Bialystok Legal Studies vol. 28 no. 3
Tomasz Dzierżanowski, Gregory B. Crawford, Philip Larkin, Rafał Kubiak, Tanja Krones
The Need for Advance Care Planning as a Pivotal Means for Respecting the Patient’s Will in Poland: Learning Points from Swiss and Australian Models
Abstract: Self-determination is pivotal for a patient’s autonomy. Decisions at the end of life should reflect the human right to decide on the last days of life according to personal beliefs, philosophy, preferences, and values. Advance Care Planning (ACP) aims to ensure that patients receive medical care consistent with their values, goals, and priorities during progressive life-threatening chronic illness. We present decades-long experience of the implementation of ACP in different legal systems, in Switzerland and Australia, and the current legal situation of pro futuro statements in Polish law. Irrespective of jurisdiction and despite the apparent benefits of ACP, its implementation may face numerous impediments, i.e. poor public health messaging, a lack of skilled, trained personnel to deliver and sustain ACP initiatives, misunderstanding of the practical application of an advance care directive in real terms, and misperception of ACP as a form of crypto-euthanasia. Addressing these impediments would be a prerequisite for its successful national implementation. Furthermore, successful implementation needs public dialogue, collaboration between legislators and healthcare professionals, and engagement with the public, patients, and caregivers to foster a greater understanding of the true meaning of self-determination.
Keywords: Advance Care Planning, end of life, palliative care
Page range: 9-32
Abstract: The aim of this article is to reflect on the model of palliative care in Poland from the perspectives of a person at the end of life and their carers. A large part of the considerations is focused on terminological issues, the presentation of which is extremely important, because not only does it illustrate the evolution in the approach to palliative care, but it also defines the personal aspect of support related to the person at the end of life and their carer. An extremely important element of the article is the presentation, based on the current legal status, of the basic assumptions of palliative care in Poland by showing the forms of support addressed not only to people at the end of their lives, but also to their carers. It should be emphasized here that this care should take on a holistic dimension, going beyond the legal and institutional sphere, hence some of the considerations are also devoted to social, spiritual, emotional or information support, which from the point of view of these people is also extremely important. The article also attempts to indicate specific normative solutions requiring intervention by the legislature, due to the demographic and epidemic challenges facing the Polish state.
Keywords: actual guardians, hospices, legal guardians, palliative care, support
Page range: 33-52
Piotr Jakubów, Karolina Niedźwiecka, Julia Kondracka, Aleksander Turczynowicz, Szymon Kocańda, Agnieszka Malarewicz-Jakubów
Legal and Medical Aspects of the End of Human Life from the Perspective of Palliative Medicine Related to Cardiac Surgery
Abstract: Despite the impressive developments in modern medicine, the healthcare system is still associated with human death. Medicine has made great strides in the treatment of many diseases. The procedures are particularly advanced in, e.g., cardiac surgery, vascular surgery, and other fields. However, despite these efforts, not all patients are cured, and the use of aggressive treatment often contributes to their suffering. This does not mean that patients should be left unattended at the end of their lives.. Palliative medicine deals with patients coming to the end of their lives, concentrating on alleviating suffering and improving quality of life. It is a medical speciality focused on a wide range of interventions, including symptom management, communication, and psychosocial and spiritual support for patients. Patients undergoing highly qualified procedures, for whom causal treatment is not possible, should have the right to such care before death. However, according to medical practice and national legal regulations, it is not always possible to provide this care, despite the anticipated death. This article presents the legal and medical aspects of the end of life from the point of view of the European and Polish healthcare systems.
Keywords: cardiac surgery, end of life, palliative medicine
Page range: 53-70
Małgorzata A. Świderska
Legal Aspects of Futile Therapy in the Face of the End of Life
Abstract: This article presents legal issues related to therapeutic decisions made by doctors and to euthanasia and assisted suicide, which are prohibited and penalized in the Polish legal system. The paper refers to the terms ‘futile therapy’ and ‘over-zealous treatment’. It was also considered appropriate to refer to the concept of resuscitation, which can be understood narrowly as cardiopulmonary resuscitation or broadly as all activities aimed at potentially reversing the dying process. Completion of resuscitation as it is broadly understood means that (unless there has been recovery) it is considered a futile therapy. De lege lata there are no statutory regulations in the Polish legal system that could be directly related to the decision to abandon futile therapy in order to assess its legal legitimacy. The aim of the study is to present the problem of futile therapy de lege lata and de lege ferenda in the face of the end of life. The article also presents the latest draft of legal regulation regarding futile therapy developed by an interdisciplinary team appointed by the Patients’ Rights Ombudsman in the form of ‘Standards of conduct in medical therapies used in the end-of-life period’.
Keywords: end of life, futile therapy, resuscitation, withholding or withdrawing from therapy
Page range: 71-107
Euthanathic Homicide: Ending of Life or Shortening of Dying?
Abstract:The subject of the article is the analysis of Art. 150 of the Polish Criminal Code – criminal liability for euthanasia. The paper presents arguments indicating a narrow understanding of Art. 150 of the Polish Criminal Code that it penalizes only extreme cases of shortening the dying of a human being. Some arguments for the claim that Art. 150 of the Polish Criminal Code covers a wide spectrum of situations, not limited to accelerating the dying process of the victim, has been also presented. As a result, it has been clarified that the provision of Art. 150 of the Polish Criminal Code applies to all situations of ending the human life at the request of he or she and under the influence of compassion for her or him.
Keywords: compassion, criminal law, demand, euthanasia, homicide, interpretation of law
Page range: 109-123
Abstract: This article raises the issue of critical medical decisions made in the interest of small children. It seeks answers to the questions of whether there are any differences in this field’s attitude towards adults and what the criteria for life and death decisions should be for persons who are legally dependent and unable to declare their position. The concept of so-called parental autonomy in making treatment decisions for children and situations in which they may be limited by the assessment of doctors and by the supervisory function of the guardianship court. The overriding principle of the best interests of the child is compared with the British concept of best interest and is confronted with the newer concept of threat of serious harm, which is considered better at respecting privacy and giving parents more powers. The mechanism of conflict resolution between parents and doctors is shown through the example of court decisions in the cases of Charlotte Wyatt, also known in Poland, Charlie Gard and Alfie Evans, and then is transferred to the Polish example of Madzia Weakling. The considerations end with the conclusion that the best interests criterion is pragmatic and a non-principal development of the principle of the best interests of the child, within the context of protection against the unbearable suffering of living or dying in agony, which is also important.
Keywords: best interests, futile therapy, welfare of the child
Page range: 125-158
Beata M. Janiszewska
Property Protection of the Patient’s Right to Die in Peace and Dignity
Abstract: The issue of protecting the patient’s right to die in peace and dignity is presented in this paper. The following were analysed: the concept of patients’ rights, the content of the patient’s right to die in peace and dignity, and Art. 4 Sec. 2 of the Act of 6 November 2008 on Patient Rights and the Ombudsman for Patients’ Rights. In addition, the legal entities who are entitled to claims in the event of a culpable violation of the patient’s right to die in peace and dignity have been defined.
Keywords: demand for payment of an appropriate sum for the indicated social purpose, patients’ rights, patients’ right to die in peace and dignity
Page range: 159-179
Ewa Michałkiewicz-Kądziela, Goran Šimić
The Right to Dignified Death: A Comparative Legal Discussion of Euthanasia and Assisted Termination of Life
Abstract: The discussion of legal aspects of euthanasia and assisted termination of life has been going on for many years. It touches upon complex topics such as legal, moral, health, religious or societal issues. In terms of human rights, it focuses primarily on juxtaposing the right to life with other rights, such as the right to privacy, the right to decide for oneself, or freedom from torture and inhumane treatment. At the level of international law, the European Court of Human Rights has not decided to establish uniform standards for the protection of the right to life regarding euthanasia and assisted termination of life, allowing the application of the principle of freedom of assessment by the signatory states of the Convention for the Protection of Human Rights and Fundamental Freedoms. The consequence of this is the establishment by individual countries of non-uniform legal regulations, which leads to a differentiation in the legal situation of their citizens. The purpose of this article is to determine whether it is possible to derive a universal right to dignified death, and what the consequences of a lack of an international standard on legal regulations in the field of euthanasia and assisted termination of life are for the protection of human rights.
Keywords: assisted termination of life, euthanasia, human rights, right to dignified death, right to life
Page range: 181-195
Leszek Bosek, Jan Bałdyga
‘Wrongful Life’: New Highlights in the Jurisprudence of the German Supreme Court
Abstract: The prevailing view in international jurisprudence is that no one can claim compensation for the fact of being alive. This view was developed based on so-called ‘wrongful life’ cases, in which, due to medical malpractice, parents were deprived of the opportunity to perform a legally permitted abortion, resulting in the birth of a disabled or unwanted child. A new chapter in this category of claims was opened by the case under review. The German Supreme Court took up what, in view of the ageing of Western societies, is a very topical and socially difficult issue of a son’s claim for damages for keeping his father alive. The ruling concerns a special category of civil claims so far not commented on in Polish literature or jurisprudence – ‘wrongful survival’. The German Supreme Court rejected the possibility of claiming compensation under German law for prolonging human existence, even if it involved suffering. Much of the reasoning of the Court is also applicable under Polish law. However, depending on the interpretation of the norms concerning the patient’s right to self-determination, the possibility of partial compensation for the costs of unlawfully keeping someone alive also seems to be acceptable under Polish law.
Keywords: material damage, medical malpractice, non-material damage, right to self-determination, wrongful life, wrongful survival
Page range: 197-213
Józef Binnebesel, Zbigniew Formella, Halyna Katolyk
The Thanatopedagogical Context of the Multidimensionality of Mourning
Abstract: Upbringing is one of the main elements of human activity, which prepares one for one’s future life, giving one an opportunity to gain experience and confront reality. Contemporary mainstream pedagogical literature omits the only element of human existence that must happen, i.e. death. This absence determines a number of problems of an ethical, intellectual, organizational and practical nature in pedagogical works and analyses. A certain answer to this silence in pedagogy is thanatopedagogy, emerging and developing in Poland, which, with its scope of considerations and practical activities, captures a wide spectrum of the experience of mourning. A thanatopedagogical approach to the subject of mourning allows us to look at it through spiritual and religious, biological and physical, medical, psychopedagogical, socio-cultural, legal and economic prisms. Such a broad interdisciplinary approach also allows us to look at mourning as an all-encompassing process of experiencing oneself as an individual as well as experiencing oneself as part of culture and society.
Keywords: mourning, thanatic fear, thanatopedagogy, upbringing, therapy
Page range: 215-258
Abstract: Since the Roe v. Wade decision was announced (1973), the question of abortion has constituted an important element of American constitutional discourse. This article analyses the most recent decision of the United States Supreme Court on this matter, i.e. Dobbs v. Jackson Women’s Health Organization, which rejected the thesis that the Constitution establishes the right to terminate pregnancy. It is possible to identify three fundamental points of the Court’s opinion. First, the Court allowed lawmakers to accept an ontological assumption that a foetus is a human being. Second, the decision was rooted in the doctrine of moderate originalism and in the concept of substantive due process, limited by historical factors. Third, the Supreme Court adopted a liberal interpretation of the stare decisis principle, consenting to the overturning of precedents even if they introduced new civil rights. The author contends that it is highly unlikely that the decision will constitute the last word of American jurisprudence on the question of abortion.
Keywords: abortion, Dobbs v. Jackson Women’s Health Organization, Roe v. Wade, United States Constitution, United States Supreme Court
Page range: 259-277
Abstract: This article aims to assess whether the criminal law regulations on causing human death are consistent with each other, but primarily whether they are coherent with the axiology of the entire legal system in that area. First, the author presents the significance of axiological consistency and – based on the Constitutional provisions, rulings of the Constitutional Tribunal and arguments of representatives of the doctrine – decodes the basic assumptions relating to the protection of human life. Further, by means of an examination of the provisions of the Criminal Code and the law on infertility treatment, the author diagnoses a state of complete axiological inconsistency in the area of a criminal law response to causing death, pointing to the causes of that state of affairs. The significance of axiological consistency indicated at the outset (on numerous levels) does not let one ignore that conclusion.
Keywords: axiology of criminal law, causing human death, embryos, human dignity, human life, nasciturus
Page range: 279-298
Abstract: On 17 November 2022 in Alabama, the death penalty by poison injection was scheduled to be executed on Kenneth Smith. His case is a disturbing example of the use of judicial power (known as ‘judicial override’) in the state law of Alabama that allowed the judge, at the time of the verdict in 1996, to overturn the jury’s decision recommending the choice of life imprisonment without parole instead of the death penalty, and thus give a final death sentence. The article presented here first provides a general analysis of the provisions of the federal constitution, relevant case law and federal legislation on the death penalty, and then presents an overview of state solutions to the death penalty. The key parts of the text deal with the institution of ‘judicial override’: its genesis and practice in the state of Alabama, and the application of the relevant legislation to the Kenneth Smith case. It argues that mechanisms such as ‘judicial override’ and their consequences strengthen the narrative of those arguing against the death penalty in the social and political debate.
Keywords: Alabama state law, death penalty, Eighth Amendment to the U.S. Constitution, judicial override, powers of the judge
Page range: 299-314
Agnieszka Cybulska-Bienioszek, Aleksander J. Witosz
The Death of an Insolvent Entrepreneur in the Light of Bankruptcy Law Regulations
Abstract: This study aims to identify and analyse the specific regulations of the Bankruptcy Law to the extent that they relate to the death of an insolvent debtor. The authors attempt to determine the correct interpretation de lege lata, and where it is justified, draw conclusions de lege ferenda. Due to the fact that regulations must be interpreted together with the provisions of inheritance law and other regulations, their correct interpretation may be difficult. This study contains an analysis of three possible cases: when death occurred after the filing of a bankruptcy petition, during the course of bankruptcy proceedings, but also on the brink of bankruptcy before the petition was filed by an authorized person. In the event of death after filing for bankruptcy or after its declaration, the problem is essentially of a procedural nature and is generally resolved by identifying the persons participating in the proceedings (usually a trustee). On the other hand, in the event of the death of an insolvent entrepreneur before they file for bankruptcy, the Bankruptcy Law provides for a separate procedure. At the same time, it seems that due to the distinctness of this situation, the introduction of a different, specific definition of insolvency is justified, which the authors present in this study.
Keywords: bankruptcy, death, insolvency, insolvent entrepreneurs
Page range: 315-329
Małgorzata Balwicka-Szczyrba, Marcelo B. Zamorano, Witold Kurowski
Selected Aspects of Testaments Made by Elderly People in Chilean and Polish Law
Abstract: The subject of this study is an analysis of the Chilean and Polish legal orders in terms of ensuring the correctness (and thus the validity and effectiveness) of making a will, with particular emphasis on the legal situation of elderly people with old-age dysfunctions. This issue has an important social dimension in the face of the global ageing trend and age-related progressive senile dementia. Showing the legal solutions regarding testamentary inheritance in Chilean law, as a law based on the Roman tradition, as well as the positions of jurisprudence, has not only a cognitive value. It should be assumed that the analysis of both legal orders will allow for the formulation of conclusions regarding the applicable legal regulations in the field of inheritance law in relation to the phenomenon of ageing societies on a global scale. This article also provides a comment on the law applicable to the capacity to make a will in Chilean and Polish law. Similarity between regulations pertaining to the capacity to make a will in Chilean and Polish law does not eliminate the obligation to determine the law applicable in this regard.
Keywords: ageing, old-age dysfunctions, capacity to make a will, Chilean law, conflict of laws, Polish law, testamentary inheritance
Page range: 331-345