Thursday, September 20, 2012

Paul Russell: Do not cross the clear bright line.

The following is the text of the speech by Paul Russell in Aberdeen Scotland. Paul Russell is the founder and leader of HOPE Australia.

Paul Russell
Australia was the first nation to legalize euthanasia & assisted suicide back in 1995 in the Northern Territory. We then became the only country to overturn such legislation a year later.

Since that time the issue has been debated repeatedly in various states, especially in my home state of South Australia where, in the current parliament alone five bills have been introduced with another two slated for the spring sitting which is currently underway.

In most of these bills we have seen both euthanasia and assisted suicide included in the legislative package. Repeatedly, and supposedly against the tide of public opinion, our parliaments have rejected such legislation.

In 1998 the Tasmanian Parliament undertook an inquiry into the issue. There was no bill pending at that time, so this was a wide ranging inquiry on the issue in general terms. They found that the legalisation of voluntary euthanasia would pose a serious threat to the more vulnerable members of society and that the obligation of the state to protect all its members equally outweighs the individual’s freedom to choose voluntary euthanasia.

What is at issue here is the way society responds to concerns at the end-of-life and, more specifically the appropriateness of euthanasia & assisted suicide as a compassionate response. Even in the pursuit of our right to make our own choices, to take control of our own circumstances we must ever be mindful of the effect that such pursuits have or may have on the fundamental rights of others to be treated equally.

Euthanasia & assisted suicide legislation will put some people in circumstances where they may be abused, where their rights may be compromised. Euthanasia & assisted suicide legislation cannot be made safe.

What we’re talking about is legislating to allow people to kill other people.

Unless you’re posing a serious and present threat to my life, I can’t kill you. That’s a good thing. We all enjoy this protection in law equally, every one of us.

But, now we’re saying that it’s okay for someone else to kill you and to be involved in your death.

That is the fundamental issue: we will be making an exception to the Criminal Code that changes the laws on homicide. That is serious stuff.

We’d be creating a right for someone else to kill us or, to put it another way, a right to be killed.
We’re clearly talking about rights now. But what would be the nature of this right? Firstly and fore mostly it would be a ‘human right’. After all we’re not talking about our pet hamster.

Human Rights have universal application. Human Rights intrinsically apply to all people in all places at all times – that’s their nature. I don’t believe that this is a human right, but that’s effectively what it would become.

So all this talk of limiting the scope of such legislation to sub sets of the human family such as the terminally ill for example is baloney.  We can’t create such a right and then expect to legitimately limit its application.

But that’s precisely what almost every bill I have ever seen has attempted to do. People may genuinely believe that their bill should only ever apply to a limited number of people in limited severe circumstances. However, insurmountable problems exist both in the framing of these limiting factors and associated safeguards (so-called) and in the consideration of the implications of the right to be killed as a universal.

The Dutch passed euthanasia legislation in 2002. From 1984 the Dutch courts began to extend euthanasia to people living with chronic depression (mental pain); later to children who were born with disabilities, and other vulnerable groups. The 2002 legislation sought to codify the court rulings and to regulate the practice.

Euthanasia practice in the Netherlands now includes access for teenagers (with or without parental consent) to people with Alzheimer’s (for whom the ability to give informed consent has diminished) and to people experiencing loneliness.

In 2005 there were 550 cases of euthanasia in the Netherlands without request or consent. In 2010 the figure was 310. Wow! It’s getting better! Cold comfort for the 310 perhaps! In the Flanders region of Belgium request or consent was absent in 32% of cases.

Informed consent is absolutely necessary for any medical procedure – it is notably absent here – and yet there have been no prosecutions. For those people who died that way, a fundamental human right to make their own choices has been denied.

In 2005, 20% of Dutch euthanasia deaths were not reported. In 2010 this rose to about 23%. In the Flanders region of Belgium only 52.8% of euthanasia deaths were reported in 2007.

Recently the Dutch created mobile euthanasia teams to ‘meet unfulfilled need’ in the community by visiting people where they live. One press statement suggested that this was partly about where the local doctor had refused euthanasia to a patient. The thought of vulnerable or frail people being euthanased in their homes where the possibility that they might be pressured by a relative to ‘do-the-right-thing’, which cannot be discounted or accounted for, really shook me.

Most recently, Right-to-Die-Netherlands endorsed a website that has, as part of its agenda, the scrapping of the law against non-medical people being involved in assisted suicides. The standard, if you can call it that, of medical involvement at least gives a nod to the idea that a dispassionate and professional third party has some chance of protection against abuse. This is perhaps the last hurdle.

I’m reminded of a comment Philip Nitschke made at one of the debates we’ve had in respect to the Dutch where he said that he felt that they were quite wedded to their legislation. And I think he’s right. But why?

The only valid conclusion, I believe is that the Dutch by and large see the right to be killed as exactly that: a universal right. Little-by-little over more than two decades they’ve seen the expansion of euthanasia to more and more circumstances, to more and more people. In that context, the mobile units give people access to their so-called ‘human right’ to be killed.

I’d like you to think this through with me: If, for example, the latest bill to be defeated in South Australia had been successful in its attempt to limit the application to people in the terminal phase of a terminal illness, how long do you think it would be before someone who was not at that final stage piped up and said:That’s not fair, I want to die too! I’m being discriminated against!

And what if that bill had passed and then we began another debate in which someone put an amendment to broaden the extent of euthanasia & assisted suicide to another sub set of the community: would we then be debating whether or not a ‘right to be killed’ is justified under our law? No, we will have already accepted that principle in passing the earlier bill. We’d only then be debating the merits or otherwise of including others.

Such a debate would effectively be a foregone conclusion – there would be no rational reason for denying that right to a particular group; to argue this way would be totally illogical not to mention discriminatory.

Make no mistake: crossing the clear bright line here is never a matter of partially crossing – cross for some and we cross for all.

In respect to safeguards and limiting factors: their purpose is simply to help make us and our legislators feel a little less uncomfortable about legislating for killing. That’s about it.

In the last Western Australian debate MP Robin Chapple said that he knew his restricted bill wouldn’t please everyone but that it was a ‘good start’. This clearly implies that someone else can come back and try to amend and expand it at some future moment. Sir Terry Pratchett who funded the Falconer Inquiry in the UK bemoaned the fact that the final recommendations didn’t go far enough.  In 2010 in South Australia, MP Mark Parnell observed in reflection upon the failure of his own bill, that too many safeguards would make any bill too restrictive and inaccessible; the corollary of this stark admission is that to make a bill work we must accept an increasing level of risk from abuse.

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.

Let’s look at it from another angle. In many bills we’ve seen that two doctors need to examine the patient and complete forms. What if this wasn’t done? Would the responsible doctor be charged with homicide? No, he or she might simply say that they’d done all the prerequisite checks but simply hadn’t done the paperwork. That might be true, but it might not be true – who would ever know – the principal witness is dead. Let’s face it, they would probably get some kind of reprimand or fine for not filing the correct forms where the reality might be that they’ve gotten away with murder! In the Netherlands it is acknowledged that some of the under reporting is due to the fact that some doctors do see killing a patient as a law-given right rejecting any necessity at all for reporting.

Of course, there is a way around the possibility of legislation being extended in the manner II have described. Simply do like the Dutch have done and express the legislation so broadly that everyone can be included on the subjective basis of ‘hopeless suffering’.

There will always be people whom, for whatever reason, have a diminished ability to stand up for themselves or who suffer some significant ailment that makes even the basics of daily living difficult.

Counter to that we find a straightforward dismissal of this reality from some in the pro-camp. You will often hear it said that vulnerable people are not over represented in the deaths in Oregon, The Netherlands and in Belgium. This statement leans heavily on a study by a pro-euthanasia & assisted suicide activist academic who came to this conclusion on the basis that most related deaths in those places were for people with good incomes, people who were white and who had above average levels of education.

What is being suggested here? Firstly we’re being asked to accept the fact that such people are not, as a socio-economic demographic, ever likely to be vulnerable. But secondly, we’re also being asked to accept the corollary that vulnerable people are generally non-white, poor and under educated. You can draw your own conclusions about that assumption; for me, I find such a racial and class-based inference intolerable.

Vulnerability makes no distinctions. Yes, certain groups within our communities do feel concerned about euthanasia & assisted suicide because within their cohort there will always be a higher number of people for whom life pose some significant challenges; I think of people living with disabilities, like my son, Joseph for example. But the reality is that all of us, at some stage of life and in some circumstances can experience vulnerability.

People who receive a diagnosis of cancer are 12.6 times more likely to commit suicide. People with depression are 4.1 times more likely to request euthanasia. This isn’t rocket science, is it? I think we all understand that. And some of us will have experienced something of that - myself included.

In his recent article for CNN, Dr. Charles Raison, associate professor of psychiatry at the University of Arizona said: In fact, even psychiatrists have a difficult time predicting when someone is at heightened risk for suicide. That’s worth thinking about in terms of changing the laws here. This renders any inclusion of a psychiatric opinion almost worthless.

We know too, that the worldwide phenomenon of Elder Abuse is a serious and growing concern: where elderly people are preyed upon, usually by people who care for them – often a family member; that such abuse includes financial, sexual, physical and emotion abuse. These people need and deserve protection.

It is estimated that about 5% of people over the age of 65 experience some form of Elder Abuse. In Queensland alone the reported 30,000 cases per year is only part of the story because Elder Abuse is significantly under reported. It is a growing problem in all western nations and is being called in some quarters, the crime of the century.

In the years ahead we will be entering the time of the largest wealth transfer ever experienced in history when the wealthiest generation the world has ever known begins to pass away. In the US, elder abuse for financial gain is already being termed ‘inheritance impatience’ in some places. The implicit and possibly explicit pressure for elders to ‘do the right thing’ cannot be dismissed and can only intensify.

Euthanasia & Assisted Suicide could well provide legal cover for the ultimate in Elder Abuse and who would ever know?

Recall the words of the Tasmanian Inquiry when they found that the legalisation of voluntary euthanasia would pose a serious threat to the more vulnerable members of society and that the obligation of the state to protect all its members equally outweighs the individual’s freedom to choose voluntary euthanasia.

The criminal code prohibiting homicide protects us all equally. With euthanasia & assisted suicide legislation we begin to treat some sections of our community unequally; we begin to put some at risk of abuse. And for some the advent of such legislation may create thoughts that they’re ‘better off dead’ that their lives are of less value than others.

None of us wants ever to be in a position where our only defence is to rely on the law. But if we ever are, we’ll all want those laws to be there to protect us.

How many people would be abused under any change in the laws? I can’t say. But what we can say is that whenever we talk about the statistics we’re talking about real people. If the law failed to protect one person then it’s a bad law.

This type of legislation deals with life and death; that’s a far more serious a matter than our parliaments usually deal with and if we are to retain equal protection of the lives of all citizens we need to take this very seriously.

Ultimately, euthanasia & assisted suicide law is bad law because it fails to protect people. Equality is honoured and served by maintaining the current laws. Our abiding instincts to be compassionate can and should be expressed, but compassion is about bringing care and relief to people suffering, not to eliminate the sufferer. I think we can do much better than that.

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