Wednesday, 22 May 2013

Rights or Wrongs of the Faehrmann Bill

This month, The Hon Cate Faehrmann MLC introduced her Rights of the Terminally Ill Bill 2013 into the upper house of the NSW Parliament. Few pundits expect it to pass.

This commentary reflects on the title:


In a departure from the naming convention of recent euthanasia bills, particularly in South Australia, Ms Faehrmann has returned to the name given to the first and only successful bill presented to an Australian parliament*. The ‘Rights of the Terminally Ill’ is, at least, far more accurate in describing the intents of the bill than ‘dignity in dying’ or ‘dying with dignity’ or other variations in recent use.

So, what are the ‘rights of the terminally ill’? We could (and should) argue that there is, or should be, a right to equal access to quality care, pain and symptom management for all. We should also uphold the right to be heard and to make informed decisions about the legitimate interventions that a patient may accept or refuse.

But the ‘right’ referred to here is what is often referred to as ‘the right to die’. If we concede that this is a ‘right’ then we need to question why, in this bill, is it restricted only to those who are terminally ill?

Exit International and others argue that anyone who is over the age of 18 and not suffering from a mental illness should have the ‘right to die’. But if this bill were to be framed in such broad terms, making access available to virtually anyone, I doubt there would be a politician anywhere who would support it. So, the restriction to the terminally ill only is at least partially an attempt to make the bill more palatable to the body politic.

I accept that there are those motivated by the plight of those who endure terminal illness; but once we begin to talk about ‘rights’ we are entering a much larger realm of discussion with significant consequences for society.

If we create such a right it stands to reason that it would be discriminatory to restrict its access to only the terminally ill. We would be creating a human right to die. Human rights by their very nature must have universal application.


This invites the conclusion that, rather than creating a right for a limited few, as the bill’s title suggests, we would in reality be creating a right for all and then limiting availability to just a few.
Not convinced? We can look at it another way: If Faehrmann’s bill were to pass and become law, it is inevitable that, at some future moment, that someone will push to extend the law to include others. Think of people in chronic pain who are not otherwise dying, for example; or people like UK locked-in syndrome sufferer, Tony Nicklinson. It is not hard to imagine a person or persons tugging at our heart strings on current affairs programs and talk back radio arguing their case. All they would need was an MP to champion their cause via an amendment bill.

What would be the focus of such a debate?  Nothing more than the extension of the existing qualifying criteria. The argument about whether or not to create a ‘right to die’ was dealt with in the previous bill creating the opportunity for this expansion. Moreover, there would be little point in objecting to such an expansion as to do so would be seen as discriminatory by denying someone access to an established right in law.

Faehrmann’s bill, like all others, creates an exception to the Criminal Code of homicide. This is a serious step indeed. Whether by extension, as described above, or by the natural inclination to test the limits of the law in practice, once the clear bright line has been crossed, incremental extension in some form is inevitable.

Make no mistake: cross that line for some and we cross that line for all.

*The Northern Territory passed the Rights of the Terminally Ill Act in 1995. It survived approximately nine months before being overturned by the Federal Parliament.

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