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Four issues to consider when legislating for medically assisted dying

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Australian jurisdictions are presently considering laws and policies relating to euthanasia, physician assisted dying and medically assisted suicide. Australia, like the US, Canada and the UK, is a democratic society under the rule of law, a society less dependent on religious roots than it was, and a society which prizes individual autonomy for all its citizens, including those who are living longer than their predecessors.

Holding hands in hospital bed (Getty Images)

The law can and should provide bright line solutions or at least firm parameters within which the dying, their loved ones and their care providers can negotiate dying and death.

In the past, doctors and nurses were obliged to do no harm and not to do anything which was primarily intended to cause death. Once those obligations are varied, there is a range of issues requiring consideration by parliaments and courts. I will mention just four, and conclude with an observation on the often parodied ‘slippery slope’.

First there is a need to strike the appropriate balance between autonomy for the invulnerable and protection for the vulnerable.

We are now at the frontier determining whether the administration of a fatal injection is the same as switching off a ventilator and whether state assisted and state authorised suicide should be restricted only to some groups or made available to all self-determining citizens whether or not they are suffering a painful terminal illness. In striking the necessary balance between individual autonomy and the common good, Lord Sumption put it well in the United Kingdom Supreme Court:

‘There is no complete solution to the problem of protecting vulnerable people against an over-ready resort to suicide . . . The real question about all of these possibilities is how much risk to the vulnerable are we prepared to accept in this area in order to facilitate suicide for the invulnerable . . . There is an important element of social policy and moral value judgment involved. The relative importance of the right to commit suicide and the right of the vulnerable to be protected from overt or covert pressure to kill themselves is inevitably sensitive to a state’s most fundamental collective moral and social values.’ (R (on the application of Nicklinson and another) v Ministry of Justice, [2014] UKSC 38, [229].)

 

'It is questionable whether we have enough in our philosophical toolbox when dealing with difficult new social questions if the only instruments available are autonomy, human rights and non-discrimination.'

 

Second there is a need to draw a clear dividing line between the provision of ‘medical’ assistance to those who are dying and the denial of social endorsement and encouragement to those who are diminished in their physical or mental circumstances and would like assistance with suicide which is more failsafe, less painful, and less traumatic for loved ones, even though they are not in imminent danger of death. The state has an interest in minimising the incidence of suicide. Does that state interest extend to denying the right to medical assistance with suicide to the young rugby player rendered quadriplegic who does not want to live any more, or the young person diagnosed in the early stages of what will ultimately be a life shortening illness?

Third, there is a need to determine whether the state should authorise medically assisted dying only for those who can help themselves. It’s one thing 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.

Fourth, especially with the increase in dementia and Alzheimer’s disease in our society, there is a need to stipulate the conditions for free and informed consent. Those who support law reform in this area usually proceed by quoting cases of mentally competent patients who are not depressed but who are suffering unbearable pain, facing terminal illness. The easiest and most compelling case to consider is the patient whose relatives fully support the proposed euthanasia. There is no suggestion that the relatives are exerting undue influence on the patient for their own self-interested reasons. There are good palliative care facilities available so it is not as if the patient is under duress, feeling that she has no option but death. The patient has a good and trusting relationship with her medical team. Under existing law and policy, there is every prospect that such a patient will be euthanised or at least given increased doses of pain relief which will hasten death. If there is to be any move towards the legalization of euthanasia, there will be considerable difficulty in setting criteria and safeguards.

It is all very well restricting its availability to the competent, but what of the claim of the person who says, ‘I am now competent but I am not yet ready to die. Soon I will be incompetent and I want to have made a binding decision consenting to euthanasia once I have lost my competence. I do not want to go earlier than I need. But I do want to go once I am no longer competent.’ Inevitably there will be some individuals who in the transition to incompetence or dementia will have changed their flickering minds and decided to cling to life for all that it is worth. At their moment of greatest vulnerability, the law will be invoked with a presumption that their earlier option for death is now binding and unreviewable.

The late American physician-ethicist Ed Pellegrino once pointed out:

'The slippery slope is not a myth. Historically it has been a reality in world affairs. Once a moral precept is breached a psychological and logical process is set in motion which follows what I would call the law of infinite regress of moral exceptions. One exception leads logically and psychologically to another. In small increments a moral norm eventually obliterates itself. The process always begins with some putative good reason, like compassion, freedom of choice, or liberty. By small increments it overwhelms its own justifications.'

It is questionable whether we have enough in our philosophical toolbox when dealing with difficult new social questions if the only instruments available are autonomy, human rights and non-discrimination. All those involved at the table of public negotiation (regardless of their comprehensive world views, whether religious or not) are entitled to express skepticism about the adequate testing of any new proposal and to seek answers to the likely next steps should the proposal be implemented. They are also entitled to agitate the question whether the proposal is ethically sound according to the diverse ethical views held in the community. Our parliaments need to set some bright line solutions or firm parameters to guide us all at those most perplexing times when we are at the death bed, whether it be ours or our loved one’s.

 

 

Frank BrennanFr Frank Brennan SJ is the Rector of Newman College, Melbourne, the Distinguished Fellow of the P M Glynn Institute, Australian Catholic University, and the former CEO of Catholic Social Services Australia (CSSA). 

This article was originally published in The Proctor.

Main image: Holding hands in hospital bed (Getty Images)

Topic tags: Frank Brennan, voluntary assisted dying, euthanasia, ethics, autonomy

 

 

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Hello Frank: For nearly a decade, during the illness phase of St Pope John Paul II, I did volunteer hospice work. The people we were visiting had been diagnosed as having about six months to live. I mainly visited single, elderly men living in social housing who had become separated from family. I would turn up one afternoon a week to help out in whatever way, but mainly I ended up listening to reflections on their life. The nurses were “spot-on” in identifying the different phases the patients (the social worker called them clients) went through. In the last few weeks, when the men needed total care, they would be placed in a specialist palliative care hospital. Despite comforting words to the contrary, the men knew their journey was coming to an end. For me it was a most profound and meaningful experience. Their working life barely rated a mention, and any reference to it was to talk about friends and human contacts. When I visited the hospital in the last weeks, what they had done, had not done, their achievements or lack of, meant absolutely nothing. At the funeral of one of the “blokes” there was myself, another volunteer who had also visited him, two nurses and the vicar who made the arrangements. The head nurse, who had in abundance that nursing quality of total pragmatism, ordered me to say something because I knew him best. And, she added the life of any human being was to be acknowledged. There was a touch of mischief in assigning me the responsibility. But I surprised myself. “Bob always said he was Australia’s last swaggie, we were his last friends and now we are parting company with him.” When “Thou shall not kill” was first spoken life expectancy was about thirty years. Issues associated with aging and assisted dying did not exist which makes it a discussion that has to be. Do we have the wisdom for it?


Fosco | 20 May 2021  

Well said. We are well and truly on the slippery slope already.


Frank S | 20 May 2021  

‘Does that state interest extend to denying the right to medical assistance with suicide to the young rugby player rendered quadriplegic who does not want to live any more….?’ is the bedrock question. The moral question in cases where natural death is close can be evaded by inducing coma. Can you compel someone of unimpaired consciousness who can express their will clearly to endure subjective misery (not that being in a ‘locked in’ syndrome is having a good time)? (The same question applies to gays and transgenders, and to asylum seekers, to cite a couple of other topical issues). You can’t in a value-neutral State because ‘reason’ is not objective. You can in a theocratic State, but only in fief or homage to the Mystery which mostly shrouds the objective Reason (the lesson from Job), not that revealed Reason can be understood by an unglorified human mind without the special assistance of Faith. In short, clarify your relationship with God well before you break your spine because catechesis after the event is hard work and of uncertain result.


roy chen yee | 21 May 2021  

"The death of a person is a single event consisting in the disintegration of that unitary and integrated whole that is the personal self". Pope John Paul II, addressing The 18th International Congress of the Transplantation Society. "The disintegration of that unitary and integrated whole that is the personal self" can exist in the dead human body artificially maintained on " life support". To turn off the life support eg, a ventilator is not an act of murder. To deliberately give a lethal injection to a person who has not lost 'that unitary and integrated whole" is murder. Suicide is self murder and medically assisted suicide or physician assisted dying is murder. Distress or inconvenience to relatives does not justify murder. There is no debate here for Christian. The Christian provides the very successful palliative care available in the modern day and distressed relatives can seek professional counselling to help them cope and in some cases to reassure them that their inheritance will eventually come their way albeit a little delayed.


john frawley | 21 May 2021  

Great observations and insight; thoroughly balanced and respectful to a very difficult topic. Some who may legally qualify for assisted dying can be tormented by the guilt of financial burden on family (or perhaps worse, feeling they are spending their heirs' inheritance) but equally feel either morally or spiritually bound to continue to live on, despite their ill-health. Pellegrino's slope gradient may steepen as the practice becomes more widely socially accepted unless there are some balance checks that constrain the putative without embellishments of changes in palliative care. "Pain-killers" are a wonderful thing but they only mask the perception of the level of pain. For the politicians to draft those "bright line solutions" will require some personal soul searching and an uncommon knowledge of their electorates and colleagues. Somewhat like Clemenceau's "war is too important to be left to the generals" perhaps dying is too important to be left to the doctors...


ray | 22 May 2021  

Roy's characteristically acidic remarks hide a generosity of conservative concern and criticism of the tardiness of the state, through the agency of parliament and the judiciary, to restore aspects of the rationale of a social and health-care policy that support the family in its care for the terminally-ill. Our possessively-individualist society, having notionally lost sight of the common good and collective responsibility, is now primarily responsible for the elderly opting for suicide as a quick-fix rather than for them to constitute a nuisance and a burden on/for their loved ones. One of Frank's imputed 'philosophic solutions' to the dilemma that he raises is surely for parliament to expand its talked-about but, so far, inactive intentions of providing adequate support for those family members who step forward to provide the support that the terminally-ill frail-aged require until as such time as palliative care kicks in. Frank, thank you for opening up a discussion that warrants much more policy-participation of the kind that all who have posted here have lavishly provided (although what that has to do with Roy's excoriation of same-sex marriage and the like, one has to wonder). Immense appreciation, also, to ES for giving us a sumptuous bumper edition!


Michael Furtado | 22 May 2021  

Highly relevant ethical and social considerations, Frank. Thank you. The debate on euthanasia could also, I submit, well do with an injection of a reminder and trust in the one who knows the pain - indeed the fear and agony - of dying and in the very throes of death has faith, commending his life into the hands of his Father in heaven, and irrevocably placing suffering and death in the context of redemptive meaning and efficacy; and of living - for eternity.


John RD | 23 May 2021  

Ray. In your suggestion that "perhaps dying is too important to be left to the doctors" you have gotten to the kernel of the issue. It is also too important to be left to the non-doctors, particularly lawyers, theologians, politicians, clergymen and the laity. John RD (23 May) indicates where the responsibility for the management of human life and death truly lies - something that is also well illustrated in the prayer of the practising Catholic doctor as follows: Lord, dear and glorious physician, I kneel before you since every good and perfect gift must come from you. I pray, give skill to my hand, clear vision to my mind, kindness and sympathy to my heart. Give me singleness of purpose, strength to lift at least a part of the burden of my suffering fellow brothers and sisters and a true realisation of the privilege that is mine. Take from my heart all guile and worldliness so that with the simple faith of a child I may rely on you. Amen This prayer was given to me by my aunt, a St Joseph nun, when I graduated in Medicine and it became a daily habit of mine over some 45 years of treating some of the sickest patients that come a doctor's way. I can attest that not a single patient ever appealed to me to be put down - sorry, that sounded a bit veterinary - rather, to be euthanised, assisted to die with dignity, to be provided with the medical wherewithal to commit physician assisted suicide or any other conscience salving touchy-feely description for murder. For the Catholic Christian there is no debate as John RD so courageously points out. Frank's perspective here deserves very serious pondering by the amateurs mentioned above. However, I fear that his voice will frustrate the pro murder for convenience lobby who too will pray, like Bob Hawke and King Henry III, to be "rid of this meddlesome priest".


john frawley | 23 May 2021  

During my years as a do-gooder hospice worker I often pondered the “slippery slope”. More so because under orders from the head nurse, the “old blokes” I visited were at the bottom of the barrel. Most were in social housing but some were in “private rental”, that is, filthy, sleazy, exploiting rooming houses. The reason they were there was because there was nowhere else to go: except homelessness. Complaints by nurses, social workers and do-gooders ran into the perennial “who pays for public housing”. Nevertheless, I did ponder a cost – the accumulated cost of medical, support and finally hospital services in the last months of the men’s lives. With ever demanding public health budgets, should assisted dying be an option would the “old blokes” be offered a $5 death pill; not by choice but by lack of services. Assisted dying is a political reality because we live in a democratic society where the right to religious freedom also includes the right to no religion. That leaves us with a powerful lobby to advocate for dying “old blokes”. The Church, maybe?


Fosco | 23 May 2021  

Frank Brennan's “Four Issues...” elicits three affirmations and two queries. Frank's reflection provides a valuable taxonomy of concerns requiring resolution as the legislative caravan of enabling legislation rumbles on. He notes the rights of diverse groups – religious and secular – to advocate their considerations and challenges parliaments to exercise due diligence in their deliberations. These observations are well made and packaged in language easily accessible to senior secondary students and interested adult groups wishing to be well informed citizens. What was unexpected and perplexing was Frank's pivot towards the slippery slope argument. Attached as a coda to his discussion, and accompanied by Ed Pellegrino's claim, its significance remains unclear: are we to assume this apparent endorsement is an oblique recommendation to the Australian populace and parliaments that they should cease and desist with the current legislative initiatives in various states? This confusion is further compounded by the weaknesses inherent in the slippery slope argument. It is far from a tool of ethical analysis: more at home in the class of rhetorical devices - designed to evoke choruses of “Nae, No, Never” from like minded adherents. And more damaging is the failure of Pellegrino's claim of “...what I would call the law of infinite regress of moral exceptions...” National jurisdictions such as our own provided examples which demonstrate the error of Pellegrino's assertion. Perhaps, Frank will offer some clarity on this matter – for the body of the article remains a masterclass of exposition.


Bill Burke | 24 May 2021  

We are now in a very mechanistic environment, where people are regarded as things. When they 'wear out' it is considered fit that they be put down. Someone I met, a highly decent and honorable man, a practicing Anglican, who once commanded the SAS, was in hospital for a routine procedure. He was in no danger of dying. He found it interesting. when 'the god doctor', the specialist, came round with his students. The god did not acknowledge nor speak to the patient. He was considered 'a case' and that is all. Someone I know, who is now lecturing in Ethics at a university, obtained the suicide drug for a lonely old man suffering depression after the death of the latter's wife. This was done for a financial consideration as the man's heir. It did not go unnoticed and the provider was sentenced to six months imprisonment and didn't get the money. We live in a warped world. All three Abrahamic Faiths are totally against suicide/'voluntary euthanasia'. Of course, even with the best palliative care, certain illnesses are terminal. We need to respect and be with people when they die. Remember Mother Theresa?


Edward Fido | 24 May 2021  

Might I suggest that the nominal lecturer to whom you refer, Edward, is not lecturing in ethics and is not employed at a university but one of the many Mickey Mouse institutions that parade as academia in what has become an educational backwater.


john frawley | 26 May 2021  

Three posts above with elements worthy of Swiftian indignation in expression and aptness to the issue, Dr John Frawley. You do your education and noble profession proud.


John RD | 27 May 2021  

John Frawley's blanket derision of Ethics lecturers is perhaps excusable in the context of the brilliant posts with which he regularly entertains. Or is his comicality somewhat tempered by a curmudgeonly alter ego? How, I might ask, would he, as a retired general practitioner, address the following ethical dilemma? A baby suffering repeated heart-failure but not brain-dead and with excellent physical reflexes was put on a ventilator at Melbourne Children's ICU. When not on a ventilator that baby registered a very high risk of heart-failure. The next cubicle housed another baby with a strong heart but abnormal cranial blood-vessels which burst regularly, triggering imminent lethal hemorrhaging. The second baby was also on a ventilator without the assistance of which s/he was known to gasp, indicating some brain activity. The prognosis for both infants was grim: it constituted an dilemma for pediatric surgeons to save the first child's life by turning off the second ventilator, thereby hastening the demise of the second child and transplanting that child's heart to save the life of the first baby. In the event the surgeons were powerless to act and, tragically, both children died. What constitutes the wisdom of Solomon in all of this, John?


Michael Furtado | 27 May 2021  

Good morning, Michael Furtado. You raise very important issues, the same that caused much heartfelt searching and ethical uncertainty in the medical profession when it became clear that organs could be successfully transplanted. At the time, I was a university professorial registrar doing experimental dog surgery with a view to transplanting kidneys in the human being. The first 138 of our dogs died - we had no idea why. Number 139 survived while 140 and 141 died. When 142 survived, (again we didn't know why!) the Department Head (widely considered as a very different type of head) said, "Right! We're ready to do it in people"! I refused to take part and was told that I would lose my job at the university if I didn't. I wrote to Fr Tom Johnson SJ, then rector of the undergrad uni college I attended and asked his advice. He replied, "If there is one human life you are absolutely certain cannot be saved, I would have thought that it would be worthwhile to save one little part of it, for example, a kidney, in order to save the life of another who might otherwise be lost'. I became a transplant surgeon and practised the art for the next 40 years. Apropos the case scenario you mention, the baby gasping for life when the artificial ventilation was removed (done as a trial of the ability to survive) and suffering from ruptured congenital Berry aneurysms was unsalvageable, whereas the baby with heart failure was eminently salvageable by transplantation. Father Johnson SJ didn't live in the opulence of Solomon nor exercise the same power, but he certainly matched him in spades when it came to wisdom. The ethics involved are fully addressed in one of my books, A Surgical Life: Dreaming Things That Never Were, which is available in all State Libraries , the National Library, and some local government libraries.


john frawley | 28 May 2021  

Michael Furtado: ‘….wisdom of Solomon….’ Which bit of Solomon’s wisdom are we using, the bit before or the bit after accumulating seven hundred wives, princesses, and three hundred concubines?


roy chen yee | 29 May 2021  

If we read John Frawley as he intends, it follows that both his Jesuit mentor, Tom Johnson, as well as his own conscience would incline him to switch off the respirator from the child born with the condition of ruptured congenital Berry aneurysms - I am grateful to John for the precise diagnostic terminology - and transplant their heart into the other 'life-viable' child. Tragically this case, cited by the recently deceased ethicist, Professor Noel Preston, from actual case-work at Melbourne Children's Hospital, resulted in a kind of unethical moral and legal paralysis at that secular hospital: nothing was consequently done, and both children succumbed to their inevitable mortality. That such a teaching is NOT the bioethical position of the Catholic Church is yet to gain appreciation in many religious and secular quarters. In a Catholic hospital, in which the bioethicists are presumably as ethically discerning as John Frawley is, the non-viable life would have to be terminated for the other to be saved! One has then to ask again why John debunks all ethicists and their universities on the basis of a blatant 'conflict-of-interest' breach cited earlier by Edward Fido. And, Roy, all the OT fathers had multiple wives!


Michael Furtado | 30 May 2021  

Michael Furtado: ‘all the OT fathers had multiple wives!’ Which may be why we have an NT which speaks for the OT through a ‘Solomon’ which is, of course, the Magisterium.


roy chen yee | 31 May 2021  

Michael F. The baby struggling to breathe without a ventilator will die if not maintained on the ventilator. Catholic medical ethics has for as long as I have practised medicine never required the use of artificial, man made means of maintaining life - something which is reflected in Pope John Paul's definition of death recorded in my above post - "the loss of the integrated whole that is the personal self" - which is not represented by a mass of artificially maintained human tissue even if that mass of tissue does look like a human being. While I was undaunted in turning off ventilators in such circumstances, I remained an opponent of live donor transplantation and took no part in live donor surgery. Why? Because live donors are chosen because of their resounding good health and the surgery is not directed towards that patient's well being. Important to remember that all surgery regardless of how well it is performed does carry the risk of death. Living donors sometimes die from surgical complications. Some surgeons, particularly the transplanters, believe they are playing playing God - unfortunately none of us are flawlessly good at it!! The medical ethicists have numerous talk festivals re the morality of using the unsalvageable physiological preparations as donors while they smile benignly on live donor transplantation and the great sacrifice the donor has made in giving the gift of life to another. We have all seen living donors die following complications of the unnecessary surgery they have undergone. It is a great tragedy. It is not for Man to tramp leaden footed through Nature's garden - or God's, if you prefer.


john frawley | 31 May 2021  

Are we cadaver fodder? “resulted in a kind of unethical moral … paralysis at that secular hospital” I suppose we should be thankful that the second baby did not have a weak heart, or there would have been no unethical moral paralysis for Michael Furtado to throw a stone at. But every human being is a glasshouse if there is a duty on you to do your objective best keep your innards in tip top shape just in case, by the permissive will of God, you should become cadaver fodder, and heaven help you if, by the permissive will of God, you do become cadaver fodder but the doctors look at your innards and say of them, because of paralysis of your appetitive wills, if not ‘mene mene tekel upharsin’ then just ‘tekel’. If there is a duty on you to keep your innards in tip top shape should someone else need them ‘Then, who Lord, can be saved?’, the answer to which is only those to whom it is graced to die plain lucky that nobody needs their innards at the time they do.


roy chen yee | 31 May 2021  

So, what's the fuss, John Frawley? It appears there's no disagreement between us.


Michael Furtado | 01 June 2021  

MF. I have re-read your post of May 30 and agree that we are on the same ethical page - no fuss. As you intimate, the Catholic ethicist does not struggle with life and death concepts to the same degree as the secular ethicist sometimes does. My derision of some university ethicists is reserved for those who see ethics as a pure academic exercise without any overriding considerations of a place for a God in the subject - something which is common and which in recent times has also found its way into erstwhile Catholic universities particularly in America. The type of ethics I deride are those sorts to be found in the musings of the likes of Singer and the legislative endeavours of Labor governments in this country led by nominal Catholics.


john frawley | 02 June 2021  

So glad you agree that we're on the same page, JF. For the record, I think that Singer's a nutter. To meet Oxford's Australian bioethicist, Julian Suvalescu, is, tragically, to encounter another.


Michael Furtado | 03 June 2021  

Michael Furtado: ‘nutter’ This is a pithy encapsulation of an important source of thought, but what is more important is to establish why the source exists. Is the source insane? Cognitively deficient? Blinded by sin? ‘The preface to The Essential Tension (1977) – Thomas Kuhn’s first essay collection published post-Structure — offers advice for students working to interpret primary sources in science. “When reading the works of an important thinker, look first for the apparent absurdities in the text and ask yourself how a sensible person could have written them.” Kuhn continues, “When those passages make sense, then you may find that more central passages, ones you previously thought you understood, have changed their meaning.” Whatever your views on Kuhn, this seems like good advice’ (www.thenewatlantis.com/publications/did-thomas-kuhn-kill-truth). You can substitute ‘philosophical patterns of thought’ for ‘primary sources in science’. The answer to ‘Why is Singer thus?’ may be that he is a ‘nutter’ but that just begs another question as to how (or why) is he one.


roy chen yee | 04 June 2021  

An inspired comment, Roy! I'm delighted that you know Kuhn: the poststructural favorito, whose work provides the centrepiece for my ethical inquiry and teaching.


Michael Furtado | 08 June 2021  

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