Time for euthanasia to be regulated

By David Swanton 

Posted Monday, 11 August 2014 in The Canberra Times

Posted Friday, 29 August 2014 in ON LINE opinion - Australia's e-journal of social and political debate

www.onlineopinion.com.au/view.asp?article=16633 

In recent weeks, Australia's most outspoken voluntary euthanasia campaigner, Philip Nitschke, has been subjected to harsh criticism from some euthanasia supporters, including the ACT's Mary Porter and the chairman of beyondblue, Jeff Kennett.

Given that this criticism is based around actions concerning a recent case of 'rational suicide', an issue that has been raised before with barely any public criticism, I suspect these commentaries are part of a broader campaign to undermine Dr Nitschke, the director of Exit International.

It's hard not to be perplexed by the hypocrisy of this criticism. As people with public standing and substantial influence, why don't Ms Porter and Mr Kennett work to fix the voluntary euthanasia regulatory system, rather than complaining about Dr Nitschke operating in an unregulated environment? There are options the pair can explore.

Does Dr Nitschke push the legal limits in the current environment? Yes. Are there risks that people who are depressed, not elderly or terminally ill might access information in the unregulated environment? Yes. But these risks are mitigated somewhat as Exit members are required to be either seriously ill, notionally older than 50, and not clinically depressed. However, exceptions are permitted, and I'm one such exception.

Since I was in my thirties, I have been actively supportive of the fundamental human right to choose what is right for one's own body. I'm not terminally ill and my mental state has never been questioned.

If I had committed suicide, should Dr Nitschke be blamed? No, as I have shown no outward signs of depression, Dr Nitschke is not my physician, and people of sound mind should be responsible for their own actions.

Rational suicide is not a new issue in Australia, but the level of public debate on the issue is immature. For three years, Lisette Nigot warned Dr Nitschke that she would take her life at 80 because she will have had enough by 80. A movie (Mademoiselle and the Doctor) documented her case.

Iris Flounders chose to take her life when her terminally ill husband, Don, took his life with Nembutal. Neither Iris or Lisette were terminally ill, nor were they depressed. In both cases, the women emphatically told Dr Nitschke, friends and relatives to mind their own business.

There was barely any adverse commentary in the press on these matters, although there were ructions in the pro-euthanasia community regarding Lisette Nigot's case, particularly around where the line ought to be drawn. Dr Nitschke was then understandably surprised and caught off guard in his response to media criticism when ambushed on the most recent case of rational suicide.

We should note that while many people commit suicide, it is not illegal. It was not possible to dissuade these women from their suicides, and regrettably, this will sometimes be the case.

While legislative reform is the main objective of the state and territory-based Dying with Dignity organisations, it is also a desired objective of Exit International. Much of Dr Nitschke's time, however, is devoted to complementary activities, in particular research and providing information on end-of-life options to the elderly and terminally ill.

In pushing the boundaries of what is legally permissible, Dr Nitschke has not always endeared himself to some in the voluntary euthanasia movement. That's understandable (though it is always hoped that those working for voluntary euthanasia reform can work together).

However, his information and guidance not only fills the regulatory gap left by politicians who refuse to act, it is also immensely comforting to the many thousands of Exit members in Australia and overseas who attend his workshops and read his books on end-of-life options.

Acting on Dr Nitschke's advice, thousands of elderly Australians, and many hundreds of Canberrans, have acquired their illegal drugs (imported or manufactured, and stashed well away from inquiring eyes) or other equipment. That's also why so many support him. People, including many average grandparents, need information on drugs now and cannot wait for politicians to legislate for voluntary euthanasia.

At Dr Nitschke's ACT workshop in mid-July 2014, about 115 Canberrans were thoroughly engaged for three hours. How did Exit try to mitigate risks at this workshop? Everyone signed disclaimer forms. Anyone who claimed to be over 50 but possibly was not, was approached by me, or others, and questioned.

This process is not a grilling but an effort to ascertain the nature of their interest, and whether their attendance could be regarded as suspicious or unusual. We blocked someone whose disclaimer form indicated they suffered a depressive illness a decade earlier, until emphatic assertions, including from their partner, that their condition was no longer present.

We have refused people entry to workshops and Exit membership when their eagerness to procure drugs bordered on the fanatical or their behaviour was otherwise peculiar. And I direct people to an appropriate medical professional if there are doubts about their mental state. Nonetheless, appropriate legislation would give society more certainty about what goes on.

Politicians, parliaments, assemblies and society have so far abrogated their responsibilities for regulating voluntary euthanasia. The onus is therefore on Exit and Dr Nitschke to screen those who may not be suitable for the information provided in his books and workshops.

This is not ideal because such screening cannot be perfect, especially in an unregulated environment. Consequently, given Ms Porter's and Mr Kennett's general support for euthanasia, I propose to outline some activities that they could undertake to further the euthanasia cause, and I would be happy to work with them to ensure this occurs. In this way, their concerns about Dr Nitschke's activities can be addressed.

In addition, it would be a good opportunity for Ms Porter to act on the information she obtained during her three-week European study trip examining euthanasia.

The Commonwealth's Euthanasia Laws Act 1997 prohibits the ACT from legislating for voluntary euthanasia. But, unsurprisingly, there are ways around this. One is an issue I first raised with then chief minister Jon Stanhope, and it was raised again by Queensland University of Technology law professor Ben White at a euthanasia forum organised by Ms Porter earlier in 2014.

It is possible under section 20 of the ACT's Director of Public Prosecutions Act 1990 that the ACT attorney-general could direct the ACT director of public prosecutions (DPP) on the circumstances under which the director should institute or conduct prosecutions for an offence.

For example, the DPP could be directed not to prosecute a physician for assisting with voluntary euthanasia, so long as various conditions are met, including that the patient be assessed for the absence of any depressive illness, or perhaps that the patient is terminally ill etc.

This is not legalising euthanasia. It is only specifying the conditions under which a person assisting with voluntary euthanasia would or would not be prosecuted. Given the minor penalties that have been given to elderly Australians who have assisted a terminally ill spouse or partner to die, this would be an understandable and reasonable direction to the DPP.

The ACT Legislative Assembly would need to be onside with this proposal, and this, I suggest, is one option on which Ms Porter could focus her efforts to achieve regulatory reform.

Mr Kennett is concerned that information on end-of-life options should only be available for the terminally ill, for those for whom the dignity of life has been lost and under special conditions (presumably not for the clinically depressed). This cannot be completely assured, even with legislation. But penalties can be provided to deter regulatory breaches, so voluntary euthanasia legislation is highly desirable.

Society needs to have a clear debate about rational suicide, and given that parliaments struggle with voluntary euthanasia, any such debate is unlikely to be free of invective and visceral reactions for some time.

Unfortunately, many Liberal and Labor politicians nationally, and many Liberal politicians in the ACT Legislative Assembly, do not support voluntary euthanasia. Greens politicians are generally supportive.

Mr Kennett could usefully lobby his Liberal colleagues (even assisting Ms Porter with her proposed discussions) to legislate for voluntary euthanasia and reduce the risk that some people, including those who are depressed, could access information on end-of-life options.

Furthermore, media organisations might want to place greater emphasis on scrutinising the intransigence of politicians who refuse to establish appropriate regulatory systems despite overwhelming public support. The media might also offer a more balanced appraisal of Dr Nitschke's activities, because in a democracy, no public activities should be beyond reasonable scrutiny.

Philip Nitschke won't go away. He has been the strongest activist for euthanasia reform and the provision of information to the elderly and terminally ill for almost 20 years-in Australia, and now overseas. He has ruffled feathers and will continue to do so.

Dr Nitschke cares for people, particularly when they are at their most desperate. People will continue to derive comfort from his advocacy, determination, advice and research into end-of-life options. And despite increased diligence in mitigating the risk of information getting into the wrong hands, it will, no doubt, still occur.

However, if politicians don't like the fact the voluntary euthanasia agenda and Dr Nitschke's activities are moving into areas they don't agree with, they should establish a voluntary euthanasia regulatory framework.

Legislation will provide sureties for society and reduce the risk of inappropriate access to information. If politicians won't act, they should stand aside for those who will.

David Swanton is an ethicist, PhD scientist and director of Ethical Rights. He is also ACT Chapter Coordinator for Exit International.