The long road to legalising euthanasia in South Australia

The SA legislation aims to end intolerable suffering. Timothy K Hamilton

With the South Australian parliament passing its latest euthanasia bill to committee stage, there is a real possibility locals will be given the right to end their life.

And with an unprecedented number of voluntary euthanasia bills introduced to the parliaments of Tasmania, Western Australia, South Australia and Victoria over the past two years, other states are likely to follow.

The core dilemma in the euthanasia debate

The pro-euthanasia argument is on its strongest ground when it focuses on the intolerable suffering a minority of people sometimes face when all palliative options have been exhausted. Such people are currently condemned to a slow, painful and undignified death.

Faced with this case, it is difficult for someone who is against euthanasia to insist, on the basis that all human life is sacred, that it is wrong to kill the patient.

But under the proposed South Australian legislation, a person need not be dying; they may be suffering from a permanent impairment that has made their life “intolerable”.

An example is the 23 year old Daniel James, who was paralysed after being crushed in a rugby scrum. James was able to be killed at the Dignitas Clinic in Switzerland even though he was not dying. He simply found his life intolerable.

More recently a woman with crippling arthritis, Nan Maitland, ended her life at the Dignitas clinic on 1 March 2011. She was not terminally ill.

The current and previous proposals alike would allow a person in the position of Daniel or Nan to end his or her life in South Australia.

Yet these cases are not about a slow and undignified death, but about the quality of life - something different entirely.

The danger in allowing people to end their lives in these cases is that we send out the message that is is OK to give up on life, that the quality of life can be so poor that it is not a life worth living.

But even in the case of patients who are dying, there are some dangers.

We will not always know whether a person’s suffering is intolerable – there will be many cases where depression and the irregularity of pain will not make it easy to judge if the person has really reached their threshold.

Vulnerable patients may also be at risk. These may be patients who feel unwanted and pressured by family to end their life.

Or they may simply be patients who don’t ask questions of doctors or who, even if they do, are not in a position to understand all of the answers about their condition. Lacking a clear picture of their position makes it difficult for such patients to reach an informed decision.

Also, some terminally ill patients become extremely demanding and can try the patience of some of the nurses or carers responsible for caring for them, for example, constantly wanting to be turned in a bed or being moved from bed to chair and back again.

A terminally ill patient can be acutely aware and embarrassed by this burden, yet cannot help themselves because of their distress and pain. This may result in pressure, real or imagined, to have their lives terminated.

It is in these cases that the sanctity of life principle takes on its importance. A person should not feel that their life and suffering is a burden to others.

The legal catch 22

These difficulties explain why Australian states have not been able to enact legislation despite putatively widespread support for euthanasia, according to some polls.

The details and ramifications of each proposal give rise to a legal dilemma that has made it difficult to produce legally and ethically effective legislation.

The legal dilemma takes the form of the need to provide adequate safeguards to address these difficulties, while at the same time ensuring that doctors do not have to jump through too many hoops so that the legislation becomes unworkable.

The SA bill

The current bill, unlike its previous incarnation, tries to solve the legal dilemma by making a new defence available to any criminal prosecution under the existing criminal law.

This means that euthanasia remains prima facie a crime, and it is up to the doctor in any prosecution to prove the defence.

A doctor must prove that his or her response to a patient’s request to end their life is “a reasonable response”, that the patient was “of sound mind” when making the request, and that the patient was suffering from a “qualifying illness”.

By putting the onus onto the doctor to disprove the crime, rather than on the Crown to prove it, the proposal reduces the number of hoops doctors have to jump through to lawfully comply with a request to end a life.

Doctors would themselves have an interest in ensuring that proper procedures were followed, knowing that they could be prosecuted.

It would be up to the courts to decide what conduct is reasonable on a case-by-case basis.

Nonetheless, some difficulties remain.

There is uncertainty about what constitutes as a “reasonable response”. Although an objective test, the concept is notoriously flexible and, as judges are fond of pointing out, there are many cases over which “reasonable minds may disagree”.

Also, the definition of “qualifying illness” is wide – the person doesn’t have to be terminally ill. The definition includes someone who has suffered crippling arthritis, as in the recent case of Nan Maitland.

One of the biggest concerns South Australian parliamentarians have with the bill is it has expanded well beyond the initial concept behind its introduction - to provide a defence for doctors engaging in a practice that was already happening every day in Adelaide.

It is extremely unlikely that doctors currently kill patients like Nan Maitland.

Finally, there may be a problem with the requirement that a person be of sound mind.

In a case where a person is in “intolerable” pain, that person is not necessarily at that point able to make the decisions a person of “sound mind” can make, as they will typically be in great distress, unable to focus on anything other than their pain, and may be suffering depression.

It would in that case be too late for the person to make a decision, yet the doctor might feel obliged to end the patient’s life. The doctor would not be able to use the defence if the patient is not of sound mind at that point.

It will be interesting to see how these issues are dealt with by the South Australian parliament during the committee stage. Aside from the ill-fated Act in the Northern Territory in 1996, it is a momentous step for a voluntary euthanasia bill to get this far in the first place.