There is a lot of public sympathy for a person’s right to die but facilitating the right legally in South Australia is challenging, writes TGB's Mal Byrne.
There is a lot of public sympathy for a person’s right to die but facilitating the right legally in South Australia is challenging, writes TGB’s Mal Byrne.
Many people can contemplate circumstances where they would support a person’s right to die. The most common circumstance would be where the person is receiving palliative care as s/he is the final stages of a terminal illness. If that person’s death was facilitated or accelerated by a high dose of appropriate medication, would anyone be distressed? Would anyone class that as murder? If Parliament could draft a law that staked out the boundaries of that situation in unambiguous terms, would people be more comfortable with legislation permitting voluntary euthanasia? However, it’s not just a question of where you draw the line, but how you draw the line clearly enough so everyone knows where the line is.
South Australian Legislation already allows “passive euthanasia” in certain circumstances. Section 7 of the Consent to Medical Treatment and Palliative Care Act 1995 permits a person of 18 years or more to give a direction that s/he does not want medical treatment if s/he is in the terminal phase of a terminal illness, or in a persistent vegetative state, and becomes incapable of making decisions about medical treatment when the question of administering that treatment arises. The direction must be in writing and witnessed by a Justice of the Peace or lawyer. Hence, if you want to refuse treatment in those circumstances, you should see a lawyer and have a medical power of attorney or power of guardianship, as it is sometimes called, drafted and properly signed. It is important to remember that the Act specifies where a person can refuse treatment. It does not permit anyone to actively assist a person to take his/her own life.
Voluntary Euthanasia as we know it is a crime punishable by imprisonment. Section 13A(5) of the Criminal Law Consolidation Act says that a person who aids, abets or counsels the suicide of another, or attempt by another to commit suicide, shall be guilty of an indictable offence. If the suicide is committed, the maximum term of imprisonment is 14 years compared with 8 years for an attempt.
Clearly, there is a lot of public sympathy for a person’s right to die. However, facilitating the right legally is challenging. Having done a significant amount of estate work over time, I’m aware of the risk of elder abuse. Any law ensuring the right to die must be drafted carefully with the maximum precision to ensure that everyone knows where the boundaries lie and what is acceptable and what is not acceptable. The Ending Life With Dignity Bill 2013 currently under consideration by State Parliament seeks to legalise voluntary euthanasia in certain circumstances. The draft bill is instructive in illuminating the difficulties in fashioning a law with the necessary precision.
1. Terminal Illness
The draft bill mimics the Consent to Palliative Care Act in the way terminal illness is defined. A terminal illness is an illness that “it is likely to lead to death”. A person wanting to terminate their life must be suffering from the terminal illness, but must also be in what is described as “unbearable pain” that cannot be satisfactorily alleviated by medical means. The definition would of course include terminal forms of cancer and probably motor neurone disease. It does not appear to include conditions such as dementia or Alzheimer’s disease as these conditions are not likely to lead to death in the short term. The concept of unbearable pain is also ambiguous. Pain is subjective. From whose perspective is the pain judged to be unbearable, the patient’s or the doctor? Does unbearable pain just mean physical pain or could it be unbearable psychological pain?
This is the area of greatest concern where the strongest safeguards are needed. This is where the greatest risk of murder disguised as euthanasia could occur. The draft Bill requires that a person be of sound mind before they can consent to voluntary euthanasia. The test is the same test as under the Will’s Act on whether a person has legal capacity to make a Will. The person must have a clear mind and complete understanding of the consequence of his/her decision. Hence, it is important that someone contemplating making a request for voluntary euthanasia do so while s/he is well enough to be of sound mind and not delay the decision until s/he becomes too unwell to have capacity. As a person becomes more ill with a terminal illness, the risk is that the illness progresses to a point where the person loses the capacity to make a decision regarding voluntary euthanasia. The same can also be said of a person taking strong analgesic medication or other medication that impairs their cerebral function. At what point does the person become too ill to make the decision? As well as the question of when does a person have the capacity to consent to voluntary euthanasia, there is also the safeguards needed to make sure that vulnerable ill people are not exploited by people with a vested interest in hastening their death. Sadly, in my experience in working in the area of deceased estates, the lure of inheritance does not bring the best out in some people. There is a risk that relatives will make decisions for elders that the elder’s life is no longer worth living and abuse the voluntary euthanasia process. The draft Bill recognises this by eliminating beneficiaries from a person’s Will as the two people in conjunction with two doctors who can witness and attest to the consent to the person requesting voluntary euthanasia.
3. Who is the overseer?
In the draft Bill, requests for administration of voluntary euthanasia must be registered. The Registrar can make enquiries as to the information before him/her and require that any information be verified by statutory declaration. A medical practitioner can administer voluntary euthanasia to a patient who has made a legal request under the Act but has not revoked that request. Death can be facilitated by the administration of drugs, by prescribing drugs for the patient themselves to administer or by withholding medical treatment in circumstances that will result in an end to life. However, a medical practitioner has the right to decline to administer or assist the administration of voluntary euthanasia. Medical practitioners are protected from liability for lawful administration of voluntary euthanasia under the Act. Insurers are not permitted to refuse life insurance payments where the death resulted from voluntary euthanasia. Doctors who administer voluntary euthanasia must make a report to the Coroner within 48 hours of doing so and the Coroner must register the death as by voluntary euthanasia on the death certificate.
A Voluntary Euthanasia Monitoring Committee is set up by the draft Bill to review the legislation in practice and to report to the Minister regarding any suggested amendments or improvements.
There is no doubt that supporters of the Bill have good intentions. However, it’s also essential that those good intentions translate into the utmost skill and care in finalising and possibly enacting a piece of legislation with such significant social consequences. Any “tweaking” needs to be done now and not after the horse has bolted.
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On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.