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Thursday, 28 October 2010
Page: 1099

Senator BACK (5:24 PM) —I rise to contribute to the debate on the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010, which is in front of the chamber. I really see this as an opportunity lost. As an ardent federalist from Western Australia, I very much stand up for the rights of the states and territories. Anybody who hears me speak in this chamber, particularly when it comes to matters associated with royalties, would know that I am deeply offended when others try to put to one side constitutional rights in that case.

I will share that, in this particular instance, what is difficult for me is the reference to voluntary euthanasia legislation. I will address that. It is of concern to me that Senator Bob Brown has elected to include the term ‘voluntary euthanasia legislation’ in a bill that I believe could have simply been entitled the ‘restoring territory rights bill’. It is also of concern to me why, with four territory senators in this place, they have not been the ones to bring this legislation forward. However, it is, I believe, as has been said by others, a question relating to euthanasia. I have also made it my business to inquire into the views of those in the territories. The words of the previous speaker will in fact be incorporated into Hansard because I will be quoting from them too.

Being a veterinarian, I come to this debate, unusually, from the position of a medically related professional. It is the case that I have, over time, had occasion to euthanase many of my patients. Even in the animal world this process is extremely difficult. There have been many occasions when I have been disturbed by the rationale offered to me by those who are charged with the responsibility for decisions on the euthanasia of those patients. There is one thing I can say to you that is indisputable—that is that the action, once completed, cannot be reversed. It is this experience and that of my own family circumstance—and I am sure there are many others in this place who also have been touched and affected by the question—which informs my opinion that it is morally and ethically undesirable to engage in legislation which will take human life by medical means. Any law permitting this must inevitably be subject to unpredictable abuse, as indeed I believe we have seen in the instances from overseas which have been quoted in this place.

I turn first, then, to the issue of euthanasia based on medical grounds, particularly related to terminal illness. When faced with a terminal illness, as we know, the fear of pain is often overwhelming. But the adoption of high standards of palliative care is the most rational, most effective and most humane action in answering the call against promoting euthanasia for the terminally ill. It is true that this has not always been the case. I empathise with those who relate stories of sitting beside terminally ill loved ones in extreme pain in the hours before their demise. I too have experienced that. But medicine has improved significantly in this country and, again, my own observation confirms this. Competent counselling should always confirm the value of palliative care and that treatment will usually lead to a dignified end. Once this is understood, many people will choose to live and to enjoy as far as possible the time that is left to them with family and friends.

Pain can be managed and/or controlled, in the vast majority of instances, to allow a person to continue functioning. There is very little pain which cannot be either totally eliminated or brought to a point where the patient can in fact withstand a threshold that is acceptable to them. Any competent doctor is able to achieve this. In the very few instances of terminally ill people who are not able to be assisted in this way then heavy sedation or even light anaesthesia is possible. But, as we know, suffering is not just physical. It can be psychological, and these conditions can be managed.

 The National Health and Medical Research Council in its paper on palliative care in 2009 stated:

Palliative care needs to commence as soon as a patient is diagnosed with a terminal condition. This could be 10 years before they actually die.

The medical profession feels deeply that it has not been adequately consulted on all aspects of this debate, particularly on those that impact squarely upon them: adequacy of palliative care, the ‘right to die’ argument, their own legal rights and obligations, and their role in administering a fatal dose. In Australia there is the common-law right of every person to refuse any or all medical treatment that may sustain life, and this is not clearly understood by patients and perhaps in the past by doctors.

I turn to the proposed bill. As the previous speaker said, I actually communicated at length this morning with a senior surgeon from Darwin, Dr David Gawler. I will not repeat those words used by Senator Stephens, except to say that the point he made to me was:

Importantly, if Indigenous people think medical staff have the power to terminate lives, the fear and distress will prevent many Aboriginal people from seeking and accepting medical treatment.

He went on to tell me that, bearing in mind Indigenous cultural and linguistic differences, there may be ‘insurmountable problems’ in ensuring in each and every case that they have fully informed and have given consent for euthanasia. He makes the point that Aboriginal people do not enjoy good standards of health and are most frequent users of health services. If I can quote these figures, the Northern Territory has the smallest population of the Australian states and territories, the highest proportion of Aborigines within that—27 per cent was the last figure I saw—but almost 50 per cent of deaths in the Northern Territory are of Aboriginal people.

Dr Gawler is of the belief the proposed legislation puts at risk the most vulnerable members of the population, and that is Aboriginal people in the Territory. It is interesting that in a paper in 1997 in the Lancet, John Collins and Frank Brennan agreed very much with Dr Gawler on the adverse effect on Aboriginal people in the Northern Territory of euthanasia. They report that the traditional Aboriginal viewpoint prohibiting euthanasia was rejected by the Northern Territory parliament as an argument against the act at a time of heightened concern around Australia about Aboriginal self-determination and health. The healthcare systems for Aboriginal patients are part of a unique complex which includes description of wellbeing, cause of illness, healing practices and the prerequisite social behaviours that a person experiences. They said at the time that the Northern Australian Aboriginal Legal Service admitted that euthanasia and suicide were not well known or understood in Aboriginal culture and that the most non-English-speaking Aborigines in the Territory were being denied their opportunity to make informed comment or response to the proposed legislation at that time due to a lack of interpreters.

It was interesting to note the similarity between the concerns expressed by Collins and Brennan in 1997 and those of Dr Gawler to me this morning. He then went on to talk about intervention by outside agents under Aboriginal law and the possible concern associated with payback. Equally interesting was the note from the New York state task force on life and the law in the United States, giving a warning of the potential ill effects of euthanasia legislation on marginalised groups, in which they said that they:

… unanimously concluded the dangers of such a dramatic change in public policy far outweigh any possible benefits and that the risks would be most severe for those who are elderly, poor, socially disadvantaged or without access to good medical care.

I support the position taken by Palliative Care Australia calling for the development of social policy affirming death to be part of life; support for the dying, their family and their carers; accepting quality care at the end of life is a basic human right; for government to allocate sufficient resources to ensure this; for the promotion of community discussion of death and dying through ongoing communication, for the development of initiatives designed to increase community and health practitioner capacity; and for the rollout of national guidelines to promote good practice.

I turn to the concept of euthanasia for non-medical reasons, often referred to as the ‘tired of life’ philosophy. Of course this, then, is not a medical issue—there is no need for the medical profession to be involved. In fact, it would be possible then to license lawyers, plumbers or even veterinarians to perform euthanasia in a non-medical context. It draws attention to the possibility of uncontrolled and unexpected applications of the principle of so-called lawful killing and it is presented quite often as the principle of self-determination. I recommend to the Senate a book by Dr Brian Pollard, a now retired Sydney anaesthetist. His book is titled Should we kill the dying? In it he states that self-determination is sometimes spoken of, firstly, as though it were the most dominant of the principles of care and, secondly, as though it would guarantee higher levels of patient satisfaction when people were given every opportunity to say what they wanted. Dr Pollard contends that neither of these is true. He says as a principle it is subject to the restraints of competing legitimate rights of others, either as individuals or society as a whole. He says that more important is the fact of patients who sometimes choose, with or without advice, courses of action which eventually prove to have unwelcome results, ranging from being merely unpleasant to the disastrous. I come back to the comment I made at the commencement of this discussion, and that is that, once enacted, euthanasia certainly cannot be reversed.

Legal and ethical codes hold that the rights and therefore the power to take the life of a dying person do not lie with other persons and that therefore euthanasia is unethical. And it is not difficult, then, to move towards expanded applications, which might or might not be resisted. Indeed, there could be compelling economic arguments, some of which we have heard here this afternoon. I give one as an example: escalating health costs. It was put to me in a seminar not long ago that 75 per cent of the Australian health budget is actually spent on people who will be dead 12 months after the expenditure has been exacted on them. How does this fact play out in the context of the euthanasia debate, given the rapidly increasing contribution of the health budget to our overall budget? I turn, secondly, to the high cost of funding, maintaining and supporting intensive care units and of older members of families becoming a burden both on family and society.

 When the legal process is incapable of determining precisely either the motive of the one to do the killing or the capacity of the person asking to be killed, it is saying that the law is powerless to detect or to prevent abuse. This I believe to be an issue of enormous concern. Some of those who advocate euthanasia do not hide the fact that their eventual aim is to extend it further than the terminally ill—once the public has been conditioned to accept killing—as an acceptable mode of dealing with this social problem. We are all aware of the risk that an elderly member of a family might elect for euthanasia on the basis that they feel they are a burden to their family. And it is plausible, at least in some instances, that family members might do nothing to dissuade that elderly member from this apprehension, whatever might be their motive.

I turn to the potential for abuse. We see this very instance in Holland, where, from the 1990s through to the present, the government of that country has continually reviewed the legislation surrounding euthanasia and has continually shifted the goalposts and the basis of these reviews. More and more people are accessing euthanasia for reasons that are not medical in their origins. Indeed, many members of the medical profession in such countries have come to see it as another useful tool in their treatment armoury. The law is being applied, for example, to people without their consent—perhaps those who are unconscious or in a coma. It is obvious that an unconscious person or one in a coma can neither give nor deny their permission.

Ilora Finlay, from the House of Lords in the United Kingdom, wrote in the Lancet:

For example, in the Netherlands there is campaigning for euthanasia to be allowed for people with dementia and for a so-called suicide pill to be available for those who are “tired of life” …

She notes:

… in the short space of time since the Dutch 2002 Euthanasia Act was passed there has been the so-called Groningen Protocol governing the euthanasia of infants.

I find, and I am sure the vast majority of Australians would find, such a proposition entirely repugnant and one that should be absolutely and utterly rejected by Australian society.

Laws may be constructed to allow only for the euthanasia of terminally ill patients under certain carefully controlled circumstances. The intent of those seeking and those constructing that legislation may well want it to go no further. However, as we have seen in overseas experiences—Holland has been mentioned, also Switzerland, Belgium and others—a person can bring a claim of discrimination or denial of natural justice in their personal circumstances, based on an existing law which was constructed only for the terminally ill. These limitations have been consistently overturned under court challenges, on discrimination and other grounds. We have seen evidence of this in countries like Holland and Belgium where euthanasia has been legal for several years. An example presented to me recently was the agreed euthanasia of a 12-year-old boy in Holland. I do not know the circumstances, but I would go a long way on a hot day to be convinced of the validity of euthanasing a 12-year-old boy.

I return to the comments of Dr Pollard, the now retired Sydney anaesthetist and a person who had much experience in this area. Dr Pollard suggests that the supporters of euthanasia frequently quote Holland as a country to be copied because voluntary euthanasia is actively practised, but rarely is one told why it would be beneficial to do so. The benefit in being directly killed, even when one may be in distress, is not self-evident, Dr Pollard contends.

So where is the legal line and who draws it? A case of this type would simply open a Pandora’s box. Euthanasia would become accepted in instances which the lawmakers never proposed it for, and the community would inevitably suffer as a result. Opportunities would abound. A relative for whom one has a duty of care is disabled, unconscious or in a coma; it may be more convenient for the person holding power of attorney for that disabled relative to have them euthanased rather than keep them alive. It is not a long bow to draw to inquire whether access to the estate of the now deceased relative might have been at least in part a motive for the decision taken.

I find myself in that very position as the person who holds power of attorney and the carer for my aged mother, who turns 95 this coming week. She is, and has been for the last nine years, a stroke victim in a wheelchair in a nursing home—a woman of enormous dignity, tremendous independence and, I must say, some dominance, a trait which did not find its way to me or my brothers! But my mother certainly does not wish to be with us. While she did have great mental acuity, she now does not, and that is a circumstance in which she herself, being very Catholic, would pray on a nightly basis not to wake up the next morning. However, that circumstance is not one she is able to exact. I for one would not like to be placed in the position of having to make that decision on her behalf.

I conclude by going back to where we started. If this were a bill dealing simply with the rights of the territories to consider legislation in the same way that the states can do now, it would have my support. But I cannot because it has been linked to the question of voluntary euthanasia, which is in fact the issue that has dominated the attention of the community. That to me is a disappointment and, therefore, the bill will not have my support.