Eminent Tasmanians share their professional opinions on the harms and risks to individuals and society associated with any removal of the legal prohibition on euthanasia and assisted suicide in Tasmania

There are various definitions of euthanasia and assisted suicide. These particular definitions are taken from the Parliament of Canada[1] as they clearly set out the relevant concepts:

Euthanasia is the deliberate act undertaken by one person with the intention of ending the life of another person in order to relieve that person’s suffering.

Assisted suicide is the act of intentionally killing oneself with the assistance of another who provides the knowledge, means or both.

Voluntary euthanasia occurs when the act is done in accordance with the wishes of a competent individual or a valid advance directive.

Non-voluntary euthanasia occurs when the act is done without knowledge of the wishes of a competent individual or with respect to an incompetent individual.

Involuntary euthanasia, which is indistinguishable from murder or manslaughter, occurs when the act is done against the wishes of a competent individual or a valid advance directive.

A competent individual is capable of understanding the nature and consequences of the decision to be made and capable of communicating this decision. An incompetent individual is not capable of understanding the nature and consequences of the decision to be made, and/or is not capable of communicating the decision.

NOTE: Euthanasia is not the withdrawal of futile or burdensome treatment. Euthanasia is not the administration of pain relief where the primary intention is to relieve pain but which might have the secondary effect of hastening death. See further questions below on these topics.

Notes:

[1] http://www.parl.gc.ca/Content/LOP/ResearchPublications/919-e.htm#issue

Euthanasia and assisted suicide are illegal in Tasmania.

Euthanasia and assisted suicide are illegal in all states and territories of Australia; and in almost all other countries in the world.

Euthanasia is legal only in The Netherlands, Belgium and Luxembourg. Physician assisted suicide is legal in The Netherlands and the US States of Oregon and Washington[3].    

It is important to note that in the USA, bills attempting to legalise assisted suicide and euthanasia have been consistently rejected by the legislature. There have been well over 100 attempts[4]. The legalisation of physician assisted suicide in Oregon and Washington came about because of ballot initiatives[5].

Bills designed to allow euthanasia or assisted suicide continue to be defeated around the world for example: Scotland (December 2010), the US state of New Hampshire (January 2010), Canada, (April 2010), Western Australia (September 2010), South Australia (November 2010), Israel (January 2011), France (January 2011) and Hawaii (February 2011).

In addition, the European Court of Human Rights has rejected the notion of a so-called “right” to assisted suicide pursuant to the Convention for the Protection of Human Rights and Fundamental Freedoms. On 20 January 2011 the European Court of Human Rights (ECHR) ruled that the state has no obligation to provide citizens with the means to commit suicide[6]. The court found Article 2 of the European Convention on Human Rights, guaranteeing the right to life, particularly persuasive.

The court concluded that states have no direct responsibility to help their citizens commit suicide by providing lethal drugs and also ruled that respect for the right to life compels the state to prevent a person from committing suicide if such a decision is not taken freely and with full knowledge.

Notes:

[2] Criminal Code Act 1924 (Tas) ss 153-163

[3] For an explanation of the law in Switzerland read: http://www.patientsrightscouncil.org/site/switzerland/
For an explanation of the situation in Montana read: http://www.choiceillusion.org/p/united-states.html

[4] http://epcdocuments.files.wordpress.com/2011/10/attempts_to_legalize_001.pdf

[5] http://www.choiceillusion.org/p/united-states.html

[6] See the case of Pretty v The United Kingdom  29 April 2002 found at: http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&source=

externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

The current law in Tasmania provides that:[7]

1. Patients do not receive unwanted, burdensome and futile treatments.
2. A competent adult may refuse medical treatment even if that refusal will result in his or her death;
3. A patient’s wish to refuse such treatments are adhered to even after the patient is incapable of making and communicating such decisions. 
4. Where patients are incapable by reason of a disability of making decisions about medical treatment, his or her ‘person responsible’[8] can refuse or consent to medical treatment even if the consent to or refusal of the proposed treatment involves a ‘substantial risk or death.’[9] 

In these circumstances, discontinuing medical treatment does not constitute euthanasia, it is simply allowing natural death to occur.

Notes:

[7] Summarised from the Tasmanian Law Society’s written submission to the 2009 Inquiry into the Dying with Dignity Bill (Tas)

[8] As defined in section 4 of the Guardianship and Administration Act 1995  (Tas)

[9] Regulation 7 of the Guardianship and Administration Regulations 2007 (Tas)

The 2009 Tasmanian Parliamentary Report into the (defeated) “Dying with Dignity” Bill noted the numbers of people dying in “intolerable pain” are very low, perhaps 2-3 cases per year in Tasmania.[10] The Committee found:

4. The Committee heard evidence from medical professionals and palliative care experts that there is a small number of terminally ill patients for whom even the best of palliative care fails to provide relief beyond resorting to ‘terminal sedation’ or the administration of medication, provided with the genuine intent of relieving suffering but which can also hasten death.[11]

Whilst it is important to recognise the difficulties experienced by the small number of  individuals suffering such pain, what is clear from this finding is that in those small number of cases, terminal sedation or the administration of pain relief is a legally acceptable response. There is no need to introduce intentional killing as a treatment option.

It is notable that in Oregon, where physician-assisted suicide is legal, official government reports demonstrate that people are not primarily accessing assisted suicide for reasons of pain relief. The 2011 report [12] (relating to the cumulative years up to the end of 2011) documents “End of life concerns” as :  Losing autonomy 90.9%; Less able to engage in activities making life enjoyable 88.3%; Loss of dignity 82.7%; Losing control of bodily functions 53.7%; Burden on family/friends/caregivers 36.1%; Inadequate pain control or concern about it 22.6%; and Financial implications of treatment 2.5%.

Notes:

[10] See page 59 of the transcript of hearings of the Inquiry into the Dying with Dignity Bill on 24/8/09 at: http://www.parliament.tas.gov.au/ctee/Transcripts/24%20August%2009%20-%20Hobart.pdf

[11] See page 6 of the Report on the Dying with Dignity Bill 2009 found at: http://www.parliament.tas.gov.au/ctee/REPORTS/Dying%20with%20Dignity%20Final%20Report.pdf

[12] See  Table 1 of Oregon’s Death with Dignity Act 2011 Report  at: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/

Documents/year14-tbl-1.pdf

There is no evidence that doctors in Tasmania ever administer pain relief with the specific intention to end a person’s life.

Some palliative care specialists suggest that on rare occasions the provision of certain analgesics to a terminally ill patient may have the secondary effect of shortening their life. Some palliative care specialists contend that proper administration of analgesia will never shorten life. In all cases the intention of the doctor is not to shorten life, but to relieve pain. It is accepted that this is good palliation, and does not constitute euthanasia.

For more information regarding this practice in Tasmania, refer to the video interviews with Dr Paul Dunne and Prof. Ray Lowenthal.

In 2009, in a statement to the Parliamentary Inquiry into the Dying with Dignity Bill, the AMA Tasmania Branch strongly rejected the notion that euthanasia is occurring in Tasmania.

It is important to note that euthanasia and physician-assisted suicide is not a component of palliative care. Palliative Care Australia, the national peak body for Palliative Care in Australia states that ‘The practice of palliative and end of life care does not include deliberate ending of life through voluntary euthanasia or physician-assisted suicide, even if the patient requests this'[13]

Notes:

[13]See full statement of Palliative Care Australia regarding Voluntary Euthanasia and Physician assisted suicide at: http://www.palliativecare.org.au/Portals/46/PCA%20Voluntary%20Euthanasia%20and%20Physician

%20Assisted%20Suicide%20Position%20Statement.pdf

There are two key reasons why opinion polls do not form the basis of law reform in euthanasia.

(i) Often the questions asked in opinion polls are ambiguous or not situated in the correct context

‘The high support for euthanasia in opinion polls occurs against a low level of understanding of euthanasia, physician-assisted suicide, withdrawal or withholding of treatment … and of palliative care’[14]. The euthanasia debate is complex; some scenarios put forward by proponents of euthanasia describe current lawful palliative care practice which simply does not equate to euthanasia or physician-assisted suicide. Added to this, is a general fear maintained by the public of dying and suffering and a lack of knowledge of the benefits of comprehensive palliative care.

Without an honest description of current palliative care practices and the actual practices proposed by so-called “Dying with Dignity” legislation, the public cannot be expected to fully comprehend the implications of this act of killing for the wider community, our criminal law and our medical ethics.

A House of Lords committee commissioned a review of UK opinion polls on this subject in 2005 and concluded:

"The research carried out up to this point into public and health sector attitudes to the legalisation of euthanasia is limited in value and cannot be accepted at face value as an authentic account of opinion within the United Kingdom. The subject matter is extremely complex and sensitive and therefore very challenging for anyone attempting to gain a meaningful understanding of opinion.

"This is particularly the case with regard to the attitudes of the general public, whose real views on euthanasia are clearly obscured by a lack of information on the subject and by the lack of opportunity to reflect in an informed way upon the implications of any change in the law for themselves and for society. The levels of agreement/disagreement with the concept of euthanasia which the numerous polls record are effectively built on what might be termed a  knee-jerk" reaction to the simple options provided by these polls and do not form a very useful guide to public opinion as support for legislative change".[15] 

 

(ii)Opinion polls show that the closer a person is involved in palliative care and with the dying, the less likely that person is to be in favour of euthanasia

Studies consistently show a marked difference between the opinion of the wider public and the opinions of doctors in relation to euthanasia and physician-assisted suicide.[16] The fact that the majority of physicians, particularly those involved in palliative care, are opposed to euthanasia and physician-assisted suicide is significant. Firstly, opposition to euthanasia is demonstrated by those we expect to have the broadest knowledge and experience with the dying.[17]

Internationally it is extremely rare for a palliative care specialist to support euthanasia. Secondly, it is precisely those practitioners whom the law anticipates will involve themselves in euthanasia and physician-assisted suicide who strongly oppose it.

Already there are lawful practices that allow doctors to assist their patients to be as comfortable as possible whilst they die a natural death. This does not equate to the active killing of a patient. Doctors intuitively reject proposals that are contrary to their life-sustaining practices.  In addition, polls show that those closest to death, the elderly, are also most likely to oppose euthanasia.[18]

It is significant that the vast majority of bills designed to legalise euthanasia have been rejected by legislators around the world.  Opinion polls are not the basis for law reform in euthanasia - clearly when legislators carefully consider the implications of allowing a dying person to be legally killed, or assisted to die in certain circumstances, uninformed public opinion cannot prevail over the legislator’s duty to protect citizens.

Notes:

[14] Leipoldt, E.A. (2010). Euthanasia in Australia: Raising a disability voice. Australian Policy Online. http://apo.org.au/commentary/euthanasia-australia-raising-disability-voice. p.2

[15] para 232 of  the House of Lords 2005 report:  Assisted Dying for the Terminally Ill Bill - First Report. Found at http://www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/8609.htm#a45

[16] See for example: C. Seale, “Legalisation of Euthanasia or physician-assisted suicide: survey of doctors’ attitudes”, Palliative Medicine, 23.3 (2009). Full text available at: http://www.eutanasia.ws/hemeroteca/t300.pdf

[17] See for example the excellent written submissions to the 2009 Joint Standing Committee Inquiry into the Dying with Dignity Bill from Tasmanian Palliative Care Specialists such as Dr Paul Dunne, Prof. Ray Lowenthal, Dr Robyn Brogan and Dr Norelle Lickess (in conjunction with Professor Jeff Malpas).

[18] See for example:  http://www.theaustralian.com.au/news/opinion/right-to-die-polls-no-basis-for-radical-change/story-e6frg6zo-1225932745264