South Australia – Euthanasia Bill: An Analysis

South Australia House of Assembly Bill No 88 – Criminal Law Consolidation (Medical Defences – End of Life Arrangements) Amendment Bill 2011

By Alex Schadenberg

The South Australia private members bill (the bill) that is sponsored by Steph Key MP to legalize euthanasia and assisted suicide is unique and dangerous.
The bill amends Criminal Law by creating a defense to euthanasia and assisted suicide, for physicians, if prosecuted.

The bill is a radical change to medical ethics by enabling physicians to directly and intentionally kill their patients and it gives the court power over undefined statutes based on what the court considers as reasonable.

The bill is more dangerous than other frameworks that I have seen that legalize euthanasia and assisted suicide.

The language of the bill allows unbridled euthanasia and assisted suicide without definitions possibly based on a false assumption that physicians will not abuse the Act, since conviction is possible. Subsection (6) of the bill even denies physician groups the right to self-regulate the Act, while Dr Philip Nitschke will be happy to open a euthanasia clinic and challenge the court to allow euthanasia for people who are “tired of living.”

The bill amends Section 13 of the Criminal Law Consolidation Act by creating a defense for physicians who are prosecuted under the law.

The bill allows a physician to directly and intentionally cause the death of their patient who is:

- believed, on reasonable grounds (undefined) to be an adult person of sound mind who was suffering from an illness, injury or other medical condition (not terminal) that irreversibly impaired the person’s quality of life (undefined) so that life had become intolerable to that person (the qualifying illness); and
- the conduct to which the charge relates occurred at the express request (undefined) of the person; and
- the conduct to which the charge relates was, in all the circumstances, a reasonable response (undefined) to the suffering of the person.

The bill will allow a physician to directly and intentionally kill a patient who is not terminally ill, if that patient is suffering from a chronic condition. People with disabilities who experience a medical condition that impairs their “quality of life” (undefined) and people who are “tired of living” killed by their physician if their physician believes death is reasonable (undefined).

As if the bill was not written widely enough, Subsection (3) of the bill encourages the court to acquit physicians who have been prosecuted if:

- the conduct to which the charge relates was done in good faith (undefined) and in the ordinary course of the defendant’s employment; and
- the conduct of the medical practitioner in relation to the death or intended death of the person was, in all the circumstances, a reasonable response (undefined) to the suffering of the person.

Subsection (3) of the bill would enable Dr. Nitschke the freedom to lethally inject any patient because it would become the ordinary course of his employment.

Subsection (3) does not define when euthanasia is a “reasonable response to the suffering of the person.” It is unlikely that physician could be convicted for euthanasia under this Act because the language is written for an undefined application.

Subsection (4) of the bill encourages the court to acquit the physician by stating:

- A court may acquit a defendant under subsection (3) even if the medical practitioner has been convicted of an offence arising out of the death or intended death of the person.
Subsection (5) encourages the court to apply a definition of “reasonable response” (undefined) within an already wide framework. It states:
- a court must have regard to the fact that the Parliament intends that conduct bringing about the end of a person’s life is a reasonable response to such suffering in exceptional circumstances (undefined), including where palliative care measures have not relieved the person’s suffering to a level acceptable to the person.

Subsection (6) removes civil liability and the power of the Medical Association to punish a physician who was prosecuted and has now been acquitted. The court must only be concerned that:

- provided that the conduct was done in good faith and without negligence; and
- that court may make such ancillary orders as the court thinks fit.

The South Australian parliament needs to kill the bill. The bill gives physicians near absolute power to directly and intentionally cause the death of their patients. The bill steers people with disabilities and others who live with chronic conditions to euthanasia. These are the people who the current law protects from those who believe that the lives of some people are not worth living.

The bill must be seen for what it is. It is a law that is designed to impose death on the most vulnerable in society. The bill is not concerned with the veneer of choice or autonomy because it is designed to give the power over life and death to physicians. This bill will turn healers into killers and it will redefine the nature of medical care in South Australia. The bill is a travesty of justice.