Euthanasia in Australia - Essay Example

Euthanasia in Australia Introduction The ethics of euthanasia has been debated for quite some time in Australia. Though certain territories of Australia managed to legalise the same for a short time; presently, euthanasia is illegal in all territories of Australia. Presently, in Queensland, the only two laws that deal with end of life are Advance Health Directive and the Power of Attorney Act 1998. In fact, both the laws are insufficient to seek the help of others for assistance. Compared to other states in Australia, Queensland has more restrictions on the use of Advance Health Directive, which result in hindering individual freedom to healthcare. While other states use Advance Health Directive to overcome the restrictive statutory regime, Queensland uses the statutory regime to restrict the freedom under Advance Health Directive. Thus, Queensland authorities are more orthodox about the sanctity of human life than other states are. However, the mere fact is that through the amendment to the Queensland Criminal Code 1899, the territory has unofficially allowed room for euthanasia. It becomes evident that the existing laws in Queensland show double standard. On the one hand, it stands totally against the right to end ones own life unlike other states in Australia. This is evident from the fact that it has imposed greater restrictions on Advance Health Directive. On the other hand, it introduced amendments to Criminal Code to help health practitioners escape prosecution by allowing palliative care to the extent of foreseeable death but not intended death. However, the mere fact is that these rules and regulations are not water-tight. In other words, there arise a lot of legal issues associated with the present day stance of the authorities in this regard. It becomes evident that the Criminal Code of 1899 as amended in 2003 gives room for euthanasia on one hand, and punishes the ones who help in the same on the other. The Advance Health Directive and statutory regime- a failed purpose Admittedly, the only purpose of Advance Health Directive (AHD) is to allow individuals to decide their future course of treatment if they are incapable of taking independent decisions in future. As Willmott (2007) points out, unlike other states, Queensland has more rules and regulations regarding the applicability of AHD. The Power of Attorney Act (1998) (QLD) declares that in order to proceed with the AHD to remove life-sustaining measures; one of the four conditions should be met: the patient has a terminal illness from which death is certain; the patient is in a vegetative state; the patient is permanently unconscious; or the patient has such an illness or injury from which patient is highly unlikely to recover. Thus, the Queensland regulation evidently kills an adult’s right to self-determination as the legislation shows more attachment towards the medical principle of sanctity of life. Davis (2009) argues that a look into the English law proves that the right to self-determination is given more importance than the principle of sanctity of life. In the case, Bland was in a vegetative state and the court allowed removal of life-supporting treatments to facilitate his death (ibid). However, in Queensland, an adult can fill advance health directive but it will operate only if it is in harmony with the common law. That means, in Queensland, for an advance health directive to operate, it should meet criteria like a sufficiently poor state of health, lack of prospects of recovery, and consistency with good medical practice. However, in other states, it is irrelevant to consider the fact that the adult would have lived for an extended period of time and made a full recovery if life-sustaining measures were given. In other words, if there is a valid AHD, the medical practitioner would not legally be allowed to provide such good medical practices which could prolong or save the life of the patient. Another important limitation, according to Willmott et al (2006) is that in Queensland, self-determination works only if the adult is sufficiently ill and only when doing so is a good medical practice. Thus, it becomes evident that unlike other states in Australia, Queensland heavily restricts the right to self-determination. In other words, an advance directive is given no value while deciding the treatment options. Secondly, the advance decision will not work if the adult has a reasonable prospect of regaining capacity to take decisions (ibid). That means in issues like heart attack, the directive is unlikely to operate. Thirdly, in other states, even if a medical measure is not operative under the legislative regime, a person can opt to do so through advance directive (ibid). However, in Queensland, the advance directive is restricted by statutory regime. Another point is that according to the Powers of Attorney Act 1998, the life-sustaining measures are cardiopulmonary resuscitation, assisted ventilation and artificial nutrition and hydration. It is surprising to note that blood transfusion is omitted from the list of life sustaining measures. Still, the mere fact is that the Queensland legislation severely restricts individual rights in a number of situations. To illustrate, a person who just developed dementia will not be able to utilise the legal right to remove life-sustaining treatments as the disease is not terminal at any stage. It seems that the situation has been complicated by the introduction of the amended Queensland Criminal Code of 1899. Though the act was totally against killing, the amended act goes ahead to say that palliative care can be administered even when it likely hastens death of the person. To complicate the case further, it is pointed out that while doing so; death should not be intended but can be foreseen. The Criminal Code for and against Euthanasia-the double effect Section 282A of the amended act points out that a person is not criminally responsible for providing palliative care to another person even if the effect of providing the palliative care is to hasten the other person’s death. In addition, it is pointed out that the palliative care provided should be reasonable considering the other person’s state and all the circumstances of the case. Referring to McGee (2004), it is pointed out that palliative care means the care; whether by doing an act or by making an omission, which is aimed at maintaining or improving the comfort of a person who is, or would otherwise be, subject to pain and suffering. When one comes to the realisation that it is possible to conduct euthanasia within the boundaries set by this law, one is restrained by subsection (3a) that this palliative care does not mean an act done or omission made with intent to kill another person. Thus, one reaches the double effect; while providing palliative care, it is not an offence to result in death even if it is ‘foreseeable’, but it is an offence if death is ‘intentional’ (Tulloch 2005, p.130). The role of prosecution is to decide whether an activity of euthanasia is just ‘foreseen’ or ‘intentional’; and while the former evades punishment, the latter is punishable (ibid). Another hurdle is that while the Advanced Health Directive allows a person to refuse life-sustaining medical treatment or appoint a person who will take the decision when the person is incompetent, the capacity of the doctor and the authorised person to help in this suicide is disputed by law. To illustrate, as Scherer and Simon (1999, p.180) reflect, the people who complete advance directive about life-sustaining treatment are doing so in the belief that the same will be followed by the doctor when they lose their ability to take decisions about medical treatment; and hence, a doctor’s ability to do so is hindered by the Criminal Code of Queensland. To illustrate, even if a terminally ill patient wants to remove life-sustaining treatment, a doctor will not be able to do so because according to the Criminal Code Act 1899, “a person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is laboring under some disorder or disease arising from another cause, is deemed to have killed that person” (Queensland Criminal Code Act, 1899, Section 296). In addition, Section 311 makes it clear that helping another person in killing himself or herself is guilty of a crime (ibid). It becomes evident that even the newly added palliative care amendment will not overcome the ambiguity. To illustrate, according to some people (Forrester & Griffiths 2010, p. 231), it is possible to draw a distinction between the pain reliefs administered for which accelerated death is an effect and mercy killing. That means if someone proceeds with a treatment even if death is a known consequence, it is nothing other than a form of euthanasia (ibid). In this case, it becomes necessary to point out in the legislation that if death is a known effect, that is an intended effect and hence illegal. In order to overcome the ambiguity here, one has to rely on the doctrine of double effect at common law. It can be seen that according to the norms of applied ethics, an action with a bad effect is defensible if it successfully meets four requirements. The said requirements are: the action should be good or indifferent; the sincere intention of the action should be the good effect; the bad effect should not be used as a way to reach the good effect; and there should be adequate reason to let the bad effect to occur. Admittedly, before the amendment to the Criminal Code of 1899 took place, there was no chance to apply this double effect doctrine because Section 296 made all actions and omissions that result in death a crime. It was this inconsistency that the amendment tried to solve through Section 282A (Wolfslat, 2008, p. 101). Though there are discrepancies, one cannot deny the fact that law declares in clear terms that intentional taking of human life is a crime. However, as Hunt (2001) points out, this disambiguation has come with another ambiguity. The scholar asks “can a hastened death be truly described as unintended or incidental if clinical reasoning makes it foreseen, it is discussed with the patient and careers, agreed to, and then deliberately proceeded with?” (Hunt, 2001). If this distinction cannot be made, it becomes evident that this doctrine can be utilised to cover euthanasia. This is so because both palliative care and euthanasia can be administered with the intention to accelerate ones death. In other words, both can be administered with the intention to end the life of a person instead of merely alleviating pain. Here, the surprising thing is that though the explicit declaration in the statute that noting in this legislation shall be considered as authorising someone to act or omit something to kill someone or to aid someone kill oneself, what the act tries to prohibit and what the act allows is euthanasia. In other words, that act allows doctors to evade prosecution Admittedly, the law gives birth to a number of legal and ethical jargons. To illustrate, while it allows a palliative care to be administered even when death is reasonably foreseen, it prohibits palliative care where death is intended. The first question that arises here is the way foresight should be separated from intention. Another question is what degree of possibility is required to consider death as a possible outcome. A look into Vatican’s Declaration on Euthanasia (1980) proves that death should in no way be sought or intended even if the risk of it is reasonably taken. Here, it becomes evident that relief should not be administered when death is a certainty. Thus, one can say that even if the legislature intended that death should not be a certain consequence but a possible one, the ethical risk is of almost the same gravity. This is all the more so because the legislation does not describe the extent of possibility required to abstain from euthanasia. How to solve the dispute It becomes evident that the existing laws in Queensland show double standard. On the one hand they stand totally against the right to end ones own life unlike other states in Australia. This is evident from the fact that the state has imposed greater restrictions on Advance Health Directive. On the other hand, it introduced amendments to Criminal Code to help health practitioners escape prosecution by allowing palliative care to the extent of foreseeable death but not intended death. However, the mere fact is that these rules and regulations are not water-tight. So, the first step for Queensland is to decide whether it wants to allow individual right to death. If it wants to respect individual rights, it will have to remove the restrictions on allowing Advance Health Directive. On the other hand, if it wants to respect the sanctity of human life, it should remove the ambiguity regarding ‘intended’ and ‘foreseen’ death. It should accept the fact that a foreseen death is an intended death and amend the criminal code. Conclusion In total, Queensland is highly orthodox in the matter of euthanasia. Though many other states allow the right to end ones own life through Advance Health Directive which is beyond the reach of criminal code, Queensland has brought Advance Health Directive within the reach of criminal code. As a result, it is necessary for Queensland to amend the existing rules according to the position it wants to take in the case of euthanasia. References Davis, A., 2009. The case of Tony Bland, [Online] Available at: [Accessed 29 March 2012]. Declaration on Euthanasia., 1980. Sacred congregation for the doctrine of the faith, [Online]Available at: [Accessed 29 March 2012]. Forrester, K & Griffiths, D., 2010. Essentials of Law for Health Professionals, Australia: Elsevier. Hunt, RW., 2001. Intention, the law, and clinical decision-making in terminal care, The Medical Journal of Australia, 175(10). McGee, A., 2004. Double effect in the Criminal Code 1899 (Qld): A critical appraisal, Queensland University of Technology Law and Justice Journal, 4(1). Queensland Criminal Code Act, 1899, Section 296. [online] Available at: [Accessed 29 March 2012]. Scherer, JM & Simon, RJ., 1999. Euthanasia and the Right to Die: A Comparative View, USA: Rowman & Littlefield Publishers, Inc. Tulloch, G., 2005. Euthanasia, Choice and Death, Edinburgh: Edinburgh University Press. Wolfslat, G.,2008. Physician- assisted suicide and the German criminal law. In: D. Birnbacher & E. Dahl (Eds). Giving Death a Helping Hand: Physician-Assisted Suicide and Public Policy, An International Perspective, Germany: Springer. Willmott, L., 2007. Advance directives to withhold life-sustaining medical treatment: Eroding autonomy through statutory reform. Flinders Journal of Law Reform, 10(2), 287-314. Willmot, L, White, BP & Howard, MT., 2006. Refusing advance refusals: Advance directives and life-sustaining medical treatment, Melbourne University Law Review, 30(1), 211-243. Read More