Address to the Australian Society of Anaesthetists by The Rev. Prof. Michael Tate AO 1 October 2012 As a member of a panel on “End of Life Choices”, together with Dr Philip Nitschke, Prof Michael Ashby and Dr Kenneth Hillman. Hobart, Tasmania.
In considering the topic “End of Life Choices”, it is essential that we look at the very large canvas – the Big Picture. I will be looking at the overall social framework: the delicate interplay of individuals (the terminally ill, those compassionately concerned) and other elements of society such as parliament and the medical profession.
Dr Nitschke has asked you to focus on one element, one scene on the canvas: the autonomy of the person seeking to intentionally bring about his or her death earlier than would otherwise occur.
But, that is not what is at stake. After all, suicide, or attempted suicide, is not a crime.
He is really arguing for the autonomy of another person to intentionally facilitate that early death, for example, by direct intervention (euthanasia), or by assisting suicide.
Our focus should shift to that person and the question to be asked: What is she or he being asked to do?
The answer to that question is also a rebuttal to Professor Ashby’s assertion that society should not intervene here because no harm is being done. He is an English liberal in the tradition of John Mill.
But, harm is being done: intentionally facilitating an early death. The relevant question is, does the consent of a person to this procedure excuse the culpability of the active party?
Society has for centuries answered, “No”. It has done so because there is a different ethical principle at stake, one best seen in a very wide perspective.
The Big Picture:
How big is the Big Picture? Very big!
Let me take you to an apparently unrelated area of the Law.
During the Iraq War an RAAF flight of Hornet aircraft swerved away from the target allocated to them because the lead pilot could not be sure that the target was military infrastructure rather than civilian.
I teach my students about war crimes and the International Criminal Court. I start by emphasising the basic distinction between using deadly force against combatants, on the one hand, and using deadly force against those who are not posing any lethal threat at all, for example, civilians or POWs.
That is the ethical basis of all the legal principles which try to civilise the waging of war.
The very same bedrock social or communal principle is currently endorsed or protected by the Tasmanian Parliament in the Criminal Code.
One cannot act with the intention of bringing about the death of a person who is not attempting to harm you whether by outright killing or assisting a suicide.
The Criminal Code is not simply a catalogue of prohibited conduct. It is much more a statement of core values which, I believe, keep a society as a community of safety and trust, especially for the most vulnerable.
To abandon the principle that one can only use lethal means against someone threatening lethal force against you, does threaten the difficult project of building up such a community of safety and trust.
The Medical Profession:
No doubt, you can deal better than I can with the question of the likely impact of the mooted change on the medical profession and its allied co-workers.
I am speaking of the re-orientation of your relationship with a patient or, rather, the re-orientation of expectation and trust of patients, or prospective patients, with the medical profession. Currently it is anticipated that you will do what you can to preserve life up to the boundary of providing futile or unduly burdensome treatment.
Dr Hillman has very usefully drawn our attention to the possible misuse of Intensive Care Units by other personnel in a hospital who are not well versed in End of Life care, and therefore do not allow the dying process to unfold at its own pace.
In thinking about this presentation, I thought I must avoid eye-glazing statistics. But, I was Ambassador to the Netherlands, so perhaps you will allow me to mention the Netherlands as a country with a population of about 19.5 million and a similar sort of society to Australia’s.
According to Dutch media last week, in 2011 there were 3,695 reported euthanasia deaths, and the Lancet meta survey of 2010 tells us that 23% of all euthanasia deaths are not reported.
Do you not think that over 4,000 medically intended and administered deaths would have an impact on the way in which Australians would consult and trust their doctors, or the profession more generally?
Suffice it for me to say that I believe the current AMA statement of ethical principles in this area does not stem from the need to make sure that doctors act within the law.
They stem from the same appreciation of core values as animates the Criminal Code. This is a very powerful coinciding of perspectives at the moment.
If there were a change to the criminal law, it is arguable that the AMA’s statement would continue to guide and govern your “end of life” decisions.
Intentionally killing a patient by lethal injection or deliberately assisting a suicide might not have penal consequences but it could still be judged unethical by your peers with whatever consequences flow from that.
The Criminal Justice system:
But, it is the Criminal Code which Dr Nitschke wishes to change, needs to change if killing by lethal injection (currently murder) or provision of a suicide pill (currently assisting a suicide) is not to be pursued as a crime in certain circumstances.
The fact is that the operation of the Criminal Code is not that of a heartless automaton with draconian sentences automatically awarded for those crimes at the moment. Dr Nitschke’s pointing to the highest possible sentence as though it were commonly awarded, or threatened as a deterrent, was quite misleading.
There are agencies within the criminal justice system which can, and do, exercise a moderating influence on the operation of the Code so that a range of factors such as compassion and personal autonomy can be taken into account without sacrificing society’s strong statement of its core values.
First, the Director of Public Prosecutions has a discretion not to prosecute even where all the elements of a crime are present. One can read the guidelines issued by this statutory officer.
The primary question is: does the Public Interest require a prosecution to be pursued? The DPP can take into account:
- mitigating circumstances;
- whether the consequences of any resulting conviction would be unduly harsh or oppressive;
- the attitude of the victim of the alleged offence to a prosecution. (In this case, obviously, to a prospective prosecution!)
The discretion could be exercised to distinguish for example, between the case of a compassionate spouse helping the death of a husband or wife, and murder for financial gain masquerading as euthanasia.
To be honest I do not believe the discretion of the DPP would extend to a medical professional’s involvement.
Then, if a trial were to go ahead, and a jury were to find the facts against the accused, then the same sort of mitigating factors will affect the Judge’s awarding of a sentence, if a conviction is indeed recorded. Savage penalties are not mandatory.
The operation of the Criminal Code is currently moderated by those independent agencies, the DPPs and the Supreme Courts, in ways which serve society well without extinguishing Parliament’s expression of fundamental core values.
I believe that what I have outlined is a more prudent social arrangement than trying to draft legislation in this area, a notoriously difficult task to which I now turn. Difficult, of course, unless one wants to provide for what Dr Nitschke calls in his abstract for today’s paper: “… the provision of the means for reliable and peaceful death to all”.
In this morning’s forum he described the group as “every person of sound mind, not a child”. I take it that he would also exclude adolescents, as, at a UTAS forum last year, Dr Nitschke advocated that “the suicide pill should be lawfully available on supermarket shelves for those over 18 and responsible and rational”.
IN PLAIN PACKAGING, I HOPE!
This would certainly reduce the complexity of drafting, about 100%. But does this seem at odds with the fantastic raising of awareness of the prevalence of suicide, perhaps most devastatingly amongst young people?
Has anyone asked “Beyond Blue” or “Lifeline” what they would make of powerful contradictory messages bombarding people at critical junctures in their lives – perhaps especially young people lacking perspective?
But, I know of no proposal, certainly before the Tasmanian Parliament, which has not sought to limit the scope of any repeal of the relevant sections of the Criminal Code.
I am not going to list all the pitfalls which have bedevilled attempts so far. But, we need to remember that what is at stake is a person’s life.
I am old enough to remember the debate on the abolition of capital punishment in Australia. A major persuasive argument for the abolition was the fallibility of the criminal justice system in assessing the guilt of the accused. There are a myriad of cases of Appeal Courts and Royal Commissions overturning convictions of those on death row who would otherwise have been killed with all the authority of the State.
What about the fallibility of the assessment that consent to assisted dying was free from coercion or other undue influence (by the way, just as we are becoming more aware of elder abuse)?
What about the fallibility of the assessment that the consent was not distorted by depression or some other mental incapacity?
The drafting of the legislation and its day to day operation must match the gravity of the risk that a person might die earlier than they would have freely assented to as a wholly mentally well person.
By the way, the last Tasmanian “Dying with Dignity” Bill did provide for a third party review of the doctor’s assessment of the consent — by the Coroner! Which as the Law Society pointed out, would be somewhat after the event.
Am I saying that society has devised a totally satisfactory way to deal with this matter?
Members of your profession must be particularly frustrated by those cases of palliatively futile unrelievable suffering. But would you consider money better spent on taxpayer funded scheduled fee payments for 4,000 cases of euthanasia, or on a taxpayer funded equivalent amount devoted to research into the alleviation of such suffering?
We certainly need to monitor and critique the moderating influence of the DPP and the courts on parliament’s safeguarding of the social principle I have emphasised.
I am quite sure that this is a better course than getting tied up in the minutiae of 15 subsections of a statute trying to regulate intentionally bringing about the death of others who are doing us no harm.
Let us maintain that bedrock principle which animates your profession and which also finds a proper home in its protection by the criminal law of the various jurisdictions of Australia.
Overseas readers please note: Beyond Blue and Lifeline are national agencies working to prevent suicide. Paul.
Professor Tate is also a contributor to the excellent Tasmanian website RealDignityTas.com