Legislative Council – South Australia
Wednesday, 14th March 2001
Extract from Hansard
DIGNITY IN DYING BILL
The Hon. SANDRA KANCK obtained leave and introduced a bill for an act to provide for the administration of medical procedures to assist the death of patients who are hopelessly ill and who have experienced a desire for the procedure subject to appropriate safeguards. Read a first time.
The Hon. SANDRA KANCK: I move:
That this bill be now read a second time.
I have been a member of this parliament for more than seven years, but today is the proudest moment of that time. Today I am introducing my Dignity in Dying Bill which, if passed, will allow access to voluntary euthanasia for hopelessly ill people who make a request for it to be carried out. When a majority of members of the Social Development Committee recommended to this parliament that voluntary euthanasia legislation not be proceeded with, I told the media that this issue would not go away, and that I would ensure that it would not. Today I am keeping my promise.
Voluntary euthanasia is an idea whose time has come, and progress is being made around the world. It is arguably the foremost social issue facing us as politicians. The great majority of the public-almost 80 percent in South Australia-want such legislation passed but, so far, the majority of politicians have ducked for cover. In other jurisdictions, some have exhibited courage, however. Although truncated by a reactionary federal parliament, the Northern Territory was the first place in the world to have legal voluntary euthanasia.
In Western Australia, the Democrats’ Norm Kelly has introduced voluntary euthanasia legislation on four occasions, and in New South Wales the Green Party’s Ian Cohen has announced his intention to introduce voluntary euthanasia legislation into that parliament. I will speak a bit more about the South Australian history in a moment. XXXXX Internationally, the State of Oregon in the United States has its Physician Assisted Suicide Act. This allows doctors to prescribe medication, leaving the patient to decide, first, whether to have the prescription filled and, secondly, if they do that, whether or not they will take the medication. This is regarded as the most forward legislation in the United States.
For years in the Netherlands voluntary euthanasia has been accepted in a framework which deemed it a criminal act but which was not prosecuted if it was carried out within a certain set of guidelines. That country is currently putting the finishing touch to legislation that will see legal voluntary euthanasia from next month. However, developments occur in unexpected places. Who would expect that the Republic of Colombia-a country that has a population of which 95 per cent are Roman Catholics-would be setting an example to other jurisdictions?
Last year’s World Conference on Assisted Dying held in Boston in the United States, which I attended, heard a presentation from the Hon. Mr Carlos Gavira, Chief Justice of the Republic of Colombia Constitutional Court. On 28 May 1997 the full bench of the High Court of the Republic of Colombia unanimously determined that the state could not outlaw assisted dying for a mentally competent, terminally ill adult, nor impose a penalty on anyone who aids that person out of mercy. The court instead determined that the Colombian Constitution justifies intervention in dying. According to Mr Gavira the court found this way for a variety of reasons which include:
1. The individual is autonomous.
2. A pluralistic society implies there will be varying meanings to life. (For some but not all life may be sacred. Both Socrates, who died for his right to question ideas, and Jesus Christ, who died for the sins of others, demonstrated that clinging to life is not the only alternative.).
3. People can freely choose between life and death.
4. Life is a right and not a duty.
5. There is a basic human right-the right not to be forced to suffer-and a person assisting someone to die in these circumstances is removing unwanted suffering.
Such views, of course, hold equally well in South Australia as they do in the Republic of Colombia. Although Colombia’s High Court threw down the challenge to the legislators in 1997 to follow up their ruling with appropriate legislation, they have failed to do so. The reluctance of legislators to tackle the issue of voluntary euthanasia appears to be a world-wide one.
I now turn to the history in South Australia, where there have been two previous voluntary euthanasia bills. Back in 1995, after six months of debate, the Consent to Medical Treatment and Palliative Care Act 1994 was passed. Some in this chamber who argued against it are now supporters of it. The act is not, I stress, a voluntary euthanasia one, but it does ensure that a patient can refuse medical treatment which they regard as intrusive, burdensome or futile and, under section 17 of this Act, if with the patient’s consent a doctor administers treatment as symptom relief which has the side effect of hastening the patient’s death, action will not be taken against the doctor. This practice is known as terminal sedation and produces something called double effect, about which I will speak later.
Meanwhile, back in 1993 the South Australian Voluntary Euthanasia Society (SAVES) began preparing a draft bill under the guiding hand of Mr Eric Garget, whom I acknowledge for his tireless contribution in ensuring that this issue is back on the agenda today. But out of the blue a bill appeared in March 1995, introduced to the House of Assembly by the member for Playford, Mr John Quirke. It was the first voluntary euthanasia bill to find its way into the parliament and it was, sadly, soundly defeated 30 votes to 12 some four months later. That bill strictly limited the opportunity to request voluntary euthanasia to those who were suffering from a terminal illness that was likely to cause death within 12 months. Unlike the Consent to Medical Treatment and Palliative Care Act, it contained no provision either for advanced requests or for the appointment of a medical agent.
Meanwhile, the work being done by SAVES with its draft bill continued and it was taken up by the Hon. Anne Levy when she introduced its bill into this chamber in November 1996. That bill did contain advance request and medical agent provisions. It passed the second reading stage with the votes of some in this chamber who are opposed to voluntary euthanasia but on the condition that it go to a select committee. The committee was formed, its existence and terms of reference were advertised around Australia, written submissions were solicited and received, a research officer was appointed, and then a state election was called and the committee was no longer in existence. So, when the new parliament was formed, the Hon. Carolyn Pickles moved to set up a new committee with the same terms of reference, but a majority in this chamber amended her motion, voting against the wishes of the mover and referring the bill instead to the Social Development Committee. Given the make up of the Social Development Committee, it was widely anticipated that the committee’s final report would come out with recommendations against voluntary euthanasia. So, when four of the six members of that committee ultimately released a report with just those recommendations, no- one was surprised. The Hon. Bob Such and I produced a dissenting statement to those recommendations.
This Dignity in Dying Bill is the third voluntary euthanasia bill that has found its way into the South Australian parliament. The twist on this occasion is that the same bill will be introduced into the House of Assembly by the Hon. Bob Such, so we will have the unique conjunction of the same bill in both houses at the same time. This is a voluntary euthanasia bill, but I have chosen to name it the Dignity in Dying Bill, because it describes what the bill is about. The title was one that emerged as a result of my decision to attend the World Conference on Assisted Dying. In the lead up to attending the conference, I received an e-mail from one of the organisations that were to be represented at the conference, which advised that its group had a motto `Death with dignity’. I thought it was a pretty good slogan in terms of saying what that group was working towards and decided that it would be a good name for the bill I intended to introduce.
But some people fear death. It sounds sudden: now you are fully alive and now you are not. Mostly, it is not that simple. Death is a process, sometimes a very long, agonising and undignified one at that. The word `dying’ says that we are talking about a process, just as birth is a process and in between is life. So I decided to substitute the word `death’ with `dying’. We will all die. The difference between some deaths and others-the difference that drives others and me to seek the passage of voluntary euthanasia legislation-is that it can be undignified and worse. The dying is a given: what can be lacking is dignity in the process. So, what we are seeking-dignity-is rightfully now the lead word in the title of this bill.
Why is this legislation needed? Let me turn to some comments made at the Boston conference in regard to Oregon’s Physician Assisted Suicide Act. Of those who have used the Oregon act, when asked why they were accessing it, loss of autonomy and dignity were given as the principal reasons. No matter how good the pain management, overwhelming weakness and fatigue cannot be controlled. In the first year of operation of the Oregon act, a total of 15 people hastened their deaths by using the act and 27 in the second year. For the two years 1998 to 1999, there were 60 000 deaths in Oregon, of which 43 used assistance in dying. When so few people have used the act, why is it important that it be able to continue working? The answer is that because of the act tens of thousands of people in Oregon have been able to face death knowing that they will not have to face a terrorised death. These are not people who want out: they want to know where the key is.
People have asked me, `Why now?’ I have previously said that the best time to introduce controversial legislation is immediately after an election when politicians would be more likely to support it, but I have changed my view. This is an election year and we know that we will be facing a state election within 12 months. By having legislation appear at this time, it puts the spotlight on all members of both houses who will be up for re-election, and my wish is that by highlighting the issue at this time voters will be encouraged to find out not only how their own MP stands but how all other candidates stand on this issue.
How is this bill different from other bills? There are limits to variations on a voluntary euthanasia bill, but this bill is arguably the best in the world. I put on record my thanks to the members of SAVES for their continuing input and support in getting the bill to this point and to Aimee Travers of Parliamentary Counsel for the work she has done in putting it together in the written form.
In putting the bill together we have taken particular note of the comments made by the Law Society in its evidence to the Social Development Committee. This bill is different in that we have produced and incorporated a set of objects and a Dignity in Dying Act Monitoring Committee. A majority of that committee would be composed of representatives of conservative organisations. Every doctor who participates in the hastening of a death of a person using this act would be required to submit a report to the State Coroner who in turn must forward a copy to the minister, who would have to forward it to the monitoring committee. The committee would then be able to take an overview of every such death and would be able to make recommendations to the minister at any time about needed changes to the act. Of course, with the reports in the coroner’s hands, there is always the option for further investigation of individual cases and consequent action by the DPP.
The local branch of the Australian Medical Association (AMA) stated that it preferred to opt for palliative care. But is it an either/or question? Palliative care and voluntary euthanasia are not mutually exclusive. Palliative care allows for the disconnection of life-sustaining technology which can allow for some form of voluntary euthanasia if, for instance, your disease is lung cancer and a ventilator is keeping you alive. But, if you are unfortunate to have, for instance, a brain cancer, there will not be the equivalent of a ventilator that can be disconnected, and one does not usually get to determine which debilitating condition might hit you.
I am a strong supporter of palliative care, and it is perfectly feasible that a person who is hopelessly ill would use palliative care to its fullest extent and opt to hasten death via voluntary euthanasia, if the palliative care is no longer able to provide for the patient in terms of pain, discomfort or dignity. Just as I have given the example of a person with lung cancer being able to disconnect from the life support system, there are other examples where the patient can be let down by the current laws. Terminal sedation is basically available only to those suffering a great deal of physical pain. But what if your pain is psychological? If you do not, for instance, want to continue life being pricked and prodded, confined to your bed, developing bed sores, perhaps vomiting, perhaps with diarrhoea, you will be compelled to stay alive.
Some members may allow their views on this issue to be informed by public statements of the leaders of the Roman Catholic church, so we should consider what the church has to say about freedom. Items 1 730 and 1 738 from article 3 of the Roman Catholic Catechism were signed as recently as 11 October 1993 by that none too radical Pope John Paul II. Item 1 730 states:
God created man a rational being, conferring on him the dignity of a person who can initiate and control his own actions. God willed that man should be left in the hand of his own counsel so that he might of his own accord seek his Creator and freely attain his full and blessed perfection by cleaving to him. Man is rational and therefore, like God, he is created with free will and is master over his acts.
Item 1738 states:
Freedom is exercise in relationships between human beings. Every human person created in the image of God has the natural right to be recognised as a free and responsible being. All owe to each other this duty of respect. The right to the exercise of freedom, especially in moral and religious matters, is an inalienable requirement of the dignity of the human person. This right must be recognised and protected by civil authority within the limits of the common good and public order.
More recently, Sydney’s Archbishop Gleeson, in an article in the Australian of 3 March this year headed `Fusion of Belief and Science is Possible’, stated:
When the church speaks of human life as sacred, it affirms, along with those other religions and no religion at all, that every human being is a person in their own right, beyond the manipulating will of another, a someone who may never be treated as a mere means to an end, who is unique and irreplaceable, with an inherent dignity and worth.
I do not wish to pick a fight with any religion-I respect the rights of others with different belief systems from my own-but I also ask for those others to observe tolerance of mine. We live in a multicultural society. Jewish people believe that we should not eat pork, but they do not try to push that view onto the rest of society. We have Hindu people in our community who say that we should not slaughter cows. Most of us in this place are not vegetarian, we eat beef, and we would be most upset if members of the Hindu religion tried to prevent us from eating beef.
Some Christians believe that it is wrong to access right-to-die legislation, but it is a belief system. They have their right to their belief: others have their right to their beliefs. To deny the right to access voluntary euthanasia under the guise of religious authority is to deny freedom of religious expression in our society.
I have sometimes heard it said that we treat our animals better than we do some people when they are dying. Just last week, two lions at the Adelaide Zoo were euthanased, one because it had arthritis and the other because it had cancer of the jaw. I heard it said in a radio interview that this was the most humane-I did not make up that word-thing to do for those animals. So, why is it that we cannot allow humans to be treated humanely? At the Boston conference that I attended, one of the right-to-die societies reported that it was considering the use of a bumper bar sticker or a T-shirt with a slogan that said, `I want to die like a dog.’
There was quite an amount of media coverage at that conference, and the Boston Globe of 2 September 2000 included, on the very same page as its coverage about the conference, a story about a horse which was euthanased because it had contracted West Nile virus and had `severe central nervous symptoms, including disorientation and paralysis’. A horse can be euthanased if it has these symptoms: a human being cannot.
The medical profession has a lot to say about this issue. The medical profession has always fought change, including vaccination and blood transfusions. I note that the South Australian branch of the AMA has come out in opposition to this bill. In contrast, the New South Wales branch has left it up to each of its members to determine their own position. I must give credit to the local AMA and its President, Dr Michael Rice, for meeting with me to discuss the bill and at least being willing to look at the legislation.
The preamble to the AMA’s position statement `The Care of Severely and Terminally Ill Patients’ contains an interesting acknowledgment, as follows:
. . . while for most severely and terminally ill people, pain and other causes of suffering can be alleviated, there are some instances when satisfactory relief of suffering cannot be achieved.
The AMA said that. So, it is saying, `Yes, for some people, dignity may not be there, but we are not going to allow legislation that will give a person that dignity.’
The Hon. T.G. Cameron: Do they put a figure on it?
The Hon. SANDRA KANCK: No, not in their statement. If we do not legalise voluntary euthanasia, the alternative for doctors is what I referred to before as terminal sedation and double effect. If it is true that some patients might lose trust in their doctors if we have legal voluntary euthanasia, we must also seriously look at the impact of the double effect on the doctor, his patients and their relatives.
In double effect, a doctor can prescribe pain relief in doses which will ultimately lead to the death of the patient but, provided the doctor’s motive is to reduce pain, no crime is deemed to have been committed when the patient dies. So, it appears that it is all in the motive: if the doctor’s motive is pain relief and the patient dies, then he is acting honourably but, if another doctor gives identical pain relief to someone with an identical illness but with the motive of putting the person out of his or her misery, that doctor becomes a criminal according to our laws. Identical disease, identical act, identical death, but one doctor is a saint while the other is a sinner; we praise one while we castigate the other; we call one a palliative care specialist while we call the other a murderer.
This is a practice which encourages doctors to deceive themselves if not to overtly lie to both the patients in some cases and the relatives of the patients. What does this do to doctor/patient relationships? Which does the most damage to a doctor/patient relationship: the potential for a doctor to hasten a patient’s death at their request through legal voluntary euthanasia or the current system that causes some doctors to act covertly, to use sophist arguments to justify what they are doing, and to lie to relatives?
Edward Lowenstein, Professor of Anaesthesiology and Bioethics at Harvard University Medical School, told the World Conference that, in encouraging doctors to lie, double effect has an erosive effect on them. Michael Irwin, a former Medical Director of the United Nations, told the conference that double effect is society’s wink to euthanasia, that it is both a help and that it is full of hypocrisy, and that double effect adds to medical paternalism. XXXXX It is a theological doctrine developed by St Thomas Aquinas and backed by Pope Pius XII. According to Dr Rodney Syme, a Melbourne urologist, being a medieval doctrine, it pays no heed of the patient and ignores the moral value of compassion. In double effect, death must be foreseen but not intended. The potential for doctor self-deception, therefore, is substantial. Dr Syme powerfully describes the erosive effect of double effect on doctors, as follows:
Terminal sedation is intellectually dishonest, morally ambiguous, ethically dubious, often lacks dignity, is inefficient, may lack autonomy and is futile.
Nevertheless, it protects the legal and moral interests of the doctor. If anything erodes trust in doctors, this must.
At the World Conference, I met a quiet, gentle, caring old man who, according to the statutes of his country, is a criminal-a murderer. Mr Christian Sandsalen is probably one of the most unlikely people to have been categorised as a murderer, and I definitely had no fear for my safety in his presence.
In Norway, in June 1996, Dr Sandsalen- and I say `doctor’ because he was a doctor then-had euthanased a woman suffering from multiple sclerosis at her request. The circumstances of the death were as follows. The 45 year old woman had been suffering from multiple sclerosis for 20 years. For more than a year she had been begging her family to assist her to die. They were too scared to help her, but ultimately they arranged for Dr Sandsalen to visit her.
With the exception of some small head movements, her body was paralysed. She was confined to her bed with large wounds on her back, and she was totally incontinent with restricted respiration. Her mind was very alive, however, and she feared death by suffocation. She asked Dr Sandsalen if he could give her some tablets to take, but he advised her that her digestive system would be unable to break down tablets effectively and that lethal injection of morphine would be the only effective method. He asked her to think about it over the ensuing week and said that if she wanted to go ahead he would require proof of her request to provide himself with some protection.
A week later, when he again visited, she spoke her wishes to a video camera (obviously, because of the paralysis caused by the MS, she could not write) and explained why she wanted this action taken. Two days later the doctor acceded to her request. Her last word was`Takk’, the Norwegian word for `Thanks’. She fell into a coma 10 minutes after the injection had been given and died five hours later.
Dr Sandsalen then reported himself to the Attorney-General. He was charged with and found guilty of murder, although he was given a suspended sentence. His doctor’s licence has been revoked, as has his membership of the Norwegian Medical Association. With the gentleness and caring that he displayed, what an extraordinary loss he must be to his patients. It is a Norwegian example, but it could just as easily happen here: when a doctor acts responsibly and humanely he faces the risk of condemnation and criminal action when he ought rightly to be praised.
For the individual denied access to voluntary euthanasia who does not know a friendly doctor who will take that chance on intervention, suicide or self-help may be the only alternatives that they see available to them. At the Boston conference, we were told of an instance in the US, where a woman had just received a cancer diagnosis. She asked her husband to take her life, which he did there and then by hitting her over the head with a hospital oxygen bottle. A post mortem subsequently showed that she had been given an incorrect diagnosis. Self-help is not the ideal solution.
ABS figures reveal the methods of suicide used by the over-70s in Australia, ranging from hanging to drinking weedkiller. There is surely no dignity in these methods. Do we not owe it to the older members of our society and those with hopeless illnesses to offer something better than this? When doctors are forced by our legal system to absent themselves from the decisions of their patients there is a greater chance that a wrong decision will be made. Because of the hostility of politicians in Australian parliaments to voluntary euthanasia, the antipathy of the medical profession, and the possibility of a long wait before voluntary euthanasia legislation is passed, Dr Philip Nitschke, the first doctor in the world to legally hasten the death of a patient, and others, have formed the Voluntary Euthanasia Research Foundation. This body is investigating other non-legislative, peaceful, end-of-life solutions that you and I will be able to access if politicians and medicos keep standing in the way of people who want to ensure dignity in their dying process.
I will repeat what I have already said about what the Roman Catholic Church has to say in its catechism about freedom, as follows:
Every human person, created in the image of God, has the natural right to be recognised as a free and responsible being. All owe to each other this duty of respect. The right to the exercise of freedom, especially in moral and religious matter, is an inalienable requirement of the dignity of the human person.
I ask honourable members to recognise the wisdom of these words. I ask them to show that respect to the rights of others by allowing them to exercise their own free will and allow the passage of this bill. In the event that any of us become hopelessly ill, we are asking not to end our lives but to end death. I seek leave to insert the explanation of clauses in Hansard without my reading it.
Hon. CAROLYN PICKLES secured the adjournment of the debate.
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