Dr. Andraž Teršek, Professor of Constitutional Law,
Faculty of Education & Faculty of Humanities, University of Primorska and European Faculty of Law, New University.
“It might be a good time for public health experts to move from the mental health as one of the health determinants to the mental health as the main health indicator of the interplay between the unpleasant life circumstances or events on one side and the quality of health care on the other. Life events and circumstances are known to have a considerable effect on our health in general with the mental health being the most acutely responsive and as such the most sensitive one. As such, the mental health should be developed into a most sensitive health indicator indicating some possible effects of a different quality of health care on one hand or life events and changed life circumstances on the other.”
Meaning? There is one health only! Human health should be understood holistically: psyche (mentality) plus physiology / physicality, as part of one whole. And, the conclusion seems in place, there is one death with dignity only! This is the main purpose, the central message of my essay.
The Right to Life Includes the Dignified Death
In this essay, I will not directly address the human and constitutional right to “dignity” and to the legal protection of a “decent life”; of any individual-as-person, in a social sense. In my homeland, The Republic of Slovenia, EU Member State, I have been publicly repeating for many years, as a warning and as an appeal to the State and the general public, the right to life as such is still not appropriate, legally correct and effectively protected. Having expressed that I was and still am thinking directly of this: the right to LIFE, the right FOR LIFE, the right to “live life” until it ends in – its natural – death, in DIGNITY.
At the time of the officially declared 2020 Coronavirus pandemic, this problem was exactly what it was: the life itself was placed at the core of the issue, of the events. nationally and globally. Especially the lives of people who, due to age or previous and other existing illnesses, represent the most endangered group of people – the elderly and terminally ill. Many of those people, as can be seen from the reports of EU commissions and committees, form the Slovenian National Institute of Public Health and related institutes in other EU Member States, weren’t given and secured the optimal nursing, medical and psychological care. Well, there were substantial differences among EU member States in this regard. For example, while in Slovenia 80% of deaths which were presumably the direct consequence of the COVID-19 virus included the elderly over 75 y. o. or more, in a neighbouring Austria this population represented only 20% of the deaths – according to the media reports and interviews with doctors or other medical professionals done by the Slovenian public television. Quite a difference, one would argue? We may have some doubts about this information and it cannot be taken so easily as categorically reliable. And data on this vary from one EU member State to another. Yet we timidly come to a conclusion – by searching through the internet and combining the publicly offered messages from management in nursing homes and from official State statistics – the elderly and terminally ill were the most endangered population. I have in mind the people whose lives were running out quickly, due to terminal illness even before the actual state of emergency (de iure or –only- de facto) came into force at the time of the pandemic. Many lives of those people – unfortunately – were lost during the pandemic. Should we be concerned about this fact? I claim we should and must be very concerned.
The media, in Slovenia and other European countries, reported on the situation in homes for the elderly and (mostly terminally) sick as being hard to bear, especially difficult, risky and problematic. In Slovenia, some homes for the elderly and terminally ill were particularly exposed: as particularly risky, understaffed and overcrowded. The medical profession community and daily politics have tried to comment on the situation in these homes. Some of them have denied the existence of “special concern and dire straits,” some of them have confirmed it. The media and investigative journalists are trying to figure out what was really going on and what were the actual consequences of the situation during the pandemic in these homes. There are indications that not everything was as it should be. The media and the public demand and wait to final findings.
At first only politicians were addressing the public about what is happening in general and about what is happening in these institutions. Over time, representatives of medicine, psychology, psychiatry and psychotherapy began to appear in the media in greater numbers and with more media attention. They tried to explain the general conditions and feelings of the elderly as the most endangered population, their mental and physical sensations, with explicit emphasis on the increase of such health problems which directly affected this population in pandemic times: how to medically and psychologically treat those people, how to alleviate their suffering, how to calm them down etc. And they also warned that this problem will not end after the official announcement of the end of the pandemic (which came first in Slovenia, Austria and Hungary being second).
On the contrary, it is very likely that this particular problem will intensify after the pandemic (or even, as the WHO and so many doctors and medical scientists across the Europe say, after its “first wave”). But there is also reason to ease the concern: due to the latest medical evaluations and predictions the impression is, and this can fill us with optimism, that the effort to address the public encouragingly is also intensifying. In Slovenia and elsewhere in Europe.
The People’s Testimonies of the Facts
During the pandemic, I received many letters and messages addressing this topic. People wrote to me about the care given to the elderly. The relatives of the elderly living in nursing homes and similar institutions expressed concern, based on their experience during the pandemic, that they were not being cared in the best way possible. In a medical and psychological sense. I made a promise, at their request, that I would write to the minister responsible for the health department and the president of the Slovenian parliamentary party, which puts the care of pensioners and the elderly in the first place of its daily policy. I kept my promise. And both, the minister and the president of this party responded: quickly, especially to the difficulty and diversity of their work during the pandemic, politely and kindly. With a commitment that they will do their best in this direction as well: in the direction reflected by the letters I have received. The people wanted the two of them to address the public more, frequently and with some optimism, also with the special emphasis on the urgency to act and on the legal, not only political, duty of the State Administration and State’s institutions in order to optimally take care of this most vulnerable group of people.
The Quality and Availability of the Palliative Care
“Other research indicated that many people who requested physician-assisted suicide withdrew that request if their depression and pain were treated. In their experience, palliative care could in virtually every case succeed in substantially relieving a patient of physical and psychosomatic suffering.”
For several years now, I have been publicly warning in Slovenia that the State – or any of the EU Member States – is legally obliged, by the Constitution and international law, to provide quality and effective, systemic and institutionally regulated care for the elderly and terminally ill people. Especially those rapidly approaching the moment of the end of life in a natural way (voluntary euthanasia and physician assisted suicide being excluded as prohibited by the law). And that this is also an explicit request of the ECtHR case-law, explicitly explained in the judgments of this Court. The right to life as such, in itself, also includes the legal duty of the State to take appropriate care of the terminally ill and dying people; through legal policies and legislation, or through systemic mechanisms and appropriate institutions. It is an integral part of s. c. constitutional doctrine of positive obligations of the State. According to this doctrine, which is an integral part of common European law, the State must do everything that can be reasonably expected of it to optimally regulate the living situation of terminally ill and dying people. To regulate effective institutional care for them and thus ensure that they spend as dignified, peaceful and humane time as possible in their torments, suffering and spending of the last days in this world. The State must do this because of the existing and confirmed human right to a dignified life; because of its legal obligation regarding the right to dignified life – which includes the dignified natural death. By other words, this right also includes the right to a dignified and as painless as possible waiting for death.
For so many years, I have been publicly repeating in my homeland, over and over again, that the State must therefore either establish and run a system of hospices and other palliative care facilities or help privately established hospices and palliative care providers as much as possible; legally, financially and systemically. Above all, the State must not allow these institutions to be less and less in numbers, or to have less and less professional staff available, not to say less and less money… The State must not allow, or even cause – due to its policies and financing – for these institutions to close their doors and to fail, to cease to function – due to lack of the staff and money. For the State Administration to allow this to happen would not only be to act immorally and ethically unacceptable, but it would also be a violation of the State’s legal duty: both, under the Slovenian Constitution and under the common European law: the legal order of the EU as such and the ECtHR case-law.
If the state doesn’t do this, or if it doesn’t do so in efficient and persuasive manner, it is legally, not just politically, responsible for failing to fulfil its positive legal obligations and for violating the right to life as such– of these people and their loved ones. This also applies in any case where the State does not provide financial assistance to those who carry out such an activity, thus making their work significantly more difficult or even impossible.
The waiver of this duty of the State in such a case allows (or calls for) the initiation of legal proceedings – legal proceedings against the State. The victims – the sick, the dying and those closest to them – can sue the State before national courts for damages, and, if doing so unsuccessfully, later also before the ECtHR – if nothing more for just satisfaction, materially based on an indirect violation of the right to life. I believe that such legal actions against the State should also be allowed before the Court of Justice of the EU.
As a constitutional lawyer and a citizen, I therefore propose that individuals who have a legal interest bring legal actions (lawsuits) for damages against their country in the national courts. In EU member States where the law (statutes) allows the filing of so-called class actions, this this legally institutionalised mechanism should be used also. Even if national courts are not able to deal professionally and ethically with these cases and resolve this issue in a judicial manner, the way to the ECtHR must be open in all such cases.
In such cases, lawsuits could amount to hundreds of thousands of Euros. After all, it is THE right to life, combined with a right to human dignity, a right to live and die in dignity, a right for living in dignity; a right that is above all other fundamental human rights.
In such cases, the legal action, the lawsuit, can be brought to the courts with a description of the facts, with a convincing explanation of the reasons for claiming that the State has not fulfilled its positive obligations regarding the right to life, as well as with a flat financial assessment of the damage caused: for material and non-pecuniary damage. The lawsuit can be filed by legal representatives of hospices, other similar palliative care facilities, relatives or other persons who are intimately closest to the dead or terminally ill, or by the latest themselves; by the directly affected people / patients / terminally ill / dying.
Last but not Least
»Doctors, nurses and allied health professionals who work in hospitals are increasingly required to provide care and service to older people with complex needs who may be at the end of life. Balancing treatment of end-stage chronic complex conditions with identification of, and preparation for, the end of life are the skills in which many healthcare professionals are inadequately educated. Hospital systems and clinicians have become so wonderfully skilled at treating chronic complex illness and prolonging life, that entering into discussions about the inevitable end of life or dying may seem rather superfluous. However, we will all die. For professionals, learning how to begin conversations about future care needs and likely prognosis is key – along with effective teamwork, recognising and responding to suffering, and compassionate care when death is imminent.«
The State must assist them, with quality public healthcare system, by providing the necessary financial resources, by providing funds for the quality and development of the education system of future doctors and scientists in the field of medicine, with an appropriate salary policy, personnel policy and employment policy in the health sector. Institutions such as hospices and nursing homes should not be considered second or third class, or even pushed aside and overlooked. The same applies to the professional staff needed for the quality operation of these institutions, for their employment opportunities and the amount of their personal income. After all, it is a question of ethics, a question of humanity.
 Andrej Marušič:ONE HEALTH ONLY. In Andraž Teršek (Ed.): HUMAN DIGNITY AND MENTAL HEALTH. REVUS – Journal for Constitutional Theory and Philosophy of Law. No. 10/2009, p. 93. (https://journals.openedition.org/revus/1060)
 Eleven years ago I edited a collection of papers in this regard. See Andraž Teršek (Ed.): HUMAN DIGNITY AND MENTAL HEALTH. REVUS – Journal for constitutional theory and philosophy of law. No. 10/2009. It was not a coincidence that DIGNITAS – Human Rights Journal was established in late 1999, by prof. dr. Peter Jambrek. In the first years I had a privilege to be the assistant editor. (http://revije.nova-uni.si/index.php/dignitas/issue/archive)
 See PSYCHIATRIC TIMES. (https://www.psychiatrictimes.com/view/coronavirus-disease-2019-first-wave-and-beyond)
 ECtHR Judgement in Case Pretty vs. United Kingdom. Final Decision on July 27, 2002, para. 30.
 See PALLIATIVE CARE IN THE EUROPEAN UNION.
 Comp. WHO. Palliative Care.
 Kim Devery: End-of-Life Essentials: Increasing professionals’ skills and confidence in end-of-life care. The Blog of the European Association for Palliative Care. May 27, 2020. Available at: <https://eapcnet.wordpress.com/2020/05/27/end-of-life-essentials-increasing-professionals-skills-and-confidence-in-end-of-life-care/> (30.5.2020)