Quotes

South Australian Voluntary Euthanasia Society (SAVES)

Parliament of Tasmania Community Development Committee 1998 Report on the Need for Legislation on Voluntary Euthanasia

The Report, covering 62pp of text, examines the ethical, legal and social issues involved in legalising voluntary euthanasia. Arguments for and against are stated and the report concludes with strong advocacy of palliative care and advance directives, but recommends against the legalisation of voluntary euthanasia.

In what follows, paragraphs particularly relevant to voluntary euthanasia have been selected and are in double quotes ("...") or paraphrased; comments are in italic.

The report largely repeats the views of opponents and advocates that they and others have publicly expressed in the past. There are no new ideas and there is very little analysis. That the Committee preferred the opponents to the advocates has clearly influenced the selection of evidence used in the Report. A major deficiency is that the inquiry was conducted in the abstract. There was no Bill before the parliament, nor any model piece of legislation under consideration. Statements alleging the impossibility of incorporating adequate safeguards were neither tested nor detailed, although they seem to have been a decisive factor in making the recommendation.

Section 1 - Introduction The results of a Tasmanian public opinion poll are given: "Would you like to see Tasmania legalise voluntary euthanasia as the Northern Territory has done?" 54% said yes; 34% no; 10.8% were undecided. The Committee decided to conduct the inquiry "to evaluate the merit of this public dissatisfaction with the present position ...".

Following definitions of active, passive, voluntary and non-voluntary euthanasia, Dr Fleming is quoted, with apparent approval, as stating that 'intent' is the decisive moral and legal factor in distinguishing between other end-of-life decisions and euthanasia - even when the hastening of death is foreseen. The report merely notes that "some proponents of voluntary euthanasia see this distinction as artificial ..."

A public education campaign is mooted to "differentiate legitimate medical practices such as palliative care from active euthanasia."

This campaign would presumably be based on Fleming's specious criterion of intention in the mind of the doctor as the differentiating factor. Not only is this unreliable as an instrument of public policy, but lack of intent is not a decisive criterion. Doctors should be held responsible both morally and legally for the foreseen or reasonably foreseeable outcomes of their actions. The fact that only 34% are opposed to legalisation (similar to poll results elsewhere) is apparently not regarded as significant. Although government policy cannot be based on public opinion polls, if one showed that only 34% supported the government, or the Premier, it would cause a stir.

Section 2 - Overview of the Debate notes the polarisation of evidence between those who argue for individual autonomy and those who claim that a greater good will be served if such a choice is denied.

The state of the debate in other jurisdictions is noted, including the negative outcomes of similar inquiries by the British House of Lords, the Canadian Senate and the New York State Task Force.

2.13 - 2.41 Well-known arguments For and Against VE are listed.

In 48 lines, the arguments in favour of VE are well and simply stated, (except one that incorporates a counter-argument questioning the merit of the public opinion poll). Arguments against VE are given greater coverage, in 124 lines, including lengthy quotations from evidence..

There is a summary that includes the following statements:

2.45 "Overarching this debate is the necessity to balance the rights of the individual against those of society for the protection of the public good."

This assumes that the public good will be threatened by a VE law. In fact such a law would protect patients and doctors and ensure public monitoring and parliamentary control. The public good is currently threatened by unregulated and unreported medical practice.

2.47 "Individuals presently enjoy equality as participants of society with equal protection under the law. If voluntary euthanasia were to be legalised an inequality would arise where one category of individual is deemed to be of less value than another and could therefore be killed."

Deemed by whom? This is an outrageous statement, unworthy of a supposedly neutral summary. There would be no "deeming": VE is patient-driven. Access would be limited to adults meeting several specific criteria, including a persistent request in response to an intolerable condition, with no other prospect of acceptable relief.

Section 3 - Ethical and Moral Issues.

Sanctity of Life

This section opens with two statements :

3.0 "The moral dimension of the euthanasia debate centres on the principle of the 'sanctity of life', a principle that encompasses the inviolability, inalienability, and intrinsic worth and equality of the human person."
3.1 "The 'sanctity of life' is universally adopted as the paramount social principle, all societies and legal systems are predicated on the sustenance and protection of the right to life. To allow the intentional killing of innocent individuals would prejudice the common good."

'Life' is equated here with biological existence, without regard for the qualities that make it distinctly human. If those qualities have been irrevocably destroyed, where is its 'sanctity' except in a narrow religious sense? Why should incurably suffering people who plead for help to die be classed as 'innocent' - and a merciful response to them as 'killing'? What is the moral worth of a sanctity of life principle that allows the killing of people against their will in war, self-defence, police action, even capital punishment, on the grounds that they have forfeited their 'innocence' (and therefore their supposedly inalienable right to life), but rejects it as a requested act of compassion to relieve intolerable distress? In contrast, para 2.16 states that the sanctity of life is not an absolute principle, referring to the decision of the House of Lords that doctors could withdraw artificial nutrition and hydration from Anthony Bland "allowing him to die. Here the sanctity of life principle yielded to the principle of autonomous best interest."

Statements are quoted from Christian denominations which share with Islam and Judaism the view that life is a God-given gift and that the deliberate termination of human life is therefore an offence against its Creator. Contrary statements are quoted, to the effect that a prohibition based on a religious belief should not be applied to those who do not share that belief; that the sanctity of life principle is not absolute and exceptions are made that recognise other ethical principles.

John Fleming's 'secular moral argument' based on the inalienable right to life upheld by the Universal Declaration of Human Rights is also quoted.

However, if our right to life is inalienable, so that we can neither be deprived of it, nor surrender it, we must own our life and are entitled to make decisions about it, even to end life if we can no longer employ it purposefully.

Self-determination and Autonomy

3.13 -14 Individual self-determination and autonomy are identified as "the fundamental moral principle" on which the case for VE rests. J S Mill is quoted.
3.15 "The Committee received submissions from many strong-minded, well-informed individuals who found it intolerable to have their decision-making capacity curtailed in the profoundly personal matter of how and when one should die. " Three are quoted.
3.19 "There was a great deal of argument presented to the Committee refuting the notion of individualism and autonomy as a justification for legalising euthanasia."

Eight arguments are quoted. These so-called 'rebuttals' maintain that social obligations are paramount and that autonomy in the form of voluntary euthanasia is in conflict with them. This strange rejection of self-determination is not only contrary to Christian teaching, but to a secular view of the social order that requires each of us to accept personal responsibility for our actions having due regard for their effect on others. A VE law would not free the individual from her/his social obligations. The subjugation of personal autonomy to social obligations as defined by the state is a characteristic of totalitarian governments and other hierarchies. The report also assumes that under VE legislation autonomy will be effectively exercised only by the more powerful members of society, who will have their way while others will be victimised. In fact, it is the more powerful who are likely to have their way in the absence of regulation.

Findings:

3.28. "The Committee found that whilst many of the moral arguments put by both sides of the debate were persuasive, a determination of the need for legalisation on voluntary euthanasia cannot be made on the basis of a subjective moral choice."
3.29. "The Committee found that the polarised character of the moral debate for and against voluntary euthanasia limited its utility as a determinant for legal reform. Euthanasia legislation would have to be based on a general principle that treated all individuals equally."
3.31. "The Committee found that while individual cases may present a strong case for reform the obligation of the state to protect the right to life of all individuals equally could not be delivered by legislation that is based on subjective principles."

The argument seems to be that VE should not be legalised because not everyone agrees with it and because moral choices are subjective. Much of our lawmaking, e.g., family law, divorce law, has moral implications and encounters opposition. In fact a VE law would be designed to offer an option only to those to whom it is morally acceptable, with safeguards to ensure that it did not impact on others. Only the individual could initiate the procedure and it would apply only in specified circumstances. Thus all individuals would be treated equally and their right to life and to end-of-life decision-making would have equal protection. That moral choices and moral principles are essentially subjective, is no reason for denying people the option to make decisions based on them. The right to hold and act upon one's personal moral values, with due respect for those of others, should be upheld.

Section 4 - Legal Issues.

4.0 "Legal issues raised in relation to the legalisation of active voluntary euthanasia include:

The problems associated with codifying voluntary euthanasia legislation.
The incongruity between current practices and the law.
The common law rights of patients to consensual treatment and the right to refuse treatment.
The issues surrounding end-of-life decisions and the doctrine of acts and omissions and double effect.
The constraints of international law."

Safe Legislation

4.1 "Proponents of legalised AVE have suggested that it is not beyond reason to envisage legislation that would ensure safe, informed and consensual application. The NT legislation is cited as an example ... Opponents of VE however submit that it is simply not possible to anticipate all the circumstances involved and to define them in legislation."
4.2 " ... Dr Brian Pollard ... identified three main areas ... where euthanasia legislation would be subject to abuse: the provision of equal justice; patient autonomy; and free consent." He notes that "three substantial committees" have concluded that safe legislation is not possible. He attributes this to "a great big area of subjectivity - the patient's subjective description of what is going on is met by another person's subjective response and neither of them would be capable of being investigated by a euthanasia law ..."
4.3 "Dr Pollard goes on to question the motivation of doctors ... and whether it is possible to legislate for bona fide motives. ..."
4.4 '"Dr Pollard also noted that euthanasia law could not guarantee the patient had given informed consent. ... So the inevitable consequence would be that the lives of people would be at risk. [I.e.] People who did not want to die or whose request had been coerced. ... There would be no certainty that a patient's request was the result of having received the proper information ..."
4.5 This theme was taken up by Dr Brendan Nelson. "I feel that there are some exceptional circumstances in which it might not be an unreasonable course for a doctor to assist a person to die but I find it impossible to define them." He called the law a blunt instrument lacking the finesse to deal with decision-making for a person who is dying.
4.6 "A related argument posited by those opposing the legalisation of VE is the notion of a "slippery slope" ... ."
4.7 "The Tasmanian Branch of the A.M.A. directed the Committee's attention to the findings of the House of Lords report ... "that, if legalised, it would be virtually impossible to ensure that all acts of euthanasia were truly voluntary and ... that any liberalization of the law ... could not be abused"."
4.8 "Dr Otlowski rebutted these arguments asserting that the claim that euthanasia legislation is unsafe fails to address the risks associated with the current legal position where euthanasia occurs in a hidden and unregulated manner."

Once again most attention is paid to opposing views, although they are no more than speculative opinions. Mostly they assume that doctors will abuse the system; patients will not know their own minds; those closest to them will wish them ill; and people will be killed who neither wanted nor warranted a merciful end to their lives. Dr Nelson on the other hand thinks that the competence of medical judgement and the wisdom and compassion of doctors can take care of all worthwhile cases. In his view clumsy attempts at regulating medical procedures are not needed as doctors will disobey the law when they think they should do so.

Existing Practice

4.9 " ... Dr Otlowski submits that whilst euthanasia remains illegal its practice remains covert and unregulated thus placing patients in danger of abuse and the law in disrepute ...". (See also 4.14).
4.10 The conclusions of the Kuhse, Singer, Baume study are quoted. 4.11 "Several witnesses refuted these findings. The Caroline Chisholm Centre for Health Ethics questioned the definition of euthanasia used in the study and claimed that ambiguous and misleading conclusions were drawn. ..."

The term "refuted" is unwarranted. This was a peer reviewed study and, as has happened to other reputable surveys which reached conclusions unpalatable to opponents of VE, methodology is attacked.

4.12 "Whilst the extent of active voluntary euthanasia may be contested there is sufficient evidence ... to suggest that it is a current practice."
4.13 "This becomes problematic when in theory the medical profession and the legal system both reject active voluntary euthanasia and doctor assisted suicide as acceptable practices, yet these practices occur."
4.14 "Dr Otlowski suggests the legalisation of active voluntary euthanasia is vital if it is to be regulated and controlled to ensure the safety of patients and prevent the law from falling into disrepute. ... The illegality of assisted suicide and voluntary euthanasia may be the reason why there are a significant number of cases of euthanasia without patient consent thus violating the patient's rights and self determination."
4.15 "Another related issue identified by Dr Otlowski as problematic is the fact that the law establishes culpability for murder on the basis of intent. ... In practice however few cases of assisted suicide or active euthanasia have attracted sentences for murder."
4.18 "The Caroline Chisholm Centre for Health Ethics ... suggested that ... Rather than legalise euthanasia for a few hard cases it is better to tolerate the present untidy system"
4.19 "Senator Abetz found the claim that existing practice justifies a change in the prohibition of intentional killing illogical ..."

Abetz contends, quite illogically, that as doctors are breaking the existing law [presumably because it is unsatisfactory] they are bound to break a new law - which will have been designed to enable them to do legally much of what they are doing illegally.

Clauses 4.0 to 4.19 deal with the pragmatic issues of the utility and feasibility of a VE law. As these are discussed without reference to any specific Bill or model of legislation, it is easy for opponents to speculate on the disastrous outcome of a VE law. The only practical examples we have of voluntary euthanasia legislation are the NT's Rights of the Terminally Ill Act and Oregon's Death with Dignity Act. Neither led to the prophesied flood of requests for life termination, or to doctors rushing to end the lives of patients. In the Netherlands the practice has been so responsibly handled that the Dutch government is backing a Bill to enshrine the procedures in law. Of the witnesses quoted, only Dr Otlowski, a distinguished academic who has published a major work on the subject, could be said to speak with authority on the legal issue. In 4.8 & 4.9, 4.14 & 4 15 she stressed the need for regulation; the dangers of uncontrolled practice; and the unsuitability of reliance upon intent to bring a charge of murder against a doctor who helps a patient to die. When the doctor's intention is to end life, but the motive is to end suffering as an act of mercy at the request of and in the interests of a patient, murder is not an appropriate charge and the courts commonly acknowledge this.

Common Law Rights

4.20 "The central plank of the pro-voluntary euthanasia case is the right of the individual to self-determination and autonomy, especially in relation to his or her own body. This right is recognised in common law which denies interference with others without consent. ..."

In subsequent paragraphs this right is discussed solely in relation to the refusal of treatment, either directly or by advance directive. The current legal restrictions on a patient's "right to self-determination and autonomy" in end-of-life decision making are ignored.

End -of-Life Decisions

4.26 "The legal doctrine of acts and omissions helps to distinguish between killing and letting die. An ethical debate arises in the context of whether there is a moral difference between intending to hasten death and foreseeing that a patient's life will be shortened ... ."
4.27 "Proponents of active voluntary euthanasia have charged that active and passive euthanasia is morally equivalent ... there are strong intuitive moral and clinical distinctions between stopping futile treatment and giving a lethal injection. To try to equate the two is disingenuous. As is the blurring of the concepts of not prolonging the life of, and killing, a patient."

It is disingenuous to imply that a person cannot be just as surely killed by omitting or withdrawing life-preserving or life-saving treatment as by giving a lethal injection. The outcome is the same, although omission or withdrawal may be less merciful. We are back to intent ... "discontinuing futile treatment". It is not a matter of blurring concepts but of recognising a grey area which is not honestly dealt with in our present law.

4.28 "The concept of acts and omissions was central to the Bland case where the removal of artificial nutrition and hydration ... was deemed to be an omission which was not intended to hasten death ..."

This is incorrect. Para 2.16, (see p.2 in discussion of para. 3.1), correctly reflects the decision of the Law Lords, which was to permit an action (not an omission) to be taken for the purpose of ending Bland's life. They added that this should not constitute a precedent as it was for parliament, not the courts, to amend the law.

4.29 The "double effect principle" and "intent" are referred to again in the context of "the [overriding medical] obligation to relieve pain".

There is a tacit acceptance of the related dubious principles of double effect and intent, and an assumption that pain relief is the main issue. The latter may be so from a doctor's standpoint, but patients are far more concerned about loss of control and identity.

International Law

4.30 - 4.34 Reference is made to international treaties and covenants and to the World Medical Association 1992 Statement on Physician Assisted Suicide. Rev Dr John Fleming's specious interpretation of an inalienable right and a similar statement by Archbishop Eric D'Arcy.are quoted. The latter claims that these "international instruments" are needed to protect "the most vulnerable in the community", the aged, disabled and terminally ill, for example.

Once again there is an assumption, without evidence or reasoned argument, that a VE law would harm those at whom it is not directed and that adequate safeguards are not possible. Might these be rationalisations to support the doctrine that life is a (conditional) gift of God?

Findings

4.35 "The Committee found that there is evidence to suggest that abuses of the current prohibition on active voluntary euthanasia do occur and Tasmania may not be immune to such abuses."
4.36 "The Committee does not consider the legalisation of VE as an appropriate solution to abuses that may be occurring in the current system."

This is the "straw dummy" approach. VE legislation is not proposed as a solution to abuses. Abuses are given as an example of the failure of current law to deal with the doctor's dilemma when the preservation of life is not compatible with the relief of suffering and the patient wishes to die.

4.37 "The Committee found that the codification of VE legislation could not adequately provide the necessary safeguards against abuse."

Nowhere in the Report is this "codification" examined. The finding is apparently based on the blind acceptance of statements to this effect and disregard of statements to the contrary.

Section 5 - Social Issues

5.0 "The social impact of legalised VE was predominantly presented in negative terms ... a corrupting influence that would undermine social values and initiate a "slide" from voluntary to non-voluntary euthanasia ... the death of an individual affects all in society." Statements to this effect are quoted.

This is breath-taking. Are the Committee and the witnesses saying that mercy and compassion are corrupting influences?

Slippery Slope Arguments

Fifteen paragraphs (5.1 to 5.15) are devoted to this theme. Ten stress the threat to society; five deny this. For example:

5.6 "Senator Bob Brown suggested that there is no evidence to believe that changing the law will increase the incidence of non-VE." This is followed by an extensive quote from the Senator summarising surveys in Australia and the Netherlands. Nevertheless:
5.29 "The Committee found that the legalisation of VE would pose a serious threat to the more vulnerable members of society and that the obligation of the state to protect all its members equally outweighs the individual's freedom to choose VE."

All the statements quoted that led to this finding are conjectural. Those to whom VE is anathema are simply convinced without evidence that it will have disastrous effects.

The section concludes with:
"It is in this social context that the Committee supports the provision of quality palliative care."

Palliative Care

In this lengthy section the extent and adequacy of palliative care in Tasmania and the role of palliative care as an alternative to VE are considered. Views rejecting the juxtaposition of VE and palliative care are quoted:

5.26 "The Tasmanian Aids Council contends that palliative care should not be seen as a substitute for VE, but rather as another choice in a full range of therapies. This stems from a concern for the terminally ill patients for whom palliative care fails to provide adequate relief ..." The submission also refers to the inadequacy of palliative care provision.
5.27 "Senator Bob Brown's submission in favour of active voluntary euthanasia did not preclude the need for universally available quality palliative care ... . Palliative care and active voluntary euthanasia should be seen as part of continuum of possible treatment options rather than as mutually exclusive alternatives. ..."
5.30 "From the evidence presented the Committee found that in the majority of cases palliative care was able to provide optimum care for suffering patients."
5.31 "The Committee recognises that in a small percentage of cases palliative care is ineffective in relieving all pain, however whilst regretting that this is not sufficient cause to legalise VE."

What is meant by a "small" percentage of cases? Presumably it is a percentage of all those who suffer unwanted distress in dying, assuming optimal provision. The number could be considerable. Why should they be disregarded? The evidence quoted, and the Committee's conclusion, take no account of patients' wishes but pay attention to doctors' satisfaction with what they can do. Why is pain relief given prominence, when loss of control and personal identity is the major cause of distress? Palliative care is provided in the hospice context for those near death. Those who are totally dependent on others, who have no hope of remission, whose incurable and distressing condition may continue for years, gain by being made physically comfortable, but this is not rheir principle concern. The Committee's conclusion embraces the erroneous belief that VE is offered as an alternative to palliative care. Proponents of legalisation are strong supporters of palliative care, believing that people should not have to seek an end to life unless they find that optimal palliative care, which is freely available to them, cannot bring an end to their distress.

Section 6 - Advance Directives and Legislative Reform

The common law right to consent to or refuse treatment is examined and the appropriate legislative provisions in other jurisdictions and in Tasmania are outlined and discussed. (It does not seem that the Committee was aware of S.A.'s Guardianship and Administration Act). Recommendations are made for amending Tasmania's Guardianship and Administration Act and the final recommendation of the Report reads:

6.35 "Adequate resources should be provided to effect registration and promotion of advance directives."

It would be interesting to know if, and to what extent, this recommendation has been implemented. In S.A. worthy efforts to promote public awareness and use of the advance directive have not met with much success. Registration is almost a complete failure. This may be in part due to the decision not to resource it, leaving the public to face a registration fee of $55.00.

Eric Gargett
12 September 1999

Further information on these and related issues is available from the SAVES.