Part 1. Arguments for euthanasia
1.1 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, religion, or 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 right 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 or 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, it seems 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. Members of the clergy, who seem to be the most vocal opponents of voluntary euthanasia, have 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. 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. Voluntary euthanasia supporters on the other hand do not insist 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 Australian democracy.
1.2 Whose life is it anyway?
8. 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.
9. 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’.
10. 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?
1.3 Popular opinion in Australia
11. 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 argument in its favour.
12. Public polls have shown that about 82.5% of Australians (according to a 2012 Newspoll) support the option of active voluntary euthanasia. This is an increase from 80% in 2010, and from 75% before the Euthanasia Laws Act was enacted. The question 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’.
13. Voluntary euthanasia is therefore opposed by less than one in five Australians. Enactment of the Bill would be the best way to give effect to Australians’ overwhelming preference for a voluntary euthanasia regulatory framework.
1.4 The current Australian situation
14. While legislative reform is the main objective of the state and territory based Dying with Dignity organisations, it is also a desired objective of Dr Nitschke’s organisation, Exit International. Much 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.
15. His information and guidance not only fills the regulatory gap left by politicians who refuse 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 Dr Nitschke’s advice, thousands of elderly Australians, and many hundreds of Canberrans, have acquired their illegal drugs (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.
16. 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.
17. 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.
18. 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?
19. Furthermore, many politicians have objected in the media to Dr Nitschke and other physicians operating in an unregulated environment. Instead, it would be preferable if politicians did their jobs and legalised voluntary euthanasia, rather than complaining about what’s happening in an unregulated environment. The enactment of the Bill is a necessary first step.
20. 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’.
1.5 The issue of rational suicide
21. The Bill refers to people who have a terminal illness. 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.
22. 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.
23. 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, this will sometimes be the case.
24. Rational suicides such as those above would seem to be consistent with Mill’s philosophy on the rights of an individual and will continue to occur even if the Bill is enacted. I personally know many people who are not terminally ill, but who might consider taking Nembutal if a number of smaller untreatable illnesses were to adversely affect their dignity or quality of life. The Bill will not address their concerns, which are no less valid because they are not terminally ill. If the Bill is not amended to take these situations into account, then rational suicides will continue to occur in an unregulated environment.
25. 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 can access drugs such as Nembutal, and that people who are depressed or anxious, or otherwise not of sound mind, cannot access voluntary euthanasia. The Bill draws the line at the patient being terminally ill. That is a wonderful start, but it leaves many Australians in the position where they will still be aiming to obtain drugs illegally, just in case, if they ever need them. In regulatory terms, more needs to be done.
1.6 Tolerance in Australia’s multicultural society
26. In recent times there has been debate on the diverse and multicultural society in which Australians live. Tolerance of the values of others is an important element of multiculturalism, however it is defined. To avoid a ‘tyranny of the majority’ situation, the values of different cultural, indigenous, ethnic and other minority groups must be respected.
27. It is surely 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.
28. Moreover, if the values of some groups are unethical, particularly if they are discriminatory or hypocritical, they should be challenged. Religious people, such as Christians and Muslims, 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.
29. 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.
1.7 Freedom of religious expression
30. Another 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.
31. Jainism can be considered as a religion that supports euthanasia, and if so, practice of this religion is prohibited by an unconstitutional law. Active voluntary euthanasia (so long as there are precautions to prevent abuse) is also supported by some other churches.
32. Despite the more liberal views of Christians, the clergy have been particularly outspoken against voluntary euthanasia. It is regrettable that their views do not reflect church membership and have been manifested in legislation that impacts on people who do not share their religion. The right for individuals to live their lives as they wish, without being constrained by the religious values of others, must be upheld.
1.8 Economic arguments
33. 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.
34. 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.
35. 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.
1.9 The human factor
36. Throughout this paper I have been referring to the ‘patient’ or the ‘terminally ill patient’. These are rather 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.
37. 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 putting it down. Most people—82.5% 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 their life.
38. 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. And 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.
39. 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 is a good option.