Friday, June 21, 2013

Voluntary Euthanasia in Australia

1.0.0 Introduction One of the most vehemently debated upon issues in the social, legal and religious forums in the present day is the “right” of people to assisted voluntary euthanasia. O’Rouke (1999, p. 445) claims that in the past few decades euthanasia, suicide and physician assisted suicide have become very important topics particularly in the discussion of medical ethics and legal implications. White and Willmott (2012, p. 7) define voluntary euthanasia as “performing as action with the intention of ending the life of another person, at their request, so as to relieve their suffering”. Assisted suicide is defined as the situation when “a competent person dies after being provided by another with the means or knowledge to kill him or herself”. Physician assisted suicide occurs when a physician or medical practitioner acts as the assistant in such suicide activities (White and Willmott, 2012, p. 7). The controversy surrounding this issue is not only evident in the nation of Australia but also in other parts of the world, particularly in Europe. The World Federation of Right to Die Societies (2013) reveals that in the year 1996 the Northern territory in Australia was the second legislature in the world to endorse legal decrees in support of voluntary euthanasia. On the same year that the laws were passed four Australian nationals terminally ill with cancer lawfully acquired the assistance of a health practitioner in ending their lives. The first region was England through the Voluntary Euthanasia Society of England and Wales in the year 1995. The major debate on assisted voluntary euthanasia in Australia has revolved around the question of whether or not assisted suicide in Australia should be legally enforced and allowed as a constitutional right. As indicated by White and Willmott (2012, p. 6) the stakes in the voluntary euthanasia and assisted suicide debate in Australia are very high. Those for the legal enforcement of euthanasia and assisted suicide argue that the laws of Australia should be amended so that Australian nationals can make a decision on when to die in a dignified manner. The other camp in this debate, those against making euthanasia and physician assisted suicide legal in Australia, argue that any such legal enforcement would be tantamount to legalizing the deliberate ending of other people’s lives in society. This paper inclines towards the second case and argues that assisted voluntary euthanasia in Australia should not be legally enforced. 2.0.0 History of Euthanasia and Assisted Suicide in Australia According to Lysaught (1999, p. 431) assisted voluntary euthanasia is also commonly referred to as physician assisted suicide (PAS). The debate on euthanasia in Australia has been galvanized by the issues of whether or not patients have a “constitutional right” to receive assistance in ending their lives and whether physician assisted suicide should be legally enforced. Kerridge and Mitchell (1996, p. 273) posit that on the 24th of May the year 1995 the Australian Northern Territory Legislative Assembly approved and passed the Rights of the Terminally ill Act by 15 to 10 votes. The last modifications to this act, which clearly outlined the functions to be fulfilled by interpreters and psychiatrists, were made on the 20th of February 1996. By passing this act, the Assembly had made it lawful for any Australian national aged 18 years and above, in pain, distress or suffering, to demand that their health practitioners assist them in committing suicide. This act in the Northern Territory of Australia has elicited heated debates in other parts of Australia for instance South Australia, Tasmania and the Australian Capital Territory where proposals to legally enforce euthanasia suffered defeat in parliament. White and Willmott (2012, p. 6) state that the 1995 Right of the Terminally Ill Act continued operation until it was amended by the Euthanasia Laws Act of 1997. 3.0.0 Australian Common and Statute Laws on Euthanasia and Assisted Suicide The evaluation of the common law regarding this issue in Australia is carried out by analyzing the laws guiding patient- doctor associations since there are no case laws in Australia that specifically respond to passive voluntary euthanasia. Interviews on prosecutor Elizabeth Greene reveal that the Australian common law states that competent patients above eighteen years old have the right to refuse medical treatment. Moreover the common law also recognizes a patient’s anticipatory refusal of treatment. In the year 1991 the Law Reform Commission in Western Australia clearly stated that the absence of a clear legal stand regarding the issue of hastened death through the administration of drugs should be dealt with. No doctors have been criminally prosecuted in Australia for administering pain relieving drugs which caused the death of patients. Section 4(2) of the 1988 Medical Treatment Act (Victoria) points out that its stipulations do not “affect any right, power or duty which a medical practitioner or any other person has in relation to palliative care”. The 1988 Natural Death Act (NT) also does not offer much insight since it states that its implementation “does not affect the legal consequences (if any) of taking…therapeutic measures (not being extraordinary measures) in the case of a patient who is suffering from a terminal illness, whether or not the patient has made a direction under this act”. In spite of many other nations of the world, particularly in Europe, having conducted numerous reforms in their jurisdictions governing voluntary euthanasia and physician assisted suicide, endeavor to bring about a reformation of the laws governing voluntary euthanasia and physician assisted suicide in Australia have been confronted with many hurdles. This is regardless of the fact that there are numerous bills that have been forwards towards this end. The most significant include the Consent to Medical Treatment and Palliative Care (End of Life Arrangements) Amendment Bill 2010 in SA, Voluntary Euthanasia Bill 2010 in SA, Voluntary Euthanasia Bill 2010 in WA, Rights of the Terminally Ill Bill 2011 in NSW and Criminal Law Consolidation (Medical Defenses- End of Life Arrangement) Amendment Bill 2011 in SA (White and Willmott, 2012, p. 6). By the end of the year 2012 there were already plans in place for the introduction to Parliament of the Rights of Terminally Ill Bill in the beginning of 2013 by Cate Faerrhmann affiliated to the Australian Greens. Kincaid and Tarr (2005) point out that in Australia alterations or repeals to the federal constitution have to be carried out by the electorate or be ratified by state legislatures. In addition to this, the Congress in Australia has to deliberate on the laws proposed by the executive arm of the government so as to approve them. The Australian Senate has its own powers as well as most of the powers in the Chamber. 4.0.0 Voluntary Euthanasia and Assisted Suicide Should Not Be Legalized in Australia Stewart (2010) points out that the currently legal situation in Australia clearly depicts voluntary euthanasia and assisted suicide as being illegal in all the Australian States and Territories. The Australian criminal law describes the taking away another person’s life as either manslaughter or murder. Different jurisdictions in the various parts of Australia also criminalize the act of assisting people to take away their own lives by describing it as “aiding” or “abetting” suicide (Murphy, 2009, p. 347). There are a number of key arguments in the Australian context that have acted as an impediment to the legalization of voluntary euthanasia and assisted suicide. (a) Sanctity of Human Life Owing to the fact that human life is universally perceived as being paramount any attempt to deliberately end another person’s life or offer them assistance in ending their own lives is perceived as a criminal act. The Australian common law acknowledges the importance of human life. In the Bland case in English the House of Lords recognized that “sanctity of life” is a significant constituent of the English legal system . The arguments against euthanasia and assisted suicide based on the sanctity of life are usually based on religious doctrines. Sikora (2009, p. 33) claims that “For years the Catholic Church and most mainstream Protestant Churches have opposed any form of Euthanasia on the grounds that decisions about life and death should be reserved for divine agency”. If this argument is upheld there is no way that euthanasia or assisted suicide can ever be validated in Australia. (b) Slippery Slope Argument According to White and Willmott (2012, p. 18), the slippery slope argument on voluntary euthanasia and assisted suicide in Australia states that legally enforcing these two practices would, with time, lead to the broadening of the laws on euthanasia and assisted suicide to include involuntary euthanasia as well as euthanasia for people lacking competence such as minors. (c) Absence of Safeguards on Euthanasia and Assisted Suicide Laws The second point against the legal enforcement of euthanasia and assisted suicide in Australia is based on the argument that in the event that euthanasia and assisted suicide is legally enforced in Australia there would be no framework to ascertain the effectiveness of the laws’ application so that patients that fall outside the regime are not killed (White and Willmott, 2012, p. 18). Although legal decrees can be set up to ensure that people who engage in euthanasia or assisted suicide are competent and made a deliberate conscious effort to do this, it would be almost impossible to ascertain that all the legislative stipulations regarding the assisted suicide and euthanasia regarding eligibility and patient willingness to die were applied, in all cases at all times, as dictated by law. This oversight implies that there is a great likelihood of abuse by relevant euthanasia and suicide assistants and individuals on the ambit of the laws may be killed. White and Willmott (2012, p. 18) claim that the individuals in the Australian society most susceptible to this oversight would be the aged, those living with disabilities and the sick. (d) Retardation of Improvements in Palliative Care The fact that in the present day much medical advancement have been made which elongate life and improve its quality make legalization of euthanasia and assisted suicide unnecessary. Moreover, White and Willmott (2012, p. 18) claims that legally enforcing euthanasia and assisted suicide in Australia would also lead to lack of motivation by medical experts in enhancing palliative care. Dahl and Levy (2006, p. 335) argue against assisted suicide by describing the consequences of the Death with Dignity Act which was passed in Oregon, USA. On the 8th of November 1994 the State of Oregon passed this act so as to allow medical practitioners to assist their patients in terminating their lives. Legal injunctions act as hurdles to the execution of the act for an estimated 3 years. These injunctions were finally lifted on the 27th of October 1997 by the Ninth Circuit Court of Appeals and the State of Oregon became the then only state in the United States of America in which physician assisted suicide is a legal medical option . From 1997-2004 an estimated 208 patients had committed suicide by the help of their physicians through the stipulations of the Death with Dignity Act. The patients were all competent and of age. 5.0.0 Recommendations Rather than argue for the legalization of euthanasia, it would be more agreeable and beneficial for all the involved stakeholders if the proponents of euthanasia and assisted suicide in Australia advocate for improved quality of end of life care. Nevertheless, in the event that voluntary euthanasia and assisted suicide are perceived as non-criminal acts, it would be necessary to come up with policies and legal decrees determining the different circumstances as well as the manner in which such laws may be applied. In addition to this the decision making of the people willing to end their lives must be ascertained to be competent and deliberate. Improved end care would not only increase the hopes for recovery for patients and their families, but also ensure that insurance companies are not swindled by individuals who take other people’s lives without their consents so as to receive insurance benefits. 6.0.0 Conclusion This paper has discussed in detail the case of legally enforcing euthanasia and assisted suicide in the Australian context. The main arguments forwarded against the legalization of euthanasia and assisted suicide in Australia include the arguments on the sanctity of life, the slippery slope argument, medical advancements as well as frameworks of ascertaining eligibility and ensuring legal implementation of the euthanasia or assisted suicide procedure. The fact that human life is of paramount importance and value requires that any decisions made on the debate regarding euthanasia and assisted suicide in Australia be very informed and logical making full consideration of all the stakeholders involved 7.0.0 References Airedale NHS Trust v Bland [1993] AC 789, 859 Chapple, A., Ziebland, S., McPherson, A. and Herxheimer, A., (2006), “What People Close to Death say about Euthanasia and Assisted Suicide: A Qualitative Study”, Journal of Medical Ethics, Vol. 32, No. 12, pp. 706-710 Dahl, E. and Levy, N., (2006), “The Case for Physician Assisted Suicide or Euthanasia: How Can it Possibly be Proven?”, Journal of Medical Ethics, Vol. 32, No. 6, pp. 335-338 Hendin, H., (2003), “Euthanasia and Public Policy: An Argument against Legalization by John Keown”, The Hasting Centre Report, Vol. 33, No. 4, pp. 44-45 Kamisar, Y., (1998), “Physician Assisted Suicide: The Problems Presented by Compelling Heart Wrenching Case”, The Journal of criminal Law and Criminology, Vol. 88, No. 3, pp. 1121-1146 Kerridge, I. H. and Mitchell, K. R., (1996), “The Legislation of Active Voluntary Euthanasia in Australia: Will the Slippery Slope Prove Fatal?”, Journal of Medical Ethics, Vol. 22, pp. 273-278 Kincaid, J. and Tarr, G. A., (2005), “Constitutional Origins, Structure and Change in Federal Countries”, McGill-Queen’s University Press Kitchener, B. and Jorm, A. F., (1999), “Conditions Required for a Law on Active Voluntary Euthanasia: A survey of Nurses’ Opinions in the Australian Capital Territory”, Journal of Medical Ethics, Vol. 25, pp. 25-30 Kuhse, K. et al, (1997), “End-of-life Decision-Making in Australian Medical Practice”, 166 Medical Journal of Australia, pp. 191 Lysaught, M. T., (1999), “Physician Assisted Suicide by Robert F. Weir”, Journal of Law and Religion, Vol. 13, No. 2, pp. 431-440 Magnusson, R., (2002), “Angels of Death: Exploring the Euthanasia Underground”, Melbourne University Press Minow, M., (1997), “Which Question, Which Lie? Reflections on the Physician Assisted Suicide Cases”, The Supreme Court Review, Vol. 1997, pp. 1-30 Murphy, B., (2009), “Human Rights, Human Dignity and the Right to Die: Lessons from Europe of Assisted Suicide”, Criminal Law Journal, No. 341, pp. 347-348 O’Rourke, K., (1999), “Euthanasia Examined: Ethical Clinical and Legal Perspectives by John Keown”, Journal of Law and religion, Vol. 13, No. 2, pp. 445-452 Sikora, J., (2009), “Religion and Attitudes Concerning Euthanasia”, Journal of Sociology, No 45, pp. 31-33 Stewart, C., (2010), “Euthanasia and Assisted Suicide” in White B., McDonald, F. and Willmott, L., Health Law in Australia The Hastings Centre report, (1995), “Euthanasia in Australia”, Vol. 25, No. 5, pp. 47 The World Federation of Right to Die Societies, (2013), “Euthanasia and Assisted Suicide in Australia”, [Accessed on 2nd May 2013] White B. and Willmott, L., (2012), “How Should Australia Regulate Voluntary Euthanasia and Assisted Suicide?”, A Background Paper: Queensland University of Technology, Health Law Research Centre