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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-14 Daily Xml
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CONSENT TO MEDICAL TREATMENT AND PALLIATIVE CARE (VOLUNTARY EUTHANASIA) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 November 2008. Page 943.)

The Hon. D.G.E. HOOD (22:07): Time and again, world wide, the euthanasia issue has been put to a vote or an inquiry, and on each of those occasions, in my view, it has been found wanting. World wide, the only countries allowing the practice of legalised euthanasia are the Netherlands, Belgium, Albania and, most recently, Luxembourg. Oregon and Washington states in the US also allow it, and it is not listed as a crime specifically in Switzerland. Numerous inquiries world wide have criticised and reported negatively on the practice. Indeed, our own Prime Minister (Hon. Kevin Rudd) condemned the practice during an interview on Macquarie radio in just May last year, saying he was concerned that laws allowing euthanasia could lead to the elderly and terminally ill thinking they were a burden on their loved ones and, thus, being forced into opting for euthanasia.

I begin by acknowledging that there are many sincere people calling for active euthanasia. It is, indeed, a difficult area, and I am sure everyone would acknowledge that. I have listened respectfully to the arguments that they have put to me in numerous letters and emails that have come across my desk, and I have tremendous sympathy for people in hospital who are suffering what they consider to be unbearable pain through disease, accident, or whatever the cause may be.

However, I have consistently opposed euthanasia and our party has consistently opposed all bills that have as their objective the legalisation of active euthanasia. We maintain that the position of allowing so-called mercy killing or assisted suicide sends the wrong message about the sanctity of life and may result in some elderly South Australians feeling that they almost have a duty to die so as not to be a burden on others.

Our opposition to active euthanasia is based on a public policy ground that it is inappropriate for a state such as ours to tacitly condone or, indeed, even promote the taking of life, either by suicide, assisted suicide or active euthanasia. One person dies by suicide in South Australia every second day on average. The South Australian rate is 14 per cent above the national average. In my view, our priority at the moment must be to promote the value of human life rather than to see people succumb to the pressure that may be placed upon them to euthanise themselves.

This is not to say that we believe that artificial methods should be employed to prolong life where there are no prospects of recovery—we do not; or indeed when the patient does not consent to medical intervention—that should be up to them. In many medical cases pain relief or other medication is required by a patient even when there is the knowledge that the treatment or pain relief may actually shorten the patient's life as a side effect of that treatment.

If the treatment is required to alleviate suffering or for other medical needs, again, Family First is not opposed to it. We do not argue that life needs to be artificially prolonged or, indeed, that pain be left untreated. I should point out that a number of people I have spoken to who have lobbied in favour of euthanasia have misunderstood that allowing euthanasia laws would allow their life not to be artificially prolonged. Of course, that is not what euthanasia is. When I have explained that on the phone or in person, some people have changed their view during those discussions.

When the figures of four out of five South Australians being in support of euthanasia are commonly quoted, I suspect that many of these people have in mind what I have just mentioned, that is, the administration of a drug to alleviate suffering; or they may be opposed to artificial methods that are sometimes employed to prolong life needlessly. In fact, the majority of survey questions can contain loaded language. Indeed, one survey I was sent, which noted that 80 per cent of people in Adelaide wanted euthanasia laws, actually asked, when I checked the language of the policy:

If a hopelessly ill patient experiencing unbelievable suffering with absolutely no chance of recovering asks for a lethal dose, should a doctor be allowed to provide a lethal dose or not?

That is hardly an objective question: indeed, it is quite leading. Correspondingly, if we asked a loaded question along the lines of, 'Is a doctor's oath that they do no harm important to you, and would you object to a doctor being legally able to harm or kill you?', I suspect that the number apparently opposed to euthanasia would fall just as far the other way. Indeed, I could not believe that numbers alone is a sufficient reason to enact euthanasia legislation, that is, that apparently 80 per cent of people want it. I do not accept that figure, as I have just indicated.

I have seen figures that indicate that of the order of 70 per cent of people want capital punishment introduced in Australia. That is something I certainly would not support, and I suspect that no member of this chamber should support it. Sometimes numbers just do not tell the full story. I personally think that the majority of South Australians, when the methods and circumstances are fully explained to them, would find the active killing of an elderly or sick patient by another person completely repugnant and certainly poor public policy.

Indeed, in the 2002 state election, Philip Nitschke drew the No. 1 spot on the ballot paper for the upper house but was able to get only 10,941 votes—a mere 1.8 per cent of the vote. The other candidate supporting voluntary euthanasia, the Hon. Sandra Kanck of the former Democrats, made a very clear statement before the election that she was in favour of voluntary euthanasia and would introduce a bill during the first session of parliament. Instead of the Democrats' vote increasing it actually fell by 58,000 votes. I suspect that support for active euthanasia is not as strong as often stated.

The Australian Medical Association's Tasmanian President, Chris Middleton, recently affirmed the following:

Legalising euthanasia would definitely poison the doctor/patient relationship, creating fear and distrust.

That is a concern I share. I recently received a letter from Frances Coombe, President of the South Australian Voluntary Euthanasia Society (SAVES), dated 26 June 2009, in which she argued that euthanasia is 'not an issue of conscience', and I agree with her in many ways. I agree with her: it is not an issue that I think allows me or my conscience to support.

I took the opportunity to write to the heads of several churches inquiring of their attitude toward euthanasia, because we have been lobbied by some group claiming to be Christians for Euthanasia. I will read some of their responses onto the Hansard record. The Most Reverend Philip Wilson, Archbishop of Adelaide, wrote this to me:

The Catholic Church's position on euthanasia is clear: the right to life is the most fundamental of all human rights and one which cannot be diminished by any other right, real or imagined. Life is to be cherished and protected from the moment of conception through to natural death. Once we seek to create exceptions such as euthanasia we effectively diminish the value of all human life. If we begin to make value judgments about the relative quality of people's lives, we lose sight of the objective reality that all life is sacred. Science and medical knowledge should always be at the service of human life. In Australia, and especially in South Australia, we are fortunate indeed that our palliative care services are amongst the best in the world. I am convinced that a broader understanding of palliative care support services in our community would serve to diminish the call for euthanasia. People are naturally concerned about what might happen to them should they experience a life threatening illness. They deserve reassurance and care, not simply the spectre of a hastened death.

I believe that legalising voluntary euthanasia will only increase people's fears of what might happen to them. I understand in the Netherlands that people fearing the possibility of being euthanized now carry cards on their person making it known that they do not want to be killed should they fall ill and need hospitalisation.

In a world where so-called 'mercy killing' was permitted, what would happen to the doctor-patient relationship? Would the aged and infirm among us feel pressured into accepting euthanasia for themselves as a 'duty' also as to 'unburden' their families of their care? As we have seen in the Netherlands, how long would it be before restrictions on euthanasia for the use only for the terminally ill be extended to others; the depressed, the lonely, the disabled?

The letter goes on to state, 'Thank you for taking up this fight.' In his letter to me, the Archbishop mentioned the case of the Netherlands, which has allowed legalised active euthanasia for some time now. His concern was that, once the floodgates to euthanasia were opened in that country, the practice gradually became accepted and, indeed, extended into other areas. In 1990, for example, there were some 10,558 cases in the Netherlands of doctors who had expressed intent to kill.

The Remmelink Report, an official Dutch government survey of euthanasia practices, found that over 1,000 patients are euthanased non-voluntarily in that country each year. In a 1998 submission to the Tasmanian Committee of Inquiry into Euthanasia, the Australian Medical Association stated:

We do not think it is possible to set safe limits on voluntary euthanasia...we took account of the present situation in the Netherlands; indeed some of us visited that country and talked to doctors, lawyers and others. We returned feeling uncomfortable, especially in the light of evidence indicating that non-voluntary euthanasia...was commonly performed.

In his letter, the Archbishop also asked how long it would be before the depressed, lonely or simply disabled sought out euthanasia services—and this is not an unrealistic concern, in my view.

Philip Nitschke once stated in an interview with the National Review in the US that euthanasia should be available to anyone who feels the need for it. The interviewer asked him whether the lonely, old and depressed should be able to request euthanasia and he said yes. The interviewer then asked about the depressed, troubled teenager—a teenager—and, again, Nitschke said yes. I find those sentiments outrageous. Frankly, his advertisement last weekend which he sent to his supporters and which I forwarded to The Advertiser advertising a bundled copy of his book The Peaceful Pill, so-called, along with a helium bottle, was just plain irresponsible.

The depressed, troubled teenager that he quotes—as many teenagers are at some point in time—need family support when they miss out on making the football team or when they have broken up with a boyfriend or girlfriend or whatever it might be. They do not need euthanasia or a seedy deal to buy a helium bottle bundled with a suicide manual.

The undeniable truth, in my mind, is that, despite the good intentions behind this bill, if a new field of euthanasia medicine was to open in South Australia it would be quickly filled with people who have a real focus on this, like Dr Nitschke, for example, selling helium bottles, do-it-yourself suicide kits and perhaps other substances in order to assist the process. Of course, we would then become the target of interstate and, indeed, international suicide tourists, as they are called.

Dignitas International in Switzerland, a company which specialises in euthanasia services and which is often lauded as the model of a compassionate euthanasia service, recently found itself the target of an exposé in the British Daily Mail, which I will place on the record. The article states:

When Maxine Coombes decided she could no longer live with...pain...her family tried to convince her to battle on. But she was drawn to the idea of an assisted suicide in Switzerland, where she believed she would meet a peaceful end surrounded by music, candles, flowers and compassionate staff. After saving money from her weekly benefits and selling her car she raised the £10,000 needed and booked herself into the Dignitas clinic in Zurich, whose motto is 'Live with dignity, die with dignity'.

However, her son and twin sister, who travelled to Zurich with the 59-year-old mother of three earlier this month, claim her end was far from dignified. Paul Clifford, 40, said the family had a 'terrible' experience and likened the flat where his mother died to a 'backstreet abortion place' with graffiti-covered walls. To add to his shock, when Mrs Coombes raised concerns that her son might struggle to cope with her death, a member of staff said he, too, could die at a 'cut price' rate.

Mr Clifford, who is back home in [his hometown], South London, following his mother's death on January 10 said: 'When we arrived at the place it was a block of flats, with a buzzer marked Dignitas but there was no answer.

'We were standing there for about three-quarters of an hour until a man arrived wearing a leather jacket with a sports bag over his shoulder, a dirty blue T shirt, jeans with the knees cut out and smoking a roll-up.

There was paint and graffiti on the walls outside, and the same on the door to the apartment.

Inside there was a coffee table, four chairs around it, a bench, and a little washbasin.

He said he had to make a video and asked my mother, 'You know what you're doing, don't you? Nobody's pressuring you to drink this drink, are they? You know if you drink this you are going to die?'

Mr Clifford said his mother, a former court usher, took a lethal dose of barbiturates just 15 minutes after entering the room.

He and Mrs Coombes's sister, Dawn Davis, were told she would be conscious for another 45 minutes, but just 40 seconds later they, watched her head slump to her chest.

The Swiss member of staff, who had introduced himself as Arthur, then announced: 'Let's make sure we get our stories straight.'

Mr Clifford, a lorry driver's mate, said: 'We don't have a story to 'get straight'.'

I was just saying, 'Mum, I love you, are you sure you know what you are doing? I wanted to take the drink off her and chuck it on the floor but that would have been selfish.

He wanted us to go out of the room while he checked she was dead. We had to sit on a flight of stairs which stank of urine.

Another Daily Mail article, somewhat shorter, contains the allegations of a former Dignitas nurse, Soraya Wernli, who worked at the clinic for two years. The article states:

The room where people were to die was often filthy, because Minelli skimped on the cleaning bills. Often there would be shoes or underwear or some other deeply personal item of an earlier victim lying beneath the bed or around the room. It was shameful.

The article also discussed the euthanasia of a 23 year old, Daniel James, a young rugby player from Worcester in the UK who had been paralysed after being caught in a rugby scrum during training and did not want to live a life in a wheelchair. He was not terminally ill.

I take the opportunity to point out that, under clause 6 of this bill, a person in 23 year old Daniel James' position would also be able to be euthanised, notwithstanding that, at some future point, there may be a medical treatment that would see him walk again. The only requirement in clause 6 is that the injury is apparently 'intolerable'. Presumably, severe depression might also be regarded by some people as an intolerable medical condition. The words contained in clause 6 provide:

...an illness, injury or other medical condition that...irreversibly impairs the person's quality of life so that life has become intolerable to that person.

That wording sounds both subjective and very wide in scope. Was it intolerable for Daniel James to keep living after his rugby accident, given that he was confined to a wheelchair? Would it be intolerable for someone to live with arthritis or shingles, for example? Most elderly people in any nursing home have an illness that could subjectively qualify under this test.

As members would be aware, in 1995 the world's first euthanasia legislation, the Rights of the Terminally Ill Act 1995, was passed in the Northern Territory, and saw several deaths until it was overturned in a 1997 commonwealth act. In the patient examples from the limited Northern Territory experience, it is clear that four of the patients mentioned in a follow-up report prepared jointly by Dr Nitschke were not in severe pain at all.

In fact, the medical notes indicate that in case 3 'the patient took morphine for generalised bone pain'. In case 4, 'pain was well controlled'. In case 5, the patient 'complained of mild background pain incompletely relieved by medication'. In case 6, 'regular analgesia was needed for abdominal pain'. In each case, despite the low or controlled level of pain indicated, the request for euthanasia was accepted.

Another question may be whether it is intolerable for someone to live with depression following the death of a spouse, for example. I note that clause 9 of the bill does not require a referral to a psychiatrist but leaves the question of whether a referral is necessary to the treating doctor. This discretionary provision, as far as I can see, has been taken from Oregon's Death With Dignity Act, and I understand that of the 49 people who sought euthanasia in that state in 2007 not one of them was referred to a psychiatrist.

In the Northern Territory experience, it is apparent that in cases 3 and 4 mentioned in Nitschke's report there were depressive symptoms. In the Northern Territory case 5, a psychological assessment took place on the day on which euthanasia was planned. The case involved an elderly English migrant who was unmarried and had no relatives in Australia. Dr Nitschke refers to his 'sadness over the man's loneliness and isolation' as he administered euthanasia. In evidence to a Senate committee, Dr Nitschke later admitted that he personally paid for this psychiatric consultation for this man and that it took less than 20 minutes.

Returning to the Swiss experience, the Daily Mail article contained discussion of one particularly gruesome episode, the 70 hour death of Peter Auhagen, a German man who had sought out the services of the clinic in 2004. Mr Auhagen's death became the subject of a TV documentary in Germany given its horrific nature. The article reads with commentary from a former nurse at the clinic, as follows:

The majority of Dignitas clients kill themselves by drinking a spiked drug cocktail containing a lethal dose of barbiturates.

Mrs Wernli recalls:

On this occasion, Minelli wanted to try out a suicide machine—which operated by a system of tubes and valves that the patient controlled to administer the drug intravenously.

I don't know where Minelli had got this machine from. All I know is the man was still alive in the death room 24 hours later. I had to take over from the female companion who was there because she was exhausted.

The machine had a fault, which meant it couldn't pump all the poison into his system. The man was partially poisoned, in agony and thrashing around in a coma, frothing at the mouth and sweating. I had to clean him. It was a terrible thing to witness, and I knew it could not go on.

I slept on the kitchen floor of the apartment that night. In the morning, after 48 hours had gone by, I told the family that Mr Auhagen had to go to hospital. I rang Minelli and he broke with his usual habit by actually turning up at the death house. This was indeed out of character—Minelli's offices are in a different area to the flat, and he normally stays well clear of the scene.

Mrs Wernli went on:

He was angry—not at the failed suicide, but with me for suggesting that man should be in a hospital bed. 'Are you crazy?' he said. 'Do you know what the papers will say about this—that Dignitas has mucked it all up? We are falling behind here—there are others waiting to use that room!'

Supporters of euthanasia may well say that I am being unfair or bringing too much emotion into the debate by raising the death of Mr Auhagen. I raise this instance because I submit that it is profoundly untrue to paint the practice of euthanasia as a uniformly loving, peaceful and problem-free practice. The Swiss experience has clearly had several problems.

When human life is cheapened to the extent that killing becomes allowed and endorsed by the state, it is just hard to understand—or impossible, I should say—how some people who have that view of life will somehow respect the death and dying process. South Australia will become a haven for doctors pursuing this sort of activity—if I can put it that way—like Dr Philip Nitschke with his low view of life. If this bill passes in this place and the other place, no doubt it will set up something here that will resemble the practice currently performed in Switzerland—a euthanasia business, if I can call it that.

Further, I doubt that Dr Nitschke and other doctors like him will be scrupulous in applying the law. Dr Nitschke gave evidence recently (on 31 August) to a Tasmanian parliamentary inquiry into the Dying with Dignity Bill presented by the Greens, in which he actually admitted that he might have broken the law when he euthanased a patient in 1997.

A small number of people died during the short time that the Northern Territory's Rights of the Terminally Ill Act was in operation, before it was quashed by the federal parliament. Serious questions have remained surrounding several of the deaths.

In response to a question from a Tasmanian Liberal member, Brett Whiteley, Dr Nitschke admitted to euthanasing an unnamed man in breach of psychiatric assessment rules contained in the act. Dr Nitschke told the inquiry:

Maybe it was a breach, but it was a breach motivated, I would say, by compassion.

He ignored the person's legally enacted rights and killed them—and somehow this is the compassion he is claiming.

There were also questions raised during the committee whether one particular woman, Janet Mills, died in breach of the law because her skin condition was assessed by an orthopaedic surgeon rather than someone with expertise in her illness. In his evidence to the committee, Dr Nitschke seemed to indicate that he thought any specialist could carry out the examination even though the act and regulations clearly stated that the specialist had to be qualified in dealing with a terminal illness from which the patient was suffering. How many of the guidelines in the present bill would be breached when we begin entrusting its operation to the type of medical practitioner who will actually want to work and specialise in this field?

Members will also be aware of Nancy Crick's circumstances—an Australian woman who took her own life by drinking a solution of Nembutal. Nancy's decision to end her life was supported by Dr Nitschke, and her death to escape the ravages of bowel cancer was trumpeted by euthanasia advocates as a humane end. The autopsy results later showed that Mrs Crick did not, in fact, have bowel cancer at all, despite Dr Nitschke's contrary assertions. How many cases similar to Nancy Crick's will result if this bill passes? Dr Russell Stitz, a Queensland bowel cancer expert, has said that if Mrs Crick did not have cancer, as the tests clearly showed, her symptoms could have been simply treated with pain management and psychological support.

I have read onto the record a letter from the Catholic Church regarding this bill. I was also grateful to receive a letter from the Most Reverend Dr Jeffrey Driver, Archbishop of Adelaide for the Anglican Church. He states:

The Anglican Church in Australia has maintained opposition to voluntary euthanasia, while at the same time supporting the palliative use of painkilling medication, even where the use of such medication to control pain may also have the possible side effect of shortening life [although this is not the intention]. Similarly, we do not support the use of 'artificial means' to prolong life when there are no prospects of recovery.

The Reverend Mike Mills, State Executive Minister, and Mr Allan Priest, President of the Baptist Churches of South Australia, were also kind enough to reply to my call for input, and their letter reads:

We feel compelled to write and express our deep disquiet concerning the recently introduced bill to allow voluntary euthanasia. The Baptist Churches of South Australia strongly oppose any legislative change that would make euthanasia legal. As Baptists we place a very high value on the sanctity and gift of human life and do not believe legislative provisions allowing intentional action to end it are justifiable or appropriate...Christians who make representation in support of moves to legalise euthanasia are representative of a very tiny minority and do not in any way reflect the views of the overwhelming majority of the Baptist movement. We therefore implore you to oppose this proposed legislation.

Many countries have investigated the practice of active euthanasia and rejected it. The House of Lords carried out intensive investigations, hearing and obtaining evidence from experts. It came to the following conclusion in recommendation 237:

We do not think it possible to set secure limits on voluntary euthanasia...it would be impossible to frame adequate safeguards against non-voluntary euthanasia if voluntary euthanasia were to be legalised. It would be next to impossible to ensure that all acts of euthanasia were truly voluntary, and that any liberalisation of the law is not abused. Moreover, to create an exception to the general prohibition of intentional killing would inevitably open the way to its further erosion whether by design, by inadvertence, or by the human tendency to test the limits of any regulation. These dangers are such that we believe that any decriminalisation of voluntary euthanasia would give rise to more and more grave problems than those it sought to address.

A 1998 report prepared by the Tasmanian Community Development Committee, House of Assembly, at finding No. 6 states:

The committee does not consider the legalisation of voluntary euthanasia as an appropriate solution to abuses that may be occurring in the current system.

Finding No. 10 from the same report states:

The committee found that the legalisation of voluntary euthanasia would pose a serious threat to the more vulnerable members of society and that the obligation of the state to protect all its members equally outweighs the individual's freedom to choose voluntary euthanasia.

In 1994, the New York Task Force on Life and the Law noted that if voluntary euthanasia were to be legalised the potential for abuse would be profound. Once euthanasia is established as a therapeutic alternative, the line between patients who are competent to consent and those who are not will seem arbitrary to some doctors. To others it will seem outright discriminatory or unjust to deny a therapy because of the patient's incapacity to consent.

An argument is sometimes raised noting that if a particular person or church does not believe in euthanasia then that is their choice, but that it is inappropriate for them to force their choice onto others. However, my role as a legislator means that if I believe that a certain type of action is wrong, as I believe that active euthanasia is wrong, then it is my role to vote to ensure that it remains a criminal offence. I would not vote to legalise drug dealing, for example, simply because some people believe that drugs are harmless and it is their choice to abuse illicit substances: it does more harm than good. In my view, there are profound public policy reasons why we limit the supply of illicit drugs and why the practice of active euthanasia should remain illegal. My voting will reflect this, in both examples.

I have serious concerns regarding this bill, which I have outlined. It goes further than the Northern Territory bill. It does not require a second medical opinion, or for the medical practitioner to have any expertise at all in dealing with the patient's particular illness. The bill allows active euthanasia on patients who may have years to live. There is no requirement in the bill for terminal illness, or even any physical pain. It leaves elderly and sick South Australians with the thought that they are a burden and that the right thing to do is to request euthanasia, fully sanctioned and legalised by this government. I can just see the elderly and weak feeling almost compelled to opt for that option in order to relieve the burden on others.

Lastly, it will set up South Australia as a hub for suicide tourists—a terrible term—and I can see them coming here from all parts of the country. This well-meaning law will inevitably be abused. I believe it is poor public policy; it sends the wrong message about this state's view and value of life, and I indicate that I strongly oppose it. I leave members who are considering voting for this bill with one question: can they be certain that if they support this bill becoming law it will not lead to a single person being killed without their consent as a direct result of the passage of this bill?

Debate adjourned on motion of Hon. I.K. Hunter.

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