Euthanasia: let's clarify what the law is before we debate changing it

The subject of tonight’s ABC Australian Story is 70-year-old Bernard Erica. He has terminal cancer and was promised the strong sedative Nembutal to end his life by prominent euthanasia advocate Rodney Syme, according to the ABC. For this, Dr Syme claims he may lose his medical licence and could even face criminal charges.

Pressure to legalise euthanasia, or assisted dying, has become a somewhat fashionable, progressive cause in Australia today. In increasingly urgent statements, many proponents express incredulity that, in a supposedly humane society, the “right to die with dignity” remains unsupported by law.

Advocate and broadcaster Andrew Denton has written of how “hard to believe” it is that “a competent adult who is dying, and who begs for help to die quickly, [is] told they have to die slowly…”

Statements like this - and equally polemical responses from opponents of euthanasia - create the false impression that the subject of euthanasia is simple. In fact, it is extremely complex. What is more, the debate has been stuck for decades in polarised and simplistic proclamations and slogans. If we are ever to make progress we have to change this.

The first step towards achieving such change is to clarify where the law actually stands with regard to euthanasia.

A range of issues

The euthanasia debate encompasses a range of difficult issues. There is the question of how, in a pluralist and multicultural society, we can ensure respect for diverse ethical viewpoints and prevent noisy interest groups from using their media power to overwhelm opponents.

There is also the question of the proper role of the law in deciding ethical disputes in civil society. Traditionally, the job of legislation was not to enforce one particular ethical viewpoint over others but to provide a safe framework within which all of them could flourish.

There are concerns about the extent to which we can have confidence that the limits and safeguards necessary for a system of assisted dying will remain secure forever.

Certainly, the ease with which accepted rights have recently been disregarded under the guise of fighting terrorism, or restricting the movements of refugees - in Australia and other countries - doesn’t provide much comfort.

Bernard Erica, who has terminal cancer, was promised the strong sedative Nembutal to end his life by euthanasia advocate Rodney Syme. Jackie Cohen/ABC, Author provided

Many doctors have expressed concern that legalising assisted killing would undermine the core values of medicine. Shifting the focus from relieving suffering to terminating life might sound like a small step to some, but in reality it represents a reversal of very fundamental precepts.

In medicine, life has never been the disease and death has never been the cure. Rather, the commitment has always been to care for living persons, even in the darkest and most hopeless of circumstances.

Clarifying the law

Above all, the settings in which euthanasia could be invoked vary widely.

There are, for instance, the cases of terminal illness accompanied by intractable pain. Then there are cases of chronic, but not terminal illness, where a person seeks death over living with the disease. And there are the cases where a person in apparent distress is unable to express an opinion for reasons of cognitive or psychological incapacity.

The appropriate responses to all these situations are likely to be quite different.

The first case is the one that tends to dominate public debate and the response to it seems obvious. It is claimed the law condemns dying patients to continued suffering and therefore needs to be changed.

In fact, this is the one setting where change in the law isn’t needed. In English and Australian law, it has long been recognised that there is no limit to the medical treatments that can be given to alleviate suffering - even if the only way to achieve this involves the death of the patient.

This principle is crucial for medicine, because it means the toolbox to respond to suffering is never empty. A doctor acting humanely and within the bounds of normal professional practice to relieve suffering that incidentally hastens death has never been subject to criminal prosecution in Australia.

Rodney Syme, for instance, has reportedly helped over 100 people end their life. Although he has been interviewed several times by police, he has never been charged, presumably because it has been recognised that in each case he has acted in accordance with this principle.

There is confusion around a lack of certainty in the common law, which tells us that some reform is indeed necessary, both to restate current values and to reassure doctors and the broad community.

This would be easy to achieve and would carry the dual benefits of allaying understandable fears and allowing the debate about assisted dying to move on to address the more difficult, complex issues outlined above.

There are big issues at stake. Let’s find a way to debate them in a mature, careful, respectful, carefully nuanced and evidence based way.