Right to lifers miss the point


Church and other mission oriented groups should work hard to maintain and strengthen their commitment to health care that is universal (not confined only to those who can afford it), and comprehensive (not confined to specialties thought to have distinctive appeal to mission oriented groups).

Only by being a mainstream contributor to health care across the board can churches make their optimal contribution to the quality and ethics of health care.

Without a grounded, informed Church voice on ethical issues in the public square it will be even more difficult for parliaments and courts to make the right decisions about ethical health care in the future. Health facilities, if run only by the State and the for-profit sector, would lack a critical dimension in some of the more difficult ethical debates on health care. Let's consider one recent case relating to parliaments, and another relating to courts.

Last year, the Victorian Parliament, while legislating for abortion on demand, went one step further, enacting its compulsory referral clause. This novel law requires any medical practitioner with a conscientious objection to abortion to refer the patient to another medical practitioner known not to have the same objection.

The provision is unnecessary and unworkable. That is why no proponent of the law, including the government, has been able to provide a compatibility statement pointing out how the law's interference with the right to freedom of conscience is justified under the Victorian Charter of Rights and responsibilities. The law has never been supported by the Australian Medical Association whose code of ethics imposes no such obligation to refer.

At the time of the parliamentary debate, some portrayed the objections to the law as emanating just from a group of religious zealots. The objectors could see that such a law would needlessly violate the consciences of some medical practitioners.

The Parliament's Scrutiny of Acts and Regulations Committee (SARC) raised questions about the new law at the time but the Parliament took no notice, the government declined to provide a statement of compatibility, and some ideologues said no such scrutiny or statement of compatibility was required.

In the light of sustained, reasoned critique of the law and the law making process, the Victorian Human Rights Commission has now expressed the view 'that SARC's interpretation of the Charter is preferable and that the bill should have been accompanied by a statement of compatibility'. It's just that no credible legal commentator is able to provide such a statement. The law is now a dead letter.

Since the Victorian debacle, the Australian Medical Council has been consulting on a national code of ethics for all Australian doctors. During their consultation, they reported that 'there was a request for clear guidance in relation to conscientious objection'. Last week they published their new code and provided such guidance, in contradistinction to the Victorian law. The Code states:

Good medical practice involves:

  • Being aware of your right to not provide or directly participate in treatments to which you conscientiously object, informing your patients and, if relevant, colleagues, of your objection, and not using your objection to impede access to treatments that are legal.
  • Not allowing your moral or religious views to deny patients access to medical care, recognising that you are free to decline to personally provide or participate in that care.

Some might prefer that the word 'directly' be omitted. But it is quite arguable that legally enforced direct referral for a procedure that does not usually require a referral and which otherwise would not be performed except after appropriate counselling would constitute 'direct participation'. A conscientious objector would be entitled not to formally refer in these circumstances.

The Victorian Medical Practitioners' Board has power to discipline or even strike off practitioners for non-compliance with Victorian law. Before such action was taken by the Board, it, being a public authority for the purposes of the Charter, would need to ensure that it did not act in a way that is incompatible with the human right of freedom of conscience. The new Code should be a sure guide for the Board.

Let's now turn from the parliaments to the courts. Last week Chief Justice Martin gave a sensible, uncontroversial decision in the Western Australian Supreme Court.

Christian Rossiter is a profoundly disabled quadriplegic who is presently receiving nutrition and hydration through a PEG. He has had enough of life and wants his carers at Bridgewater Care to discontinue feeding him. 'Right to life' and 'right to die' advocates have been having a field day. You would think they had not read the judgment.

'It is important I think to emphasise at the outset what this case is not about,' the Chief Justice said. 'It is not about euthanasia. Nor is it about physicians providing lethal treatments to patients who wish to die. Nor is it about the right to life or even the right to death.'

The judge said that if Rossiter, having received competent medical advice, decided to request Bridgewater to cease administering nutrition and hydration, then in the absence of any revocation of that direction by Rossiter, Bridgewater should cease to provide nutrition and hydration. There would be no risk of criminal liability. The only risk would arise if the caregiver were to continue feeding without consent and direction because that could be an assault or a trespass on the person of Mr Rossiter.

This was nothing like the case of a person in a persistent vegetative state without the competence to decide and unable to communicate with the caregiver. As the judge made plain: 'Mr Rossiter is not a child, nor is he terminally ill, nor dying. He is not in a vegetative state, nor does he lack the capacity to communicate his wishes. There is therefore no question of other persons making decisions on his behalf.'

The reactions of the 'right to life' and the 'right to die' advocates are equally misleading and unhelpful. It is not only illegal, it is also immoral for a person to trespass without consent on the body of a competent person who specifically refuses consent to the trespass. It is not only against the law. It is wrong. It is morally objectionable.

Churches with a strong teaching tradition should assist their members to form and inform their consciences that they should not trespass on the bodies of the mentally competent without consent.

In future, the tasks of our parliaments and our courts will be more difficult if the reasoned voice of experience is not heard from church groups who know what they are talking about when it comes to health care. Unless we are at the bedside in constant dialogue with the clinicians, we too risk becoming ideologues.

Frank BrennanFr Frank Brennan SJ is a Board Member of St Vincent's Health Australia and spoke at this week's annual Catholic Health Australia Conference in Hobart on the question: 'Public Health Services: Should there by any Catholic Public Hospitals in 20 years?'

Topic tags: christian rossiter, victorian abortion legislation, right to life, right to die, pro-choice, health care



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Existing comments

Thank you Fr. Brennan for your clear explanation of the judgement. The Church and society have much to thank you for.

Anne Chang | 19 August 2009  

It's very good of Fr Brennan to turn his powerful intellect towards events here in remotest Western Australia. I would however gently suggest that he is overlooking that this is a case with multiple points

.Mr Rossiter (no doubt under some pressure from the right to die lobby) made clear his intention to die, as opposed to his intention to refuse a treatment that had become burdensome. Even some of us humble laity know that in Catholic teaching this does make a difference. We even know that since 2005 there has been some serious debate in Catholic circles over whether ANH should be considered as a medical treatment which can licitly be refused as burdensome.

Mr Rossiter's case certainly raises many serious questions. It is not helpful to any of us to suggest that there is a single and simple right answer

margaret | 19 August 2009  

Margaret's patronising response is unhelpful to the debate.

Without extensive artificial interventions, Mr Rossiter would not be in the unenviable position he is. Not one of us has a right to question his OWN wish to end the living hell he is enduring... Perhaps he would have chosen not to have been treated at all had he known what the terrible outcome would be.

God spare us from those who have the arrogance to believe they know what is best for others who are fully capable of making their own decisions.

Patricia | 19 August 2009  

Thankyou for the clarity and reason in this piece from Fr. Frank Brennan. Cool calm and clear commentary on very difficult issues.

I am retired but worked in health and worked closely and collaboratively with palliative care staff in Calvary Hospital - these difficult issues could not have been handled better for the patient and for the families.

And another thing - could you give some more poetry from Edward Reilly.

margaret o'reilly | 19 August 2009  

I disagree with Fr Brennan. The upshot of the court decision is that Rossiter can choose to die. So to find esoteric moral points between euthanasia and disconnecting the food tube is out of touch. The only other possible decision by the judge would be continued force feeding to maintain the man alive. So the fact is this is effectively allowing euthanasia.

Roger Grealy | 19 August 2009  

unfortunately there are always zealots, concerned about their own conscience being violated, but seeming to claim a divine right to proclaim their opinions to others.

cronos | 19 August 2009  

Thank you for making clear the crux of Christian Rossiter's situation: that it is wrong to "trespass on the bodies of the mentally competent without consent".

In a situation where a mentally competent person who is able to swallow decides to "turn their face to the wall", refusing to eat or drink in order to hasten death, would the contrarians think it right to sedate, restrain, and force feed this person for the remainder of their life? I hope not. I think Christian Rossiter was just asking to have the same right to refuse.

David Letham | 19 August 2009  

Thanks to Frank Brennan for putting this in its correct context. There will always be those who cannot be dissuaded from thinking that Judge Martin has opened the door to voluntary euthanasia. This case has not done that. Thanks Frank.

Rosemary Keenan | 19 August 2009  

Hey Patricia I did mean the 'gently' ... And not the patronising (maybe we are sometimes a little oversensitive to the 'wise men from the East' syndrome).

It did however seem to me that Fr Brennan had not followed the nuances of the very thoughtful and sensitive debate here in WA. The only person who did come over (perhaps unfairly, who knows) as wanting to make decisions for Christian Rossiter, was Philip Nitschke. Thankfully Christian Rossiter, whose personal integrity in all of this has been inspirational,has retained the right to decide for himself.

I am not aware that the slightly patronisingly labelled 'right to lifers' ever wanted to deny him this.

margaret | 19 August 2009  

I am a 84 year old world war 2 veteran and it would give me great peace of mind if I could get medical assistance to die in a dignified manner if I should lose quality of life. It is my firm opinion that enforced prolonged life when quality of life is lost is a fate worse than death, I fear degeneration far more than I fear death. It is inhumane to leave those who have lost quality of life, whether it be a terminal illness or deterioration that leaves them confined to a nursing home suffering from dementia, incontinence, and/or Alzheimer's

If I could afford the trip I would travel to Mexico and get some Nembutal just in case of need. This would give me great peace of mind
I welcome the decision to be allowed to refuse sustenance, this is my only legal option at the present time

In conclusion let me make it clear that it is not my intention to impose my views on anyone , however I consider that euthanasia should be an option for those who have documented their wishes in an Advance Care Directive


Bill Alcock | 19 August 2009  

As a counsellor, I am horrified at aspects of what Frank Brennan has said. At what age is the cutoff for agreeing to a person taking his/her own life and not 'trespassing' on his/her own body? If a person with anorexia, of mature age, says he/she wants no more food, do I say 'Ok it's your choice.'?

No, the very fact of not wanting to eat and drink is a sign of a certain mental incompetence, no matter how 'reasonable' and 'mature' the person eeems to be. In fact, if I do not send an anorexic food refuser in danger of death, under my care, to immediate care [part of which is force feeding the food refuser], then I can assure you my competence as a professional would be called into question.

If it were Frank Brennan's 18 year old son, and he were healthy [if he had a son] , would he make the same decision to 'not trespass' on his son's body and just wait outside his hospital room to die? Any decision to commit suicide whether by a profoundly disabled person or an otherwise physically able one, is a statement of despair, even if the affect of the person does not indicate it.

Frank Brennan may think he is just describing the law but surely he has a moral duty as a citizen, if not a priest, to ask if the law is right? Is it right to accede to a client's despair in allowing him/her to die, if it is within our power to stop it?

Perhaps it is the eminent Frank Brennan who has missed point.

Alice | 19 August 2009  

Even though Mr Rossiter is perfectly entitled to refuse nutrition, is it humane to withhold hydration from him? Maintaining normal fluid volumes and balanced electolytes help to render a dying person free from the irritability and confusion which always accompanies dehydration.

Claude Rigney | 19 August 2009  

Claude, there is no question of hydration being 'withheld' from Mr Rossiter. Mr Rossiter is quite capable of asking for hydration and if he did so hydration would, I am sure, be provided. The court's decision, as Frank has made so clear, is not that sustenance and hydration be withheld but simply that Mr Rossiter's wishes be respected.

Tom Jones | 19 August 2009  

Alice, I hope that I am never in a position where I am seeking your 'counselling'. By all means encourage me to seek alternatives, but please don't presume to force the consequences of your beliefs on me.

As Patricia has said above, 'God spare us from those who have the arrogance to believe they know what is best for others who are fully capable of making their own decisions'.

Tom Jones | 19 August 2009  

Not to lay claim to the 'last word' simply because here in the West we reach the end of the day later...
But Alice I would consider myself to be very blessed to receive your counselling.

Just as I consider myself very blessed that when my own son tried to jump off a balcony someone quite unexpectedly passing by did not simply stand by, agree his pain was unbearable and 'respect his wishes'.

margaret | 19 August 2009  

Christians know that we will someday die. Death is a part of life. When life is coming to an end, our digestive system, amongst other systems, starts to shut down.

Since the man no longer has an appetite, or thirst, perhaps he is ready to offer up his spirit.

If he changes his mind and says, "I thirst", his caregivers will oblige him.

Who knows? Perhaps simply having the luxury of controlling to drink or not to drink, to eat or to not to eat may be a great comfort to him. Maybe he will then feel like saying, "You know, I could go for an orange juice...," and that would be ok too. If he then felt better as a result, he might even say, "You know, I wonder how it would feel to go on Zoloft or Prozac? Could I try it, and see if it restores my nervous system?" And that would be ok too. If he willed it.

He doesn't have to agree to any extreme treatment. In his situation, food and water may be extreme. Or rather, it might be like remaining on your old bicycle, when your Father is smiling in the driveway next to a red Corvette with a big bow on top of it, on your sixteenth birthday...

Mercy | 20 August 2009  

Thank you Fr Frank for your clear understanding and explanation - you go to the heart of the matter.

Carmel Cowan | 20 August 2009  

There is a vast and fundamental difference between someone who is competent (mentally, emotionally, legally) to make a decision about their own life, and one who is not. In our society, people suffering tragically from depression to the point of suicide, or suffering from potentially-lethal anorexia, are deemed NOT to be competent. There is no ambiguity about the need to respond to save their lives.

The door to involuntary or even voluntary euthanasia has not been opened by Mr Rossiter's case; as Tom has pointed out, the Court has upheld his right to have his wishes as a competent adult respected, nothing more.

Patricia | 20 August 2009  

"It is not only illegal, it is also immoral for a person to trespass without consent on the body of a competent person who specifically refuses consent to the trespass."

Says who?

Not the Bible, not the Catechism, not any manual of moral theology I've seen. This glib statement of Fr Brennan’s bears the influence of the current absolutising of the value of autonomy which paves the way for more liberal euthanasia legislation.

The traditional Catholic & hence natural law approach, as I am familiar with it, is this. We do NOT own our lives or bodies in an absolute sense. We are stewards entrusted by God with the gift of our bodies and souls & charged with the duty of dedicating them to His glory.

When we choose to attack or destroy our bodies, it is WE who are trespassing.

So autonomy, understood as respect for the choices we make and express through our bodies, is contingent upon the fact that such choices are allowed to us by God that we might merit our final end by the free performance of good acts. But the gift of free choice means that “competent” adults can and do make irresponsible choices – choices which may be devastating to their own interests and to those of their community: choices such as suicide, or entering a duel, or highly reckless behaviour with drugs or behind the wheel of a car (even where no one else is on the road), etc.

When and to the extent that one’s choices threaten serious and perhaps permanent (perpetual) self-destruction, the value of autonomy gives way to the value of having one’s best interests preserved.

Thus, when bodily “trespass” against the consent of a competent person is not gratuitous or futile, but is made with reasonable hope that, through it, this person will abandon their current seriously immoral, self-destructive commitments, then it is, I submit, justifiable and perhaps even obligatory.

To be sure, there are difficult cases.
But beginning moral deliberation on this topic with a bald statement that nonconsensual trespass of competent persons is morally objectionable is, to use the words of Fr Brennan, “misleading and unhelpful”.

Assuming her son was “competent” at the time, Margaret, above, offers the perfect example.

Hugh | 20 August 2009  

Competency is a variable on a wide continuum. We need the discernment of the Holy Spirit, common sense and our free wills, and to remember to "...fear not. I have overcome the world."

Mercy | 21 August 2009  

Depression is a recognised affective disorder and no-one outside those who would construct a straw man would argue that anyone suffering from it was 'competent' to decide to end their life.

What I find extraordinary about some commentary is the willingness of some to decide what is someone else’s “best interests” when they are competent to make their own decisions in good conscience. Each person has their own relationship with their Maker and it is outrageous and extraordinarily arrogant for someone else to decide what that should be.

A law legalising “involuntary” euthanasia would pose a threat to the autonomy of us all. Equally, so also do those who insist that their idea of “morality” or an “after life” should be imposed on competent others.

Patricia | 21 August 2009  

I agree with what Patricia has been saying and I am appalled at what Hugh has said. It is comments like those from that attract responses like 'get your rosaries off my ovaries' and lead to the 'reasoned voice of experience... from church groups who know what they are talking about' not being heard, which is surely the point that Frank was making.

Tom Jones | 21 August 2009  

Absolutely. This was a case about the right of a competent person to refuse treatment. There should be no question that he has the right to refuse. But the question this raises for me is: what if he was no longer competent, but had made his wishes clear earlier through some form of living will?

It is a pity that right-to-lifers and euthanasia advocates often seem to be so committed to their particular political views that their interventions in debates about moral issues confuse rather than clarify the issue.

AvrilHJ | 21 August 2009  

Let me get this straight - it is immoral to trespass on the bodies of the mentally competent. What should I do if I see someone attempting to jump of a bridge, or slashing themselves with a sharp knife? Should I assume mental competence? Should I ask them, 'Are you mentally competent'? How does one measure mental competence? My conscience tells me that I should try to prevent them, and as we all know, I must follow my prime directive.

Matthew Dewar | 24 August 2009  

There has been some lively discussion about this piece. I think it right and proper that Mr Rossiter be left alone at his request. Could I ask those who disagree with my position a few direct questions.

1. Putting aside all hypothetical cases, what are you going to do for Mr Rossiter, and what do you think you should do for Mr Rossiter?

2. What do you think should be done to or for Mr Rossiter against his will? And by whom?

3. On whom, if anyone, should the law impose a duty in relation to Mr Rossiter when he explicitly requests that nothing be done to assist him at this time?

Frank Brennan SJ | 24 August 2009  

You have answered your own question, Matthew. No-one would doubt that the people you describe are in grave peril from a disturbed frame of mind. They would by any measure be deemed to be incompetent and might make different choices when they were mentally well. We would all have a duty to try to help.

This is a very different situation from someone who has rationally and calmly, and in full acceptance of the consequences of her/his actions, i.e. they are competent, decided they no longer want to be kept alive by artificial means. You have a duty to respect their wishes, and not to impose your own fears upon them.

Patricia | 24 August 2009  

Bishop Anthony Fisher OP has now said, 'No one should force feed (Mr Rossiter) and if he is saying "No" to tube feeding, his nursing home is probably right to follow his instructions.'

In this case, given the clarity that has been brought to the matter in the court proceedings, I would go one step further and say that the nursing home would undoubtedly be wrong not to follow his instructions.

Frank Brennan SJ | 25 August 2009  

Fr Frank Brennan I thank you for this article, together with everything I've ever read of yours.

I am a 31 year old mother of 3 who used to read your stuff way back during my uni days, always with admiration. You have chartered some murky waters for me and called me to social justice in the true sense. This has flowed on to many people I know, including my husband and students.
Whilst I know you are one man, and not the oracle, I also know that your intelligence combined with prayerfulness always seems to point in the direction of Christlike love and respect for all people.

Questions of life and death are some of the most passionate to tackle and it's little wonder the response to this article is as involved as it is. Knee-jerk reactions to hearing a living man wants to "give up" are not useful - your legal and, more importantly, moral explanantions are, as are your questions to consider.
I do not believe Jesus would treat Mr Rossiter with anything but gentle love.
There is only one "issue" which I have ever felt black/white clarity on - abortion. I often feel like I exist on a different planet in this respect. It is like living through the Holocaust as a knowing, helpless bystander. I realise this is not the view of Fr Frank, nor millions of others. I am not affiliated to any group - I feel almost completely unable to help the beautiful little people who we can't see and who are therefore made less valuable, together with their poor mothers.

Mr Rossiter is well able to decide for himself, unlike the billions of babies never given a chance.

Rachel | 26 August 2009  

One of the thorny issues in this not-so-straightforward case is that starvation itself often leads to loss of competence:

"starvation appears to be accompanied by marked psychological changes. Some changes clearly impair competence ..."
[Fessler JME 2003;29:243-247]

Assume Mr Rossiter becomes incompetent at some stage as a result of a chosen course of death by starvation. Assume that resumption of nutrition at that stage is not itself burdensome or futile.

In this case, not resuming nutrition would constitute a failure to provide nutrition (a component of ordinary care) to a non-competent patient on the basis of that patient’s earlier request. That is to say, the patient’s request is being treated constructively as an advance directive. A suicidal advance directive.

A submission by the UK-based Linacre Centre on the ethics of withholding and withdrawing treatment is I believe relevant here:

“… not any reason a person may have for refusing treatment makes refusal of treatment in that person's 'best interests'. So the fact that a person who is now incompetent made an anticipatory declaration or gave an advance directive that he should not receive treatment in certain circumstances does not as such make it to be in that person's 'best interests' that one withhold treatment.

If the reason for anticipatory refusal of treatment was bad then one does not act in an incompetent person's 'best interests' by respecting that refusal. Since that person can no longer exercise responsibility for himself, the responsibility others have to act in his best interests requires that they ignore a bad reason for refusing treatment.
What sorts of bad reason for advance refusals of treatment should be ignored? Most importantly, any reason which, in anticipation of some future state of the patient, identifies that state as so unacceptable that withdrawal / withholding of treatment is demanded precisely in order to put an end to the life of the patient. The anticipatory refusal is, in other words, suicidal in character. This is a bad reason for refusing treatment because it is inconsistent with recognition of the dignity of the patient. If we are to say that every person possesses human dignity however 'undignified' their condition and circumstances (and, as we have seen, we must) then we are prevented from regarding any life as lacking worth. The fact that a person when competent had an anticipatory view of his own life as not worth living under certain circumstances provides no one with a reason for ending that person's life. It is neither a view of the value of his life which anyone is justified in sharing with him, nor could such a view of a person's life provide a justification for killing.”

“Withdrawing and Withholding Treatment” p. 14 (at www.linacre.org)

(Sorry to have grossly exceeded word limit.)

Hugh | 27 August 2009  

Fr Kevin McGovern, Director of the Caroline Chisholm Centre for Health Ethics, which is sponsored by the Catholic hospitals of Victoria, has now discussed the Rossiter case and said, “Except in exceptional circumstances a request to discontinue tube feeding could not be honoured in a Catholic hospital or aged care facility. It is against our values. A patient who persists in this request may have to transfer to another, non-Catholic facility.” Could not a Catholic facility in good conscience continue to provide care and spiritual support for such a competent patient while honouring his wishes? I am not saying that a Catholic facility would be obliged to, but neither do I think that a Catholic facility would be obliged to show him the door or force feed him as he approaches death.

Frank Brennan SJ | 03 September 2009  

In his comment (above) on my opinion about the case of Christian Rossiter, Fr Frank Brennan asks whether a Catholic hospital can do anything other than “show him the door or force feed him as he approaches death.”

Whether it is with a patient who asks to be killed or with another patient who asks for an abortion, both health care professionals and health care institutions must be free to exercise conscientious objection. In this country, Catholic hospitals follow the 'Code of Ethical Standards for Catholic Health and Aged Care Services in Australia', and they must be able to refuse to provide treatment which conflicts with this Code.

It is never easy to remove oneself from a case, and health care professionals often feel very sad as they recognise that either they or their health care institution can no longer care for this patient. Even so, there are respectful ways of saying that you cannot support a patient’s choices, and therefore that it would be better for everyone if they sought this treatment somewhere else. As health care professionals know, this respectful conversation is something quite different from “showing someone the door.”

The laws of the United Kingdom also create quandaries for health care professionals, and the Catholic Church there has provided guidance in a booklet titled 'The Mental Capacity Act and Living Wills: A Practical Guide for Catholics.' Question 5.6 considers what health care professionals should do if a patient has refused artificial nutrition and hydration. The Guide states that health care professionals “should not formally cooperate with the withdrawal of this aspect of care (if this withdrawal is clearly against the best interests of the patient. They may have to withdraw from the care of the patient altogether.”

Catholic Health Australia and the Australian Catholic Bishops Conference have provided similar guidance in 'A guide for health care professionals implementing a future health care plan.' It also recognises that “in such cases, the health care professional or institution may have to decline to be involved further in the care of the patient or resident.”

Kevin McGovern | 04 September 2009  

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