A curious article appeared yesterday in the Sydney Morning Herald quoting chief executive of the Council on the Ageing (COTA), Sue Hendy, as pushing for federal legislation on euthanasia.
I say curious because the article seemed substantively about protection for the aged (elder abuse etc.) and COTA's disappointment that the reform of the federal discrimination laws has been shelved.
The article reads as though Ms Hendy's opinion on euthanasia is COTA policy. However, I could find no reference to any policy in that regard on their website. What I did observe was a very positive agenda in respect to older Australians for which they deserve applause and respect.
So what of the idea that the Federal Parliament should legislate on euthanasia?
There was a legal briefing presented to the Federal Parliament during the debate on the Euthanasia Laws Act in the mid-1990s vis-à-vis whether or not the Federal parliament had the power to assume jurisdiction over euthanasia type laws for all States (in addition to its statutory powers to do so for the Territories). From memory the brief came to no firm conclusion.
The problem of states ‘going-it-alone’ on euthanasia is a very real one and the argument, in that respect at least, is a powerful one. In attempts at law reform in Tasmania and New South Wales the proposals included a residency clause. Such a clause was absent in the Territory Law and has never been included in South Australia (where more attempts at reform have appeared than in any other state). It has been suggested to me that any attempt to restrict access to state’s residents would likely be unconstitutional.
However, the Constitution, being silent in this matter, I think the strongest argument for the retention of the states’ powers in this regard is that the Criminal Codes on homicide remain principally a state concern. Any euthanasia legislation would effectively amount to an exception to the statutes on homicide.
Ms Hendy correctly observes that such legislation should be safe, that, in terms that politicians tend to use, there would be ‘appropriate safeguards’. The reality, from observations in every legitimate parliamentary inquiry anywhere outside The Netherlands and Belgium in the past two decades, is that such legislation can never adequately protect all citizens from the risk of abuse – vulnerable people being mentioned repeatedly in this respect.
The data from Belgium, and to a similar extent, from the Netherlands, points clearly to the fact that vulnerable people are at risk – especially the elderly. This matter was also extensively covered in a recent book by my Canadian colleague, Alex Schadenberg using only recent studies to re-enforce that conclusion.
(You can purchase a copy at: www.euthanasiaandvulnerablepeople.blogspot.com.au).
Moreover, it is the issue of Elder Abuse that focuses the mind on the risks to the elderly from euthanasia legislation. A recent arrest for Elder Abuse in Oregon points to how a person can be abused under such law for financial gain.
There are also more subtle dangers that euthanasia legislation presents for aging Australians. The recent article about BeverleyBroadbent’s death (and subsequent commentary) and the underlying message of the likes of Dr. Nitschke that only encourage the elderly to fear (more than is normal and healthy) what their death might look like are the most recent and prescient examples.
In a radio interview about Broadbent, Dr Rodney Syme could not help himself and identified the aging of our population and the related rise in the health budget as one of the reasons we need to look to this type of legislation. How does that sit with our elderly? It can only increase any sense of being a burden or fear that their health and medical support – should they need it – would be somehow less than adequate.
This while question of health spending need to be reframed and re- thought. I wrote an article recently on this matter for Online Opinion . If we allow that debate to be framed by the ‘bean-counters’ as an ‘intergenerational heist’, then I fear that Syme’s comments might be prophetic rather than pathetic!
Again, should euthanasia laws ever be passed in Australia, mindful of the ‘cost factor’, there may well be subtle and not so subtle pressures upon the elderly infirmed to justify why they do not want to take the euthanasia option.