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Eduvest � Journal
of Universal Studies Volume 3 Number 1, January, 2023 p- ISSN
2775-3735- e-ISSN 2775-3727 |
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REGULATIONS FOR IMPLEMENTING
PASSIVE EUTHANASIA IN THE TERMINAL STAGE PATIENTS (END OF LIFE) WHICH IS IN ACCORDANCE
WITH JUSTICE AND LEGAL CERTAINTY IN INDONESIA |
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1Dian Andriani
Ratna Dewi, 2Waty
Suwarty Haryono, 3Evita
Isretno Israhadi 1Universitas
Pertahanan Republik
Indonesia, Indonesia, 2,3Universitas Borobudur, Indonesia Email: [email protected],
[email protected], [email protected] |
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ABSTRACT |
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Euthanasia
is an act of intentionally not doing something aimed at prolonging someone's
life or intentionally doing something to shorten or also end the life of a
patient which is carried out to hasten his death, while enabling a good death
without unnecessary suffering. Thus, in practice, in a terminal condition, a
doctor may or may not perform an act that may result in the death of a
patient in accordance with the written request of the patient/family. This
dilemmatic condition requires legal certainty in order to uphold justice and
humanity as well as legal protection. The problems are 1) How is passive
euthanasia applied for terminal patients? 2) How is legal certainty in the
application of euthanasia in Indonesia? 3) How is the implementation of
euthanasia that meets the community's sense of justice? To answer these
problems, a research using normative juridical
methods is needed through primary data collection in the form of empirical data from
interviews and filling out questionnaires about knowledge and level of
agreement on euthanasia. Secondary data in the form of research on primary,
secondary and tertiary legal materials. 8The results of the study show that
the implementation of regulations in the Act and Ministerial Regulations that
lead to the implementation of euthanasia has so far been applied, especially
to terminal patients. However, the legal certainty of the act has not been
clearly described because there are rules that are not in line. Euthanasia
cannot be equated with ordinary homicide. To fulfill justice and humanity as
well as legal protection, euthanasia regulations are needed in a harmonious
positive law |
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KEYWORDS |
euthanasia,
informed consent, withdrawing/withholding life support, humanity, legal
certainty, legal protection |
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This
work is licensed under a Creative Commons Attribution-ShareAlike
4.0 International |
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INTRODUCTION
Life is a gift from God Almighty
that should be grateful for. In Indonesia the right to life is constitutionally
guaranteed in the 1945 Constitution of the Republic of Indonesia, Article 28A
paragraph (1), which states that "Everyone has the right to live and
defend his life and existence�. In
addition, the law guaranteeing the right to life is contained in Law Number 39
of 1999 concerning Human Rights, Article 9:
(1) Everyone has the right to life,
to maintain life and to improve their standard of living.
(2) Everyone has the right to live
in peace, security, peace, happiness, physical and spiritual prosperity.
(3) Everyone has the right to a
good and healthy environment.
New discoveries in the field of
medicine and pharmacy include the discovery of drugs that are considered
effective and sophisticated medical equipment that allows a patient's life to
be longer for a certain time. But death itself for humans is a mystery and is a
divine secret, where one cannot be sure when death will come.
`���������� In patients who experience suffering
and have little chance of being cured, they often experience despair which
encourages them to end their suffering by accelerating the process of their
death, which is referred to as 'euthanasia'. Euthanasia is generally done out
of compassion, not having the heart to see unbearable suffering (Vaibhav, 2008). Patient
mortality relatively being "good".
As early as the seventeenth
century, Francis Bacon described the phenomenon of euthanasia. Broadly
speaking, there are 2 (two) types of euthanasia, namely active euthanasia and
passive euthanasia. Active euthanasia refers to intentional acts, for example
by administration of lethal drugs. While passive euthanasia refers to reducing
or withdrawing the treatment needed to maintain life (Annadurai et al., 2014).
In the modern medical world, it still
requires ethical, moral and legal demands in its implementation. Several
countries that have passed laws that allow voluntary euthanasia include the
Netherlands, Belgium, Luxembourg, Canada and Columbia.
Active euthanasia actually occurs
in Indonesia, in the context of a doctor having to choose between saving a
mother and her baby to be born, when it is known that the process of giving
birth to a baby will result in the death of the mother. Usually in this case
the choice is to save the mother's life by killing the baby's life. While
active euthanasia of adults has never been heard of being carried out in
Indonesia
(Kartono, 1992). Medical ethics is still debating
between pro-life and pro-choice groups in determining death. Life support has
the consideration that people who experience pain, however severe, still have
the right to live. There is debate about euthanasia in Indonesia, due to
various perspectives on euthanasia. There are some parties who think that euthanasia
is a murder that is prohibited by positive law or religion. In terms of
Indonesian Criminal Law, murder is defined as "an act that results in the
death of another person". This formulation comes from Article 338 of the
Criminal Code which reads: "Whoever deliberately takes the lives of other
people, is punished, for ordinary murder with a maximum prison sentence of
fifteen years". Similarly, religion prohibits intentional killing as a
form of killing people. While other parties argue that euthanasia is contrary
to human rights, namely the right to life of a patient that must be protected.
The
culture that is inherent in the Indonesian nation is the national values
contained in Pancasila, namely the values of religiosity, family values,
harmony values, social values and justice values. Based on these values, in
Indonesia there is a paradigm or understanding that it is better for patients
to die safely at home. In this way, the family can gather and pray for the
patient based on their religion and belief until the patient dies. Because
there are local customs that believe that according to the patient's family it
is better to die at home. In this condition, doctors can't do anything.
Especially if the character of the people is very hard. Family requests that
are rejected can result in doctors and other health workers becoming victims of
physical violence due to the emotional consequences of the patient's family.
It's just that society in general thinks that this is not a form of passive
euthanasia. Thus, in the end, the doctors used their own understanding in
addressing this problem.
A. Problem Formulations
Based on the background above, the research
problems are arranged as follows:
1. How is passive euthanasia implemented for
patients in terminal stages?
2. What is legal certainty in implementing
euthanasia in Indonesia?
3. How is the implementation of euthanasia
fulfilling a sense of justice based on Pancasila values in society?
B. Theoretical Framework
1. Euthanasia Theory
Etymologically, the word euthanasia comes from the Greek words, 'Eu'
(good) and 'Thanatos' (death) and means "good death", "gentle
and easy death". every country in the world. In essence, euthanasia is the
act of intentionally ending someone's life to relieve pain and suffering (Brenna, 2021).
The
Euthanasia Society of America was founded in 1938 and according to the Center
for Health Ethics, School of Medicine, University of Missouri, in practice
there are several types of euthanasia with different versions, including: (Van De Walle & Kuby, 2022)
a)
Active euthanasia: killing the patient by
means of an active, for example, injecting the patient with a lethal dose of a
drug. Sometimes called "aggressive" euthanasia.
b)
Passive euthanasia: deliberately letting a
patient die by withholding artificial life support such as a ventilator or
feeding tube. Some ethicists distinguish between withholding life support and
withdrawing life support (the patient was on life support but was later removed
from it).
c)
Voluntary euthanasia: with the consent of
the patient.
d)
Involuntary euthanasia: without the
patient's consent, for example, if the patient is unconscious and his wishes
are not known. Some ethicists distinguish between "involuntary"
(against the patient's wishes) and "involuntary" forms (without the
patient's consent but unknown will).
e)
Self-administered euthanasia: the patient
arranges the manner of death.
f)
Euthanasia performed by another person
(other-administered euthanasia): a person other than the patient who arranges
the manner of death.
g)
Assisted euthanasia: the patient manages
the manner of death but with the help of another person, such as a doctor.
While Kartono Muhammad divides euthanasia into 4 (four) groups,
namely:
a)
Passive euthanasia, the act of
accelerating death, namely refusing to provide ordinary assistance, or stopping
ongoing assistance.
b)
Active euthanasia, by actively carrying
out actions that result in death, either directly or indirectly.
c)
Voluntary euthanasia, actions to hasten
death carried out at the patient's consent or request. Conversely, involuntary
euthanasia is carried out without the patient's request or consent, often also
called mercy killing.
d)
Nonvoluntary euthanasia, actions to hasten
death are carried out according to the will of the patient conveyed by or
through a third party, or at the discretion of the government.
2.
Theory of
Justice
Justice comes from the word fair,
according to the Indonesian Dictionary fair is an adjective (action, treatment,
and so on) that is fair: he only defends his rights and ~; The government
creates ~ for the community not arbitrarily, impartially, not one-sided. Fair
especially means that decisions and actions are based on objective norms.
Justice is basically a relative concept, everyone is not the same, fair
according to one is not necessarily fair to the other, when someone asserts
that he is doing justice, it must be relevant to public order where a scale of
justice is recognized. The scale of justice varies greatly from one place to
another, each scale is defined and fully determined by society according to the
public order of that society (Santoso, 2012).
Law is
very closely related to justice, even law must be combined with justice, so
that it really means as law, because the purpose of law is to achieve a sense
of justice in society. In the concept of a rule of law, law is the main pillar
in administering the state and guaranteeing the protection of people's rights.
To achieve this, synchronization is needed between existing norms, or
institutions that implement or enforce the law and people's attitudes in
responding to the law. In Lawrence Meir Friedman's view it is said to be a
legal system consisting of: (Friedman, 2009)
1)
Legal Structure; which concerns
institutions rather than law, the institutional body of the system.
2)
Legal Substance; composed of rules and
regulations regarding how these institutions should behave.
3)
Legal Culture; concerning the elements of
social attitudes and values.
The most
important goal of law enforcement is to guarantee justice without neglecting
aspects of the benefits and legal certainty for the community. Gustav Radbruch (1878-1949) called justice, benefit and legal
certainty as the pillars of law enforcement. All three are needed to arrive at
an adequate understanding and implementation of law. Specifically, the aim of
justice or finality is to emphasize and determine the contents of the law,
because the contents of the law are in accordance with the objectives to be
achieved. However, Satjipto Rahardjo
reminded that the problem of legal certainty is not merely a matter of law, but
rather a matter of human behavior. Legal certainty has become a big problem
since the law was written. Before that, for thousands of years, when we talk
about law, we talk more about justice (Sumirat, 2020).
3.
Theory of
Legal Certainty
Three elements of legal goals or ideals
that must exist proportionally, namely legal certainty (rechtssicherkeit),
justice (gerechtigkeit), and expediency (zweckmasigkeit). If it is associated with law enforcement
theory as conveyed by Gustav Radbruch in idee des recht, namely law enforcement must fulfill these three
principles (Wantu, 2007).
In fact, the existence of the principle of legal
certainty is interpreted as a situation in which the law is certain because
there is concrete power for the law in question. The existence of the principle
of legal certainty is a form of protection for justice (seekers of justice)
against arbitrary actions, which means that a person will and can obtain
something that is expected in certain circumstances (Mertokusumo, 2007). This statement is in line with what Van Apeldoorn said
that legal certainty has two aspects, namely the ability to determine the law
in concrete matters and legal security. This means that the party seeking
justice wants to know what is the law before starting a case and protection (Julyano &
Sulistyawan, 2019).
Gustav Radbruch conveyed 4 (four) fundamental questions about the
importance of legal certainty, namely: First, this law is positive, meaning
that positive law is statutory regulations. Second, this law is factual, meaning
that it is based on reality. Third, facts must be clearly stated to avoid
useful misunderstandings, and also easy to apply. Fourth, positive law should
not be easily changed.
The
opinion of Gustav Radbruch considers that legal
certainty is certainty about the law itself. Legal certainty is a legal
product, positive law that regulates the interests of people in society must
always be considered, even if positive law is unfair.
4. Criminal Law Theory
The term
"criminal law" began to be used during the Japanese occupation to
mean strafrecht from Dutch, and to distinguish
it from the term "civil law" to mean burgerlijk
recht or privaatrecht
from Dutch (Prodjodikoro, 1984).
According
to W.L.G Lemaire, criminal law consists of norms that contain what may and may
not be done, to which (by the legislature) criminal sanctions are affixed,
namely special suffering (Lamintang, 2014).
The principle of legality is a very central principle
of criminal law, the main objective of which is to achieve legal certainty in
its application and to prevent the arbitrariness of officials. In contrast to
other legal principles which are abstract in nature, the principle of legality
is even expressly formulated in criminal law. In general, legal principles are
abstract in nature and instead form the background for the formation of
concrete rules which are included as articles in statutory regulations. The
principle of legality in Indonesia is explicitly stated in Article 1 paragraph
(1) of the Criminal Code: "No act may be punished, except for the strength
of the criminal provisions in the law that existed before that act", in
Latin: "nullum delictum, nulla poena , sine praevia lege poenali�
The definition of a crime in the Criminal Code (KUHP)
is known as "strafbaar feit" and in the criminal law literature often
uses the term delict, while legislators in formulating a law use the term
criminal act or criminal act or criminal act (Wahyuni, 2017). Whereas etymologically the origin of the word crime is
"strafbaar feit",
which according to Simons means behavior (handeling)
which is punishable by crime, which is against the law, which is related to
mistakes and which is carried out by people who are capable of being
responsible. An act that is punishable by criminal sanctions and/or acts by
laws and regulations that are against the law or contrary to the laws that live
in society so that it is referred to as a crime. Every criminal act is always
against the law, unless there is justification (Chazawi, 2011).
5. Human Rights Theory
The definition of human
rights according to the United Nations (United Nations) is: rights inherent to
all human beings, regardless of race, sex, nationality, ethnicity, language,
religion, or other status. Human rights include the right to life and freedom,
freedom from slavery and torture, freedom of opinion and expression, right to
work and education, and many more. Everyone is entitled to these rights,
without discrimination
Meanwhile,
according to the United Nations Children's Fund or UNICEF human rights are:
standards that recognize and protect the dignity of all human beings. Human
rights govern how individual human beings live in society and with each other,
as well as their relationship with the state and the obligations that the state
has towards them. Human rights law obliges governments to do some things, and
prevents them from doing others. Individuals also have a responsibility: in
exercising their human rights, they must respect the rights of others. No
government, group or individual has the right to do anything that violates the
rights of others.
The Iceland Human Rights Center states that the characteristics of human rights
differ from other rights in two respects:
First,
human rights are characterized:
a) Inherent
to all human beings based on humanity.
b) Cannot
be revoked (inalienable) within the legal limits that meet the requirements.
c) The
same applies to all (equally).
Second, the main duties deriving from
human rights rest with the state and its authorities or agents, not with
individuals. One important implication of this characteristic is that human
rights themselves must be protected by law (the rule of law). Any dispute about
human rights must be brought to trial by a competent, impartial and independent
court, employing procedures that ensure full equality and justice for all
parties. Human rights in this category are 'fundamental freedoms'. Since human
rights are seen as a prerequisite for leading a dignified human existence, they
serve as a guide and touchstone for legislation.
6. Theory of informed consent
Informed Consent consists of two
words, namely "informed" which means information or information and
"consent" which means approval or giving permission. so the notion of Informed Consent is an agreement given
after receiving information. Thus Informed Consent can
be defined as a patient's statement or a legitimate representative of it whose
content is in the form of approval of a medical action plan submitted by a
doctor after receiving sufficient information to be able to make an approval or
refusal.
According to Permenkes
no 290/MenKes/Per/III/2008 and Law no 29 of 2004
Article 45 and the 2008 KKI Medical Action Approval Manual. Informed consent is
approval for medical action given by the patient or his/her next of kin after
receiving a complete explanation regarding the procedure. medicine to be
performed on the patient. According to the Appendix of SKB IDI No.319/P/BA./88 and Permenkes no 585/MenKes/Per/IX/1989 concerning Approval of Medical Actions
Article 4 paragraph 2 states that in providing information to
patients/families, the presence of a nurse/other paramedic as witness is
important. The agreement signed by the patient or his closest family does not
release the doctor from criminal charges if the doctor commits negligence.
Approval of the action to be carried out by the doctor must be carried out
without any element of coercion
Approval
of Medical action has been regulated in Article 45 of Law No. 29 of 2004
concerning Medical Practice. As stated any medical or
dental procedure performed on a patient by a doctor or dentist requires
approval. Such consent is given when the patient has received complete
information, including at least the following: the diagnosis and course of
medical intervention, the purpose of the medical intervention performed,
alternative procedures and their risks, possible risks and complications, and
the prognosis of the intervention performed. Consent can be given in writing or
verbally. It states that risky medical or dental procedures should be carried
out only with written consent signed by a person authorized to give consent.
RESEARCH
METHOD
This research is a
normative research, namely research that uses legal principles, and
legal doctrine, to answer legal issues regarding the regulation of the
implementation of passive euthanasia in end-of-life patients who fulfill
justice and legal certainty in Indonesia. For this reason, it is necessary to
understand the various regulations governing the management of terminal
patients in hospitals.
This research is included in the type of
normative legal research, namely legal research based on applicable laws and
regulations. This normative legal research focuses on the provision of patient
care at the end of life which must be pursued in accordance with statutory
regulations.
This normative legal research begins with
articles of positive law which contain explanatory concepts regarding ending of
life that must be conveyed by health service providers, palliative service
standards for terminal stage patients, professional discipline in carrying out
medical practice in accordance with the principles of justice and humanity, so
that there is legal protection for health workers as humanitarian servants
based on the 1945 Constitution of the Republic of Indonesia and the national
values of Pancasila. The source of data used in this writing is secondary data
obtained from the literature to search, study and collect information,
concepts, theories and related laws and regulations
RESULTS
AND DISCUSSION
Application of Euthanasia for Terminal Stage Patients in Indonesia
Patients who seek treatment can end up cured, disabled
or dead. With the development of science and technology in the field of
medicine, patients in this condition can extend their lives through the use of
medical devices and various therapeutic methods. Even though various rescue
efforts are made, patients with chronic diseases may one day experience a
terminal stage of their illness. For example, people with cancer, heart, lung or
other organs as well as complications from various diseases. Terminal
conditions can no longer be cured and generally patients experience various
physical problems such as pain, shortness of breath, weight loss, impaired
activity and others. In this condition, patients and families are faced with
difficult choices. If in this condition treatment is still given to prolong his
life or delay the patient will still die.
�Life
Journey Chart in Patients Until the End of Life
(Source: modified from Sutarno)
-
Basic life support -
Physiologic support -
Psychologic support -
Spiritual support -
Social support Patient Therapeutic
process cured Terminal
stage disability Withholding
life support Giving
life support Palliative
care Wiithdrawing
life support Die
Death is generally thought of as a very scary thing,
but it happens to everyone. Death is a process that cannot be postponed, but
most people don't want it to come quickly. The thing that is feared by death is
not only death itself but also the state after death occurs. But it's a
different story for people who suffer from incurable diseases and are hopeless
about their lives. Instead, they want death to come, even if they are not
necessarily ready for it.
In medical science, the notion of "dead" is
always evolving, especially in complicated times, namely in end-of-life care in
the intensive care unit (ICU). The simplest definition of death is the
cessation of blood flow which is characterized by a permanent cessation of
heart rate and respiratory arrest (physical/somatic death). Apart from somatic
death, there are also terms brain death, brainstem death, and cellular death (Maryati & Prahmana, 2020).
The Criminal Code itself does not provide provisions
regarding what is meant by "death" namely "as a result of
murder". The crime of murder is said to be successful if the person who is
killed "suffers death". Therefore it becomes
very important when someone can be said to have died or "is still
alive" (not experiencing death). The criminal law does not have an
operational definition of what it means to "die" or "suffer
death". The "dead" element is the defining element. Therefore it
really determines what the criteria for death or death in criminal law are (Sjahdeini, 2020).
Many opinions are pro-euthanasia
and counter-euthanasia. There are arguments against this opinion. Euthanasia
support groups argue that:
1) Euthanasia is a way to relieve intense pain.
2) Euthanasia is a legal way when a person's quality of
life is low.
3) Reducing the financing burden on conditions that are
no longer possible to cure.
4) Respect the patient's right to autonomy for survival.
Meanwhile, the opinion that prohibits euthanasia has
reasons that:
1.
Euthanasia reduces
the value of human life.
2.
It is not moral if
euthanasia is the basis for controlling health care costs.
3.
Doctors and other
medical care providers may not be directly involved in causing death.
4.
There is a
"slippery slope" effect that has occurred, if euthanasia is allowed
it will expand into actions for other people and can even be done
non-voluntarily.
This shows
that there are strong arguments for both supporters and those who oppose the
implementation of euthanasia. Like Indonesia, the majority of countries still
enforce euthanasia bans. However, in some countries
euthanasia is a legal medical practice and has legal protection. The following
countries have fully legalized euthanasia (Gracia
et al., 2022).
Legal Basis in
Countries Legalizing Euthanasia
|
No. |
Country |
Legal Basis |
Description |
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1. |
The
Netherlands |
Wet van 12 april 2001, houdende toetsinhg van levensbeëindiging op verzoek
en hulp bij zelfdoding en wijziging van het Wetboek van Strafrecht en van de Wet op de lijkbezorging
(Wet toetsing levensbeëindiging
op verzoek en hulp bij zelfdoding),
2001 |
Euthanasia can be criminalized (1) unless it passes
strict requirements and gets a doctor's approval |
|
2. |
Belgium |
The Belgian Act on Euthanasia, 2002 |
Euthanasia is permitted for patients in very serious
medical conditions with constant physical suffering and unbearable pain which
will not be relieved and will result in death in the short term. |
|
3. |
Luxembourg |
Proposition de loi No.
4909 sur le droit de mourir nd
ignité or
the Law on the Right to Die with Dignity No. 4909, 2009 |
Submission of euthanasia is
consulted to the medical college. The patient is in a terminal stage,
suffering, and the disease is incurable. The patient also had repeated wishes
of death. |
|
4. |
Spain |
Organic
Law for the Regulation of Euthanasia, 2021 |
The submission process passes through strict
requirements from the government. The state health system must guarantee this
right to anyone who wants and meets the requirements. |
|
5. |
United
Sates |
Oregon death with dignity act, 1997 (Oregon) |
The state's role includes respecting and protecting
human rights, euthanasia is considered as its implementation by giving
morphine to patients who have very little chance of recovery and are just
waiting to die, but the right to die is not absolute. |
|
6. |
Canada |
Medical Assistance in Dying (MAID) Act, 2016 |
The Supreme Court of Canada decided unanimously to
allow euthanasia by establishing criteria and conditions that must be met
before euthanasia is carried out. |
|
7. |
Colombia |
Right to dignified death, 1997 |
Initially it was only allowed to be carried out in
terminal stage patients, then expanding to non-terminal stage patients in
2021. In 2018, Colombia also legalized euthanasia for children |
|
8. |
Australia* |
Right of the Terminally ill Bill atau
UU tentang Hak Pasien Stadium Terminal |
*) Australia adalah negara
pertama di dunia yang mengizinkan
eutanasia pada tahun
1995, namun 2 tahun kemudian UU tersebut ditiadakan oleh senat
Australia. |
On April 10, 2001, the Netherlands
passed a law permitting euthanasia, namely wet van April 12, 2001, hondende toetsing van levensbendiging op verzek en hulp bij
lijkberzorging or Review procedures for the
termination of life on request and assisted suicide and amendment of the
Criminal code and the Burial and Crime Act. This law came into effect on April
1, 2002, making the Netherlands the first country in the world to legalize
euthanasia. Prior to that date active euthanasia was a criminal offense,
whereas currently euthanasia in the Netherlands is protected by law based on
article 293 of the Dutch penal code (article 293 of the Dutch Criminal Code),
which reads:
Section 293
1. Any person who terminates the
life of another person at that other person�s express and earnest request,
shall be liable to a term of imprisonment not exceeding twelve years or a fine
of the fifth category.
2. The offence referred to in
subsection (1) shall not be punishable, if it is committed by a medical doctor
who meets the requirements of due care referred to in section 2 of the
Termination of Life on Request and Assisted Suicide (Review Procedures) Act
[Wet Toetsing Levensbe�indiging
op Verzoek en Hulp bij Zelfdoding]
and who informs the municipal forensic pathologist in accordance with section
7(2) of the Burial and Cremation Act [Wet op de Lijkbezorging].
�Currently in medical practice in Indonesia,
passive euthanasia is often carried out by hospitals. Requests for forced
discharge of patients at the request of themselves or their families are often
submitted by patients. Although this behavior will
result in faster death because the health services that should be provided to
patients are cut off. Various reasons for this decision include the inability
to pay medical bills which causes the patient to die naturally as a result of
his illness.
Based
on data obtained from the Gatot Soebroto
Army Hospital ICU, in 2020 there were 282 deaths out of 1322 patients, with a
mortality rate of around 21%. Whereas in 2021 there were 309 deaths out of 1924
patients with a mortality rate of 16%. If calculated on average, the data also
proves that the number of days a patient stays in the ICU is around 4 days.
This can happen because when the patient's condition decreases, the patient is
transferred to the palliative room and life support is stopped, while
continuing to provide basic assistance in the form of fluid infusion, oxygen,
food intake through a sonde. In general, in terminal stage patients, the
patient will die between 1-3 days after life support is stopped.
|
Visits and Deaths in the Gatot Soebroto Army Hospital ICU |
||||||
|
No |
Year |
Number of visit |
Number of Death |
Percentage of death |
Total |
Average days of hospitalization |
|
1 |
2020 |
1322 |
282 |
21% |
4851 |
3,669 |
|
2 |
2021 |
1924 |
309 |
16% |
6740 |
3,503 |
Questionnaires
were also distributed to 270 respondents, consisting of 105 (39%) male
respondents and 165 (61%) female respondents. Based on age, the respondents in
this study consisted of 94 people from the age group ≤ 25 years, 98
people from the age group 26-40 years, 44 people from the age group 41-50
years, and 34 people from the age group > 50 years. Meanwhile, based on the
level of education, there were 70 respondents with D3 education, 139 with S1
education, 53 with S2 education, and 8 respondents with S2 education.
Respondents with a Masters degree included doctors,
masters in health law, and doctors with masters in health law.
Tabel 3
Calculation
of Respondent's Score on the Euthanasia Consent Statement
|
No. |
Statements |
Score
number* |
Percentage
(score number/maximum score) |
Category |
|
1. |
If
the patient feels that he will not live long, he may refuse treatment at the
hospital and wish to die accompanied by his family |
1039 |
77% |
Agree |
|
2. |
Standard
requests for termination/delay of life support in terminal patients must be
stipulated in legislation, not only based on the doctor's considerations |
1130 |
84% |
Agree |
|
3. |
Passive
euthanasia must be strictly regulated in law because it is not a crime |
1090 |
81% |
Agree |
|
4. |
Doctors
must receive protection when a patient or family asks to stop life-sustaining
medical treatment for a terminal patient, because it is not the same as
murder |
1195 |
89% |
Totally agree |
|
5. |
Euthanasia,
especially passive euthanasia, can be applied as a form of justice for society |
904 |
67% |
Neutral |
|
6. |
Because
cancer has so far not been able to be treated with the expected results,
treatments that are futile may be rejected by patients/families |
798 |
59% |
Neutral |
|
7. |
Patients
in the ICU whose life expectancy is low can be replaced by patients who still
have a greater chance of survival due to limited beds |
775 |
57% |
Neutral |
|
8. |
Palliative
care is an integrated service to prevent and reduce the suffering of terminal
patients without taking treatment which is considered useless. This is the
same as passive euthanasia |
915 |
68% |
Neutral |
|
9. |
It
is necessary to reform the criminal law (Article 344) concerning death at the
request of the person himself |
1051 |
78% |
Agree |
|
10. |
Between
the Criminal Code and the Law on Hospitals and the Law on Medical Practice,
harmony is needed for legal certainty |
1189 |
88% |
Totally agree |
*)
Maximum score = 1350.
2.
Legal
certainty and protection in implementing euthanasia in Indonesia
Changes in society
require the existence of a legal system that has been in a static state.
Changing the laws of nature through natural selection means changing itself. If
the law is not changed, then there will be many obstacles, both those directly
related to the people's sense of justice and law enforcement issues. As long as
legal changes are responsive and follow the legal rhythms that live in society,
the law will always be in harmony with people's lives. Law is essentially a
living organism (es ist und wird
mit dem volke) as Von
Savigny said that law will continue to live and develop along with the
development of society, on the basis of its own authority (Soekanto, 2006).
The general principle of the Criminal Law Act (KUHP)
relating to the problem of the human soul is to provide protection so that the
right to live normally as human dignity is guaranteed. Under Indonesian law,
euthanasia is an act against the law. Indonesian positive law does not
explicitly regulate euthanasia. Article 344 of the Criminal Code which states
that perpetrators can be sentenced for a long time. This article says that
those who end someone's life at a sincere request will be punished with 12
years in prison and plus 1/3 if the person who did it is a doctor. This article
is considered legal and serves as a basis for those assisting in ending one's
life as a sincere request. This means that euthanasia is also regulated in that
article. Even so, euthanasia must be seen as a whole from a legal perspective,
not just based on one article.
According
to the pro euthanasia group. In patients who are gravely ill or in unbearable
pain, they should be given the honor of choosing the manner and time of their
death with the necessary assistance. According to Peter Singer, the progress of
human civilization today in the field of medicine has misunderstood the
sanctity of life that can keep patients alive with the help of instruments.
Whereas in permanent brain damage a person has lost his human nature. Having no
awareness, unable to communicate let alone enjoy life. Precisely maintaining
life like this means prolonging the suffering because the patient has no
quality of life anymore. Under these conditions Singer's Utilitarian Philosophy
emphasizes that there is no moral difference between killing and allowing death
to occur. The right to (decent) life implies the right to (decent) death. Death
is a private matter, and others have no right to interfere if it does not harm
other people or society. However, euthanasia needs to be regulated with the
right law to avoid a slippery slope. Euthanasia can avoid illegal acts, given
that euthanasia can still occur (utilitarian or consequentialist arguments) and
save extreme hopelessness from suicide or murder. Death is not necessarily a
bad thing, due to the nature of the phenomenon, whatever the cause. Euthanasia
can meet the criteria that a moral code must be universal, although it is not sufficient
for a rule to be morally good. Medical resources can be better managed, who is
in charge and to whom they can be applied (Calabr� et al., 2016).
CONCLUSION
In practice, the act of
discontinuing/delaying life support (withdrawing/withholding life support) in
terminal stage patients is an action that can be carried out based on statutes
in medical law. However, this is a dilemmatic condition and a problem in
Indonesia. On the one hand it relates to choices that require rational and
practical considerations while on the other hand it relates to the "right
to life". The governing regulations are Law no. 29 of 2004 concerning
Medical Practice, Law no. 36 of 2009 concerning Health, and Law no. 44 of 2009
concerning Hospitals. When viewed from the type of euthanasia that is carried
out in various hospitals, it is passive euthanasia in terminal stage patients
at the request of the patient or family in writing. That is in the form of
discontinuing life assistance which is considered useless (futile) by not
stopping the basic needs of life. In professional practice, doctors must still
uphold the principles of Sa science et sa conscience
(the intelligence of a health professional must not conflict with his
conscience and humanity), Agroti Salus Lex Suprema
(patient safety is the highest law), Deminimis noncurat lex (the law not interfering in trivial matters)
and Res ispa liquitur (if
the facts have been spoken there is no need for further proof).
Active euthanasia which aims to
kill life by committing an act against a patient under any circumstances is
still a criminal act (strafbaar feit)
which is punishable by sanctions according to the applicable Criminal Code.
Even though there are many cases of families of patients who are in a
vegetative state asking for the termination of their life support to be
revoked, it still makes the health workers who do it vulnerable to threats of
criminal law. Because there are no statutory regulations that explicitly allow
it. The Pancasila legal state must provide legal protection for its citizens
who do not have malicious intent (mens rea) against
the souls of their patients. Precisely this action is a manifestation of
humanity which does not have the heart to see prolonged suffering by making
vegetative patients die naturally without any effort to prolong their
suffering. In order to provide clear legal certainty for doctors, patients and
their families, legal regulations regarding euthanasia must be made
specifically because euthanasia is included in the legal principle of lex specialis or included in one of the articles of positive
law in Indonesia. Because there is a principle "Nulum
crimen sine lege
stricta" or no offense without clear provisions. Even though until now no
doctor has been charged with Article 344 of the Criminal Code due to
euthanasia. The article does not contain an element of intention that is
different between ordinary murder and euthanasia. Euthanasia is not an act that
arises instantly, but is a process that begins with a decrease in health and
even awareness.
In order for the implementation of
passive euthanasia on terminal stage patients who fulfill human values based on
Pancasila as the fundamental principles of the staatsfundamentalnorm
state to be implemented in Indonesia, stringent requirements must be met. There
needs to be a legal regulation on euthanasia as an ius
constituendum which is made specifically so that
doctors and other health workers have legal certainty so that there is no doubt
in taking action in providing medical services. Because the function of law is
necessary for the integrity of society. Passive euthanasia and certain
euthanasia of patients with terminal conditions require strict management. The
established regulations will provide certainty which behavior is permitted and
which is prohibited.
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