Dangerous Bill cannot be allowed to pass in South Australia
True to her word, South Australian Labor backbencher and Member for the seat of Ashford, Steph Key has tabled yet another bill in yet another attempt to see euthanasia become law in an Australian state.
The exact number of bills tabled in the South Australian Parliament over the Last decade or so varies depending on whether or not you would count identical bills introduced simultaneously in both chambers as one or two and whether or not other defeated measures – claimed by supporters not to be about euthanasia – were, well, euthanasia and/or assisted suicide bills in disguise (which, by the way, they were!). My reckoning puts the number at around a dozen.
Normally when an MP introduces a bill in short succession after another failed attempt; he or she will often make mention of the fact that they had heard their colleagues’ concerns about inadequacies in the previous bill and that this new bill was actually a ‘new-and-improved’ version. Some spruiking in recent years has added the term ‘robust’ to safeguards (no doubt safeguards made especially for tough Australian conditions!). The Hon Bob Such MP, who passed away after a short illness in October 2014, was a great one for spruiking his latest bill. And why not? Like much of life, getting a bill to a majority vote is as much about selling the message as it is about anything else.
The focus of the argy-bargy is usually about the ‘safeguards’; the clauses by which a regimen seeks to protect vulnerable people from risk of abuse under said law. Some deny that risks of abuse exist. Others, like Bob Such and now Steph Key wisely acknowledge the risk and have sought to mitigate against such risks or at least address the matter.
In her Second Reading speech earlier this month on the matter of safeguards, Key mentions how, at a forum in 2015, the former Chief Minister of the Northern Territory Marshall Perron (architect and mover of the Rights of the Terminally Ill Act – the only successful bill ever in this nation), observed that, ‘moves to include more safeguards had the effect of making the law so complex and contradictory that it was unworkable.’ SA Upper House MP, Mark Parnell made similar observations in summing up a debate in 2010.
And it’s true: any move away from the status quo involves some level of risk and the further we move away from that starting point, the more risk we would need to accept. Key goes on to assert that, in her bill, the Voluntary Euthanasia Bill 2016, ‘The safeguards…are captured in the definitions ‘unbearable’ and ‘hopeless’ and their careful application to each request for voluntary euthanasia.’
There are a few ‘out-of-the-ordinary’ clauses in Key’s latest bill that I will address later. At this point I would simply observe that the normal understanding of safeguards are about creating checks and balances, reporting obligations and limiting who might qualify for euthanasia and/or assisted suicide and not so much the meaning of adjectives or adverbs such as ‘unbearable’ and ‘hopeless’. As Key admits, only the individual person seeking to be made dead can say what is ‘unbearable’ and what is not.
Here’s how the bill expresses it:
4—Unbearable and hopeless suffering
(1) For the purposes of this Act, a person will be taken to be subject to unbearable and hopeless suffering if—
(a) the person is suffering from a medical condition (whether terminal or not); and
(b) the person is subject to mental or physical suffering or both attributable wholly or in part to the medical condition; and
(c) the suffering is unbearable to the person, determined in accordance with subsection (2); and
(d) the suffering is hopeless, determined in accordance with subsection (4).
(2) In determining whether a person's suffering is unbearable, the degree to which a person's suffering is bearable or unbearable is to be determined subjectively, and need not meet an objective standard.
(3) The question of whether a person's suffering is bearable or unbearable cannot be challenged or questioned in any proceedings seeking to prevent or delay the administration of voluntary euthanasia to an eligible person.
(4) A person's suffering will be taken to be hopeless if there is no reasonably available medical treatment that would reduce or relieve the suffering to a level bearable to the person (and the nature, availability and potential effectiveness of such medical treatment is to be determined objectively).
So, the bill is not about terminal illness – only a medical condition that, in part at least, is the cause of mental or physical suffering that, according to the person, is unbearable and for which there are no treatments available that are acceptable to the person. So, stretching the bounds of possibility, this could include a relatively minor condition that is and never will be terminal, that may never cause significant suffering as understood by most people, but for whom, whether genuine or not, the person asserts as ‘unbearable’.
No-one doubts that pain thresholds differ from person to person; that is not at question here. What this bill does is to create a ‘jump off point’ for this type of legislation in this country that is precisely where Belgium now finds itself after 13 years – euthanasia for mental health reasons.
Think this through. The Belgian media recently featured the story of a 37 year old woman who had life-long mental health issues who sought and received euthanasia after the break-up of her relationship. One of the doctors (the psychiatrist) she saw diagnosed autism. Commentaries suggest that this diagnosis was likely done to qualify for euthanasia because the law requires that the suffering is incurable.
Compounding the problem in Key’s bill is the decree that the ‘bearability’ or otherwise of the persons suffering cannot be challenged and cannot be cited as a reason to delay the death. This denies the doctors the ability to work at their craft; they become little more than dispensers and more like the food and drink machines in the corridor than people trained to care.
In Oregon more than 14 years ago Jeanette Hall asked for assisted suicide after being diagnosed with cancer. She is still alive today because her doctor challenged her to try the treatment. Under the Key model, Hall’s doctor would have been committing an offence by challenging her as he did and she would likely be dead.
This is a recipe for suicide. Putting aside the differences between euthanasia and assisted suicide in form, this bill would provide a pathway to death for a suicidal person; that is: someone who is intent on their own destruction regardless of prognosis or possible treatments. It is not difficult to imagine the devastation felt by anyone who is diagnosed with a debilitating condition; suicidal thoughts will be common. This bill provides a path to destruction. Even the possibility of one of the two certifying doctors suspecting suicidal depression being met with a referral to a psychiatrist is not mandated and can be circumvented by the ‘reasonableness test’ (I had no reason to question…) and/or by attributing the mental suffering to being ‘wholly or in part’ due to the medical condition. It would become even more convoluted if the medical condition were itself mental by nature. Those taken in by Philip Nitschke’s assertion about so-called ‘rational’ suicide will find even less reason to object.
Nitschke himself perversely may be a significant beneficiary of Key’s bill. While he has been something akin to the ‘kiss-of-death’ for a number of recent bills by virtue of his interventions about death clinics, mobile death clinics and the like, his business model could gain substantially if Key’s bill is successful.
9—No offence to provide medical information about voluntary euthanasia
Despite section 13A of the Criminal Law Consolidation Act 1935, or any other Act or law, a person incurs no criminal or civil liability by—
(a) providing medical information in relation to voluntary euthanasia; or
(b) selling or supplying medical equipment (not being a drug used in the administration of voluntary euthanasia) to be used for a purpose relating to the administration of voluntary euthanasia.
Section 13A of the Criminal Law Consolidation Act 1935 makes it an offence to aid, abet or counsel the suicide or attempted suicide of another.
I expect that 9 (b) is intended to express the normal supply of standard medical equipment. However, I would not be surprised at all if Exit’s growing ‘shop-of-horrors’ catalogue morphed into a waiting room glossy magazine for the sake of increasing sales.
At least Section 9 acknowledges that part of what this bill seeks to do is to circumvent the existing criminal code statutes in relation to suicide. It also, curiously, makes a connection between the sale and supply of equipment and the Criminal Code; something which has not been tested, to my knowledge, in law.
The word suicide is only used three times in the bill: twice as above and once to determine that the cause of death will not be noted as ‘homicide or suicide’ but, rather, as being the ‘primary medical condition’ (would look very silly if the cause was autism!).
Elsewhere in the text what is commonly known as assisted suicide or physician assisted suicide is now become ‘self-administered voluntary euthanasia’. Why such gymnastics? Probably simply to avoid the use of the ‘s’ word as much as possible. But you cannot administer yourself (‘self-administer’) something that, by its very nature, is administered by another (euthanasia). Politicians should be very wary of language that, by design or by accident, obscures reality.
So, this bill is about euthanasia; where a doctor will do the killing; and assisted suicide; where the doctor provides the means for self-destruction. With one, it is often said, there will always be a bit of the other. Steph Key, in selling her bill, makes a great deal of the fact that in Oregon a significant number of people who were prescribed lethal doses did not take them. Key says that knowing they have a way out ‘makes their final days bearable’. A few problems: for a significant number it is not about ‘final days’ but months stretching beyond even a year; in other words: wrong prognoses. Key fails to mention that the reasons given in Oregon for seeking assisted suicide are not about pain, either current or future, but about things such as fear of loss of autonomy or loss of dignity. These matters can be easily dealt with without providing a lethal prescription.
More than that, there are inherent and incalculable risks attached to ‘self-administration’ and even for euthanasia that Key fails comprehensively to deal with. Like in Oregon, there is no requirement that the doctor be present at the suicide death. The lethal concoction could be taken alone or in the presence of others. The risk that a third party coerced or even physically forced the person to ingest the substance cannot be eliminated. No-one would ever know.
Consent is implied by the completion of a request form. After that, for the lethal injection or the supply of a lethal concoction, a number of ‘hoops’ need to be negotiated including a two-day cooling off period. Then it is all systems go:
For the purposes of this or any other Act or law, a person's request for voluntary euthanasia will, in the absence of evidence to the contrary, be taken to constitute any consent necessary for the administration of voluntary euthanasia to the person. (18(2)).
Consent is assumed. Certainly a sensible doctor wishing to comply with the law will always, as a matter of practice, seek a re-affirmation of consent. However, this assumption of consent, harkening back to the original completion of a euthanasia request form, stands ad infinitum unless revoked by the person. Again, who would ever know? Who could ever gainsay the word of a doctor or a family member?
If you think I’m painting a picture of a doctor like a Harold Shipman, Jack Kevorkian or Josef Mengele, think again. This isn’t so much about sinister intent as it is about the improper actions arising out of common human emotions and about human error. Compassion is a great motivator, but we cannot excuse nor account for compassion that gives rise to actions outside the law any more than we should knowingly create or allow circumstances where the opportunity to ‘get away with murder’ is amplified and most obvious.
Key’s bill deserves attention. I urge South Australian MPs to think this matter through carefully because no bill is ever safe no matter how it expresses its operative clauses and no matter what safeguards are ‘in or out’. Putting aside, then, this bill, maybe we can begin to properly focus on making sure every South Australian has access to the best care when and if they need it.
To TAKE ACTION on this bill CLICK HERE.