August 20th 2011

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Articles from this issue:

COVER STORY: Political paralysis as markets implode

CANBERRA OBSERVED: The albatross around the government's neck

EDITORIAL: Rudd's ego drives UN Security Council bid

QUEENSLAND: Flood inquiry reports confusion and delays

SOUTH AUSTRALIA: Labor's Right topples another party leader

EUTHANASIA: Providing legal cover for doctors who kill


DEFENCE: Avoiding another Collins-class submarine fiasco

OPINION: Where is Australia going and why?

OBITUARY: Farewell to Resistance heroine Nancy Wake

TURKEY: Turkish army purge spells end of Kemalism

EUROPEAN UNION: Still no end in sight for Europe's debt crisis

UNITED STATES: Same-sex marriage agenda to subvert marital fidelity

VICTORIA: Dear Ted Baillieu: an open letter to a friend


BOOK REVIEW The West possessed

BOOK REVIEW The real history of piracy

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Providing legal cover for doctors who kill

by Paul Russell

News Weekly, August 20, 2011

A new euthanasia and assisted suicide bill, currently before South Australia’s parliament, is by far the most dangerous of such bills to be served up so far.

According to MPs supporting this bill, which was originally moved by Labor backbencher Stephanie Key, the bill isn’t really about euthanasia but only about giving added legal protections for doctors going about their normal business (or words to that effect).

But if the bill isn’t about euthanasia, why does euthanasia campaigner Dr Phillip Nitschke visit Adelaide so often? And why does he persist in saying that he’ll set up a death clinic there?

Furthermore, why does the bill need to amend the state’s Criminal Code and, in particular, the section on homicide? If it were solely about the protection of doctors in the normal course of their work, the more logical act to amend would be the Consent to Medical Treatment and Palliative Care Act 1995, in particular, the subsection entitled: Protection for medical practitioners, etc.

The reason for changing the Criminal Code rather than the medical and palliative care act is simple: the bill is about homicide, that is the killing of one human being by another human being. The Key bill would create an unprecedented legal defence for doctors who kill.

There is a vast difference between allowing someone to die and killing. Allowing someone to die by acceptance of the fact that death is imminent — in other words, by not pursuing active treatment, or by withdrawing burdensome and futile treatment — is an accepted practice, and doctors are protected in doing so by the medical and palliative act.

This current law is important: it allows doctors to work with confidence in the proper care of the patient, and it is educative of where the boundaries lie. It is doubtful whether doctors need any more practical protection than what is already in place; but, even if they did, this is not the bill to achieve that end.

Intentional killing, be it by an action or an omission with that specific outcome is mind, it utterly different.

Stephanie Key’s bill specifically provides “a defence to a charge of an offence … arising out of the death or intended death of a person if the death resulted, or was intended to result, from the administration of drugs to the person by the defendant”.

Death or intended death? “Intended” here clearly refers to a possible occasion where the patient did not die, but it also bells the cat: the intention was death, in other words to kill. And “the administration of drugs to the person” is simply the usual means of doing so.

All that the defendant will have to do, in order to enjoy the protection of these proposed laws, is to prove, “on the balance of probabilities”:

a) that he was, “at the time of the conduct to which the charge relates, a treating practitioner of the person”;

b) that he “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 vague concept of “qualifying illness” being the bill’s criterion for euthanasia or assisted suicide).

c) that “the conduct to which the charge relates occurred at the express request of the person”; and

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

A “reasonable response”? This is a highly subjective term and sets the bar abnormally low on the scale of legal defence.

Who can contradict this assertion of reasonableness? Not the patient. Not the independent witness — none is required. Not the doctor or psychiatrist who gave the second opinion — none is required. Did the patient consent? Who will ever know?

The bill provides a legal defence for assisted suicide in the same manner not only for doctors but also for those assisting the doctor, such as nurses and other doctors.

Already the bill describes only a scenario, post-mortem, when a relative or friend of the deceased lodges a complaint. However, a conviction is made all the more unlikely by a later clause in the bill that effectively directs the court in its deliberations.

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.”

It is unlikely that a public prosecutor would be convinced that action against a doctor would be successful in these circumstances.

Paul Russell is director of the national network, HOPE: Preventing Euthanasia & Assisted Suicide and vice-chairman of the Euthanasia Prevention Coalition International.

South Australian readers who want to take action against this bill should call the NCC SA office on (08) 8363 5044. 

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