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        Voluntary Euthanasia - A Personal View (2007)

This article was originally published in October, 2007 in The Journal of the
Independent Scholars Association of Australia. John Greenwell is a member of the
Voluntary Euthanasia Society of New South Wales and was formerly Deputy President of the Australian Law Reform Commission, senior officer in the Commonwealth Attorney Generals Department and member of the Victorian Bar. In the mid-1990s he was
active in lobbying for support of
the Northern Territory Rights of the Terminally Ill Act which was introduced by the then Chief Minister of the Northern Territory, Marshall Perron, and subsequently enacted by the the Northern Territory Legislative Assembly. 

Introduction
Ethics – the values of respect for life, relief of suffering and autonomy

Law and Ethics – contrast and similarities – significance of community attitudes – voluntary euthanasia as an exception
The Northern Territory Rights of the Terminally Ill Act 1995

The question of a ‘slippery slope’

Footnotes

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Introduction

In 1995 Marshall Perron, the former Chief Minister of the Northern Territory, introduced the Rights of the Terminally Ill Bill into the Northern Territory legislature which, after a lengthy campaign and counter-campaign, was passed into law. This triggered immense agitation throughout the country. A private measure supported by the government was introduced into the Commonwealth Parliament to override the Northern Territory Act as the Parliament was constitutionally empowered to do. After lengthy and intense debate the overriding Bill, introduced by Kevin Andrews, narrowly passed in the Senate and, upon enactment, superseded the Northern Territory Act. Although it remains open for a State Parliament to enact voluntary euthanasia legislation it would not be possible for a Territory Legislature to do so, without the repeal of the Andrews Act.

 

The issue continues to re-emerge, most recently in January of this year, when John Elliott, suffering from a terminal bone marrow cancer went to Switzerland to die by euthanasia. A new dimension has been the attempt, chiefly by Exit International, to by-pass the need for legislative endorsement by facilitating availability of a pill – described as ‘The Peaceful Pill’— designed to provide a pain-free death by ingesting it at a time of the person’s choosing.

 

We need therefore to reconsider the issue itself, the legislation enacted to deal with it and this new development. 

In this essay I have emphasised the distinction between the ethical and the legal considerations - the enactment into law -  concerning voluntary euthansia. It seems to me that this distinction has been largely neglected by both proponents and opponents of voluntary euthanasia.

 

 

Ethics – the values of respect for life, relief of suffering and autonomy

 

I start from the premise that we attach significance to three values. These are respect for life, relief of suffering and respect for individual autonomy. The situation in which voluntary euthanasia typically occurs involves the intersection of these three values and acute tension between them.

 

The kind of situation to which I refer is where a person subject to irreversible and unbearable suffering elects to seek medical assistance to take his or her own life.(In this context ‘suffering’ extends to the kind of mental and physical disintegration  occurring in the case of certain neurological disorders.)

 

The Catholic Church maintains that in such a situation respect for life involves an unqualified duty to live and, where all three values cannot be maintained, the duty to live should always exclude the other two values. Accordingly, voluntary euthanasia will always be wrong. The Church says that this is so because

believers see in life something greater . . ., namely a gift of God’s love, which they are called upon to preserve and make fruitful”... Intentionally causing one’s own death, or suicide, is therefore equally wrong as murder; such an action on the part of a person is to be considered as a rejection of God’s sovereignty and Loving Plan. [1].

 

I am unable to accept this absolutist ethic and find it surprising it should be thought a God of Love would command continuation of life where that would result in cruel and unrelievable suffering contrary to the wishes of the person who is suffering. The gift that God has made of life includes the freedom, not conferred on any other animal, to bring that life to an end. This implies that a decision to do so is not always wrong. If that be so, unbearable and irreversible suffering would seem precisely the situation contemplated by the conferral of the freedom.

 

In general, I agree with Glanville Williams who in his The Sanctity of Life and the Criminal Law wrote:

 

It is good that men should feel a horror of taking human life, but in a rational judgement the quality of the life must be considered. The absolute interdiction of suicide and euthanasia involves the impossible assertion that every life, no matter what its quality or circumstances, is worth living and obligatory to be lived. This assertion of the value of mere existence, in the absence of all the activities that give meaning to life, and in the face of the disintegration of personality that so often follows from prolonged agony, will not stand scrutiny [2].

 

Nevertheless, no matter how great the suffering or how bad the quality of life, euthanasia, to be ethically justifiable, must be voluntary. To go on living in such a situation or to choose death should be an autonomous choice. Autonomy is in fact an important link with the value of life. It does not rest upon any other person to determine when a human being’s life has lost its ‘meaning’.

 

An opposing view and one at the furthest extreme to that advanced by the Church is that one should at all times give paramountcy to the autonomy of choice. It is claimed that each person has a right to die and that the right to seek assistance to give it effect is only a natural and derivative extension of this right. Your life is your own. Nobody can dictate when you can cease to maintain it. The logic of this view is that ‘voluntary euthanasia’ would be permissible whenever it is freely chosen by an adult person irrespective of the circumstances. The right is not, on this view, contingent upon the existence of suffering, diminished quality of life or any other objective circumstance.

 

It is, I think, convenient to examine this view in the context of our law of suicide and assisted suicide. At present our law does not proscribe suicide or attempted suicide but it does forbid assisted suicide. The question arises: why, if autonomy is to be accorded in the case of suicide, it is not accorded in the case of assistance to do it.

 

One practical reason for the distinction is the difficulty of effective enforcement against a suicide and the ability to do so against a person assisting it.

 

My own view is that there is a more fundamental objection. The community has a collective interest in the value of life. It expends great effort in preserving it. To allow unconditional, assisted suicide would involve the value of autonomy displacing entirely, without any countervailing justification, the value which the community attaches to human life and its preservation. It is one thing to permit, or at least, not proscribe suicide; it is another to facilitate it by allowing it to be assisted.

 

But where there is great suffering the respect owed to life and the ordinary insistence upon it being maintained is reduced and the other two ethical claims become more significant. At a certain point in this moral trajectory the claims of autonomy supersede the duty to live which would otherwise apply. That point is reached when the suffering is unbearable and irreversible. In such a case there is no incompatibility with the values of the medical profession in providing assistance to end life as their professional duty is not only to preserve life - which, on this supposition, cannot be given effect - but to relieve suffering.

 

Many legislative proposals require that the disease or other affliction of the sufferer be ‘terminal’. Unbearable suffering, where death is the only means of ending it, might result from a disease which is not terminal. It may thus be said that terminality is not essential in principle in the case of a patient with unbearable suffering who has clearly expressed his or her wish to die. It is though, in practical terms, easier to accept that an end of life decision is voluntary if the disease is known to be terminal. But in the case of the medical practitioner who is assisting, terminality is more than this. It is essential. This is so because the duty ordinarily imposed upon a doctor to preserve life is only nullified by the inevitability of death and therefore of the ability to preserve life. The only medical duty at that point is to relieve suffering within the limits of autonomy.

 

A question arises whether the irreversibility and unbearableness of suffering must in fact exist to justify voluntary euthanasia morally or is it sufficient for the person to simply believe that they do? It is not necessary to be caught between these two extremes. What is required is that the person honestly and reasonably believes those conditions exist. Respect for the value of life requires the person to go beyond a subjective belief that life has lost its quality and meaning. Reasonableness of belief which mandates that the belief has objective and, in practical terms, medical grounds to support it, is required in addition to genuineness of belief.

 

Accordingly - and to sum up - it is, in my opinion, ethical for an adult sufferer freely to seek assistance from a medical practitioner to die where the suffering is unbearable and the sufferer has a reasonable and honest belief it is irreversible: and it is ethical for a medical practitioner to provide that assistance where (a) he or she is willing to do so and (b) if the disease or other affliction causing the suffering is terminal and the medical practitioner’s professional opinion is that the suffering is irreversible, and (c) claims by the patient that it is unbearable are consistent with the disease or affliction suffered.

 

 

Law and Ethics – contrast and similarities – significance of community attitudes
– voluntary euthanasia as an exception

 

Such is the ethical position. It will be seen that it has been reached by considering and applying certain ethical principles and not by virtue of any strict ethical rule. ‘Principles’, as distinct from rules, are general and lack the categorical character of a prohibition signalled by ‘thou shalt’ (or) ‘thou shalt not’. Principles are however not simply subjective. The principle of respect for life is clear and as a principle is as absolute as the injunction to ‘love thy neighbour’. The only relativism is in the application of such a principle where circumstances differ.

 

Ethics and Law, which we have not so far considered, are not coterminous. It would thus not be illogical to hold voluntary euthanasia to be ethical but should not be enacted into law. When we move from ethics to law we are in one sense in a different area: we are inescapably controlled by ‘rule’. When we apply ethical principles and the principles are in tension there is considerable scope for individualisation in our ethical judgement. Thus, we can have regard generally to a person’s capacity for mature judgement notwithstanding his or her precise age. But once the issue is one of law we must have a fixed rule and so we provide say that only those over the age of 18 are deemed adult and have the autonomy which that implies. This does not mean there is no scope for individualisation in law but it is more circumscribed. Typically it takes the form of an exception to the general rule in order to meet some social need or demand derogating from the rule.

 

While law and ethics are not coterminous they do intersect. Law must be consistent with the minimum ethics of the community. Too low it will fall into disrepute. Too high it will be disobeyed. The classic instance of the latter was the complete collapse of prohibition in the United States.

 

What then is the community’s view of voluntary euthanasia? A majority view in its favour has been recorded in innumerable Polls in most western countries over an extended period. The majorities in these Polls are now very substantial. Indeed the steadily increasing majority during the last half a century only adds weight to the conclusion one would ordinarily draw from the Polls individually. 

 

What has been said though does not represent the entire picture of community attitudes to voluntary euthanasia and its interrelationship with the law. Voluntary euthanasia is an exception to a general rule. That is the rule of the criminal law which forbids the taking of life reflected in the homicide offences. It is reasonably clear that this general rule commands universal community assent. In other words, whilst denial of voluntary euthanasia as such would be to disregard the broad community position, the community does see voluntary euthanasia as an exception and would not support it if its exceptional character could not be maintained.

 

 If an exception to a general rule is not ‘contained’ in the practical administration of justice it will tend to undermine the general rule. And where because of this it is not thought possible to maintain the primary rule the exception will not be introduced into the law. This will be so notwithstanding it is acknowledged that there may be cases where the general rule, without an exception, may work an injustice. An example of this is provocation which is not available as a defence to a charge of assault and would, at common law, only reduce murder to manslaughter. Another example is that of duress or necessity which is not allowable as a defence to murder. And yet we would concede there may be cases of provocation or necessity where the ‘murder’ may be morally excusable and the law in denying these defences does not in the abstract, question that. The law excludes these defences because they cannot in practice be restricted, and so would undermine the enforcement of the primary rule against the taking of life or preventing assaults. In the case of both provocation and necessity the Courts may take account of them in the penalty imposed.

 

The question then, having reached the position that voluntary euthanasia is ethically justified and embodies the moral feelings of the community, is whether it can be given effect in a practical sense by the medical profession, police and the courts  without expanding so as to jeopardise enforcement of the primary rule against taking life.

 

We must define this issue more precisely. It is not in this instance a question of contrasting a law forbidding the taking of human life which is administratively and coercively effective to prevent euthanasia, voluntary or otherwise, with a proposed law which would permit it. That is not the case. The issue is whether a proposed law which expressly admits but regulates voluntary euthanasia is to be allowed as against an existing law which prohibits voluntary euthanasia but is frequently not observed and even less frequently enforced.

 

As long ago as 1994, the Baume inquiry found that one in five doctors in New South Wales and the Australian Capital Territory admitted to having practised euthanasia. Comparable findings have been made in Great Britain. These only confirm anecdotal evidence. Of equal importance has been the absence of any enforcement action or even any expression of public concern. In March 1995 seven Melbourne doctors wrote openly to the Premier of Victoria admitting they had broken the law and calling for it to be changed. In their open letter they said: “we do this because we believe passionately that this state’s law on assisted suicide is wrong.[3]” No prosecutions eventuated.

 

The existing law thus notably fails to uphold the single value it seeks to embody.

 

We can proceed to examine in this context whether the legislative introduction of voluntary euthanasia can be given effect without prejudicing the rule against the taking of life beyond the grounds of exception I have mentioned.

 

Unlike the exceptions to criminal offences mentioned above in which legislative and administrative controls were inappropriate to their enforcement, these are available in relation to voluntary euthanasia. What is imperative to achieve effective control is transparency. It is necessary that there be an objective, open, medical assessment of the terminality of the condition suffered by the patient and that the unbearableness of suffering is consistent with that condition. Next is a requirement that the likely future progression of the condition, including the availability of palliative care, has been fully explained and a record made of the patient’s understanding of the explanation. Then it is for the patient to say - in accordance with the principle of autonomy - whether, in the light of what he or she has been told, he or she wants assistance to die. Thus, although the medical practitioner is to describe and explain the medical condition and the quality of life the patient may expect, it is for the patient to decide whether to make a request for assistance. In accordance with the need for certainty and transparency the decision to seek assistance must be in writing and recorded. Finally, there must be a ‘cooling-off’ period to enable the patient to reflect on the decision. And it is entirely appropriate for the legislation to ensure that the decision has not been the product of clinical depression.

 

It is evident that the distinguishing feature applying to doctors who are at present prepared to carry out euthanasia contrary to the existing law is the almost complete absence of control over the way it is carried out.

 

The doctor is not restricted by any prescribed procedures nor by the need to keep records because of course the euthanasia undertaken is legally prohibited. It is therefore clear that medical practitioners carrying out euthanasia must do so in secret. He or she would only face any kind of danger if the authorities were to become aware.  Such a doctor would be unlikely to seek a second opinion on whether the patient’s condition was as dire as he or she believed. There would be even less likelihood of seeking the opinion of a psychiatrist. There would not necessarily be a period of delay -- a cooling off period – during which the patient could reflect upon any wish he or she may have expressed to die.

 

If we consider the essential element of patient-autonomy, it may be assumed that the doctor would have sought the patient’s decision but it would be fortuitous if there were any deliberate and permanent expression of it. What would never be known, at least publicly, is what advice was given by the doctor to the patient. This situation opens up the possibility of undue susceptibility of the doctor to the family of the patient about which, except by chance, we would never know.

 

Medical practitioners ready to breach the law are, as I have said, mostly activated by compassion. But it does mean that this is necessarily being done in an unregulated way. The danger in these circumstances is that doctors influenced by compassion will give undue weight to relief of suffering at the expense of autonomy. The converse case of a medical practitioner over-emphasising autonomy is also possible. He or she will not attach sufficient weight to the need for unbearableness and terminality and may too readily accede to a request that has not been fully considered and is not sufficiently based upon an objective assessment of the suffering.

 

The Northern Territory Rights of the Terminally Ill Act 1995

 

The Northern Territory Rights of the Terminally Ill Act represents a model which in legislative terms would ensure that voluntary euthanasia does not extend beyond its intended effect and limitations. As the Senate Committee called upon to examine it, described it:

 

The Act contains a large number of provisions intended to ensure that the patient, all the medical personnel and any nursing home involved are all voluntary participants in the determination of that person’s life. The Act also requires that a broad range of factors must have been considered before reaching and implementing the decision to terminate the patient’s life. It requires the participation of at least three medical practitioners. It also requires that the patient be given information on the palliative care that might be available[4].

 

The Northern Territory Act sets out a readily comprehensible working document for medical and hospital personnel and for the police. It is capable of clear interpretation in a Court of Law.

 

It provides:

 

The patient

 

A medical practitioner (having five years continuous experience) may assist the patient to die if he or she is satisfied on reasonable grounds:-

 

.     the patient is terminally ill ;

·         there is no hope of effecting cure;

·         the illness is causing the patient severe pain or suffering or distress;

·         no palliative care options are reasonably available to the patient to alleviate the pain and suffering to levels acceptable to the patient;

·         the patient is of sound mind and wants to die, freely, voluntarily and after due consideration;

·         no less than seven days must have passed between the patient indicating to the medical practitioner a wish to die and signing a certificate of request;

·         the medical practitioner must witness the patient’s signature on the certificate of request;

·         no less than 48 hours have passed since the medical practitioner has completed and signed the certificate;

·         the medical practitioner will gain no financial advantage (other than payment for services) from the death of the patient;

·         a second medical practitioner experienced in the treating the illness involved and independent of the first medical practitioner has confirmed the first medical practitioner’s opinion about the nature and seriousness of the illness

·         and a qualified psychiatrist must be satisfied the patient is not suffering from treatable depression;

 

 

The question of a ‘slippery slope’

 

There is a further question which we can now consider in the light of the legislative scheme set out in the Act. It is said that if voluntary euthanasia were introduced, the legal prohibition on the taking life would begin upon a ‘slippery slope’ to which there is no foreseeable stopping place. This bears a superficial similarity to the argument that, as an exception, voluntary euthanasia would undermine enforcement of the general rule. But there we were concerned with the practical, administrative and even purely legal difficulties in maintaining an exception due to the pressures to expand it. Here the fear is that the moral value against the taking of life will collapse. The taking of life would become acceptable ethically.

 

Discussion of the slippery slope argument has been distorted by the suggestion, principally made by ‘divine command’ ethicists, that the outcome of voluntary euthanasia is exemplified by the Euthanasia Programme introduced by Hitler in Nazi Germany.

 

 There are great differences. Hitler’s Programme was never voluntary. Under it euthanasia was compulsory for the physically or intellectually disabled. It repudiated any notion of autonomy. It was not based upon the relief of suffering. It is difficult to see how any realistic analogy can be drawn between a programme to compulsorily eliminate the socially unproductive and voluntary euthanasia, in which autonomy and compassion are the critical values, nor how the latter could or would gradually grow into the former.

 

In his final comments upon the Nazi analogy and Contemporary Debates, Michael Burleigh wrote:

 

Except in a few cases involving the parents of handicapped infants, even indirect consent was not in evidence, although such policies banked on widespread indifference or silent collusion among the population at large. Whatever their rhetoric, the Nazi doctors themselves were not motivated by compassion for suffering individuals, since their modus operandi involved making decisions on the basis of forms rather than people, while those who killed were in no way familiar with their victims[5]

 

We may thus disregard the distraction of the Nazi analogy in considering the slippery slope.

 

Proponents of the ‘slippery slope’ argument proceed upon the basis that any exception to a primary rule will undermine the value embodied in it. The community is, so to speak, pivoted upon a moral slope and, should there be any exception, will be precipitated towards a collapsing moral value and, in this case, the acceptance of murder.

 

Plainly this cannot be true of all exceptions or the criminal law would be a catalogue of absolutes. It is true that pressures may be brought upon a moral value where there are temptations to break the primary rule and there is no clear moral ‘stopping place’. Thus the prohibition against the use of coerced evidence is absolute. The temptation upon interrogating officials to use coercion is considerable. It is easy to see that any relaxation in the primary rule so as to allow admission in the case of a ‘little torture’ would progressively diminish the moral objection to the forensic use of coerced evidence.

 

In the case of voluntary euthanasia there is a clear moral ‘stopping place’. The essence of voluntary euthanasia is that it is voluntary. That is an indispensable and definable condition (and mandated by the Northern Territory legislation). The medical profession shares the general abhorrence of the community towards murder. There is no reason to suppose it seeks to aid Goneril-like daughters in the disposition of ageing parents. As passionately stated by the seven doctors in their Open letter in The Age to the Victorian Premier: “we respect life. All our professional training defines that respect”. Rather, it is the continued absolute but ineffectively enforced prohibition in the present law which is more likely to undermine the respect for life than any metaphorical slippery slope.

 

In the past few years an organization, Exit International, has advanced a non-legislative approach by giving advice, through workshops and in other ways, to elderly people as to the kinds of pills and the means of obtaining them, they can use to suicide without pain at a time of their choosing.

 

Exit International states that:

 

 

 

The Peaceful Pill Handbook[7], a publication of Exit International,  is designed to enable the various options (such as nembutal from Mexico, Helium, the Exit Bags etc.) to be compared. “Even where VE laws work well, the very strict conditions of establishing eligibility is demanding and often humiliating and many people, for example those who are well, elderly and tired of life, will simply never qualify.”

 

It was predictable that, with the rejection of the principled legislation embodied in the Rights of the Terminally Ill Act and supported by a significant majority of the Australian community, there should be a determined attempt to circumvent the prohibition.

 

But what Exit is proposing is the availability of pills which would have, as their sole or primary purpose, the enabling of the elderly to suicide and the providing of publicly available advice and information to facilitate that. It would thus oppose making unlawful the distribution of pills for suicide or the advertising of availability of pills for that purpose.

 

There would be no scope for the control of those who may obtain and use the pill. It is suggested that it would be restricted to the elderly but it remains relatively undefined who the elderly are – the age of 70 (advanced by the original proponent); the ages of 65 or 60 advocated by Exit – or how any such age restriction would be enforced. Nor is there any coherent principle underlying the age qualification. It cannot depend upon maturity to make a choice as forty and fifty year olds would be equally mature for the purpose.

 

The more fundamental objection is that for the law to allow the promotion of suicide would inevitably constitute a statement by the community that life had no value beyond the value which each individual at any point of time chose to place upon it. That is only another way of saying that the value thereby placed by society on autonomy would in all circumstances supersede other values which the community holds.

 

Non-criminalization of attempted suicide in the current law only recognizes that prohibition is not an appropriate subject for legal enforcement: not that suicide constitutes a human right or social ‘good’ which society ought to encourage and facilitate.

 

It is for this reason that the law’s prohibition of the distribution of the pill for the purposes of suicide and of its advertisement for that purpose is justifiable. That this is so does not imply a moral judgement on those in our community who choose to commit suicide. It is rather that a community which values life cannot by its laws sanction the encouragement of suicide.

 

What is needed is legislation. Perron’s Rights of the Terminally Ill Act provides the model. The excellent Voluntary Euthanasia Bill 2007 (introduced in March), supported by the Voluntary Euthanasia Society of South Australia, adopts its principles and, if enacted, would be an example of what is needed.[8]  What is clear is that the issue is too important to go away.  

 

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Footnotes


[1] Sacred Congregation for the Doctrine of the Faith:; Declaration on Euthanasia, Rome 5 May 1980, St Pauls Publications, Sydney, 1980

[2] William G, The Sanctity of Life and the Criminal Law, Faber & Faber, London , 1958 pp 281-2 (Italics added)

[3] The Age, Melbourne, 25 March, 1995

[4] The Rights of the Terminally Ill Act 1995 was enacted by the Legislative Assembly of the Northern territory in May 1995 and came into force on the 1st July 1996. This summary comes from Chapter 2, page 5 of the Senate Legal and Constitutional Committee of the Commonwealth Euthanasia Laws Act 1996.

[5] Burleigh, M “Nazi analogy and Contemporary Debates” in Ethics and Extermination, Cambridge University Press, Cambridge, 1977 p 151

[6] Exit International Newsletter, Jan 2006

[7] Nitschke Dr P and Stewart Dr F, Exit International US, September 2006

[8] Voluntary Euthanasia Bill 2007, Retrieved 25th of August 2007 from http://www.legislation.sa.gov.au/