Law, ethics and a "good death"
1 October 2008
Euthanasia and physician-assisted dying are hotly contested topics in medical law and bioethics. No state or territory in Australia currently permits doctors to intentionally hasten the deaths of their patients. For an 8-month period during 1996-97, euthanasia was lawful in the Northern Territory under the Rights of the Terminally Ill Act 1995 (NT), until this Act was over-ridden by Commonwealth legislation. Occasionally, advocates of physician-assisted dying have come forward and acknowledged their (extra-legal) involvement to the media. In March 1995, for example, 7 Melbourne doctors went public on the front page of The Age, admitting to euthanasia and calling for legal change. Among them was Dr Rodney Syme, a Melbourne urologist who claims to have quietly assisted the deaths of some of his patients, for over thirty years.
On 18 September 2008, Dr Syme delivered the 2008 Oration of the Centre for Health Governance, Law & Ethics to a capacity audience in the Law School's Assembly Hall. Entitled "A good death - a challenge of law and medical ethics", Dr Syme argues that when faced with a patient with intolerable suffering, the law leaves doctors at the edge of a "black hole - a moral, ethical and legal abyss, but without any safety ropes". Dr Syme expands on these views in his recently published book: A Good Death: an argument for voluntary euthanasia (Melbourne University Publishing, 2008).
Like many advocates of physician-assisted dying, Dr Syme believes that compassionate end-of-life medical care may involve administering lethal quantities of drugs at a patient's request, where conventional palliative therapies have failed to provide relief from intolerable suffering. However, Dr Syme emphasises that he does not see physician-assisted dying as an alternative to palliative care. Rather, he sees it as the missing piece in the spectrum of palliative care. Physician assisted dying ought to be practiced within the specialty of palliative medicine, Dr Syme believes, so that those who request it will not be doing so because they have been denied what state-of-the-art palliative medicine has to offer.
An important theme Dr Syme addressed in his oration was the legal status of deep, continuous sedation, when provided to patients to ease their distress at the end of life. According to Dr Syme, palliative sedation - without the administration of intravenous hydration - has increasingly been recognized as an appropriate form of palliative care, even though it unquestionably hastens the time of dying. In Dr Syme's view, palliative sedation does this by "first eliminating consciousness and ultimately life. In this sense it is no different from physician assisted dying, except for the dimension of time".
Although Dr Syme supports deep sedation, he is critical of the way that the slow death of the patient creates a "convenient mirage over the event". In his view, the inevitability of the patient's death means that it would be more honest for doctors - and for the law - to acknowledge that the doctor's intention when providing palliative sedation is actually to provide relief from suffering by ending life.
Three speakers gave short rejoinders to Dr Syme's presentation. Associate Professor Roger Magnusson from Sydney Law School argued that one way of understanding the decision that doctors face when sedating suffering patients deeply at the end of life is in terms of a choice between two perverse alternatives. A doctor may sedate a patient in a way that makes them unconscious, intentionally keeping them that way until death intervenes, aware of the role that sedation plays in that process. On the other hand, if the only other option is to give inadequate analgesia, doctors need to be legally protected. The most honest analysis may not be to manipulate the legal concepts of causation or intention, but to recognize a defence of "necessity" for doctors who hasten death by means of palliative sedation.
Associate Professor Bernadette Tobin, Director of the Plunkett Centre for Ethics at St Vincent's University, and a Reader in Philosophy at the Australian Catholic University, countered Dr Syme's argument by pointing out that in many areas of life, we commonly recognize that the consequences of our actions and interventions, despite being likely, foreseeable or even inevitable, are not thereby regarded as being intended. Professor Tobin also pointed to the risk of unintended consequences if society were to legalise intentional killing: "from the voluntary to the non-voluntary, from the terminally ill to the physically sick, from the physically sick to the depressed, to the lonely and the fearful".
Ms Miriam Cosic, the literary editor of the Australian newspaper, and author of The Right to Die? An Examination of the Euthanasia Debate, drew attention to the radically different culture in which physician-assisted dying occurs in Dutch society. In the Netherlands, the tradition of home visits by local physicians continues, and there is less corporatization of medical practice. Many Dutch citizens maintain a relationship with their family practitioner over many years. According to Ms Cosic, the debate in the Netherlands also differs from debate in Australia because of the high level of goodwill that opponents have for each other, regardless of their moral views.
Dr Kristin Savell, who teaches a unit called "Death Law" in the Master of Health Law at Sydney Law School, chaired the oration, and presided over a lively discussion. Dr Savell pointed to the role of the Centre for Health Governance, Law & Ethics as a focal point for research and teaching on health law and public health law within the Faculty. Sydney Law School is a leader in health law and public health law, offering a wide range of units of study for credit towards the Master of Health Law and Graduate Diploma programs. These programs are open to practising lawyers, medical practitioners, nurses, other allied health professionals, health executives and administrators, and other approved applicants. Among the elective units on offer in 2009 are units entitled: "Global Health Law", "Genetics & the Law", "Class Actions & Complex Litigation", and "Expert Evidence".
Contact: Associate Professor Roger Magnusson
Phone: +61 2 9351 0211