequate to handle the issue of euthanasia.
In the case of Medical and Dental Practitioners Disciplinary Tribunal (MDPDT) V. Okonkwo [2001] 7 NWLR (pt. 711) 206 (SC), the facts of the case are as follows: One Mrs. Martha Okorie, a twenty-nine-year-old woman who belongs to the Jehovah’s Witnesses, a religious sect that does not believe in blood transfusion. During the process of delivery, she had some complications that required a blood transfusion, however, she refused, citing her religious beliefs.
Consequently, a written directive was signed by the husband and the uncle. Dr. Okonkwo (Def) heeded this belief and equally refused the blood transfusion. After explaining the danger of refusing to take blood transfusion to both couples, coupled with their firm disapproval of blood transfusion, the doctor proceeded with other treatment. Five days later, the patient died.
The doctor was summoned and made to appear before the medical and dental practitioners’ tribunal. The case against the doctor is that he didn’t exercise due care and diligence in the handling and treatment of the deceased’s case according to the medical practitioners’ rule of professional conduct.
The doctor was suspended him from practice.
On appeal, the Court of Appeal set aside the tribunal’s verdict. However, the respondent proceeded with a further appeal to the Supreme Court where the court ruled based on Sections 37 and 38 of the 1999 Constitution which deal with individual autonomy, and held that the doctor acted upon individual autonomy and self-determination of the patient.
It is evident that the decision in this case is in contradiction with Section 68 of the Rule of Professional Conduct for Medical and Dental Practitioners in Nigeria, which provides that;
“One of the cardinal points in the physician’s oath is the preservation of life and therefore, the act of mercy killing or helping a patient to commit suicide runs contradictory and antithetical. A doctor should not terminate life whether the patient is in sound health or terminally ill.
A Practitioner shall be adjudged to be in breach of the ethical code of practice if found to have encouraged or participated in any of the following acts;
a) termination of a patient’s life by the administration of drugs, even at the patient’s explicit request;
b) prescribing or supplying drugs with the explicit intention of enabling the patient to end his or her life and
c) termination of a patient’s life through the administration of drugs with or without the patient’s explicit request thinking the same to be in the interest of the patient.”
Another Law that prohibits euthanasia is the Criminal Code. The most relevant provision is Section 311, which provides;
“A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is laboring under some disorder or disease arising from another cause, is deemed to have killed that other person.”
Furthermore, Section 315 provides “Any person who unlawfully kills another is guilty of an offense which is called murder or manslaughter, according to the circumstances of the case.”
If Section 311 of the Criminal Code above is read alongside the provisions of Section 33(1) of the 1999 Constitution, it will reveal that they are the same in upholding the sanctity of life principle.
Similarly, Sections 320, 325, and 326 of the Criminal Code are seen as closely related to the duty of medical personnel and prohibiting assisted suicide and attempted suicide.
From the foregoing, it can be gleaned that both the Criminal Code and Rules of Professional Conduct for Medical and Dental Practitioners entirely prohibit euthanasia. Sections 37 and 38 of the Constitution of the Federal Republic of Nigeria and the supreme court case of MDPDT V. Okonkwo (supra) enthroned individual autonomy and self-determination.
It follows that the provisions of the criminal code in this respect, conflict with the constitution, and where such conflict arises, the constitution supersedes and prevails over the Criminal Code. Section 1(3) of the constitution.
CONCLUSION/RECOMMENDATIONS
Having examined the concept of euthanasia there is no specific law endorsing euthanasia in Nigeria’s jurisprudence. In my humble opinion, euthanasia shouldn’t be legalized in Nigeria so as not to undermine the essence of the sanctity of life – life which is sacred and ought to be protected.
More so, it is my humble appeal that the Supreme Court whenever it has the opportunity, to review the case of MDPDT V. Okonkwo (supra) [11] because the case indirectly projects passive euthanasia as an acceptable practice. Furthermore, the National Assembly should make legislation outrightly prohibiting euthanasia in all its forms.
Finally, it is important to note that when patients request or wish for death, it is a reflection of their emotional desire to be shown empathy and quest to be shown love.
REFERENCES
1. Harlem Solicitors: An Appraisal of Euthanasia (Mercy Killing) under Nigerian Laws, Published on February 3, 2023.
2. Black H.C, Black’s Law Dictionary (USA: St. Paul’s Minn-West Publishing Co. 1991) Pg. 554
3. A.S Hornby, Oxford Advanced Learner’s Dictionary of Current English (9th Ed, United Kingdom: Oxford University Press, 2015) Pg.525
4. B.A Ompidan “Euthanasia: The 21st Century culture of Death” Vol 7 No. (2011) Nigerian Bar journal, Pg. 213
5.MDPT V. Okonkwo (2001)7 NWLR (pt.617). Pg 208-255
6. Gulati, S. Student Paper – An Overview of the Ethical Concepts, Legal Issues and Arguments in Euthanasia – A Student PThanatosve. Zaria, Northwest, Nigeria. Pg. 51
7. C.B William, Euthanasia (Ohio: The MCGrawHill Companies Inc, 2007) Pg. 1
8. D. Brock, “Voluntary Active Euthanasia ” in H. J Curzer, (Ed), Ethical Theory and Moral Problems (Belmont: Wadsworth, 1999) Pg. 46-54.
9. C.B William, op cit
10. Obi M.C (2014). A Critical Appraisal of Euthanasia under Nigerian Laws. Nnamdi Azikwe University Journal of international law and jurisprudence. Pg 77
11. Ibid
List of Statutory Provisions
1. Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
2. Sections 37 and 38 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
3. Section 311 of the Criminal Code
4. Section 320, 325, and 326 of the Criminal Code.
5. Section 68 of the Rules of Professional Conduct for medical and dental Practitioners in Nigeria.
About the Author
Okeke Chukwuemeka, is a Law Student of Chukwuemeka Odumegwu Ojukwu University, Igbariam Campus. He is an Avid writer, Law enthusiast, and legal researcher.