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An argument for euthanasia in Australia

The issue of euthanasia is deeply divisive in Australia; the question of whether legalisation would breach or enhance our human rights has raised serious moral, ethical, legal and religious debate. As it stands, euthanasia is illegal in Australia and participating in active voluntary euthanasia will make an individual liable for criminal charges. Justice King of the Supreme Court of Victoria stated that the “issue of euthanasia is a very vexed question in our community and one that will have to be resolved in the not too distant future as we face an aging population.”[1] Euthanasia and the right to life are not mutually exclusive human rights; with adequate statutory safeguards they can coexist. Legalising euthanasia would represent a major social development, the effects of which would reverberate significantly for health professionals, but more importantly with patients.

 

i. The Northern Territory attempt at legalisation of euthanasia

The political and legislative history of euthanasia in Australia has developed rapidly since 1996. Euthanasia is currently illegal in all states and territories of Australia, but this was not always the case. In 1995 the Northern Territory (NT) passed The Rights of the Terminally Ill Act 1995 (NT) (1996) 5 NTLR 170, giving Australia the title of the first legislative assembly in the Western world to legalise euthanasia. Within months, the legislative competence of the NT government to create the law was challenged in the Full Court of the NT in Wake and Gondarrra v The Northern Territory of Australia. In supporting the legislation, Chief Justice Martin and Justice Mildren found there was no legal principle that supported an inalienable right to life. Their judgment succinctly articulated the ethical considerations for a court when considering euthanasia legislation:

 

But the sanctity of life is only one of a cluster of ethical principles which we apply to decisions about how we should live. Another is respect for the individual human being and in particular for his right to choose how he should live his own life. We call this individual autonomy or the right of self-determination. And another principle, closely connected, is respect for the dignity of the individual human being.

The persuasiveness of this argument is compounded by the findings of the Australian Human Rights and Equal Opportunity Commission (‘the Commission’) report published on ROTTIA. The Commission determined that ROTTIA might not have violated Australia’s international treaty obligations under Article 6(1) of the International Covenant on Civil and Political Rights (the inherent right to life) if it were put to the test.[2] The Commission concluded that a “waiver [of Article 6(1)] can be effective if it is authentic and reliable and that appropriate safeguards are in place to ensure that this is so.” A patient could waive their right to life (constituting active, voluntary euthanasia) because this would not be an arbitrary deprivation of that right, so long as adequate statutory safeguards existed to prevent the danger of abuse by state officials.

The NT’s attempt to legalise euthanasia, while it arguably existed within international human rights frameworks, was overturned by the Federal Parliament’s Euthanasia Laws Act 1997 (Cth).

 

ii. Australian legalisation attempts since 2002

Since 2002, more than 19 Bills to legalise euthanasia have been introduced to Australian Parliaments, and in recent years, these Bills have only lost by the narrowest of margins. First, the sheer number of attempts indicates that political will to legalise some form of voluntary euthanasia exists. Second, all of these Bills represent a series of statutory safeguards on euthanasia designed to prevent abuses and protect the vulnerable. Australia21, a not-for-profit body that analyses complex issues, have concluded that even though voluntary euthanasia is illegal, it still occurs ‘not infrequently’ in Australia.[3] This is happening with no oversight, no supervision and rarely any prosecution, evidenced by the lack of criminal cases dealing with situations of euthanasia.

 

iii. Australian case examples

It is not simply legislative attempts to legalise euthanasia that support the assertion that euthanasia is gaining acceptance in Australia; obiter dicta from recent decisions in cases concerned with euthanasia suggest a tolerant approach in Australia’s court system. The High Court of Australia has yet to make a determination on euthanasia. Lower courts are left with difficult decisions when the duty to act with kindness and mercy conflicts with an absolute prohibition on euthanasia.

R v Raymond Douglas Sutton [2007] NSWSC 295 is a particularly emotive case decided by the Supreme Court of NSW. Mr. and Mrs. Sutton pleaded guilty to the manslaughter of their son, Matthew Sutton. Matthew was born severely disabled with no eyes and very limited hearing, and achieved the mental age of a six year old. Matthews’s parents dedicated their lives to his care, but when he was 29 he required surgery to save his life that would take away the rest of his senses and his limited ability to speak. Instead cause Matthew more suffering, Mrs. Sutton sedated her son and Mr. Sutton “released Matthew from this world.” The court accepted that the offenders would never offend again; and there was no need to protect the community from the offenders, as they were motivated by love for their son. Justice Barr stated, “It seems to me that nothing that the Court can do by way of sentence can add to the offenders’ suffering. The need for further punishment is spent.”

 

iii. Leaving the law behind: moral arguments for and against euthanasia

Euthanasia is supported by a majority of Australian citizens, yet opponents have consistently defeated pro-euthanasia reforms. A majority of Australian citizens have continuously expressed a desire for law reform on the issue of euthanasia in opinion polls. The Australian Institute found that 75% of people agree that a doctor should be allowed to assist a terminal patient who is experiencing unrelievable suffering if they ask to die.[4] The breakdown of this number is equally extraordinary. 65% of Christians, 71% of Coalition voters, 79% of Labor voters and 90% of Greens voters all supported euthanasia. Furthermore, all age ranges support euthanasia, with a majority of both young people and older generations in favour of euthanasia.

Groups representing medical practitioners also support euthanasia, including the Australian Nursing Federation. Their position statement on euthanasia reads,

We support legislative reform so that persons with a terminal or incurable illness that creates unrelieved, profound suffering shall have the right to choose to die with dignity in a manner acceptable to them and shall not be compelled to suffer beyond their wishes.[5]

 

So why are the euthanasia Bills continuing to lose support in state parliaments? This is likely due to highly organised opposition campaigns. The opponents of euthanasia most often resort to the ‘slippery slope’ argument – that if euthanasia were legalised, it would open the door to abuses by health or state officials. Euthanasia could expose vulnerable people to risk by leading to laws allowing involuntary euthanasia; for example it could lead to elderly people being euthanised to make space in overcrowded hospitals.[6] The Alliance Defending Freedom has argued that the right to life was needed to “uphold public safety, prevent disorder or crime, protect the health or morals of the nation and protect the rights and freedoms of others.”[7] This presupposes opposition to euthanasia as the only moral choice for the country. Yet opinion polls, repeated legislative attempts for legalisation, and comments from judges all point towards the view that voluntary euthanasia is accepted as a moral choice in Australia. Religion also underpins the sanctity of life argument against euthanasia; the belief that ending life is playing God. This does not justify restricting the choices of others who do not share those religious beliefs. For some, life may become an intolerable burden of suffering, yet the Australian law allows no flexibility for the right to self-determination.

There is a serious issue with religious groups preventing the legalisation of euthanasia when it receives such widespread support that transcends party politics, age demographics and religion. People with strong religious views against euthanasia, under the legislation proposed by various Australian state legislatures, would never be forced to make such a decision, and would certainly never be euthanised against their wishes. This begs the question; should those who hold strong opinions against euthanasia stop others from exercising their right to individual autonomy? As euthanasia arguably comes within the scope of individuals right to private life, it is the private lives of those who would most benefit from legalising euthanasia that are suffering from the law as it currently stands. The people who requests euthanasia suffer unbearably, and they often do not have the option of suicide due to their impairments, yet the option dying in a peaceful and dignified manner continues to be denied to them.

 

The sanctity of life and the right to self-determination in choosing how you die are not mutually exclusive. A balance can be achieved by implementing appropriate and adequate safeguards into a legislative regime that legalises voluntary euthanasia. This would protect the vulnerable and prevent abuses, while also giving those experiencing intolerable suffering the opportunity to die in a manner that is dignified by their own definition, not by the definition of religious and other opposition groups. The sanctity of life is only one in a group of principles that govern how we live our lives. There is also the right to choose how we lead those lives. The right to live a life of dignity is being seriously undermined by a zero tolerance stance to euthanasia; euthanasia should therefore be legalised in Australia.


 

Attempts to legalise euthanasia in Australia since 2002

 Parliament Proposed Bill
Federal
  1. Euthanasia Laws (Repeal) Bill 2004 (Cth)
  2. Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 (Cth)
  3. Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008 (Cth)
  4. Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010 (Cth)
New South Wales
  1. Voluntary Euthanasia Trial (Referendum) Bill 2002 (NSW)
  2. Voluntary Euthanasia Trial (Referendum) Bill 2003 (NSW)
Western Australia
  1. Voluntary Euthanasia Bill 2002 (WA)
  2. Voluntary Euthanasia Bill 2010 (WA)
Victoria
  1. Medical Treatment (Physician Assisted Dying) Bill 2008 (Vic)
Tasmania
  1. Dying with Dignity Bill 2009 (Tas)
  2. The Voluntary Assisted Dying Bill 2013 (Tas)
South Australia
  1. Dignity in Dying Bill 2002 (SA)
  2. The Voluntary Euthanasia Bill 2006 (SA)
  3. Voluntary Euthanasia Bill 2007 (SA)
  4. Voluntary Euthanasia Bill 2008 (SA)
  5. Voluntary Euthanasia Bill 2010 (SA)
  6. Consent to Medical Treatment and Palliative Care (End of Life Arrangements) Amendment Bill 2010 (SA)
  7. Voluntary Euthanasia Bill 2012 (SA)

 


 

References:

[1] R v Klinkermann [2013] VSC 65, 26.

[2] George Zdenkowski, ‘Human Rights and Euthanasia’ (Occasional Paper, Human Rights and Equal Opportunity Commission, 1996) 4.

[3] Australia21 report calls for euthanasia protection’ News.com.au (online) 26 April 2013 <http://www.news.com.au/lifestyle/health/euthanasia-can-be-safely-introduced/story-fneuzlbd-1226629812089>.

[4] Adele Horin, ‘Euthanasia wins 75% support’ The Age (online), 6 January 2011 <http://www.theage.com.au/national/euthanasia-wins-75-support-20110105-19g8h.html>.

[5] Australian Nursing Federation, ANF Position Statement: Voluntary Euthanasia/Assisted Suicide (December 2007) Australian Nursing Federation <http://anmf.org.au/documents/policies/PS_Voluntary_euthanasia.pdf>.

[6] Hope, Hope: preventing euthanasia and assisted suicide <http://noeuthanasia.org.au/about-us/uncategorised/welcome-to-the-hope-website.html>.

[7] Alliance Defending Freedom, ‘Written Observations of Third Party Interveners’ Gross v Switzerland [2013] ECHR 429, 16 December 2013, 10.

 


Rachael Young is an undergraduate student at Bond University, in her final semester of Law and International Relations. She is currently an intern for a Liberal Democrat Member of Parliament in London, and is passionate about human rights.


 

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