Euthanasia: tackling a 'wicked' policy problem

Euthanasia is a policy issue in Australia that has yet to be seriously tackled let alone resolved. Green Party Senator Bob Brown's private member's bill, Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010, that is still before the Senate, reminds us that while euthanasia is not presently top of the policy agenda, there is still the potential for legislation to be passed in the life of the present Commonwealth Parliament. Senator Brown's bill would give the ACT and NT legislatures the power to legalise euthanasia – whether they would choose to do so or not is another question. It is also still in the realms of possibility that the current Gillard Commonwealth Government could decide to legislate nationally on euthanasia, if it judged such action to be both constitutional and popular and given its dependency on the Greens for survival. While the constitutional power of the Commonwealth to legislate to either permit or prohibit euthanasia is open to question, few questions are asked about the nature of the supposed overwhelming public support for legalising euthanasia and just what the long term implications might be across a range of other policy areas.

Majority rules in a democracy – does it or should it?

The overwhelming popular acceptance of euthanasia is assumed from the 85 per cent of Australians who responded positively to a single loaded question in a Newspoll survey in 2009:

If a hopelessly ill patient, experiencing unrelievable suffering, with absolutely no chance of recovering, asks for a lethal dose, should a doctor be allowed to give a lethal dose or not?

Such a confronting, personalised characterisation of the issue of euthanasia ignores its many complexities and subtly muddies the waters around the current legal position of pain relief to the terminally ill. Yet such a level of popular support must be almost irresistible for many of our politicians who see their role in a democracy as reflecting voters' opinions. While in a democracy majority opinion matters and there is a political risk in resisting it, there is at least an equal risk for government and the future well being of our society in introducing bad policy that ignores the full complexity of an issue like euthanasia.

Euthanasia as a 'wicked' policy problem

What makes euthanasia such a difficult issue to address is that it falls into what is defined as a 'wicked' policy problem. 'Wicked' policy problems are so labelled not because they are 'evil,' but because they are highly complex, difficult to understand, resistant to solving and have profound implications for the fundamental institutions of society. 'Wicked' problems are more than just complex, despite a temptation to label all complex social problems 'wicked.' Wicked problems go beyond complexity to encompass uncertainty and divergent values and beliefs. They have a number of characteristics: there are conflicting and diverse definitions of the problem; there is no easy solution to everyone's satisfaction; they are immune to resolution by appeal to the facts and evidence; they cross institutional and conceptual boundaries; they are unbounded in scope, with implications for other policy areas which are not readily understood or predicted; and they usually require action by many individuals and organisations as well as government.

'Wicked' policy problems tend to thrive and increase in a pluralist society like Australia's. As ethicist Margaret Somerville (2004: 5) points out, "In this type of society (pluralist, secular, multicultural), we no longer automatically have access to a received set of values through a shared religion, and we can no longer impose values or assume there is a consensus on them."

Euthanasia fits the definition of a 'wicked' problem well. It has certainly defied solution, as shown by the history of attempts to legalise euthanasia at both state and Commonwealth level in Australia and in other countries. Since 1995, every Australian State and Territory except Queensland, introduced a form of euthanasia legislation which subsequently was either defeated or overturned or lapsed. Overseas where euthanasia legislation has been enacted – notably the Netherlands, Belgium, Switzerland, Luxembourg and Oregon and Washington in the USA – the passage of the law has rarely been the end of the matter. Legal challenges abound, even where the law has only been passed after extensive public consultation. In the UK and Canada, despite comprehensive public inquiries, the legal and ethical status of assisted dying remains an unresolved public policy issue.

Profound disagreement about the nature of the problem is a feature of euthanasia as a public policy issue. The accepted definition is "a deliberate act that causes death undertaken by one person with the primary intention of ending the life of another person, in order to relieve that person's suffering." Euthanasia is thus easily confused with other end of life practices, such as using medication to ease pain and suffering, which may hasten death; avoiding treatment and intervention that prolongs the process of dying; switching off life support; and refusing treatment. Further ambiguity exists in the different forms euthanasia may take – assisted suicide, physician-assisted suicide, voluntary and non-voluntary euthanasia and assisted dying.

This confusion of meaning is underlined by uncertainties in elements of the definition as it applies to people who are 'terminally ill' (what qualifies as terminal and how accurate is the diagnosis?); the meaning of 'unrelievable pain and suffering' (who is to judge and does it apply to psychological as well as physical pain?); and the nature of informed consent and the role of the doctor.

Legalising euthanasia has wide implications, for individuals, institutions and society, and none of the separate dimensions of the problem can be addressed in isolation. Support for euthanasia gives pre-eminence to individual autonomy, self-determination and personal belief, yet euthanasia is far more than an individual issue. The interest of the individual cannot be completely separated from the interest of society. Individual rights have to be balanced against society's responsibility for protecting the most vulnerable, including the aged and dying. The risks to others of allowing individual autonomy may outweigh the benefits to some.

Medicine and law are the main social institutions at the heart of the euthanasia debate. Where euthanasia is legalised, doctors have the problematic gate-keeping role as the arbiters of terminal illness, deciding how terminal it is, administering pain relief and treatment and ultimately, depending on the version of euthanasia legislation adopted, prescribing or delivering terminal medication. Medicine shares this gate-keeping role with the law, which serves a regulating and restraining function, providing safeguards for both doctors and individuals. The many safeguards required in most versions of euthanasia legislation, covering issues such as the meaning of terminal illness and suffering, the patient's decision-making capacity, the interpretation of intention and coercion, the availability of alternative relief, the responsibilities of medical professionals and provision for scrutiny of doctors' decisions, underline the complexity of the issue.

A strong view put forward by anti-euthanasia advocates is that "the very soul of medicine" is placed on trial by euthanasia and that doing harm to medicine would also harm society. This argument is based on the position of trust doctors have in our society. Allowing doctors to intentionally inflict death is regarded as fundamentally undermining that trust.

A distinguishing characteristic of euthanasia as a public policy problem is its moral dimension. It goes to the fundamental principles on which society is based and challenges long-established, previously widely shared societal values. In the absence of institutionalised religion and in the face of the diversity of views in a pluralist, secular society, policymakers and politicians need to search for an ethical base and confront conflicting values.

One of the most commonly raised objections to changing the law to allow euthanasia is the slippery slope argument, a concern with potential abuse, the difficulty of setting secure limits and unintended adverse consequences. The slippery slope argument suggests that legalisation of assisted suicide will lead inexorably to acceptance of other kinds of non-voluntary deaths. This was a major concern for the British House of Lords Select Committee on Medical Ethics in 1994 which concluded that it was impossible to set secure limits on voluntary euthanasia:

to create an exception to the general prohibition of intentional killing would inevitably open the way to its further erosion whether by design, by inadvertence, or by the human tendency to test the limits of any regulation.

While some argue that the law can provide safeguards against the slippery slope effect, others are doubtful and advocate the adoption of the "precautionary principle," an established principle in environmental policy, which has two main elements: the need to anticipate harm before it occurs; and an obligation, if the level of harm is high, for cautious action.

This year in the UK after an extensive process of public debate and exchange of views, the Falconer Commission on Assisted Dying came to a different conclusion from the House of Lords inquiry, supporting a new safeguarded framework to permit terminally ill people to end their own life, finding this preferable to the uncertainties of the current "inadequate and incoherent" legal framework.

Tackling 'wicked' policy problems in Australia

How does a pluralist society like Australia where many policy issues get too easily categorised into partisan political camps before we even have a debate, deal with euthanasia? Should we just act on popular sentiment as fuelled by questionable opinion polling? After all, Australia has done well in the past in managing considerable policy change such as reorientating our economy and having a sustainable welfare system, so why cannot we also tackle euthanasia effectively?

There are three basic requirements for dealing with 'wicked' policy problems like euthanasia.

First, there needs to be time to engage the public in open, depoliticised, iterative discussion of the many dimensions of the problem. This is an absolute necessity for complex social issues with a strong moral dimension like euthanasia, in order to make different perspectives understood and create a shared understanding of the issue to address.

Second, there needs to be reliable evidence and data so as to inform the debate and avoid distortion of the facts, but this alone it is not sufficient when conflicting values and perspectives are at stake. Euthanasia is not an issue where 'evidence' based policy development alone can resolve the matter, but we certainly need to clarify the 'evidence.'

Third, it is essential to have appropriate mechanisms (more than one) for public engagement in informed debate, to explore the range of arguments and to encourage the consideration of wider social implications if an agreed policy solution for the common good is to emerge.

Engaging the public in this kind of policy process would be a welcome new feature in the Australian political process. In recent years, that process has been characterised by: rushed policy development and demands for 'instant' policy solutions; flawed policy processes; trivialisation and politicisation of national policy discourse; and a high degree of distrust of politicians and key institutions. Complex policy problems defy simplistic and populist solutions and call for thorough and extensive public discussion and 'cool' debate. Providing the opportunity for people to think more fully and seriously about important public issues, to be part of a meaningful dialogue and deliberation that acknowledges different values and beliefs, is more likely to lead to a sound and lasting policy solution than an adversarial approach or the 'tyranny of the majority.'