Voluntary Euthanasia - a new radicalism

I was kept waiting for several minutes in the hall. The person I had come to Wollongong to visit had asked her husband to explain to me that this was so she could "make herself presentable". Eventually I was ushered into the dimly lit room where Sarah, lying on a bed propped up with multiple pillows, offered me a limp hand and gestured with her eyes for me to sit down.

She came rapidly to the point.

"I’ve motor neurone disease", she said, "a particularly aggressive form it seems, given that it was only diagnosed six months ago, and now, as you can see, I only have a little movement left".

She raised her left arm again, slowly, to demonstrate.

"I know this disease can get very rough, and I want to be ready, prepared, so that if things get too bad, I can end it, and end it myself so that my husband isn’t involved."

Sarah’s story was compelling, but in no way unique. EXIT (Australia) voluntary euthanasia clinics operate in all Australian cities, and currently we have five patients with this disease. Their anxiety and interest in voluntary euthanasia is prompted by the knowledge that death from motor neurone disease (MND), a disease that progressively robs the patient of all voluntary muscular control, can indeed be difficult. The patients are all well aware that in the last stages of this disease they may find themselves unable to move their arms or legs, be able to speak, or even swallow, and they know that they can quickly lose the ability to end their lives without help from others.

Their choice for them is a simple one: acquire the drugs that will provide them with a peaceful death and take them while they still can, or risk being trapped in their body enduring a slow and inevitable death. The only other possibility, one that most will not even consider, is to ask a loved one to break current law and help them administer a lethal dose, an action that could well result in the helper’s incarceration for 20 years. Each MND patient attending EXIT clinics sought information on the type or drugs that would give them a reliable and peaceful death, availability and most importantly, advice on how they could best predict when to take the drugs so that they would not need to involve their partners, children or very close friends.

The sad fact is that it is now five years since the world’s first voluntary euthanasia law, the Rights of the Terminally Ill Act in the Northern Territory was overturned by the Federal parliament. Sarah and any other sufferer of motor neurone disease would have qualified to use the NT law and could have been helped to die if and when they chose, instead of having to deal with the additional stress of having to acquire drugs secretively and of feeling that they have to use them more quickly than they wish, so as not to expose those they love to some serious legal risk. Since the removal of this innovative Territory law, no significant progress has been made either towards its reinstatement or the introduction of similar legislation into another state.

Across Australia, suicide is a legal act, but "advising, counselling or assisting" can attract the most savage of penalties. In Queensland, for example, the penalty can be life in prison. This presents something of a paradox. How can it be that to advise someone on an action that is legal, can be considered so illegal as to attract a penalty of 20 years in prison? And the definitions of what exactly constitutes "advising, counselling or assisting" are well recognised by the legal profession as extremely grey and ambiguous.

Kep Enderby QC, Federal Attorney General in the Whitlam government, outlined the issues in a public presentation in February:

"The concept of "assist" or "help" or "aid" is variously expressed in the different jurisdictions. It can be a very vague concept.

The absurd situation is that anyone who attends and is present while some one commits suicide, even if only with the intention of giving comfort and support to that person, could well be found guilty of the crime of "assisting" that person to commit suicide; to do something that itself is not a crime, something which, as far as the criminal law is concerned, society permits. An absurdity if ever there was one.

Sometimes a bad criminal law can produce and create more social mischief than that which it was intended to overcome."

Frustration over the slow pace of legislative change has led to an increasing number of terminally ill people prepared to speak publicly about their plight. EXIT estimates that less that 1 per cent of those who are dying, and wanting to access voluntary euthanasia, are prepared to speak out. This percentage has now risen significantly. Also, among the supporters of voluntary euthanasia, there is also an increasing preparedness to challenge existing laws directly rather than simply adopting the usual strategies of lobbying politicians and writing to the press. Nancy Crick’s case has brought both of these trends together.

Nancy made it clear when she found bowel cancer was ruining her life, she was not going to die quietly. She sought out and employed new strategies to get her story out in an unedited form. Her Internet diary was launched in February and has been a spectacular success. Thousands of people from nearly 60 countries have been in touch with her commenting in her Internet guest book on her public account of her dying. As support grew, many heartened by her stand, decided to directly challenge the existing laws and planned an act of mass civil disobedience. Such strategies have not previously been employed by the supporters of voluntary euthanasia. Twenty-odd people were in the room with Nancy when she took the legal step of ending her life with lethal barbiturates she'd obtained. The group consisted of friends and relations, some quite sick and some very elderly, and they all risk a possible penalty of life imprisonment. They will not physically help Nancy consume the drugs, however the legal advice obtained from several sources is consistent: they all risk prosecution.

Just how the Director of Public prosecutions will react in such a situation is unclear. While the legal circumstances may warrant action, the national and international political fallout that will result from such a trial is something the Queensland government may wish to avoid at all costs.

Commenting on this Terry O’Gorman QC, President of the Australian Council of Civil Liberties, has said:

"There is always a discretion of the DPP to prosecute but, as you know better than most, agitation by particular pressure groups may force the DPP to charge.

If charges were laid at committal hearing, there inevitably would be a case to answer found against those charged.

Whether a jury would convict or not is a matter which is extremely hard to predict. There are some cases in history where juries have acquitted against the face of overwhelming evidence because a jury disapproves of a particular prosecution which they see as oppressive. However, my knowledge of such cases is that they are historical rather than current."

This new radicalism that is beginning within voluntary euthanasia movement is a direct consequence of the political suppression of this social movement. For over 30 years polls in Australia have showed that nearly 80 per cent of Australians want legislation that would allow the provision of help to assist a terminally ill person to die. Most politicians, and the major political parties, fearing the inevitable backlash from powerful and organised religious groups sit on the fence and close their eyes. In the most recent vote, the NSW upper house voted on a Bill essentially the same as the Northern Territory's. Here 75 per cent of politicians voted against what 75 per cent of people in NSW, when asked, say they want.

Leaving things unchanged though, is to condone the current system where the well connected and affluent get help if required and access to lethal drugs that will guarantee a peaceful death, while the rest are left to take their chances. It’s no surprise that the commonest way the elderly sick voluntarily end their lives in Australia is by hanging. The reasons are simple: anyone can do it, you need no special skill, it always works and rope is readily available.

This month, the Australian Medical Association will debate the issue at its annual general meeting in Canberra. This is the first time since 1997 that this body has considered the issue and on that last occasion they overwhelmingly rejected physician assisted suicide and euthanasia. As they acknowledge in the background paper being distributed prior to the conference,

"With the impact of chronic diseases and an aging population, end of life decisions will be an issue of concern to most Australians. It is important that AMA members engage in the discussion of these issues and that the AMA contribute to the broader debate."

It remains to be seen if Nancy and the actions of her supporters have moved us any closer to the goal of a more just and equitable society, one that truly recongnises the rights of the terminally ill. My suspicion is that in the current climate, more Nancy Crick’s are necessary and inevitable, along with increasingly direct and confrontational challenges to a legal system that simply does not reflect the wishes of the people.