Euthanasia in Tasmania - Assisted suicide in Tasmania - Dying with Dignity in Tasmania

Legal viewpoints
Viewpoints from eminent Tasmanians...
Legal viewpoints

Tasmanian legal practitioners and academics explore the issue of patient rights and the threat to the community in removing long standing legal protections

Featured video
Q and A
with Dr Jeremy Prichard

Dr Jeremy Prichard, a Lecturer in Criminology and Criminal Law, discusses the hidden nature of elder abuse; explores the issue of pressure that might be placed on the elderly to access euthanasia or assisted-suicide; and considers the potential for future creep in the scope of legislation

Written article
Jeremy Prichard

Euthanasia and issue of elder abuse

Dr Jeremy Prichard

Lecturer in Criminology and Criminal Law, UTAS

In a submission to the 2009 Inquiry, Dr Prichard discusses the hidden nature of elder abuse, highlighting the plight of many elderly persons and expresses his concern that safeguards will not adequately protect the elderly from pressure. Dr Prichard was also recently published in an article in the Journal of Law and Medicine.

 

 

 

 

Abstract from article in the Journal of Law and Medicine:

 

Euthanasia: A reply to Bartels and Otlowski

  • This article counters arguments made by Bartels and Otlowski in 2010 regarding euthanasia. It suggests that the authors over-emphasised the importance of individual autonomy in its bearing on the euthanasia debate. Drawing on literature concerning elder abuse as well as the "mercy-killing" cases reviewed by Bartels and Otlowski, the article contends that legalising euthanasia may increase the risk that some patients are pressured, inadvertently or deliberately, to request access. Safeguards to detect and deter pressure may be of limited effectiveness against such pressure. Regarding slippery slope arguments, the article discusses the potential for an Australian euthanasia system to eventually be extended in scope to encompass mental suffering. The article encourages consideration of long-term potentialities, including changes in macro-economic conditions.

 

Key Reasons why Euthanasia should never be legalised (from 2009 submission):

 

ELDER ABUSE

  • Some of those eligible for euthanasia may be vulnerable to overt and oblique pressure to request it. There is a growing recognition of the need to research elder abuse because of: the vulnerable characteristics of elderly people; and the risk of dependency on family support, combined with social isolation. This is significant  because of Tasmania’s aging population.
  • It may be very difficult to detect the various sorts of social pressures that might be experienced by a patient to volunteer for euthanasia.

SCOPE CREEP

  • Data from the Netherlands and Belgium indicates that legalising euthanasia will over time lead to a broadening of scenarios where euthanasia is legal or widely practiced.
  • Arguably, over time the law will be amended to encompass (a) patients suffering intolerably but with no terminal illness and (b) individuals with ongoing mental suffering.
  • As the boundaries for acceptable reasons for euthanasia expand, the system may be accessed by an increasing overrepresentation of marginalized Tasmanians whose request to die was as much triggered by social isolation as by chronic physical or mental illness.
  • A better course for a caring society is to provide consistent messages to the marginalized about their inherent value to the community and their irrefutable equality with others.

POOL OF DOCTORS WILL BE SMALL

  • Certain medical practitioners and psychiatrists may develop reputations within the community as being more likely to grant approval for euthanasia. The pool of medical practitioners actively involved in euthanasia may well be small.
  • Once a patient is deceased it will be difficult to retrospectively assess the quality of the decisions made, for example concerning the patient’s mental status

OPINION POLLS

  • The number of Tasmanians in favour of voluntary euthanasia taken from surveys may be inflated because of public misconception about the current law.
  • Public perceptions about the law and the criminal justice system are often inaccurate.
  • People may not be aware that: 
    • It is legal for adult patients to refuse treatment providing they meet mental competency tests, regardless of whether this will result in their death, or a shortening of their life; and
    • It is legal for patients to receive palliative care that will shorten their life
  • Even if the majority of Tasmanians were in favour of active euthanasia there are pressing reasons why this majority opinion should not be translated into law. Majority opinion in itself does not determine what is morally right.

 

 

 

 

 

Submission to the Joint Standing Committee

Dying with Dignity Bill 2009

 

Dr Jeremy Prichard
Lecturer, Law Faculty, University of Tasmania

29 July 2009

 

The author of this submission acknowledges that the intention behind the Dying with Dignity Bill 2009 is to respond compassionately to severely ill and suffering people. Nevertheless, this submission contends that the purpose of the Bill is not consistent with a just and caring society.

 

The relevance of the Tasmanian Voluntary Euthanasia survey conducted in 2008 and 2009
Mr McKim MP kindly provided a copy of the results of the survey conducted for his party by an independent consultancy, Enterprise Marketing & Research Services Pty Ltd. The author of this submission was unable to obtain a full copy of the methodology used for this research.


On what has been received, the research appears to have been robust in a number of respects. Its sample size was large and representative of key demographic variables, including age, gender et cetera. Those surveyed were asked:

Thinking about voluntary euthanasia where a doctor complies with the wishes of a dying patient to have his or her life ended; are you in favour of or against a change in the law that would allow doctors to comply with the wishes of a dying patient to end his or her life?

Over 80% of participants indicated that they were in favour of such a law.


However, this figure may have been inflated because of public misconception about the current law – in particular about the different legal statuses of passive and active euthanasia.


Unfortunately public perceptions about the law and the criminal justice system are notoriously inaccurate (Weatherburn, Matka & Lind, 1996). A sizeable portion of those people who responded positively to the question asked above may not have been aware that passive euthanasia is not proscribed. This means, among other things, that:

  • It is legal for adult patients to refuse treatment of any sort for any ailment providing they meet mental competency tests, regardless of whether this will result in their death, or a shortening of their life; and

  • It is in effect legal for patients to receive palliative care that will shorten their life. For example, the administration of morphine to alleviate pain, despite the fact that the medication will hasten death.

Arguably the survey should have asked the participants whether they were aware that passive euthanasia was not illegal and then, after defining active euthanasia, asked whether the participants thought the law should be extended to encompass it.


It is worth noting the difference in public attitude surveys between passive and active euthanasia. For example, in a Canadian study conducted by Peter Singer (et al., 1995), over 2000 people were asked about the end-of-life decisions for competent patients unlikely to recover from an illness. 85% were in favour of forgoing life-sustaining treatment. However, fewer were in favour of assisted suicide (58%) or euthanasia (consensual killing) (66%). Similar disparities have been recorded elsewhere (Ostheimer, 1976).


Even if the Joint Standing Committee were to conclude that the majority of Tasmanians were in favour of active euthanasia (perhaps even with a new survey), nevertheless there are pressing reasons why the committee should not conclude that this majority opinion should be translated into law. The committee should not regard majority opinion in itself as determining what is morally right (Dworkin, 1966).

 

Inconsistency with the perspectives of the High Court.
In Harriton v Stephens [2006] HCA 15 the High Court grappled with a complex “wrongful life” claim. The committee may be interested in the remarks of Justice Crennan in her judgment (para 259 & 263).

In the eyes of the common law of Australia all human beings are valuable in, and to, our community, irrespective of any disability or perceived imperfection. … While [the appellant’s] disabilities are described in the agreed statement of facts, her disabilities are only one dimension of her humanity. It involves no denial of the particular pain and suffering of those with disabilities to note that while alive, between birth and death, human beings share biological needs, social needs and intellectual needs and every human life, within its circumstances and limitations, is characterized by an enigmatic and ever-changing mixture of pain and pleasure related to such needs.

 

No person guilty of manslaughter or murder is entitled to defend the accusation on the basis that the victim would have been better off, in any event, if he or she had never been born. All human lives are valued equally by the law when imposing sentences on those convicted of wrongfully depriving another of life.

The issue of intellectual disability is tangential to the current Bill, partly because of its “sound mind” test (s 8(1)(c)(iv)(H)). However, the above extract illustrates that in the common law all Australians are equally valued, irrespective of the degree of pain they are suffering, or “perceived imperfections” of their state.


To enact the Bill would be to introduce the concept that some classes of Australians are valued less than the majority – that is, because of their condition and desire to die, some Australians are actually better off dead. This different class will be supported by the State to suicide, or will, with their consent, be killed by a State authorized medical practitioner.


Additionally, the concept that the State can lawfully be involved in killing citizens may have unforeseen ramifications. For example, it is suggested that the legalization of euthanasia might strengthen future arguments for the reintroduction of State authorized killing of criminals convicted of capital crimes.

 

The inconsistency of euthanasia with the Tasmanian Criminal Code may encourage breaches of important provisions
A system of euthanasia in Tasmania would be inconsistent with the following sections of the Criminal Code:

  • s 53(a) No person has the right to consent to the infliction of death upon himself;

  • s 154(d) A person is deemed to have killed another in the following cases where his act or omission is not the immediate, or not the sole, cause of death where by any act or omission he hastens the death of another who is suffering under any disease or injury which would itself have caused death;

  • ss 158 and 159 murder and manslaughter; and

  • s 163 Any person who instigates or aids another to kill himself is guilty of a crime.

These provisions project a uniform social message regarding killing oneself or others. Instituting euthanasia would undermine the consistency of the message and potentially encourage breaches of the above provisions. For instance, some individuals may perceive euthanasia as a general acceptance of the notion of “mercy killings”, or that certain people are better off dead. This may encourage some to euthanize, for example, their terminally ill spouses without using the systems intended by the Bill. But it might equally influence others to suicide or – under mental health stress – to kill their children.

 

The enacting of the Bill will over time lead to a broadening of scenarios where euthanasia is legal or widely practiced
The Bill proposes that, among other things, euthanasia will be available for patients who have requested assistance to die and are:

  • mentally competent ((s 8(1)(c)(iv));

  • 18 years or older (s 8(1)(a)); and

  • “likely to die as a result of [an] illness” (s 8(1)(c)(iii)(B)), the suffering from which cannot be alleviated by palliative care acceptable to them (s 10(1)).

 “Intolerable suffering” is defined in the Bill as “a profound level of pain and/or distress, that the sufferer finds intolerable” (s 3).


However, there are good reasons to anticipate that these boundaries will extend over time, either through unregulated medical practice or through amendments to the enacted Bill. For example, the experience of the Netherlands and Belgium is that euthanasia has been extended to children, providing they meet mental competency tests (Vrakking et al., 2005). Belgium is also considering permitting non-consensual euthanasia for brain damaged children and adults (Cohen-Almagor, 2009). Similarly, doctors have described assisting euthanasia for dementia suffers, gaining their consent during periods of lucid cognition (Cohen-Almagor, 2009).


It is argued that if the Bill is enacted in Tasmania, over time it will be amended to encompass (a) patients suffering intolerably but with no terminal illness and (b) individuals with ongoing mental suffering. Once a system of euthanasia was established, it would be illogical or even unjust to deny these categories of people access to the system. Surely a patient experiencing intolerable suffering, but who does not have a terminal illness should have access to legal euthanasia when – unlike a patient with a terminal illness – their condition may continue for many years or decades?


And regarding mental suffering, who would deny the excruciating experiences of people with chronic depression or schizophrenia? In fact, aspects of the Bill already acknowledge psychological suffering; as noted the definition of “intolerable suffering” includes “profound pain and/or distress, that the sufferer finds intolerable”.


Arguably, as the boundaries for acceptable reasons for euthanasia expanded, the system would be accessed by an increasing overrepresentation of marginalized Tasmanians – those whose request to die was as much triggered by social isolation as by chronic physical or mental illness. A better course for a caring society is to provide consistent messages to the marginalized about their inherent value to the community and their irrefutable equality with others. 

 

Interpretation of the Bill, if enacted, will vary considerably among medical practitioners and psychiatrists. Certain medical practitioners and psychiatrists will develop reputations within the community as being more likely to grant approval for euthanasia.


Some medical practitioners will refuse to have any involvement in the system for ethical reasons consistent with the Australian Medical Association’s current perspective on euthanasia.


The remaining medical practitioners will be required to make a number of judgments under the Bill, which will naturally involve subjective assessments.


It should be expected that medical practitioners will vary considerably in their interpretation of the legislation. Support for this argument can be drawn on prescription patterns across Australia. For example, there is substantial variation within and between jurisdictions as to the rates of: diagnosis of attention deficit/hyperactivity disorder (ADHD); and the prescription of medication to treat ADHD (Mackey & Kopras, 2001; Berbatis et al., 2002). The data clearly indicate widely varying perspectives of the disorder and of the appropriate use of pharmaceuticals.


It is argued that gradually the community will become aware that some medical practitioners have a broader interpretation of the legislation than others. The medical practitioners with the broader view, which encompasses a wider variety of conditions, will be targeted for approval by patients seeking euthanasia.


It is also argued that medical practitioners – and indeed psychiatrists – with a broad view of the legislation will develop informal professional links and relationships. This means that, for example, a medical practitioner with a broad view of the legislation will be more likely to contact similar minded medical practitioners and psychiatrists to provide the second opinion (et cetera) stipulated in s 8(1)(c). After these professionals have interacted successfully in one case, they may be inclined to do so again.


Such dynamics are completely understandable – inasmuch as the professionals might be motivated by compassion – and need not involve any misconduct. But it would arguably ensure that:

  • the pool of medical practitioners and psychiatrists actively involved in euthanasia would be small. There would definitely not be a statewide random involvement of medical practitioners and psychiatrists, as perhaps an initial reading of the Bill implies; and

  • the checks and balances that the Bill attempts to establish would be undermined.

This latter point is particularly worrying from an administrative law perspective. It means that transparency will be more difficult to safeguard. And transparency is paramount considering the life-and-death decisions at hand in a system of euthanasia.


Of course, once a patient is deceased it will be difficult to retrospectively assess the quality of the decisions made, for example concerning the patient’s mental status. The fact that Belgium’s very first case of legal euthanasia failed to follow protocols regarding time delays does not inspire confidence in this regard (Watson, 2002).

 

Those eligible for euthanasia are vulnerable to overt and oblique pressure to request it
The chronically ill and terminally ill often feel themselves to be a burden to others. Many, however, are not tired of life and do not want to die. But if assisted suicide and active voluntary euthanasia were readily available, they might feel obligated to opt for death. Relatives or other caregivers who feel burdened may consciously or unconsciously exert pressures (California Foundation for Independent Living Centers, Inc., 2000).


The issue of overt or oblique pressures should not be taken lightly. There is a growing recognition of the need to research elder abuse because of: the vulnerable characteristics of elderly people; and the risk of dependency on family support, combined with social isolation (Elder Abuse Prevention Unit (QLD), 2007; Parliament of Australia, 2007). Multiple factors appear to be correlated to abuse perpetrated by family members. However, case studies indicate that elder abuse is sometimes driven purely by malevolent intent, presenting as deliberate intent to exert control over someone or to control assets (Boldy et al., 2007).


Cases of elder abuse are almost certainly going to increase because of Tasmania’s aging population. Recent estimates indicate that 14.7% of Tasmanians are aged over 65 and 4% aged over 80 years. Projections to 2036 estimate that 29.3% of the Tasmanian population will be over 65, and 10.2% over 80.  By 2046, over 30% of the population of Tasmania will be over 65 (Australian Bureau of Statistics, 2007).


While the Bill logically lists penalties that apply to attempts to abuse legal euthanasia – for instance attempts to bribe medical practitioners (s 7(1)) – it may be very difficult to detect the various sorts of social pressures that might be employed on a patient to volunteer for euthanasia.

 

References
Australian Bureau of Statistics. (2007). 4102.0 Australian Social Trends, Data Cube. Canberra.
Berbatis, C., Sunderland V., & Bulsara, M. (2002). Licit psychostimulant consumption in Australia, 1984-2000: international and jurisdictional comparison. Medical journal of Australia, 177(10), 539-543.
Boldy, D., Webb, M., Hohner, B., Davey, M., & Kingsley, B. (2007). Elder abuse in Western Australia. Retrieved 15 July, 2008, from http://www.community.wa.gov.au/NR/rdonlyres/CE474222-FB8B-418C-8CD7-5632147AD741/0/DCDRPTElderabusereport2002.pdf
California Foundation for Independent Living Centers, Inc., (2000). Euthanasia: the disability perspective. Retrieved 28 July 2009, from www.cfilc.org/site/c.fnJFKLNnFmG/b.5192581/k.F93E/Euthanasia__The_Disability_Perspective.htm
Cohen-Almagor, R. Euthanasia policy and practice in Belgium: critical observations and suggestions for improvement. Issues in Law and Medicine, 24(3), 187-218.
Dworkin, R. (1966). Lord Devlin and the enforcement of morals. The Yale Law Journal, 75(6), 986-1005.
Elder Abuse Prevention Unit (QLD). (2007). QLD Focus Newsletter (No. 13) October. Retrieved 26 June, 2008
Mackey, P. & Kopras, A. (2001). Medication for ADHD: an analysis by Federal Electorate. Canberra, Australia: Parliamentary Library, Parliament of Australia.
Ostheimer, J. (1976). The polls: changing attitudes toward euthanasia . Current Opinion, 4(5), 124-128.
Parliament of Australia. (2007). Inquiry into Older People and The Law. Retrieved July 15, 2008, from http://www.aph.gov.au/house/committee/laca/olderpeople/report.htm
Singer, P., Choudhry. S., Armstrong, J., Meslin, E. & Lowy, F. (1995). Public opinion regarding end-of-life decisions : influence of prognosis, practice and process. Social science & medicine, 41(11), 1517-1521.
Vrakking, A. et al., (2005). Medical end-of-life decision made for neonates and infants in the Netherlands: 1995-2001. Lancet, 365, 1329-1331.
Watson, R. (2002). First Belgian to use new euthanasia law provokes storm of protest. British Medical Journal, 325(7369),854.

 

 

 

Biography
Author bios
Dr Jeremy Prichard

Jeremy Prichard lectures in Criminal Law and Criminology at the Law School, University of Tasmania.

 

His previous research positions were at the Australian Institute of Criminology and the Queensland Crime and Misconduct Commission.

 

In policy formation Jeremy worked at the Department of the Premier and Cabinet (Qld) and the Department of Communities (Qld).

Viewpoints

Viewpoints on euthanasia and assisted suicide from eminent Tasmanians