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Safeguards: the Precautionary Principle and the Tasmanian Premier

precautionary principle — n: the precept that an action should not be taken if the consequences are uncertain and potentially dangerous (World English Dictionary)

The commitment of newly appointed Tasmanian Premier Lara Giddings to supporting a euthanasia and assisted suicide agenda in that state’s parliament would seem to elevate the issue to a new alert level in the Apple Isle.  The Labor/Green alliance forged by her predecessor, David Bartlett, with Greens leader, Nick McKim will, no doubt, be honoured in the next few months by the introduction of yet another euthanasia bill; amongst other initiatives one suspects.

This leaves me to wonder at the enduring nature (or lack of) and consideration given to the two inquiries conducted by the Tasmanian Parliament on euthanasia and assisted suicide in the last decade or so.  In 1998 the Community Development Committee’s Inquiry into the Need for Legislation in Tasmania on Voluntary Euthanasia for the Terminally Ill rejected euthanasia as a bad idea in clear and emphatic terms.  In 2009, the committee set up to examine McKim’s own Dignity with Dying Bill rejected his approach also.

While the 2009 inquiry dealt specifically with the bill in question, it inescapably echoed the findings of the earlier inquiry.  The 1998 inquiry, it should be said (to this writer at least) is a document worthy of being read by anyone interested in the issue.  Certainly, for the current Tasmanian Parliament, it should be on every MPs reading list.

Consider Finding #8: The Committee found that the codification of voluntary euthanasia legislation could not adequately provide the necessary safeguards against abuse.

Remember, this is a general comment about euthanasia — not about a particular euthanasia bill.  In that context and by reflection on the failure of recent bills here and overseas and also upon the mounting data showing the rates of abuse from jurisdictions where euthanasia is practiced, the statement is clearly true in an absolute sense.

Euthanasia legislation can never be made safe from abuse.  Safeguards, so-called, can never provide certainty.  (As Wesley Smith once observed, safeguards are really only included so as to make legislators (and all of us into the bargain) feel somewhat at ease about legislating for killing.)

Interesting that the 2009 inquiry should then make the following observation: The Dying with Dignity Bill 2009 has been described as containing insufficient safeguards or for having too many safeguards to enable a sufferer seeking assistance to end their life.  (finding #2)

How is it that a bill could be simultaneously criticised for having too many or too few safeguards?  We can understand insufficient safeguards in terms of the finding of the earlier inquiry, but what are we to make of the counter-claim by some that McKim’s bill contained too many?

South Australian Green MLC, Mark Parnell gives us a clue in his speeches on his failed attempts in the SA Upper House in 2009 and 2010:

“One of the dilemmas that we have got is that we want safeguards, but we do not simply want to put obstacles in the way of people so that they cannot ever use it.  We have got to get the balance right.” (2009)

“I know that some people will not be happy until enough hurdles are put in place to make the laws unworkable, and that is always the tension in law reform like this.  We want safeguards.  We want strong safeguards, but the safeguards need to have a purpose behind them, and the purpose needs to be the prevention of misuse or abuse.” (2010)

“In terms of some of the comments that other members made, the Hon.  Ann Bressington, as she did last time, has sympathy and support for some of the concepts in voluntary euthanasia and, in particular, the people in the terminal phase of a terminal illness.  That might be something that we need to revisit: whether the eligibility criteria is simply too broad for members of parliament to accept, but that will be a decision for another day.” (2010)

Parnell has a dilemma: not enough safeguards would mean that his bill would fail to attract enough votes to pass.  Too many safeguards would render his bill ineffective in terms of its stated aims.  His suggestion that ‘we have got to get the balance right’ would seem to be a denial of the reality that drafting a bill that would prevent abuse is an impossibility.  The inexhaustible variations to personal circumstances and diagnoses alone should tell us that; let alone the vagaries of human nature.

So, considering safeguards as points on a line, we could observe that moving toward fewer safeguards increases the risk of abuse while swinging back towards more safeguards, while certainly decreasing risk, can never remove risk entirely.

This would seem to be an argument for the status quo; that is: a firm no to euthanasia.  But on our line the starting or ‘zero point’ is not a place where no risk exists.  As Parnell also acknowledges, euthanasia already exists; with and without consent.  It is merely, therefore, only a point where we have not legislated to create an opportunity for abuse, pure and simple.

It strikes me, therefore, that the precautionary principle should apply in the upcoming debate in Tasmania.  It should fall to the Premier, or to whomever it is that sponsors the new bill, to prove beyond doubt that no risk of abuse exists in their model of legislation.  The use of this principle is an accepted standard across the globe in many spheres of activity (such as environmental protection and drug approval), why not in matters of life and death?  There should always be a higher burden of proof upon those who want to usher in change than upon those who argue for the status quo.

Nothing personal, but I don’t think the new Premier is up to it!

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