The arbitrary nature of euthanasia 'safeguards'

It is a simple statement of fact that, in terms of euthanasia and assisted suicide legislation, so-called safeguards never live up to their hype nor promise.

Some have wryly observed that no law ever stops people from breaking said law, no matter what the subject matter. True enough; but few laws deal with the finality of death. This is effectively an admission that safeguards are never safe – abuse will happen.

The trouble is that euthanasia and assisted suicide laws give licence, in supposed prescribed circumstances, for the laws against homicide to be breached. We're effectively saying that it is okay to kill people or to assist in their suicides if the conditions attached are fulfilled.

This is beyond ridiculous. What makes it seem attainable is the miasma of false compassion (and attendant 'horror' stories) and the promise of safeguards to protect the vulnerable.

Some have attempted to argue that there is no risk to vulnerable persons. If that were the case, why would we need safeguards at all? But even if doctors and nurses, family members and carers all acted with absolute ethical probity, without even so much of a hint of 'nudge-nudge, wink-wink' the risk of wrong diagnoses and prognoses alone should still foreshadow enough of a problem for legislatures to say, No.

Yet supporters of euthanasia & assisted suicide and the promoters of bills still push hard for their objectives. Adjectives like 'strong', 'robust', 'effective' and 'comprehensive' are often used to bolster the noun: safeguards. Yet belying these claims we find that failed bills get reworked and represented along with the 'new and improved' tag that makes it seem more like a washing powder promotion than a bill designed to kill people. The continued failure in Australian jurisdictions should really gladden the hearts of euthanasia activists, at the very least because their earlier, flawed bills were dispatched to the dustbin!

Recent developments in Belgium which saw their Senate pass a bill to extend euthanasia to children and to Alzheimer's sufferers' points to another side of the discussion about the failure of safeguards. Call it the 'slippery slope' or 'incremental extension' or 'the inevitability of bracket creep'; what is really happening here is the clear identification of 'safeguards' as arbitrary.

Belgian Senator Dr. Louis Ide said, in defence of his support of the new bill:

A calendar age to me is an abstract concept, and it is separate from the reality, but it is a criterion like to use lawyers...With this new law, the new law on euthanasia more responsive to the social reality... Anyone who looks at this law honestly, notes that it is an adaptation of the previous euthanasia so that it responds to a better social reality. (Google Translation)

While it may be true that a 'line-in-the-sand' at 18 years of age cannot account for every person's maturity and development, it was, nonetheless, included as a 'safeguard' in the original Belgian law:

Section 3 The physician who performs euthanasia commits no criminal offence when he/she ensures that:

§ The patient has attained the age of majority or is an emancipated minor, and is legally competent and conscious at the moment of making the request:

Note also the term 'competent and conscious' which under this original prescription, denied euthanasia to Alzheimer's sufferers also.

It is legitimate to question whether or not the original Belgian law would have passed in 2002 had these 'safeguards' of age and competency not been present at that time. Certainly, if a bill were presented in any Australian parliament that would allow for child euthanasia or euthanasia for people whose ability to consent is questionable; it would be laughed out of the chamber!

This all points to another reality: that the existence of euthanasia laws creates deep and almost indelible changes to any society where it is legally practiced. What is legal is moral. The law provides boundaries that human nature pushes against almost constantly. Move those boundaries to accommodate the push and, inevitably over time, the push will come against the newly defined boundary. This is the human experience and why, until relatively recently, all societies resisted such changes.

Historian, Kevin Yuill recently observed this phenomenon in a different way. In his blog postentitled: The Evolution of the 'right to die', he asks: What happens when assisted-suicide campaigners achieve their aims of legalisation? Do they go home and say 'job well done'? Or do they continue to campaign for euthanasia and assisted suicide to be extended to more and more people?

In reflecting upon the incremental extension in both The Netherlands and Belgium, Yuill sounds a warning to Quebecers and the euthanasia bill under debate there:

Voters in Quebec who will soon consider Bill 52, which would legalise euthanasia in the Canadian province, should keep in mind that this is where voluntary-death campaigns are headed, despite the much-vaunted 'safeguards'. A society that thinks those who are terminally ill and depressed should be given the option to die will logically extend such 'benefits' to those who are over 70 or to others who are simply 'tired of life'.

No, the 'right-to-die' brigades in The Netherlands and in Belgium have not 'gone home'. In fact, the number of groups and their activities has increased, not decreased. This confirms the observation that the initial attempts to legalise in those places in 2001 and 2002 were really more about establishing a beach-head than they were about providing an end to a limited number of people.

Moreover, as Yuill notes by use of the term, 'benefits' it should be apparent to all that the passage of any bill – even a strategically limited one – creates a 'benefit' or 'right' for which there can be no logical defence of limitation. Why shouldn't children and people over 70 have the same access to this 'benefit'?

In a surprising moment of candour, Scottish MP, Margo MacDonald, who recently tabled her second attempt to legislate for assisted suicide in Holyrood, admitted that her latest bill was a first step:

Ms Macdonald has also indicated future plans, asserting that if the bill is passed and able to operate effectively for a number of years, there may be opportunity for further developments in the law that would offer hope "to other categories of people seeking assistance to die.

Why not? That at least has the defence of being realistic and honest. Because, when we look logically at the 'rights agenda' that informs and also distorts the euthanasia and assisted suicide debate, the limitations (safeguards) that supposedly render any bill as onlyfor limited persons and circumstances are really little more than a sales pitch to secure the Holy Grail of 50 per cent plus one of the vote.

Tasmanian Doctor and former Speaker of the Tasmanian Parliament, Frank Madill observed in a debate once that the most common bill before any parliament is an Amendment Bill. He was making the point that laws often have unforeseen consequences that need to be corrected. But it also invites the observation that successive parliaments can and do extend the reach of legislation beyond the intention of those who debated and passed the initial Act.

Intentions, even the best of intentions, don't define the extent of the law. Only the clauses and penalties do that. But even they are subject ultimately to whether or not the limiting clauses can be maintained, whether prosecutions for wrong doing are reasonably possible and whether or not breaches of the law are actually prosecuted.

In every jurisdiction where euthanasia and/or assisted suicide is legal, there are failures in one or more of these critical areas.

It's time to face the realities that, like the fable of the scorpion and the frog, failure to protect people and failure to contain to whom the law will apply are part of the DNA of every euthanasia bill. The frog died because it allowed itself to be convinced against reason that the scorpion would act contrary to its own nature. Both reason and experience tell us about the multiple dangers of meddling with the prohibitions on homicide, an over-reliance on emotions and a Utopian view of human nature. As with the hapless frog, it will not end well.