Issue 12, August 2010 | Linda Savage MLC

 

This article was written prior to the author joining the Parliament of Western Australia.

There is some optimism that a state in Australia may have legislation allowing physician-assisted dying in the foreseeable future. The number of bills being introduced in state parliaments continues at a steady pace and there is optimism that there may be the numbers to tip the balance in the next few years. In Western Australia five bills have been introduced, most recently the Voluntary Euthanasia Bill 2010 (the bill) introduced by the Honourable Robin Chapple MLC.[1]

Debate about physician-assisted suicide and voluntary euthanasia is not new. Australia led the world when the Northern Territory passed the Rights of the Terminally Ill Act 1995, which came into operation on 1 July 1996. In 1997 the federal parliament, using Section 122 of the Australian Constitution, repealed the Northern Territory Act. Legislation passed in Western Australia would not be vulnerable to being repealed in this way.

In 2010 a variety of legislative frameworks and legal rulings exist around the world allowing people to choose how and when they die, including in Belgium, Luxembourg and the Netherlands, as well as the American states of Oregon, Washington and Montana.[2] Switzerland, perhaps best known because of the high profile of Dignitas, forbids voluntary euthanasia, however Article 115 of the Swiss Penal Code exempts those who assist in another’s suicide, if they do not act from selfish motives. The momentum around the world continues, most recently with the End of Life Assistance (Scotland) Bill introduced into the Scottish Parliament on 20 January 2010.

Surveys consistently show that the majority of Australians believe that a person with a terminal illness, who is suffering more than they can bear, should have the right to decide that they wish to end their life. Over 80% of those polled in a 2009 Newspoll agreed, when asked, that if a hopelessly ill patient experiencing unrelievable suffering with absolutely no chance of recovering asked for a lethal dose, then a doctor should be able to provide that dose to end their life. The community unsurprisingly expects their politicians to be mature enough to debate this issue in a rational and responsible way. This paper outlines the provisions of the Hon Robin Chapple’s bill, and provides some context for the debate.

It is interesting to begin by considering why we are having this debate.

Certainly at what age, and how, we experience death has changed enormously in the last hundred years. Life expectancy has risen from approximately 55 years in 1910 to around 80 years in 2010. Infant mortality has fallen dramatically, as has death in childbirth.[3] Experiencing old age is now the experience of the many rather than the few.

Whilst the fear of a painful death has always haunted human beings, the development of modern pharmaceuticals has meant that there are effective ways to lessen suffering, even in the terminal stages of an illness. But not all suffering can be prevented. The Australian Medical Association acknowledges this difficulty, stating:

While for most patients in the terminal stage of an illness, pain and other causes of suffering can be alleviated, there are some instances when satisfactory relief or suffering cannot be achieved.[4]

Resonating deeply with many people seems to be the horror of forcing someone who has a terminal illness to die slowly and by degrees, with pain and in an undignified way. Underpinning this concern is the knowledge that it may be the marvels of modern medicine that are prolonging the process of dying, even when it is acknowledged to be inevitable. Integral to the debate today is the belief that individuals should have the right to decide how their own life ends. This belief in personal autonomy, that is the right to make decisions about one’s own life, is the dominant ethic underpinning the doctor-patient relationship in Australia today. Currently in Australia there is no civil or criminal liability for treatment intended to lessen pain that has the secondary, though foreseen, consequence of hastening death. The explicit use of drugs however, in a clinical setting to end life and suffering at the person’s request, is not acceptable, and could lead to a charge of murder or manslaughter.

Robin Chapple argues that his bill will in effect provide clarity about practices that in fact are already occurring. Dr Rodney Syme, a Melbourne urological surgeon has written extensively on the subject of voluntary euthanasia, including telling the stories of those he has assisted to die. He is not alone[5] and it has long been argued that what exists is a glaring gap between law in theory, and the administration of the law in practice.[6]

The depth of concern in the West Australian community about who decides how and when one dies, was illustrated by the public response to the situation of Mr Christian Rossiter. In early 2009 Mr Christian Rossiter, a 49 year old former stock broker and a quadriplegic, contacted the West Australian Voluntary Euthanasia Society (Inc) (WAVES). He discussed his wish to end his life painlessly, and at a time of his choosing. Due to his condition Mr Rossiter received all nutrition and hydration by way of a percutaneous gastronomy tube (PEG) inserted in his stomach. He had requested on a number of occasions that his carers at Brightwater cease providing him with nutrition via the PEG. Brightwater, a residential facility for people with disabilities where Mr Rossiter lived, asked the Supreme Court to decide whether they were legally obliged to comply with his wishes, or alternatively whether they were legally obliged to continue to provide the nutrition that he required to live. In his decision the Chief Justice Wayne Martin, who recognised the tragedy of Mr Rossiter’s circumstances, noted that Mr Rossiter was totally dependent on others, unable to take nutrition orally and had to be fed by a PEG, and although not terminally ill or dying, had been advised he had no prospect of his medical condition improving. It was accepted by all involved that he had full mental capacity and no one else had the right to make decisions for him. The decision of the Supreme Court amongst other things, affirmed the right of every competent adult to choose whether or not to receive medical treatment, including its continuation.[7] The case was not, as the Chief Justice stressed, about euthanasia, (and the Bill would not apply in his case as he was not suffering from a terminal illness) but it did ignite enormous public debate about the right of the individual to decide when and how they should be allowed to die. Mr Rossiter later died from a chest infection.

The Voluntary Euthanasia Bill 2010

Robin Chapple’s Bill embodies many of the principles of laws operating in other countries. He has described it as deliberately restrictive. Not only will the bill in effect legalise current practice he argues, but it will also provide the necessary safeguards for patients, their families and the medical fraternity, that do not currently exist. Robin Chapple has summarised the bill as follows [8]:

The Person Seeking To End Their Life Must:

  • Be of sound mind.
  • Be at least 21 years of age.
  • Have a medically diagnosed terminal illness that will cause their death within 2 years of the date on which their request for euthanasia is made.
  • Be experiencing pain, suffering or debilitation that is considerable and related to the terminal illness.
  • Be a resident of Western Australia, and have been a resident for at least three years prior to the application for euthanasia.

The Application Must:

  • Be made in writing, in the form set out in the bill.
  • Be witnessed by 2 independent and unrelated people.

 Medical Practitioners

  • In order for an application to be progressed, it must be referred first to an independent medical practitioner, who becomes known as the “applicant’s medical practitioner.”
  • The applicant’s medical practitioner must ensure the person is aware of palliative care options and the availability of counselling and other support services before assessing the request.
  • The applicant’s medical practitioner and another independent medical practitioner must then assess the request.
  • These independent medical practitioners must ensure the person’s request is not wholly or substantially motivated by a desire to cease to be a burden, and that they have made the request voluntarily.
  • The applicant’s medical practitioner and a third, new independent medical practitioner must be present at the time of the administration of euthanasia.

Safeguards

  • A person may revoke their request at any time.
  • A person’s request lapses immediately if the applicant’s medical practitioner concludes that an applicant has ceased to be of sound mind.
  • Medical practitioners, witnesses and any others involved do not incur any criminal or civil liability.
  • A person who does anything required or permitted under the Act, forfeits any direct or indirect financial or other benefit following the death of the person.
  • A death that occurs as a result of euthanasia must be recorded as a death caused by the terminal illness the person is suffering from, and the Coroner must annually provide a report into the number of uses of the legislation to the Minister that must be tabled in Parliament.

The introduction of legislation of this type has always provoked strong feelings.

Some opponents of voluntary euthanasia laws, usually members of religious organisations, have continued to characterise supporters as being in the same league as those responsible for the genocide perpetrated by the Nazi regime and the horrifying medical experimentation carried out by Josef Mengele.[9]Increasingly other voices within religious organisations have begun to distance themselves from this type of argument. The Reverend Canon Frank Sheehan, Director of the Centre for Ethics at Christ Church Grammar School commented in 2009 , “Very conservative church people are often not ready enough to acknowledge the good will and goodness of people who believe they have a right to euthanasia – there are quite often quite absurd associations of sometimes saying, oh this is what the Nazis did’.[10] In South Australia, ‘Christians for Voluntary Euthanasia’ was established in February 2009 and already has nearly 1000 members, including over 100 in Western Australia.[11] In the wider community increasing numbers of high profile Australians, including high profile Christians have added their names to campaigns urging politicians to reform the law to allow a person with intolerable and unrelievable suffering from a terminal or advanced stage of an incurable illness, to seek medical assistance to die peacefully in accordance with their beliefs and values. They include former Prime Minister Malcolm Fraser and his wife, Senator Bob Brown, Janet Holmes a Court , Ron Barassi, Peter Cundall, Major General Allan Stretton, the Reverend Dr Francis Macnab and many more.[12]

There is no doubt that voluntary euthanasia laws must be carefully drafted to provide safeguards. Understandably there are concerns raised about unintended consequences, in particular the fear that the elderly and the vulnerable could be coerced into making a decision to end their life against their will. Members of parliament in Western Australia now have the benefit of the experience of other jurisdictions and the range of legislative frameworks that have been enacted around the world when considering the bill. In the state of Oregon in America for example, the Death with Dignity Act was passed in 1997. Since then a total of 460 people have used it to end their lives. In Oregon to obtain a prescription for medication for the purpose of ending one’s life, a number of conditions must be met. They include that the person, aged at least 18, must make at least 2 oral requests and one in writing, they must have a prognosis of less than 6 months to live, a second medical opinion must be obtained and the doctor must verify that the person is both making an informed decision, and is capable of doing so. Figures for 2009 from the Oregon State Health Department show that 78% of those who died were aged between 55 and 84 years, with the median age being 76. 98.3 % were white and 79.7% had cancer. 97.8 % had some form of health insurance (private, Medicare or Medicaid). Most died at home (98.3%) and most were enrolled in hospice care at the time of their death (91.5%). As in previous years the most frequently reported causes of end of life concerns were loss of autonomy, loss of dignity and decreasing ability to participate in activities that made life enjoyable.[13]

 In March 2010, the Washington State Health Department released the first report since the Death with Dignity Law was passed by electoral ballot in 2008 and came into effect in March 2009. In Washington State, any resident who is 18 years or older, mentally competent and has been diagnosed with a terminal illness that gives them 6 or less months to live, can request a lethal dose of medication by a doctor. The Washington State Department of Health’s ‘2009 Death with Dignity Act Report’ found that since 2009, 63 people had requested and had been dispensed prescriptions for medication to end their lives. 36 people had died after taking the medication. Of these 98 % were white or non-Hispanic. 70% were suffering from cancer. The main reasons given for wishing to end their life was concern about losing autonomy, loss of dignity and being less able to participate in activities that make life enjoyable. Significantly, all had health insurance - either private, Medicare or Medicaid or a combination of both.[14]

A concern that is often raised is that palliative care will suffer if voluntary euthanasia laws are introduced. However, the need for improved palliative care services is not at odds with support for legislation such as that being introduced by Robin Chapple and improved palliative care services should be supported. There is now research that has looked directly at this concern. In Belgium research has begun to understand the relationship between legalised euthanasia and palliative care. This is informative because Belgium has had voluntary euthanasia laws since 2002 that are similar to what is proposed by Robin Chapple. In Belgium the expanding recognition and role of palliative care in the last 20 years of the twentieth century paralleled the increasing debate about legalising euthanasia. The body of academic work that exists supports the conclusion that palliative care services have continued to improve since the legalising of euthanasia, a conclusion accepted even by those opposed to euthanasia.[15]

A study led by Lieve Van den Block and reported in the British Medical Journal in 2009 explored the relationship between the care provided in the final 3 months of life and the prevalence and types of the end of life decisions in Belgium. The study analysed data received for 2005-2006 via the Sentinel Network of General Practitioners, a network that is representative of all general practitioners in Belgium.

The study concluded that:

“…life shortening and a philosophy of palliative care do not have to oppose each other; they commonly coexist. Medical end of life decisions including euthanasia or physician assisted suicide are not related to lower use of palliative care in Belgium and often occur within the context of multidisciplinary care.”[16]

This finding is consistent with the conclusions reached by Jan Bernheim and others in 2008 who found that there was no evidence that the legalising of euthanasia had adversely affected the provision of palliative care in Belgium. In fact they argue that “… most values of palliative care workers and advocates of euthanasia are shared.”[17]

Palliative care has recently been subject to a major study that compared 27 countries in Europe. The ‘Report of the Task Force on the development of Palliative Care in Europe’ compared the availability of palliative care resources or services, and the possibility of there being further services available in the near future. Using these criteria the United Kingdom was ranked first, Ireland second and Sweden third. Those countries in Europe where voluntary euthanasia is legal, namely the Netherlands, Belgium and Luxembourg, ranked fourth, ninth and tenth respectively.

The experience of the Netherlands is often cited as evidence that once legalised, the elderly and vulnerable will be targeted, presumably by family members and with the assistance of unscrupulous doctors. In the Netherlands, euthanasia is defined as death resulting from medication administered by a physician with the intention of hastening death at the request of the patient. Assisted suicide is when a patient hastens death by giving him or herself medication prescribed by a doctor. Although neither procedure was legal in the Netherlands until 2002, doctors were generally not prosecuted if they adhered to certain requirements.[18] In 1986 the Dutch Medical Association in collaboration with the Nurses Association instituted the ‘Guidelines for Euthanasia’, which led to an agreement in 1990 that enabled doctors to practice euthanasia and assisted suicide with immunity, as long as the guidelines were adhered to. The basis for the claims of a slippery slope appears to be based on 2 reports done by the Dutch government in 1990 and 1995, that is several years before the “Termination of Life on Request and Assisted Dying (Review Procedures) Act” 2002 (the Act) became law in the Netherlands. The 1990 and 1995 reports found that 0.8% and 0.7% respectively of deaths involved the administration of drugs with the explicit intention of ending the patient’s life, but without the patient’s explicit request.[19]These reports have been used at times to make the misleading claim that the percentage that have died in these circumstances is over 50% of deaths, equating to numbers in the thousands. Inflating the numbers in this way appears to be done by adding those deaths that were attributed to withholding or withdrawing life prolonging treatment, as well as those where medication to alleviate pain was given in a sufficient dose to be likely to hasten death, both of which are acceptable medical practice in both the Netherlands and Australia. It is interesting to note that similar research was undertaken in Australia and published in the Medical Journal of Australia in 1997.[20] It found overall at that time that Australia had a higher rate of intentional ending of life through the administration of drugs, and by the withholding or withdrawing of treatment, without the patient’s request, than reported in the Netherlands.

Since 2002 reporting of euthanasia and physician assisted suicide to the public authorities has been required in the Netherlands. Public control and monitoring was in fact one of the reasons why it was argued laws were necessary. Rather than a slippery slope the published research reports that there has been a decrease in deaths as a result of euthanasia and physician assisted suicide from 2.8% in 2001 to 1.8% in 2005.[21] The figures remained stable in 2007.[22] The most recent research published in April 2010 found there had been no increase in demand for euthanasia since the legalising of euthanasia in 2002.[23]

When discussing the Netherlands it must be borne in mind that Termination of Life on Request and Assisted Dying (Review Procedures) Act” 2002 differs very significantly from other legislative frameworks. This is because it applies not only to the terminally ill but also to other groups such as the chronically ill, as well as minors where parents or guardians can give consent, if all other requirements are met. Robin Chapple’s bill cannot be compared with the Netherlands, requiring as it does that a person be of sound mind, be at least 21years old and have a terminal illness.

Experience in those jurisdictions with legislative frameworks that allow a person to choose when they end their life, show few people choose to do so. It seems that for many it is enough to have the comfort of knowing that they have the right to, even if they never seek to do so. The Oregon data for example indicates that approximately a third of patients who satisfy the requirements of the legislation, and are prescribed life-ending medication, never use it. This suggests that for a significant group the medication is the reassurance they need, and that they do not feel pressed to use it.[24]

If Robin Chapple’s Voluntary Euthanasia Bill 2010 is put to a vote in Western Australia, members of parliament will be allowed to vote according to their conscience, rather than on party lines. The right to a conscience vote is based on the principle of autonomy, the right that is at the heart of this bill. For that reason the passing of this bill would not alter anything for those who believe that only God can decide when life ends, or those who wish to continue to receive medical treatment until the very end, or those who want to leave decision making about when treatment is futile in the hands of others. What the bill does do is support the right to make a different decision, the decision, when facing a terminal illness to die in a manner and at a time of their choosing.

Since submitting this article Linda Savage has become a member of the Legislative Council of the State Parliament of Western Australia, representing the East Metropolitan Region. The views expressed in this article are those of the author and do not reflect those of Australian Labor Party.



[1] Medical Care of the Dying Bill 1995 Ian Taylor MLA
Voluntary Euthanasia Bill 1997 Norm Kelly MLC
Voluntary Euthanasia Bill 2000 Norm Kelly MLC
Voluntary Euthanasia Bill 2002 Robin Chapple MLC
Voluntary Euthanasia Bill 2009 Robin Chapple MLC

[2] Oregon, USA ‘Death with Dignity Act’ 1997

Netherlands 'Termination of Life on Request and Assisted Dying (Review Procedures) Act' 2002

Belgium 'Belgian Act on Euthanasia’ 2002

Washington State, USA ‘Death with Dignity Act’ 2008

Montana, USA In December 2009 the Montana Supreme Court ruled 4 to 3 that state law protected doctors in Montana from prosecution for helping terminally ill patients die. The ruling did not however make a ruling on whether physician assisted suicide is a right guaranteed under the state’s Constitution. (Baxter v Montana: Supreme Court of Montana: 2009 MT 449)

The United Kingdom

On 25 February 2010 the Director of Public Prosecutions UK, Keir Starmer QC published the policy to be followed in deciding whether or not to prosecute cases of assisted suicide. The policy does not change the law on assisted suicide (Under the Suicide Act 1961 assisting suicide can result in a prison sentence of up to 14 years). It does however list factors, which could mitigate against prosecuting someone who has assisted the suicide of another. The policy followed an appeal to the House of Lords by Debbie Purdy, who suffers from multiple sclerosis, and wanted to know what would happen if her husband accompanied her abroad to Dignitas to end her life. The Law Lords ruled that people considering taking their lives were entitled to a clarification of the law. Public interest factors against prosecution were that the person assisting was wholly motivated by compassion and were only of minor encouragement or assistance and that the victim had reached a voluntary, clear, settled and informed decision to commit suicide.

[3] Changing context of death

Roger Hunt BM BS GDPH FAChPM MD
Clinical Leader, Respecting Patient Choices Program
Director, Western Adelaide Palliative Care, TQEH, SA

[4] AMA Position Statement on the Role of the Medical Practitioner in End of Life Care. 2007

[5] Syme R, 2008 A Good Death: An Argument for Voluntary Euthanasia, Melbourne University Press

Neil, D et al. (2007). End of life decisions in medical practice; a survey of doctors in Victoria (Australia) Journal of Medical Ethics  33; 721

[6] Otlowski, M. (1993). Mercy killing cases in the Australian criminal justice system. Criminal Law Journal.17: 10

[7] A transcript of the decision of Brightwater Care Group (Inc) v Rossiter is available on the Supreme Court of Western Australia website www.supremecourt.wa.gov.au

[8] A full version of the Voluntary Euthanasia Bill 2009 can be downloaded at:

http://www.robinchapple.org.au/node/142

[9] In “Religion and attitudes concerning euthanasia” by Joanna Sikora who reported a clear correlation between religious beliefs and opposition to euthanasia. 2009 Journal of Sociology, 45(1): 3154)

[10] The West Australian 29/10/2009

[11] Christians for Voluntary Euthanasia www.christiansforve.org.au

In a letter to the West Australian newspaper dated 26/5/2010, Ajahn Brahm, Abbot of Bodhinyana Monastery and spiritual director of the Buddhist Society of WA, Serpentine wrote:

‘In the type of extreme situations that Robin Chapple’s Voluntary Euthanasia Bill aims to address, most Buddhists would choose compassion, in the form of euthanasia, over prolonging a life that has become unendurable.’

[12] A full list is available at on the Dying with Dignity Victoria website: www.dwdv.org.au

[13] Department of Human Resources: Oregon.gov, 2009. Summary of Oregon’s Death With Dignity Act, 2009, Online; Available from: <http://oregon.gov/DHS/ph/pas/docs/year12.pdf> 15th May 2010

[14] Washington State Department of Health, 2009, Death with Dignity Report, Online, Available from < http://www.doh.wa.gov> 15th May 2010

[15] Gamester N et al, (2009). The relationship between palliative care and legalized Euthanasia in Belgium. Journal of Palliative Medicine Vol 12 (7) @ p 590

[16] Van den Block L et al. (2009). Euthanasia and other end of life decisions and care provided in the final three months of life: nationwide retrospective study in Belgium. British Medical Journal 339:b2772 @ p 7

[17] Bernheim J et al. (2008). Development of palliative care and legalisation of euthanasia: antagonism or synergy. British Medical Journal Vol 336: @ p 866

[18] Dr Greg Gardiner, Parliamentary Research Services, Parliament of Victoria, No 2 June 2008 p 30

[19] van der Mass PJ, van der Wal, Haverkate I, et al. (1996). Euthanasia, physician assisted suicide and other medical practices involving the end of life in the Netherlands, 1990-1995. New England Journal of Medicine 1996; 335:1699-1705.

[20] Kuhse H, Singer p, Baume P, Clark M, Rickard M 1997. End –of-life decisions in Australian Medical Practice. Medical Journal of Australia 166: 191-196

[21] A.van der Heide, B.D. Onwuteaka-Philisen, et al, 2007, End of Life Practices in the Netherlands under the Euthanasia Act, New England Journal of Medicine. 356 (19), p1957

[22] Rietjens JA, van der Mass PJ, et al 2009. Two Decades of Research on Euthanasia from the Netherlands. What we have Learnt and What Questions Remain? Journal of Bioethical Inquiry Sep: 6(3): 271-283

[23] van Alphen, Jojanneke E, Donker, Ge A, Marquet, Richard L, (2010). Requests for euthanasia in general practice before and after implementation of the Dutch Euthanasia Act. The British Journal of General Practice. Vol 60, No: 573, 263-267(5)

[24] Department of Human Resources: Oregon.gov, 2009 Summary of Oregon’s Death With Dignity Act, 2009, Available from: <http://oregon.gov/DHS/ph/pas/docs/year12.pdf> 15th May 2010