The State of the Law on Euthanasia in Kenya

The general position of the law on euthanasia worldwide is that all states recognise their duty to preserve life. Courts in various jurisdictions have refused to interpret the 'right to life' or the 'right to dignity' to also include the 'right to die'. Instead, they have held that the state has a duty to protect life. Three categories can however be noted. At one extreme are those countries that have totally criminalised any appearance of euthanasia. In the middle are countries that prohibit what appears to be active euthanasia while at the same time tolerating 'dual-effect' treatment and withdrawal of artificial feeding. At the other extreme are countries that allow euthanasia. Even in this last category of countries, there are stringent guidelines embedded in the law to prevent a situation of 'free for all'. Anecdotal evidence, some empirical studies and case law seem to suggest that euthanasia goes on in many countries irrespective of the law. Euthanasia is a criminal offence in Kenya. However, there have been no empirical studies to ascertain whether euthanasia goes on in spite of the law. This article surveys the current state of the practice of euthanasia globally and narrows down to elaborate on the state of affairs in Kenya.

Fluctuating Capacity and the Strategic Role of Self-Binding Directives in Preserving Autonomy

The purpose of this article is to examine the concept of fluctuating capacity and its intricacies, identifying the issues that can inform the development of provisions in this area. The paper seeks to challenge the current binary approach applied in this context by showing that the lack of legal principles governing the concept of fluctuating capacity renders people in this category vulnerable to being denied autonomy. It proposes a conceptual definition for the determination of fluctuating capacity and suggests the use of self-binding directives as a measure to overcome the setbacks of the binary approach. The paper also proposes expanding the application of self-binding directives to include a wider scope of disorders with episodic features, adding to the debate on the autonomy and rights of people with bipolar disorder. The ethical justification for adopting self-binding directives in this context is the safeguarding of autonomy when individuals prefer to extend their autonomy beyond moments of incapacity.

Understandings of Detriment for Resolving Frozen Embryo Disputes

Continuing my previous reference to Alise Panitch's argument that estoppel would be a useful tool for resolving frozen embryo disputes, this article develops her research with reference to the condition of detriment in estoppel. Though Panitch refers to the 'time, money, and psychological commitment necessarily expended in pursuing the full commitment (of IVF)', these notions with respect to detriment have been significantly overlooked, especially in the courts and to a lesser degree in academic literature. This article will accordingly contemplate the physical, psychological and financial detriments to gamete providers if embryos are used against their wishes. Detriment can operate in a variety of circumstances and this article details how detriment could affect women who have sustained repeated failed IVF cycles, and how age affects the subject as well. Following this discussion, it is considered how detriment may affect men and gamete providers not seeking implantation. This leads to a conclusion that detriment is a more significant factor for the female gamete provider seeking implantation.

Dementia & Euthanasia: doubts regarding Advanced Dementia and Advance Directive

Severe doubts have arisen in the Netherlands about the applicability of an advance directive in the case of patients with advanced dementia requesting euthanasia. This applicability is firmly based on a widely accepted reading of the relevant subsection of the Dutch euthanasia law. I will question this reading and propose and defend an alternative reading. Arguments are supplied by the actual text of the subsection, by the moral doubts about ending the life of a patient who is hardly aware of what is happening, and by details from the first euthanasia case to go to court in the Netherlands, with the Supreme Court ruling of April 2020. As to euthanasia, alternatives are presented for the patient with a strong conviction and determination 'never to reach that state', the state of advanced dementia.

Personal responsibility for health: the impact of digitalisation

Fostering the personal responsibility of patients is often considered a potential remedy for the problem of resource allocation in health care systems. In political and ethical debates, systems of rewards and punishments based on personal responsibility have proved very divisive. However, regardless of the controversies it has sparked, the implementation of personal responsibility in concrete policies has always encountered the problem of practical enforceability, i.e.how causally relevant behaviour can be tracked, allowing policies of this kind to be applied in a fine-grained, economically viable and accurate fashion. In this paper, we show how this hurdle can be seemingly overcome with the advent of digitalisation in health and delineate the potential impact of digitalisation on personal responsibility for health. We discuss how digitalisation – by datafying health and making patients transparent – promises to close the loophole of practical enforceability by allowing to trace health-related lifestyle choices of individuals as well as their exposure to avoidable risk factors. Digitalisation in health care thereby reinforces what Gerald Dworkin has called the causal aspect of personal responsibility and strengthens the implicit syllogism that – since exposure to risk factors happens at the individual level – responsibility for health should be ascribed to the individual. We conclude by addressing the limitations of this approach and suggest that there are other ways in which the potential of digitalisation can help with the allocation of resources in health care.

An idea alien to both worlds: why health care rationing is not acceptable in the USA and Russia

The simple idea of rationing appears unacceptable both for the relatively poor "socialist" health care in Russia and for the most expensive USA health care. In Russia the idea of rationing is unacceptable, because the Constitution promises free and unlimited medical care. Therefore, discussion is blocked from the top. In the USA the idea is unacceptable, because citizens are understood as having the right to free choice of legal access to any care, without intervention of a 'death jury'.<br/> We analyse the similarities and differences in the arguments rejecting explicit rationing in health care in the USA and Russia. We describe the legal framework in Russia related to rationing, and the results of a qualitative study of the understanding of the concept of rationing by Russian doctors and of the practices in Russian health care organizations to limit the use of expensive diagnostic and treatment options.<br/> While the Russian Constitution promises free medical care, unlimited, legally there are limits imposed by the quota of specific treatments, limited access to care abroad, and problematic access to drugs not included on the essential drug list for inpatient care. Explicit rationing is not rejected by society or by the medical profession. In medical organizations the more explicit techniques are a second opinion by a committee (physicians' commission), especially in the case of prescription of drugs and diagnostic tests. Physicians tend to behave as medical professionals do: provide more care to people in greater need.

Rationing in the English NHS and the Tension between Patient Choice and Solidarity

Solidarity is a principle that underlies the English National Health Service (NHS). While intended to be comprehensive, since its inception financial constraints meant that limits have been placed on the availability of NHS health care. Health care has been rationed in a number of ways but English law demands that any such rationing policies by public bodies must allow for exceptions in special cases. When a patient makes an individual funding request (IFR) for such a treatment it is a question for the health authority to decide on the merits of the IFR whereas in any subsequent judicial review proceedings the court considers that decision in terms of its legitimacy, procedural propriety and reasonableness. To avoid judicial review of decisions health authorities are often inclined to accede to patients' requests because litigation, apart from being costly and time-consuming for the authority, also sets new precedents. This has led to suggestions that solidarity is being eroded in the NHS since resources that are spent on such requests by patients mean disinvestment from other areas of the NHS. This paper argues that enabling individual choice may in effect support a collective commitment to a solidaristic health care system. Rather than encroaching on the principle of solidarity (intended) litigation by patients destabilises the health care system and leads to much needed change and reform. Not only do the potential ramifications of (intended) litigation go beyond the immediate consequences for the parties to the action, but the need to account for rationing decisions by the health authority in public makes the system accessible to broader interests. Patient treatment choice can thus be seen as an affirmation of a commitment to solidarity that is also supported by the increased emphasis on patients taking responsibility for their own health with the aim of reducing NHS costs.

Health care rationing in Italy: right to health vs. budget constraints in a regional-based health system

After the enactment of the 2001 Constitutional Reform Act, the Italian health system consists of as many as 21 regional health systems. The central government retains the public task of ensuring that all citizens, regardless of their territorial residence, may access the same universal and equitable health services and provisions.<br/> After the economic crisis of 2007/2008, as has been the case in many other EU MSs, the Italian central government has decreased public expenditure on health care. Not only has such an approach undermined citizens' fundemental right to health. It has also triggered a fierce confrontation between regional governments and the State, which has also been the object of some rulings of the Italian Supreme Court.<br/> Against this background, the paper aims to analyse the impacts that health care rationing has on the organisation of health and care services and on the evolution of social enterprises as health providers.