South Australia recently voted against legalising voluntary active euthanasia. The legislation failed by one vote. It was the latest of more than 50 legislative attempts in Australian parliaments to change the law in this area.
Reform attempts are likely to continue. A bill may be released soon in Victoria following a recommendation by the Legal and Social Issues Committee. So we should examine why the South Australian bill did not pass to see if lessons can be learned for future bills. The key concern during the debate in South Australia was adequacy of safeguards.
The term “voluntary euthanasia”, both in the bill and in this article, includes assisted suicide. There are some differences; in voluntary euthanasia, the doctor administers the fatal medicine whereas, in assisted suicide, the patient administers it herself.
The vulnerable are protected
One major concern was if we legalise voluntary euthanasia for people who are competent and make the decision voluntarily, how can we protect those who are not and do not? “Competence” means the person requesting voluntary euthanasia must fully understand the decision. A decision is “voluntary” if it is not the result of coercion or made under the undue influence of others.
One safeguard for this is requiring two independent doctors to agree the patient is competent and the decision is voluntary. A second is requiring a minimum period of time to pass between the request and its fulfilment – to ensure the decision is unwavering. These are standard safeguards in legislation all over the world where euthanasia is legal (Canada, California, Oregon, Vermont, Washington, Netherlands, Belgium), and they appeared in the South Australian Bill.
The last four years have witnessed a sea-change in the debate on the adequacy of safeguards in protecting the vulnerable. Because euthanasia is legal in many parts of the world, we now have evidence that can show us whether safeguards are reliable. And it shows they are.
In a recent Canadian case, these concerns were examined at length and expert witnesses from all sides of the debate were called to give evidence that was cross-examined in court. The judge concluded the particular concern about the vulnerable was largely unfounded, a conclusion upheld by the Canadian Supreme Court.
An equivalent conclusion was reached by the Victorian Legal and Social Issues Committee. These findings, together with those in peer-reviewed academic research, mean the vulnerability concern is no longer credible.
Yet some MPs did raise concerns about this aspect of the safeguards. When we look closely at their comments, it becomes clear they are demanding safeguards be fail-safe. One MP said no safeguard can be “completely fail-safe”, and declared legislation was therefore not workable.
We agree regulation should aim to be fail-safe, but this is to be understood as an ideal we should strive for. A perfect regulatory system is not possible. Would any of our current end-of-life legislation have been enacted if it were required to be fail-safe? For example, we know in rare cases mistakes can be made in the withdrawal of life support. But this is not an argument for making it unlawful.
Instead of unrealistic demands safeguards be “fail-safe” (an impossible standard for regulating human behaviour), we should be examining whether safeguards can be reliable, dependable and trustworthy. The answer to this is “yes” – as the evidence mentioned above shows.
More change inevitable?
The second concern raised by MPs about safeguards was the perceived inevitability legislation would be expanded over time, so a broader group of people would have access to euthanasia. Illustrative of many such comments was the following by MP Mitch Williams, who said:
I have no confidence that the supposed safeguards in the bill before us will stand up […] The reality is that, if we look at the few other jurisdictions around the world where they have opened the gate, we can see quite clearly that the safeguards […] are being slowly watered down.
First, there is very little evidence of change in those jurisdictions that have passed legislation. For example, 19 years ago the state of Oregon enacted physician assisted suicide for terminally ill people with less than six months to live. The legislation has not changed.
Belgium is one jurisdiction which has changed its laws in a limited way in 2014 to allow competent, terminally ill young people to access their regime. But these reforms were preceded by careful debate and resulted in tightly framed laws. This is illustrated by it being some two and half years after these laws were introduced before it was first used – by a competent terminally ill 17 year old.
Second, the assumption a change to any law, by definition, is bad needs to be tackled head-on. This fails to recognise we live in a democracy, and it is open for society, through its elected MPs, to consider change if appropriate. History shows change in this field is extremely rare and when it happens, is very limited.
Voluntary euthanasia is a vexed issue and this includes within the parliament. But the Australian people have a right to careful debate that draws on the significant body of evidence that exists on this topic. All MPs need to engage with this evidence and consider how it impacts the arguments being raised when bills are being considered.
The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond the academic appointment above.
Authors: Andrew McGee, Senior Lecturer, Faculty of Law, Queensland University of Technology