"No one should be reliant on Dr Death" was the closing line of Dr Nicholas Tonti-Filippini's rebuttal of the recent media in The Age newspaper and elsewhere that surrounds the admittance in late April by Melbourne doctor, Rodney Syme, that he had provided nembutal to a terminally ill Victorian man in 2005.
Dr Syme, 78, said after watching state Parliaments reject 16 euthanasia bills over the past 20 years he was ready to "out" himself and be charged over Mr Guest's death because a court case could set a useful legal precedent for doctors who are too scared to help terminally ill people end their own lives.
"I just believe passionately that there are too many people suffering too much not to try a little bit harder to change things, and a lot of these things, it seems, will only be changed in a court decision, so bring it on," said the urologist and vice-president of Dying with Dignity Victoria.
''I said in 1992 that if the law wasn't changed in 10 years I would create a court challenge and here we are 12 years later and it still hasn't happened. It was beginning to get to me. I'd think, where is my courage?''
Before he died, Mr Guest spoke on radio about his illness and the fact that he wanted to die a peaceful, dignified death at the time of his choosing. He also made it clear that he intended to end his own life.
After Mr Guest’s death, Dr Syme told various media outlets that he had given him ‘‘information about barbiturates’’ and ‘‘medication’’ which prompted two police interviews in 2005 and 2008. But Dr Syme said he never answered questions about whether he had given Mr Guest Nembutal because it would have given police ''the full hand' to prosecute him.
''I just wasn't prepared, I didn't have the courage to take it on at that particular time,'' he said.
The case has eerie echoes of Dr. Jack Kevorkian - also known by the moniker of 'Dr Death'. In 1999 Kevorkian was charged with second-degree murder in Michigan after he had filmed himself providing a euthanasia death and passed the film on to a US television network. Differences should also be noted: Kevorkian actually killed his patient while Syme provided Steve Guest with nembutal, the difference being that one was euthanasia, the other most likely physician assisted suicide.
The Victorian Police have said that they are investigating the matter but have yet to advise further if and when charges may be laid. Professor Tonti-Filippini is skeptical that any case would proceed against Syme. In various media engagements I have argued that the police need to act for the sake of the law and that, the proper place for debate on whether euthanasia should be legalised is in the Parliament and not the courts.
Dr Nitschke has often said that the Criminal Code against assisting in suicide is anachronistic given the fact that suicide itself is not against the law. Suicide was decriminalised (note: not legalised) some time ago precisely because it makes little sense to add a criminal charge to the survivor of a suicide attempt. The reason assisting in suicide remains an offence is really at the heart of this matter: as a society we actively discourage and shun suicide as an answer to personal difficulties and we seek to protect people who are vulnerable from exploitation, suggestion or encouragement towards such an act.
Syme suggested in the same article that,'(a)fter talking with Mr Guest for two hours on July 12, 2005, he gave him the drug Nembutal. While he could foresee that he might end his life with the drug, Dr Syme said his primary intention was to improve his mental health and allow him to do what he wanted to do in the last days of his life.
‘‘I did advise and support Steve Guest in his terminal illness, and gave him medication (Nembutal) which was remarkably effective palliation as he gained the strength to advocate for law reform over the subsequent two weeks,’’ Dr Syme said in the statement.'
Two significant concerns arise from this statement. Firstly, Syme is attempting to equate his actions with the principle (or doctrine) of Double Effect: where an action taken to effect a good outcome may have a secondary, foreseen but unintended, negative outcome and where, on balance the good effect outweighs the risk attached to the secondary outcome.
Double Effect is most commonly explained in a medical situation where an increase of drugs to manage symptoms may have the unintended effect of shortening life. Applied properly, it is considered to be appropriate care given its clear palliative intention. As Tonti-Filippini explains, these days, this is rarely if ever the case:
The Age’s recent reporting confuses the issue of supplying a fatal dose of barbiturate and the much more nuanced matter of prescribing pain relief that also shortens life. There is a world of difference between providing treatment of pain with foreseeable side effects that contribute to a shortening of life, and deciding to end someone’s life with an overdose of a sedative. In the former case, the modern-day issue would only be one of competence, because now there are alternative palliative care measures that avoid the need to give morphine at doses that suppress respiration. Drugs are given in combination and carefully titrated to ensure safety and effectiveness. Palliative care is more likely to lengthen life than to shorten it. People often live longer when their symptoms are relieved and they are well-supported.
Dr Syme knew full well what Mr Guest's intentions were. Again from The Age article:
"Before he died, Mr Guest spoke on radio about his illness and the fact that he wanted to die a peaceful, dignified death at the time of his choosing. He also made it clear that he intended to end his own life."
It is not as though Mr Guest had no other options. However, in the full transcript of The Age's video interview Syme admits:
Actually, whilst that was true my reason for providing him with medication was to give him control. Giving him control was the best palliation he could possibly have. So whilst on one side you could possibly argue that I was assisting in his suicide, on the other hand I would argue that I’m giving him the best possible palliation – relieving the psychological and existential suffering which was paramount with him.
But, as Professor Tonti-Filippini also observed, that's not really the full story:
Throughout the Steve Guest saga, my concern was that he was not receiving the care he could have received if palliative care professionals had been involved. It is a major concern that our Dr Deaths seem to be providing an alternative for chronically ill people that lacks the multidisciplinary support and the expertise needed to manage patient care well. The last person I would want to see at the end of my bed would be a lone Dr Death. I would much prefer to see a palliative care nurse and all that her competent presence implies for a team of expertise and support.
A sense of control at the end-of-life is very important. Studies acknowledge this. But it is false to claim or assume that the only way to deliver control is via the provision of a controlled substance or at the end of a lethal injection. Good care also provides such control, perhaps even more control.
It is clear from the reports that Mr Guest did not want to access palliative care services. Syme claimed that he (Mr Guest): "was terrified of being admitted to a hospital or hospice for the rest of his life." Whether or not Mr Guest had made this decision based on a full understanding of what palliative care services might be able to offer him, we cannot know; but what we can say is that there would have been some likelihood that such services could have been delivered in the home for most, if not all of Mr Guest's remaining days or weeks.
Ultimately, Mr Guest made a choice not to access these services. We must recognise this choice, informed or otherwise, as an exercise of Mr Guest's right to make such a determination. However, it is not up to the state to endorse every choice of every person in every circumstance. To do so would not be to provide freedom of choice, as some suppose, but to usher in the possibility of anarchy, where an individual can choose to do whatever he or she may like without any reference to the laws of the land, the risk to others or acceptable social and civic standards. Regardless of the circumstances, which we acknowledge were difficult in the extreme, none of us is or should be completely free from the constraints that living in a society demands of the individual for what is understood as the common good.
Whether or not the Victorian Police ultimately take action against Dr Syme is something that we cannot really predict. An admission is one thing, but the laws of evidence and other unknown realities may weigh against it.
What we can say, in reflection upon the Judges comments from 1999 and the Kevorkian case:
"This is a court of law and you said you invited yourself here to take a final stand. But this trial was not an opportunity for a referendum. The law prohibiting euthanasia was specifically reviewed and clarified by the Michigan Supreme Court several years ago in a decision involving your very own cases, sir. So the charge here should come as no surprise to you. You invited yourself to the wrong forum. Well, we are a nation of laws, and we are a nation that tolerates differences of opinion because we have a civilized and a nonviolent way of resolving our conflicts that weighs the law and adheres to the law. We have the means and the methods to protest the laws with which we disagree. You can criticize the law, you can write or lecture about the law, you can speak to the media or petition the voters."
The proper forum for arguing for a change to the law is the Parliament. Professor Tonti-Filippini also made appropriate and timely reference to his own circumstances which, by any reasoned understanding, is a prime example of why the law should not change:
The euthanasia proposals are invariably discriminatory against chronically ill people like me. The proposals create a separate category of people, however we are described, whose lives are contingent upon our will to keep living. This is why most politicians have opposed specific legislation even while claiming to support euthanasia. The fact is that legalising the killing of a small category of people changes everything for us.
Living with a chronic illness means dependency upon a team of people who are actively engaged in supporting and sustaining us, and making life liveable. If euthanasia were lawful, my physician, and the nurses providing dialysis, would at least have to advise me of the option. That would utterly change the relationship. It would be like a football coach declaring that defeat is an option.
People with chronic illness struggle with depression. It is simply part of the advance of disease that loss of ability and increased symptoms are very challenging. Making the adjustment, at each stage of the way, needs all the support we can get. We do not need to have our legislators write us off. We do not need a law that would have family members and caregivers conscious of the other option, and the resultant feeling that we could relieve them of our burden.
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