Recently Tasmanian Premier Lara Giddings MP, in response to a tweet from a colleague about the problems with euthanasia in jurisdictions where it is legal replied: “Interesting that democracies from Oregon to Switzerland with Voluntary Assisted Dying have not gone back and overturned their laws - why?”
That’s a very worthwhile question. Note well, of course, that none of the jurisdictions where either assisted suicide or euthanasia is legal call it ‘voluntary assisted dying’, but we get the point.
The aphorism that ‘what is legal is moral’ springs immediately to mind. Morality here refers to the reality of the law; that our laws do legislate for morality and, like it or not, judgments are made by politicians every day that have some connection to the ‘right or the wrong’ of an issue. The euthanasia debate is no different with both sides arguing from a perspective that includes an appeal to morals at some level.
Those who support and campaign for euthanasia clearly believe that there is a ‘good end’ (no pun intended) or, in other words, a benefit to society. Benefits or ‘goods’ have a moral character. ‘What is legal is moral’ refers to the effect that any Positive Law has on the understanding of the issue legislated for in the minds and hearts of citizens’ overtime.
I’m reminded of a comment Philip Nitschke made at one of the debates we’ve had in respect to the Dutch where he said that he felt that they were quite wedded to their euthanasia legislation. And I think he’s right. But, like the Premier, it makes sense to ask, why?
The only valid conclusion, I believe is that the Dutch by and large see the right to be killed as exactly that: a universal right. Little-by-little over more than two decades they’ve seen the expansion of euthanasia to more and more circumstances, to more and more people. In that context, the recently developed mobile units give people access to their so-called ‘human right’ to be killed.
If, for example, the Tasmanian Bill is successful in its attempt to limit the application of the legislation to those with a terminal illness or a progressive medical condition, how long do you think it would be before someone who does not fit within these categories complains, saying: That’s not fair, I want to die too! I’m being discriminated against!
What then if we began another debate on an amendment bill to broaden the extent of euthanasia & assisted suicide to another sub set of the community: would we then be debating whether or not a ‘right to be killed’ is justified under our law? No, we will have already accepted that principle in passing the earlier bill. We’d only then be debating the merits or otherwise of including others.
Such a debate would effectively be a foregone conclusion – there would be no rational reason for denying that right to a particular group; to argue this way would be totally illogical not to mention discriminatory.
Dr Nitschke makes this point abundantly clear when he says that euthanasia and assisted suicide should be available to all adults of sound mind. He has a point: it follows that if what we are doing is creating a ‘right-to-die’ that rights, by their nature have universal application – they cannot then be legitimately limited to just a few.
Make no mistake: crossing the clear bright line here is never a matter of partially crossing – cross for some and we cross for all.
People understand this well enough. Within a short few years were this bill to pass, few will remember the qualifying criteria; but they will all know that Tasmania has euthanasia & assisted suicide. It will become like the wall paper in a room – something you know is part of everyday life but something you don’t focus on a great deal. It becomes normal.
The proponents of the Tasmanian bill talk a great deal about safeguards. Safeguards are really only there to try to make you, me and our politicians feel a little more at ease about supporting state-endorsed killing. Not convinced? Think about it: If someone tabled a bill along the lines that Dr Nitschke suggests – for all adults of sound mind, sick or not sick, would you support it? Would any MP vote for it?
In the last Western Australian debate in 2010 MP Robin Chapple said that he knew his restricted bill wouldn’t please everyone but that it was a ‘good start’. This makes clear the reality that someone else can come back and try to amend and expand it at some future moment. That same year in South Australia, MP Mark Parnell observed, in reflection upon the failure of his own bill, that too many safeguards would make any bill too restrictive and inaccessible; the corollary of this stark admission is that to make a bill work we must accept an increasing level of risk from abuse.
In 1994, the British House of Lords Select Committee on Medical Ethics concluded that it was impossible to set secure limits on voluntary euthanasia:
...to create an exception to the general prohibition of intentional killing would inevitably open the way to its further erosion whether by design, by inadvertence, or by the human tendency to test the limits of any regulation.
Tasmania’s own inquiry in 1998 said something similar and, most recently, the Irish High Court had this to say in summing up in the Fleming Case:
‘The evidence from other countries shows that risks of abuse are all too real and cannot be dismissed as speculative or distant’; and
‘The safeguards built into any liberalised system would, furthermore, be vulnerable to laxity and complacency and might well prove difficult or even impossible to police adequately’.
Let’s look at it from another angle. In the Tasmanian bill two and possibly even three doctors need to be involved and take the steps prescribed by law. What if this wasn’t done? Would the responsible doctor be charged with homicide? Not likely.
He or she might simply say that they’d done all that was required under the act but simply hadn’t done the final paperwork. That might be true, but it might not be true – who would ever know – the principal witness is dead. Let’s face it, they would probably get some kind of reprimand or fine for not filing the correct forms where the reality might be that they’ve gotten away with murder! In the Netherlands it is acknowledged that some of the under reporting is due to the fact that some doctors do see killing a patient as a law-given right rejecting any necessity at all for reporting. The Tasmanian Bill does talk about having a Registrar, but this is no more than a toothless tiger only appearing after the event.
Of course, there is a way around the possibility of legislation being extended in the manner I have described. Simply do like the Dutch have done and express the legislation so broadly that everyone can be included on the subjective basis of ‘hopeless suffering’. The Voluntary Assisted Dying Bill does precisely that; having a progressive medical condition that causes persistent, unrelievable and intolerable suffering is not a narrow path but a subjective double lane highway.
I know I’ll be accused of scaremongering – an epithet thrown with abandon by the Premier – but it is instructive and sobering to note that the Belgian cases of euthanasia for the sex-change-gone-wrong person and the twins that were going blind could be possible under this bill.
This type of legislation deals with life and death; that’s a far more serious a matter than our parliaments usually deal with and if we are to retain equal protection of the lives of all citizens we need to take this very seriously.
Ultimately, euthanasia & assisted suicide law is bad law because it fails to protect people. Equality is honoured and served by maintaining the current laws. Our abiding instincts to be compassionate can and should be expressed, but compassion is about bringing care and relief to people suffering, not to eliminate the sufferer. I think we can do much better than that.