Wednesday, July 6, 2016

Tyranny disguised as autonomy in euthanasia cases.

This article was published on the HOPE Australia website on July 5, 2016

Paul Rusell
By Paul Russell

Director of HOPE Australia.

Two memes dominate the pro-euthanasia rhetoric; choice and pain.

Yet in a significant number of media stories featuring people who want access to euthanasia and assisted suicide we see that it is not pain that is the dominant driving factor; it is fear of the possibility of future pain and, most often the fear of loss of autonomy. The latter is often expressed in terms of not wishing to go to a nursing facility or hospital or loss of freedom of movement brought on by the accumulation of perhaps minor ailments associated with aging.

That many of the people who are featured in such stories would not necessarily qualify under the 'first-step' euthanasia or assisted suicide proposals, such as that offered in the recent Report to the Victorian Parliament, is never mentioned. If this is all really about choice and autonomy, then it is legitimate to ask why some might gain access while others would not have that same 'choice'?

Indeed, experience of pain has been identified as very much a lower order concern in people who had made a request for an assisted suicide death under Oregon state law. Perhaps the message that pain can be dealt with in the vast majority of cases is getting through. Still, there remains an understandable and entirely natural fear of the unknown.

That most people's experiences of such fears are ameliorated once they begin to access good care and support should tell us that fear is no basis for changing the law. And yet it remains the stock-in-trade of those pushing for change.

While autonomy or choice is a more potent argument, it is not without its problems; insurmountable problems. The 'choice' argument is really little more than a clever pandering to the Baby Boomer generation. This generation, broadly speaking, has experienced life very much on their own terms, if not almost entirely so. The desire to control the last 'uncontrollable' in death itself is perhaps the last and most elusive marker for this 'me' generation.

Yet it is entirely possible and increasingly most likely that the early engagement with palliative care for a person experiencing a significant illness will overcome genuine concerns about loss of autonomy and enable the person and their families to make quality decisions about the kind of care they want, how they relate to service providers and how they express their needs and desires. To decide not to engage is entirely up to the individual; that is, unless the services available are not up to standard in some way. In such circumstances it would be an indictment on our society if a failure in service provision and support lead to a loss of choice and autonomy. Euthanasia in such circumstances can never be said to be about choice.

But arguments based on autonomy are never quite what they seem. As noted already, not everyone will get the 'choice' to be made dead under a new law - at least not initially. There are competing realities here - even in where the line is drawn in the first instance - that invite the observation that the meme of choice, like the focus on pain, is very much an illusion.


The appeal to autonomy is not a trump card. Just because someone might choose to make themselves a slave of another does not mean that society ignores its obligations to protect people from slavery. The exercise of autonomy or choice is rarely without some consequence when it butts up against or tries to supplant the autonomy and rights of others.

In terms of euthanasia and assisted suicide there are always consequences. The autonomy of others is inextricably involved. In the final analysis, it is the doctor's autonomy that either results in the person being made dead or not. Indeed, every law on euthanasia or assisted suicide protects the doctor and his or her choice to be involved in making a person dead. Doctors can refuse to take part; but if the issue turns on the matter of autonomy of the patient, then even the ability of a doctor or a care provider to say no to euthanasia will eventually be called into question.

Two recent experiences bear this out. Last week a Belgian Court judged that a Catholic Nursing facility, who refused to allow the euthanasia death of an elderly woman resident in 2011, did not have the right to refuse. A few days ago the Quebec Minister of Health said that it was 'totally illegal' for the McGill University Health Centre (MUHC) to refuse to allow euthanasia or assisted suicide in their palliative care unit.

Both matters are complicated. The Belgian case would seem on the surface to be a conflict between the rights of the institution to refuse to cooperate on moral or religious grounds and the rights of the patient. However, the history of euthanasia in Belgium tells us that Catholic institutions have cooperated in the past and that the division in services between Catholic health care and the state is not always clear cut, with many facilities being jointly run between the two arms of care. The case has all the hallmarks of activism by pro-euthanasia forces to dismantle the last vestiges of official opposition.

What is clear from this case is that the court has decided that institutions do not have a right to refuse; one report on the judgement says the nursing home has no right to 'intervene in the agreement between the patient and the doctor'. Clearly, the autonomy of the doctor and the patient trump any reservation on the part of the health care provider. This draws the obvious conclusion that, while the Belgian law sees euthanasia as an exception and not a right, that the intervening years since 2002 (when the law was enacted) and the acceptance and promotion of euthanasia in Belgium over time has rendered any conscientious and rights-based objections as useless or, at best, a lower-level consideration.

Similar observations can be made about the Quebec situation. The Quebec law provides that a privately run Palliative Care institution can opt out of providing euthanasia and assisted suicide. In the MUHC situation, however, the palliative care facility is part of the hospital. The hospital, itself, is providing for people who wish to be made dead; all they require is that the person be moved from the palliative care unit to another part of the hospital and that they have had an ongoing relationship with the hospital over the preceding 18 months. Hardly an imposition according to comments given to the Le Devoir journal:

Asked about the reasons for the exemption and its impact on patients, Vanessa Damha, spokesman for the MUHC claimed that patients could at any time receive assistance to die at the MUHC, but in another unit. "We are obliged to offer it, but physically, this is going somewhere other than the palliative care unit".

Dr. Eugene Bereza, Director of Applied Ethics at McGill made the thinking of MUHC clear:

'To explain the exemption granted to the palliative care unit of the University Hospital, he (Bereza) argued that after lengthy discussions, the management had to come to "a balance between patients' rights and the history of 'palliative care unit of the MUHC, "whose mission and philosophy have always been alleviating suffering, not assistance to die." we have to respect our history and doctors for whom it goes against their conscience. If, over time, it brings inconvenience or a burden [for patients], we are prepared to reconsider our position. But it is not anticipated that this will be a burden", he has said.'
The Health Minister, Gaétan Barrette however, is incensed by this directive: “They (MUHC) have a level of independence they have exercised, obviously, and this is within the directives I have put forward. If they do not abide, I will change my directives,” he said. So, MUHC has two alternatives: change their position or have it changed for them by the minister. No 'balance' to be struck; no alternative to be countenanced.

So, whatever motivated the Belgian nursing home or the McGill hospital to say no is simply not acceptable. Never mind the fact that the woman concerned in the Belgian case was transported to another place for the sake of her euthanasia without difficulty; never mind that a patient at McGill would get their desired death in another ward.

So, what are these two objections then in the greater scheme of euthanasia and assisted suicide in Belgium or Canada? In Belgium perhaps we are seeing the very last thorn in the side of the establishment being eradicated. In Canada, though private dissent is still tolerable for the moment at least, the MUHC holdout at a publicly funded facility is not acceptable.

This is not autonomy, it is a form of tyranny. These straightforward directives by internal decision-making forums in both localities, which in probably every other situation is an exercise in legitimate corporate autonomy, are clearly being seen by the particular euthanasia regimes as a challenge that goes to the very heart of their cause: to insist that being made dead is a 'right'. Even if not a conscious goal, being made dead as a 'right' is the logical conclusion and end point of any enabling legislation; something that legislators should keep firmly in mind.

In overturning the decision of a lower court this week and in confirming the existing prohibitions on euthanasia and assisted suicide, the New Mexico Supreme Court may well have had Belgium and Canada in mind:

[W]e agree with the legitimate concern that recognizing a right to physician aid in dying (sic) will lead to voluntary or involuntary euthanasia because if it is a right, it must be made available to everyone, even when a duly appointed surrogate makes the decision, and even when the patient is unable to self-administer the life-ending medication.
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