Dr Greg Pike: carving out a defence to a particular form of killing

Southern Cross Bioethics Institute Director Dr Gregory Pike (pictured) breaks down the Criminal Law Consolidation (Medical Defences – End of Life Arrangements) Amendment Bill 2011

Unlike other attempts at voluntary euthanasia legislation, the Bill currently before the South Australian parliament operates by carving out a specific defence to a particular form of killing. Euthanasia law that is structured in this way will have a similar effect to law that expressly permits euthanasia and assisted suicide, but with none of the safeguards.
The Commentary on Criminal Law Consolidation (Medical Defences – End of Life Arrangements) Amendment Bill 2011 seeks to overprotect medical practitioners who, if acquitted, are assured protection from civil liability or any liability arising from a disciplinary proceeding. Such overprotection is unjustified.
For a successful defence the defendant must prove the following:
– The defendant is the person’s treating medical practitioner.
– The person was an adult of sound mind.
– The person was “suffering from an illness, injury or other medical condition that irreversibly impaired the person’s quality of life so that life has become intolerable to that person.”
– Death was at the express request of the person.
– The death was “a reasonable response to the suffering of the person”.
The only witness to the death may be the medical practitioner. 
The Bill permits circumstances in which the only source of evidence may come from one individual.  While the community would hope that all its medical practitioners would be beyond reproach, this has not always proven to be the case. 
The Bill provides broad protection for doctors who may, for a variety of reasons, be disposed towards ending their patients’ lives.
The medical practitioner may be the only one making the determination about whether a person is of sound mind.  Medical practitioners are not always in the best position to make such a determination, and no psychiatric assessment is required.
Indeed, no second opinion is needed either, which is extraordinary considering the gravity of the matter.  It is possible to be depressed enough to want to end one’s life and yet be of sound mind.  Thus, patients with mental health issues are at considerable risk, people for whom treatment may have been of considerable value.
The phrase, “suffering from an illness, injury or other medical condition that irreversibly impaired the person’s quality of life so that life has become intolerable to that person”, is so broad as to permit many circumstances well outside the scope of those promoted even by euthanasia advocates themselves. 
There are numerous illnesses, injuries or other medical conditions that impair quality of life and are irreversible. The only scale by which impairment is to be measured is the entirely subjective assessment by the person that life has become intolerable. 
Objectively, the impairment may be minor, but the psychological state of the individual may create a sense of intolerability.  Furthermore, with many conditions, apparent irreversibility may be reversed by medical advance. 
New treatments are continually coming on line, but not all medical practitioners will be aware of them. 
Coercion from the doctor, family members or any other person who would stand to gain in any way, financial or otherwise, could press vulnerable people to the point where their circumstances seem intolerable to them. 
There is no way such influence can be accounted for in this Bill and, in any case, after the fact it is too late. Someone is dead. 
People who consider themselves a burden to others might say things have become intolerable for them; but in reality what creates the sense of intolerability is that others continually reinforce that they are a burden. 
It would not be too far-fetched to envision a small group of ‘euthanasia doctors’ who, for a range of reasons consider certain groups of people, such as the disabled, as unworthy of life.  Subtle coercion from such a culturally powerful figure as a doctor, directed towards a vulnerable person to accept euthanasia or assisted suicide, is a dangerous mix. 
This Bill would defend such coercion, which would potentially be easily concealed. 
The requirement that death be at the express request of the person is intended to enshrine the concept of informed consent, a foundational idea in modern medicine. 
However, there is no requirement stipulating what information must be provided to a patient. Indeed, what information should a doctor provide to someone interested in euthanasia? 
The question is fraught. Again, the doctor may be the only witness to what information, if any, has been provided.  However, it is likely that were this Bill to pass, doctors prepared to carry out euthanasia could ensure that a routine series of forms were signed by the patient, forms designed to ensure an adequate defence for the doctor in accordance with the Bill. 
It is not hard to generate the appearance of probity when a bill such as this is so broad.
The request can be merely implied.  What does this mean?  Presumably, it means that, in his or her defence, the medical practitioner who aids, abets or counsels a suicide would need to provide proof that the person had implied that they wanted assistance with suicide. 
It is unclear what could constitute such evidence.  Perhaps wanting to see a doctor to discuss suicidal thoughts could be construed as an implied request for assistance with suicide? With a matter as serious as the ending of someone’s life, attempts to divine an implied desire to commit suicide are entirely unsatisfactory. The effect is to protect doctors from prosecution rather than provide carefully considered protections for vulnerable people who may be considering euthanasia or assisted suicide.
This Bill is a particularly broad and permissive version of euthanasia/assisted suicide legislation.  It could even be viewed as reckless.  It would be of comfort to doctors disposed to either euthanasia or assisted suicide that such a Bill appears to protect them so adequately from prosecution.  By contrast, weak and vulnerable patients stand to lose literally everything.