Don't make heroes out of doctors who kill

by Paul Russell:

I have written a number of times now about the situations where doctors 'go public' claiming to have flaunted the law by killing a person in an act of euthanasia and almost (and sometimes, actually) daring the Police to act against them.

Such doctors seem always to be 'going public' in an effort to create or support momentum towards changing the law on euthanasia and assisted suicide. The stories usually include some rhetoric that would have us believe that theirs is a brave act, bordering on heroic; a sacrifice for the sake of others.

The Police and Prosecutors are dared by these disclosures into action. This puts them in a difficult place - which these doctors understand full well (and exploit). Officers' duty to uphold the law commands them to investigate. Yet, in every instance in this country in recent years, there has been no further action beyond such investigations. Why?

The answer is quite simple: lack of evidence.

It must be exceedingly frustrating for our law enforcement agencies to go through the motions of investigation knowing full well that there is little, if any, likelihood of prosecution and knowing, all the while, that they are being used as pawns in a political game.

Perhaps that is why, after the most recent example from Western Australia that the WA Police Commissioner, Karl O'Callaghan, chose to speak out via an opinion piece in The West Australian.

His frustration is evident:

"...I find myself unwillingly drawn into a debate on euthanasia and criticised for police launching an investigation into reports in The West Australian that a Perth doctor gave 'terminal sedation' to a patient to alleviate "weeks to months of slow suffocation"."

The term 'terminal sedation' is wrong in this context. As the earlier reports on the supposed incident in question make clear, the person was alleged to have died by way of a deliberate lethal injection.

O'Callaghan explains his responsibility in the clearest terms:

"While I can try and imagine the suffering of such patients, neither I nor my officers have the luxury of applying personal feelings and views to the conduct of a criminal investigation.

"Unfortunately, much of the criticism of the police action in this case comes from people who should simply know better.

"The act of euthanasing a suffering patient is not subject to some vague interpretation of lawfulness and justifiability under the homicide laws in this State.

"Parliament has specifically and categorically legislated against it.

"Section 273 of the Criminal Code Compilation Act refers to the deliberate acceleration of deathâ€¦a person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.

"Section 279 of the Criminal Code goes on to say that if a person unlawfully kills another person and intended to cause the death of the person, then they have committed murder and face a sentence of life imprisonment."

The Commissioner goes on to decry the obvious use of this case by 'those who should no better' to further a political cause:

"With such a bold, clear and definitive statement of law, you can imagine my surprise when a number of senior Members of Parliament came out wringing their hands about the unfairness and potential consequences of police action.

"Standout public comments in this case included the direction that police should 'back off' and 'focus on real crime', suggesting to the media that police have better things to do.

"That some Members of Parliament responsible for making laws in this State then choose to try and influence the impartiality of those who have to administer them should be of great concern to the community.

"It goes without saying that police cannot simply ignore the possibility that a serious offence has been committed because the public or Members of Parliament have sympathy with a perpetrator or do not like the laws.

"Police have a sworn duty to conduct an investigation in circumstances of serious crime.

"Such an investigation may or may not lead to charges being laid.

"Prosecutions of crimes involving the killing of another are handled by the Office of the Director of Public Prosecutions, the ultimate arbiter of whether a matter goes to court or not."

The Police need to be left to do their job without coercion and without undue or improper influence. This is simply one of the hallmarks of a robust democracy which protects citizens through the separation of powers.

"When you appreciate the entirety of the problem that has been put before the police, it amplifies the lack of understanding by some Members of Parliament on the complexity of the issue.

"The laws as they currently stand relating to the unlawful taking of another person's life demand a response by police to any allegations of such a crime.

"If Members of Parliament do not like the laws, then they need to get on with changing them.

"Until then, police will not be swayed by political point scoring and I have given my officers strict instructions that this inquiry will be treated the same as any other homicide investigation, without fear or favour."

Quite. Should no prosecution arise from the investigation it is not open to any of us to assume that the law against euthanasia and assisted suicide has fallen out of favour with the Police or the Coroner. All we can conclude is that there was insufficient evidence for the Prosecutor to believe that a charge might be sustained in a court of law.

This brings me back to my original observation that these public confessions are really all about grandstanding for a cause. Unless a doctor is willing to 'do a Jack Kevorkian' and film the act of killing a person and provide that evidence including the corpse to the Police, then the likelihood of prosecution is slim indeed.

It has been suggested to me on a number of occasions by journalists that Police inaction in such matters amounts to an undermining of the law as it stands and a push towards euthanasia. I disagree. As the WA Commissioner points out, the law is being upheld and enforced by their investigations; any prosecution or lack thereof is another matter entirely.

The question I think that needs to be asked is: Why would anyone think that changing the law to allow for euthanasia and assisted suicide would somehow stop doctors who are supposedly willing to flaunt or break the law from continuing to do so? There will always be other 'hard cases' that will fall outside the scope of any initiating euthanasia legislation. Legalisation doesn't remove harm; it simply shifts it and would likely also provide additional cover for illegal behaviour.

Let's not make heroes out of law breakers who kill.