Euthanasia and the 1995 Rights of the Terminally Ill ActWhen we hear the phrase voluntary euthanasia people generally think of one of two things: the active termination of life at the patient’s or the Nazi extermination program of murder. Many people have beliefs about whether euthanasia is right or wrong, often without being able to define it clearly. Some people take an extreme view, while many fall somewhere between the two camps. The derivation means gentle and easy death coming from the Greek words, eu – thanatos. Euthanasia was formerly called “mercy killing,” euthanasia means intentionally making someone die, rather than allowing that person to die naturally. Put bluntly, euthanasia means killing in the name of compassion.
Euthanasia is often confused with physician-assisted suicide. Euthanasia is when one person does something that directly kills another. For example, a doctor gives a lethal injection to a patient. In assisted suicide, a non-suicidal person knowingly and intentionally provides the means or acts in some way to help a suicidal person kill himself or herself. For example, a doctor writes a prescription for poison, or someone hooks up a face mask and tubing to a canister of carbon monoxide and then instructs the suicidal person on how to push a lever so that she’ll be gassed to death. For all practical purposes, any distinction between euthanasia and assisted suicide has been abandoned today.
Euthanasia in Australia (pre-1995)In the last decade or so several Australian states and territories have taken action aimed at guaranteeing the right of adult patients of sound mind to direct that extraordinary measures to prolong life be stopped. South Australia passed the Natural Death Act in 1983, Victoria the Medical Treatment Act in 1988, the Northern Territory the Natural Death Act in 1988 and the Australian Capital Territory passed the Medical Treatment Act in 1994. NSW issued “interim guidelines” in 1993.
The afore-mentioned legislation covers the following:
1) Refusal or withdrawal of current treatment.
2) Issuing a direction for refusal of certain treatment in the event that the patient becomes incompetent to make decisions.
3) Appointing an agent to make decisions on refusal of treatment in the event that the patient becomes incompetent to make decisions.
Though these legislative guidelines deal with the rights of a patient to refuse current medical treatment, it is often doubted whether they make a considerable difference to medical practice. Even without the legislation, the right of patients to withhold consent to treatment was generally accepted.
Suicide is legal in all Australian states and territories. If you want to kill yourself, you can do so. No one has any right to stop you, unless they can show adequate proof of insanity. Various popular books are available which even give details of reliable methods in which to end ones life. If a person says he/she wishes to die, and is not immobilised by disease, yet continues to remain alive, he/she is clearly not serious about wishing to die, but has expressed a false wish. However, some people who wish to commit suicide are incapacitated to such an extent that they would be unable to commit suicide without assistance. Killing a person in these circumstances can be described as “voluntary euthanasia”.
Both mental and physical incapacity are relevant. Solutions, which have been proposed to address impediments preventing suicide, arising from various forms of incapacity, are listed below:
1) A person is mentally competent but physically incapacitated. Euthanasia laws would provide for the person to issue a formal request to be killed, and make it legal for some other person to do the killing.
2) Person is mentally incompetent to make decisions:
Euthanasia laws would provide for a person who is mentally competent to issue a formal request stipulating that if he/she becomes incompetent and terminally ill, he/she is to have their life terminated.
Or, alternatively, provide for a person who is mentally competent to sign legally binding power of attorney giving some nominated third party the authority to make decisions on the person’s behalf if the person becomes incompetent. This would include the authority to make a formal request that the person be killed, if in the agent’s opinion the circumstances render killing appropriate.
Proposals for voluntary euthanasia always contain the following elements:
1) A mechanism for ensuring that there is some good reason underlying a person’s wish to be killed.
2) A mechanism for ensuring that the person really does wish to be killed.
3) A mechanism for carrying out the killing.
4) Protection from criminal prosecution for the third party involved.
Three Australian states and territories have seriously considered euthanasia, in each case as a result of a private member’s Bill. Bills were introduced by Mr Moore in the ACT, Mr Perron in the NT, and Mr Quirke in SA. The legislative proposals all contained the following elements:
1) Means for a person to make a request that he/she be killed.
2) Matters relating to knowledge the patient needs (i.e. information about health status and likelihood of recovery, as well as information on how to kill oneself).
3) Means for a doctor to officially state matters relating to the patient’s health status (i.e. that the patient is rational or of sound mind at the time of making the request for euthanasia, and that at the time the request is to be carried out the patient is suffering from an incurable disease causing great distress).
4) Details of the circumstances in which it shall be legal to comply with the person’s request, including how the killing shall be carried out and by whom.
The 1995/96 NT Legislation and Consequent Repeal
In March of 1995, the Northern Territory became the first place to legalize voluntary euthanasia. Although Australia does not hold the same notoriety as the Netherlands, the history of the bill has been very controversial. The Northern Territory Rights of the Terminally Ill was passed after a 14-hour debate. The Commonwealth parliament however, was against this bill and formed a committee to investigate and subsequently advise the parliament on whether or not to repeal the Rights of the Terminally Ill Act.
The Euthanasia Laws Bill (1996) removed the power of the Australian Capital Territory, Norfolk Island and the Northern Territory which have laws that permit euthanasia. In particular, the Bill superseded the Northern Territory’s Rights of the Terminally Ill Act (1995), which under certain conditions permits physician-assisted suicide and active voluntary euthanasia.
Initially there was the question of whether the Commonwealth parliament had the constitutional power to override the NTs Act. However, under section 122 of the Constitution (which gives the Commonwealth vast power to legislate in respect to the Territories) the Commonwealth was found to have the power to enact the Euthanasia Laws Bill. Once the threshold question of Constitutional capacity had been affirmed, the Senate then needed to address the question of whether the power ought to be exercised in these circumstances (regarding euthanasia act).
It was acknowledged that the Commonwealth Parliament should only withdraw legislative powers it has conferred on the Territories in exceptional circumstances. However this particularly controversial legislation was considered and thus decided upon that in that instance it was proper for the Commonwealth to intervene.
Several issues were raised in regards to the euthanasia act, concerning all member of both the NT and the rest of Australia. Both the pros and cons had to be considered within these issues. The issues were:
1) The “Territory rights” issue.
2) The claim that the Bill will lead to legal uncertainty.
3) The claim that the Northern Territory’s Rights of the Terminally Ill Act would have unacceptable impacts on the Aboriginal community.
4) The more general moral, philosophical, ethical and social arguments about euthanasia.
5) Individuals rights and choice.
6) The dignity of death.
1) The “Territory rights” issueThe Commonwealth parliament considered the Rights of the Terminally Ill Act to represent a basic shift in Australia’s ethos and social fabric. It had additional national significance as all Australians, indeed all people, could have used the Act. It therefore became not just a matter for the people of the Northern Territory, but a matter concerning all people of Australia.
The Constitutional framework of Australia divides legislative responsibility between the States and the Commonwealth. The Territories derive their legislative capacity from the Commonwealth, whereas the States do not. States therefore, are different to Territories. Territorians are consequently subjected to a different legislative process than are the residents of the various States. The Territories in question have been provided limited forms of self-government, thus the Commonwealth had the right to intervene in exceptional circumstances. It is difficult to envisage a more exceptional circumstance than euthanasia as it is an issue that deals with the life and death of Australian citizens, indeed potentially all the people in the world.
2) Legal Uncertainty In creating the Bill, which would repeal the NTs legislation, the legal consequences of wording had to be considered. Initially the bill (1996) did not define intentional killing and there was no generally accepted legal meaning.
A meaning was proposed by Mr Tom Hughes QC and Mr Joseph Santamaria QC, maintained that “intentional killing” has a clear and narrow meaning. On this view, the Bill would not interfere with generally accepted medical practices. More importantly, the Bill would not lead to legal uncertainties. Thus this became the base definition for the Euthanasia Laws Bill.
3) Aboriginal IssuesEvidence showed that Aboriginal communities were opposed to euthanasia. In fact there was overwhelming Aboriginal opposition to the Rights of the Terminally Ill Act. During the inquiry, prior to the passing of the Euthanasia Laws Bill, a major concern emerged about the Northern Territory legislation’s impact on the willingness of Aborigines to access medical services, given their attitudes to euthanasia and western medicine.
Mr Mackinolty, who worked in close association with the Aboriginal people as an educator advocating euthanasia, claimed that even though he personally supported his own right to euthanasia as a non-Aboriginal, his experience in conducting the education campaign had brought him to the view that the Northern Territory’s Rights of the Terminally Ill Act should be repealed because of its potential to deter Aborigines from seeking prompt medical attention. Mr Mackinolty expressed the view that the very existence of the Northern Territory legislation is a significant threat to Aboriginal health. Other Aboriginal groups corroborated this statement.
4) General moral, philosophical, ethical and social issuesProponents of voluntary euthanasia created argument based on individual rights, autonomy and choice. Those in favour of voluntary euthanasia maintained that the general public overwhelmingly support its legislation and that such a move would merely bring under stringent control and regulation what in reality is already happening in practice.
Opponents of voluntary euthanasia based their arguments on the sanctity of life, religious beliefs, the “slippery slope” to involuntary euthanasia and the erosion of medical ethics.
As soon as it is allowed that another person to be involved in the death of a fellow human the conclusion must be drawn that the life is not worth living. The concept of a life not worth living and justification of the involvement of a third party in taking that life challenges the very core of our notions of civilisation. As soon as such a concept takes hold within the psyche of our nation we will demean the value we place on human life.
5) Individual Rights and ChoiceThe individual rights and autonomy argument is at first glance persuasive. However even if one supports the principle of euthanasia the question needs to be asked: “Can we sufficiently control the circumstances in which we would allow euthanasia?”
Individuals already have the unfettered right to abstain from medical treatment. Suicide is not a crime, although we as a community spend millions of dollars each year trying to counsel and dissuade the suicidal. The Rights of the Terminally Ill Act does not so much change the law for the patient as it changes the law for the third party (the doctor). What should be illegal for the doctor became legal under the Rights of the Terminally Ill Act. This had the potential to fundamentally alter the doctor/patient relationship. Ultimately, a new right is given to doctors to terminate the lives of those who are suicidal and terminally ill. To describe this as providing a “right to die” is not logical.
6) The Dignity of DeathThis controversial description in support of euthanasia is in fact insensitive and derogatory. The dignity or otherwise of a death is not to be determined by the physical circumstances or degree of pain in which the patient finds themselves. With very few exceptions, pro-euthanasia groups dealt with the term “dignity” as a particular physical circumstance and described it as living or dying in such circumstances as involving a loss of dignity. These circumstances more often than not included loss of continence and mobility.
This approach, in referring to various physical circumstances, consistently dealt with circumstances where the person had taken on certain disabilities and described such circumstances as involving a loss of dignity. A disturbing equation is thus drawn between having “dignity” and being “without disability”. The term has been used as though there is a loss of dignity if somebody who was previously without disability takes on a disability in the course of a terminal illness. Whilst it was those concerned about the impact on people with disabilities who have highlighted this issue it needs to be noted that the impact is even broader. Any notion that those who choose the path of natural death or those who choose to live with disabilities are in some way taking the less dignified path should be detestable to any caring society.
Unfortunately, this attitude that dying with dignity demands that life ends before such circumstances, carries a message, which only serves to demean those who live in such circumstances.
7) Safe-guardingMost supporters of euthanasia do not see it as an absolute right. As such it is by definition only available to those individuals who have been deemed to be in such circumstances as to be considered better off dead. Whilst it is understandable that a patient may come to such a conclusion, a third party would also need to arrive at such a conclusion and then be prepared to act upon that view, by administering or providing a substance with the intention of ending the patient’s life.
The potential for “guilt feelings” for being a burden or too costly to those of the community who are in difficult circumstances, may become such that they perceive a subtle duty on them to exercise the euthanasia option. The choice may well become a perceived duty. This is especially so when considered in the context of comments by those such as former Governor General, Hon Bill Hayden’s comments that there is a point when the succeeding generations deserve to be disencumbered -to coin a clumsy word – of some unproductive burdens.
ConclusionIn recent years euthanasia has become a very contentious topic. The Greek means easy death, yet the controversy surrounding it is just the opposite. Whether the issue is refusing to prolong life mechanically, assisting suicide or active euthanasia, we eventually have to confront societies fears towards death itself. Above all culture cultivates fear against ageing, death, and dying, and it is not easy for people to except that it is an inevitable part of life. However, the issues that surround euthanasia are not only about death and dying but are also about rights, liberty, privacy and control over ones body. So the question remains: who has the right?