To be or not to be?

It looks as if prominent and obsessively determined euthanasia campaigner Dr Philip Nitschke may be in trouble again.  He has already had his right to practise medicine suspended and is facing Medical Board disciplinary proceedings arising from a situation a few months ago where he apparently provided telephone and email advice to a non-terminally ill man, seemingly about suicide options.  The man subsequently successfully committed suicide using the so-called “peaceful pill” Nembutal. His relatives later found the correspondence. I will return to this situation later.

The current situation, by contrast, seems morally if not legally straightforward. In August this year Dr Nitschke assisted a 71-year-old man named Martin Burgess to upload the above video onto Nitschke’s YouTube channel. Burgess appealed for someone (anyone) to help him by donating supplies of Nembutal to allow him to kill himself. Burgess was in the latter stages of terminal rectal cancer, was in frequent pain and not being effectively supported by palliative care services, and was pretty clearly not suffering from any mental disability which might have impaired his decision-making process. He made an entirely rational decision to kill himself.  He died last week. To be blunt, I would have made exactly the same decision had I been in his situation. See the slightly longer video below where Burgess describes his situation (try to ignore the irritating background noise).

If the Northern Territory’s Rights of the Terminally Ill Act had still been in force, Burgess would certainly have qualified to access medically-assisted euthanasia. He would not have needed to resort to the desperate expedient of appealing for pharmaceutical help on  YouTube, nor would he have needed to endure a probably lonely death in his noisy flat in suburban Rapid Creek in order to avoid implicating anyone else in his death. The Act in my view contained adequate and appropriate safeguards to ensure that the patient not only was suffering a terminal illness, but also had the requisite mental capacity to make a rational and considered decision to end their life. The existence of a terminal illness had to be certified by two independent medical practitioners, and the patient’s mental capacity had to be certified by a psychiatrist.

Unfortunately, the Rights of the Terminally Ill Act is not still in force. After less than two years of operation, Howard government (and now Abbott government) Minister and God-botherer Kevin Andrews intervened and introduced into Federal Parliament a Private Member’s Bill which when enacted not only nullified the legal effect of the Rights of the Terminally Ill Act but also removed the constitutional ability of the Northern Territory Legislative Assembly (and incidentally all other Commonwealth territories as well) to legalise assisted suicide at any time in the future. The Bill successfully passed through both Houses of Parliament with the tacit support of Prime Minister John Howard and a range of Christian MPs on both sides of politics.

The reason why I suggested that Dr Nitschke’s actions in relation to Martin Burgess might not have been legally straightforward is that section 162 of the Northern Territory Criminal Code makes it a crime potentially punishable by life imprisonment to “assist” or “encourage” another person to commit suicide. Hence my suggestion that terminally ill people wanting to put an end to their own suffering really have no choice but to die a lonely death if they want to avoid putting family or friends at risk of drastic punishment.  Other states have somewhat similar provisions in their criminal law. I haven’t examined the case law on such provisions, but you would think there is at least some risk that Nitschke’s actions might run foul of section 162. Clearly those are risks of which Dr Nitschke is well aware. Whether you regard him as courageous or reckless and foolhardy no doubt depends on your personal moral perspective.

The events surrounding Dr Nitschke’s suspension by the Medical Board are more troubling:

The decision to suspend Dr Nitschke using the board’s emergency powers to  “protect  public health and safety” came after he admitted in an interview with the ABC that he had supported a 45-year-old Perth man, Nigel Brayley, in his decision to commit suicide, despite knowing the man was not terminally ill.

The AMA has cited the same “adverse event”, saying Dr Nitschke’s “professional behaviour … was not consistent with the high professional and ethical standards for the Australian medical profession promoted by the AMA.”

Not only was Brayley not suffering from a terminal illness, but members of his family have also asserted that he was suffering from depression (although whether they know this or are just suggesting it was a possibility is unclear). It would appear that at the time of his death, Brayley was under police suspicion of murdering his wife by pushing her into a quarry. Perhaps his decision to kill himself was a rational one; perhaps it was a tacit acknowledgement of guilt in which he acted as his own judge, jury and executioner.

On the other hand, perhaps he was an innocent man who had just become overwhelmed by the pressure of unjust suspicion and the prospect of a legal ordeal which would at best have left his reputation permanently ruined. Perhaps that perception of his situation might have been exacerbated if indeed he was suffering from clinical depression. In any event, it appears unlikely that Nitschke had enough contact with him to form any view about his mental state. Nitschke asserted in his ABC interview that he did not see it as a part of his role to assess Brayley’s mental state or even to urge him not to commit suicide. Presumably the Medical Board and the AMA regard such conduct as inconsistent with the Hippocratic Oath. However it would be inappropriate to canvass such issues further given that Dr Nitschke’s Medical Board hearing is imminent.

The pressure surrounding Dr Nitschke is even more widespread than that. A recent newspaper report noted:

Embattled euthanasia campaigner Dr Philip Nitschke is being investigated by police in every Australian state over his possible role in nearly 20 deaths in the past three years, all of them apparently suicides.

The latest investigation, by Victoria Police, concerns the death of a 55-year-old Geelong man who allegedly killed himself using a do-it-yourself kit bought though a company affiliated with Exit International, the pro-euthanasia organisation founded by Dr Nitschke.

All of the deaths being investigated involved the use of the two suicide methods promoted by Dr Nitschke, the lethal drug, Nembutal or a nitrogen inhalant device.

I simply don’t know how many of these deaths (assuming Dr Nitschke was involved in them) involved people who were terminally ill and had mental capacity to make a rational decision. How many involve people like Brayley or for that matter former Territory Senator Bob Collins (not that Nitschke had any involvement in that situation to the best of my knowledge), cheating justice by killing themselves to avoid facing trial for serious crimes? With increasing numbers of people accused of pedophile activities before the current Royal Commission, there is likely to be a growing demand for suicide-related services.

How many involved people suffering chronic but non-terminal medical conditions involving frequent pain and the prospect of an uncomfortable, undignified life?  Medical science has advanced to a stage where average Australian lifespans are now longer than 80 years, but the quality of that life in its last decade or so is another question entirely.  Should people with such conditions be entitled to end their own lives? Should they be entitled to medical assistance to do so with dignity? in my opinion the answer is yes, but it shouldn’t be left to the unregulated opinions of medical crusaders like Dr Nitschke. Given that many of us will face such a dilemma in years to come, either for ourselves or our close family members, and that our doctors will also face such dilemmas, surely the time has come to enshrine appropriate safeguards in legislation by re-enacting the Rights of the Terminally Ill Act in all states and territories, and to extend its operation to cover people with serious chronic conditions.involving ongoing pain (even if manageable through medication) and an undignified, uncomfortable life.

On the other hand, I don’t think that assisting the suicide of people seeking to escape the criminal justice system should be legalised under any circumstances.  Those are decisions that should rightly remain the lonely sole responsibility of the alleged perpetrator

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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11 Responses to To be or not to be?

  1. Moz in Oz says:

    I’m close to being a right to death absolutist, I admit. I don’t see very many reasonable grounds for a society to sentence a person to live against their will, and most involve temporary insanity in some form. What does society gain by prolonging the torture of people who want to die? Even on a twisted “all human life has (positive) value, even unwanted life” position I think it’s hard to argue that somone in late-stage mass organ failure should be kept alive just so we can say we did it. Surely those perspectives would agree that 20 happy, healthy people are better than one suffering, dying one? So it’s better to put resources in to saving masses of starving or unvaccinated kids than a few dying elderly.

    I don’t think that assisting the suicide of people seeking to escape the criminal justice system should be legalised under any circumstances

    Why not? If you think a trial should be carried out then surely we could do that without the alleged perpetrator present. Especially since you are explicit that you think a trial should be done even to the innocent, regardless of what it costs them. The cost of being found not guilty seems to be considered reasonable by many people, even when it includes the life of the accused.

  2. Nicholas Gruen says:

    It’s all too hard for me. But like the previous commentator, I’m not sure how you draw the line if you support the legalised right to die. Perhaps clinical depression should be an exception, but with Collins suffering from cancer and presumably expecting to be found guilty of child abuse, I’m not quite sure why you insist he not have the option of assisted suicide. I’m not against retribution as part of criminal justice, but extinction seems retribution enough.

    • Ken Parish says:

      I don’t have a problem if a serious offender chooses to save the taxpayer money by killing himself before facing trial. However, there are several obvious problems with constructing a system whereby the state colludes in assisting the offender to do that by licensing a doctor to help him/her:

      1. The offender won’t be around to “assist police with their enquiries” a.k.a. dob in his co-offenders.

      2. The availability of permanently silencing offenders the legal way may provoke a phenomenon whereby co-offenders (and others with something to gain) pressure and intimidate the offender to do the right thing and knock himself off.

      3. It doesn’t really enhance the concept of rule of law for the State to collude with an offender to avoid facing a fair trial.

      4. Victims and their families could be expected to have at best mixed feelings about legally permitting offenders to kill themselves without facing justice. I am pretty sure that Bob Collins’ (alleged) victims were unhappy that he didn’t face justice for what he did to them, while also feeling to some extent relieved that they didn’t have to give evidence about it. To me at least, this isn’t just about retribution. It’s also about a word I really hate but which still has some reality. It helps the victim and family to achieve “closure” if the offender is made to face up to his crimes before the people and be justly punished for them, rather than be assisted by the State to run away from them permanently. I suspect that is why the family of Reeva Steenkamp expressed satisfaction with the outcome of the Pistorius trial, even though the sentence was a bit like being flogged by a wet lettuce.

      • derrida derider says:

        Indeed, if you are one of those who believe we should try people for the sake of their victims then it is the verdict, not the punishment per se, that does most of the “closure”. An elaborate ritual to formally recognise a wrong and assign blame.

        This is a point I thought Helen Garner got wrong in her moving meditation on this topic in “The Consolation of Joe Cinque” (it was the verdict of “manslaughter” for the killer, not the recognition in the sentencing of her mental pathology, that did more damage to Joe’s family) .

        Still, the perpetrator’s suicide in recognition of their culpability may serve the same purpose, provided it is done formally enough. Perhaps introduce seppuku or another such military tradition for the dishonoured (leaving them alone in a room with a pistol a bottle of single malt, self-strangulation with a silk cord sent by the Emperor, or the Roman one of running onto a sword held by a slave). Humans do often have strange notions of revenge and atonement.

    • Hildy says:

      You can then draw the line via the professional standards process. I can’t imagine assisting suicide in a depressed person to become professionally acceptable. Leaving it in the hands of the professions also gives more scope for ensuring that people aren’t involuntarily suicided.

      The analogy would be abortion – where decriminalisation in the context of medical assistance has led to an uneasy status quo in some states. There is a need to stop the Victorian situation from occurring, however.

      • john Walker says:

        Do you think many doctors would want to be involved?

        • Hildy says:

          Some.

          As a medical student I was a lot more pro euthanasia than I am now. Some of this may have come from slowly absorbing the norms of the profession; but even now I think that I would not be averse morally (if it were decriminalised) to giving a patient in intractable pain and suffering, who I could do nothing else for, a big syringe of morphine and instructions for its use.

          Essentially it’s high intensity short term palliative care with dual effect.

        • john Walker says:

          Hildy
          My mother died of mesothelioma (horrible) , in last 4 weeks they were not at all concerned about the ‘safety’ of the amount of morphine she was getting . I do not regard that as anything other than “removing impediments to the souls departure”.

  3. Moz in Oz says:

    Given the “choice” between defending yourself in both court and socially against charges of paedophilia (for example), or giving up, would you fight to the point of bankruptcy and prison, or would you just let it get to the point where even your family had abandonded you then kill yourself? Think of it as a plea of nolo contendre – “I cannot fight any more” (rather that the technically correct “I do not contest”).

    I realise you’re a legal professional so it’s part of your life, but the wilful conflation of justice with what the legal system produces is something I struggle to accept. I have seen people I know put through the mill only to be found not guilty after the legal system had decided that name supression was unnecessary and many people had concluded they must therefore be guilty of something. Recovering after the verdict is difficult if it’s possible at all, and it takes a long time. The legal system explicitly rejects any suggestion that they should help in that process beyond the declaration that “you’re not innocent, you have been found not guilty, there is an important difference” (or, worse, “there was not enough evidence for a trial, but we’ll leave the case open”). That cost is not something that legal system members seem to consider worthy of discussion.

  4. Moz in Oz says:

    On a completely different note, the question of incurable illness is another one where the legal beagles seem to struggle. For some people the gap between effective palliative care and their lives is significant, and even the palliative care has side effects that might not be tolerable. The is most acceptable with some cancers, where there’s clearly no cure and all that remains is how painful the immenent death will be.

    But for other diseases it’s not so clear cut. Muscular distrophy, for example, can take 30 or 40 years to kill, and there’s no clear-cut point where everyone will agree that life has become unbearable. But, inevitably, the person will end up helpless in hospital kept alive only by machines. Do we let someone with that sentence kill themselves while they’re still “healthy”? Or do we make them wait until they need someone else to kill them?

    Even harder for many people, what about minor niggling problems that just won’t ever go away? Any chronic illness falls here, as do many mental illnesses. For example, many people with arthritis find it “just” gets more painful slowly over several decades until they die of something else. Similarly many people with bipolar illnesses have the choice between drugs that turn them into zombies or drugs that sometimes don’t work. If you’re someone who gets agressively paranoid, that’s an awful choice. Have near-zero quality of life on the drugs that “work”, or risk killing another family member when the drugs that “usually work” inevitably slip. After 10 or 20 years of being ground down by that, should we allow someone to choose “c: just make it stop”?

  5. john Walker says:

    Morally there is a difference between between ending a life (with or without some asistance) and removing impediments to dying.

    “If there is something which inhibits the soul’s departure, such as a nearby noise of knocking like wood-chopping, or if there is salt on the patient’s tongue and these hinder the soul’s departure, then it is permitted to remove them from there because this does not entail a (positive) act but only the removal of an impediment to death.”

    As a christian I do not know what I would do if faced with a long slow debilitating death. There certainly should not be any laws re self suicide. As for assisted suicide of people with terminal illness, morally not sure, is it possible to really quarantine it to only those who have real terminal conditions and are in ‘sound mind’?
    Dr Nitschke really bothers me, gives me the creeps.

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