- Helga Kuhse, Ph.D.,
Director, Centre for Human Bioethics Monash University, Clayton, Victoria 3168, Australia
The Netherlands is presently the only country in the world, where doctors may, in full view of the law, intentionally terminate an incurably ill patient's life, at the patient's request. The question currently exercising the minds of many Australians is whether their country will be next.
The issue of voluntary euthanasia has been on the public agenda for a number of years. It was, however, only recently that law reform became a distinct possibility for at least one of Australia's seven territories and states. In January this year, the Chief Minister of the Northern Territory, Marshall Perron, presented a "Rights of the Terminally Ill Bill" which, once passed, would allow doctors to give direct help in dying to terminally ill patients who request it through voluntary euthanasia or medically assisted suicide.
This is not the first time a voluntary euthanasia bill has been introduced into parliament; some two years ago Independent Michael More had introduced a similar bill into the Legislative Assembly of the Australian Capital Territory. This is, however, the first time that a head of state has taken such a step. What is more, according to early punters, the Bill is said to have a reasonable chance of passing with 12 members of the 25 member Assembly supporting the bill, 5 being opposed to it and 8 being undecided (1). (The Bill has now been referred to a special 5 member select committee, which must report back to parliament by May 16.)
This quite unexpected move by a conservative head of government has initiated unprecedented media interest in a nation where the media had already frequently given a good airing to "the right to die".
For years, proponents of the decriminalisation of voluntary euthanasia have argued that it makes no good sense to give patients the legal right to refuse medical treatment (including life sustaining treatment), but to continue to deny them the right to seek active or direct help in dying. While death following the cessation of treatment will often be certain, it is frequently neither swift nor benign. Why, then, give patients and doctors the right to bring about death in a slow and painful way, while denying them the right to choose a method that has the same end, but better meets the patient's (2).
Similar arguments have been raised regarding the hastening of death under the Doctrine of Double Effect. The traditional view is that it is morally (and probably legally) permissible for doctors to administer adequate doses of pain and symptom control, knowing or expecting that this will bring about the patient's death, but impermissible to give a drug with the direct intention of shortening the patient's life. While this distinction between directly intended and merely foreseen consequences has played an important role in traditional Roman Catholic moral thinking. See, for example, the Vatican's 1980 Declaration on Euthanasia, its moral relevance has been questioned not only by many philosophers and bioethicists, but also by doctors, nurses, lawyers, and the general public. Why should it be morally and legally permissible for doctors and patients to bring about death knowingly, but impermissible to do so intentionally? Moreover, why should the views of those who see moral significance in the Doctrine of Double Effect also restrict the choices of those who reject the moral or religious presuppositions on which it rests? See ref. (2).
Contemporary Australia is a multicultural society that is characterised by relatively little racial and religious tension. It is perhaps because of this cultural and religious diversity and the level of tolerance that accompanies it that there has, for many years, been majority support for the premise underpinning the idea of voluntary euthanasia namely, that competent incurably ill patients should, in accordance with their values and beliefs, be able to make medical end of life decisions for themselves. Since 1962 one of Australia's leading polling organisations has polling organisations has posed the same question to a random sample of the Australian population, "If a hopelessly ill patient, in great pain with absolutely no chance of recovering, asks for a lethal dose, so as not to wake again, should a doctor be allowed to give a lethal dose, or not?" In 1962, only 47% of repondents had answered the question in the affirmative (39% "no", 14% undecided); By 1983, that percentage had increased to 67% (21%: "No", 12% undecided); and by 1994 the support level was 78% (13%: "No", 9% undecided) (3).
Around the time when Marshall Perron introduced his "Rights of the Terminally Ill Bill" into Parliament, the Australian published a Newspoll survey, which had asked 1200 respondents to answer the following question: "Thinking about euthanasia, where a doctor complies with the wishes of a dying patient to have his or her life ended, are you in favour or against changing the law to allow doctors to comply with the wishes of the dying patient to end his or her life?" 1% of those polled answered the question in the affirmative.
In light of this strong popular support for law reform, it is not surprising that other parliamentarians would begin thingking about law reform. Not long after Marshall Perron had introduced his "Rights of the Terminally Ill Bill" into the Northern Territory Parliament, Labor front-bencher, Mr. John Quirke, introduced his Voluntary Euthanasia Bill 1995 into the South Australian parliament. To everyone's surprise it also emerged that another South Australian member, Senior Labor MP, Ms Anne Levy, had spent the last eight months preparing her own voluntary euthanasia bill, unaware that Mr. Quirke had been engaged in a very similar project.
A recent election in the ACT resulted in Independent Michael More retaining his seat. He immediately indicated that he would soon be re introducing an amended version of his earlier voluntary euthanasia bill.
In late March, then, it was election time for New South Wales. The new Labor Premier of the State, Mr. Bob Carr, appears to support law reform. As reported in the national gay newspaper "Outrage" in February this year, Mr. Carr indicated that "For people with AIDS or cancer whose doctors are telling them there is no hope, there ought to be an opportunity for a dignified exit. We know it happens, we know it's done. My priority would be to see that there is no prosecution in circumstances where death is inevitable and to allow someone to carry out their own wishes in a dignified way." utrage, February 1995. The new Health Minister, Dr. Andrew Refshauge, seems to take a similar stance. Once a prominent member of the Doctors' Reform Society, he regarded voluntary euthanasia as sometimes justified. It is now expected that a draft voluntary euthanasia bill, prepared by the New South Wales AIDS Council, will soon be introduced into the New South Wales parliament.
Surveys of Australian doctors' attitudes and practices indicate that a majority of doctors support law reform, and that nearly one out of three doctors asked has already practised voluntary euthanasia at least once, even though it is unlawful (4). This includes the President of the Australian Medical Association (AMA), Dr. Brendan Nelson. In October last year, Dr. Brendan Nelson had publicly stated that he regarded euthanasia justified under some circumstances and that he had "administered a treatment specifically to end [a] patient's" (5).
While Dr. Nelson thus regards some instances of euthanasia as morally sound, he does not support law reform. Neither does the AMA. The smaller Doctors' Reform Society, however, has welcomed the Northern Territory Bill. Dr. Robert Marr, a spokesman for the society, said, "It's time politicians stopped running away from the concept of death and allowed dying people the right to choose whether to request medical assistance to end their lives." (6).
These and other developments have kept the discussion over the decriminalisation of voluntary euthanasia going. They were, however, all eclipsed by an Open Letter to the Premier of Victoria. In that letter, seven Victorian doctors admitted that they have broken the law, arguing that the law was in need of reform. Three of the doctors who have signed the letter, Norm Roth, Darren Russell and Andrew Buchanan, are Melbourne general practitioners, who care for patients with AIDS. David Bernshaw is a cancer specialist, Rodney Syme a surgeon and urologist, Pat Scrivener is an anaesthetist, and Sam Benwell a recently retired general practitioner. Parts of the explicit letter were published in the Melbourne Age, (25 March):
"Each of us who has signed this letter has personal experience of treating terminally ill people whose condition has moved them to ask for assistance in suicide, and each of us has, on occasion, after deep thought and lengthy discussion, helped such a patient to die.
We declare this now in public, knowing that this declaration may be construed in the state of Victoria as an admission of a criminal offence. We do this because we believe passionately that this state's law on the assistance of suicide is wrong, and because those who continue to support the law have failed to recognise the reality of our work.
The assistance of suicide by doctors is already a recurrent reality in the state of Victoria. We have assisted patients to end their lives and we know others who have. We believe we have acted in the best tradition of medical ethics, offering our patients relief from pain and suffering in circumstances when it would have been an act of cruelty to deny them.
We respect life. All of our professional training and work deepens that respect. However, the reality is that there are some patients who are beset by physical and mental suffering which is beyond the reach of even our most sophisticated efforts at control. When such patients clearly and repeatedly express a rational plea for help, it is out of respect for them that we have felt compelled to act."
In their letter to the Premier, Mr. Kennett, the doctors briefly describe the circumstances surrounding some of the patients they helped to die, including the following:
A young man in his 20s, who is described as "vibrant, handsome, articulate and intelligent" developed brain cancer. Although he was suffering from AIDS and would certainly die, his immune system was still relatively healthy and he was not yet near death. He decided to commit suicide in order to avoid a lingering and painful death which would cause distress to his friends and family. He told his GP that he was considering throwing himself from a high building, but that he was worried that he might fail to kill himself or upset those who discovered his broken body. The GP agreed to help him. The young man spent a day saying goodbye to his friends, and, surrounded by friends and family, died peacefully with his GP's help. The last thing he said to his doctor was: "You will do this well, won't you?"
A man in his early 50's was almost entirely paralysed by advanced Multiple Sclerosis. He was determined to die but decided not to ask for his family's help because he was reluctant to expose them to risk of prosecution. He took an overdose, was found unconscious by a member of his family, who rushed him to hospital where he was resuscitated. The man was devastated by his failure and by the prospect of his increasing helplessness. With the assistance of a doctor, and with the support of his family, he subsequently ended his life.
The recipient of the letter, the Victorian Premier Mr. Kennett, has made it clear that he does not wish to act, unless he is convinced that a majority of doctors want him to act. That, the Voluntary Euthanasia Society of Victoria thought, might easily be done. Convinced that a majority of Victorian doctors support law reform, the Society contacted the Victorian Branch of the Australian Medical Association (AMA) and offered to pay half the cost of a survey of doctors. Alas, the offer was rejected by the chairman of the Victorian AMA Council, Dr. Clyde Scaife. Dr. Scaife said that the AMA would review its policy on voluntary euthanasia only on the votes and suggestions of its members. The Age, 31/3/95. The question is, how is the AMA going to obtain the views not only of its members, but also of those doctors who are not members of the organisation?
Following the publication of the doctors' letter, the Victorian Medical Practitioners Board has received an official complaint and is currently investigating the matter. At this point in time, it is unclear what the AMA, Mr. Kennett and the Medical Practitioners Board are planning to do. Right now, the Medical Practitioners Board seems to be caught on the horns of an embarrassing dilemma: If it takes action this will, at least in the general public's perception, amount to the professional approval of these doctors' actions. If it does take action, should it not also pursue the most prominent doctor of the land the President of the AMA, Dr. Brendan Nelson?
That some decisive action is required is quite clear. It will not do that large numbers of the most respected citizens in our society admit to breaking the law, and that medical boards and governments do nothing. If nothing else, such inaction undermines respect for the law itself.
It seems that Australian states in general and Victoria in particular are faced by two choices: they could tighten the law and with the help of whistle blowers and informers ensure that doctors are hauled before the courts each time they deliberately shorten a patient's life, by action or omission; or they could responsibly reformulate the law to create a private space free from undue legal interference within which doctors and patients can jointly decide on a course of treatment that will best meet the dying patient's needs.
The first approach does not have much to be said for it, and not many opponents of the decriminalisation of voluntary euthanasia have suggested its adoption. As far as the second approach is concerned, there is growing public and medical consensus that the law should be changed not, or not only, because doctors are already defying it and because there is majority support for it but rather because it is wrong to leave the law as it is. This view was summed up in a recent Editorial Opinion in one of Australia's leading newspapers, The Age, "Ultimately the person who is suffering should have the right to decide whether to live or die." And it is because of this that "it should be lawful, in certain strictly defined circumstances, for a doctor to assist a person to end his or her life." The Age, (31 March).
For many people the point is this: if we deny incurable ill and suffering patients the right to say "Enough", we are imposing on them a life that they may find undignified and unbearable. We may also be imposing on such patients a set of moral values about the "sanctity of life", or the Doctrine of Double Effect, that they do not share. As Marshall Perron put it in the introduction to his Bill. "Society has, through laws in place today, made an assessment for all of us - that our quality of life, no matter how wretched, miserable or painful is never so bad that any of us will be allowed to put an end to it. I am not prepared to allow society to make that decision for me or for those I love".
Of course, these attempts to change the law do not go without challenge. There is a relatively small but vocal minority that regards the introduction of voluntary euthanasia laws as utterly misguided. While many of those opposed to the legislation would be motivated by traditional religious beliefs (such as the Roman Catholic belief that the intentional termination of innocent human life is absolutely wrong), religious belief is not a proper basis for the framing of public policy in pluralist and secular societies, such as Australia.
This is why arguments against law reform are typically based not on particular religious views, but rather on the Millean principle that personal liberty or autonomy may justifiably be restricted by the state to prevent harm to others. In other words, the argument is that the decriminalisation of voluntary euthanasia will lead to harm to others: patients who cannot or will not consent to euthanasia will have their lives cut short by unscrupulous doctors, as has already happened once in Germany, some fifty years ago, under Hitler's Nazi regime.
These "slippery slope" arguments are difficult to sustain, particularly if they rely on the rather dubious analogy between the Nazi extermination program and the idea of voluntary euthanasia. Whatever their ultimate merit may be, they do, however, carry considerable emotional and political force. This is why it is difficult to know how the 25 members of the Northern Territory Assembly will ultimately vote.
One thing seems certain, though: even if Marshall Perron's bill is not passed on this occasion, it will probably not be long before a similar bill is passed in one of Australia's seven states or territories. The Australian trend towards patient self determination at the end of life is part of a worldwide trend.
On November 8 last year, the citizens of the US state of Oregon approved a law that will, once enacted, allow doctors to prescribe lethal medication to terminally ill patients, who want to end their lives. In addition to that, lawsuits challenging prohibitions on medically assisted suicide are pending in a number of US states, on the grounds that they violate the constitutional right to privacy. As Geoffrey Fieger, an attorney and spokesman for Dr. Jack Kevorkian (the Michigan doctor who has helped 21 incurably ill patients to end their lives) put it: "[Oregon] is just the first domino to fall." Some time after May 16, we will know whether the Australian Territory is the first domino to fall in Australia.
1. David Nason: "Bill of Death", The Weekend Australian, (45 February 15, 1995.
2. Helga Kuhse (ed.), Willing to Listen Wanting to Die, Melbourne: Penguin Books,1994.
3. Hunt, R. "Palliative care", p.133 in H. Kuhse, Willing to Listen Wanting to Die.
4. Kuhse, K. & Peter Singer, P. (1988) "Doctors' attitudes and practices regarding voluntary euthanasia", MJA 148, (20 June); Baume, P. & Emma O'Malley, E. (1994), "Euthanasia: attitudes and practices of medical practitioners", MJA 161, 1994.
5. Nelson, B. Channel 9 "Sixty Minutes", (9 October, 1994).
6. Zinn, "Euthanasia bill divides Australian doctors and MPs", BMJ 310 (18 Feb, 1995).