First it needs to be noted that Mr. Mathers was convicted of manslaughter. The criminal code of NSW was upheld; there was no 'judicial activism' in that decision.
The judge sought fit, in the circumstances, to suspend the custodial sentence and Mr. Mathers was released.
Sentences are always open to public debate and discussion. Justice Hall's decision to suspend the sentence was made on compassionate grounds in what were incredibly difficult circumstances including Mathers' own depressive illness. Some may argue that mercy tempered justice properly in this case; others may disagree; but the law against assisted suicide was upheld.
It is important to ask: why, if suicide itself has been decriminalized, do we not also decriminalize assisting in suicide?
The answer goes to the heart of the problem with both assisted suicide and euthanasia: because our society recognises the significant possibility that vulnerable people could be manipulated to die at the hands of those who stand to benefit in some way from their death or by those whose judgement is in someway impaired.
The Sydney Morning Herald report offered the following comment:
Euthanasia advocacy group Exit International welcomed the judge's decision, but said Mathers, who pleaded guilty to manslaughter, should never have had to face court.
"This can only happen when we see changes to existing legislation that outlaws all cases of assisted suicide," Exit director Philip Nitschke said.
Firstly, assisted suicide is 'outlawed'. (I think he meant decriminalized.) Secondly, it is instructive to note that Mr. Mathers confessed to the police in full which led to a commendation of sorts by Justice Hall that without such co-operation the full truth of what happened might never have been known. Surely, if there were no law against such acts then those with unscrupulous and sinister intent could kill with impunity.
What ever happened to the accepted recognition that people attempting suicide or asking to be killed were very often (if not always) actually asking for help?
If 'the cry of help' is, in fact, the reality, then a default position that would allow a third party to act upon such requests would shamefully dispatch vulnerable people whose circumstances may very well have been alleviated by better care and support.
Michael Duffy's report (SMH 1st May) makes some interesting observations. He muddies the distinction between assisted suicide and euthanasia - but it should be said that the Mathers case was technically euthanasia, so that's hardly surprising.
Duffy cites evidence from the Netherlands and Belgium in support of the assertion that the 'slippery slope' does not exist (ergo, we shouldn't be concerned at all!). Yet in doing so he passes without comment over a statement that 20% of euthanasia cases in the Netherlands go unreported. Surely, the begging question he should have asked is why, in a country where euthanasia is so widely accepted and where scrutiny of cases and prosecutions are rare, would doctors not commit to the reporting regimen?
The answer it would seem harkens back to our point about the risks that legalized euthanasia and assisted suicide present for vulnerable people. We don't need statistics to prove the case; common sense and a normal understanding of human nature should be enough. But Duffy should at least have appraised himself of the fact that statistics from the Netherlands point to 38% of all cases and Belgium, 32% of all cases of euthanasia were conducted without the patients' consent.
Consent is a very important principle in both law and medicine. We abandon it at our peril. In terms of medicine, informed consent upholds the principle of autonomy within the bounds of the law, ensures (hopefully) that patient's are fully aware of the consequences of the procedures they agree to undertake, and protects them (and society into the bargain) from the excesses of both zeal and malice that might be present in the thoughts and actions of doctors (they are, after all, human beings).
Consent and the right to information is the cornerstone of good palliative care. It restores and supports a healthy sense of control for the patient which, as Duffy reports from the Michigan Law Review's study into assisted suicide in Oregon, is the greatest concern; far greater, indeed, than even the fear of pain.
As the Mathers' judgement makes clear, compassion is also a key principle. Properly applied, it is the antidote to despair. Exercising true compassion in a society that values life, all life, is the vision that we hold. Nitschke's sales pitch for death would ring hollow in such a world.