Defining the problem to fit the solution

by Paul Russell:

Recently, two Australian academics published a paper in the Medical Journal of Australia proposing what might be termed by them and others as a 'middle way' on the question of euthanasia. But the proposal under the heading: A minimalist legislative solution to the problem of euthanasia is a long way away, in legislative and practical terms, from a slight adjustment to the current law.

The proposal has a veneer of credibility that does create some appeal. We have two irreconcilable positions; one for change, the other opposed. Why can't we find a 'win-win', middle way where we can all say: we can live with that? After all, isn't politics 'the art of compromise'?

And so, our two academics sit above the political melee, like Delphic oracles dispensing such an irrefutably brilliant solution that has, somehow, evaded the collective wisdom of the last century and more. Facepalm! Why didn't we think of that?

In essence, they argue for a solution to a supposed problem that even they acknowledge is covered under existing legislation and common law.

Problem one: doctors are uncertain about their legal protection if, in following best medical practice, a patient's life is shortened. Well, that's how the problem they define appears to be constructed. But a closer look at how they put it exposes the obfuscation:

"In addition, a genuine and abiding problem with the current legal situation remains unresolved: doctors who follow current best practice by providing whatever care is needed to alleviate pain and suffering cannot be confident that they would be protected from criminal prosecution for murder, manslaughter or aiding and abetting suicide should they be actively involved in the death of their patient."

At first glance this might seem like simply a clumsy way of expressing the doctrine of double effect as it may relate to end-of-life care. Look a little harder: Virtually the entire spectrum of possible charges under the criminal code provisions on homicide is listed here - but no actions with such intentions could ever be described as 'current best practice'. Best practice in the titration of a drug regimen to manage pain and symptom control would never see the mythical 'upping of the doses' by incremental steps result in the death of the patient. Best practice also will normally be determined collaboratively by a care team, thereby, one would expect, eliminating any perceived risk to either the patient or the doctor.

In spite of this and while acknowledging that no one has ever faced a court of law on the question, the authors still assert that,  'A problem with the current law is that doctors who follow current best practice cannot be confident that they will be protected from criminal prosecution.' This is a statement that cannot be supported by reality: if there is are any questions here it might be that doctors are not well enough aware of the protections they enjoy in law that allows them to work with 'current best practice' in the context of end-of-life care or there may be a matter of medical incompetence. Neither need a change in the law.

Problem two: "Despite differences of religious and philosophical convictions and ethical values, there is widespread community agreement that people with terminal illnesses are entitled to adequate treatment, and should also be allowed to make basic choices about when and how they die."

What is meant, here, by 'basic choices'? We are not told. Were we to assume that patient autonomy, properly applied, were to ensure that every patient was able to make clear and informed decisions about what care they did and did not want, then we are in agreement. But I am not sure, given the text of the offered 'law changes' that this phrase is limited to such ethical decision making.

"We propose that legislation be enacted to amend relevant Commonwealth and state criminal legislation to provide a defence to a charge of homicide or manslaughter when a doctor has prescribed or administered a drug that has hastened or caused the death of a patient with a terminal disease. This defence would be allowed if the doctor: (a) reasonably believed that it was necessary to prescribe or administer the drug to relieve the pain or suffering of the patient; or (b) prescribed or administered the drug with the intention of relieving such pain or suffering." (italics added)

As discussed, subclause (b) has already been given legal affect in state law in most states and the intent is also covered well in common law. Ergo: no need for change.

It is the first section that is problematic and would usher in both euthanasia and assisted suicide. Here, by their own words, we would be creating a defence to a charge of homicide or manslaughter when a doctor had 'hastened or caused the death of a patient' by prescribing or administering a drug, citing necessity so as to relieve pain or suffering and covering the whole exercise with the nebulous defence of reasonableness.

Make no mistake, this clause would allow euthanasia and or assisted suicide. Note also, that the patient must have a 'terminal disease'. No mention of life expectancy, no mention whether or not the person might actually be in the terminal phase, no mention of having tried other, less dramatic ways of dealing with pain and suffering. This is an open slather approach where not only does the doctor make all the decisions knowing that he or she can claim 'reasonableness' as a defence, but also in the knowledge that such an expression virtually guarantees immunity.

In response to the authors, Kleinig, Middleton and Dunne declared:

"Komesaroff and Charles' proposal should be rejected. It would allow unrestricted euthanasia of the terminally ill, constrained only by a doctor's unverifiable and uncontestable 'reasonable belief' that euthanasia was necessary. Doctors should not be invested with such power."

As with every euthanasia and assisted suicide bill ever drafted, the principle action in such legislation is to protect the doctor when he or she kills a patient or prescribes a lethal dose so they can kill themselves. Without such protection, such laws simply don't work. It is about power and protection for doctors. At least in a 'normal' legislative approach we usually see some attempt to also protect vulnerable patients - none of that here.

Komesaroff and Charles' approach, however, is not new. The false notion that doctors are not adequately protected in law has been around for a while and surfaced in the Tasmanian debate a few years ago.

It also appeared in South Australia in 2011 in a bill originally designed by the then Health Minister, John Hill MP but introduced by backbencher, Steph Key MP. The Criminal Law Consolidation (Medical Defences - End of Life Arrangements) Amendment Bill 2011 was eerily similar to this current proposal. It was also claimed to have nothing at all to do with euthanasia both by the bill's proponents and by the South Australian pro euthanasia lobby. This seemed to have fooled a number of MPs; especially as Steph Key had another more obvious euthanasia bill in the house at the same time. Once the reality became clear by the tabling of amendments, interest in prosecuting the bill further waned and it eventually dropped off the radar.

There's an old adage: If it seems too good to be true; then it most likely is so. This proposed 'solution' is euthanasia and is assisted suicide; both dressed up as something else.