It has been interesting, and more than a little frustrating to read the comments by some South Australian MPs to the effect that the bill put forward by backbencher, Steph Key isn’t about euthanasia but, rather, about giving added protection under the law for doctors going about their normal business (or words to that effect).
It might seem obvious, but it needs to be stated that all legislation is about what the bill says and what the bill does; not what anyone tells us it will do. A cynical retort to that point might be to say, “Well, in that case, why should we listen to what you say it’s about?” Fair point, but judge for yourselves from what follows.
But before we look at the legislation itself, just think for a minute: if the bill isn’t about euthanasia, why is Phillip Nitschke in Adelaide so often? Why is he saying that he’ll set up a death clinic?
Furthermore, why does the bill amend the state’s Criminal code and, in particular, the division on homicide when, if it were about protection for doctors in the normal course of their work, the logical act to amend would be the Consent to Medical Treatment and Palliative Care Act 1995, in particular, the subsection entitled: Protection for medical practitioners etc?
The reason for the change to the Criminal Code rather than the medical and palliative care act is simple: it’s about homicide; the killing of one human being by another human being. The Key bill creates a legal defence for doctors who kill. We know that killing in self-defence or under orders in a theatre of war is a justifiable defence to an act of homicide and it is a criminal offence outside of these limited circumstances.
There is a significant difference between allowing someone to die and killing. The end may be the same, yes, but the intention is the key here. Allowing someone to die by acceptance of the fact that death is imminent; in other words, by not pursuing active treatment or withdrawing burdensome and futile treatment is not only an accepted practice, doctors are also protected in doing so by the medical and palliative act. This law is important: it allows doctors to work with confidence in the proper care of the patient and it is educative of where the boundaries lie. It is doubtful whether doctor’s actually need more practical protection than that already in place but, even if they do, this is not the bill to achieve that end.
Killing is different. The intention is to end the life by an action or omission with that specific outcome in mind. Here’s how Steph Key’s bill describes it:
(1) It is a defence to a charge of an offence against this Division arising out of the death or intended death of a person if the death resulted, or was intended to result, from the administration of drugs to the person by the defendant…
Death or intended death? Intended here clearly refers to a possible occasion where the patient did not die, but it also bells the cat: The intention was death, in other words, to kill. ‘The administration of drugs’ is simply the usual means. The bill goes on:
and the defendant proves, on the balance of probabilities, that—
(a) the defendant was, at the time of the conduct to which the charge relates, a treating practitioner of the person; and
(b) the defendant believed on reasonable grounds that the person was an adult person of sound mind who was suffering from an illness, injury or other medical condition that irreversibly impaired the person’s quality of life so that life had become intolerable to that person (the qualifying illness); and
(c) the conduct to which the charge relates occurred at the express request of the person; and
(d) the conduct to which the charge relates was, in all the circumstances, a reasonable response to the suffering of the person.
What does reasonable mean in this context? Reasonable sets the bar very low on the scale of legal defence. What is reasonable to you might not be reasonable to me; what is more, all the defendant (the doctor) need do is to assert reasonableness; that he or she believed the grounds and the response to be reasonable.
Who can contradict this assertion of reasonableness? Not the patient. Not the independent witness – there was none; not the doctor or psychiatrist who gave the second opinion – there was none. Did the patient consent? Who will ever know?
The bill goes on to describe a defence for doctor assisted suicide in precisely the same manner and repeats the defence for those assisting the doctor (nurses, other doctors and the like).
Already the bill describes only a scenario, post-mortem, where a relative or friend of the deceased makes a complaint. One assumes, though the bill is silent, that the death certificate will record the cause of death as the ‘qualifying illness’ (more on that later). If there were no witnesses at the time of death what are the courts to do with a complaint from a relative that he or she knew the deceased did not want to be killed when the doctor need simply assert the opposite?
A conviction is made all the more unlikely by this later clause in the bill that effectively directs the court in its deliberations:
(5) In determining whether particular conduct was a reasonable response to the suffering of a person with a qualifying illness, a court must have regard to the fact that the Parliament intends that conduct bringing about the end of a person’s life is a reasonable response to such suffering in exceptional circumstances, including where palliative care measures have not relieved the person’s suffering to a level acceptable to the person.
It would seem unlikely that the public prosecutor would take on an action against a doctor in these circumstances. The mention of palliative care in this clause is entirely redundant.
As I mentioned before, the workings of this bill only take effect after the patient has died and only when someone makes a complaint. It is possible that deaths in this manner, where consent was not evident or even where the patient had expressed opposition, could well occur repeatedly before anyone decides to make a complaint. It may indeed become the case that certain doctors might become known for delivering this ‘treatment’ — a perverse speciality, if you like. Nitschke’s death centre isn’t as far-fetched as some might believe.
And what of this qualifying illness? The terminology is entirely subjective. Not only does this mean that almost any illness, injury or medical condition is possibly applicable, any thought of qualifying it further by the severity of the symptoms or the prognosis is trumped by a claim that the suffering was intolerable to that person. Again, the defendant’s assertion in this respect may be all that we ever know.
True, this bill is very unlike what South Australian MPs will have come to recognise as a typical euthanasia & assisted suicide bill. But that does nothing to obscure the reality that this not only is about euthanasia & assisted suicide, but it is also the most dangerous of all bills thus far served up.