Advertisement

Four issues to consider when legislating for medically assisted dying

OPINION

Australian jurisdictions are currently considering laws and policies relating to euthanasia, physician-assisted dying and medically assisted suicide.

Australia, like the United States, Canada and the United Kingdom, is a democratic society under the rule of law, a society less dependent on religious roots than it was, and a society which prizes individual autonomy for all its citizens, including those who are living longer than their predecessors.

The law can and should provide bright-line solutions, or at least firm parameters, within which the dying, their loved ones and their care providers can negotiate dying and death.

In the past, doctors and nurses were obliged to do no harm and not to do anything which was primarily intended to cause death. Once those obligations are varied, there is a range of issues requiring consideration by parliaments and courts. I will mention just four, and conclude with an observation on the often parodied ‘slippery slope’.

First there is a need to strike the appropriate balance between autonomy for the invulnerable and protection for the vulnerable. We are now at the frontier determining whether the administration of a fatal injection is the same as switching off a ventilator, and whether state-assisted and state-authorised suicide should be restricted only to some groups or made available to all self-determining citizens whether or not they are suffering a painful terminal illness.

In striking the necessary balance between individual autonomy and the common good, Lord Sumption put it well in the United Kingdom Supreme Court: “There is no complete solution to the problem of protecting vulnerable people against an over-ready resort to suicide… The real question about all of these possibilities is how much risk to the vulnerable are we prepared to accept in this area in order to facilitate suicide for the invulnerable… There is an important element of social policy and moral value judgment involved. The relative importance of the right to commit suicide and the right of the vulnerable to be protected from overt or covert pressure to kill themselves is inevitably sensitive to a state’s most fundamental collective moral and social values.” (R (on the application of Nicklinson and another) v Ministry of Justice, [2014] UKSC 38, [229].)

Second, there is a need to draw a clear dividing line between the provision of ‘medical’ assistance to those who are dying and the denial of social endorsement and encouragement to those who are diminished in their physical or mental circumstances and would like assistance with suicide which is more failsafe, less painful, and less traumatic for loved ones, even though they are not in imminent danger of death.

The state has an interest in minimising the incidence of suicide. Does that state interest extend to denying the right to medical assistance with suicide to the young rugby player rendered quadriplegic who does not want to live any more, or the young person diagnosed in the early stages of what will ultimately be a life-shortening illness?

Third, there is a need to determine whether the state should authorise medically assisted dying only for those who can help themselves. It’s one thing to permit doctors to help patients who can help themselves. The doctor prepares the potion, but the patient must administer it. Inevitably, in years to come, there will be debate over whether these laws ‘discriminate’ against patients who cannot help themselves.

Euthanasia advocates will argue the doctor should be able to administer a lethal injection if requested by the patient, whether or not the patient is able to commit suicide with assistance. Pointing to the experience in Belgium and the Netherlands, they will also debate whether these laws ‘discriminate’ against persons who, though not dying, are still enduring unbearable and untreatable suffering. They will invoke the language of autonomy, non-discrimination and human rights, arguing that any mentally competent person has the right to end their life and the right to obtain assistance from a doctor ending their life in as painless and dignified a way as possible.

Fourth, especially with the increase in dementia and Alzheimer’s disease in our society, there is a need to stipulate the conditions for free and informed consent. Those who support law reform in this area usually proceed by quoting cases of mentally competent patients who are not depressed but who are suffering unbearable pain, facing terminal illness.

The easiest and most compelling case to consider is the patient whose relatives fully support the proposed euthanasia. There is no suggestion that the relatives are exerting undue influence on the patient for their own self-interested reasons.

There are good palliative care facilities available, so it is not as if the patient is under duress, feeling that she has no option but death. The patient has a good and trusting relationship with her medical team. Under existing law and policy, there is every prospect that such a patient will be euthanised or at least given increased doses of pain relief which will hasten death.

The law can and should provide brightline solutions, or at least firm parameters within which the dying, their loved ones and their care providers can negotiate dying and death.

If there is to be any move towards the legalisation of euthanasia, there will be considerable difficulty in setting criteria and safeguards. It is all very well restricting its availability to the competent, but what of the claim of the person who says, “I am now competent but I am not yet ready to die. Soon I will be incompetent and I want to have made a binding decision consenting to euthanasia once I have lost my competence. I do not want to go earlier than I need. But I do want to go once I am no longer competent.”

Inevitably there will be some individuals who, in the transition to incompetence or dementia, will have changed their flickering minds and decided to cling to life for all that it is worth. At their moment of greatest vulnerability, the law will be invoked with a presumption that their earlier option for death is now binding and unreviewable.

The late American physician-ethicist Ed Pellegrino once pointed out:1
“The slippery slope is not a myth. Historically it has been a reality in world affairs. Once a moral precept is breached, a psychological and logical process is set in motion which follows what I would call the law of infinite regress of moral exceptions. One exception leads logically and psychologically to another. In small increments a moral norm eventually obliterates itself. The process always begins with some putative good reason, like compassion, freedom of choice, or liberty. By small increments it overwhelms its own justifications.”

It is questionable whether we have enough in our philosophical toolbox when dealing with difficult new social questions if the only instruments available are autonomy, human rights and non-discrimination. All those involved at the table of public negotiation (regardless of their comprehensive world views, whether religious or not) are entitled to express scepticism about the adequate testing of any new proposal and to seek answers to the likely next steps should the proposal be implemented.

They are also entitled to agitate the question of whether the proposal is ethically sound according to the diverse ethical views held in the community. Our parliaments need to set some bright-line solutions or firm parameters to guide us all at those most perplexing times when we are at the death bed, whether it be ours or our loved one’s.

Fr Frank Brennan SJ AO is an Australian Jesuit priest, human rights lawyer and academic.

This article first appeared on pages 24-25 of the October 2019 edition of Proctor.

Footnote
1 Edward Pellegrino, ‘Physician-Assisted Suicide and Euthanasia: Rebuttals – The Moral Prohibition Remains’, Journal of Medicine and Philosophy, 26/1 (2001): 93–100 at 98.

Share this article
Share on facebook
Share on twitter
Share on linkedin

Leave a Reply

Your email address will not be published. Required fields are marked *

Search by keyword