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Handbook of the South Australian Voluntary Euthanasia Society (SAVES)
THE RIGHT TO CHOOSE: THE CASE FOR LEGALISING VOLUNTARY EUTHANASIA
7. CHANGING THE LAW
Every social reform has its attendant risks and no human enterprise is
free of the possibility of error or abuse. So one must consider in whose
hands the enterprise will rest and what external controls exist or can
be introduced as safeguards. One must also take into account the consequences
of leaving unsatisfactory laws unchanged. Here we deal with the practicalities
of changing the law and then, in Section 8, with the role of the medical
profession.
SAVES Proposals
SAVES is working to have the law in South Australia changed so that
subject to appropriate conditions and safeguards a medical practitioner
will be permitted:
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to comply with a request from a patient for an assisted or induced death,
provided medical assessment indicates that there is no reasonable prospect
of remission and no treatment available which will restore a quality of
life acceptable to the patient;
-
to carry out the directions of patients previously expressed in properly
attested form that, in the event of their becoming unable to give informed
consent and medical assessment indicating that there is no reasonable prospect
of remission, their life be brought to a peaceful and dignified end.
Proposals on the way the law and the medical profession might jointly regulate
the practice of voluntary euthanasia are contained in Appendix A.
We do not expect to achieve comprehensive voluntary euthanasia legislation
all at once. However, we believe that one day our proposals will seem as
natural as those which ban child labour or uphold women's right to vote
and which were resisted just as strongly in their day.
Why the law should be changed
Because the present legal provisions prohibit voluntary euthanasia,
its practice, which studies have shown to be of substantial proportions
(see Section 4), occurs without the benefit of open discussion, consultation,
medical training, professional guidelines, or monitoring of its extent
and quality. The law is out of step with medical opinion and practice;
it contributes to cruel end-of-life decisions. It is unjust to patient
and doctor alike.
Both are compromised; a doctor who ends the life of a suffering patient
at the patient's request could face a murder charge. In addition, although
it does not treat as a criminal a person who commits, or attempts to commit
suicide, it threatens severe penalties to anyone, doctor or not, who helps
someone to do so. Thus the option of suicide is denied to those who are
physically impaired, or whose illness deprives them of capacity, while
others must face the risks of a bungled solo attempt. Compassionate doctors
who agree to help a patient to die have little option but to act covertly
and to falsify their records.
The law also leaves a grey area between so-called passive and active
euthanasia. Doctors who withhold or withdraw life-preserving treatment,
or who provide symptom relief that can shorten or end life, may consider
that they are engaging in sound medical practice, but they are vulnerable
to an accusation of deliberately causing death. The Consent to Medical
Treatment and Palliative Care Act in South Australia is designed to
protect both patient and doctor in this situation. Although this is an
improvement, it encounters the difficulty of perpetuating a distinction
which does not in reality exist. There is no precise moral or practical
dividing line between the continuum of palliative care measures, (ranging
from those that have no effect on life span, or even extend it, through
to those that curtail or end it), and the act of voluntary euthanasia.
Consequently, the Act was criticised by some in the anti-choice lobby as
a disguised euthanasia law, or a step in that direction.
Reliance on the doctor's "intention" to distinguish between palliative
care and voluntary euthanasia provides an unsound basis for public policy.
It creates a situation where, although the action taken is the same and
the consequence is the same, the legal difference lies in a claim by the
patient of intolerable suffering and by the doctor that the treatment was
designed to improve patient comfort and not to end life. This invites duplicity
and covert practice since there is no independent way to check such claims.
The law needlessly restrains personal liberty and adversely affects
the medical care of incurably ill and dying patients. Speaking at the AMA
Forum "Ethics and Law - the dying patient" held in Canberra on 11 August
1994, Professor David Kelly said:
"The present law causes great harm to dying patients and their medical
advisers. That harm far outweighs any harm which can reasonably be predicted
to flow from a carefully designed change in the present law ... First,
it condemns a significant number of dying patients to intolerable pain
and distress. Second, it imposes on a number of caring medical practitioners
the threat of prosecution and professional ruin for doing what they believe
their professional duty requires." [27], [38](c).
Changing the Law
The law may be changed by act of parliament (statute law) or by precedent
set by judicial decision (case law).
Statute Law
In the preparation of voluntary euthanasia legislation several points
of principle have to be decided:
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Must the patient be "terminally ill", e.g., death expected within
six months, or maybe twelve ? The term is vague and forecasting is difficult.
What of the patient with no prospect of remission or recovery who is expected
to live longer, perhaps much longer, and will therefore suffer more? It
should be sufficient that the condition is incurable and permanently reduces
the quality of life to a level unacceptable to the patient.
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When should the request be made ? The patient is seriously disadvantaged
if the request can only be made by a now-competent patient in respect of
a current condition. What happens if the condition has deprived the patient
of legal capacity? There is a strong case for an optional advance request
to meet this situation although objections have been raised [28].
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How should the request be made and recorded ? A video would be ideal
in respect of a current condition, but not always feasible; a repeated
request over a period of time is desirable, but will not always be appropriate;
the request should be in writing, but allowance must be made for someone
who cannot write. While an advance request should be specific, reliance
must still be placed on the discretion and understanding of the doctor.
The additional appointment of an agent with an appropriate enduring power
of attorney, or the provision by the patient of a statement of values,
could help the doctor to understand the patient's wishes.
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What are the limits of safeguards ? Too few leave the patient vulnerable,
too many harass both doctor and patient, and provide fertile soil for litigation.
Voluntary euthanasia is a measure of last resort requiring compassionate
response by a doctor to the wishes of a seriously suffering patient. It
is not an invitation to unscrupulous doctors to take advantage of unwary
and sick people who would rather stay alive. Safeguards should be prescribed
only to the extent that they serve to ensure that the authorised procedures
are followed; that it is voluntary euthanasia and not anything else that
takes place.
Statute law might be changed in various ways [29]:
(A) Decriminalise Medically Assisted Suicide. The advantage of
this is that, although not morally distinct from "active voluntary euthanasia"
[30], it could be more acceptable to doctors and to legislators because
the patient would end his or her own life, the doctor prescribing but not
administering a lethal dose. The main disadvantage is that it could only
be implemented by a patient who was physically capable of self-administration.
The simplest measure would be to amend Section 13a of the 1983 Amendments
to the Criminal Law Consolidation Act 1935 to read:
"(5) A person, other than a medical practitioner acting at the request
of a patient, who aids, abets or counsels the suicide of another ... shall
be guilty of an offence."
Such an approach to medically assisted suicide ignores the need for
safeguards to protect both patient and doctor.
(B) Make "Mercy Killing" a Defence, reducing murder to manslaughter.
While this has been seriously advocated [31] it can hardly be acceptable
to doctors since they would remain criminally liable, albeit in respect
of a lesser offence.
(C) Create a Specific Offence of "Mercy Killing". This would
resemble a clause in the Dutch penal code, which makes taking a person's
life at that person's request a separate and much lesser crime than murder.
Like (B) above, it assigns criminal culpability to an act which should
not be so designated.
(D) Legalise Voluntary Euthanasia, (including medically assisted
suicide), either as defined (see Section 2), or with restrictions. The
issue is whether the law should be comprehensive at the outset, or proceed
by stages. Some see the latter as most likely to gain the support of legislators
and doctors. It is arguably important to proceed slowly, so that experience
can be gained and confidence built up. SAVES, however, takes the view that
as most opposition stems from a dogmatic adherence to traditional principles
there is little to be gained by watering down the objectives in advance.
To do so could lead to the accusation that the proposals are a subterfuge,
preparing the ground for a more sinister agenda.
A voluntary euthanasia law should not attempt to cover every contingency.
It should set out the ground rules and provide adequate safeguards in a
form that doctors and their patients can readily understand and follow.
The law would need to be supplemented by professional guidelines for sound
medical practice. Proposed legal requirements and guidelines are outlined
in Appendix A.
Case Law
In the Netherlands changes in the law were initiated by courts
adjudicating the cases of doctors who had admitted helping their patients
to die. It was some twenty years after the first such case that parliament
formalised the court decisions by amendments to the Burial Act giving doctors
legal immunity if procedures embracing the criteria were followed prior
to the issue of a death certificate (Fact Sheets 4,17 & 21). Voluntary
euthanasia remains an offence under the Penal Code, providing a good example
of the reluctance of politicians to grasp this particular nettle. A law
which makes voluntary euthanasia a criminal offence, in conjunction with
another that enables doctors to practise it without prosecution, is an
awkward compromise that leaves doctors uncertain of their position.
Other courts around the world, ruling on cases affecting the rights
of dying patients, have exposed the inadequacies of statute law - juggling
between "letting-die" and "causing death"; blurring the distinction between
last-resort palliative care and euthanasia; or explicitly recognising voluntary
euthanasia. Several cases aroused public indignation and some gained prominence
world-wide.
In Britain in 1991, Dr Nigel Cox was found guilty of the attempted
murder of a 70-year old terminally ill woman who was suffering immense
unrelievable pain. He received a 12-month suspended sentence and the General
Medical Council imposed no penalty [12(c)]. The case was said by the editor
of the British Medical Journal to have given the euthanasia debate "an
almighty shove". In 1993 the House of Lords authorised the removal of life
support from Anthony Bland, a young man who had been in a persistent vegetative
state since 1989, for the purpose of allowing him to die [12(d)(e)(f)].
However, a Select Committee of the House of Lords subsequently recommended
against legalising voluntary euthanasia [32].
In Canada, Sue Rodriguez, suffering from a disease that progressively
paralysed her, sought a declaration to allow a doctor to end her life at
a time of her choosing on the grounds that she would then be unable to
do so herself. Although she lost her case in 1993 by 5-4 in the Supreme
Court of Canada, she died in the following year with the help of an unidentified
doctor ([12](g), [1]-Part 2).
In the USA, several judgements have dealt with withdrawal of
life-support, while others have concerned medically assisted suicide. In
1976, the father of Karen Ann Quinlan, who had suffered irreversible brain
damage the previous year, obtained authority from the New Jersey Supreme
Court for her respirator to be disconnected to allow her to die. This was
done, but she remained in a coma fed through tubes for ten years before
she died [33]. In 1990, the parents of Nancy Cruzan who was in a persistent
vegetative state following an accident in 1983, lost an appeal to the Supreme
Court for permission to withdraw her feeding tube. The court ruled that
this could not be done without evidence that that would have been her wish.
In a dissenting judgement, Mr Justice Stevens remarked that except as a
theological abstraction, "the idea of life is not conceived separately
from the idea of a living person" [34]. Such evidence was provided soon
afterwards, the tube was removed, and she died. She had then been unconscious
for 8 years. In 1997 the US Supreme Court ruled (a) that there was a constitutional
right to palliative care, including terminal sedation, (thus, in the view
of some, accepting euthanasia), but (b) that there was no constitutional
right to physician-assisted suicide; this was for the individual States
to decide [35]. This cleared the way for Oregon's Death with Dignity Act
introduced in 1994 by Citizen Initiated Referendum (see Fact Sheet 18).
It had been delayed by court injunction but was then put to the people
again in a second referendum. The Act was reaffirmed on 4 November 1997,
making Oregon the second jurisdiction (after the Australian Northern Territory)
to legalise a form of voluntary euthanasia. In the light of this and the
Supreme Court ruling, there is pressure on other States to introduce similar
legislation.
In Columbia, on 20 May 1997, their highest court ruled in favour
of voluntary euthanasia, leaving parliament to legislate. An appeal against
the decision was dismissed on 2 October 1997[36].
In Japan, there have been two court decisions affirming the right
to voluntary euthanasia. In 1992, in the "Yamanouchi Case" of mercy killing
by a son of his father, the Ngoya High Court laid down six conditions for
legally acceptable voluntary euthanasia. In 1995, in the "Tokai University
Case" of a doctor who had administered a lethal injection at the request
of the family, the Yokohama District Court laid down three prerequisites
for termination of life-sustaining treatment and four for "active euthanasia".
These were similar to the Ngoya Court's six, and both resembled those prescribed
in the Netherlands [37].
While the debate focuses on the role of parliaments, the judiciary'srole
as lawmaker should not be overlooked. Although "judicial activism" is deplored
by parliamentarians, their reluctance to legislate may oblige the courts
to take the lead [38]. To highlight this, in 1995 seven Melbourne doctors,
in an open letter, challenged the Victoria State Premier to take them to
court for admittedly helping patients to die, or else change the law [39].
This was ignored.
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