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Ethical Rights

...because it's right to be ethical

Euthanasia

Part A.    Arguments in support of voluntary euthanasia

A.1    Rights of individuals in a democracy

  1. John Stuart Mill, one of the architects of democratic doctrine, advanced the principle that ‘the only purpose for which power can be rightly exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant’. Accordingly, democratic societies can make laws to prohibit murder and robbery, but should not make laws to prohibit sex before marriage, gay marriage, mandate religion, or prohibit voluntary euthanasia. This is because patients who desire euthanasia for themselves are not physically harming other people.
  2. Mill’s philosophy can be reduced to the statement that, ‘in any legal issue between an individual and the state, the burden of proof for showing that an individual’s behaviour is undesirable, always rests upon the state, not upon the individual’. The onus is thus on those opposed to euthanasia to substantiate why voluntary euthanasia is fundamentally flawed. 
  3. The concept of individualism is fundamental to democratic political theory. In a democratic society, individualism posits that latitude be given to individuals to behave as they wish, and to develop and satisfy their interests. Mill stated that ‘Over himself, over his own body and mind, the individual is sovereign’. To deny a person the right to live his or her life as he or she wishes implies that each individual does not know what is best for himself or herself. 
  4. Mill rightly acknowledged that that principle was only meant to apply to people in the ‘maturity of their faculties’. That is, only those who are mentally competent, which excludes patients with dementia and those with clinical depression (while these conditions persisted), would be able to make a well-informed decision about voluntary euthanasia.
  5. Individuals can make important decisions about their bodies when they are young, for example, they can decide to participate in dangerous sporting activities. Women can choose to have an abortion. Perversely, as voluntary euthanasia is illegal in many jurisdictions, it would seem that somewhere between the ages of twenty (when some women might have an abortion) and seventy (the age of some terminally ill patients) women lose legal control of their bodies. 
  6. The clergy, who seem to be the most vocal opponents of voluntary euthanasia, has imposed their values on other individuals through their opposition to a right to die, but I suspect that they would not entertain a reciprocal arrangement that impinged on their individual freedoms. A person’s right to choose their religion is no more valid than a person’s right to choose their end-of-life option. In the spirit of Voltaire, the clergy and other euthanasia opponents most certainly can remonstrate with people requesting euthanasia to change their minds, but they ought not to be able to compel them by insisting on a legislative fiat in a democracy. Voluntary euthanasia is morally just precisely because it is voluntary.
  7. On the other hand, voluntary euthanasia advocates do not mandate that all people must have voluntary euthanasia, but rather that everybody be permitted to have the choice. For an issue as personal as one’s own life and death, the choice of how you might die is one of the most personal decisions an individual should make. To be denied the right to make this decision is a blight on modern democracy.

A.2   Whose life is it anyway?

  1. In English speaking countries, the euthanasia cause reached legal prominence in the early 1990s. Sue Rodriguez was a Canadian who died in 1994 from Lou Gehrig’s disease, but not before taking her case to the Canadian Supreme Court in an attempt to gain permission for her own legal euthanasia. In explaining her situation, she questioned that if she cannot give consent to her own death, then whose body is it? ‘Whose life is it anyway?’ After passage of the Euthanasia Laws Act in Australia, a majority of Australians would have asked the same question. 
  2. Bob Dent, the first of four people to die under the Northern Territory’s Rights of the Terminally Ill Act, was adamant that the beliefs of others should not be forced on individuals. He said ‘What right has anyone, because of their own religious faith to which I do not subscribe, to demand that I must behave according to their rules’.
  3. Sue and Bob reflected what most people think: that a well-informed, mentally competent patient is best placed to make a decision about their own body. How could anybody, or any government, deny that simple fact?

A.3   Popular opinion in Australia

  1. The fact that many people favour a particular policy does not make it ethically ‘right’. However, when it comes to public policy, and a choice of what people want for themselves (rather than others in the population), popular support for a policy is a strong political argument in its favour. 
  2. Public polls have shown that from 66–85% of Australians[1], with an average of about 75%, support the option of active voluntary euthanasia. The nature of the question often asked in these polls was ‘If a hopelessly ill patient, experiencing unrelievable suffering, with absolutely no chance of recovering, asks for a lethal dose, should a doctor be allowed to give a lethal dose or not’. 
  3. The same polls show that voluntary euthanasia is opposed by less than one in six Australians. A voluntary euthanasia regulatory regime is one way to give effect to Australians’ overwhelming preference for a voluntary euthanasia regulatory framework. The other is to retain the status quo, but this limits options of a peaceful death to those with the information, capital and means. 

A.4   The current Australian situation

  1. There are a number of organisations in Australia that advocate for voluntary euthanasia. Legislative reform is the main objective of the state and territory-based Dying with Dignity organisations, which do an important job. Their work is complemented by Go Gentle Australia, which was created in 2016 to spark a national conversation about voluntary euthanasia laws. 
  2. While legislative reform is also a desired objective of Dr Nitschke’s organisation, Exit International, the majority of Dr Nitschke’s time, however, is devoted to complementary activities, in particular undertaking research and providing information on end-of-life options to the elderly and seriously ill. 
  3. His information and guidance not only fills the regulatory gap left by politicians who have been unable to regulate voluntary euthanasia, but 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 information provided by Dr Nitschke, thousands of elderly Australians, and many hundreds of Canberrans, have acquired their means of effecting a peaceful death (stashed well away from inquiring eyes) or other equipment. That is also why so many support him. People, including many average elderly Australians, need information on drugs now and cannot wait for politicians to legislate for voluntary euthanasia. 
  4. Other Australian doctors have admitted to assisting with voluntary euthanasia. Voluntary euthanasia campaigner and Victorian urologist Dr Rodney Syme admitted in early 2014 to giving a dying man (with oesophageal cancer) the drug Nembutal two weeks before the patient killed himself with it. Yet no legal action has been taken against Dr Syme and nor should it be. He acted in the best interests of his patient. 
  5. Australian doctors have been assisting patients with voluntary euthanasia for many years (a survey indicated more than a third of doctors have done so), albeit in an illegal environment. All of this activity is unrefuted, and no serious efforts are being made to stop any of this activity. 
  6. These matters suggest the following perplexing question. If governments are not intending to prosecute doctors who humanely assist with voluntary euthanasia when it is illegal, why do governments object to its legalisation? 
  7. Furthermore, many politicians have objected in the media to Dr Nitschke and other physicians operating in an unregulated environment. It would be preferable if politicians regulated voluntary euthanasia, rather than complaining about what is happening in an unregulated environment. 
  8. In the words of Marshall Perron, the former Northern Territory Chief Minister, who helped introduce the Northern Territory’s Act, ‘It is surely preferable to have voluntary euthanasia tolerated in particular circumstances with stringent safeguards and a degree of transparency, than to continue to prohibit it officially while allowing it to be carried out in secret without any controls’. 

A.5   The issue of rational suicide

  1. The different voluntary euthanasia regulatory systems in numerous jurisdictions worldwide all seem to require that only people with a terminal illness are eligible. However, there have been a number of recent situations where elderly Australians, who have not been terminally ill, have committed suicide with the aid of Nembutal. I categorise such deaths as ‘rational suicide’ because these decisions have been made, it seems, by mentally competent people who are neither depressed nor terminally ill. Rational suicide is not a new issue in Australia, but the level of public debate on the issue is immature. 
  2. 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 nor 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.
  3. 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. It is worth reiterating that while many people commit suicide, it is legal—perversely, voluntarily gaining assistance with suicide is illegal. It was not possible to dissuade these women from their suicides, and regrettably or not, this will sometimes be the case. 
  4. Rational suicides such as those above would seem to be consistent with Mill’s philosophy on the rights of an individual. I personally know many people who are not terminally ill, but who would consider taking Nembutal if a number of untreatable chronic illnesses, debilitation or other personal circumstances were such that they were to adversely affect their dignity or quality of life. Current regulatory systems will not address their concerns about their quality of life, which are no less valid because of their lack of terminal illness. Rational suicides will continue to occur in an unregulated environment, and also in a regulatory environment that places a strong emphasis on the involvement of the medical profession in end-of-life decisions. 
  5. In any civilised society, people do not want the option of euthanasia to be made available to those with impaired mental faculties­, including the depressed. Good voluntary euthanasia legislation must set the limits so that only people with serious illnesses or poor quality of life—this could be broadly defined—can access drugs such as Nembutal, and that people who are depressed or anxious, or otherwise not of sound mind, cannot access voluntary euthanasia. Any proposed legislation in Australia would, in the short term, probably draw the line at the patient being terminally ill. That is a wonderful start, but ethically, it leaves many Australians in the position where they will still be aiming to obtain drugs illegally, just in case their circumstances worsen. In regulatory terms, more needs to be done.

A.6    Tolerance in Australia’s multicultural society

  1. Over many years there has been public debate on Australia’s diverse and multicultural society. Tolerance of the others’ values is an important element of multiculturalism, however it is defined. To avoid a ‘tyranny of the majority’ situation, the values of diverse cultural, indigenous, ethnic and other minority groups must be respected, so long as they are not imposed on others. 
  2. It would surely be hypocritical to claim that one is tolerant of others but simultaneously insist that their values about how they live their individual lives, such as a desire for the option of voluntary euthanasia, are wrong and cannot be practised. If some people object to voluntary euthanasia, they need not ever request euthanasia.
  3. People can believe what they will; freedom of belief is important. However, if certain groups are proposing their belief system as a basis for public policy, including on euthanasia, it needs to be assessed, analysed and rejected if found wanting. If the underlying values of these groups are unethical, particularly if they are discriminatory or hypocritical, they should be challenged and criticised. Some religious people choose to worship a god that, according to their scriptures, has murdered people. They choose to belong to religions that discriminate against women and homosexuals (despite claiming forms of equality). With such perverse and discriminatory values, they cannot take the moral high ground and demand that other people must conform to their values and eschew the option of voluntary euthanasia. 
  4. Tolerance does not mean forcing one’s views on others. Tolerance for other people means people have the right to believe and act on their beliefs, so long as these beliefs do not adversely affect the rights of others.

A.7   Freedom of religious expression

  1. An argument relates to s.116 of the Australian Constitution. Section 116 states that the Commonwealth shall not make laws ‘for prohibiting the free exercise of any religion’. The clergy and most other euthanasia opponents rely on Christian ethical values. Clearly, those who support euthanasia rely upon different ethical values, such as might be compatible with a ‘religion’ based on the primacy of the quality of life, rather than, for example, a Christian ‘existence for its own sake’. It could be argued that legislation that prohibits people from practising euthanasia could be in contravention of s.116. This has not yet been challenged.
  2. It could be argued that Jainism and some other religious denominations support euthanasia, and if so, full practice of some religions could be prohibited by an unconstitutional law. 
  3. Despite the more liberal views of many Christians, the clergy has been particularly outspoken against voluntary euthanasia. It is regrettable that their views do not reflect church membership and have been manifested in legislation that affects people who do not share their religion. The rights of individuals to live their lives as they wish, without being constrained by the religious values of others, must be upheld.

A.8   Economic arguments

  1. There are limited resources available for health care in the Australian economy. Governments are frequently engaging in cost-cutting exercises, which are their prerogative, and this places further pressure on the health budget. 
  2. If people who want voluntary euthanasia are unable to obtain it, then Australian taxpayers’ money is being spent to keep them alive when that outcome is not wanted or appreciated. It could otherwise be available for additional infant care, cancer therapy or emergency services, where it could save lives and improve the quality of life for others who want it. Such health budget savings, possibly of the order of $100 million per year, could also be spent on additional palliative care.
  3. One must question, as a serious matter of public policy, why public money should be spent on keeping patients alive who do not want to live, in preference to patients who do.

A.9   The human factor

  1. Throughout this paper I have been referring to the ‘patient’ or the ‘terminally ill patient’. These are impersonal terms, disguising the fact that patients are people—they are people with feelings, and they are loved by friends and relatives. These people must be treated in a humane and compassionate way. Australians are now living longer, and our ailments are often well treated with drugs. But for some people these drugs do not provide a good quality of life, and they may suffer from continuous pain, discomfort or loss of dignity. Some people would like to choose the option of euthanasia. 
  2. To deny terminally ill patients the right to euthanasia is to condemn them to a miserable existence, contrary to their wishes. It is hard to establish any difference in moral character between someone who denies a legitimate request for voluntary euthanasia, and who subsequently watches that person die a slow and painful death, and someone who watches a cancer-ridden pet writhe in agony without having it put down. Most people—around 75% of Australians—would argue that if you are terminally ill, are of sound mind and not clinically depressed, and choose euthanasia, then it is morally right. Many others argue that this right should be extended to include some who are not terminally ill, but perhaps seriously ill, or with many ailments, but who make a well-informed, rational decision about their end-of-life options. After all, it is their life. Nobody would want anyone else interfering with his or her own life.
  3. For acts such as voluntary euthanasia that impact directly on an individual, the moral and humane thing to do is what is right for the individual, and only each individual knows what this is. Voluntary euthanasia is moral and humane because it is what the individual wants. That accords with common sense. It is difficult to deny patients the option of voluntary euthanasia when the patient considers voluntary euthanasia is in their own best interest.
  4. In summary, not providing the option of voluntary euthanasia is inhumane and callous. In a humane society the prevention of suffering and the dignity of the individual should be uppermost in the minds of those caring for patients. When the quality of life is more important than the quantity of life, voluntary euthanasia can be a good option.

 

[1]     See https://theconversation.com/factcheck-qanda-do-80-of-australians-and-up-to-70-of-catholics-and-anglicans-support-euthanasia-laws-76079, accessed 29 January 2018. 

David Swanton

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