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LLB104 Policy Document Euthanasia: An introduction. Euthanasia is highly contended in mainstream Australian society with 75.9% of Australians supporting terminally ill patients having access to euthanasia.1 The Queensland Parliament should enact laws sanctioning euthanasia to align with the doctrine of liberalism - a foundational concept underpinning the Australian legal system. Legislation should be enacted to allow for individual freedom and to comply with the harm principle. Euthanasia refers to medical intervention requested by the patient to end their life. 2 Terminal illness refers to an illness, in which reasonable medical judgement, will result in the death of the patient.3 Palliative care is an approach that enhances the quality of life of terminally ill patients through the relief of suffering through early assessment and treatment of pain.4

Individual Freedom A key value of liberalism and a central argument for legalising euthanasia is the principle of individual freedom. The concept of positive liberty insists that a person should have the capacity to formulate and act on their desires.5 Individual freedom has been recognised in the common law with cases such as Stuart v Kirkland-Veenstra,6 and Brightwater Care Group (Inc) v Rossiter.7 In these cases, Australian common law recognised the right to selfdetermination and prioritised the principle of individual freedom. To verify the paramount value of this principle, euthanasia should be made legally permissible. An objection to the argument of individual freedom is the slippery slope argument. This argument objects euthanasia on the basis that it may lead to the acceptance of non-voluntary 1 Matt Wordsworth, ‘Vote Compass: Majority of Queenslanders in support of euthanasia’, ABC News (online at 28 January 2015) . 2 Australian Human Rights Commission, Euthanasia, Human Rights and The Law (Australian Human Rights Commission, 2016). 3 Rights of the Terminally Ill Act 1995 (NT) Part 1. 4 World Health Organisation, “WHO definition of palliative care”, Who.int (Webpage, 2019) . 5 John Christman, “Liberalism and Individual Positive Freedom” (1991) 101(2) Ethics 343 < https://www.journals.uchicago.edu/doi/pdfplus/10.1086/293292 > . 6 (2009) 237 CLR 215 [87]. 7 (2009) 40 WAR 84 [48].

LLB104 Policy Document euthanasia. An example of this is the Groningen Protocol introduced in the Netherlands, which authorises physicians to euthanise terminally ill infants.8 Advocates argue that the legalisation of euthanasia would lead to the permissibility of the involuntary termination of lives with low quality of life, relapsing into a Nazi-style of eugenics where patients will be killed based on their social utility, or lack thereof.9 It is widely recognised that this argument should be treated with caution as there is no empirical evidence supporting it and it could be used to justify the objection to any policy.10 If the practice of euthanasia is sanctioned, monitored and subject to professional and public scrutiny

protection from misuse is

guaranteed.11 The absolute prohibition of euthanasia and infringement of individual freedom on the basis of assumptions is not justifiable.

The Harm Principle Central to the philosophy of liberalism is the harm principle. This principle justifies the restriction on individual freedom which would result in harm to others. 12 In compliance with this principle, states must not intervene in private matters such as death or ‘self-regarding conduct’.13 According to this principle, opposing euthanasia would be an unjustified intrusion as euthanasia has no baneful effect on society. The harm of ending a life is principally harming only to the terminally ill individual.14

An argument objecting to euthanasia is that the practice of palliative care is sufficient thereby rendering euthanasia futile. As medical technology continues to advance and palliative care more refined, the need for euthanasia is eliminated. Rather than authorising euthanasia, the 8 Bertha Alvarez Manninen, “A Case For Justified Non-Voluntary Active Euthanasia: Exploring The Ethics Of The Groningen Protocol” (2006) 32(11) Journal of Medical Ethics 643,651 < https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2563300/ >. 9 Ibid 643. 10 Marvin Kohl, The Morality of killing: Sanctity of Life, Abortion and Euthanasia (Humanities Press, New York, 1974). 11 Lorana Bartels and Margaret Otlowski, “Right to die? Euthanasia and The Law In Australia” (2010) 17(4) Journal of law and medicine 554. 12 Neil Brown, “The ‘Harm’ In Euthanasia” (1996) 68(3) The Australian Quarterly 27 < https://www.jstor.org/stable/20634736?seq=2#metadata_info_tab_contents >. 13 Nils Holtug, “The Harm Principle” (2002) 5(4) Ethical Theory and Moral Practise 365. 14 John Keown, Euthanasia Examined (Cambridge University Press, 1999).

LLB104 Policy Document deficiencies in palliative care should be rectified. If both practices co-exist, the quality of palliative care may be compromised as resources will be rechannelled towards euthanasia. 15 It is important to note palliative care does not surpass euthanasia as it contravenes the harm principle. The high levels of participation in illegal euthanasia highlight the substantial need among patients for symptom relief that palliative care fails to provide. 16 Palliative care prolongs the suffering of patients.17 Allowing patients to terminate their life in a manner that lengthens their pain, as opposed to terminating their life in a dignified manner through euthanasia is inhumane.18

Recommendations In conjunction with a clearly drafted statute, it is recommended that an independent body consisting of lawyers, doctors, psychologists and ethicists be implemented to design safeguards to preserve the voluntary nature of euthanasia. The body will monitor each request, the procedure and establish safeguards. These safeguards will circumvent the possibility of a slippery slope and ensure maximum liberty for patients. The body will act as an oversight mechanism for any systematic issues that may arise.

It is also recommended that both palliative care and euthanasia are funded. Palliative care and euthanasia are not mutually exclusive; the legalisation of euthanasia does not equate to the eradication of palliative care as the two complement each other. Legalising euthanasia will expand the options available to patients. This will comply with the harm principle as with proper funding, symptom management in palliative care can be brought to adequate standards.

Word count: 1000 References A

Articles/Books/Reports

15 Andrew McGee et al, “informing The Euthanasia Debate: Perceptions of Australian politicians” (2018) 41(4) UNSW Law Journal 1397,1400. 16 Roger Magnusson, “The Future of the Euthanasia Debate in Australia” (1996) 20(4) Melbourne University Law Review 1140. 17 Joseph W Shega et al, “Patients dying with dementia: experience at the end of life and impact of hospice care” (2008) 153(9) Journal of pain and symptom management 499,507. 18 McGee et al (n 18) 1408.

LLB104 Policy Document Australian Human Rights Commission, Euthanasia, Human Rights and The Law (Australian Human Rights Commission, 2016

Bartels L and Margaret O, “Right to die? Euthanasia and The Law In Australia” (2010) 17(4) Journal of law and medicine.

Brown, Neil, “The ‘Harm’ In Euthanasia” (1996) 68(3) The Australian Quarterly < https://www.jstor.org/stable/20634736?seq=2#metadata_info_tab_contents >

Christman, John, “Liberalism and Individual Positive Freedom” (1991) 101(2) Ethics < https://www.journals.uchicago.edu/doi/10.1086/293292 >

Holtug, Nils, “The Harm Principle” (2002) 5(4) Ethical Theory and Moral Practice < https://link.springer.com/content/pdf/10.1023%2FA%3A1021328520077.pdf >

Keown, John, Euthanasia Examined (Cambridge University Press, 1999)

Kohl M, The Morality of Killing: Sanctity of Life, Abortion and Euthanasia (Humanities Press, New York, 1974)

Magnusson, Roger, “The Future of the Euthanasia Debate in Australia” (1996) 20(4) Melbourne University Law Review. Manninen, Bertha Alvarez, “A Case For Justified Non-Voluntary Active Euthanasia: Exploring The Ethics Of The Groningen Protocol” (2006) 32(11) Journal of Medical Ethics < https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2563300/>

McGee, Andrew et al, “Informing the Euthanasia Debate: Perceptions of Australian Politicians” (2018) 41(4) UNSW Law Journal

Shega, Joseph W et al, “Patients dying with dementia: experience at the end of life and impact of hospice care” (2008) 153(9) Journal of pain and symptom management

B

Cases

LLB104 Policy Document Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 Stuart v Kirkland (2009) 237 CLR 215

C

Legislation

Rights of the Terminally Ill Act 1955 (NT)

D

Other

World Health Organisation, “WHO definition of palliative care”, Who.int (Webpage, 2019)

Wordsworth, Matt, ‘Vote Compass: Majority of Queenslanders in support of euthanasia’, ABC News (Sydney, 28 January 2015) 3...