In the light of the events of June this year regarding death 17-year The Dutch women of Noa Pothoven in the media rekindled a discussion on the right to euthanasia and so-called assisted suicide.
Noa Pothoven, unable to cope with the traumatic events she experienced as a child, decided to take her own life. A large part of the media reported incorrectly that Noa Pothoven was euthanized, while the girl died of cessation of fluid consumption and food. According to the information available on the subject, parents of girls and doctors decided to respect the decision 17-year Noa and they decided not to go against her will to feed and medicine[1].
The above-mentioned case and institutions such as euthanasia or assisted suicide remain a highly controversial issue which is reflected in the legal regulations relating to the issues in question.
Prohibition of euthanasia
Euthanasia is defined as being caused by compassion to deprive a person of life incurably at his request[2]. In the Polish legal system, euthanasia known as "a euthanatic killing" is a privileged type of murder due to the particular motivation of the perpetrator.
The legislator regulated the euthanic killing under Article 150 Act dated 6 June 1997 Criminal Code (Journal of Laws, item 553, i.e. dated 20 July 2018 Journal of Laws of 2018, item 1600 hereinafter referred to as ‘KK’).
According to Article 150(1) KK “who kills a man at his request and under compassion for him is subject to imprisonment from 3 months to years 5. In exceptional cases, the court may apply an exceptional leniency or even waive its imposition (Article 150(2) KK)’.
Criminal liability for assisted suicide
Instead, assisted suicide involves deliberately helping another person to end his life, to make a voluntary and conscious request. Unlike euthanasia, in which the act rests on another person who administers lethal measures, in assisted suicide the act rests on the person who wishes to end his life.
An act of assisted suicide is either a consensual act or a medical or other health care professional. In other words, it is assisting in medical activity, which then results in death, or exerting an influence on the psyche of the sufferer to induce her to take her life[3].
Suicide aided as in the case of euthanatic killing is penalized in the light of the Polish Criminal Code. Depending on whether assisted suicide would be aided by suicide or failure to provide assistance, the basis of criminal responsibility would be completely different.
According to Article 151 KK A person who instigates or by providing help leads a person to commit himself to his own life is subject to the penalty of deprivation of freedom from 3 months to years 5. Also, if adequate resources were provided and instructions were given regarding the harm to his own life, the person would be liable under the above-mentioned legal provision.
Diversification of the criminal liability base in case of non-grant of aid
If the aid is not granted, the basis of liability will depend on the person responsible and the facts of the situation.
In principle, each person based on Article 162 The CCC is subject to criminal liability for failing to provide assistance to a person in a situation that threatens to be directly threatened by the risk of loss of life or serious damage to health.
Due to the disposition Article 162 KK, there is controversy as to whether it should be held criminally liable, in particular doctors.
Most authors and judicatures postulate that Article 162(1) KK may be the legal basis for bringing a criminal practitioner to justice for failing to give another person medical assistance only if there has been no legal obligation to take care of the person who is exposed to a direct risk of loss of life or severe health damage, i.e.
when he was not a guarantee of the safety of the individual.
However, when a doctor is a safety guarantor for a person and has a legal obligation to prevent the consequences of his or her loss of life or health, he or she will be responsible for not providing assistance with Article 162 If such a fact occurs and for the act will be penned on the basis of Article 160(2) KK (or section 3 in conjunction with section 2) in the form of an exposure of the subject to a direct risk of loss of life or severe injury to health.
This qualification is a legal failure to provide medical assistance, in particular when a doctor is required to care for patients in a hospital or other healthcare facility[4].
Separation from life support
As indicated above, conducting euthanasia or assisted suicide is a prohibited act in the light of Polish criminal laws. In Poland it is possible to separate the patient from life support apparatus only if the so-called brain stem death is found. The moment of human death is determined according to Article 9 Act on 1 July 2005 on the collection, storage and transplantation of cells, tissues and organs (Journal of Laws of 2005, item 1411), on the basis of a permanent, irreversible cessation of brain function.
1 https://www.newsweek.pl/swiat/noa-pothoven-tragiczna-historia-i-smierc-17-latki-z-holandii/bfc0jfh
2 https://encyklopedia.pwn.pl/haslo/eutanazja;3899253.html
3 Pacian Jolanta, Legal obligation to protect life and health and euthanasia, cryptanasia and assisted suicide; Public Law Review Regulation (EU) 2/2016
4 The penal code. Comment ed. prof. dr hab. Ryszard Stefański Legalis 2019
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.