Finding the balance in South Australia’s euthanasia legislation

Amendments to the bill require doctors to get a second opinion. Rosie O'Beirne

South Australian MPs will tomorrow debate a bill which could see euthanasia legalised in the state, paving the way for other jurisdictions to follow.

The bill has been criticised by the South Australian branch of the Australian Medical Association (AMA) and the South Australia Law Society, prompting Steph Key, the member for Ashford and sponsor of the bill, to introduce some amendments.

Amendments may be sought by other MPs as well.

Parliamentary counsel has been busy drafting the proposed changes, most notably to compel the treating doctor to get a second opinion when determining whether a person suffers from a “qualifying” illness and whether they’re of sound mind.

The bill

The bill doesn’t provide a right to assisted suicide or euthanasia. Rather, it gives doctors a defence if a patient requests to have their life ended and the doctor acts on that request.

This leaves it up to the courts to decide whether a doctor’s conduct – in acting on a patient’s request to have his or her life ended – was acceptable.

So the bill avoids the need to add hoops for doctors to jump through before they can end a patient’s life and it means the patient’s request isn’t mired in red tape.

Greater defence

But the bill has been widely criticised for failing to provide enough protection for doctors and patients.

The amendments to be debated tomorrow aim to address these concerns by modifying the proposed new section – 13B – that, if passed, will be inserted into the Criminal Law Consolidation Act 1935 (SA).

As it currently stands, the new section 13B would give the patient’s treating doctor a defence against a charge of murder or manslaughter if the doctor can prove, on the balance of probabilities, all of the following:

  • the patient was an adult person of sound mind;

  • the treating doctor believed on reasonable grounds that the patient was suffering from an illness, injury or other medical condition that irreversibly impaired their quality of life to the point that it became intolerable (this is called a qualifying illness);

  • the patient expressly requested the doctor to engage in the conduct for which he or she is being charged; and

  • the conduct was a reasonable response to the patient’s suffering in the circumstances.

Some guidance is provided to the court in the current proposal to help it decide what counts as a reasonable response to suffering, such as cases where palliative care measures haven’t relieved the person’s suffering to a level they find acceptable.

Shortfalls of subjectivity

Understandably, concerns have been raised about the phrases “believing on reasonable grounds” and “reasonable response”. People will often reach different views about what conduct is reasonable under the same circumstances.

While a doctor behaving “reasonably” would probably obtain a second opinion about whether the patient is of sound mind, that requirement isn’t actually imposed by the new defence in the current version of the bill.

The second difficulty lies with the requirement that a person’s quality of life has become intolerable to him or her. How will a doctor make this determination?

Will it be safe, for example, to rely on the word of the person making the request?

If the patient says their life is intolerable, will it be sufficient to prove the patient is of sound mind to satisfy the requirement that acting on the request is a “reasonable response”?

It’s difficult to see how an assessment about whether the patient’s life is intolerable can stand independently of what the patient himself or herself tells the doctor.

Value of life

The main concern is that it may be impossible, in some cases, to tell whether a person is prematurely devaluing their life by declaring it “intolerable”.

This may not seem such a problem in cases where a patient is terminally ill and close to the end. But “qualifying illness” has a wide enough meaning to include not only the terminally ill, but also people who are not terminally ill, but merely permanently paralysed.

This was the case with Daniel James, the English rugby player who became paralysed after the collapse of a scrum, and ended his life at the Dignitas clinic in Switzerland.

With this in mind, the proposed legislation takes the patient’s word that life is intolerable as final, provided he or she is of sound mind. So a person determined enough to end their own life will be able to do so.

Here, anxieties that legislation permitting such a course of action may devalue the lives of these people seem a bit more genuine.

Solutions

The proposed amendments, if made, will address some of the shortcomings of the bill in its current form.

A patient requesting to have their life ended would need to make the request in writing, in front of an independent adult witness.

And the treating doctor would need written reports from an independent medical practitioner confirming the patient suffers from a qualifying illness.

The independent doctor would also need to confirm the patient doesn’t suffer from depression, or if they do, that the depression isn’t the only cause of the their request to end their life.

Depression doesn’t necessarily preclude a person from being of “sound mind”.

The requirement for an independent assessment would certainly assist in clarifying the rubbery concepts of a “belief on reasonable grounds” and “reasonable response”.

Next steps

Even if these amendments are proposed in their current form, it’s unclear whether they’ll be accepted.

And some of the other shortcomings identified with the current version of the bill still haven’t been addressed.

In particular, the danger that a patient could prematurely devalue their life when they’re not terminally ill remains. It still seems to be sufficient for the patient to say they find life intolerable, and to be of sound mind.

This situation departs considerably from the rationale for the bill that has been stressed by MPs in previous parliamentary discussions – that lives are already being ended every day in South Australia.

It will be interesting to see how the debate unfolds tomorrow and whether the bill is passed at its third reading.

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