New Canadian and US laws revive euthanasia debate

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The euthanasia debate is alive and active.

Window in a dark roomOn 9 June 2016, California will complete the west coast coverage of laws in the USA permitting physician assisted suicide for any mentally competent adult who is suffering 'an incurable and irreversible disease that has been medically confirmed' and which will 'within reasonable medical judgment, result in death within six months'.

A new Canadian law will also come into effect on 6 June allowing any mentally competent adult who is suffering 'any grievous and irremediable medical condition' to seek assistance from a doctor with the preparation of a noxious potion. Under the Canadian law, the patient must have 'a serious and incurable illness, disease or disability', and be 'in an advanced state of irreversible decline in capability'.

The patient must be 'enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable'. Their natural death must be 'reasonably foreseeable, taking into account all of their medical circumstances'.

In both California and Canada, the plan is to permit doctors to help patients who can help themselves. The doctor prepares the potion, but the patient must administer it. Inevitably, in years to come, there will be debate whether these laws 'discriminate' against patients who cannot help themselves.

Euthanasia advocates will argue the doctor should be able to administer a lethal injection if requested by the patient, whether or not the patient is able to commit suicide with assistance. Pointing to the experience in Belgium and the Netherlands, they will also debate whether these laws 'discriminate' against persons who, though not dying, are still enduring unbearable and untreatable suffering.

They will invoke the language of autonomy, non-discrimination, and human rights, arguing that any mentally competent person has the right to end their life and the right to obtain assistance from a doctor ending their life in as painless and dignified a way as possible.

Countries like Canada, the US, the UK and Australia have been wrestling with this issue ever since the law was rightly changed to decriminalise attempted suicide. Previously it was a criminal offence to attempt suicide and it had always been an offence to assist someone to commit suicide. Needless to say, it was also an offence to kill someone.

 

"Prosecutors would rarely prosecute the compassionate spouse or the caring doctor; juries would hardly ever convict; and judges would not send the offender to jail."

 

The argument was that the state had an interest in trying to dissuade people from committing suicide because of its immediate impact on other people and because the preservation of life was a public good. With better understanding through psychology, lawmakers appreciated that criminalising attempted suicide often resulted in those most at risk not seeking help. They also conceded greater autonomy to the individual who should be able to attempt to end their life without any state sanction.

Once attempted suicide was decriminalised, some started to describe the 'right' to end one's life as a 'human right'. Should it still be a criminal offence to assist a mentally competent person to commit suicide especially if that person was terminally ill and suffering unbearable, untreatable pain?

While there are instances of people assisting another's suicide for callous, self-interested and uncompassionate reasons, there are also instances of spouses and other loved ones helping a dying patient to die more quickly, and with no element of selfish self-interest and with an abundance of compassion. There have also been instances of doctors blurring the lines and administering drugs not for the purpose of alleviating pain but for the specific purpose of ending life. Prosecutors would rarely prosecute the compassionate spouse or the caring doctor; juries would hardly ever convict; and judges would not send the offender to jail.

With people living much longer, and with society giving greater weight to personal autonomy, the issue is whether to leave 'assisting suicide' as a criminal offence which would be rarely, if ever prosecuted, or to decriminalise 'assisting suicide' at least in the case where the deceased was a terminally ill, mentally competent person. Euthanasia advocates push the envelope further by arguing that assistance with one's suicide is a also human right, and that there is no real difference between assisting a person to commit suicide and killing them at their request.

Even if there be a case for decriminalising 'assisting suicide', it does not follow that the same case can be made for decriminalising the killing of another even at their request. In the past the US Supreme Court and the UK Supreme Court have conceded that there is a legitimate state interest in maintaining a legal prohibition on killing even if there be a legislated exception to the criminal offence of assisting another to commit suicide.

 

"It will be a matter of balancing individual autonomy against the state interest in minimising the prevalence of suicide throughout society, protecting the weak and vulnerable, maintaining the integrity of the medical and legal professions, and maintaining the coherence of the criminal law."

 

 In the 2015 Carter Case, the Canadian Supreme Court threw caution to the wind and discovered a constitutional right to physician assisted death. In response to the Canadian court decision, the Canadian Parliament is running against the clock to prepare a new law by 6 June, the date imposed by the court for any new legislative restriction on the right to an assisted death. The Canadian Parliament is proposing a law which seeks to maintain some of the original state rationale for criminalising assisting another to commit suicide and criminalising the killing of another even at their considered, self-determining request. In its preamble, the new Canadian law rightly states:

Whereas it is important to affirm the inherent and equal value of every person's life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled; Whereas vulnerable persons must be protected from being induced, in moments of weakness, to end their lives; Whereas suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities.

The Canadian law then sets out the safeguards for a medical practitioner to assist a patient with their own suicide. The Canadian Medical Association, after significant consultation with its membership, has told Parliament 'that physicians who are comfortable providing referrals (for medically assisted death) strongly believe it is necessary to ensure the system protects the conscience rights of physicians who are not'. Freedom of conscience matters. Voluntary assistance with deliberately accelerating death should be voluntary for everyone!

Here in Australia, the issue will not be decided by the Commonwealth Parliament nor by the High Court. It will be a matter for state and territory parliaments. It will not be a matter of contesting religious and secular viewpoints. It will be a matter of balancing individual autonomy against the state interest in minimising the prevalence of suicide throughout society, protecting the weak and vulnerable, maintaining the integrity of the medical and legal professions, and maintaining the coherence of the criminal law.

Without any legal change, those who compassionately and unselfishly assist with the suicide of dying, suffering loved ones will endure some uncertainty whether they might be prosecuted; and those doctors tempted to take the law into their own hands will practise their medicine without adequate transparent safeguards. But then again, once the state legislates to permit assistance with the suicide of a dying, suffering, mentally competent person, the door could well be opened to those who agitate a right to kill and not just a liberty to assist with suicide, and that door could be pushed open onto a class of patients which ultimately will include those who are not dying at all.

I'm for keeping that door firmly shut. That door is now wide open in Belgium and the Netherlands. The Canadian Parliament is trying to place some appropriate limits on the door thrown open by their Supreme Court. The US west coast approach of opening just a window has been more prudent, but even there it could still blow a gale.

 


Frank BrennanFrank Brennan SJ is professor of law at Australian Catholic University and adjunct professor at the Australian Centre for Christianity and Culture. He appeared recently on the ABC Moral Compass episode 'A Good Exit: Who Decides' and will appear at the Sydney Writers Festival on 21 May 2016 to discuss 'How to Die Well' with a panel including Andrew Denton.

Main image by Margaret Power

Topic tags: Frank Brennan, euthanasia


 

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Existing comments

I' going to take Frank's article as a positive contribution to the debate about the regulation of assisted suicide, but I fear that many of the responses will be of the 'slippery slope' or 'sanctity of life' type.
Ginger Meggs | 16 May 2016


When I watched the recent ABC Moral Compass episode "A Good Exit: Who Decides" I was struck by the respectful listening. Talk about dying can be confronting and it can take quite a bit of courage to think clearly and rationally about it. Good quality palliative care should be available to all terminally ill patients. The care should extend to family members. Often, family members have conflicting views and naturally there is an emotional component.
Pam | 16 May 2016


Well, Ginger Meggs, in order to defer to your opinion that any response of the 'slippery slope' or 'sanctity of life' type (unless it be about indefinite detention of asylum seekers!) is herewith to be regarded as negative and not useful, perhaps the respondents might confine themselves to an in-house debate about whether Catholic doctors (never mind anybody else) can in good conscience agree to assist with suicide. This will necessitate some investigation of what the Catholic Church teaches. If, by chance, principles are discussed which have something to do with slippery slopes and sanctities of life, and which by chance an impartial non-Catholic reader of this blog might find useful, then, I suppose, we can only say that life is unpredictable and accidents may happen.
Roy Chen Yee | 16 May 2016


"The patient must be 'enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable'. Their natural death must be 'reasonably foreseeable, taking into account all of their medical circumstances'." I don't know what US Supreme Court Justice Sonia Sotormayor's wise Latina might say but perhaps a canny Jesuit might want to investigate whether an induced coma is the go. After all, if the brain is asleep, there is no physical or psychological distress and if death is going to occur anyway in 6 months or is 'reasonably foreseeable', the coma will come to a natural (ie. God-ordained) end --- unless of course the restfulness of an induced coma somehow has the effect of prolonging life. If so, just as nursing homes have become an industry which provides some employment in our rapidly deindustrialising Australia, perhaps an industry of pre-mortem dormitories might do the same. As far as I know, it's no sin to elect to be put into an induced coma nor is it one to maintain somebody in it. Of course, I could be mistaken. Does Father Frank know of any canny Jesuits?
Roy Chen Yee | 16 May 2016


How long is it before we get the State-approved euthanasia due to economic unviability?
Bob | 17 May 2016


Pam, from my experience, "A Good Exit" can be arranged when it's recognised that the end is nigh. My father was diagnosed with terminal cancer and afforded good quality palliative care. Three months after his death, my mother, who was living at her home but suffered from emphysema, was carted off to hospital after she got congested with the flu. I watched her distress as the hospital Emergency Department pumped oxygen into her lungs. Unfortunately, they didn't seem concerned about expirating the carbon dioxide from her system and it built up until her system failed and she died. The staff in Emergency Departments aren't tasked with making patients comfortable, they're s'posed to keep people alive. So, in the later stages of your life, make all contracts and arrangements to ensure that you avoid hospitalisation through the Emergency Department.
Bob | 17 May 2016


In a society which progressively abandons any concept of a supreme being's dominion over life and death the march of the killers amongst us will continue to gather momentum. What is even more threatening ,however, is that The Law, the very founder of Western Christian civilisation and protector of human life itself has become the instrument of destruction of human life and Christian Western society. You will need some very large re-enforcing bolts to "keep the door shut", Fr Frank. If God is sitting up there somewhere he must be growing sick and tired of his once great ally, The Law, which is becoming one of Humanity's greatest killers outside the insanity of war.
john frawley | 17 May 2016


I also take Frank Brennan's piece onboard as a contribution to an important discussion. I would like to point out that there are a some presumptive arguments that have not been backed up by fact. The Belgian experience has been described as a backdoor for state sanctioned killing, and yet they have had a very helpful and ethical program running for years, they report to the parliament regularly and have a very good record of helping people to not choose euthanasia where they can. The supposition that life at all costs is what God wants and is ethically right is based on what? I don't believe the ethics of this argument have been adequately considered and I believe you can't judge the euthanasia option until you understand why life is "right".
Andrew Brown | 17 May 2016


No one wants to see someone they love die painfully or in distress. Palliative care should be better than it sometimes is and be available to all. There's no doubt that Frank is correct in his prediction that once the Pandora's box is open there will be less and less constraint. As he says, we only have to look to Belgium and The Netherlands to see the expansion of their laws in respect to euthanasia.
Anna | 17 May 2016


We do have killing now, quite commonly, in our hospitals. It's called terminal sedation. They didn't ask my mother if she wanted it, they asked me. I didn't consult with my siblings, I just agreed, and got a Catholic priest in before it started. If terminal sedation were more certainly legal we would probably have more formal procedures - perhaps my mother could have previously stated that she would want it, perhaps I would have had to ask my siblings, perhaps we would have signed something. At present, it's sort of unspoken and all done quite quickly, and in my case unexpectedly - not the best way to do it?
Russell | 17 May 2016


"The State interest in minimising the prevalence of suicide" would be and probably is attending to the cause; the clinical depression of the patient. When the request for death is because of intolerable pain or any other intolerable condition,the circumstances are quite different. I would respectfully like to hear an answer from both sides of the debate. The compotant patient has the right to say "No" if death or suicide is offered. Does the U.S. West Coast "open window" allow a parliament or judiciary to make a decision to kill or to permit suicide? (There is no problem with war or guns).
Mahdi | 17 May 2016


"It will be a matter of balancing individual autonomy against the state interest in minimising the prevalence of suicide throughout society, protecting the weak and vulnerable, maintaining the integrity of the medical and legal professions, and maintaining the coherence of the criminal law." Today the individual's 'rights' are regarded as supreme, those of the group are minimal. This is one of those cases where individual rights and the rights of the group can't in fact be balanced. Something has to give. I may claim a right to die how and when I please, but the rights of our nation must supervene. It's not all about me.....
Joan Seymour | 17 May 2016


I do not often disagree with Frank Brennan, but on this I do. The argument of what a piece of legislation might lead is only an argument to make when one cannot think of another. Would you have advocated banning cars on the grounds that they might lead to accidents and death? There is no evidence that I have seen that legislation allowing euthanasia in very specific occasions has been misused
PHILIP NEWMAN | 17 May 2016


On the most recent statistics to hand, the Australian Institute of Health and Welfare reports that in 2013 ‘suicide was the leading underlying cause of death among persons aged 15–44’ in Australia. The ABS reports for 2014: ‘Among those aged 15 to 44, the leading causes of death were Intentional self-harm (suicide) (X60-X84), Accidental poisonings (including drug overdoses) (X40-X49) and Land transport accidents (V01-V89)’. ‘Years of Potential Life Lost measures the extent of “premature” mortality. While a cause of death may have a lower incidence than that of another, its impact when measured in terms of premature death may be greater, as a result of that cause affecting a younger demographic. ‘Intentional self-harm (X60-X84) deaths accounted for 97,066 years of potential life lost, the highest of all leading causes in 2014.’ ‘Among people who died between 15 and 44 years of age, 69.8% of deaths were considered to be potentially avoidable in 2014’. See http://www.smh.com.au/national/young-women-and-middleaged-australians-drive-rise-in-national-suicide-rate-20160308-gnd6qy.html
Frank Brennan SJ | 17 May 2016


Lord Falconer’s Assisted Dying Bill introduced into the House of Lords was not passed in time for the 2015 election. This bill was based on the Oregon legislation allowing a terminally ill person to receive assistance with preparation for self-administered suicide. A similar bill had also been introduced in the House of Commons but it was voted down. Prior to the election, the House of Lords agreed to an amendment to Lord Falconer’s bill, tightening the safeguards, requiring a judge to confirm that a terminally ill patient, with less than six months to live, has reached ‘a voluntary, clear, settled and informed’ decision to control the time and manner of their death.
Frank Brennan SJ | 17 May 2016


Best article on Euthanasia I have read, so heart moving and wonderful powers of thought process. Heard a it of the ABC Moral Compass on dying, my husband was blessed to have exactly that kind of death and his Legal Mind was outstanding along with his sense of Social Justice. Thank you.
Maire O'Donoghue | 18 May 2016


Bravo, Frank Brennan! Somewhere on the road of the individual's human right might we make a short detour on the path of an individual's human responsibility? I have an illness that is very likely to lead to a painful, and painfully long, death. Whether I decide to end my life or not is my responsibility. Mine. On two occasions I have been so ill that I have been asked if I would prefer to call an end to the pain, by taking, or having administered, an overdose. My (hoarsely) shouted reply on both occasions was that I wanted to live and live and live. If euthanasia is legalised will anyone even ask the next time I am a very expensive patient in a very expensive ICU bed? I say lobby for better palliative care, better pain relief, more and better hospices, more in-home end-of-life services. I say consider those professionals and loved ones who feel pressure to kill on request. They have the simple human right to live without that wholly unreasonable expectation. And to those of us who are slowly losing our battle I say treat those around our beds with compassion. They have to hear, see, and wait.
Maggie Miner | 18 May 2016


When the Australian Senate conducted an inquiry into suicide in 2010 entitled ‘The Hidden Toll: Suicide in Australia’, it sidestepped the contested inter-relatedness of suicide, physician assisted dying and euthanasia. The committee wrote: ‘During the course of the inquiry the Committee received a substantial number submissions linking the terms of reference to the issue of self, voluntary and assisted euthanasia. While the issue of euthanasia has several linkages with some of the topics covered during the inquiry, the Committee has made a decision not to focus on the issue of euthanasia in this report.’ The inter-relatedness would have to be investigated before any change was made to the law by state (and territory) parliaments which are the parliaments with the relevant legislative power under our Constitution.
Frank Brennan SJ | 18 May 2016


Please underpin legalese with explicit teaching of magisterium This is a catholic journal not forensic handbook.
Father John George | 18 May 2016


But, Fr George, the discussion is about appropriate laws and policies for Australia, not for a theocratic state. It's also worth us Catholics recalling the recent statement of Pope Francis: 'I would make it clear that not all discussions of doctrinal, moral or pastoral issues need to be settled by interventions of the magisterium. Unity of teaching and practice is certainly necessary in the Church, but this does not preclude various ways of interpreting some aspects of that teaching or drawing certain consequences from it. This will always be the case as the Spirit guides us towards the entire truth (cf. Jn 16:13), until he leads us fully into the mystery of Christ and enables us to see all things as he does. Each country or region, moreover, can seek solutions better suited to its culture and sensitive to its traditions and local needs. For “cultures are in fact quite diverse and every general principle… needs to be inculturated, if it is to be respected and applied”.'
Frank Brennan SJ | 19 May 2016


Father Brennan! In fact, the Euthanasia issues have been settled by the Magisterium[passim]; discussion of minutiae is well over. "Roma locutus est causa finita est!" How about explicitly invoking such as most relevant to the article? Blessed Cardinal Clemens August Graf von Galen[aka "The Lion of Munster"] invoked magisterium[even before magisterial nuancing of late 20th century] against Hitler's Euthanasia program causing Hitler to stop program temporarily!!. Hitler never forgot "the Lion" versus pussy cats! [Eg in mid 1940s Hitler raged] "I am quite sure that a man like the Bishop von Galen knows full well that after the war I shall extract retribution to the last farthing and.that in the balancing of our accounts, no “T” will remain uncrossed, no “I” undotted! (2007-12-01). Hitler's Table Talk 1941-1944: Secret Conversations (p. 419). Enigma Books. Kindle Edition. The Blessed Lion upheld perennial teaching not occupied in theological niceties while thousands died in the Aktion t4 program all far removed from your" theocratic states" Fr Brennan SJ sir! [Even Goebbels and Borman feared the Blessed]
Father John George | 19 May 2016


Father John George, these issues may have been settled for the Church, but Father Brennan was talking about their 'settlement' in the state, not the Church. Thankfully, the two are no longer synonymous.
Ginger Meggs | 19 May 2016


What could the opening of this door eventually lead too? The Obsolete Man? The Twilight Zone. Watch it on Vimeo.
AO | 20 May 2016


#One thing learnt from Hitler Euthanasia program is the need to proclaim Catholic Teaching unambiguously and clearly as there will always be the dissenter or two, regardless of separation of church and state, upheld by Third Reich in that Reichkonkordat ##The Nazis scouted for a 'euthanasia- lite' theologian and "finally found a Catholic moral theologian known to be ‘modern’ – Joseph Mayer from Paderborn – who was willing to argue that euthanasia might be considered legitimate."
Father John George | 22 May 2016


Surely if anyone thinks traditional Catholic teaching on human life issues like euthanasia has anything worthwhile to contribute to our secular laws, the bipartisan, state sanctioned human rights abuses systematically and methodically meted out to asylum seekers who've been driven to despair and suicide would merit a mention? Surely the fundamental intrinsic value of human life isn't recognised by the state when it comes to the treatment of asylum seekers - and the argument that it's a deterrence to stop people smuggling and drownings doesn't follow the Catholic Magisterial rationale of the intrinsic value of each and every human life.
AURELIUS | 22 May 2016


This is the disturbing case I referred to on Saturday at the Sydney Writers Festival: Sex abuse victim in her 20s allowed by doctors to undergo euthanasia: http://www.independent.co.uk/news/world/europe/sex-abuse-victim-in-her-20s-allowed-by-dutch-doctors-to-undergo-euthanasia-due-to-severe-ptsd-a7023666.html
Frank Brennan | 23 May 2016


AureliusBoth Pope Francis' magisterium and newly appointed Bishop of Parramatta have spoken strongly on asylum seekers the latter bishop Long was himself an asylum seeker from communist Vietnam.
Father John George | 23 May 2016


On 27 May 2016, we had a wonderful evening in Young with a sell-out crowd at the golf club to discuss Dying with Dignity and Choice. I was joined on the panel by palliative care doctor Frank Brennan (no relation), Dr Bill Meagher, local solicitor Eris Gleeson, Pharmacist David Hamblin, Palliative care nurse consultant Pauline Heath, and Maryan Bryant who gave a most moving description of nursing her dying husband at home. Our MC was local hero Genevieve Jacobs who hosts ABC Radio on Canberra 666. Listen at https://soundcloud.com/frank-brennan-6/young-forum
Frank Brennan SJ | 29 May 2016


The CCCB are totally upfront on magisterium The teaching of the Catholic Church and the stance of the Catholic Bishops of Canada affirm the sacredness and dignity of human life. Suicide and euthanasia are contrary to the most profound natural inclination of each human being to live and preserve life. Furthermore, they contradict the fundamental responsibility that human beings have to protect one another and to enhance the quality of health and social care which every human life deserves, from conception to natural death.http://www.cccb.ca/site/eng/media-room/statements-a-letters/4456-statement-on-bill-c-14-by-the-cccb
Father John George | 30 May 2016


Euthanasia elicited the magisterial gravitas of an Encyclical In 1943, Pope Pius XII issued the Mystici corporis Christi encyclical, in which he condemned the practice of killing the disabled. The Encyclical was followed, on 26 September 1943, by an open condemnation from the German Bishops which denounced the killing of "innocent and defenceless mentally handicapped, incurably infirm and fatally wounded, innocent hostages, and disarmed prisoners of war and criminal offenders, people of a foreign race or descent"
Father John George | 30 May 2016


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