April 2nd 2011

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Articles from this issue:

ENERGY SECURITY: What Australia must do before the oil runs out

EDITORIAL: Nuclear panic: the first casualty is truth

China leading the way with safe nuclear energy

JAPAN: Why Japan will recover from Sendai quake-tsunami

NATIONAL AFFAIRS: Water Act won't work: Harvard professor

CANBERRA OBSERVED: Gillard's line on same-sex marriage, euthanasia

EUTHANASIA: SA euthanasia bill sidesteps safeguards

DEVELOPMENT AID: Australia funding abortions in Mongolia

FOREIGN AFFAIRS: Good intentions not enough to defeat Gaddafi

UNITED NATIONS: Gender diversity battle at UN women's session

CULTURE: Hollywood's war on our children

FAMILY AND CIVILISATION: The growth and decline of the Roman economy

FEMINISM: How feminism demeans women and destroys families

CINEMA: Stalin's forgotten victims remembered: Peter Weir's The Way Back (rated M)

BOOK REVIEW: Obama, the questions mount

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SA euthanasia bill sidesteps safeguards

by Paul Russell

News Weekly, April 2, 2011

Doctors could kill patients with no fear of legal reprisals under a controversial new euthanasia bill recently introduced by South Australian Labor MP Stephanie Key.

This latest SA push will make euthanasia simply a “private matter between the patient and their doctor” in much the same way as current abortion practices. All previous attempts to legalise euthanasia in Australian states or territories have sought to create either a stand-alone statute or an amendment to existing palliative care acts.

Key’s novel approach seeks to create an exemption within the criminal code to the charge of murder. Her Criminal Law Consolidation (Medical Defences — End of Life Arrangements) Amendment Bill 2011 inserts an amendment which provides a series of defences for medical practitioners, and those assisting them (including nurses), who kill their patients or provide the means for their patients to commit suicide.

The bill states that the “defendant” (either a treating medical practitioner or nurse) can use this defence if, on the balance of probabilities:

“• the defendant believed on reasonable grounds that the person was an adult person of sound mind who was suffering from an illness, injury or other medical condition that irreversibly impaired the person’s quality of life 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 of the person; and

“• the conduct to which the charge relates was, in all the circumstances, a reasonable response to the suffering of the person.”

Essentially the law would still concede that such an action was homicide, but that a defence against such a charge could be pleaded.

The bill goes on to add a peculiar clause that gives direction as to the intent of the parliament to a court of law. It says: “In determining whether particular conduct was a reasonable response to the suffering of a person with a qualifying illness, 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, including where palliative care measures have not relieved the person’s suffering to a level acceptable to the person.”

What does “reasonable” mean? It would appear that a simple defence, such as “I believed, Your Honour, that my actions in killing Mrs Smith were reasonable”, would be sufficient defence. It is as though parliament were declaring: “If the doctor defended his/her actions as ‘reasonable’, then we (the parliament) think they’re ‘reasonable’ too, and so should a court of law.”

It seems, essentially, to be a clause designed to dissuade the Director of Public Prosecutions from taking any case to court.

As with Holland’s permissive euthanasia laws and practices, this bill would not impose any reporting requirements on medical professionals willing either to kill their patients or to provide assistance in their suicide.

The sole guidance in these matters would be the flimsy subclause, listed above, letting the defendant off the hook if he or she believed “on reasonable grounds” that the patient’s suffering “had become intolerable to that person”.

The only risk to a doctor, or anyone aiding him or her, would be if someone complained.

However, any medical practitioner who, for whatever reason, wanted to act outside the intent of this law (by, for example, killing or assisting in suicide where consent was not given by the patient), would simply need to ensure that no-one was present who could provide contrary evidence as to the conduct.

This would be particularly easy if the patient was living at home.

Essentially, this bill legalises euthanasia and assisted suicide on demand, and further could enable a doctor in certain circumstances to commit murder with little fear of legal reprisal.

In promoting her bill, Stephanie Key first tried to reassure the public by saying:“It is important to note that this bill does not decriminalise murder, manslaughter or assisting someone to commit suicide, nor is it a bill that supports voluntary euthanasia. Voluntary euthanasia, as we know, is not allowed under the Criminal Law Consolidation Act, and we do not have laws in this state that support voluntary euthanasia.”

Then she promptly contradicted herself by saying: “What this bill does is provide a defence for persons — treating doctors and medical practitioners and their assistants — providing primary care to a prescribed person should they be charged with hastening or bringing about the death, or intending to do so, of a patient suffering at the end of their life.” (House of Assembly: Hansard, March 10, 2011).

It is plain, however, that her bill does create exceptions for euthanasia and assisted suicide, and does decriminalise murder under prescribed circumstances

Furthermore, a defence already exists in SA’s State Palliative Care Act against “bringing about a death” where the intention was to relieve pain and not to kill.

This bill avoids the pitfalls of debating the effectiveness or otherwise of “safeguards” (so-called) which have dogged every previous debate, simply by not providing any.

Dr Philip Nitschke must think all his Christmases have come at once!

Paul Russell is executive officer for Right to Life NSW and founder of HOPE: Preventing Euthanasia and Assisted Suicide.
URL: www.noeuthanasia.org.au

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