• Nick

Legalised killing, how Australia's final State fell to euthanasia

Updated: May 23


As I write this, Australia’s final State is legalising voluntary euthanasia. Each of the major political parties gave their members the ability to vote on their own conscience, meaning that they were not bound to follow their party’s respective positions based on the matter. Nevertheless, the bill was passed and New South Wales is due to legalise euthanasia.

Taken from the words of one of the voting politicians, Adam Searle, then speaking about the proposed law, it is the:


safest and most protective way provided by any like regime of which I am aware, the right for certain terminally ill persons to request and receive assistance to end their lives voluntarily, with medical help, by the administration of a lethal substance…. [it] provides patients with a choice between self-administration and practitioner administration; no-one else can administer. Medical practitioners, health facilities or healthcare providers have the right under this bill to conscientiously object to providing assistance.


Whilst it is pleasing to see that medical practitioners are allowed to object to providing assistance, a right which it cannot be said exists for all areas of medicine, one takes this promise with a grain of salt. In any case, let us break this down in light of Searle’s overview.


Safety


A definition of safety is something along the lines of: free from risk of injury or harm. Innately, legalising the death of a person cannot be safe. We will assume that what is meant by safe is really something along the lines of painless and free from risk of undue or outside influence.

This is a very difficult question to answer. It has also been subject to a large amount of critical consideration ranging from the outside circumstances and pressures at play effecting the actual mind of the person contemplating their own death by euthanasia, the state of mind due to their disease, and also the actual manner that their life is shortened or ended.


As to the first points, looking at the mind of the person, I would appreciate a medical insight on this as my views have largely been formed in the legal and philosophical sense. The 1999 article, Euthanasia: Patient Autonomy Versus the Public Good, by Mirko Bagaric provided relevant insight as to some of the stronger legal positions (granted from twenty-three years ago) on euthanasia and also about its operation in the Netherlands, where the practice of legalised euthanasia has been around for many decades. Bagaric points out in his article that there are precedent cases in Australia where:


a person's will can be overborne by such matters as social condition, environment, natural timidity and subservience.


Considering this in the light of where a person is (likely) battling a serious and potentially terminal medical condition, it is not hard to see how they might extend their mind to the thought of a painless death. I have experienced clients, in my legal work, who are terminally ill. One thing we are required to do in assessing their capacity, is to bear in mind that they may be flustered, frantic or generally negatively effected by their disease. Sometimes people in panic or stress will do strange things. Bagaric further adds:


To assert that euthanasia promotes autonomy to any meaningful extent it must be shown that measures have been taken to ameliorate the burdensome and potentially overwhelming conditions in which the choice to die has been expressed, otherwise at its highest only submission rather than consent can be claimed.”


One only needs to do a quick search of articles on euthanasia in the Netherlands to come across some fairly gruesome examples of doctors stepping well outside the bounds of reasonableness, and being reprimanded rather than being imprisoned. Overall, it appears the current number of euthanisations that occur annually in the Netherlands is around 5500, making up around 4-5% of the nations total number of deaths. This is a significant number. As I understand it, the law requires these elements to be met in order for a doctor to legally euthanise a patient:

  • the doctor positively believes the patient’s request for etherisation is voluntary and considered;

  • the doctor positively believes the patient’s suffering is lasting and unbearable;

  • the doctor has informed the patient about the medical diagnosis and prospects of rehabilitation and cure;

  • the patient positively believes euthanisation is the only viable treatment for the disease;

  • the doctor has consulted with another medical physician, and has received their advice in respect to the previous points in writing and the other medical physician has come to the same conclusions;

  • the euthanisation is done with due skill and care.

Before going into further analysis, it must be noted that I am not versed in Dutch language nor law and the above requirements are my paraphrasing from a translation. Now, before reading on please do a search of news articles on doctors being reprimanded for contraventions of the above, and the types of diseases patients are being euthanised for. I cannot comment as to the authenticity of each and every article, however, I have found the following:

  • patients being euthanised for dementia;

  • doctors secretly administering the killing medication through spiking a drink of the patient;

  • patients being euthanised for depression or anorexia;

  • patients showing last-minute regret or reluctance;

  • doctors being unaware that they are required to consult another physician;

  • patients being euthanised for Autism/Asperger’s.

These cases are likely the outliers, however, for something as significant as taking another person’s life, shouldn’t the law with respect to euthanasia be considering the outliers first?


Regional doctors


Having grown up in rural and regional areas in Australia, I am aware that a large proportion of doctors do not have full accreditation as a General Practitioner. Is this a problem? Not necessarily, however, consider the following:

  • An overseas trained doctor cannot obtain a Medicare provider number unless they are accredited by a college under a fellowship OR they work in a remote/rural location (obviously the law is a lot more complex than this abridgement);

  • Without a provider number, a doctor cannot claim a Medicare rebate, thus it is a financial incentive to obtain the provider number;

  • The ability to obtain a provider number prior to obtaining a fellowship provided the doctor works in a remote/rural location, was initially put in place to address the shortage of doctors working in the regional areas;

  • The effect is that the regional areas have a disproportionately high prevalence of doctors who do not have a fellowship accreditation.

Read into this what you will, however, I recall a time from my youth working in an agriculturally based industry where I was required to go to a doctor. I remember I could not explain to the doctor what a sheep was, nor what my actual employer did. There was a reasonably concerning language barrier between us. Maybe I just came across a bad doctor and it was utterly unrelated to the fact that a fellowship is not required for regionally based doctors. But bearing in mind that we have now vested immense power in our doctors by allowing them to legally end a patient’s life, and consider that these doctors may very well be called upon to do the following:


1) Fully comprehend the specific framework for euthanasia;

2) Fully advise the patient of their disease, of the euthanasia laws, all other avenues available;

3) Comply with the law, and legally euthanise the patient with due skill and care.


One has to remember that our doctors are human, they are susceptible to the same pressures, diseases, outside pressures, shortcomings of education and understanding that the patient is. Is it reasonable for us to expect complete compliance with the law from our doctors? If the answer to this question is no, then should we be enacting laws where we reasonably anticipate that human lives will be taken illegally and will the laws encourage this?


Concept creep and the slippery slope


I have only recently heard and read of Dr Nick Haslam’s concept creep and upon finding out about it, it provides an interesting explanation as to some of the concerning social changes that are occurring over the western world. In Short, Haslam’s doctrine says that over time the definition of a pathology will expand horizontally to capture separate occurrences which previously didn’t meet a criterion, and vertically to capture the-same-but-lesser occurrences which didn’t meet the threshold. Giving an example, Haslam shows that the definition of bullying initially featured an element that required that the actions purporting to be bullying were exerted downward in hierarchy. The definition, as it is largely accepted now, is that bullying can be downward, across or up hierarchies and accordingly it captures a much greater field of actions than if compared to its original meaning.


Now let us look at the actual words in New South Wales legislation. The Bill, as at the time of writing this, has not been assented (officially enacted) but the Bill has been passed by both houses of government, so the law is imminent. The Bill is very lengthy, so I will only analyse the following extract (some of which is omitted for ease) however, section 16 sets out the Eligibility Criteria as follows:


“(1) The following criteria must be met for a person to be eligible …


a) the person is an adult….

d) the person is diagnosed with at least 1 disease, illness or medical condition that—

a. is advanced, progressive and will cause death, and

b. will, on the balance of probabilities, cause death


i. for a disease, illness or medical condition that is neurodegenerative—within a period of 12 months…

ii. otherwise—within a period of 6 months….


c. is causing suffering to the person that cannot be relieved in a way the person considers tolerable….

e) the person has decision-making capacity in relation to voluntary assisted dying,

f) the person is acting voluntarily,

g) the person is not acting because of pressure or duress,


(2) A person is not eligible for access to voluntary assisted dying merely because the person has

a) a disability, or

b) dementia, or

c) a mental health impairment…


There are some positive checks and balances in this Bill, including subsection two which states provides that a person cannot be euthanised for the reasons mentioned there alone. There are however, a few howlers in there. I have underlined the terms which, when you consider what concept creep will do over the coming decades, I believe will be very susceptible to creative interpretation. It must also be noted that on the balance of probabilities means 51%. Would you feel comfortable with a doctor’s diagnosis based on their certainty of 51%? I would be inclined to get a second opinion.


The last part that struck me as peculiar is the person considers intolerable. I would be interested in getting the thoughts of a pain physician in this respect. As I understand it in the lay sense, pain is from a social, physical and psychological triangle where all factors play an important role in a particular person’s experience of pain. This explains why there are such significant differences in separate people’s experiences of the same disease or injury. For instance, if one person finds that the pain of their terminal illness is significant and unbearable, should the social and psychological aspects affecting their pain improve rapidly and significantly, perhaps they would no longer find the relief proffered by their doctor to be intolerable.


Finally, I will touch on the criticism of the slippery slope. The sanctity of human life is the cornerstone of many religions. For a brief period in our human history, it was the fundament of western governments and societies. The argument of the slippery slope is that now the floodgates have been opened for doctors to legally take a life, necessarily the protections that are specifically mentioned in the law at the time it is passed will gradually be eroded. Often the National Socialist German Workers' Party’s policy on euthanasia is referenced, and this is a valid point. When considering the resurgence of socialism around the western world, one cannot divorce their mind from the question of what amendments will be made to the euthanasia laws. Remember that most of the evil in this world is done by people with good intentions.

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