Should voluntary, active euthanasia and medically assisted suicide, as legalised in the Northern Territory, continue to be available?



Echo Issue Outline: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.

Issue outline by J M McInerney



Prologue: provisions for the terminally ill in states and territories other than the Northern Territory


Most Australian states and territories have legislative or common law provisions dealing with the rights of the terminally ill, however, these laws allow a physician only to supply pain relief or to refrain from taking extraordinary measures to prolong life.
Other than in the Northern Territory, it is not legal to deliberately end a patient's life or to supply patients with the means to end their lives.
The South Australian Natural Death Act, 1983, allowed persons of sound mind aged 18 years or more to complete a `notice of direction' indicating that if they became terminally ill, they did not wish their lives extended by extraordinary means.
A private member's Bill to investigate the issue of euthanasia was defeated in the South Australian Parliament, in July, 1995.
The South Australian Palliative Care Bill, introduced in November, 1995, makes euthanasia illegal. However, it allows terminally ill people to determine their level of medical treatment and whether they want life-sustaining treatment.
In Victoria, the 1990 Medical Treatment Act does not recognise the `right to die' nor has it altered the law prohibiting aiding and abetting suicide or homicide.
However, the Victorian Medical Treatment Act does allow a patient to refuse certain treatments and provides for representation should a patient have become incompetent.
The right to refuse certain treatments does not include the right to refuse ordinary care, such as the provision of food and water.
In the Australian Capital Territory, the Medical Treatments Bill, 1994, gives patients the right to refuse treatment, allows life support to be switched off, and guarantees access to pain relief, even if it can cause death.
There is currently a Bill before the ACT Legislative Assembly that would give terminally ill patients greater control over how much pain relief they get.
Last year, legislation to legalise active euthanasia did not pass the ACT Parliament, however, it is probable a similar bill will be re-introduced next year.
In Western Australia, under common law, a person has the right to refuse medical treatment.
The WA Government is considering a bill which would give legislative endorsement to this common law right for terminally ill patients to refuse treatment.
In New South Wales, doctors are allowed to turn off life-support on the basis of clinical judgement and in consultation with the patient's family.
The New South Wales Parliament has a working party which has been looking at the issue for the last twelve months.
One independent MP is pushing for a referendum on euthanasia in 1999.
Queensland has no laws that require a person to accept medical treatment, nor any laws that say a person can refuse treatment.
In June, 1996, the Queensland Law Reform Commission released a report examining the concept of a `living will' which allows a person, while in sound mind to indicate their treatment preferences should they be incapacitated by a terminal illness and unable to indicate their wishes.
In Tasmania, a doctor cannot actively assist a patient to commit suicide, but a patient has the right to refuse treatment. Tasmania has circulated `dying with dignity' guidelines.



On September 22, 1996, Mr Bob Dent became the first person to die under the Northern Territory's Rights of the Terminally Ill Act 1995.
Mr Dent's doctor, Dr Philip Nitschke, has said that five other of his patients, three from inter-state, also wish to die under the provisions of the Northern Territory legislation.
The Northern Territory legislation has generated enormous debate and aroused strong public feeling.
Victorian backbencher, Mr Kevin Andrews, has put before the Federal Parliament a private member's Bill, the Euthanasia Laws Bill, intended to overturn the Rights of the Terminally Ill Act 1995.
The private members Bill will be debated on October 28, 1996. All political parties have agreed on a conscience vote.

Background
Euthanasia, commonly referred to as `mercy killing', is generally taken to mean that the death of a suffering, terminally ill person is deliberately hastened.
There are two principal forms of euthanasia, passive and active.
Passive euthanasia refers to the failure to take an action that may prolong a patient's life. A possible example of passive euthanasia is the withdrawal from a patient of food and sometimes water. It is claimed that this is what is sometimes done in the case of grossly deformed new born babies who have no long-term life expectancy.
Active euthanasia means that steps are taken to bring about the patient's immediate death. The most commonly discussed example of this form of euthanasia is the deliberate administering of a lethal injection by a physician. (This form of active euthanasia is legal under the Northern Territory's Rights of the Terminally Ill Act 1995. In the Netherlands, the only other country with similar provisions, euthanasia is not technically legal, however, physicians who give lethal injections are immune from prosecution.)
Another major distinction to be drawn when discussing euthanasia is that between voluntary and involuntary euthanasia.
Throughout this debate the emphasis is on voluntary early death. There is no suggestion, to date, that any patient should be euthanased without their expressed permission. (Attempts have been made to safeguard against this possibility in the Northern Territory legislation.) However, in the euthanasia debate as a whole, the cases of babies, young children, the mentally deficit and those incapacitated and perhaps unconscious as a result of illness cause particular problems.
The final distinction to be drawn is that between active, voluntary euthanasia, performed by a physician and self-administered euthanasia assisted and overseen by a doctor. This last form of euthanasia is commonly referred to as doctor-assisted suicide or medically-assisted suicide.
Medically assisted suicide is what is performed by Dr Kevorkian in the United States.
Medically assisted suicide appears very closely related to active euthanasia, in that the doctor sets up circumstances where a lethal injection can be given to a patient, however the final act of administering the lethal substance is performed by the patient, not by the doctor.
The Northern Territory legislation allows for both active and medically assisted suicide.
The Northern Territory's Rights of the Terminally Ill Act 1995, is the only legislation of its kind in the world.
Within Australia, the law and accepted practice outside the Northern Territory mean that a form of treatment may be withheld from a patient because it is viewed as unduly onerous and ultimately futile. Where the intention is assumed to be to reduce suffering, rather than to hasten death, such an action is not usually considered euthanasia and is not outside the law.
Similarly, a drug administered or supplied to a patient to relieve pain may have the incidental side-effect of hastening the patient's death, but if the physician's primary purpose is to control pain, rather than end the patient's life, then the act is legal and is not regarded as euthanasia.
(There are those who claim that rather than hastening death, pain-relieving medication may extend a patient's life by relieving stress, promoting sleep and enabling the patient to move about.)
The Northern Territory Rights of the Terminally Ill Act 1995, allows a doctor deliberately to administer a lethal substance or to assist a patient to self-administer.
The Northern Territory Rights of the Terminally Ill Act 1995
allows active euthanasia or physician assisted suicide in the following manner, with the following safeguards:
* The patient must make a request to die;
* The patient must be at least 18 and suffering from an illness that will result in death;
* A first doctor must diagnose the terminal illness and be willing to help with the death;
* A second doctor, specialising in the patient's illness, must confirm diagnosis and prognosis;
* A psychiatrist must confirm the patient is not suffering a treatable clinical depression;
* Seven days must pass after the patient formally indicates the wish to die;
* The patient must complete and sign a certificate of request, signed by the second doctor;
* The patient must share the same language as the second doctor, or an interpreter must sign the request;
* Forty-eight hours after the request has been signed, the patient can die.
Bob Dent died through the action of anaesthetics and muscle relaxants. The drugs were delivered via a large syringe attached to a pump. The release of the drugs was controlled by a laptop computer operated by Mr Dent.
The machine and computer were developed by Dr Nitschke and Mr Des Carne, an Alice Springs computer enthusiast.
Dr Nitschke set up the device, prepared the drugs and oversaw Mr Dent's self-administered euthanasia.

Arguments in favour of active voluntary euthanasia being legally available
The principal argument offered in support of active, voluntary euthanasia is that it should be the `right' of every individual to determine the manner and time of his or her death.
The Victorian premier, Mr Jeff Kennett, has stated, `Life is about choice; death should be about choice ...'
According to this line of argument, to be able to end one's own life when suffering a terminal condition is the entitlement of every human being.
Dr Helga Kuhse, the director for the centre for human bioethics at Monash University has argued, `Respect for human life is not the value that we should primarily respect in our society if it means just mere biological existence of a patient. Rather ... we should respect their wishes to say "enough is enough".'
A related argument is that the decision as to when and how to end one's life effects only the individual concerned. Therefore, it is claimed, neither legislators nor religious leaders should attempt to prevent a person choosing the manner of his or her death.
Professor Peter Baume has argued, `It is the right of people to use their own understanding, then to reach decisions on moral and ethical questions, and to decide for themselves on matters affecting them alone.'
New South Wales, Labor backbencher, Mr Anthony Albanese, has stated, `This person (Mr Dent) died with dignity and in a manner which gave him control. Who is Kevin Andrews or anyone else to make that decision for him?'
Victorian premier, Jeff Kennett, has expressed a similar view, `Being hit with disease, in great pain, wanting to exit gracefully, and being able to [have] that choice prohibited because a group of politicians are so motivated to deny an individual that choice ... I think it is absolutely appalling.'
The same view was put by Mr Bob Dent in an open letter to all federal parliamentarians, dictated to his wife, days before he died.
`What right has anyone because of their own religious faith ... to demand that I behave according to their rules until some omniscient doctor decides that I must have had enough and goes ahead and increases my morphine until I die?' Mr Dent asked.
A third argument offered in favour of legalising voluntary, active euthanasia is that those who object to or do not want the option for themselves, need not request it.
This position was also put by Mr Dent who argued, `If you disagree with voluntary euthanasia then don't use it, but don't deny me the right to use it if and when I want to.'
Those supporting active euthanasia further argue that fears that euthanasia might be imposed on those who do not want it are misplaced.
According to this line of argument legislation can be drafted with safeguards to ensure that euthanasia is only employed on those who have given their clear consent.
Dr Philip Nitschke, the first doctor to use the Northern Territory legislation to bring about a patient's death, has claimed that the law is not open to abuse.
Dr Nitschke has claimed that the requirements are so strict as to be restrictive. `This legislation is so damn safe it is almost unusable. The bar can be raised so high that we can hardly get over it.'
The fifth argument offered in support of euthanasia grows out of this confidence that adequate safeguards can be built into euthanasia legislation. This argument claims that legislation can help prevent unauthorised acts of euthanasia from occurring.
According to this line of argument, when the law has not allowed euthanasia, acts of euthanasia still occur, however, in the absence of guidelines these acts may violate patients' rights.
It is claimed that where there are relevant laws, with clearly outlined preconditions before euthanasia can occur and when open records are kept, then the practice of euthanasia is likely to be properly conducted, with full respect for patient life.
Joseph O'Reilly, executive director of the Victorian Council for Civil Liberties, has claimed, `By legalising voluntary euthanasia, all end-of-life decisions, including the decision to seek help to die, would be made openly and with certain legal criteria attached.'
The sixth argument offered is that palliative care may not be sufficient to ease the pain of the terminally ill.
Mr Dent stated in his open letter, `I have no wish for further experimentation by the palliative care people in their efforts to control my pain.
My current program involves taking 30 tablets a day!
For months I have been on a rollercoaster of pain made worse by the unwanted side-effects of drugs.'
Relatedly, it is claimed that pain is not the only cause of suffering and distress for the terminally ill. Physical degeneration, loss of control of bodily functions and apprehensions about the course of one's illness can cause a patient anguish.
Dr Robert Marr, a spokesperson for the Coalition of Organisations for Voluntary Euthanasia, has claimed, `I have been a medical practitioner for over 20 years and I know that many dying patients experience great suffering (unrelated to pain) that cannot be relieved by palliative care.'
Finally, it has been claimed, that the vast majority of Australians favour the Northern Territory Rights of the Terminally Ill Act 1995. The Bulletin had a Morgan poll conducted in September, 1996, which indicated that 76 per cent of those people surveyed believed that a terminally ill patient who asks for a lethal injection should be given one.
According to this line of argument, politicians should respond to the wishes of the vast majority of the Australian population when formulating legislation which will potentially effect all Australian citizens.

Arguments against voluntary, active euthanasia and medically assisted suicide being legally available
The central argument offered against legalising active euthanasia is that it undermines respect for human life.
Those who hold this view claim that the Northern Territory legislation legalises the killing or, at the very least, the assisted suicide, of another human being.
Liberal member for Menzies, in Victoria, Mr Kevin Andrews has stated, `The Territory Act ... is not about the refusal of burdensome or unwanted medical attention ... it is not about the provision of modern pain-relieving palliative care.
The Northern Territory Act is about one thing - the use of a lethal injection to bring about the immediate death of another.'
Critics argue that what is at issue here is whether Australia should legalise the taking of human life. Opponents argue that respecting and maintaining human life is the most fundamental of all values.
It has also been argued that the Northern Territory Act is flawed because it does not ensure that those who are euthanased are in physical pain and are about to die.
Tony Abbott, the Liberal member for Warringah in New South Wales, has claimed that under the provisions of the Act `it's not necessary to be in immanent danger of death nor in great pain for a lethal injection to be given. A patient need only suffer from a lethal condition and reject palliative care options.
Conceivably, most cancer patients and all AIDS patients could qualify, regardless of their medium term prognosis.'
According to this line of argument, the Northern Territory law, in allowing active euthanasia and assisted suicide, ignores the possibility of any continuing quality of life for the patient.
Critics also claim that the law does not adequately allow for the possibility of remission in cancer patients.
Another argument against this legislation is that consent may not be genuine.
It has been suggested that once we have legislation that allows euthanasia then there is scope for pressure to be placed on people to request it because they believe they have become a burden to others, not because they actually wish to die.
Kevin Andrews has argued, `This is going to place increased burden and pressure on many people who are vulnerable. We already know that there is a lot of subtle and sometimes less-than-subtle pressure on people who are disabled and who are elderly and who are ill.'
Another argument offered by critics of the Northern Territory Act is that it has the capacity to be extended beyond patient-requested euthanasia.
According to this line of argument, legislation such as that enacted in the Northern Territory, places our society at the top of a `slippery slope'. By this is meant that while the current legislation may appear to protect the rights of the individual and ensure that the act is voluntary, it can be abused so that we `slide' into a situation where those who do not want to be euthanased will be killed.
Those who argue this point of view give the Netherlands as an example. (In the Netherlands, though active euthanasia is not legal, doctors who perform active euthanasia via lethal injection are immune from prosecution.)
A survey conducted in the Netherlands in 1990 claimed that 61% of those who had died through active euthanasia, had had their lives ended without their consent.
Kevin Andrews has claimed that the Northern Territory parliament has `turned a blind eye to the evidence of widespread abuse of euthanasia in The Netherlands.'
It has also been suggested that we may reach a point where those who are euthanased, either with or without their consent, become those whose lives have been judged to be of too poor a quality to be worth continuing.
According to this line of argument, the elderly and the disabled, as well as the terminally ill, could be euthanased.
Dr Bernadette Tobin, director of the John Plunkett Centre for Ethics at St Vincent's Hospital in Sydney has suggested, `It will encourage doctors and the rest of us to succumb to the tempting belief that lives are not worth living - first, those in pain, next the demented and after that the elderly.'
Relatedly, it has been argued, that such legislation is very hard to limit and regulate. Again, those who argue this position cite the situation that has developed in the Netherlands.
Drs Nell Muirden, Maria Pisasale and Helen Austin have argued, `In The Netherlands ... although it has been mandatory to notify cases of euthanasia, studies have shown that in fact in 38 per cent of cases, euthanasia is not reported. This illustrates the fact that when euthanasia becomes acceptable, it is very difficult to control.'
Finally, it has been argued that palliative care can control most physical pain.
According to this line of argument, the pain of the large majority of terminally ill patients can be managed by medication.
The director of the Anti-Cancer Council of Victoria, Professor Robert Burton, has expressed concern that people diagnosed with terminal cancer might seek euthanasia without exploring palliative care options.
`If palliative care is applied properly, people should be able to get their symptoms relieved and when the time comes die with dignity and in comfort,' Professor Burton has claimed.
Kevin Andrews has criticised the Northern Territory legislation as unnecessary and premature. He claims that `the standard of palliative care in the Territory is totally inadequate' and implies that if palliative care in the Northern Territory were of a better standard the Rights of the Terminally Ill Act 1995 may have been avoided.

Further implications
At this stage it is difficult to predict the fate of the Andrews Bill and thus difficult to know what will be the short-term future of the Northern Territory's Rights of the Terminally Ill Act 1995.
Most commentators judge that the Bill will pass the House of Representatives, however, its fate in the Senate is much less certain.
The issue has become more complicated than even that of whether an Australian territory should have a law which allows euthanasia.
It is also being argued as a states' rights issue. The Chief Minister of the Northern Territory, Mr Stone, has claimed, `This is about the rights and processes of [the Northern Territory] parliament being circumvented by another parliament.'
According to this line of argument, the Federal Parliament should not be able to override a state or territory parliament.
The Euthanasia Laws Bill's author, Kevin Andrews, has argued, that the Bill only incidentally involves states' rights. `Most people are of the view that it is about euthanasia and that is how they want to address it.'
It is not certain that Mr Andrews' view on the relative unimportance of the states' rights question in deciding this issue will prevail. A meeting of all state premiers and territory chief ministers, has supported the right of the Northern Territory to make its own laws.
Should Mr Andrews' Bill be passed and the Northern Territory's Rights of the Terminally Ill Act 1995 be overridden, this will certainly not mark the end of the euthanasia debate in Australia.
Tasmanian Greens Senator, Mr Bob Brown, has stated that he will introduce his own private member's bill (modelled on the Northern Territory's Rights of the Terminally Ill Act 1995) into the Federal Parliament early in 1997.
Also, early in 1997, Independent Australian Capital Territory MP, Mr Michael Moore, plans to introduce another private member's bill which, if passed, would give the ACT euthanasia legislation similar to the Northern Territory's.
If Mr Andrew's private member's bill does not get through the Federal Parliament, and the Northern Territory's Rights of the Terminally Ill Act 1995 remains operative, this will certainly not be the last challenge it has to face.
On November 15, 1996, the High Court will decide whether to grant special leave for an appeal against the Northern Territory's legislation.
The appeal is being made by Dr Chris Wake, the Northern Territory branch president of the Australian Medical Association, and Dr Djinniny Gondarra, a Uniting Church minister. The appeal will argue that the Northern Territory's Legislative Assembly exceeded its powers. They will also argue that the law breached an implied right to life underlying the Constitution.
If Kevin Andrews' private member's Bill is unsuccessful and the Northern Territory's Rights of the Terminally Ill Act 1995 remains in force, one immediate and certain consequences is that numbers of people will seek to have their lives ended using its provisions.
A significant number of those seeking to use the Act will come from interstate. It has also been suggested that people may well travel from other countries in order to make use of this law.
It will be interesting to note whether the Northern Territory Legislative Assembly amends the Act to restrict its application to residents of the Territory or at least residents of Australia.
(Currently, the specialist who endorses the original diagnosis and prognosis must be a resident of the Northern Territory.)
Further, if the Northern Territory's Rights of the Terminally Ill Act 1995 remains operative, this may have significant consequences for the Territory's Aboriginal citizens.
The Rights of the Terminally Ill Act 1995 appears to have meet with general opposition and suspicion from the Territory's Aboriginal community. Should it remain in effect, one probable consequence of this is likely to be increased reluctance among Aborigines in the Northern Territory to use medical facilities, especially hospitals.
No other state or territory has immediate plans to introduce legislation similar to the Northern Territory's (apart from the ACT where a private member's bill on euthanasia is to be put early next year).
The Victorian premier, though a supporter of the Northern Territory's legislation, has indicated that Victoria will wait at least four years before considering similar legislation.
New South Wales, which has had a parliamentary sub-committee considering the issue of euthanasia for the last year, plans to hold a referendum on the question in conjunction with the 1999 state election.

Sources
The Age
9/9/96 page 6 news item, `MP to challenge euthanasia law'
11/9/96 page 10 letter to the editor by Drs Nell Muirden, Maria Pisasale and Helen Austin, `Myth that morphine hastens death'
24/7/96 page 15 comment by Joseph O'Reilly, `No wrong in choosing the right to die'
27/9/96 page 1 news items by Gay Alcorn and Louise Martin and David Passey, under the heading, `Now more want to die'
27/9/96 page 6 news item by Gay Alcorn, `You're here to do a job, let's get on with it'
27/9/96 page 6 news item by staff reporters, `Campaign to scuttle death law intensifies'

The Australian
13/9/96 page 3 news item by Gabrielle Chan, `Special sitting for Bill to stop mercy killing'
14/9/96 page 5 news item by Maria Ceresa, `States' rights the issue, not euthanasia: Stone'
16/9/96 page 8 editorial, `Euthanasia leadership is welcome'
18/9/96 page 14 letter to the editor from Dr Stephen Clarke, `Euthanasia precedent'
20/9/96 page 10 four letters to the editor form Drs Carr-Gregg, Nitschke and Marr and from Professor Garry Phillips under the heading, `How doctors feel about voluntary euthanasia'
27/9/96 pages 1 and 6 news item by staff reporters, `First legal death splits nation'
27/9/96 page 6 news item by Ewin Hannan and David Nason, `Kennett attacks "immoral" attempt to override NT law'
27/9/96 page 6 news item by Belinda Hickman, Katherine Glascott and Jody Scott, `Ethical dilemma: Churches unite in condemnation'
27/9/96 page 7 news item by Gabrielle Chan, `Bill won't punish doctors involved in euthanasia'
27/9/96 page 7 news item by Janet Fife-Yeomans, `Patients face a legal minefield across the nation'
27/9/96 page 13 comments by Peter Baume and Tony Abbott, `Act of compassion or merely killing'
27/9/96 page 13 comment by Kevin Andrews, `It's a national responsibility to invalidate lethal injections'
The Bulletin
17/9/96 pages 19 to 22, analysis by Kerry-Anne Walsh, `Vote: life, death, choice'

The Herald Sun
11/9/96 page 20 letter to the editor by Marianne Crowe, `Don't help them to die'
24/9/96 page 20 letter to the editor by Marc Brunet, `No social obligation to die'
27/9/96 page 14 news item by Damon Johnston and Kylie Hanson, `We'll wait - Kennett'
27/9/96 page 15 letter by Robert Dent, as dictated to his wife published under the heading, `An end to the pain'