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Ethical Rights

...because it's right to be ethical

Euthanasia

Part 1. Arguments for voluntary 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, assault and theft, but should not make laws to prohibit sex before marriage, gay marriage, religious belief, or voluntary euthanasia. This is because people who practise the latter are not 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 people with dementia and those with clinical depression (while these conditions persist), 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 choose to participate in dangerous sporting activities. In many jurisdictions, women can choose to have an abortion. Perversely, as voluntary euthanasia is illegal in most jurisdictions, it would seem that somewhere between the ages of twenty (when some women might have an abortion) and seventy (the age where some may be terminally ill or have a poor quality of life) women lose legal control of their bodies. 

6. The clergy, the most vocal opponents of voluntary euthanasia, have imposed their values on other individuals through their strident opposition to a right to die for everybody. However, they would be unlikely to 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 die and 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 be able to compel them by legislative fiat in a democracy. Voluntary euthanasia is morally just precisely because it is voluntary.

7. In contrast to the clergy’s stance (which is not reflective of the more liberal views of many religious people), voluntary euthanasia advocates argue that everybody be permitted to have choice, and not that all people must have euthanasia (as it would not then be voluntary). 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 could make. To be denied the right to make this decision is a blight on modern democracy.

1.2 Whose life is it anyway?

8. 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 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?’ 

9. After passage of the Euthanasia Laws Act 1997 (Cth) in Australia, which overturned the Northern Territory’s Rights of the Terminally Ill Act 1995 (NT) and prohibited Australian territories from legalising euthanasia, most Australians would have asked the same question. 

10. Bob Dent, the first of four people to die under the Rights of the Terminally Ill Act (the world’s first such 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 don’t subscribe), to demand that I behave according to their rules until some omniscient doctor decides that I must have had enough and goes ahead and increases my morphine until I die?’

11. Sue and Bob reflected what most people think: that a well-informed, mentally competent person 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

12. The fact that many people favour a 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. 

13. Public polls have shown that 66–85% of Australians, with an average of about 75%, support the option of 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’. 

14. 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 that hopelessly ill people should be able to choose how they die. The other is to keep the status quo, but this limits options of a peaceful death to those with the requisite information, capital and means. Even in unregulated jurisdictions, many such people, including those who are not terminally ill, are already finding a way to achieve a peaceful death.

1.4 The current Australian situation

15. There are several voluntary euthanasia advocacy organisations in Australia. 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 organisations such as Go Gentle Australia, which was created in 2016 to spark a national conversation about voluntary euthanasia laws. 

16. Legislative reform is also a desired objective of Exit International, headed by Dr Philip Nitschke, who assisted with the four legal deaths under the now obsolete Rights of the Terminally Ill Act. Most of Exit’s time, however, is devoted to complementary activities, undertaking research and providing information on end-of-life options to the elderly and seriously ill.

17. Dr Nitschke’s information and guidance not only fills the regulatory gap left by politicians who have been unable or unwilling to regulate voluntary euthanasia, but 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 information provided by Dr Nitschke, thousands of elderly Australians have acquired their means of effecting a peaceful death (stashed well away from inquiring eyes) or other equipment. That is why so many support him. People, including mainly elderly people in Australia and overseas, need information on end-of-life drugs now and cannot wait for politicians to legislate for voluntary euthanasia. 

18. It is important to note that committing suicide is legal in most jurisdictions. Perversely, voluntarily gaining assistance with suicide is mostly illegal. Nonetheless, some 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 his 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. 

19. 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 this activity is unrefuted, and no serious efforts are being made to stop any of this activity. 

20. 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? 

21. Furthermore, many politicians have objected in the media to Dr Nitschke and other physicians providing information and 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. 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 Rational suicide

22. The different voluntary euthanasia regulatory systems in many jurisdictions worldwide seem to require that only terminally ill people are eligible. However, there have been several situations where elderly Australians, who were not terminally ill, committed suicide with the aid of Nembutal. These deaths are categorised as ‘rational suicide’ because the decisions to die 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 or overseas, but the level of public debate on the issue is immature. 

23. For three years before she died, 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. In 2018, Dr David Goodall was assisted to die in Switzerland at the age of 104 after travelling from Australia. Neither David, Iris nor Lisette were terminally ill, nor were they depressed. In the cases of the women, they emphatically told Dr Nitschke, friends and relatives to mind their own business. As a reflection of changing times, Dr Goodall’s voluntary euthanasia was supported by Dr Nitschke, Exit and crowdfunding, and was the subject of worldwide media interest.

24. There was barely any adverse commentary in the press on these matters, although there were ructions in the pro-euthanasia community regarding Ms Nigot's case, particularly around where the line ought to be drawn. 

25. Rational suicides such as those described above would seem to be consistent with Mill’s philosophy on the rights of an individual. The line should be drawn so that individuals of sound mind can make rational decisions about their own lives. There would be many people who are not terminally ill, but who would consider voluntary euthanasia if a number of untreatable chronic illnesses, debilitation or other personal circumstances were such their dignity or quality of life was adversely affected. Most current voluntary euthanasia regulatory systems do 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 any regulatory environment that stresses the significant involvement of the medical profession in end-of-life decisions. This is because people who are considering voluntary euthanasia would often be unable or unwilling to jump extraordinary regulatory hurdles to seek a peaceful end-of-life. 

26. Most people would not want the option of euthanasia to be made available to those with impaired mental faculties, including the treatable depressed, who might be considered unable to make an informed voluntary decision. Good voluntary euthanasia legislation must set eligibility criteria so that only mentally competent people with serious illnesses or whose circumstances are such that they are condemned to a poor quality of life—this could be broadly defined—can access drugs such as Nembutal and that people who not mentally competent cannot access voluntary euthanasia. 

27. First efforts at developing voluntary euthanasia legislation around the world have drawn the line at a person being terminally ill. That is a wonderful start, but ethically, it leaves many non-terminally ill people in the position where they will still be aiming to obtain drugs illegally, just in case their quality of life or other circumstances worsen. From a regulatory perspective, more needs to be done.

1.6 Tolerance in Australia’s multicultural society

28. Over many years there has been public debate on Australia’s diverse and multicultural society. Tolerance of others’ values is an important element of multiculturalism. To avoid a ‘tyranny of the majority’ situation, the values of diverse cultural, indigenous, ethnic and other minority groups must be respected, as long as they are not imposed on others. 

29. It would 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 never request euthanasia.

30. Tolerance does not mean forcing one’s views on others. To the contrary, tolerance means accepting and acknowledging that all people have the right to believe and act on their beliefs, as long as these beliefs do not adversely affect the rights of others. 

1.7 Freedom of religion

31. 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 in western democracies rely on Christian ethical values. Those who support euthanasia rely upon different ethical values, such as might be compatible with a belief system based on the primacy of the quality of life, rather than, for example, an ‘existence until you die naturally’. It could be argued that legislation that prohibits people from practising euthanasia under the guise of their belief could be in contravention of s.116. This section has not been challenged, however the underlying principle is clear—that people should be able to practice their belief system of choice.

32. People should have the freedom to believe what they will; freedom of belief and religion is an important right, as long as it does not impact adversely on other rights. Sometimes rights are in conflict. This can occur with a right to freedom of religion (if there is a belief that others must conform to a religious view opposing euthanasia) and a right to personal autonomy (equality and free choice on matters of individual concern and incorporating a right to die). In these instances, the Golden Rule can be used to balance and help resolve these conflicts. The Golden Rule suggests that one should treat others as one would like others to treat oneself. This is reflected in Article 1 of the Universal Declaration of Human Rights ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’

33. Most people, regardless of belief system, would consider the Golden Rule to be a worthy maxim. Therefore, if people do not want to be harmed or have others’ religious, sex practice or euthanasia views imposed upon them, they should not harm or impose their own views on others. 

34. Nonetheless, the clergy of certain religious groups do continue to use their belief systems as a basis for dictating public policy, including against voluntary euthanasia. In the public policy realm, these beliefs and their underlying values must be assessed, analysed and, if found wanting, rejected. Some religious groups choose to worship a god that, according to their scriptures, has murdered people indiscriminately. It is perverse to worship a murderer who kills people against their will yet reject a person’s voluntary request for euthanasia to ease their own suffering. Some people choose to belong to religions that openly discriminate against women and homosexuals (despite claiming forms of equality). These perverse and discriminatory belief systems are unworthy of the moral high ground. Consequently, demands that all people must conform to certain religious values and eschew the option of voluntary euthanasia must be rejected.

1.8 Economic arguments

35. There are limited resources available for health care in any economy, including Australia. Governments are often engaging in cost-cutting exercises, which is their prerogative, and this places further pressure on health budgets. 

36. If people who want voluntary euthanasia are unable to obtain it, then taxpayers’ money is being spent to keep them alive when that outcome is neither wanted nor appreciated. Funds could otherwise be available for more infant care, cancer therapy or emergency services, where they 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 in Australia’s case, could also be spent on additional palliative care.

37. One must question, as a serious matter of public policy, why public money is being spent on keeping people alive who do not want to live, in preference to people who do.

1.9 The human factor

38. In voluntary euthanasia discussions, reference is often made 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. They also obscure that fact that there is likely to be an ongoing demand for rational suicide, involving people in similar circumstances to David Goodall, who was not a terminally ill patient. 

39. People must be treated in a humane and compassionate way. People are now living longer, and many ailments can now be treated with medication. But for some people their medication does not provide a sufficient quality of life, and they may still suffer from pain, discomfort or loss of dignity. Some people would like to choose the option of euthanasia. 

40. To deny people the right to euthanasia is to condemn many to a miserable end-of-life 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. 

41. However, consistent with individual liberty, there should be no restriction on the right of an individual to choose voluntary euthanasia, providing that they are well informed, of sound mind etc. Regardless of whether a person is terminally ill, chronically ill, debilitated or is otherwise living in unbearable circumstances that clearly will not improve, or their dignity or quality of life is otherwise impaired, then his or her well-considered and sane request for a death should not be rejected by those who think they know better than him or her. And it should not be rejected by governments. Consistent with Mill’s philosophy and the Golden Rule, nobody would want anyone else interfering in his or her own life and dictating what they should or should not do.

42. For acts such as voluntary euthanasia that impact directly on each individual, the moral and humane thing to do is what is right for the individual. Only each individual knows what this is. That accords with common sense and ethical analysis. It is difficult to deny people the option of voluntary euthanasia when the person considers voluntary euthanasia is in their own best interest.

43. Conversely, not providing the option of voluntary euthanasia could be considered 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 people. When the quality of life is more important than the quantity of life, voluntary euthanasia can be a good option.

 

David Swanton

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